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S.W. Iyabi – Ayah & Ors. v. Chief Ayah & Ors.

Court of Appeal

Judgement delivered on Tuesday, April 15, 1997
Citation: 40 NIPJD [CA. 1997] 53/1992
Suit No. CA/PH/53/92      Jurisdiction: Nigeria

BEFORE THEIR LORDSHIPS

ALOYSIUS IYORGYER KATSINA-ALU, J.C.A
MORONKEJI OMOTAYO ONALAJA, J.C.A.
RAPHAEL OLUFEMI ROWLAND, J.C.A. (Delivering the Lead Judgement)

Appearances: H. Senibo for the Appellant
E.B. Ukiri for the Respondent

CITED IN

Compact Disc Technologies Ltd. v. Musical Copyright Society of Nigeria

Excerpt from citation:

It is a trite and well founded principle, that the issue of locus standi is a condition precedent, thus fundamental to the determination of any action before a court of law. Therefore, once raised at any stage of proceeding, the court, be it the trial or appellate court of whatever hierarchical status, has a duty to determine the issue of locus standi before delving into the substantive issues of the matter. This is obviously so, because the issue of locus standi fundamentally affects the jurisdiction of the court, thus where a party has no locus standi to file an action, in the first place, the court lacks the vires (jurisdiction) to entertain the matter. See CBN VS. KOTOYE (1994) 3 NWLR (PT. 330) 66; ADESANYA VS. PRESIDENT REPUBLIC OF NIGERIA (1981) 2 NWLR 3S8; OKENWA VS. MIL. GOVT. IMO STATE (1997) 6 NWLR (PT.507) 136; IYABI-AYAH VS. AYAH (1997) 10 NWLR (PT. 523) 141; OKAFOR VS. ESENWA (1992) 4 NWLER (PT. 237) 611; EKE VS. MIL. GOVT, OF IMO STATE (2007) 13 NWLR (PT. 1052) 531 AT 505 – 566 paras G – A, respectively.

I. FACTS

 In the High Court of Rivers State of Nigeria, holden at Degema and in Suit No. DHC/25/88, the plaintiffs took out a writ in the following terms:-

“(1) A declaration that the 1st defendant ceased to be the Chief and Head of Ayah House of Ewoama and Okpoma since he was dethroned by the members of the Ayah House in 1974 and therefore his parading and holding himself out as the Chief and Head of Ayah House of Ewoama and Okpoma is unconstitutional and contrary to the custom and native law of Nembe.

(2) N50,000.00 damages from the 2nd – 16th defendants for recognizing and encouraging the 1st defendant as the Chief and Head of Ayah House and from the 1st defendant in parading himself as Chief Ayah, and embarrassing and humiliating the 1st plaintiff and the Ayah House of Ewoama and Okpoma.

(3) Perpetual Injunction restraining the 1st defendant from parading, arrogating and holding himself out or performing the functions of the Chief and Head of the Ayah House and also restraining the 2nd to 16th defendants, their agents, servants and any person whomsoever in recognizing, encouraging, supporting or dealing with the 1st defendant as the Chief and Head of the Ayah House of Ewoama and Okpoma in the Brass Local Government Area.”

Pleadings were ordered filed and exchanged. Before the case proceeded to trial the defendants brought a Motion to dismiss the suit under order 24 of the High Court Rules of Rivers State (Procedure in lieu of Demurrer). The contention in the preliminary issue of law was that the facts deemed to be admitted coupled with the prayers contained in the statement of claim show that the plaintiffs’ case was a chieftaincy question which cause of action arose in 1974 and the High Court consequently lacks jurisdiction to hear and determine the suit. The learned trial Judge in his ruling held the view that it was a chieftaincy matter but construed the averments in the statement of claim as showing a cause of action that arose after 1/10/79 and held that the High Court has jurisdiction to hear and determine the suit. The defendants dissatisfied with the ruling of the High Court dated 5/6/89 appealed to this court. The defendants shall hereinafter be referred to as the appellants and the plaintiffs shall hereinafter be referred to as the respondents. The Notice of Appeal contains four grounds of appeal. The appellants sought leave to amend the grounds of appeal. The application to amend was granted by this court on 7th July, 1992. The appellants raised two issues for determination. They read as follows:-

“1. Whether the cause of action indeed arose before 1/10/79 when the 1979 Constitution of the Federal Republic of Nigeria came into force.

2. If so, whether the High Court had jurisdiction to entertain the suit.”

The respondents formulated four issues for determination. They are:

“1. Whether the plaintiffs’ cause of action was found on the deposition of the 1st appellant which occurred in 1974 or the wrongful exercise of the functions of the chief and head of Ayah house in 1980, 1986 and 1988.

2. Whether the cause of action in this suit arose before 1st October 1979.

3. Whether where the acts of the defendants involves series of repeated but separate wrongful acts the plaintiffs cannot found a cause of action on any of them.

4. Whether the High Court rightly held that it had jurisdiction over the post 1979 wrongful acts of the defendants.”

I find the two issues formulated by the appellants to be succinct and more related to the grounds of appeal than those of the respondents. Infact issue No.3 in the respondents’ Brief is meaningless. But be that as it may, I find it more convenient to treat this appeal in accordance with the two issues formulated by the appellants as they have encompassed the four grounds of appeal contained in the Notice of Appeal.

But before I do that, it should be pointed out that the appellants in their brief after formulating the issues for determination based their argument on the grounds of appeal. The rule is that once issues arising from the grounds of appeal are formulated, the grounds of appeal are subsumed by the issues so formulated. In other words after issues have been formulated the grounds of appeal give way to the issues formulated. The appeal should then be argued on the basis of the issues formulated.

The facts of the case are not in the main in dispute and they run thus: In 1974 the 1st appellant was dethroned as the Chief and Head of Ayah House of Ewoama and Okpoma. The 1st respondent was later installed as the Chief of Ayah and Head of Ewoama and Okpoma. The 1st and 2nd appellants with the support of the rest of the appellants were said to embark on continuous but distinctively separate acts which tend to subject the 1st respondent to ridicule, embarrassment, contempt or hatred. It was said that the 1st appellant at different occasions and periods, paraded himself as the Chief Ayah up to and including the date the writ of summons was taken out. The appellants brought a motion pursuant to order 24 rules 2 and 4 of the rules of the High Court of Rivers State 1987 on 3rd April, 1989. See pages 19 and 20 of the records – contending that the cause of action arose in 1974 and so the trial court lacked jurisdiction to hear the matter. The respondents at pages 21 to 22 of the records joined issues with the appellants contending on the contrary that the cause of action arose when the 1st appellant who had been dethroned in 1974 performed the functions of the Chief and Head of Ayah in 1980, 1986 and 1988.

As I have said above the learned trial Judge found as a fact that the cause of action giving rise to the present dispute arose after 1979 and the High Court therefore had jurisdiction. The lower court then dismissed the appellants’ Motion on 5th June 1989. As I have stated above this appeal is against the said ruling.

The second issue in the appellants’ brief is an offshoot of the 1st issue. I shall therefore take them together. It was submitted that the moment the averments in paragraph 20 (VI) and (VII) were caught by the objection the learned trial judge was duly bound to hold that the cause of action arose in 1974. Reference was made to pages 13 lines 18-35 of the record of proceedings. It was submitted for the appellants that the learned trial Judge instead of holding that the cause of action arose in 1974 tried to distinguish the case of Adeyeye v. Ajiboye (1987) 3 NWLR (Pt.61) 432. It must be mentioned that the case is Adeyeye v. Ajiboye and not Adeyeye v. Ajibola as contained in the appellants’ brief. It is the contention of the appellants that in the case in hand, the cause of action arose in 1974 when the 1st appellant was purportedly dethroned as Chief Ayah and the appellants refused to accept 1st respondent as the new Chief Ayah. It was submitted that in both cases, the cause of action arose before the 1979 Constitution. It was further submitted that the learned trial Judge without reason whatsoever, held that what sparked up the proceedings in the instant case were the cummulated events of 1980, 1986 and 1988. It was contended that this view of the learned trial Judge was wrong. It was submitted that the learned trial Judge had no reason to isolate the 1974 events since the averments in the statement of claim include paragraphs 20, 20(VI) and (VII). It was argued that the learned trial Judge had no duty to pick the incidence of post 1979 as the cause of action.

It is the contention of the appellant that once the Writ of Summons and the Statement of Claim show that the cause of action arose in 1974 before the coming into force of the 1979 Constitution of the Federal Republic of Nigeria, the learned trial Judge ought to decline jurisdiction. The respondents’ issues that are one and the same thing with the appellants, issues are issues Nos. 1 and 2. As I have said earlier issue No. 3 in the respondents’ Brief is meaningless and should be struck out and it is hereby struck out. Issue No. 4 is repetitive as it has been taken care of by respondents’ issues Nos. 1 and 2 reproduced above.
The respondents in their brief argued issues Nos. 1 and 2 together. It was submitted for the respondents that the respondents’ claim cannot be defined as a chieftaincy dispute. It was submitted that a chieftaincy question is one involving the selection, recognition, deposition of a chief. It was contended that none of the reliefs sought in paragraph 22 of the Statement of Claim involves the determination of the deposition or recognition of any chief but the act of wrongfully performing the functions of the Chief and head of Ayah house after the deposition of the 1st appellant in 1974. It was on these later acts which occurred at various dates between 1980 and 1988 that the cause of action is based. Reference was made to paragraphs 20 and 21 of the statement of claim. It was argued that the post 1980 factual situations, therefore, were well within the competence of the lower court at the time the suit was instituted and the pre-1979 were not. It is the contention of the respondents that the lower court was right in holding that it had jurisdiction.
I consider the whole of paragraph 20 of the Statement of Claim at pages 12 and 13 of the record to be very germane to this appeal. It reads:

“20. Since the first plaintiff became installed as Chief Ayah, the first and 2nd defendants with full support of all the other defendants had been committing acts which tend to subject the 1st plaintiff to ridicule, embarrassments, contempt or expose him to hatred:-
(i) In 1980 during the burial ceremony of one Madam Ogori, the mother of the 1st and 2nd defendants, the first plaintiff was denied playing his traditional role as the chairman of the burial ceremony, in his capacity as chief and head of Ayah House as demanded by Nembe custom. The first defendant occupied the seat meant for the 1st plaintiff in the presence of the whole Okpoma/Ewoama Community.

(ii) Also in September 1986, during the burial ceremony of one Madam Beregha Pogo of Ogboro family, the first defendant occupied the-seat meant for the 1st plaintiff thereby depriving the 1st plaintiff from assuming his traditional role.

(iii) In the same burial ceremony of late Madam Beregha Pogo, the 6th defendant who was announcing the individual contributions at the Town Square (John Polo) referred to the first defendant as Chief S.W. Iyabi-Ayah and Chief of the Ayah House.
This caused confusion in the minds of the public including the 1st, 2nd and 3rd plaintiffs who were also present. The first plaintiff was therefore upon compelled to take the microphone and made a statement that he was still the incumbent. Plaintiffs will lead further evidence at the trial.

(iv) In another gathering at Oten Polo in Ewoama during the early part of 1988 the 4th defendant with the full support of the 3rd defendant made a statement while addressing the 3rd plaintiff that “while speaking in the public, you should know that there are two Chiefs Ayah not only one”. The plaintiffs will lead further evidence on this at the trial.

(v) On the 17th and 18th June 1988, during the burial ceremonies of late Madam Obuta Iyabi, the late sister of the 1st and 2nd defendants again usurped the powers and functions of the first plaintiff who is the legitimate chief of the Ayah house.

(vi) The 1st defendant since his deposition in 1974, had been parading himself and assuming the name of Chief Ayah in public gatherings and also in documents. Plaintiffs will lead evidence to show how the 1st defendant had been assuming the name Chief Ayah and will rely on documents where he had referred to himself as Chief Ayah, particularly when the 1st defendant was working at G.S.S. Twon Brass with the name “Chief S.W. Iyabi-Ayah”. Plaintiffs will also rely on other relevant documents.

(vii) The second defendant had for several years been causing rifts, dissent, hatred, rancour and disunity amongst Ewoama Community generally. The second defendant had master-minded the illegal creation of another Chief Ayah knowing fully well that the 1st defendant had been deposed.”

From the averments in paragraph 20 of the Statement of Claim one is not left in doubt that the case in hand is a chieftaincy matter. Paragraphs 20, 20(vi) and 20(vii) make it abundantly clear that the bone of contention between the parties started in 1974 when the 1st appellant was deposed. It is trite law that parties are bound by their pleadings. See George & Ors. v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71 at 77; National Investment and Properties Co. Ltd. v. Thompson Organization Ltd. & Ors. (1969) NMLR 99 at page 104; Idahosav. Oronsaye (1959) 4 F.S.C. 166 at 177.

In the light of the averments contained in paragraphs 20, 20(vi) and 20(vii) the chieftaincy dispute between the parties started in 1974 when the 1963 Constitution of the Federal Republic of Nigeria was in operation. By section 165(1) of the 1963 Constitution, “a chieftaincy question” is defined as any question as to the validity of the selection, appointment, recognition, installation, grading, deposition or abdication of “a chief’. Again, the 1963 Constitution of the Federal Republic of Nigeria prohibited expressly in section 161(3) the High Court from assuming jurisdiction in chieftaincy questions. It is manifest from the pleadings that the 1st appellant was deposed or dethroned as the Chief and Head of Ayah House of Ewoama and Okpoma in 1974. From the pleadings also the 1st appellant and his supporters did not accept his deposition and the parties since 1974 had been living cat and dog life. The Supreme Court has held in a plethora of cases that the law applicable to a matter is that in force at the time the cause of action arose and not the law when the writ of summons was taken out. Omisade v. Akande (1987) 2 NWLR (Pt.55) 158; Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt.58) 539; Attorney General Lagos State v. Dosumu (1989) 3 NWLR (Pt.111) 552; Osadebay v. Attorney-General Bendel State (1991) 1 NWLR (Pt.169) 525; Ojokolobo v. Alamu (1987) 3 NWLR (Pt.61) 377; Kpema v. State (1986) 1 NWLR (Pt. 17) 396; Obadiora v. Uyigwe (1986) 3 S.C. 39; Adeyeye v. Ajiboye (1987) 3 NWLR (Pt. 61) 432.

In paragraph 2 of page 32 of the record, the learned trial Judge held in part of his judgment as follows:-
“The learned counsel for the applicants may ask, but what about paragraph 20(vi) and (vii). That may well be caught by his objection having regard to the decision of the Supreme Court in Adeyeye v. Ajiboye referred to by him.”

Since the learned trial Judge has made the above quoted finding vis-a-vis the pleading of the respondents. I am at a loss as to what he was trying to distinguish between the instant case and that of Adeyeye v. Ajiboye. As I  have said above, parties are bound by their pleadings and a fact admitted does not need any further proof. See section 75 of the Evidence Act Cap. 112 of the Laws of the Federation 1990. After the above finding of the learned trial Judge, he thereafter embarked on a wild goose chase and then somersaulted. The learned trial Judge also went to England on a voyage of discovery in search of authority in this matter. To my mind, that was an exercise in futility. It must be mentioned that the jurisdiction of the High Courts in Nigeria is not derived from the jurisdiction of the High Courts in England. Thus from the facts of the case in hand there is no need to have recourse to powers of English courts. See Adigun v. Attorney-General Oyo State (1987) 2 NWLR (Pt.56) 197 at 230. It should be noted that since section 161(3) of the 1963 Constitution of Nigeria expressly prohibits the High Court from assuming jurisdiction and paragraphs 20(vi) and (vii) are caught in the objection as per the finding of the learned trial Judge, the law the trial Judge should have applied to the issue is the 1963 Constitution of Nigeria. Thus once the writ of summons and the statement of claim show that the cause of action arose in 1974 before the coming into force of the 1979 Constitution of the Federal Republic of Nigeria, the learned trial Judge ought to have declined jurisdiction. I should like to point out for the avoidance of doubt that a cause of action means a factual situation the existence of which entitles a person to obtain from the court a remedy against another person. Thus a cause of action is the factual base or some factual situation a combination of which makes the matter in litigation an enforceable right or an actionable wrong. See Briggs v. Bob-Manuel (1995) 7 NWLR (Pt.409) 559; Tukur v. Government of Gongola State (No.2) (1989)4 NWLR (Pt.117) 517 at 581; Ibrahim v. Osim (1988) 3 NWLR (Pt.82) 257; Thomas v. Olufosoye (1986) NWLR (Pt.18) 669.

When the issue of jurisdiction is determined on the pleadings the law is that it is determined on the plaintiffs pleadings in his statement of claim and not on the defendant’s answer in the statement of defence. See Izenikwe v. Nnadozie (1952) 14 WACA 361; Adeyemi v. Opeyori (1976) 9-10 S.C. 31. In the case in hand, I have no doubt in my mind that the writ of summons, the pleadings of the respondents referred to above taken as a whole all go to show that the cause of action in this matter arose in 1974, and being a chieftaincy matter, it is governed by the 1963 Constitution of the Federal Republic of Nigeria. That being so, I hold that the court below lacked the jurisdiction to entertain the matter. In the result, this appeal succeeds and it is allowed. I set aside the ruling of Olukole J., dated 5/6/89. The appellants are entitled to their costs which I assess at N2,000.00 against the respondents.

KATSINA-ALU, J.C.A.: I have read before now the judgment of my learned brother Rowland, J.C.A. which has just been delivered. I am in complete agreement with his reasoning that this case borders on chieftaincy matter. That is obvious from the pleadings and the evidence adduced before the trial court. There is no doubt from the evidence before the court that the cause of action arose in 1974 and therefore it is caught by the 1963 Constitution. It is therefore my view that in the light of that Constitution the learned trial Judge lacked jurisdiction to hear the matter.

I also allow the appeal and set aside the ruling of the lower court. I also abide by the costs awarded.

ONALAJA, J.C.A.: I was privileged to have read in advance the draft of the leading judgment just delivered by my learned brother, Olufemi Rowland, J.C.A. The appeal raised the perennial question as to when does a cause of action arise, especially where there are provisions in the constitution, decree, act, edict and law that have fixed the period of limitation to commence the action.

The issue in this appeal succinctly put is whether the action or cause is a chieftaincy matter or question as by the provision of section 161(1) (3) (1963) Constitution of the Federation of Nigeria the High Court is precluded by ouster clause from adjudicating on chieftaincy question which is defined in section 165(1) of the 1963 Constitution aforesaid as chieftaincy question means:-

“Any question as to the validity of the selection, appointment, recognition, installation, grading deposition or abdication of “a chief”
See Adeyemi v. Attorney-General of the Federation (1984) 1 SCNLR 525; Enwezor v. Onyejekwe (1964) 1 All NLR 14 S.C.; Prince Godfrey Kolawole Mustapha v. Governor of Lagos State & 3 Ors (1987) 5 S.C. 114; (1987) 2 NWLR (Pt.58) page 539 S.C.

Under our adversarial system of jurisprudence a pillar of the system is the rule of natural justice of fair hearing of Audi Alteram Partem (hear the other party) enshrined as a fundamental right in section 33(1) 1979 Constitution of the Federal Republic of Nigeria. To ensure application of this rule our courts under the rule of civil procedure designed the filing, delivery and exchange of pleadings. It is this important role played in our civil jurisprudence that gave rise to the pre-eminence of pleading leading to the rule that parties are bound by their pleadings as unpleaded facts go to no issue Abimbola George & Ors v. Dominion Flour Mills Ltd (1963) 1 All NLR 71 S.C.;

Chief Mrs Faderera Akintola & Anor v. Mrs Dedeke-Solano (1986) 2 NWLR (Pt.24) 598. In accordance with the above rule this makes me to look critically, in depth and substance at the pleadings filed to discover the real issue or claims in controversy between the parties. After a calm cool view of the pleadings in unison with the leading judgment, I came to the irresistible conclusion that the LIS in the matter on appeal is a chieftaincy question within the meaning and intendment of section 165 of the 1963 Constitution of the Federal Republic of Nigeria.

Having held that the LIS is a chieftaincy question the next vital and crux of this appeal as pointed out in the leading judgment is when did the cause of action accrue, is it 1974, or when the writ was issued in Degema High Court of Rivers State as Suit DHC/25/88 in 1988? When does a cause of action accrue? see John Eboigbe (For himself and on behalf of 6(six) other members of his family) v. The Nigerian National Petroleum Corporation (1994) 5 NWLR (Pt.347) 649.

“(1) Generally a cause of action accrues on the date on which the incident giving rise to the cause of action occurred. Proceedings must thus be begun normally by the issue of writ of summons within the period prescribed by the relevant statutes,”

See further Solomon v. African Steamship Co 9 NLR 99; Egbe v. Adefarasin No. 1 (1985) 1 NWLR (Pt.3) 549; Obiefuna v. Okoye (1961) 2 All NLR 357; Ekeogu v. Aliri (1991) 3 NWLR (Pt.179) page 258 S.C.; Jallco Ltd v. Owoniboys Technical Services Ltd (1995) 4 NWLR (Pt.391) 534 S.C.; Shell Petroleum Development Co. v. Farah (1995) 3 NWLR (Pt. 382) 148 C.A. Applying the above cases, I am in complete agreement with the leading judgment that the cause of action , a chieftaincy matter, arose in 1974. As the court frowns on retrospective and retroactive legislation, the applicable law would be the existing law or the operative law when the cause of action arose. In the instant, appeal the constitution, decree or edict of 1974. In 1974 the jurisdiction of the High Court was as provided in the 1963 Constitution of Nigeria it is therefore the operative law when the cause of action arose. See F.S. Uwaifo v. Attorney-General Bendel State & 4 Ors (1982) 7 S.C. 124; Mustapha v. Governor of Lagos State & Ors supra; Attorney General of Federation v. C.O. Sode & Two Ors (Executors of the Will of Chief S.O.O Sode) (1990) 1 NWLR (Pt.128) 500 S.C.

As the issue was a chieftaincy question within the meaning of section 165(1) of 1963 Constitution supra the applicable law would be 1963 Constitution of Nigeria which by its section 161(3) ousts the jurisdiction of the High Court in chieftaincy matters in clear and unequivocal terms, therefore the leading judgment came to a right decision and has my blessing that the lower court lacked jurisdiction, thereby allowing the appeal which is hereby allowed.

For the fuller reasons given in the leading judgment, I also allow the appeal and abide with the consequential order of costs.

II. JUDGEMENT

Appeal allowed.

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