In The Supreme Court of Nigeria

On Friday, the 4^th day of May 2007

S.C. 8/2006

Before Their Lordships

Between

Between

And

Judgment of the Court

Delivered by

Dahiru Musdapher, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Ilorin Division delivered on the 29^th of November, 2004 whereby the appeal to that court filed by the plaintiffs, the respondents herein, was allowed. The Court of Appeal set aside the ruling of the trial court striking out the case of the plaintiffs by upholding the preliminary objection raised by the defendants, the appellants herein, challenging the competence of the plaintiffs’ action on the ground that it was statute barred.

1 think it is desirable at this stage in order to appreciate the issues canvassed in this appeal by the parties to look at the facts that gave rise to the dispute between the parties leading to the present litigation. On the 17/1/1958, the Chieftaincy Committee of Ekiti Southern District Council, which was the designated authority, at that time, made a Declaration of Customary Law regulating the nomination and the selection of the Arajaka of Igbara Odo Chieftaincy. This Declaration was approved by Minister of Local Government, Western Region of Nigeria, on the 22^nd day of May 1958 and was registered on the 28^th day of May 1958. One of the main features of the Declaration was contained in paragraph (i), which declared that "There is only one Ruling House and the identity of the Ruling House is Odundun Ruling House". The plaintiffs, the respondents herein are members of that Ruling House.

Following widespread displeasure with the existing chieftaincy declarations in Ondo State, the then Military Government appointed a four-man Commission of Inquiry under the Chairmanship of Mr. Justice Adeyinka Morgan, hereinafter simply referred to as the Morgan Commission or the Commission, to conduct an inquiry into all the recognized chieftaincies in Ondo State including the Arajaka of Igbara-Odo chieftaincy and also to suggest guidelines for effecting the necessary changes in the chieftaincy declarations of the recognized chieftaincies in Ondo State. The Morgan Commission submitted its report on the 5^th of June 1980. Specifically concerning the Arajaka of Igbara-Odo, the Commission recommended three Ruling Houses instead of one. The Ruling Houses recommended arc Odundun, Agungun and Odigede. In July 1981, the Government published White Paper accepting the recommendations. It also set up the necessary machinery for the eventual registration of the new Chieftaincy Declaration.

At the Chieftaincy Committee Meeting of Ekiti South West Local Government held on 20/1/1983 in which Oba Aladeyelu II the incumbent Arajaka, was present as well as representatives from the three Ruling Houses, the White Paper on Morgan Commission was approved and the Chieftaincy Declaration of Arajaka of Igbara-Odo was signed by both the Chairman and Secretary of the Chieftaincy Committee. The forms were sent to Slate Government for the approval and registration of the Declaration, but some how the forms got missing and the new Declaration was not registered.

It was after the death of Oba Aladeyalu II in 1995 that it was discovered that the forms sent to State Government were not returned to the Local Government for registration and when the attention of the government was drawn to this fact another process of ratification of the Declaration began on the 19/9/1995. This was to enable the nomination and the selection of a new Arajaka to fill the vacant stool. The process culminated into the registration of the Declaration on the 3/11/1995. - By the promulgation of Edict No. 1 of 1999 entitled "Ajaraka of Igbara-Odo, Ekiti [Chieftaincy Declaration] the chieftaincy Declaration of 1958 became repealed. Thus by the new Declaration and the law, there are now 3 Ruling Houses in Igbara-Odo Ekiti Chieftaincy.

On the meanwhile, when on the 19/9/1995 at the meeting held aforesaid, the plaintiffs' family denied all knowledge of the Commission, its recommendations and the acceptance of the recommendation as contained in the White Paper, and walked out of the meeting. On the 2/11/1995, the plaintiffs filed this action claiming against the first set of the appellants that is the first 4 defendants/appellants as follows: -

"1.        A Declaration that the recommendation of the Ondo State chieftaincy Review Commission presided over by Honourable Justice Adeyinka Morgan in respect of the Arajaka of Igbara-Odo Ekiti chieftaincy is contrary to the custom and tradition governing the selection of the Arajaka of Igbara-Odo, Ekiti.

2.         A Declaration that the Ondo State Government White Paper accepting the recommendation of the Ondo State chieftaincy Review Commission presided over by Honourable Justice Adeyinka Morgan in respect of the Arajaka of Igbara-Odo chieftaincy is contrary to the custom and tradition governing the selection of the Arajaka of Igbara-Odo, Ekiti.

3.         A Declaration that the Ondo State Government White Paper accepting the recommendations of the Ondo State Chieftaincy Review Commission presided by Honourable Justice Adeyinka Morgan in respect of the Arajaka of Igbara-Odo Ekiti chieftaincy is repugnant to natural justice, equity and good conscience.

4.         A Declaration that the 1958 chieftaincy Declaration registered in respect of the Arajaka of Igbara-Odo Ekiti Chieftaincy is in consonance with the custom and tradition governing the selection of the Arajaka of Igbara-Odo Ekiti.

5.         A mandatory injunction compelling the defendants to call upon the Odundun Ruling House to present a candidate to fill the vacancy in the Arajaka of Igbara-Odo Ekiti Chieftaincy.

6.         An Order restraining the defendants, their agents - servants, privies or anybody whatsoever from considering, approving, registering or taking any steps whatsoever to give effect to the draft Declaration contained in the Ondo State Government White Paper accepting the recommendations of the Morgan Chieftaincy Review Commission in respect of the Arajaka of Igbara-Odo, Ekiti chieftaincy.

7.         An Order restraining the defendants, their agents, servants, privies or anybody whatsoever from registering any declaration relating to the Arajaka of Igbara-Odo Ekiti chieftaincy."

By leave of court, the claims were amended by, amongst other matters, the addition of three other reliefs: -

"8.        An Order declaring invalid, null and void the Chieftaincy Declaration dated 3/11/1995 relating to Arajaka of Igbara-Odo Ekiti chieftaincy for contradicting the Native Law and custom of Igbara-Odo Ekiti Chieftaincy and or for being repugnant to natural justice, equity and good conscience.

9.         An Order declaring invalid null and void the Chieftaincy Declaration dated 3/11/1995 relating to the Arajaka of Igbara-Odo Ekiti Chieftaincy for contravening the chiefs Edict of Ondo State.

10.       An Order restraining the defendants, their servants, agents, privies or anybody whatsoever from registering any Declaration relating to the Arajaka of Igbara-Odo Ekiti chieftaincy."

I think it is important to stress the point that the government felt the dissatisfaction of the people with the then existing declaration, that the government instituted the Morgan Commission of Inquiry to have another look at the various customary Law declarations in relation to chieftaincy matters in 1977. In its White Paper and accepting the recommendation and with reference to Arajaka of Igbara-Odo chieftaincy, the Government stated: -

"Government accepts the Commission's Recommendation as contained at pages 20-21 of volume 1 of its Report.   The approved Chieftaincy Declaration for the Arajaka Chieftaincy shall be as set out below: -

Arajaka of Igbara-Odo Chieftaincy Declaration

A.         Number of Ruling Houses - three.

B.         Names of Ruling Houses

1.         Odundun

2.         Agungun

3.         Odigede

……………………………………….. "

It should also be remembered that Oba Adewunmi Aladeyelu 11 when appointed as Arajaka, it was only the Odundun house that was recognized as the Ruling House. When he died on the 3/6/1995, the Government had already accepted the recommendations of the Morgan Commission in July 1981 when the White Paper was published and the attempt to register the new Declaration was somehow not done, it was only after the death of the Oba in 1995, that another attempt was made to register the new Declaration. As mentioned above, that was-why the plaintiffs instituted this   action   challenging the   recommendation   to   amend the Chieftaincy Declaration.

In the meanwhile the new Declaration was registered on 3/11/1995. Specifically by Edict No 1 of 1999, entitled "Arajaka of Igbara-Odo Ekiti (Chieftaincy Declaration), the Ekiti State Government repealed the 1958 Chieftaincy Declaration and the Morgan recommendations had acquired the status of a statute. The numbers of Ruling Houses were increased to 3.

Also in the meanwhile the 5^th - 7^th defendants, the 5^th – 7^th appellants herein were joined in the suit on 1/6/1998 as co-defendants. After series of adjournments, the trial commenced before Daramola J on the 28/2/2001.

By separate applications the two sets of defendants filed applications protesting that the claims of the plaintiffs were statute barred. The reasons given by the 5^th – 7^th defendants to prematurely terminate the proceedings were two (1) that the suit attacked the recommendations of the Morgan Commission which had been accepted by the Government some 14 years prior to the institution of the action, and (2) the suit attacked the acts done by Public Officers more than 3 months prior to the institution of the action. The learned trial judge heard arguments on the applications by the two sets of the defendants. While he rejected the application of the Public Officers protection Law to the facts, he upheld the objection on the competency of the action in that the cause of action arose in 1981 when the Government accepted the Morgan Commission recommendations while the plaintiffs instituted the action in 1995, which was more than the 6 years period after the accrual of the cause of action and therefore the suit was caught by the statute of limitations and the action was accordingly struck out.

The plaintiffs felt unhappy with the Ruling and appealed to the Court of Appeal. The Notice of appeal contained 7 grounds of appeal. After consideration of the issues placed before it, the Court of Appeal held in its judgment thus: -

"The long and short of it all is that this appeal succeeds in its entirety. It is accordingly allowed. The ruling of the learned trial judge striking out the Appellants' action is set aside. The case is remitted to the Ekiti State High Court for hearing de novo by another judge."

The learned justice who read the lead judgment proceeded to give another "final order." He made a further order setting aside, the appointment and installation of the 6^th defendant as the Arajaka and also set aside the Registration of the new Declaration made on 3/11/1995.

Both sets of the defendants felt aggrieved with the decision and have separately now appealed to this court.   Now in this judgment the first set of the defendants are referred to as the 1^st- 4^th    appellants while the 2^nd set of the defendants are referred to as the 5^th to 7^th appellants and the plaintiffs are referred to as the respondents. Now in his brief for the 1^st to 4^th appellants the learned counsel for the appellants has formulated, identified, and submitted the following issues for the determination of the appeal.

"1.        Whether or not the lower court was not in error when it held that the plaintiffs action was not caught by the statute of limitations.

2.         Whether or not the lower court was not in grave error to have held that the plaintiffs' cause of action accrued 19/9/1995.

3.         Whether or not the lower court was not in grave error to have set aside on its own volition and without jurisdiction the appointment and installation of the 6^th defendant, appellant, and for setting aside also Edict No. 1 of 4^th of February 1999.

4.         Whether or not the lower court was not in error to have overruled the trial court considering the weight of the evidence."

The learned counsel for the 5^th to the 7^th appellants has submitted almost identical issues formulated by the 1^st – 4^th appellants. The learned counsel for the respondents has also formulated similar issues for the determination of the appeal. I shall in this judgment deal with the issues .as formulated by the 1^st to 4^th appellants.

Issues 1 and 2 and 4

I will deal with issues 1, 2 and 4 together since they are interrelated and it is convenient to deal with them together as the resolution of any of them as formulated would result in the same conclusion. The applicable Limitation Law of Ondo State provides as per section 4(1) (a) thus: -

"The following action shall not be brought after the expiration of six years the cause of action accrued, that is to say-

(a)        actions founded on simple contract or on tort. ………………… ."

As pointed out above, the appellants took a preliminary objection on the competency of the respondent's suit that it being in a nature of a tort was caught by the provisions of the Limitation Law recited above. The trial judge upheld the objection. The Court of Appeal per the lead judgment of Ikongbeh J.C.A. of blessed memory held that the claims of the respondent are not in the nature of a tort and therefore, the provisions of the Limitation Law are in applicable. The learned justice further stated, even if the provisions of the Limitation apply. He held thus: -

"After carefully considering the contentions on behalf of the parties, I have come to conclusion that the learned trial judge erred in holding that the plaintiffs' cause of action arose in 1981. All that happened in 1981 was that Government took a decision in that year, based on the recommendations of the Justice Morgan chieftaincy Review Commission, to amend existing Chieftaincy Declaration by increasing the number of the Ruling Houses in Igbara-Odo from one to three. In view of the express provisions of section 4 of Chiefs Edict 1984 applicable to Ekiti State, the mere taking of such decision by Government does not oblige any body to take the matter to court at the time it is taken. A decision by Government in this regard is totally in effectual unless and until the provisions of the section are carried out.   The section provides: -

"4.       (l)         Every declaration of the committee approved by the Executive Council and every declaration made by the Executive Council shall be registered and kept in safe custody by such officer as the Military Governor may direct.

(2)        No declaration shall come in to effect until it is so registered."

The learned justice proceeded to hold that is was only after the resetting up of the machinery for the registration of the Declaration in 1995, when the cause of action may be said to accrue and not in 1981 when the government accepted the Morgan Commission of Inquiry. Therefore the decision of the learned trial judge was erroneous.

Now, the crucial question under these issues is to find first the cause of action of the respondents and secondly when that cause of action accrued. The learned trial judge in his judgment said:-

"The pith and substance of the plaintiffs' action, in my view is a direct challenge to the findings and recommendations of the Morgan chieftaincy Review. It was the approval of the recommendations by the Government which accorded recognition to two additional ruling houses for the Arajaka chieftaincy of Igbara-Odo Ekiti in July, 1981, the recognition so accorded is the crux of this action."

While that may be true of the first 3 prayers of the respondents as contained in their amended Statement of Claim, but clearly in my view, the crux of the claims of the respondents is the challenge to the attempt in 1995 to give effect to the recommendations and the acceptance of the recommendations by the Government. These clearly are the fundamental claims of the respondents as contained in prayers 6 and 7 of the Original claim and more importantly in the Amended Claim as per prayers 8, 9 and 10. This is more particularly apparent having regard to the provisions of section 4(2) of the Chiefs' Edict of 1984. From the language of subsection (2) a chieftaincy Declaration cannot affect the rights of persons subject to it unless and until it has been registered. As far as the respondents as the plaintiffs were concerned, the first and real time when the recommendations and their acceptance by the Government would adversely affect them was in 1995, when the Government attempted to register the new declaration, all along from 1981, when the recommendations were accepted, the Government merely formed the intention of amending the particular Declaration of 1958. It set up the necessary machinery, but unfortunately for no apparent reason, the registration was not effected and nothing was done. It was only when a new Arajaka was to be appointed, it was discovered that the accepted recommendations were not registered and fresh arrangement were initiated in 1995 to effect the registration and that in my view is the main complaints of the plaintiffs/respondents, The main case of the respondents was clearly not based on the challenge to the recommendations of the Review Commission or the acceptance of the recommendations by the Government in its White Paper in 1981, which as shown would not adversely affect the rights of the respondents but their crucial claims were based on the attempt to register the new Declaration in 1995. So without much ado, the issue of the application of the limitation law, even if it affected prayers 1, 2 and 3, the other crucial and fundamental prayers all arose in 1995 and therefore not subject to the limitation law when the action was filed.

That, in my view is sufficient to sustain the fundamental and crucial claims of the respondents. It is of no moment even if reliefs Nos. 1, 2 and 3 as recited above were caught by the limitation law. I am accordingly of the view that all the arguments of counsel are hardly relevant to the main claims of the respondents which clearly accrue only when the Government commenced to register the amended Declaration in 1995. Accordingly I do not see the need to discuss all the arguments of counsel on issues 1, 2 and 4 suffice it for me only to resolve them against the appellants. I affirm that the crucial claims and prayers of the respondents were not caught by the limitation law as adjudged by the court below.

Issue No. 3

Now, in its consideration of this interlocutory appeal, to wit: Whether the trial court was right or wrong in striking out the claims of the respondents for being statute barred, the Court of Appeal after holding that the trial court acted erroneously in holding that the limitation law applied to bar the claims of the respondents, the court below after sending the case back to the trial court for determination on the merits yet proceeded to set aside the appointment and installation of the 6^th defendant 6^th appellant herein as the Arajaka of Igbara-Odo, and also to set aside the Chieftaincy Declaration registered in 1995. It should be mentioned that the registered Declaration has been embodied as a statute in Edict No. 1 of 1999. It is a curious situation, the Court of Appeal ordered the remitting of the case to the trial court for trial on the merits, it is apparent that the matter went to the Court of Appeal only as interlocutory matter, whether the claims of the plaintiffs were statute barred or not, and the court held the claims were not statute barred and sent the case back to the trial court for trial on the merits. I agree with the appellants' counsel, that the Court of Appeal has no business whatsoever of deciding the issues raised in the main trial, in claims 6, 7, 8, 9 and 10, by setting aside the appointment of 6^th appellant and also by setting aside the Declaration registered in 1995. These issues should wait the decision of the trial court when it considers all the claims on the basis of the evidence to be called by the parties. As mentioned above, the issue before the Court of Appeal was an interlocutory appeal and the matter was not heard or decided on the merits. There was no order of the trial court concerning theappointment of the 6 appellant nor was there any decision in respect of the new Declaration for the Court of Appeal to assume jurisdiction to intervene. There was also neither prayer nor application placed before the trial court for the setting aside of either the appointment of the 6^th appellant or the setting aside of the new Declaration which has since been embodied in a law Edict No. 1 of 1999. In any event there were no prayers before the trial High Court grounding the orders made by the Court of Appeal. The jurisdiction of the Court of Appeal is appellate and in the circumstances of this case, the Court of Appeal has no original jurisdiction to make the orders it made. As a matter of fact, the orders cannot be legitimate on the face of Edict No. 1 of 1999 titled "Arajaka of Igbara-Odo Ekiti (Chieftaincy Declaration) Order 1998" which clearly the legality of which was not the subject of the case and upon which the 6^th appellant was appointed. For the various reasons stated above, I agree with all the learned counsel appearing in this matter, that the Court of Appeal was in error to have made the orders of setting aside (1) the appointment and the installation of the 6^th appellant as the Arajaka of Igbara-Odo Ekiti, and (2) the new Declaration as embodied under the Edict of 1999. I accordingly resolve issue 3 in favour of the appellants I set aside the orders made by the Court below.

In the result this appeal partially succeeds, I affirm the order of the Court below remitting the case back to the trial court for the determination of the various issues on the merit. I, however set aside the so called "final orders" of the court below. I make no order as to costs.

Case remitted to the trial court for trial de novo before another judge.

Judgment delivered by

SylvesterUmaru Onu, J.S.C.

Having been privileged to read the judgment of my learned brother Dahiru Musdapher, J.S.C just delivered, I entirely agree with him that the appeal partially succeeds. Accordingly, I affirm the order of the court below remitting the case back to the trial court for the determination of the various issues on the merit. For the avoidance of doubt, I set aside the so-called "final orders" of the court below and make no order as to costs while remitting the case to the trial court for trial de novo.

Judgment delivered by

Sunday Akinola Akintan, J.S.C.

I had the privilege of reading the draft of the leading judgment written by my learned brother, Musdapher, J.S.C. The facts of the case are well set out in the judgment. All the issues raised in the appeal are fully discussed therein. I will therefore not repeat them here.

The main issue raised in the appeal is whether the court below was right in holding that the appellants' claim was not caught by the provisions of section 4 of the Limitation Law of Ondo State, which provides that:

“The following actions shall not be brought after the expiration of six years the cause of action accrued, that is to say-

(a)        actions founded on simple contract or tort…”

It is clear from the facts of the case that although the State Government had accepted the recommendations made the Justice Morgan Commission in his report in 1981, it was still necessary for each chieftaincy recommendation to be adopted and registered before such could come into effect. It was the attempt to accept the recommendation in respect of the Arajaka Chieftaincy of Igbara-Ode in 1995 that was in issue.

I agree that the cause of action in the instant case arose in 1995 when efforts were made to register the new declaration in respect of the Arajaka Chieftaincy Declaration and not in 1981 when the Morgan Report was accepted by the defunct Western State Government. I therefore hold that the ' action filed by the plaintiffs/appellants was not statute barred.

The main issue raised in the cross-appeal is whether the court below was right after holding that the action was not statute barred and therefore ordered that the case be sent back for hearing on the merit before another Judge, the court below again went further to make orders which were not part of the issues raised in the appeal before it. There is no doubt that the court below was wrong in taking up issues yet to be decided in the substantive claim and which never arose in the appeal. There is therefore merit in the cross-appeal.

In conclusion, I hold that the plaintiffs' claim is not statute barred and I affirm the order made by the court below that the case be remitted to the High Court for trial de novo by another Judge.

I also allow the cross-appeal in that the court below was wrong in pronouncing on the substantive issues yet to be determined in the case and which were not part of the issues on appeal before the court. I also make no order on costs.

Judgment Delivered By

Mahmud Mohammed, J.S.C.

I had the privilege before today of reading the leading judgment of my learned brother Musdapher, J.S.C which has just been delivered.

I completely agree with him that this appeal succeeds in part.

The parties in this appeal were at the High Court of Justice of Ekiti State sitting at Ikere - Ekiti to resolve a Chieftaincy dispute between them as to which of the two Chieftaincy Declarations is applicable in filling the existing vacancy in the stool in dispute. The two Chieftaincy Declarations are the 1958 Chieftaincy Declaration registered on 28 May, 1958 which declared that the Odundun Ruling House as the only Ruling House in Igbara-Odo Ekiti and the 1995 Chieftaincy Declaration registered on 3^rd November, 1995 which declared that the Ruling Houses of Odundun, Ogungun and Odigede as the Ruling Houses in Igbara-Odo Ekiti. The trial Court after hearing all the witnesses called by the Plaintiffs, heard a motion filed by the Defendants asking the Court to dismiss the Plaintiffs' action on the ground that it was statute barred. The learned trial judge upheld the Defendants' contention in his ruling and struck-out the Plaintiffs' action. The Plaintiffs therefore appealed to the Court of Appeal against the order of the trial Court striking out their action although in the course of hearing of the action, they had already closed their case.

The Court of Appeal after hearing the Plaintiffs appeal, came to the conclusion that the appeal had merit and allowed it in its judgment part of which states –

"The long and short of it all is that this appeal succeeds in its entirety.  It is accordingly allowed.  The ruling of the learned trial judge striking out the Appellants' action is set aside.  The case is remitted to the Ekiti State High Court for hearing de novo by another judge."

Obviously from the conclusion reached in its judgment, the Court below having allowed the Plaintiffs' appeal, set aside the order of the trial Court striking out the Plaintiffs' action and having ordered the case to be heard de novo by another judge of the trial Court, the proceedings in the Court below clearly came to an end leaving nothing to proceed for further determination. The unfortunate action of the Court below in proceeding to revisit the Plaintiffs' action, which it had already sent back to the trial Court for hearing, is indeed an error as it was clearly done in the absence of jurisdiction.

In the result, I entirely agree with my learned brother Musdapher, J.S.C. in his leading judgment after resolving all the issues arising for determination in this appeal that the appeal deserves to succeed in part. As the order made to set aside the appointment and installation of the 6^th Appellant and the setting aside of the registration of the Chieftaincy Declaration made on 3^rd November 1995, was made without jurisdiction, the same is set aside.     The appeal therefore succeeds on issue 3.

Finally, the appeal having succeeded in part is hereby allowed. However, the appeal against the order of the Court of Appeal setting aside the order of the trial High Court striking out the Respondents' action on the grounds that it was statute barred having failed, is hereby dismissed. The order of the Court of Appeal sending the Plaintiffs' action back to the trial Court to be heard de novo by another judge is hereby affirmed with no order on costs.

Judgment Delivered By

Walter Samuel Nkanu Onnoghen, J.S.C.

This is an appeal against the judgment of the court of Appeal in appeal NO. CA/iL/n/2003 delivered by the Ilorin Division of the court on the 29^th day of November, 2004 in which it set aside the ruling of the Ekiti state High Court delivered on the 29^th day of November, 2002 in suit No. HCR/49/95.

On the 2^nd day of November, 1995 the 1^st to 4^th plaintiffs/respondents caused a writ of summons to be issued against the original defendants/appellants in which they claimed the following reliefs: -

"1.        A Declaration that the recommendation of the Ondo State Chieftaincy Review Commission presided over by Honourable Justice Adeyinka Morgan in respect of the Arajaka of Igbara-Odo Ekiti Chieftaincy is contrary to the custom and tradition governing the selection of the Araka of Igbara-Odo, Ekiti.

2.         A Declaration that the Ondo State Government White Paper accepting the recommendation of the Ondo State Chieftaincy Review commission presided over by Honourable Justice Adeyinka Morgan in respect of the Arajaka of Igbara-Odo Chieftaincy is contrary to the custom and tradition governing the selection of the Araka of Igbara-Odo, Ekiti.

3.         A Declaration that the Ondo state Government White Paper accepting the recommendation of the Ondo State Chieftaincy Review commission presided over by Honourable Justice Adeyinka Morgan in respect of the Arajaka of Igbara-Odo Ekiti chieftaincy is repugnant to natural justice, equity and good conscience.

4.         A Declaration that the 1958 Chieftaincy declaration registered in respect of the Arajaka of Igbara-Odo Ekiti Chieftaincy is in consonance with the custom and tradition governing the selection of the Arajaka of Igbara-Odo Ekiti.

5.         A mandatory injunction compelling the defendants to call upon the Odundun Ruling House to present a candidate to fill the vacancy in the Arajaka of Igbara-Odo Ekiti.

6.         An order restraining the defendants, their agents, servants, privies or anybody whatsoever from considering, approving, registering or taking any steps whatsoever to give effect to the draft declaration contained in the Ondo State Government white Paper accepting the recommendation of the Morgan Chieftaincy Review commission in respect of the Arajaka of Igbara-Odo, Ekiti Chieftaincy.

7.         An order restraining the defendants, their agents, servants, privies or anybody whatsoever from registering any declaration relating to the Arajaka of Igbara-Odo Ekiti Chieftaincy."

The above reliefs were amended by virtue of the further amended statement of claim filed on the 10^th day of December 1998 containing 10 reliefs; namely: -

"1.        A Declaration that the recommendation of the Ondo State Chieftaincy Review Commission presided over by Honourable Justice Adeyinka Morgan in respect of the Arajaka of Igbara-Odo Ekiti Chieftaincy is contrary to the custom and tradition governing the selection of the Arajaka of Igbara-Odo, Ekiti.

2.         A Declaration that the Ondo State Government White Paper accepting the Recommendation of the Ondo State Chieftaincy Review Commission presided over by Honourable Justice Adeyinka Morgan in respect of the Arajaka of Igbara-Odo Chieftaincy is contrary to the custom and tradition Governing the selection of the Arajaka of Igbara-Odo, Ekiti.

3.         A Declaration that the Ondo State Government White paper accepting the recommendation of the Ondo state Chieftaincy Review Commission presided over by Honourable Justice Adeyinka Morgan in respect of the Arajaka of Igbara-Odo Chieftaincy is repugnant to natural justice, equity and good conscience.

4.         A Declaration that the 1958 Chieftaincy Declaration registered in respect of the Arajaka of Igbara-Odo Ekiti Chieftaincy is in consonance with the custom and tradition governing the selection of the Arajaka of Igbara-Odo Ekiti.

5.         A mandatory injunction compelling the Defendants to call upon the Odundun Ruling House to present a candidate to fill the vacancy in the Arajaka of Igbara-Odo Ekiti Chieftaincy.

6.         An Order restraining the Defendants, their agents, servants, privies or anybody whatsoever from considering, approving, registering or taking any steps whatsoever to give effect to the Draft Declaration contained in the Ondo state Government White Paper accepting the recommendation of the Morgan Chieftaincy Review Commission in respect of the Arajaka of Igbara-Odo, Ekiti Chieftaincy.

7.         An Order restraining the Defendants, Weir servants, agents, privies, or anybody whatsoever from taking further steps to give effect to the Chieftaincy Declaration dated 3^rd of November 1995 in respect of the Arajaka of Igbara-Odo Ekiti Chieftaincy.

8.         An order declaring invalid, null and void the Chieftaincy Declaration dated 3^rd day of November 1995 relating to the Arajaka of Igbara-Odo Ekiti Chieftaincy for contradicting the Native Law and custom of Igbara-Odo Ekiti Chieftaincy and or for being repugnant to natural justice, equity and good conscience.

9.         An order declaring invalid, null and void the Chieftaincy Declaration dated 3^rd day of November 1995 relating to the Arajaka of Igbara-Odo Ekiti Chieftaincy for contravening the Chiefs Edict of Ondo State.

10.       An order restraining the Defendants, their servants, agents, privies or anybody whatsoever from registering any Declaration relating to the Arajaka of Igbara-Odo Ekiti Chieftaincy."

It should be noted that reliefs 8, 9 and 10 are the new claims added to the original seven reliefs contained in the writ of summons and earlier reproduced in this judgment. Of the three new reliefs, 8 and 9 are directed at the Chieftaincy Declaration dated 3^rd November 1995 in respect of the Arajaka of Igbara-Odo Ekiti Chieftaincy. The above facts will become very relevant in the determination of the issue as to whether the action as instituted was statute barred, later in this judgment.

The matter did proceed to trial with the plaintiffs adducing evidence in support of their claims and even closed their case and the matter adjourned for defence. Meanwhile learned counsel for the 5^th - 7^th appellants filed a motion dated 15^th February, 2002 praying the trial court for an order dismissing the suit for being statute barred which application was duly granted in a ruling delivered on the 29^th day of November, 2002 and the suit was consequently struck out.

 The 1^st - 4^th plaintiffs were dissatisfied with that ruling and consequently appealed to the court of Appeal, which held, inter alia, as follows at page 492 of the record.

"The long and short of it all is that this appeal succeeds in its entirety, it is accordingly allowed. The ruling of the learned trial judge striking out the appellants' action is set aside. The case is remitted to the Ekiti state High court for hearing de novo before another judge."

The court of Appeal did not stop there but went on to order, inter alia, as follows: -

"......... The practical effect of this is that the appointment and installation of the 6^th respondent during the pendency of the appellants' action challenging same is set aside. So is the registration of the new Declaration. Things will remain as they were on 02/11/95 when the appellants took out their writ of summons..."

The present appellants are not satisfied with the judgment and have consequently appealed to this court. There are two appeals rolled into one. The first appeal is by the 1^st - 4^th appellants represented by the Honourable Attorney-General of Ekiti state while the second appeal is by the 5^th - 7^th appellants represented by Chief Wole Olanipekun, SAN.

The issues for determination as identified by the Honourable Attorney-General Owoseni Ajayi Esq, for 1^st - 4^th appellants in the brief of argument deemed filed on 8/2/07 are as foliows: -

"(1)      Whether or not the lower court was not in error when it held that the Plaintiff's Action was not caught by the statute of limitation (Ground 1)

(2)        Whether or not the lower court was not in grave error to have held that the plaintiff's cause of action accrued on 19^th September 1995 -(Ground 2)

(3)        Whether or not the lower court was not in grave error to have set aside on its own volition and without jurisdiction the appointment and installation of the 6^th defendant/appellant, and for setting aside also Edict No. 1 of 4th February 1999 - (Grounds 3)-

(4)        Whether or not the lower court was not in error to have overruled the trial court considering the weight of evidence - (Ground G)."

On the other hand, the issues identified for determination by learned senior counsel for the 5^th - 7^th Appellants, Chief Wole Olanipekun, SAN in the brief of argument filed on 3/4/06 are as follows-

"(i)       Whether or not the lower court was not in grave error by holding that the plaintiff's action was/is not statute barred. And/or

(ii)        Whether the lower court was not patently wrong in holding the plaintiff's cause of action accrued on 19^th September 1995 - Grounds 4, 5, 6, 9 and 10

(iii)       Whether or not the lower court was not patently wrong and or without the necessary jurisdiction to set aside the appointment and installation of the 6^th defendant/appellant, as well as the chieftaincy declaration embodied in Ekiti State edict No. 1 of 4^th february, 1999 or in any other instrument - Grounds 1, 2, 3, 7 And 11.

(iv)       Considering the pleadings of the parties, the evidence before the trial high court and the ruling of the said trial court itself, whether or not the lower court was not in error to have upturned the well considered ruling of the trial high court - Ground 8."

It should be noted that learned counsel for the respondents, M.A. Owoyemi Esq., in the brief of argument filed on 31/1/07 adopted issues 1 - 3 of the 1^st - 4^th appellants and contended that the 1^st - 4^th appellants' issue No. 4 which is based on weight of evidence is premature and therefore irrelevant having regard to the fact that only the evidence produced by the respondents is on record, the appellants' not having called any evidence at the trial by the time the objection was raised.

With regard to the appeal of the 5^th - 7^th appellants, learned counsel for the respondents identified the following issues for determination in the brief of argument filed on 19/6/06: -

"1.        Whether the court of Appeal was not right in holding that the suit of the 1^st to 4^th Plaintiffs/Respondents was not statute barred thereby setting aside the ruling of the High Court of Justice, Ikere-Ekiti delivered by Honourable Justice A.S. Daramola on 29^th day of November 2002.

2.         Whether the Court of Appeal was not right in setting aside the installation of the 6^th Appellant herein as Arajaka of Igbara-Odo Ekiti having found that the said installation was done or carried out by the 1^st Defendant/Respondent during the pendency of this suit in view of the decision of this Honourable Court in Military Governor, Lagos state v. Ojukwu (2001) F.W.LR (Pt. 50) 1779

3.         Whether the Court of Appeal lacked the power/discretion to set aside the 1995 Chieftaincy Declaration in respect of Arajaka of Igbara-Odo Ekiti, which Declaration was registered on 5^m November, 1995 after the suit had been initiated by the 1^st to 4^th Plaintiffs/ Respondents on 2^na November, 1995."

In arguing issues 1 and 2, learned counsel for the appellants submitted that the period of limitation is determined by looking at the claim of the plaintiff as contained in the writ of summons and statement of claim to ascertain the cause of action and when it is said to have accrued and compare same with when the action was filed in court; that a look at these facts disclose the fact that the complaint is against the recommendation made by the Morgan Chieftaincy Review commission, the White Paper thereon and the Government decision which were made in 1981; that from that time to when the action was instituted is more than 6 (six) years allowed by the statute of limitation and as such the action is statute barred, relying on the case of Asemo II v. Adekanye (2002) 2 NWLR (pt. 644) 257 at 271; Apaka v. Ejiegwu (2000) 15 NWLR (pt. 692) 684 at 710; Obiefuna v. Okoye (1961) 1 SCNLR 144; Savannah Bank of Nigeria Ltd v. Pan Atlantic Shipping & Transport Agency Ltd (1987) 1 NWLR (Pt. 49) 212.

On his part, learned counsel for the respondents submitted that the cause of action of the respondents is not founded on the Draft Declaration as contained in the Government   Views   on   the   Report   of   the   Morgan Chieftaincy Review Commission of 1981 which was never registered in accordance with the provisions of Section 4 (1) & (2) of the Chiefs Edict of Ondo State 1984; that since the Chieftaincy Declaration in issue was registered on the 19^th day of September 1995, the respondents cause of action arose on that date and that the action instituted subsequently cannot be said to be statute barred and urged the court to resolve the issues against the appellants.

Section 4(1) (a) of the Limitation Law, Cap. 61 Laws of Ondo State provides as follows: -

"The following action shall not be brought after the expiration of six years from the date in which the cause of action accrued, that is to say: -

(i)         Actions founded on contract or tort …...."

In the case of Wohevem v. Emereuwa (2004) 13 NWLR (Pt. 890) 398 at 417, this Court decided that for the purpose of determining whether or not an action is statute barred, the period of limitation is determined by looking at the writ of summons and the Statement of Claim only. I will however add, where one has been filed, it is from either or both of these processes that one can ascertain the alleged date when the wrong in question is said to have occurred or been committed thereby giving rise to the plaintiff's cause of action. When that ascertained date is compared with the date the writ of summons or originating process was filed in court it can then be determined whether the action was instituted within the period allowed by law or outside it. When it is found that the action was instituted within the period allowed by law, the action is said to be competent and the court has the jurisdiction to entertain same but where it is found to have been instituted outside the period allowed by law, the action is said to be statute barred and consequently the court is without jurisdiction to entertain same, see Savannah Bank of Nigeria Ltd v. Pan Atlantic Shipping and     

Transport Agency, Ltd supra; Araka v. Ejicagwu (2000) 15 NWLR (Pt. 692) 684 at 710; Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1; Ibrahim v. Judicial Service commission (1998) 14 NWLR (Pt. 584) 1

It is settled law that limitation Act or Law removes the right of action of a plaintiff, his right of enforcement and the right of judicial relief leaving the plaintiff with a bear and empty cause of action, which he cannot enforce if such a cause of action, is found to be statute barred.

The relevant question that follows is: what is a cause of action? A cause of action has been defined by this Court in various cases to mean a factual situation existence of which entitles one person to obtain from the court a remedy against another person, See Owodunmi v. Registered Trustees of C.C.C. (2000) 10 NWLR (Pt. 675) 315 at 365, Ogbimi v. Owlo (1993) 7 NWLR (Pt. 304) 128 at 136; Akilu v. Fawehinmi (No. 2) (1989) 2 NWLR (Pt. 102) 122.

Applying these principles of law to the facts of this case, can it be said that the action of the respondents as constituted is statute barred?

Both parties agree that though the processes leading to the institution of the action started in 1981, the Chieftaincy Declaration relevant to the facts of this case was never registered until 19^th September 1995. Section 4(1) & (2) of the Ondo State Chiefs Edict 1984 provides as follows:-

"(1)      Every declaration of the committee approved by the Executive council and every declaration made by the Executive Council shall be registered and kept in safe custody by such officers as the Military Governor may direct.

(2)        No declaration shall come into effect until it is so registered."

It is therefore my considered view that the lower court was right in holding that the action was not statute barred the same having been instituted on the 2^nd day of November 1995 following the registration of the offensive Chieftaincy Declaration on the 19^th day of September 1995, less than a month after the cause of action accrued to the respondents. The recommendation of the Morgan’s Commission remains a recommendation whether made in 1981 or later just as the Government White Paper thereon. They remains as paper tigers until registration which gives them life and the respondents a cause of action by operation of section 4(1) and (2) supra.

The next and final issue I wish to comment on is issue No. 3.

It is not in doubt that the lower court, having come to the conclusion that the action was not statute barred accordingly set aside the order of the trial court striking out the action and proceeded to make a consequential order remitting the case to the trial court to be heard de novo by another judge. I hold the view that the above order   of   the   lower   court   is   very   much   within   its jurisdiction to make.

However, the lower court did not stop at that, it proceeded further to set aside the appointment of the 6^th defendant/appellant and Edict No. 1 of 4^th February 1999. Going through the Amended statement of Claim, there is no claim relating to the two further reliefs granted by the lower court. That apart, the ruling of the trial court which gave rise to the appeal before the lower court contained no order(s) on the basis of which the further reliefs could be grounded. However, and strangely too, in paragraph 4(b) of their Notice of Appeal, the appellants before the lower court sought an order setting aside the installation of the 6^th respondent before that court as the Arajaka of Igbara-Odo Ekiti. I use the word "strange" because it is settled law that appeals are usually against the ratio decidendi in the judgments on appeal, in other words, an appeal must be directed at the reasons for the judgment of the court appealed against and not outside it. In the instant case, as revealed by the facts on record, there was no decision of the trial court relating to the installation of the 6^th defendant/appellant neither was there any decision by that court in relation to Edict No. 1 of 1999. In the circumstances I agree with the submissions of learned counsel for the appellants that the lower court had no jurisdiction in making the further orders and that to have done so was erroneous in law. I therefore resolve the issue in favour of the appellants.

In conclusion, I agree with the reasoning and conclusion of my learned brother, Musdapher J.S.C. in the lead judgment, the draft of which I had the privilege of reading before now, that the appeal partly succeeds. However, having regard to the fact that the main issues i.e. 1 and 2 have been resolved against the appellants, the case is remitted to the trial court for hearing de novo before another judge.

I too make no order as to costs.

Counsel