IN THE COURT OF APPEAL OF NIGERIA
On Tuesday, the 27th day of January, 2015
CA/I/215/09; LN-e-LR/2015/19 (CA)
BETWEEN
1. SAMUEL ALABI (For Himself and Other Members of Oluode Family except JACOB AKANDE OGUNDIRAN)
2. MATTHEW OLOSUN ALAMU ALIBI
3. JOSEPH FASINA. .... ...... Appellants
4. SAMSON FALEKE
5. H. R. H. OBA OMOWONUOLA OYESOSIN (The Ogiyan of Ejigbo)
AND
1. BILAWU OYEWUMI (For himself and other members of Abiloga
ruling house, Iwata). .......... Respondents
2. JAMES ADEBAYO SIYANBOLA) (For himself and other members of
Laaiba ruling house, Iwata)
3. EZEKIEL FOLASAYO (For himself and other members of Lawarikan ruling house, Iwata)
4. SAMUEL OYEDEMI AKINTOYESE
5. THE GOVERNOR OF OSUN STATE
6. THE ATTORNEY GENERAL OF OSUN STATE
APPEARANCES
M. A LAOGUN ESQ. - For Appellant
AND
1. MRS. C. O. OGUNLEYE For the 1st 4th Respondents
2. NURENI OKUNLOLA ESQ. For the 5th and 6th Respondents - For Respondent
MAIN JUDGMENT
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Judgment of the High Court, Osun State sitting at Ejigbo delivered on the 4th March, 2005. In that Court, the 1st - 4th Respondents were the Plaintiffs. The 1st - 4th Appellants and 5th - 6th Respondents were the Defendants. The claim of the Respondents was for the following:
i. A declaration that by customary derivation, the three ruling houses in Iwata in Ejigbo Local Government Area are:- ABILOGA, LAANIBA, AND LAWARIKAN.
ii. A declaration that the next ruling house to present a candidate/candidates for the vacant stool of Oluwata of Iwata as (sic) Abiloga ruling house.
iii. A declaration that the 4th plaintiff is the candidate nominated by Abiloga ruling house to fill the stool of Oluwata of Iwata.
iv. An order declaring that the nomination of either the 2nd or 4th defendant at different family meetings presided over by 1st and 3rd defendant respectively at Iwata to fill the vacant stool of Oluwata of Iwata is invalid, unconstitutional, null avoid and of no effect whatsoever.
v. A perpetual injunction restraining the 2nd and 4th defendants from parading themselves as princes in Iwata or presenting themselves for installation as Oluwata of Iwata.
vi. A perpetual injunction restraining the 5th defendant from approving the nomination of either the 2nd or the 4th defendant as the Oluwata of Iwata and doing anything whatsoever in relation to the filling of the vacant stool of Oluwata of Iwata.
The case of the 1st - 4th Respondents at the Lower Court briefly stated is as follows: 1st - 4th Respondents are brothers. After the death of Oba Afolabi Oyegunle Oyekele, it was the turn of Abiloga ruling house to provide a candidate for the stool of Oluwata. The Abiloga family members gathered and held series of meetings and the 4th Respondent was selected for the stool of Oluwata. He was presented to the kingmakers and then to the prescribed authority. When the 4th Respondent was presented as a candidate for the stool to the prescribed authority, Olukotun family and Oluode family also presented a candidate each to the prescribed authority.
Oluode family presented the 2nd Appellant while Abiloga family presented the 4th Appellant.
When the resultant chieftaincy disagreement could not be resolved; a letter was written to the 5th Respondent. The 2nd Appellant was finally appointed the chief. It was this appointment that the 1st - 4th Respondents challenged at the Lower Court.
The Appellants vigorously defended themselves. According to them, after the death of Oba Oyewusi in 1978, the Oluaja family nominated the 2nd Appellant as next Oluwata. They knew the 1st - 4th respondents' family as Odunfa family and not as Abiloga family. Abiloga is the one who settled all of them. It was not true that the 2nd Appellant was not installed then because he was not from a ruling (family) house. He is from a ruling house.
After the death of Oba Oyegunle Oyekale, the Oluaja family nominated the 2nd Appellant again. The Olumosunro family also nominated Samson Faleke; 1st - 4th Respondents family nominated the 4th Respondent.
There was therefore no agreement by the three families on the candidate. The prescribed authority asked all three families to present memoranda. They did. The prescribed authority then forwarded the memoranda to the government. The prescribed authority later called the three families and informed them that the government had replied. He told the Oluaja family to present their candidate and the 2nd Appellant was presented.
It is now the turn of the Oluaja to present a candidate for the Oluwata stool. Ogiyan had approved the appointment of the 2nd Appellant.
After taking evidence from the parties and addresses of learned counsel for the parties, the learned trial judge in a reserved judgment found for the 1st - 4th Respondents. Miffed by the decision, the Appellants filed a notice of appeal containing six grounds against the judgment. From the grounds of appeal, the Appellants presented the following issues for determination:
i. Whether the trial court has jurisdiction to entertain the Plaintiffs/Respondents suit as constituted in view of the provisions of Section 22 of the Chiefs Law, of Cap 21 Laws of Oyo State 1978 applicable then in Osun State.
ii. Whether the learned trial court can or ought to grant the declaration sought in view of the decision of the prescribed authority approved and confirmed by the Executive Council of Osun State vide Exhibit D1 which decision has not been challenged by the Plaintiffs/Respondents.
iii. Whether the learned trial court's finding as to the making of Exhibit D1 is not perverse and has not led to a miscarriage of Justice.
iv. Whether the learned trial court properly evaluated or did not evaluate the evidence tendered by the parties before finding that the Plaintiffs are entitled to the reliefs claimed and granted.
The 1st - 4th Respondents in their brief of argument filed on 8th July 2010 but deemed duly filed on 9th December 2010 argued a preliminary objection to the appeal and responded to the arguments of Appellants.
The 5th and 6th Respondents on their part presented the following issues for determination:
i. Whether the trial judge was right to have held that the prescribed authority having sought the guide of the Ministry of Chieftaincy Affairs which was shown through Exhibit D1 upon which he carried out his role as prescribed authority by inviting Oluaja Family to present the candidate, there is no other step to be taken under Section 22 of Chiefs Law of Osun state that has not been taken albeit by different persons other than those envisaged under the Law. (This issue covers grounds 1 & 2)
ii. Whether the suit of the plaintiffs/Respondents is competent when the originating process therein was prepared, signed and issued by a firm of solicitors J.A. Ogundere & Co., that is not known to law. (This issue covered ground 1)
Arguing issue 1, learned counsel for the Appellants pointed out that the Lower Court held that Section 22 of the Chiefs Law, Cap 21 Law of Oyo State applicable then in Osun State did not oust the jurisdiction of the High Court to entertain the suit.
It was submitted that the High Court has no jurisdiction to embark on a new trial to decide the issues that have already been decided by the prescribed authority and the Executive Council. We were referred to Abu & Ors v. Odugbo & Ors (2001) 10 SCM, Adesola v. Abidoye (1999) 14 NWLR (Pt 37) 28 and Eguamwense v. Amaghizemwen (1993) 9 NWLR Pt 315).
It was submitted that the cause of action open to any aggrieved party is to seek a review of the decision of the prescribed authority approved by the executive council by way of judicial review and not by seeking declaratory reliefs as was done in this suit. We were referred to Egwuamwense v. Amaghizemwen (supra) at page 25. It was submitted that the High Court had no jurisdiction to have granted the declaratory relief sought by the Respondents in the suit.
It was submitted that the cause of action would have been to invoke the High Court's power of review.
It was submitted on issue 2 that Section 22 of the Oyo Chiefs Law, Cap 21 Laws of Oyo State 1978 which was applicable then in Osun State is the applicable law in this case.
It was submitted that after the death of the late Oluwata of Iwata Oba Oyegunle Oyekale there arose a dispute. Therefore Section 22 (3) of the chiefs' Law, Cap 21 Laws of Oyo State became applicable. By the said provision of the law the 5th Appellant as the prescribed authority had the power to look into the dispute. Also by Section 22(4) (b), the 5th Appellant was vested with the power to determine the dispute.
That the 5th Appellant by virtue of the powers conferred on him by Section 22 (3) and (a) of the Chiefs' Law, Cap 21 Laws of Oyo State then applicable to Osun State looked into the dispute which arose on the filling of the vacant Oluwata chieftaincy under his prescribed authority. The 5th Appellant called for memoranda and took oral evidence during the hearing of the dispute. At the conclusion of hearing, the 5th Appellant found three ruling houses to be eligible for the Oluwata Chieftaincy.
The 5th Appellant made his findings and decision known to the Executive Council of Osun State which later approved the steps taken by the 5th Appellant and the 5th Appellant's findings on the chieftaincy dispute and issued Exhibit D1.
It was submitted that by the evidence led by both parties they did not object to the settlement of the dispute by the 5th Appellant. That the finding of the Lower Court that the procedure leading to the writing of Exhibit D1 could best be described as unilateral and ad hoc which the Ministry of Chieftaincy Affairs accepted hook, line and sinker without further recourse or inquiry from the people of Iwata is erroneous in law and fact.
The 5th Appellant, it was submitted, acted properly in conducting the inquiry under the ambit of the Chief's Law. So also the Ministry of Chieftaincy Affairs.
It was submitted that Exhibit D1 which was the result of the inquiry conducted by the 5th Appellant has not been challenged by the Respondents and the Lower Court inspite of the erroneous findings did not nullify the decision. There are therefore two parallel decisions in respect of the issue on the filling of the vacancy. The first decision by 5th Appellant, the prescribed authority and confirmed by the Executive Council leading to Exhibit D1. The second by the Lower Court in its judgment.
It was submitted that the 1st - 4th Respondents were aware of the decision of the prescribed authority but did not challenge its validity. It was submitted that in view of the approval already given by the Executive Council to the decision of the prescribed authority, the appropriate cause of action by the Respondents would have been to approach the High Court for review or by certiorari removing the decision of the prescribed authority to the High Court to be quashed. It was inappropriate for the Respondents to seek for declaration, as the decision of the prescribed authority approved by the executive council; a quasi-judicial act remains valid and effective.
Reliance was again placed on Eguamwense v. Amaghisemwen (supra) at page 24 -25 and Queen v. Governor-in-Council Western Region- Ex-Parte Laniyan Ojo (1962) WNLR 62 Adigun v. A - G Oyo State (1987) 1 NWLR (Pt 53) 678 at 694, Okenwa v. Military Governor of Imo State (2001) 1 SCM 120 at 121(13) and Adesola v. Abidoye (1999) 14 NWLR (Pt 637) 28.
On issue 3, it was submitted that the 5th Appellant did what he was supposed to do in law and the Executive Council did what the law required it to do. Therefore the learned trial judge was in error to have held that the procedure leading to the writing of Exhibit D1 can best be described as a unilateral and ad hoc initiative which the Ministry of Chieftaincy Affairs accepted line, hook and sinker even though the Respondents did not attack Exhibit D1.
It was submitted that the Lower Court approached Exhibit D1 with bias which led to miscarriage of justice in this case.
On issue 3, it was again pointed out that the dispute arising from the filling of the vacancy of the Oluwata Chieftaincy led to enquiry conducted and the making of Exhibit D1 by the Executive Council and that the Lower Court at page 148 of the record of appeal stated thus:
"The procedure leading to the writing of Exhibit D1 in this suit as given in evidence can best be described as a unilateral and ad-hoc initiative of the 5th Defendant which the Ministry of Chieftaincy Affairs accepted hook line and sinker without further enquiry from the people of Iwata to whom it will apply."
The Lower Court, it was contended further derided Exhibit D1 at page 149 of the record of appeal and exhibited bias and erroneously concluded that the 1st and 2nd Appellants' family of Oluaja and the 3rd and 4th Appellants' family of Olumonsunro were not entitled to the Oluwata Chieftaincy.
The finding and conclusion, it was submitted was perverse and should not be allowed to stand as it had occasioned injustice to the Appellants.
There were also several facts listed which, it was submitted were not considered by the Lower Court which made the findings of fact by the Lower Court perverse.
The Court was urged to allow the appeal, set aside the judgment and dismiss the Respondents' claim.
The 1st - 4th Respondents preliminary objection was in respect of grounds 1 and 2 of the grounds of appeal. In short the objection was to the effect that the jurisdiction of the Lower Court to entertain the suit had been raised at the Lower Court but that Court dismissed the objection and so it cannot now be raised again moreso that that decision was not challenged immediately. We were referred to several authorities which include; Sections 318 and 241 the Constitution FRN 1999, Williams v. Hope Rising Voluntary Funds Society (1982) SC 145, Ogundiran & Anor v. Balogun (1957) WRNLR 51 at 52, Umana v. Attah (2004) 7 NWLR (Pt 87163 and Ikotun v. Oba Oyekanmi & Anor (2008) NWLR (Pt.1094) 106.
Although, they did not set out any issue for determination in their brief of argument learned counsel for the 1st - 4th Respondents proceeded to argue their brief should their preliminary objection be dismissed.
It was submitted that in the interpretation of a statute, the Court is enjoined to consider critically the entire statute and not the particular section in isolation of the other provisions of the statute.
It was submitted that the content of Exhibit D1 did not oust the jurisdiction of the Court.
Therefore issues 1 and 2 of the Appellant's brief lack substance.
On Appellants' issues 3 and 4, it was submitted that a cool and calm consideration of the Lower Court's decision will show that it acted judiciously and judicially and there is no legal basis to interfere with the exercise of judicial discretion by the Lower Court in granting the declaratory reliefs sought by the Respondents. On this basis issues 3 and 4 of the Appellants have no substance.
The 5th and 6th Respondents' counsel while arguing their issue 1 submitted that for a Court to be competent and have jurisdiction in respect of a matter certain conditions precedent must be fulfilled and referred to Madukolu v. Njendukum (1962) NSCC 374 where the conditions are set out.
The Oluwata of Iwata, it was submitted, is a minor chieftaincy and by Section 22(2) and (3) of the Chieftaincy Law, after the prescribed authority had carried out his act if any of the parties had any complaint he must follow the steps provided by the statute to ventilate his grievance under Section 22(4) of the Chiefs Law. It was submitted that any of the parties aggrieved by the decision of the prescribed authority must send a written protest to the commissioner in charge of chieftaincy within 21 days. On receipt of the letter of protest the said commissioner must respond one way or the other and if the aggrieved party still feels aggrieved by the response of the commissioner it is then the coast is clear for him to have recourse to the court of law through litigation. But in this case the Respondents failed to exhaust this administrative remedy before instituting the action, it was submitted.
The suit of the Respondents was therefore incompetent it was submitted and the Court lacked the competence to entertain it. It was submitted that where the Respondents jumped a fundamental compulsory step to be fulfilled as a condition precedent before the institution of the action his action cannot be competent and the Court cannot exercise jurisdiction due to this.
The Court was urged to resolve this issue in favour of the Appellants and dismiss the claim of the 1st - 4th Respondents.
On the 5th and 6th Respondents' issue 2, it was submitted that J. A. Ogundere & Co. is not a legal practitioner, under the Legal Practitioners' Act authorized to appear or act before the Supreme Court of Nigeria and was therefore not entitled to issue or sign the Writ of Summons and Statement of Claim.
The writ of summons and further Amended Statement of Claim, it was argued, were issued and signed by J. A. Ogundere & Co. a person not known to law and therefore null and void. We were referred to Adewumi & Ors v. Oketade (2010) 4 SCM 1 at 7 Okafor & 2 Ors v. Nweke & ORS (2007) 5 SCM 180 at 186 - 187 and New Nigerian Bank PLC v. Denclag Limited & Anor (2005) 4 NWLR (Pt 916) 560 at 573.
Replying to the 1st - 4th Respondents preliminary objection it was submitted that since the Lower Court considered other evidence adduced before it in respect of Section 22 of the Chiefs Law, its decision was no longer interlocutory but final decision which could be appealed against without necessarily filing a notice of appeal against the earlier ruling of the trial Court. We were referred to Onwubuariri & Ors v. Igboasoyi & Ors (2011) 1 SCM.
It was further submitted that grounds 1 and 2 of the Appellants' grounds of appeal are appeals on grounds of law which require no leave by virtue of Section 247(1)(b) of the Constitution FRN 1999. We were referred to Oyakhire v. The State (2006) 2 SCM (t 1) 369 and Union Bank of Nigeria Plc v. Sogunro & Ors (2006) 10 - 11 SCM 393.
The issue of estoppel, it was further submitted, does not arise as the proceedings are the same.
This Court in several of its decisions has held that by virtue of Section 241(1)(b) of the 1999 Constitution an appeal against an interlocutory decision of a High Court lies as of right if the grounds of appeal involve questions of law alone. See Leaders & Co. Ltd v. Kusamotu (2004) 4 NWLR (Pt.804) 519 Olowoake v. Salawu (2000) 11 NWLR (Pt 677) 127, Lekwot v. Judicial Tribunal (1993) 2 NWLR (Pt.276) 401 and Elendu v. Eswoaba (1995) 3 NWLR (Pt 386) 704.
There is a right of appeal on point of law whether the decision is ex parte or not or whether it is interlocutory or not. Likewise, an appeal shall lie from decisions of the High Court as of right in final decisions of that Court in Civil and Criminal Proceedings by virtue of 241(1)(a) of the Constitution.
Grounds 1 and 2 of the grounds of appeal upon which the preliminary objection was based reproduced immediately hereunder read as follows:
"1. The trial court erred in law when it held that it had jurisdiction to entertain the plaintiff's suit.
2. The trial court erred in law when it held that Section 22 of the Chiefs Law is inapplicable."
At the earliest opportunity the Appellants challenged the jurisdiction of the Lower Court to entertain the matter. Their objection to the Lower Courts jurisdiction to entertain the matter was overruled by the Lower Court which proceeded to hear evidence. At the conclusion of the trial, the issue was again raised in final address but the Court in its reserved judgment at pages 145 - 147 again dismissed the objection. It is clear from the grounds of appeal reproduced above that the appeal is not only on an interlocutory decision of the Lower Court on questions of law but grounds of appeal on a final decision of the Lower Court on questions of law.
Therefore the preliminary objection of the 1st - 4th Respondents to grounds 1 and 2 of the grounds of appeal is without any basis and should be overruled. It is accordingly overruled.
It is now trite law that the issue of jurisdiction can be raised at any stage of proceedings in the Lower Court, in the Court of appeal or even in the Supreme Court. See Eghareuba v. Eribo & Ors (2010) 9 NWLR (Pt 1199) 411 and Adegoke v. Adibi (1992) 5 NWLR (Pt 24) 410.
Where the issue of jurisdiction is raised in any proceeding and at any stage, it must be taken first, immediately, promptly and expeditiously. See Nwanwo v. Yar Adua (2010)12 NWLR (Pt 1209)518.
Although the 5th and 6th Respondents did not appeal or file a respondents' notice they have challenged in their brief the competence of the Writ of Summons and Statement of Claim on the ground that they were neither signed by the 1st - 4th Respondents or any of them or by a person known to law. Both the writ of summons and further amended statement of claim, it was submitted, were signed by J. A. Ogundere & Co who is not a legal practitioner authorized by law to appear or act as such.
Therefore both the Writ of Summons and Statement of Claim were null and void. We were referred to Adewumi & Ors v. Okelade (2010) 4 SCM 1 and Okafor & Ors v. Nweke & Ors (2007) 5 SCM 180.
Neither the 1st - 4th Respondents nor the Appellants have attempted to reply to this issue. Although the 5th and 6th Respondents never appealed on this ground or filed a respondents' notice since it deals with the jurisdiction of the Lower Court to entertain the suit and consequently the competence of this appeal, the issue must be taken by this Court.
I have taken a cursory look at both the Writ and Further Amended Statement of Claim and I do not hesitate to say that while the writ was not signed by a person known to law, the same cannot be said of the Further Amended Statement of Claim. From the well known - Principle of Seniority of the Statement of Claim superceding the writ there is the temptation to find the action competent since the further Amended Statement of Claim was signed by a person known to law. But this cannot be correct. Once the Writ of Summons is void, it is void and nothing can be added to it. See Nzom & Anor v. Jinadu (1987) 2 SC 205.
The failure to commence the proceedings with a valid writ goes to the root of the proceedings and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity. It clearly borders on the issue of jurisdiction and the competence of the court to adjudicate on the matter. Such issue can be raised any time. See Kida v. Ogunmola (2006) 13 NWLR (Pt 997) 377.
There cannot be a valid Further Amended Statement of Claim on a void Writ of Summons. As the writ was not signed by a person known to law it was void and no valid Statement of Claim would stand on it.
A Court is competent when:
a). It is properly constituted as regards members of the Bench and no member is disqualified for one reason or the other.
b). The subject - matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
c). The case comes before the Court initiated by due process of law and upon fulfillment of a condition precedent to the exercise of jurisdiction.
Any defect in the competence of a court is fatal because the proceedings will be a nullity however well conducted. See Lado v. CPC (2011) 12 SCNJ 383.
As the writ was not signed by a person known to law, the proceedings were a nullity and should be set aside.
However for fear that I am wrong I will proceed to consider another issue of competence or otherwise of the suit presented by the Appellants in this appeal as well as the 5th and 6th Respondents. It is common ground between the parties that the chieftaincy matter in this appeal is a minor chieftaincy. Where there is a chieftaincy dispute, failure to exhaust available local remedies will oust the jurisdiction of the Court to hear the case. See Okomalu v. Akinbode (2006) 9 NWLR (Pt.985) 343. See Section 22 (4) of the Chiefs Law which provides that any person aggrieved by the decision of the Prescribed Authority in exercise of the powers conferred on the Prescribed Authority may within twenty one (21) days from the date of decision make representations to the Commissioner for Chieftaincy Affairs that the decision be set aside and the Commissioner after considering the representations may confirm or set aside the decision.
The 1st - 4th Respondents in this case failed to exhaust the above remedy before instituting the action now on appeal.
The jurisdiction of the Lower Court to entertain the case was therefore ousted.
I agree entirely with the Lower Court that Exhibit D1 only approved the steps taken by the prescribed authority to fill the vacant stool and directed him to call on the ruling house namely Oluaja family to select a candidate to be presented to the prescribed authority for approval and installation. Exhibit D1 did not declare Oluaja Olumosunro and Odunfa ruling houses.
In Eguamwense v. Amaghizenwen (1993) 9 NWLR (Pt 315), it was decided that where a statute prescribes a legal line of action for determination of an issue be that issue an administrative matter or taxation the aggrieved party must exhaust all remedies in that law before going to court. In that case as in this case, the 1st - 4th Respondents seemed to have jumped the fence as they avoided all avenues that availed them and went to the High Court. Any person aggrieved by the decision of the prescribed authority is compelled to exhaust all remedies provided by the law before going to court. This, the 1st - 4th Respondents failed to do. See also Adesola v. Abidoye (1999) 14 NWLR (Pt 637) 28.
Issue 2 is therefore resolved in favour of the Appellants.
On issue 3, it appears to me that the prescribed authority is empowered by Section 22(3) and 4(b) to look into the dispute which arose in the filling of the vacant stool and the law also empowers the Executive Council to do what it did. The Respondents took part in the enquiry conducted by the prescribed authority which was approved by the executive through Exhibit D1.
The Lower Court therefore wrongly criticized the procedure that led to the issue of Exhibit D1.
Issue 3 is also resolved in favour of the Appellants.
Issue 4 is on the evaluation of Evidence by the Lower Court. Although I have found the suit incompetent on two grounds firstly because of a void writ and secondly because of failure of 1st - 4th Respondents to exhaust administrative remedies provided for by law since this is not a final court I will proceed to consider the said issue 4.
There is evidence that three families presented a candidate each for the Chieftaincy. Consequently, a dispute arose. The three families were asked by the prescribed authority to present memoranda. The prescribe authority invited all three families to participate in the enquiry. They all participated in the enquiry. The prescribed authority referred his investigation to the Executive Council which approved of what he did. He was directed by the Executive Council to appoint a person from the Oluaja family. See Exhibit D1. In 1978, the 2nd Appellant had contested for the position but lost to someone else. 2nd Appellant is from Oluaja family.
Inspite of the fact that the Executive Council recommended somebody from the Oluaja family for the Oluwata chieftaincy in the letter Exhibit D1 and inspite of the fact that the 2nd Appellant who is from that family contested for the chieftaincy in 1978, the Lower Court nevertheless held that this family was not entitled to the Oluwata chieftaincy. This was wrong. When the 2nd appellant contested in 1979, the 1st - 4th Respondents never alleged that the Oluaja family to which he belonged were not entitled to the chieftaincy. The enquiry conducted by the prescribed authority did not disclose that the 2nd Appellant's family was not entitled to the chieftaincy.
There was therefore no basis for the Lower Court's finding that the family of the 2nd appellant and Olukotun family are not entitled to the Oluwata of Iwata chieftaincy. I would allow the appeal even on the merits and set aside the decision of the Lower Court for being perverse except for the fact that the action was incompetent as stated earlier in the judgment.
Since the suit was incompetent on the grounds contained elsewhere in this judgment the appeal is allowed on those grounds.
The judgment of the Lower Court in suit No. HEJ/5/94 delivered on 4th March 2005 is hereby set for being incompetent.
MOJEED ADEKUNLE OWOADE, J.C.A.:
I read in draft the Judgment Delivered by my learned brother James Shehu Abiriyi, JCA.
I agree with the conclusion and I also abide with the consequential orders.
MOHAMMED AMBI-USI DANJUMA, J.C.A.:
I agree.