➥ CASE SUMMARY OF:
Oba J. A. Aremo II v. S. F. Adekanye & Ors (2004, SC. 139/2000) – SC
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Justiciable;
Chieftaincy;
Cause of action:
Statute barred.
➥ CASE FACT/HISTORY
This appeal emanated from a chieftaincy dispute between the Plaintiff, Oba J .A. Aremo II known by the title of Alakungba of Akungba and the 1st Defendant S.F. Adekanye designated as the Alale of Ilale. The dispute is over the headship or Paramount rulership of Akungba clan in Akoko South West Local Government Area of Ondo State. The dispute started long ago between 1913 and 1918 when the then colonial administrator accorded recognition to village heads in Akoko District of the then Kabba Division. The Plaintiff alleged that one of the 1st Defendant’s predecessors called Alale Omobobokun usurped the position of one of his predecessors as the Alakungba or Paramount ruler of Akungba. The said Alale Omobobokun died in 1918 and was succeeded by Alale Ajimo I to whom the colonial administration handed over the ‘village book’ (a symbol of paramountcy) and other paraphernalia. In 1923 when one of the Plaintiffs predecessors was succeeded by Alakungba Esugbe, Alale Ajimo I refused to recognise him as the headchief. In consequence, Alakungba Esugbe in 1924 petitioned the then District Officer for Owo Division, Mr. J .A. Mackenzie who in his report found in favour of the Defendant’s predecessor. However, in 1951 when the Plaintiff became the Alakungba, he wrote series of petitions to Akoko Federal Council, Ikemerin Local Council” and the Resident Ondo Province to reverse the trend but all were in vain. In 1979, the Ondo State Government set up the Ajayi Judicial Commission of Inquiry into the headship dispute between the Alale and Alakungba. In its White Paper of 1982, Exh.l, the Government rejected the Report and recommendation of that Commission of Inquiry, which found in favour of the Plaintiff. Aggrieved by the government’s rejection of the Report of the Inquiry, the Plaintiff by a writ of summons issued on 11th of August, 1988 filed in the On do High Court sitting in Akure, commenced action in Suit No. HC/121/88 against the 1st Defendant joining the Ondo State Governor and the Ondo State Commissioner for Local Government and Chieftaincy Affairs as the 2nd and 3rd Defendants.
After pleadings were filed and exchanged, the Plaintiff called witnesses and closed his case. Thereafter, the 1st Defendant by a Notice of Preliminary Objection dated 22nd January, 1996, objected to the jurisdiction of the trial court on the following grounds:- “1. That the cause of action being a chieftaincy dispute arose before 1979 Constitution and therefore not now justiciable. That the Plaintiffs claim before the Court is statute barred by virtue of S.4(1)(a) of Limitation Law Cap 61 of Ondo State and should be dismissed/or struck out.” The learned trial Judge, Aguda J, heard the addresses of both counsel on the Preliminary Objection and in his ruling thereon delivered on 15/2/96, he upheld the objection.
The Plaintiff appealed against the order striking out the suit while the 1st Defendant cross-appealed on the failure of trial court to rule on the issue of justiciability of the action but the Court of Appeal, Benin Division dismissed the appeal and allowed the cross-appeal in its unanimous judgment delivered on 2nd December, 1999. Against that judgment, the Plaintiff has further appealed to this court.
➥ ISSUE(S)
I. Whether the Court of Appeal, Benin was correct in affirming the High Court decision that the action of the Appellant is statute barred?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE APPELLANT ACTION IS NOT JUSTICIABLE – IT IS BASED ON FACTS BEFORE THE 1979 CONSTITUTION
‘In this connection, a careful reading of the six reliefs claimed by the Appellant in paragraph 72 of the statement of claim as set out in the introductory part of this judgment reveals that they relate to a chieftaincy title, that is, the Paramount rulership or Oba of Akungba. Being a chieftaincy matter, the jurisdiction of the court to entertain such a matter was before the 1979 Constitution ousted. However, that position was reversed by the 1979 Constitution by virtue of section 236 thereof. The crucial question then is whether the Appellant’s action which was not justiciable before 1979 when it accrued could be entertained in the law court in 1988 that is, when the 1979 Constitution was in force? The legal position is that the applicable law to a cause of action is the law prevailing at the time the cause of action arose notwithstanding that that law had been revoked at the time the action is being tried: Governor of Oyo State V. Folayan (1995) 9 SCNJ 50 at 64, Mustapha V. Governor of Lagos State (1987) 2 N. W.L.R. (Pt.58) 539, Alao V. Akano (1988) 1 N.W.L.R. (Pt.71) 431; Uwaifo V. Attorney-General Bendel State (1982) 7 SC 124.’
‘From the exposition of the applicable law in the above illuminating judgment, it is clear that the Appellant’s action in respect of the cause of action that accrued before 1979 when the jurisdiction of the court to entertain it was ousted, could not be justiciable in 1988. But learned counsel for the Appellant has forcefully argued that the Government’s White Paper Exh.1 made in 1982 rejecting the Ajayi Commission of Inquiry, occasioned a fresh cause of action redressible in the law court. In my humble view, the reliefs claimed in paragraphs 72(4), 72(5) and 72(6) of the statement of claim based on the rejection of the recommendation of the Judicial Commission of Inquiry could not have given the Appellant a cause of action that is repressible in a court of law. This so because the Ondo State Government that set up the Commission of Inquiry was at liberty to reject the recommendation of the Commission and the Appellant has no legal right to compel it not to do so.’]
.
.
.
✓ DECISION:
‘Having regard to all the foregoing, it is my view that the appeal is devoid of any substance. It is accordingly dismissed with N10,000.00 costs to each set of Respondents.’
➥ FURTHER DICTA:
⦿ IT IS THE STATEMENT OF CLAIM THAT IS CONSIDER FOR THE PURPOSE OF JURISDICTION
In considering whether the court has the jurisdiction to entertain an action, it is the plaintiffs claim as endorsed on the writ of summons and the statement of claim that the court has to consider and not the defence; see Adeyemi V. Adeyori (1976) 9-10 SC 31, Izenkwe V. Nnaedozie (1953) 14 W.A.C.A.361. — Edozie JSC.
⦿ THE APPLICABLE LAW WILL BE THAT WHEN THE CAUSE OF ACTION AROSE
The legal position is that the applicable law to a cause of action is the law prevailing at the time the cause of action arose notwithstanding that that law had been revoked at the time the action is being tried: Governor of Oyo State V. Folayan (1995) 9 SCNJ 50 at 64, Mustapha V. Governor of Lagos State (1987) 2 N. W.L.R. (Pt.58) 539, Alao V. Akano (1988) 1 N.W.L.R. (Pt.71) 431; Uwaifo V. Attorney-General Bendel State (1982) 7 SC 124. — Edozie JSC.
⦿ RULES OF COURT APPLICABLE IS THAT DURING TRIAL
In respect of practice and procedure, the applicable Rules of court are those in force at the time of the trial: Owata V. Anigo & ors (1993) 2 SCNJ 1 at 10; Rossek and ors V. A.C.B. Ltd and others (1993) 10 S.C.N.J 20. — Edozie JSC.
⦿ STATUTE OF LIMITATION PRESCRIBES PERIOD WHEN AN ACTION MUST COMMENCE
Sometimes, the legislature prescribes certain periods of limitation for instituting certain actions. The statutes that prescribe such periods and regulate the subsistence of causes of action are known as statutes of limitation. Where a statute of limitation prescribes period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where an action is statute barred, a plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because the period of the time laid down by the limitation law for instituting such an action has elapsed: See the cases Ebogie V. N.N.P.C. (1994) 5 N. W.L.R. (Pt.347) 649; Odubeko V. Fowler (1993) 7 N.W.L.R. (Pt.308) 637, Senda V. Kukawe Local Government (1991) 2 N.W.L.R. (Pt.174) 379; Ekeogu V. Aliri (1991) 3 N. W.L.R. (Pt.179) 258. — Edozie JSC.
⦿ RATIONALE FOR CAUSE OF ACTION
The rationale or justification supporting the existence of statutes of limitation includes the following:- (1) that long dorminant claims have more of cruelty than justice in them: Lloyd V. Butler (1950) 1 K.B. 76 at 81 – 82, (2) that a defendant might have lost the evidence to disprove a stale claim: Jones V. Bellgrove Properties Ltd. (1949) 2 K.B 700 at 704 and (3) that persons with good causes of action should pursue them with reasonable diligence: Board of Trade V. Cayzer Irvine & Co. (1927) A.C. 610 at 628. — Edozie JSC.
⦿ TO DETERMINE WHEN THE CAUSE OF ACTION IS STATUTE BARRED, LOOK AT THE STATEMENT OF CLAIM
To determine whether an action is statute barred, all that is required is for one to examine the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and comparing that date with the date on which the writ of summons was filed. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred: See the case of Egbe V. Adefarasin (1987) 1 N.W.L.R. (Pt.47) 1 at 20-21. — Edozie JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
O. Edozie, JSC.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ INSTITUTING AN ACTION AFTER OCTOBER 1ST 1979 TO CHALLENGE WHAT COULD NOT BE CHALLENGED BEFORE
In a case not too dissimilar, this court, per Nnaemeka-Agu J .S.C. restated and applied the above principle in the case of Olaniyi V. Aroyehun (1993) 5 N.W.L.R. (Pt.194) 652, 681-692 where he said “The question is whether by the Constitution vesting in the courts the jurisdiction to adjudicate over chieftaincy questions, the appellant could have competently instituted this action in 1984 in order to challenge an installation which took place in 1963. The answer to this question is clearly in the negative for two main reasons. First, the Constitution was not made to have a retroactive effect. A Constitution like other statutes, operates prospectively and not retrospectively unless it is expressly provided to be otherwise. Such a legislation affects only rights which come into existence after it has been passed: See on this, Smith V. Callander (1901) A.C. 297; also Re Snowdon Colliery Co. Ltd (1925) 94 LJ Ch 1 305. Secondly, it is a fundamental principle of our law that rights of parties in an issue in litigation are decided on the basis of the substantive or organic law in force at the time of the act in question. This distinguishes them from adjectival or procedural law: See on this Lamikoro Oiokolobo and ors V. Lapade Alamu & Anor (1987) 3 N.W.L.R (Pt.61) 377, Kpema V. The State (1986) 1 N.W.L.R. (Pt.17) 396; Obadiara V. Uyigwe (1986) 3 SC 39 and Adeyeye V. Ajiboye (1987) 3 N.W.L.R. (Pt.61) 432, 444. These are the reasons why this court has consistently held that it is not competent for a party to institute an action after October 1, 1979 when the 1979 Constitution came into force to challenge an act which he could not have competently challenged before the promulgation of the 1979 Constitution. See Uwaifo V. Attorney-General Bendel State (1982) 7 SC 124, Attorney- General Lagos State V. Dosunmu (1989) 3 N.W.L.R. (Pt. 111) 552; Mustapha V. Governor of Lagos State (1987) 2 N. W.L.R. (Pt.53) 539. Applying the above principles to the instant case, it is clear that by the promulgation of the 1979 Constitution which vested the jurisdiction to adjudicate over chieftaincy matters in our courts, the appellant did not acquire the right to challenge a chieftaincy issue the cause of action over which arose in February, 1963. The jurisdiction of the court remained completely ousted.”
➥ REFERENCED (OTHERS)