CHIEF ISMAILA EHINLE &2 ORS V IKORODU LOCAL GOVERNMENT & 3 ORS SUPREME COURT OF NIGERIA – SC. 382/2007 DECIDED ON THE 8TH  OF MAY 2020

[Chieftaincy] – [Registered Chieftaincy Declaration] – [Effect of]

ISSUES FOR DETERMINATION:

1. Whether there was compliance with the provisions of the Obas and Chiefs Law of Lagos State 1981, in the process leading to the nomination and election of the 4th respondent as the Ranodu of Imota.

• Whether the registered declaration regarding the stool of Ranodu of Imota recognises rotation to the stool within sub-branches of the ruling houses.

• Whether there was miscarriage of justice by the decision of the Court of Appeal that the reliefs sought in the writ of summons not specifically repeated in the statement of claim were deemed waived and abandoned.

FACTS:

Imota, a town in Ikorodu Local Government of Lagos State, has a registered declaration made and registered by the Western Region of Nigeria in 1957. The registered declaration governs the appointment and recognition of the Ranodu of Imota and recognises four ruling houses namely Senlu, Olugayan, Lasademo and Oyemade, from where candidates may be nominated and selected to provide the Ranodu upon the death of an incumbent.

The stool became vacant on 21^st January 1993 when Oba Oredoyin joined his ancestors. By a letter dated 28^th May 1993, the Chairman of the 1^st respondent, in accordance with section 17(1)(a) of the Obas and Chiefs of Lagos State Law 1981, requested the head of the family of Olugayan ruling house, which was next in line to produce a Ranodu, to select and nominate qualified candidate(s) from the ruling house for the filling of the vacant stool and forward the name(s) of the nominee(s) in writing to the kingmakers for consideration.

Consequently, the Olugayan family held three meetings on 30^th May 1993, 6^th June 1993 and 13^th June 1993. The family could not come to a consensus on one candidate, so at the end of the meeting of 13^th June 1993, they resolved to send to the king makers the names of six family members, who signified their intention to contest the vacant stool. The kingmakers met on 21^st June 1993 and unanimously voted and elected the 4^th respondent as the Ranodu of Imota and forwarded his name to the 1^st respondent.

However, by a writ of summons dated 18^th June 1993, the appellants, members of Olaribigbe branch of the Olugayan family, instituted an action at the High Court of Lagos State, Ikeja claiming a declaration that their branch was the only branch entitled to present a candidate to fill the vacant stool; and two injunctive reliefs. By paragraph 26 of their third amended statement of claim, they further prayed in terms of their writ of summons. At the trial, the appellants called four witnesses and respondents called six witnesses. The registered declaration was tendered and admitted as exhibit “D25”.

At the conclusion of trial, the trial court in its judgment held that the reliefs contained in the writ of summons but not stated in the statement of claim would be deemed abandoned. It held that although the issue was not raised and addressed by the parties, it would allow the apparent lapse to affect its judgment. It assessed the evidence adduced by both sides and considered the appellants’ claims for injunctive reliefs in their writ of summons.

In dismissing the claims, the trial court held that since no branches were referred to in the registered declaration and no provision made for rotation among the branches of the ruling houses, then the court could not declare any branch from the ruling house as the one entitled to produce the person to fill the vacant stool; that the consideration of which branch of the ruling house was to provide the Ranodu was an internal matter for the family; and that the selection and appointment of the 4^th respondent as the Ranodu of Imota was proper and in conformity with Section 17 of the Obas and Chiefs Law of Lagos State, 1981.

Dissatisfied with the judgment, the appellants appealed to the Court of Appeal. In its judgment, the Court of Appeal dismissed the appeal. It agreed with the trial court that the statement of claim superseded the writ of summons and any prayer on the writ of summons that was not repeated in the statement of claim was deemed waived and abandoned. It held further that the proper procedure was followed in the appointment of the 4^th respondent as the Ranodu of Imota.

Still dissatisfied, the appellants appealed to the Supreme Court, which dismissed the appeal.

HELD:

On Duty of court to apply provisions of registered chieftaincy declaration to facts of case:

The duty of the courts is to apply the provisions of a chieftaincy declaration to the facts of the case as established by the pleadings and evidence. They cannot read into the declaration what it does not contain.

NIGERIAN CASES REFERRED TO IN THE JUDGMENT:

• Adegbola v. Idowu (2013) LPELR – 21448
• Adesanoye v. Adewole (2006) 14 NWLR (Pt. 1000) 242
• Adomba v. Odiese (1990) 1 NWLR (Pt.125) 165
• Ajayi v. Jolayemi (2001) 10 NWLR (Pt. 722) 516
• Akande v. Adisa (2012) 15 NWLR (Pt. 1324) 538
• Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227
• Arabambi v. Advance Beverages Ind. Ltd. (2005) 19 NWLR (Pt. 959) 1
• Ardo v. INEC (2017) 10 NWLR (Pt. 1416) 591
• Ardo v. Nyako (2014) 10 NWLR (Pt. 1416) 591
• Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360
• Ayinde v. Abiodun (1999) 8 NWLR (Pt.616) 587
• Brawal Shipping Ltd. v. Onwadike Co. Ltd. (2000) 11 NWLR

NIGERIAN STATUTE REFERRED TO IN THE JUDGMENT:

• Obas and Chiefs of Lagos State Law, 1981, Ss. 6, 17(1)(a)-(e)(i)(ii), 2(a)(i)(ii)

BOOKS REFERRED TO IN THE JUDGMENT:

• Dictionary.com
• Merriam Webster Dictionary

FULL JUDGMENT

AUGIE, J.S.C. (Delivering the Leading Judgment):

This appeal is the fallout of the chieftaincy dispute over succession to the Stool of Ranodu of Imota, which became vacant on 21/1/1993, when Oba Oredoyin, “joined his ancestors.”

The appellants had claimed three reliefs in their writ of summons: a declaratory relief, repeated in their 3^rd amended statement of claim; and two injunctive reliefs, not mentioned in their 3^rd amended statement of claim. They argued that if the Court of Appeal had considered the entire paragraph 26 of their 3^rd amended statement of claim, it would have realized that it “referred to and adopted the reliefs contained in the writ of summons”. In resolving this issue of the two reliefs being abandoned, the trial court relied on Enigbokan v. A.I.I.CO. Ltd. (supra), wherein Ogundare, JSC, stated:

“A statement of claim supersedes the writ. To supersede the writ, however, the statement of claim must state what is being claimed and not just claiming “as per the writ of summons.” It follows that to supersede the writ, the statement of claim must contain a claim or claims. Any claim in the writ not claimed in the statement of claim is taken to have been abandoned.”

In his judgment in Enigbokan v. A.I.I.CO. Ltd. (supra), Iguh, JSC, observed:

“It seems to me plain from the plaintiffs’ fourth amended statement of claim that the first relief he originally claimed as per his writ of summons was subsequently abandoned. This is because the law is settled that a statement of claim supersedes the writ and any relief claimed on the writ but not contained in the statement of claim will be deemed to have been abandoned.”

It is a general rule that a statement of claim supersedes the writ of summons and as such any claim or relief contained in the writ of summons, which is not repeated or reproduced in the statement of claim is deemed abandoned. This Court has in the case of Okomu Oil Palm Co Ltd. v. Iserhienrhien (supra) held that though a statement of claim, which does not contain reliefs claimed is incomplete, the said statement of claim is complete if it makes reference to the writ of summons for the reliefs it claims because the said writ of summons is thereby incorporated to the statement of claim by reference. I am of the firm view that the above statement is in accord with the current trend in the development of the law where substantial justice remains the focus of the law, not technicality.

What this plaintiff has done in paragraph 19 of his statement of claim was to incorporate the writ of summons in the statement of claim. There is, at the worst, an irregularity here. This irregularity was not objected to at the earliest opportunity. The 1^st defendant did not object to paragraph 19 of the statement of claim. The appellants further submitted that the failure of the trial court to afford the parties opportunity to address it on the issue that it raised suo motu on what is “a mere procedural irregularity”, amounts to denial of their right to fair hearing.

They made a valid point. It is wrong for the court to raise an issue of fact suo motu and decide upon it, without giving parties an opportunity to be heard. This is so because the Court is bound by and, therefore, confined to the issues raised by the parties. Nevertheless, the aforesaid principle is not cast in stone. Authorities abound that says while the court has a duty to give the parties the opportunity to be heard on any issues it raises suo motu, the failure to do so, does not necessarily lead to a reversal of its decision. See Imah v. Okogbe (1993) 9 NWLR (Pt. 316) 159, wherein this court per Iguh, JSC, explained that It is wrong for a court to raise and decide an issue because it is material for the determination of the case or appeal before it, which has not been raised by parties to the case themselves, without giving the parties an opportunity of being heard on it. It is not, however, correct to state, as contended by the appellants that failure of the court to give such an opportunity to the parties always occasions a miscarriage of justice. Each case depends on its own merit. Therefore, it is not sufficient for the purpose of reversing a judgment merely to show that an error of law was committed by the trial court or the appellate court; the appellant must further demonstrate or show that the error of law in the case occasioned a miscarriage of justice. In other words, the error must have substantially affected the result of the decision. See also Effiom v. Cross River State Independent Electoral Commission (2010) 14 NWLR (Pt. 1213) 106, wherein this Court per Tabai, JSC, observed:

“While the court has a duty to give the parties the opportunity to be heard on any issue it raises suo motu, a failure to do so does not necessarily lead to a reversal of its decision. To warrant an appellate court’s reversal of the decision, the appellant must go further to show that the failure to hear him on the point occasioned some miscarriage of justice. This principle that the court ought not to raise an issue suo motu and decide upon it without hearing from the parties applies mainly to issues of fact. In some special circumstances, the court can raise an issue of law or jurisdiction suo motu and without hearing parties, decide upon it.”

In the more recent case of Dickson Ogunseinde Virya Farms Ltd. v. Societe Generale Bank (2018) LPELR-43710(SC); (2018) 9 NWLR (Pt. 1624) 230, Ogunbiyi, JSC, also observed that:

“The general principle is that the parties must be given an opportunity to be heard. However, authorities have shown that the failure to observe this principle would result into a misdirection, which will be overturned, only if there has been a substantive miscarriage of justice. An example is the case of Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387, where this Court held- “There is no doubt that the Court of Appeal committed a serious misdirection in the lead judgment when it inappropriately raised and considered new issues in the appeal before it. The question is: what is the effect of the misdirection, unless the misdirection is so grave as to have occasioned a miscarriage of justice, an Appeal Court will not ordinarily interfere with the decision of the lower court.”

Following from the foregoing authority, therefore, the question to pose in the matter herein is, was there a miscarriage of justice done to the appellants? The answer I hold is in the negative. This is predicated on the fact that ex facie and ab initio, the lower court never had the jurisdiction to either entertain/grant the applications brought by the appellants. The definition of “miscarry” includes “to fail to achieve the intended purpose.” See Merriam-Webster Dictionary. Therefore, the term “miscarriage of justice” is simply the failure of a court to do justice. As it is used in constitutional standard of reversible error in a judgment, “miscarriage of justice means a reasonable probability of more favourable outcome for the defendant.” See Larmie v. Data Processing Maintenance & Services Ltd. (2005) 18 NWLR (Pt.958) 438 SC.

Was there any miscarriage of justice done to the appellants in this case? My answer, based on what this court said in Effiom v.C.R.S.I.E.C. (supra), would be a resounding NO. This court made it clear in that case that the said principle applies mainly to issues of fact, and in some circumstances, the court can raise an issue of law or jurisdiction suo motu, without hearing the parties. In this case, the issue of whether the plaintiffs abandoned their reliefs, which the trial court raised and decided suo motu, had nothing to do with facts or the substance of the case. It was an issue of law that touched on jurisdiction.

In effect, the said issue raised suo motu by the trial court did not form the basis of its decision. Notwithstanding its observation regarding the reliefs claimed, the trial court did, in fact, determine the case as if all three reliefs sought in the writ of summons were before it. As it rightly noted, the injunctive reliefs were sought pending “the final determination of all the issues raised in the action”. They were not sought in perpetuity but pending the determination of the suit, and once judgment was delivered, the injunctive reliefs sought became spent. The appellants also contend that the two lower courts restricted their claim to the said declaratory relief, and ignored the issue they raised regarding nomination and selection of any person as Ranodu of Imota; and that the failure to pronounce on the said issue amounts to a breach of their right to fair hearing.

Once again, this line of argument must fall like a pack of cards because they claimed a declaration that it is their branch of Olugayan Royal Family that “is entitled to present a candidate to fill the vacant stool of Ranodu of Imota”, and they must establish that before questioning the “nomination and selection of any person as Ranodu of Imota”. So, the non-consideration of the said issue by the two lower courts, even if true, did not occasion a miscarriage of justice. So, they prayed for a declaratory judgment and a declaratory judgment, as Oputa, JSC, said in Odofin v. Ayoola (1984) NSCC (Vol. 15) 711; (1984) 1 SCNLR 372, is a form of judgment that is granted only in circumstances in which the court is of the opinion that the party seeking it, “is, when all facts are taken into consideration, fully entitled to the exercise of the court’s discretion in his favour”. See also Obi v. INEC (2007) 11 NWLR (Pt. 1046) 565 SC; (2007) LPELR-2166 (SC).

In this case, the trial court took all the facts into consideration, however, it was not swayed by anything the plaintiffs had to say, and it held as follows:

“The argument is that since no branches has been referred to in the declaration then there could not be a successful argument that the court has to declare any branch from a Ruling House as the one entitled to produce the person to fill the vacant Stool. I must say that I agree with this argument. Any consideration of which branch of the Ruling House is to provide the Ranodu, is an internal matter for the Family. If the family decides, as it would appear, they have done in the instant case, as shown in exhibit D10, Minutes of the Family Meeting of 8.6.93, that the candidate for appointment can come from any of the branches of the Family, so be it. The court can only take cognizance of the Registered Declaration, which is the Constitution for Imota Town on appointment of Ranodu. The meetings of the Family decided to forward the 6 applicants to the Kingmakers. The Kingmakers sat and considered the 6 names submitted. In their wisdom, all of them considered the 8th defendant to be the best for their town and they chose him on 21.6.93. According to the evidence of Kingmakers, who do not belong to the Family, and whom could reasonably be believed to be neutral and who could also be believed to be interested only in the well-being and progress in their town, they chose the 8th defendant. It is even believed that for all the Kingmakers to have casted their votes only for 8^th defendant then the large majority of the people of Imota must have given their support for the Oba elect. The 8^th defendant as required by section17(1)(d)(iii) must have had popular support. See the evidence of DW3. After all, from the evidence before the court, the 6th plaintiff did contest for the Stool some years ago against the Ranodu Oba Lawrence Oredoyin. It was testified that on that occasion, the 6^th plaintiff scored 3 votes while Oredoyin scored 4. The DW1 and DW2, who were then Kingmakers, testified that they voted for the 6th plaintiff then. I think that the 8th defendant, Mudashiru Bakare Agoro has been rightly selected and appointed the Ranodu of Imotaon 21.6.93 in accordance with Section 17(1)(d) Obas and Chiefs Law by the Kingmakers after casting their votes for him.”

This appeal is clearly marked DOA – Dead on Arrival; it cannot be revived or resuscitated because apart from their bare assertion that their branch of the Olugayan Ruling House is entitled to present the candidate for the said stool, they did not do what they must do to get this court to interfere with the exercise of discretion of the lower court, which is, certainly, an uphill task. To interfere, they must provide materials, which show a wrongful exercise of that discretion, such as where the lower court acted under a misconception of the law or under a misapplication of fact such that it is seen that the lower court gave weight to irrelevant or unproved matters or it omitted to take into account issues that are relevant or where it exercised or failed to exercise the discretion on wrong or insufficient materials; in which case, the appellate court will have to interfere.

The issue, as I said, is not whether the fourth respondent was rightly or wrongly nominated and selected to fill the vacant Stool of the Ranodu of Imota; the issue is whether the Olaribigbe branch or section of the Olugayan Family, had a legal right to present a candidate to fill the said Stool of Ranodu of Imota. Where is the evidence to support their claim that they had a legal right, so were entitled to present a candidate to fill the Stool when it became vacant? There is none; no legal document and no evidence showing it was agreed that appointment as Ranodu should rotate amongst branches of Olugayan Family. Taking into account the facts of this case, the trial court was right to hold that:

“Any consideration of which branch is to provide the Ranodu, is an internal matter for the family. If the Family decides that the candidate for appointment can come from any of the branches of the Family, so be it.”

Yes, so be it. The Family decided that six candidates from different branches of the Family, who indicated interest, should try their luck with the Kingmakers. The Kingmakers unanimously chose the fourth respondent, as Ranodu-Elect. The notion that the Olaribigbe branch of the said Family were “entitled” to present a candidate to fill the vacant Stool, remained a pipe-dream because, the appellants, who had the onus of proving it, failed to substantiate their claim. So, the Court of Appeal had a good reason to affirm the trial court’s decision and this court has no reason to interfere with the decision of the two lower courts. The end result is that this Appeal lacks merit, and it is hereby dismissed. The decision of the Court of Appeal is affirmed, and the appellants are ordered to pay cost of One Million Naira each to the third and fourth Respondent.

Appeal dismissed.

LIST OF COUNSEL:

Adenrele Adegborioye, Esq., with him, Phillipa Igwe, Esq. – for the Appellants.

E.R. Agu, Esq., Chief State Counsel, Ministry of Justice, Lagos State, with him, O.O. Ogunsanya, Esq., Principal State Counsel, Ministry of Justice, Lagos State – for the 2^nd Respondent

Olusegun Ogunbode, Esq. – for the 3^rd and 4^th Respondents.