ADENIYI & ORS V. OGUNMUYIWA & ORS (2017)

In The Court of Appeal of Nigeria

On Friday, the 19th day of May, 2017

CA/AK/38A/10

Before Their Lordships

UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria


Between

1. CHIEF MURAINA ADENIYI (THE ALASAN)
(for himself and on behalf of all the Ruling houses in Ila Orangun)
2. CHIEF J.A. AJITERU (OBAARO OF ILA)
3. CHIEF R.A. ADEDAPO (ELEMONA OF ILA)
(for themselves and on behalf of) –Appellants

AND

1. PRINCE ADEKUNLE ADEWAMIWA OGUNMUYIWA
2. GOVERNOR OF OSUN STATE
3. ATTORNEY GENERAL OF OSUN STATE
4. H.R.M. OBA ABDUL-WAHAB KAYODE OYEDOTUN (THE ORANGUN OF ILA) –Respondents

…………………….A…………………….

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Osun State High Court sitting at Ila Judicial Division and presided over by R.A. Siyanbola, J.

FACTS RELEVANT TO THE APPEAL
The 1st Respondent in 2004 filed a writ of summons and statement of claim challenging the approval of the appointment of the 4th Respondent, the Orangun of Ila given by the 2nd Respondent on the 22nd day of May, 2003.

In response, the defendants filed their respective statements of defence and raised therein points of law against the competence of the Plaintiff’s claim. As a follow up, the 2nd, 3rd and 4th Respondents filed a preliminary objection, which was argued but dismissed by the Court on the ground that the Plaintiff’s pleadings did not contain 22/5/03, the date of approval of the accrual of the cause of action, as only the Plaintiff’s statement of claim was to be reckoned with in the determination of the objection.

The Court had however found that the Affidavit in support of the preliminary objection to which the Plaintiff filed a counter-affidavit had the date of approval of appointment as 22-5-2003 and yet trial proceeded with all the parties testifying in proof of their respective pleadings.

At the close of evidence, parties filed and exchanged written addresses raising sundry issues including whether the action was statute barred under the Public Officers Protection Law of Osun State.
On the 16th day of April, 2010, the trial Court in its Judgment granted in part the Plaintiff’s claim by declaring the appointment of the 4th Respondent void and setting it aside. The Court also restrained the Ila Local Government Council from recognising the 4th Respondent herein as the Orangun of Ila, inspite the fact that the said Ila Local Government Council was not a party (as it had been struck out on the application of the Plaintiff/1st Respondent).
Dissatisfied with the portions of the Judgment declaring the 4th Respondent’s selection and appointment null and void, setting aside of the appointment for non compliance with the provisions of 1979 Chieftaincy Declaration on Orangun of Ila filed a Notice of Appeal containing 7 Grounds on the 27th April, 2010.
Pursuant to the said Grounds of Appeal, the Appellants herein as king makers, have filed the Appellants’ Amended Brief of Argument of 27/2/17 which was adopted at the hearing of this appeal on 23/4/17.
In the said Brief of Argument, the following six (6) Issues have been formulated for determination to wit;
(1) Whether the selection, appointment and the approval of the appointment of the 4th Respondent as the Orangun of Ila on 22/5/2003 contravened the native law and custom of Ila Orangun and the 1979 Orangun of Ila Chieftaincy Declaration. (Ground 1).
(2) Whether the findings that the Kingmakers were influenced by Ifa Consultation exercise which was unknown to the 1979 Orangun of Ila Chieftaincy Declaration was not perverse when the Kingmakers used their discretion to appoint the 4th Respondent as Orangun of Ila. (Ground 3).
(3) Whether the Learned Trial Judge could validly raise any issue suo motu and base his judgment thereon without affording the parties and their respective Counsel the opportunities of being heard as the Learned Trial Judge did on the issue of the purported non-voting by the Kingmakers and the purported bad faith of the 2nd and 3rd Respondents. (Ground 2).
(4) Whether the Learned Trial Judge could 
validly make an order to restrain Ila Local Government from recognising the 4th Respondent as the Orangun of Ila when the said Local Government was not a party to the case as at 16/4/2014 when the Lower Court delivered its judgment. (Ground 4).
(5) Whether the 1st Respondent’s Claim as the Plaintiff at the Lower Court was not Statute barred under Section 2(a) of the Public Officers Protection Law of Osun State and Public Officers Act of the Federation. (Grounds 5 and 6).
(6) Whether the judgment of the Lower Court can be sustained having regard to the pleadings, evidence led and issues raised before the Trial Court.

…………………….B…………………….

(Ground 7).
The 1st Respondent also filed 1st Respondent’s consequential Amended Brief of Argument on 9/3/17 and same was adopted at the hearing. The said Brief settled by Soji Oyetayo Esq. for his client in response to the Appellant’s Brief (one of the Defendants at the trial) posed 6 issues for determination. They are these:
1. Whether or not the selection, appointment and/or approval of the 4th Respondent as the Orangun of Ila on the 22nd day of May 2003 were done in accordance with the Chiefs Law of Osun State,Ila-Orangun Chieftaincy Declaration of 1959 and the Native Law and Custom of the Ila-Orangun.
2. Whether the learned trial Judge was right in his findings that the kingmakers were wrong in handpicking the 4th Respondent to emerge as the Orangun of Ila without following the due process of voting exercise as provided for under Section 15(1) (f) (ii) of the Chief Law of Osun State.
3. Whether having regard to the facts and evidence in this case, it can be validly said that the learned trial judge raised any issue suo motu in the judgment of the Court.
4. Whether there was any portion in the judgment of the trial Court where the trial judge allegedly restrained Ila Local Government as claimed by the Appellants.
5. Whether the selection, appointment and/or approval of the 4th Respondent was not statute barred and whether the Appellants could call in aid the provision of Section 2(a) of the Public Officer Protection Law in the circumstance of this case.
6. Whether having regard to the facts and circumstances of this case, the trial Court properly evaluated the evidence placed before it in setting aside the nomination, selection, 
appointment and/or approval of the 4th Respondent as the Orangun of Ila.
The 2nd and 3rd Respondents did not file any Brief of Argument and by their Learned Counsel conceded to the appeal as filed and urged that it be allowed.
On his part, the 4th Respondent by his Learned Counsel, Sikiru O. Adewoye, Esq. in Amended 4th Respondent’s Brief of Argument filed on 7/3/17 raised five (5) issues.
After all these briefs, the Appellant filed an Appellant Reply Brief to the 1st Respondent’s Brief on 14th March, 2017.
It is the Appellants’ appeal; therefore, I shall treat the appeal on the basis of the Appellants’ Issues as formulated, more so that a reading of the record of appeal, and in particular the Judgment and the Grounds of Appeal clearly brings all the issues formulated within the warm embrace of the Grounds of the Appeal and Judgment such that none of the issues can be said to be in-apposite.
I shall therefore kick start the summation of the arguments as proffered by the Appellant and tie the responses of the Respondents as appropriate, not withstanding that it may have been tagged distinctly as an issue by a different identity or number.
The Learned counsel for the Appellants, argued Issues (one) and two (2) together.
ISSUES NO. 1 AND 2:
1. Whether the selection, appointment and the approval of the appointment of the 4th Respondent as the Orangun of Ila on 22/5/2003 contravened the Native Law Custom of Ila Oragun and the 1979 Orangun of Ila Chieftaincy Declaration. (Ground 1).
2. Whether the findings that the Kingmakers were influenced by Ifa Consultation exercise which was unknown to the 1979 Orangun of Ila Chieftaincy Declaration was not perverse when the Kingmakers used their discretion to appoint the 4th Respondent as Orangun of Ila. (Ground 3).

Arguing the composite Issues 1 and 2, the Appellants Counsel noted that it was settled that the applicable and governing law on the selection and appointment of the Orangun are the Chiefs Law of Osun State and the 1979 Amended Orangun of Ila Chieftaincy Declaration of 1979. That the onus of proof of a case was on the Plaintiff who succeeds on the strength of his case and not on the weakness of the opponent’s case, except where the weakness of the Defence strengthens the Plaintiff’s case or supports the Plaintiff’s case. Ugoji V. Onukogu (2006) 15 WRN1 @ 18 – 19; (2006) 5 SCNJ 267 @ 278 and Ngene V. Egbo (2000) 14 NWLR (Pt.651) 131 @ 142 were relied upon in aid to contend, however, that the exceptions listed to the general proposition of the law aforestated was in applicable to this case on appeal.

…………………….C…………………….

Referring to Section 9 of the Chief’s Law of Osun State Cap 25 thus:
“Where a declaration in respect of a recognized chieftaincy is registered under this part, the matters therein stated …. shall be deemed to be the customary law or practice regulating the selection of a person to be holder of that chieftaincy to the exclusion of any other customary usage or Rule.”
It was argued that the 1st Respondent cannot therefore rely on any other customary law outside the provisions of the registered Orangun Ila Chieftaincy Declaration. The Learned Counsel referred to extracts of the Judgments in (1) Olanloye V. Fatunbi (1999) 8 NWLR (Pt. 624) 203 at 277 pars A – C; (2) Oba of Otan Aiyegbaju V. Adeshina(1999) 2 NWLR (Pt.590) 163 at 181 par C – D (3) Adewale V. Adesanya (2004) 12 NWLR (Pt. 887) 435 @ 441 and (4) Alomaja V. Adewale (2004) 15 NWLR (Pt. 897) 564 at 586.
Furthermore, Section 7(5) of the Chief’s Law of Osun State thus;
“Upon a declaration in respect of a chieftaincy being made by the Governor every Declaration made under this law or the repealed law relating to that chieftaincy that is not approved shall be void and of no effect.”
It was argued that the Chiefs Law of Osun State and the 1979 Chieftaincy Declaration on Orangun of Ila, as gazetted, are the basis of any cause of action on the stool of Orangun of Ila; It is the approval of the selection and or appointment of any candidate by the Osun State candidate that confers right of Orangun of Ila on any candidate so selected or appointed by the king members – so that any selection or appointment that is not so blessed with the Government’s approval remains hanging in the balance and ineffective, as the appointment of the Orangun of Ila is statutory.
That although the 1st Respondent claimed to have been the choice of the Ila Oracle as the best candidate to occupy the Orangun stool, he never canvassed that the kingmakers selected the 4th Defendant as the Orangun elect based on the outcome of the Ifa consultation exercise. That all the parties had agreed that Ifa Oracle was not consulted again when the government of Osun State directed that a fresh recommendation exercise be started. That it was the renewed exercise that led to the emergence of the 4th Defendant as the Orangun of Ila. That the certificate of Chieftaincy appointment dated 14/3/2003 issued and signed by the kingmakers forming part of Exhibit P5 did not disclose or suggest that the selection of the 4th Defendant/Respondent by the kingmakers was influenced by Ifa consultation exercise. That the kingmakers used their discretion, uninfluenced by any Ifa consultation.
That the 1st Respondent and the Appellants were all agreed that the 4th Respondent was/is a bonafide member of the Arutu Ruling House, the next Ruling House entitled to produce candidate(s) for the Orangun of Ila Chieftaincy after the demise of the late Orangun of Ila, Oba William Adetona Ayeni. That the 4th Defendant was one of the 12 candidates duly nominated by Arutu Ruling House at Arutu family meeting headed by Chief Alasan of Ila (the 3rd Defendant) at the Lower Court and the 1st Appellant in this appeal and presented to the Traditional kingmakers who in turn unanimously selected and appointed the 4th Respondent as the Orangun elect and forwarded his name to the Osun State Governor for final approval as the Orangun of Ila. That the 2nd and 3rd Respondents accepted and approved the selection and published same in the Gazette Exhibit D2.
That the selection, nomination, approval and appointment followed due process and in compliance with the Chiefs Law of Osun State and the 1979 Chieftaincy Declaration on the Orangun stool.
It was therefore urged that this Court should hold that the decision of the trial Court to the contrary was perverse and had occasioned miscarriage of justice and should be set aside.
That Issues 1 and 2 be resolved in favour of the Appellants herein. The 1st Respondent by their own issues 1 and 2 which are similar to the Appellants’ Issues 1 and 2 had in the main contended that with reference to Exhibits D1, D2, D3 and D4 after the selection of the 5th Respondent by the Appellants was nullified by the Osun State Government in its white paper, the process that led to the selection and appointment of the 4th Respondent, H.R.M Abdul-Wahab Kayode Oyedotun was not commenced afresh.

…………………….D…………………….

That there was no letter written to the Ila-Orangun Local Government to the effect that the Arutu Ruling House should meet and/or nominate candidate(s) to fill the vacancy. Secondly, that the kingmakers did not meet at any point in time to consider and elect among the candidates submitted to them, the Orangun of Ila elect. Thirdly, that the Awo-Onirins were never consulted as according to them, they declined to consult Ifa Oracle again as it would be a taboo to do so twice on the same issue.
It was contended that from Exhibit P6 at page 158 of the record thus:
“The mode of selection came up for discussion since the priests had earlier informed us that it was a taboo to consult Ifa Oloja twice, it was then decided that the record of the earlier exercise be revisited with a view to determining the best amongst the candidates.”
It was therefore contended that the Appellant was appointed based on the void actions of 1999 which the Commission of Enquiry had already held to be tainted with manipulation by the kingmakers. That the kingmakers, (Appellants) relied on the earlier process which the Commission of Enquiry had set aside. That one cannot put something on nothing. Mcfoy V U.A.C (1962) AC 152 @ 160. That starting afresh means starting from the beginning and not mid-way and that that was what the Appellants had done. That the nomination, selection appointment and approval of the 4th Respondent had not been done in compliance with the Chiefs Law of Osun State, Orangun of Ila Chieftaincy Declaration of 1979 and Native Law and Custom relating to the appointment of Orangun of Ila.
The other arm of the alleged non compliance argued relates to the alleged hand picking of the 4th Respondent which according to the Learned Counsel for the 4th Respondent, violated Section 15(1) (f)(ii) of the Chiefs Law of Osun State in that there was no voting done by the kingmakers before selecting the Orangun Ila. The Learned Counsel concedes by his paragraph 3.19 of his Brief of Argument though that “Whereas interestingly, the Orangun of Ila Chieftaincy Declaration of 1979 was passionately silent on the method or methods of choosing one candidate where more than a single candidate was nominated that the lacuna had been filled by the clear and unambiguous provision of Section 15(1) (f)(ii) of the Chiefs Law of Osun State which provides thus:-
If the names of more than one candidate are submitted who appear to the kingmakers to be qualified and not disqualified in accordance with Section 14, the names of those candidates shall be submitted to the vote of the kingmakers and the candidate who obtain the majority of votes of the kingmakers present and voting shall be acclaimed appointed.”

Curiously the 1st Respondent after contending that there was no proper voting to nominate the Best candidate; relied on the cases of Mafimisebi v. Ehuwa (2007) NSCQR 410, P.456 ratio 8 wherein the Supreme Court held thus:
It is now settled law that where a declaration in respect of a recognised chieftaincy is validly made and registered, the matter therein stated shall be deemed to be the customary law regulating the selection of a person to be the holder of the recognised chieftaincy to the exclusion of any other usage or Rule. That registered declaration is therefore a declaration of the traditional, customary law and usage pertaining to the selection and appointment of a particular chieftaincy stool which necessarily dispends (sic) with the need of proof by oral evidence of tradition, custom and usages each time the need arises to determine the matter. Alomaja V. Adewale (2004) 15 NWLR (Pt. 897) 564 at 586 as relied upon.”
We have been urged to resolve Issues 1 and 2 in favour of the 1st Respondent and to uphold the findings of the trial Court that the Chiefs Law and the 1979 Chieftaincy Declaration to the Orangun Stool were not complied with.
The 2nd and 3rd Respondents filed no Brief and aligned with the Appellants.
The Appellants, in an Amended Appellants Reply Brief to the 1st respondent’s consequential Amended Brief of Argument, dated and filed on the 14th of March 2017 and adopted on 23/3/17 at the hearing responded that the 1st Respondent was only embarking on red-herring when he complained on non compliance with the 1959 Orangun of Ila Chieftaincy Declaration as the said Declaration had been repealed by the 1979 Declaration, which was the extant one that had the Arutu Family included and under which the 4th Respondent was nominated, and that the repealed 1959 Declaration had only Okomo and Igbonnibi Ruling Houses.
It was also contended that the kingmakers nominated the 4th Respondent from the Arutu Ruling House, the entitled family House to produce the Orangun elect; and that the 4th respondent was one of those nominated and from that Ruling House; and that the kingmakers exercised their exclusive duty. Aliyu V. Ibrahim (1997) 2 NWLR (Pt. 489) 571; Amuda V. Adekodun (1997) 5 NWLR (Pt.506) 480 were relied on.

…………………….F…………………….

That the 1st Respondent did not challenge the nomination of the 4th Respondent and his presentation to the kingmakers; that his selection from the list presented to the kingmakers and the 1st Respondent’s claim predicated on the act of the Ifa oracle choosing him had no basis in the 1979 Declaration and the Chief’s Law of Osun State. It was contended that Chieftaincy Declaration settled the case and prevailed over any evidence of custom. Ogundare V. Ogunlowo (1997) 6 NWLR (Pt.509) 360; Ayoade V. Military Governor Ogun State (1993) 8 NWLR (Pt.309) III; (3) Adigun V. Attorney-General of Oyo State (1987) 1 NWLR (Pt. 53) 678 at 682.
That the 1st Respondent who had fought his case at the trial Court on the basis of the custom of Ifa consultation is turning summersault without leave of this Court to base his case on the breach of the 1979 Declaration. That it was wrong of the trial Court to have suo motu raised the issue of non-voting and that in any case, there was voting done, as the nomination of the 4th Respondent by one of the kingmakers, his secondment by another and unanimous appointment by the kingmakers from the list of candidates presented by the Arutu Ruling House made the issue of formal voting unnecessary as the kingmakers were deemed to have voted for him and for nobody else. We were urged to resolve these issues in favour of the Appellants.
RESOLUTION OF ISSUES ONE AND TWO
There is no doubt that the 1st Respondent alluded to the 1959 Declaration in the formulation of his issues, but made clear in the argument therein that it was the 1979 Declaration applicable. Appellant’s contention is of no moment in this regard. However; the Appellants are on a very weighty and firma terra when they argued that the entirety of the claim of the Plaintiff at the trial Court who is the 1st Respondent herein is regulated by the Chieftaincy Law of Osun State and the Declaration of 1979 relating to the Orangun of Ila Chieftaincy Declaration.
The said Chiefs Law provides at S.15 (1) (f) (ii) for a situation where more than one candidate if forwarded by an entitled Ruling house to the kingmakers. In that circumstance as earlier set out somewhere in this judgment, the kingmakers shall by their votes acclaim the person with the majority vote as the Orangun of Ila elect and shall present same to the Governor for his approval.
The overwhelming evidence at the trial Court is that that is what happened. The 1st Respondent contends that there was no voting and therefore there was no compliance with the Chiefs’ Law of Osun State, S.15 (1) (f) (ii)(supra).
He contended, however, that reliance was rather than to the void exercise of an Ifa Oracle consultation and the 4th Respondent picked therefrom that exercise as against the conduct of a fresh exercise as ordered by the Governor following the acceptance of a Commission of Inquiry report and the issuance of a white paper jettisoning an earlier exercise wherein a different person was recommended based on an Ifa Oracle choice as the best candidate as that candidate was said not to be qualified (as he was not a member of the Ruling House).
The choice of the 4th Respondent by an acclamation following the nomination from a list of candidates forwarded by the Arutu Ruling family and seconded and proclaimed as the best by the kingmakers was obviously an election conducted by them.
It did not matter anything that the 4th Respondent was on a list earlier presented to the Ifa Oracle for their vetting and choice of the best candidate as afterall, as the trial Court held – Consultation of the Ifa Oracle was not part of the Osun State Chiefs Law requirement or the Orangun of Ifa Chieftaincy Declaration of 1979. Whether there was a consultation of the Ifa Oracle or not and it was not done as it had insisted on its earlier stand that was jettisoned, the renewed exercise by the kingmakers, i.e. the Appellants herein was an exercise denovo, as it had departed from the earlier candidate forwarded to the Government and forwarded a new candidate from a list of those entitled and nominated by a meeting of a Ruling House from its members. The choice of one of them, the 4th Respondent herein by the fact of Nomination, secondment and acclamation was indeed an act of voting in law.
This was in full compliance with  S. 15 of the Chiefs Law of Osun State, applicable, as there was voting; There was no hand picking. The candidate was from an entitled Ruling House and was nominated from amongst the list forwarded by the Ruling House. SeeAliyu V. Ibrahim Amuda; Amuda V. Adelodun (supra).
The provision of the Chieftaincy Law of Osun State and the Orangun of Ila Chieftaincy Declaration of 1979 have been complied with. It is only those laws that govern the nomination, selection and appointment of an Orangun Ila of Ila Chieftaincy stool.
The strenuous and cookie or baked submission to the contrary does not hold, in the face of the overwhelming evidence at the trial Court as seen on the record and the applicable laws.
Issues 1 and 2 are resolved in favour of the Appellants.
ISSUE NUMBER THREE
Arguing this Issue:
Whether the learned trial Judge could validly raise any issue suo motu and base his judgment thereon without affording the parties and their respective Counsel the opportunities of being heard as the learned trial Judge did on the issue of the purported non-voting by the kingmakers and the purported bad faith of the 2nd and 3rd Respondents.

…………………….G…………………….

(Ground 2)
On this Issue, it was pointed out that the learned trial Judge had held (i) That the kingmakers did not vote in the selection of the Appellant as contemplated by the 1979 Chieftaincy Declaration, and (ii) that the Directive of the government to start the exercise de novo as contained in Exhibit P24 was not followed. (iii) That the 2nd and 3rd Respondents abused their offices and acted in bad faith in the appointment of the 4th Respondent as the Orangun of Ila. Referring to pages 503,504,506,507and 508 of the Record, the Learned Counsel contended that these issues came alive for the first time in the Judgment of the learned trial Judge. That, parties were not called upon to address on them prior to judgment and yet they were so adjudged in favour of the 1st Respondent. When they were not at all raised in any of the pleadings. That the Plaintiff’s statement of claim of 30 paragraphs filed on 4/10/04 and on pages 2 , 5 and 256 – 259 of the record. The Appellants joint statement of Defence are clear.
That the 1st Respondent had not also specifically pleaded that the 2nd and 3rd Respondent abused their office and acted in bad faith.That the starting Denovo as the Directive of the Osun State Government on the appointment exercise of the Orangun was not part of the contention between the parties and urged that parties are bound by their pleadings and case brought before the Court.
Commissioner for Works, Benue V. Dev. Com. Ltd (1988) 3 NWLR (Pt.83) P. 420, Par. B. It was argued that although the Court has inherent power to raise any issue suo motu before and during the proceedings of the Court but no Court can do this without affording parties to proceedings the right to address it on the issues raised.
Learned Counsel proceeded to argue that ever then, for a party to rely on defence of abuse or bad faith the fact must be clearly and specifically pleaded before the Court and such a party must adduce credible evidence in proof thereof. That, that was not done but raised for the Plaintiff at the Judgment stage.
It was also argue that a Court is not competent to suo motu make a case for either party or both of the parties and then suo motu proceed to give judgment in the case so formulated contrary to the case of the Plaintiff. See State v. Oladimeji (2003) 7 SC 108 @ 112.
That the duty of the Court is to confine to the case of the parties and not to open up new battle grounds for them. Irom V. Okimba (1998) 2 SCNJ P1 at 5 – 6 referred to.
The Learned Counsel submitted that the conclusion by the Lower Court that the 2nd and 3rd respondents that filed application based on statute of limitation could not succeed because they acted in bad faith and that denied to them the protection of the Public Officers Protection Act, was a new ground opened by the Lower Court suo motu as the 1st Respondent neither pleaded it nor gave evidence to establish bad faith or abuse of office.
The Appellant’s did not have the opportunity to address the Court and so also the 2nd and 3rd Respondents as they became aware of that defence for the first time in the judgment of the trial Court. That the procedure adopted had occasioned substantial miscarriage of justice to the Appellants as the decision would have been otherwise if the Appellants had been allowed to address the Court.
That it was not part of the duties of a Court to decide issues not raised by the parties. See Ibrahim Ohida V. Military Administrator Kogi State (2000) 12 NWLR (Pt.680) P. 43 par. A.; Unokan Enterprises Ltd V. Omuvwie (2005) 23 WRN P.178 lines 15 – 80; B.B.B.I v. D. Stephens Industry Ltd (1992) 2 NWLR (Pt. 232).

That it should be resolved that the trial Court had unduly and unfavourably raised suo motu and decided an issue(s) against the Appellant and that its decision be set aside.
Reacting to this argument, the 1st respondent had argued that by paragraph 30 of the statement of claim, it had been averred thus:-
The Plaintiff will contend that the purported selection and appointment of the 1st Defendant was arbitrary, irrational and in violation of native law and custom relating to and concerning the selection and appointment of an Orangun of Ila elect.”
31 (vi) Declaration that the purported selection and appointment by the traditional kingmakers and purported approval by the 1st Defendant of the 11th Defendant as the Orangun of Ila are fraudulent, null and void and of no effect whatsoever.
(viii) An Order of this Honourable Court setting aside the purported selection, appointment and approval of the 11th Defendant as the Orangun of Ila.
(ix) An Order restraining the 1st – 
10th Defendants and the 12th Defendant from recognizing or further recognizing the 11th Defendant as the Orangun of Ila.”

…………………….H…………………….

It was also contended that the nomination and appointment of the first Respondent was challenged on the basis of the breach of custom and Native Laws in the process leading to the appointment and that the relevant laws governing are the 1979, Ila Orangun Chieftaincy Declaration a subsidiary Legislation and the Chiefs Law of Osun State (Cap. 25) Laws of Osun State, 2003. The learned Counsel also contended that it is trite that a party should plead facts and not law or the evidence by which facts are to be proved and calls in aid the case of FCD V. Naibi(1990) 3 NWLR 27; Afewole V. Adesanoye (2004) 12 NWLR (Pt. 887) P. 435 @ 456 par. E – F.
It was contended that the issue of voting also arose from the proven breach of the Native law and custom as embodied in the 1979 Chieftaincy Declaration which must be examined in the light of the Chiefs Law and not raised suo motu by the trial judge; That this was more so in the face of Exhibit P24 pleaded and tendered by the 1st Respondent. That the Court had a power and duty to look at document in its record and use them in the interest of justice. M. A. A. Wellinoton V. Registered Trustees of the Ijebu-Ode Goodwill Society (2000) 3 NWLR (Pt.647) Pg. 130 at 133.

That Issue 3 be resolved in favour of the 3rd Respondent. The 4th Respondent filed no Brief and agrees with the Appellants.
RESOLUTION OF ISSUE 3
There is no doubt that the law is as submitted by the Learned Counsel for the Appellants on the raising of an issue suo motu without availing the parties and/or their Counsel to address the Court thereon. If it is done, it amounts to a breach of the right of fair hearing to the party or parties depending on who is prejudiced thereby.
In FRN V. Nwosu (2016) 17 NWLR (Pt. 69 , 336) Pg. 226 -287, it was held thus:-
“The Supreme Court remains the country’s apex Court from which fountain all Courts and authorities, by virtue of Section 287 of the 1999 Constitution, necessarily drink. The Supreme Court has remained consistent on the necessity on the part of a Court that raises an issue suo motu to hear the parties before determining the issue.”
Agreed that a jurisdictional issue may be raised at any time and requires no leave of Court. Once raised even by the Court on its own, however, parties must be heard before determination by the Court. It is not that the Court is bereft of the power to raise the issue itself. What Section 36 of the 1999 Constitution disentitles the Court is to determine the issue without hearing the parties as the Court of trial did in the instant case. Thus, the Court resolution of an issue raised suo motu and without having heard the Appellant stands in breach of the Appellant’s right under Section 36 of the 1999 Constitution. The Court was without jurisdiction to proceed on the fruitless exercise. As such, such an exercise, being a travesty of justice must be vacated, Irom v. Okimba (1998) 3 NWLR (Pt.540) 19; Oje V. Babalola (1991) 4 NWLR (Pt. 185) 267; Katto V. CBN (1999) 6 NWLR (Pt.607) 390.
There is no doubt that the 1st Respondent as Plaintiff pleaded non compliance or violation of the native law and Custom governing the selection, nomination and appointment of the Orangun of Ila.
The said customary law on the authorities is as consolidated and found in the state and the Chiefs Law 1979 Declaration on the Orangun of Ila Chieftaincy of Osun State.

The 1st Respondent is therefore right in arguing that the pleading of facts and evidence led together with Exhibit P24 has brought to the fore the applicability of those statutory instruments relevant and applicable, thus making their invocation by the trial Court right; and that it cannot be said to have been raised suo motu. As to the issues of non-voting, bad faith and fraud: As for this part of argument, I do not agree. I differ, with respect, the invocation of the legislations relevant would have to be interpreted in the face of evidence led and address thereon.

There was in this case at the trial, no pleadings relating to the particulars of fraud or bad faith as by the Evidence Act, enjoined. See also Otukpo V. Johnson (2008) 8 NWLR (Pt.669) 504 at 520 par E and Order 15 Rule 7(2) High Court (Osun State) Amended Civil Procedure Rules, 2008.

What is more, the plaintiff/1st Respondent did not aver at the trial Court that there was no voting. Rather, it was his case that the nomination/selection and appointment was fraudulent and in bad faith.

There was no evidence of bad faith or malice led. Bad faith or malice is a matter specifically within the knowledge of he that asserts; it is such a person that has the onus of proof. There is breach of fair hearing of the parties, and in particular the Appellants herein who have been damnified by the findings prematurely and prejudicially made.

…………………….I…………………….

This is more so that the evidence led showed voting as earlier on resolved, as the variants of voting are diverse and the type/module embarked upon, also constitutes an act of “Voting” in law. There was no fraud or bad faith proved. The determination of the Civil rights and obligations of the Appellants suffered a breach of S. 36 of the 1999 Constitution, therefore.
Issue 3 is resolved in favour of the Appellants and against the 1st respondent.
The Appellants had also raised and argued in its Issue No. 4 the question whether it was not wrong for the trial Court to make an order of injunction against the Orangun Ila Local Government when it was not a party at the proceedings at the time of Judgment. Without much ado and without embarklng on waste of scarce judicial time, I decline to go on an academic frolic as the Orangun Ila local Government is not a party as it had been withdrawn and struck out at the trial and before judgment. It is also not a party in this appeal. By what authority is the appellant raising this Issue? A busy body?
Issue 4 is discountenance as an academic frolic; this is inspite the fact that the arguments are germane for real life situations. See INEC V. Izuogu (1993) 3 NWLR (Pt.275) 270 at 295. Nonetheless, as 1st Respondent argued, there was no such order resolved against Appellants.
On issue 5, it was contended that the Plaintiff/1st Respondent’s action was statute barred under the Osun State, Public Officers Protection Law as the suit was not commenced within 3 months of the incident complained of. That Exhibit D2 – the Gazettee of the Government approving the appointment showed the approval date to be 22nd March, 2003; and the suit commenced on 27/9/2004 – a period of over 16 months from the date of the cause of action.
What is more, it is contended that an action in breach of the statute of limitations is one that affects the jurisdiction of the Court.
The Learned Counsel observed that the trial Court itself had conceded that the jurisdiction of the Court had been impeached by the statute of limitation, applicable. Learned Counsel contended that the issue of jurisdiction could be raised at any stage of a case depending on the materials available such as (1) The statement of claim; (2) On the basis of evidence received;
(3) By motion supported by Affidavit giving the full facts upon which relevance is placed.
(d) On the face of the Writ of Summons where appropriate as to the capacity in which the action is brought, or against whom the action is brought. See NDIC V. CBN (2002) 7 NWLR (Pt. 766) 296 pars B – F. It is contended thatSection 176 and 196 of the Constitution of the Federal Republic of Nigeria 1999 as Amended create the offices of the Governor and Attorney-General of a State Respectively and those are Public Officers as defined in paragraph 19, pt. 1 of the Fifth Schedule as persons holding any of the offices specified in Part II of the Fifth Schedule and Paragraphs 4 and 6 thereof, list the Governor and Attorney General respectively as Public officers.
Shitta-Bey V. A.G. Federation (1988) 10 NWLR (Pt.570) 392 @ 416; Abubakar V. Governor of Gombe State (2002) 17 NWLR (Pt.717) 532 at 560.
Submits that the Governor is a public servant in the public service of the State in his capacity as Governor in the Government of Osun State; and so also is the Attorney-General. Submitted on the cases ofWoherem V. Emerenwa (2004) 4 NWLR (Pt.890) 398 @ 415; Administrator, Osun State (1998) 4 WLR (Pt.547) 624 @ 637; Ibrahim V. Judicial Service Commission (1998) 14 NWLR (Pt.548) 1 @ 32; Central Bank of Nigeria V. U.I.J. Ukpong (2006) 13 NWLR (Pt.998) 555 @ 568, 573  574; Egbe V. Adefarasin (1987) 1 NWLR (Pt.308) 637; Elabanjo & Anor V. Dawodu (2006) 6 – 7 SC 24 @ 77 that the action was statute barred and no longer maintainable as the cause of action had been extinguished by effluxion of time.
Responding, the 1st Respondent’s Counsel argues that there was no time frame within which the 1st Respondent could sue in respect of the performance of the duties of the Appellants. Furthermore, that the 2nd and 3rd respondents were misled by the 1st Appellant. That the 2nd and 3rd Respondents acted in bad faith by approving the recommendation of the Appellants against its earlier directive, as it had directed earlier that the nomination and selection exercise should start afresh. That a public officer is only protected by the Act, where the act complained of is done in good faith and in the execution of his duty. SeeIGP V. Olatunji 2 Nigeria Law Report (NLR) 52.

…………………….J…………………….

On the whole, that the 1st Respondent could institute the suit any time he became aware of the wrong doing, just as he has now done; furthermore the 2nd and 3rd Respondent not performing their duties as enjoined by the Chiefs law Exh. D2 and the Orangun of Ila Chieftaincy Declaration of 1979 Exh. D1, the Public Officers Protection Law was unavailing. That the findings of facts as made at the trial Court be affirmed, on the authority of Ideozu V. Ochoma (2006) 4 NWLR (Pt. 970) Pg. 364 @ 295 par. G – A.
The 4th Respondent responding on this issue vide his 1st issue submitted that the action was surely statute barred at the trial Court, as the main claim or principal relief relates to the action (approval) of the 2nd and 3rd respondents which constituted the cause of action, warranting the suit.
RESOLUTION OF ISSUE 5
There is no doubt that the 1st Respondent claimed against many defendants at the trial Court and for sundry reliefs.As submitted by the 4th Respondent Relief number 6, to wit
“Declaration that the purported selection and appointment by the Traditional kingmakers and the purported approval by the 1st Defendant of the 11th Defendant as the Orangun of Ila are fraudulent, null and void and of no effect whatsoever” Is the foundational relief; in other words, it is the principal relief from where others derive their validity, as it is the Chiefs Law of Osun State and the Chieftaincy declaration on Orangun of Ila as gazetted on 22/5/2003 that is the fon est origo of any cause of action on the stool of Orangun of Ila. It is the approval of the selection and/or of any candidate by the Osun State Government that confers right of Orangun of Ila to any candidate so selected or appointed by the kingmakers so that any selection or appointment that is not so blessed remains hanging and ineffective, as submitted by the 4th Respondent’s Learned Counsel. The appointment is statutory.
By the Plaintiff’s claim and reliefs (i), (ii) (iii), (iv), (v), (vi), (vii) and (ix), acts in violation of the 1979 Chieftaincy Declaration are been challenged and not having brought the action within 3 months, it is statute barred.
The Plaintiff/1st Respondent could not have instituted any action based on Ifa Oracle Divination in the absence of the Chieftaincy law or Declaration, as no cause of action would have arisen since there could not have been a cause of action and more so that it is tied to the main claim, which had become statute barred, the entire suit must be struck out for want of jurisdiction or dismissed for being statute barred.
It is a pure question of law as a jurisdictional question which ought to have been resolved in favour of the Defendants/Appellants at the trial. The suit ought to have been dismissed or struck out for want of jurisdiction of the Court and against the 1st Respondent/plaintiff. It is so resolved and ordered.
ISSUE SIX
Whether having regard to the fact and circumstance of this case, the trial Court properly evaluated the evidence placed before it in setting aside the nomination, selection, appointment and/or approval of the 4th Respondent as the Orangun Ila.
Relying on Mogaji V. Ogofin (1978) 4 SC 91 at 93, the Appellants submitted that placing the evidence led on the imaginary scale of Justice, the case of the Plaintiff/1st Respondent was outweighed by these Appellants’ and the other Respondents’ including the 4th Respondent’s case. That the plaintiff did not prove his case as his case was conflicting in the pleadings and evidence led. That the native law and custom of a particular community as enacted in a statutory form becomes the law applicable and no other oral evidence. It shall be the law binding as it sets out the method and regulating the nomination, selection of a person to fill the vacancy in the Chieftaincy of the area with a view to avoiding uncertainty in the matter. Owoyemi v. Adekoya (1998) 8 NWLR (Pt.560) P.70 @ 75 pars. A – C. That the Plaintiff/1st Respondent did not make non compliance with the relevant Chieftaincy declaration 1979 an issue in his pleadings and the Court cannot go outside the pleadings.

…………………….K…………………….

That the Court having rightly held that the Ifa Oracle consultation was not part of the 1979 Chieftaincy Declaration cannot approbate and reprobate by holding it had an important role to play. The 1st Respondent’s case was fought on a platform that it could not have succeeded as the Declaration was extant. The findings of the trial Court was perverse the evidence and law.
RESOLUTION.
It may be tritely settled that an action that is statute barred does not exist for any further act of evaluation of evidence. SeeAlhaji Ado Ibrahim V. Alhaji Maigida U. Lawal & 5 Ors (2015) All FWLR (Pt.799) 990 @ 1012 – 1013where non public servants successfully raised it and were held not to be busy bodies. However, an intermediate Court should, except where it resolved that it has no jurisdiction, nonetheless proceed to determine all the issues raised and argued as that will afford the apex Court the opportunity of a review and to avoid sending the case back for hearing on the merit, where it finds that the Court indeed has jurisdiction to determine the matter.
It is for the aforesaid reason that I have considered this ultimate Issue No.6 and on the merit and find that the Plaintiff/1st Respondent had not proved his claim at the trial Court. The learned trial judge had held that the Ifa Oracle consultation was not part of the Chieftaincy Declaration and non-consultation did not influence, the Judgment of the Court.
There is no appeal against that finding of fact. The law is that in the absence of any appeal against a finding of a trial Court, such finding is valid and remains rightly or regrettably even if wrongly, made on the parties and therefore binding on them. See Uwanzurike v. Nwachukwu(2013) 3 NWLR (Pt.1342) 503 see also Abubakar V. Bababeji Oil & Allied Products Ltd . (2007) 8 NWLR (Pt.1066) 319.
The 1st Respondent should, therefore, do well to leave that aspect of his complaint; i.e. the cornerstone of his case at the trial Court to lie and rest in the perfect peace of judicial internment as made judicially and judiciously at the trial Court. See IGP V. Ikpila (2016) 9 NWLR Pt.1517, pg 236 at 393 par E – F per Georgewill, JCA (27/6/16).
It is therefore, clear that the trial Court did not exercise the required refrain, when it oscillated and suo motu racked up interpretations and suppositions to find for the plaintiff/1st Respondent, based on purported and alleged violation of unseen laws said to be anchored on Ifa Oracle divination.
In Nigeria Air Force V. Shekete (2002) 18 NWLR (Pt.188) 129 at P.151 pars. F- G Tobi, JSC aptly observed thus:
“The litigation is for the parties and not the Court. Therefore the Court has no jurisdiction to extend or expand the boundaries of the litigation beyond what the parties have indicated to it. In other words the Court has no jurisdiction to set up a different or new case for the parties.”
The 1st respondent did not prove his claim and the Court suo motu set out a case for him and determined same. Issue six (6) is resolved in favour of the Appellants.
With the resolution of all the issues in favour of the Appellants, this appeal succeeds and is accordingly allowed.
Accordingly, the Judgment of Hon. Justice R. A. Shiyanbola delivered on 16th April, 2010 in Suit No. in Suit No. HLR/4/2004 between the parties in this appeal is set aside and quashed.
Costs:- There shall be no costs.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Mohammed Ambi-Usi Danjuma, JCA. The Appellant in their Issue 3 argued that the learned trial Judge raised an issue suo motu, i.e. raised a defence to Public Officers Protection Act that the 2nd and 3rd Respondents acted in bad faith and therefore cannot raise the protection of Public Officers Protection Act.
The Appellants argued that it was not pleaded and the parties never joined issues on this defence raised suo motu by the Court.
It is not unusual for a Court to raise an issue suo motu but the Court is also mandated to inform the parties. The parties are thereafter expected to address the Court on such an issue before the Court can decide on such an issue.
This issue is a question of fact and does not fall under the category that a Court can decide on without reference to parties for their input.
In peculiar cases of jurisdiction, the Court can decide whether it has jurisdiction without referring to the parties. See Gbagbarigha v. Toruemu (2013) 6 NWLR (Pt.1350) pg. 298 where Rhodes-Vivour JSC held that there are situations that there would be no need to call the parties to address the Court further on an issue raised suo motu by the Court. These situations are:
(1) when the issue relates to the Courts own jurisdiction
(2) when both parties are not aware of or ignored a statute which may have a bearing on the case or
(3) when on the face of the record, serious questions of fairness of the proceedings is in evidence.
Comptoir Commercial & Ind. S.P.R. Ltd. vs. OGSWC (2002) 9 NWLR (Pt.773) pg.629, Kolawole vs. A. G. Oyo State (2006) 3 NWLR (Pt.966) pg.50, Ezeanya vs. Okeke (1995) 7 NWLR (Pt.405) pg.26, Ojukwu vs. Yar-Adua (2009) 12 NWLR (Pt.1154) pg.50, Oyewole vs. Akande (2009) 15 NWLR (Pt.163) pg.119.
For this and all the very comprehensive reasoning in the lead judgment, I allow this appeal. I abide by all the other orders contained therein and adopt them as mine.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have read in draft the lead judgment just delivered by my learned brother, MOHAMMED AMBI-USI. DANJUMA, JCA. My learned brother has exhaustively considered and resolved the pertinent issues raised for determination in this appeal. I am in complete agreement with his lordship’s reasoning and conclusions. I have nothing to add. I agree that the appeal should be allowed and I too, hereby allow it. Consequently, I abide by the consequential orders made in the lead judgment.
Appearances

K. O. Ijatuyi with him, G. A. Adesina, G. Fasasi (Mrs.) and R. Abimbola (Miss.) –For Appellant

AND

S. Oyetayo for the 1st Respondent
J. Obisakin (D.L.A.S, Osun State Ministry of Justice) for the 2nd & 3rd Respondents.
S. Adewoye with him, M. A. Fadunmoye for the 4th Respondent.-For Respondent

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