ADEYEMO & ORS v. ABEFE & ORS

………………………A…………………….

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Ruling of the Kwara State High Court of Justice sitting in Ilorin delivered on the 14th day of October 2016 by Hon. Justice S. M. Akanbi.

The Appellants who were Claimants at the trial Court instituted an action against the Respondents vide a Writ of Summons and Statement of Claim on the 21st Day of May 2015 praying for the following reliefs:
i. A declaration that the only recognized and existing Ruling house in Igboidun is the Onidun Ruling house.
ii. A declaration that the appointment and approval of the 1st Defendant by the 2nd, 3rd and 4th Defendants as the Onidun of Igboidun is wrongful, unlawful, against Igboidun native law and custom of appointing Onidun of Igboidun and therefore null, void and of no effect whatsoever.
iii. A declaration that the nomination and appointment of HRH Oba Yinusa Adebayo Adeyemo Oyedepo III by the Igboidun Kingmakers and Igboidun Community is proper, and in accordance with native law and custom of Igboidun community.
iv. A declaration that having being recommended by the Igboidun Kingmakers and Igboidun community, the 1st Claimant, HRH Oba Yinusa Adebayo Adeyemo Oyedepo III is the person entitled to approval by the 2nd to 4th Defendants as the Onidun of Igboidun.
v. An order compelling the 2nd to 4th Defendants to approve and accept the appointment nomination of the 1st Claimant as the substantive Onidun of Igboidun having performed the public traditional rituals of selection by the community.
vi. An order of perpetual injunction restraining the 1st Defendant from parading himself as Onidun of Igboidun and performing any functions or benefits from any person howsoever or whatsoever of the Onidun of Igboidun.
vii. An interim order of this honourable Court restraining the 2nd to 4th Defendants from treating or according to the 1st Defendant any benefits or functions of Onidun of Igboidun.

Upon being served with the Appellants Claimants Writ of Summons, Statement of Claim and other accompanied Court processes the 1st Respondent Defendant filed his Statement of Defence. The 2nd Respondent Defendant entered a conditional appearance. The 1st and 2nd Respondents Defendants as well as the 3rd and 4th Respondents Defendants filed separate Notices of Preliminary Objection praying that the Appellants Claimants Suit is incompetent having not complied with the provisions of the necessary laws/bye laws that the 4th Respondent Defendant is a Local Government which is statutorily required to be served a pre -action Notice and that the failure of the Appellants Claimants to give a pre action Notice to the 4th Respondent Defendant as statutorily required amounts to a non-compliance with a condition precedent in breach of Section 88(1) and (2) Part XI of the Local Government (Miscellaneous) Law Cap. L8 Laws of Kwara State 2006. And that the jurisdiction of the trial Court can only be invoked when all the required steps have been taken and/or compiled with by a party, who approaches the Court for redress.
On the Preliminary Objection by the two sets of Respondents Defendants, the learned trial Judge held at Pages 252 to 253 of the Record of Appeal as follows:
First,
It is my view that this action is incompetent for non-compliance with Section 88 (1) and (2) part XI of the Local Government (Miscellaneous) Law Cap L.8 Laws of Kwara State.
See: ALHAJI ISOHO DAN AMALE VS. SOKOTO LOCAL GOVERNMENT AND 2 OTHERS (2012) 1-2 MJSC P.1--
Second,
Having failed to comply with the necessary law or statute, this action is incompetent where a statement (Sic) statute provides a legal line of action for determining an issue whether administration (Sic) or chieftaincy matter, the aggrieved party must exhaust all remedies in that law before going to Court. See: CHIEF ISREAL ARIBISALA & OTHERS VS. JOLABI OGUNYEMI & 2 OTHERS (2005) ALL FWLR PAGE 451, OWOSENI VS. FALOYE (2005) 14 NWLR (PART 946) PAGE 719.
Besides, Chieftaincy disputes make provision for settlement or resolution before the institution of action, the breath of which touches on jurisdiction. The Court could only come in after all the steps have been taken. Again this is incompetent and is struck out.
Dissatisfied with the decision/Ruling the Appellants filed a Notice of Appeal containing three (3) Grounds of Appeal into this Court on 05/01/2017.
The relevant Briefs of Argument for the Appeal are as follows:
1. Appellants’ Brief of Argument dated 25/07/2017 and filed on the same day but deemed filed on 09/05/2018. It is settled by B. A. Oladipo, Esq.
2. 1st and 2nd Respondents/ Brief of Argument dated 27/11/2017 and filed on 29/11/2017 but deemed filed on 09/05/2018. It is settled by S. A. Bamidele, Esq.
3. 3rd and 4th Respondents’ Brief of Argument dated 20/02/2018 and filed on 08/03/2018 but deemed filed on 09/05/2018. It is settled by T. A. Hammed, Esq.
4. Appellants’ Reply Brief of Argument to the 1st and 2nd Respondents dated 22/01/2018 and filed on 24/01/2018 but deemed filed on 09/ 05/2018. It is settled by B. A. Oladipo, Esq.
5. Appellants’ Reply Brief of Argument to the 3rd and 4th Respondents dated and filed on 21/03/2018 but deemed filed on 09/05/2018. It is settled by T. A. Gidado, Esq.

………………………B…………………….

Learned Counsel for the Appellants nominated three (3) Issues for the determination of the Appeal. They are:
I. Whether in the peculiar circumstance of this case, the trial Judge was not wrong in striking out the Appellants’ suit in its entirety having held that conditions contained in statute is for the benefit of a person mention in the statute and it can be waived (Ground 1)
II. Whether the trial Court was right in holding that the Appellant did not exhaust the settlement or resolution clause, when there is no statutory provision of such nor is there any evidence of such in the Native Law & Custom applicable in the substantive Native Law and Custom of the parties. (Ground 2)
III. Whether the trial judge was right in holding that the provision relating to the Pre-action Notice cannot be waived, by the benefiting parties particularly in chieftaincy matter being a public right and that the filing of unconditional appearance by the 4th Appellant do not amount to a waiver. (Ground 3)
Learned Counsel for the 1st and 2nd Respondents also formulated three (3) Issues for the determination of the Appeal. They are:
I. Whether the learned trial Judge was not right in striking out the Appellants’ suit in its entirety having failed to serve pre action notice on the 4th Defendant (now 4th Respondent) which is a condition precedent to the nature of the Appellants’ case. (Ground 1)
II. Whether from the circumstances of this case, it could be said that the 3rd and 4th Respondents waived their right on failure to serve them pre action notice (Ground 3)
III. Whether the trial Court was not right in holding that the Appellants did not exhaust the settlement or resolution clause as it is mandatory condition precedent before the Appellants can approach the Court (Ground 2).
Learned Counsel for the 3rd and 4th Respondents on the other hand formulated only two Issues for the determination of the Appeal. They are:
I. Whether the learned trial Judge was right in striking out the Appellant suit having failed to comply with the extant law that required them to serve pre-action notice on the 4th Respondent (Grounds 1 & 3).
II. Whether from the circumstances of this case, the 3rd and 4th Respondents have waived their right on failure to serve them pre action notice (Ground 2).
I have carefully gone through the Record of Appeal and the processes filed by the parties in this case. I am convinced that the following Three (3) Issues which are modifications of the Issues formulated by the Appellants and/or admixture of the Issues formulated by the parties would meet the Justice of this Appeal. They are:
1. Whether the learned trial Judge was right in striking out the Appellants case in its entirety for failure to serve pre-action notice on the 4th Respondent. (Ground One)
2. Whether from the circumstances of the case the 3rd and 4th Respondents waived their right on failure to serve them pre-action notice (Ground Three).
3. Whether the trial Court was right in holding that the Appellant did not exhaust the settlement or resolution clause, when there is no statutory provision of such nor is there any evidence of such in the Native Law and custom applicable in the substantive law and custom of the parties (Ground Two)
In considering the above three (3) Issues, the submissions of the Appellants will be placed on one side of the scale of Justice while the submissions of the two sets of Respondents that is the 1st and 2nd Respondents and the 3rd and 4th Respondents shall be treated in one piece as the submissions of the Respondents. This is for the reason of the shared common interest between the two sets of Respondents and also for convenience of treatment of issues.
On Issue One, learned Counsel for the Appellants submitted that the learned trial Judge was wrong in striking out the Appellants Suit in its entirety having previously held that conditions contained in statutes is for the benefit of a person in the statute and it can be waived.
He referred to the case of: MOBIL PRODUCING NIG. UNLTD VS. LASEPA (2003) FWLR (Pt. 137) 1029 at 1054 and submitted that the learned trial Judge departed from the correct position of law by striking out the Suit in its entirety, for failure to serve pre-action notice, in compliance with Section 88 (1) and (2) of the Kwara State Local Government Law Part XI Cap L8 Laws of Kwara State 2006.
He submitted that the lack of service of pre-action notice has nothing to do with the Appellant’s cause of action because it is not a substantive requirement but rather a procedural requirement in which a party who is to benefit from the requirement is entitled.
Appellants’ Counsel referred to the case of EZE VS. OKECHUKWU (2003) FWLR (PT. 140) PAGE 1710 at PAGES 1727- 1728 and emphasized that non compliance with the requirement of pre -action notice cannot/does not abrogate the Appellants right to approach the Court or defeat their cause of action, so far the subject matter falls within the jurisdiction of the Court.
At best, said Counsel, the trial Court may abate the proceeding as against the 4th Respondent pending compliance to pre-action notice.

………………………C…………………….

He submitted that the abatement of the proceedings against the 4th Respondent will not substantially affect the claim of the Appellant.
He referred to the case of: XINET SINGAPORE LTD. VS. M.S.L. (NIG) LTD (2014) ALL FWLR (PT. 715) 305 at 330 and submitted that as long as the Appellants Claimant cause of action subsists, the non service of pre-action notice on the 4th Respondent cannot defeat or abrogate the right of the Appellant to approach the Court.
He referred to the cases of:
AKINSETE VS. KILADEJO (2013) ALL FWLR (PT. 707) 726 at 737-738;
OJUKWU VS. YAR’ADUA (2009) ALL FWLR (PT. 482) PAGE 1065; and MOBIL PRODUCING NIG. UNLTD VS. LASEPA (2003)Â FWLR (PT. 137) 1029 at 1054.
on the meaning of cause of action and submitted that from the claim of the Appellants as endorsed on their Statement of Claim and all the averment therein, allegations were shown from the face of it that a real issue or serious issues exist that were capable of leading to the grant of a relief sought by the Appellants.
He reiterated that the Provision of Section 88 (1) and (2) of the Local Government (Miscellaneous provisions) Law Cap L8 Part XI of the Laws of Kwara State 2006 only cater for and is limited to the 4th Respondent (Offa Local Government Council) and the rest Respondents cannot say that they are not subjected to the jurisdiction of the Court.
He reproduced the said provision and submitted relying on the case of A-G, KWARA STATE VS. ADEYEMO (2017) ALL FWLR (Pt.868) 616 at 645 that the Provision of Section 88 (1) and (2) of the Local Government (Miscellaneous Provision) law is not ambiguous and should therefore be given its ordinary meaning.
Appellants’ Counsel referred again to the case of: MOBIL PRODUCING NIG. UNLTD VS. LASEPA (Supra) at PAGE 1052 and submitted that pre-action notice is a procedural requirement and not an issue of substantive law, which will affect the right of the Appellant and that it is not an integral part of the process of initiating proceedings in a law Court.
He urged us to resolve the Issue in favour of the Appellants.
Learned Counsel for the Respondent on the other hand submitted that the failure to serve pre-action notice on the 3rd and 4th Respondents in accordance with Section 88 (1) and (2) of the Local Government (Miscellaneous Provision) Law of Kwara State is a fundamental defect which rendered the Appellants action incompetent.
That in the instant case, the consequence of the Appellants not complying with laws is detrimental to the action instituted and it robs the Court jurisdiction to entertain the action as instituted pending compliance.
They referred on this to the case of NIGERCARE DEVELOPMENT CO. LTD. VS. ADAMAWA STATE WATER BOARD & OTHERS (2008) ALL FWLR (PT. 422) 1052 at 1072.
They submitted that there is no how the learned trial Judge will strike out the Appellants’ case only against the 3rd and 4th Respondents without affecting the entire suit. This,Counsel said is because by the time Paragraphs 6, 8, 11, 12, 22, 25, 26, 27, 28, 30, 32, 33, 37, 41, 43, 44, and 45 of the Appellants’ Statement of Claim and Claims II, IV, V and VII all of which are in relation to the 3rd and 4th Respondents are struck out, there would not be any reasonable cause of action against the 1st and 2nd Respondents.
They reminded us that even in the case of: XINET SINGAPORE LTD. VS. M.S.L. (NIG) LTD (2014) ALL FWLR (Pt. 715) 305 at 330 relied upon by the Appellants, Hon. Justice Iyizoba opined thus:
-- in other words, there is no total absence of jurisdiction such that the suit could not be continued against other parties. The suit could be continued against other parties provided there is a reasonable cause of action disclosed against the remaining parties in the absence of the party struck out for non service of pre-action notice.

Respondents Counsel submitted further that by the nature of the Appellants suit being a chieftaincy matter, the 4th Respondent, Offa Local Government Council is a necessary party without whose presence the suit cannot be effectually and effectively determined.

………………………D…………………….

They referred to the case of: DR. (PRINCE) MOSES OYELEKE TANIMOWO VS. PA EZEKIEL ODEWOYE & OTHERS(2008) ALL FWLR (PT. 424) 1513 at 1542-1543 and submitted that both the 3rd and 4th Respondents are necessary parties who appointed and installed the 1st Respondent as Onidun of Igboidun, their presence are therefore crucial to the resolution of the Appellants suit.
The Respondents further submitted that the cases of:
AKINSETE VS. KILADEJO (Supra);
OJUKWU VS. YAR’ADUA (Supra);and
MOBIL PRODUCING OIL UNLTD VS. LASEPA (Supra)
relied on to support their argument that cause of action still subsist if the names of the 3rd and 4th Respondents are struck out are not apposite to the case at hand.
Respondents Counsel reiterated their position that a pre-action notice though a procedural step must be taken before an action is filed in Court. That it is a condition precedent but does not mean that it impedes the constitutional right of access to Courts. A party is only qualified to approach the Court when he has done what the law requires him to do.On this, they (Respondents) referred to the cases of:
AMADI VS. N.N.P.C (2000) FWLR (Pt. 9) 1527 at 1553;
ALHAJI ABBA ASHEIKH VS. ALHAJI KAKA MALLAM YALE (2012) ALL FWLR (Pt. 625) 297 at 319;
NNPC VS. TIJANI (2007) ALL FWLR (PT. 344) 129 at 140.
The Respondents concluded on Issue one that the order of striking out of the Appellants suit was most appropriate because at the time of instituting the action, the Appellants suit was premature.
On this, they referred to the case of KASUNMU VS. SHITTA BEY (2007) ALL FWLR (PT. 356) 741 at 783 and urged us to resolve the Issue in favour of the Respondents.
I must point out in respect of Issue One that the Courts are agreed that a pre-action notice is a procedural requirement of jurisdiction and not a substantive matter of jurisdiction.
Despite this general agreement, precedents on pre-action notices are not unanimous on the effect or consequences of upholding an objection to a suit based on non filing of pre -action notice by a Claimant.
Three possible consequences are discernable from the views expressed by the Courts.
The first is that failure on the part of a Plaintiff to serve a pre – action notice on the Defendant gives the Defendant a private right, solely for his benefit, to insist on such notice before the Plaintiff may approach the Court.
See e.g.
MOBIL PRODUCING NIG. UNLTD VS. LASEPA (2003) FWLR (PT. 137) 1029 at 1054 (per Ayoola, JSC),
EZE VS. OKECHUKWU (2003) FWLR (PT. 140) 1710 at 1727-1728 (per Uwaifo, JSC)
The second view which sounds like a mid way approach, between two seemingly extreme views is that:
There is no total absence of jurisdiction such that the suit could not be continued against other parties. The suit could be continued against other parties provided there is a reasonable cause of action disclosed against the remaining parties in the absence of the party struck out for non service of Pre-action notice.
See e.g.
XINET SINGAPORE LTD. VS. M.S.L. (NIG) LTD (2014) ALL FWLR (Pt. 715) 305 at 330 (per Iyizoba, JCA).
The third view which seems to have gained more acceptance in recent times is that failure to serve pre-action notice puts the jurisdiction of the Court in abeyance and any suit commenced in contravention of the provisions of such law is wrongly commenced and should not be entertained by any Court.
See e.g.
NIGERCARE DEVELOPMENT Co. LTD VS. ADAMAWA STATE WATER BOARD & OTHERS (2008) ALL FWLR (PT. 422) 1052 at 1072.
A full statement of the law as it is now reads as follows;
Non-compliance with the requirement of a pre- action notice does not take away the constitutional right of access to the Courts from the litigants, neither does it defeat his cause of action. If the Subject matter is within the jurisdiction of the Court, failure on the part of the Plaintiff to serve a pre-action notice on the Defendant gives the Defendant a private right to insist on such notice before the Plaintiff may approach the Court. In effect, non service of a pre action notice merely puts the jurisdiction of a Court on hold pending compliance with the pre-condition
See:-
ETI-OSA-LOCAL GOVERNMENT VS. JEGEDE (2007) 10 NWLR (PT. 1043) 537;
ARO VS. LAGOS ISLAND L.G (2002) 4 NWLR (PT.757) 385; and
NNONYE VS. ANYICHIE (2005) 2 NWLR (PT. 910) 623.

………………………E…………………….

In the instant case, the learned trial Judge was right to have struck out the Appellants Suit in its entirety for failure to give pre-action notice to the 3rd and 4th Respondents by virtue of the Provision of Section 88 (1) and (2) of the Local Government (Miscellaneous Provisions) Law of Kwara State 2006.
Issue One is resolved against the Appellants.
On Issue Two, learned Counsel for the Appellants submitted on the authority of the cases of:
DANJOR VS. ATTORNEY GENERAL BENUE STATE (2002) FWLR (PT. 121) 1971 at 1987;
LADEJOBI VS. OGUNTAYO (2001) FWLR (PT. 45) 780 at 797;
OKULATE VS. AWOSANYA (2000) FWLR (PT. 25) 1666 at 1686; and
MOBIL PRODUCING NIG. UNLTD VS. LASEPA (SUPRA) at 1056 that
The right to be served with a pre-action Notice does not fall within the category of rights which cannot be waived.
In relation to the present case, Appellants’ Counsel submitted that the 3rd and 4th Respondents filed an unconditional Memorandum of Appearance on 3rd June, 2015. That by so doing waive their right to pre-action notice and can no longer insist on their right by the application of 24th June 2015 brought three (3) weeks after.
He referred again to the case of: EZE VS. OKECHUKWU (2003) FWLR (PT. 140) 1710 at 1728 and submitted that by the filing of an unconditional appearance by the 4th Respondent, it has by its action acquiesce, repudiate its right to insist on pre-action notice.
He urged us to hold that by the filing of unconditional appearance, by the 4th Respondent, it is conclusive indication of its intention to waive its right, and it is estopped from re-probating that intention.
That having waived its right to a pre-action notice, the Court was wrong in striking out the suit of the Appellants.
The Respondents on the other hand submitted on Issue Two that the 3rd and 4th Respondents could not be said to have waived their right on non-service of pre-action notice by the Appellants merely because they filed an unconditional appearance. This, they said is because non-service of pre-action notice goes to the jurisdiction of the Court and can therefore be taken at any stage of the proceedings. They (Respondents) submitted that the two sets of Respondents that is the 1st and 2nd Respondents and the 3rd and 4th Respondents filed Notices of Preliminary Objection challenging the competence of the suit for non compliance with the Provisions of Section 88 (1) and (2) of the Local Government (Miscellaneous Law) Kwara State. The Respondents submitted that the objection is enough challenge on none service of the pre-action notice on the 4th Respondent.
They (Respondents) referred to the decision of the Supreme Court in DOMINIC E. NTIERO VS. NIGERIAN PORTS AUTHORITY (2008) ALL FWLR (PT. 430) 683 at 703-704 and submitted that the submission of the Appellants Counsel that entering of unconditional appearance amount to waiver is highly misplaced.
The Respondents distinguished the case of: EZE VS. OKECHUKWU (Supra) relied upon by the learned Counsel for the Appellants on the ground that nowhere in that case did the Supreme Court mention the entering of types of appearances as amounting to waiver of non-service of pre-action notice.
I do not think it is right for the learned Counsel for the Appellants to suggest that the entering of appearance by the 3rd and 4th Respondents amounted to waiver of non-service of pre-action notice.
In the first place and by way of correction for the learned Counsel for the Appellants there is nothing in law called unconditional appearance
A Counsel in a case could put up appearance or when dissatisfied with processes could put up conditional appearance the formulation of unconditional appearance in this appeal is merely a coinage of the learned Counsel for the Appellants.
Be that as it may, a party to a case could not be said to have waived his right to the commencement of an irregular proceeding merely for the reason of an appearance in the case.
A party to a proceeding can only be said to have waived his right to an irregular proceeding when he sleeps over his right after the proceedings have commenced or long commenced. In the instant case, the two sets of Respondents objected timeously to the commencement of proceedings by filing Preliminary Objections that the 4th Respondent was not served pre-action notice by the Appellants.
By their Notices of Preliminary Objection, the Respondents moved early enough to intimate the Court that they did not intend to waive non-service of pre-action notice on the 4th Respondent by the Appellants.

………………………F…………………….

Clearly, therefore, the Respondents in this case did not in any form waive the right of non-service of pre-action notice on the 4th Respondent.
The Supreme Court in the case of: DOMINIC E. NTIERO VS. NIGERIAN PORTS AUTHORITY (2008) ALL FWLR (PT. 430) 688 at 703-704 held thus:
… The effect of non service of a pre-action notice, where it is statutoryly required is only an irregularity which however renders an action incompetent. It follows that the irregularity can be waived by a Defendant who fails to raise it either by motion or plead it in the statement of defence. If a Defendant refuses to waive it and he raises it, then the issue becomes a condition precedent which must be met before the Court could exercise its jurisdiction.
In the instant case, the 4th Respondent could not be said to have waived its right to be served with pre-action notice when All the Respondents timeously filed Notices of Preliminary Objection to the Appellants suit on account of non-service of pre-action notice on the 4th Respondent. Also, a Defendant could not be said to have waived his right to be served with pre-action notice merely by filing memorandum of appearance in an action instituted against him.
Issue two is resolved against the Appellants.
On Issue Three, learned Counsel for the Appellants submitted that the trial Court was wrong in holding that every Chieftaincy dispute makes provision for settlement or resolution before the institution of action.
He submitted that it is trite law that in Chieftaincy matter where there is no formal declaration as regards to the issue of appointment and selection or the stool is not recognized by law or upgraded, the native law, custom and tradition of the community or people will be strictly adhered to in selection and appointment of any person to the vacant stool.
On this, Counsel referred to the case of: AKANDE VS. ADISA (2012) ALL FWLR (PT.635) 250 at 275 and submitted further that the stool of Onidun of Igboidun is not regulated by the Chiefs (Appointment and Deposition) Law Vol. 1 Cap. C9, Laws of Kwara State 2006 but rather regulated purely by the Native Law, Custom and tradition of Igboidun Community.
Appellants’ Counsel distinguished the facts of the case of:
ARIBISALA VS. OGUNYEMI (2005) ALL FWLR (PT. 252) PAGE 451 relied on by the learned trial Judge from the facts and circumstances of the present case. He submitted that the stool in contention in the Aribisala’s case relied on by the Court is a statutory stool regulated by the Chiefs Law Ondo State 1978 but that the case in hand deals with ungraded stool which is not regulated by the Chiefs (appointment and deposition) Laws of Kwara State 2006 or any other law.
He referred to the case of: TIMOTHY ADEKO ADEFULU & 12 ORS VS. BELLO OYESILE & 3 ORS (1989) ALL NLR PAGE 698 at 720 and submitted that a dispute in the stool of Onidun of Igboidun which is not a graded stool and not regulated by the Chiefs Law of Kwara State should be resolved in accordance with the Native Law, Custom and Tradition of the people of Igboidun.
He submitted that the trial Court was wrong to dismiss the Suit of the Appellants on the ground that they failed to exhaust all remedies in the law before going to Court when there is no such thing disclosed in the pleadings of the parties as regards the stool of Onidun.
He submitted that the finding of the trial Court that the Appellants failed to exhaust all remedies provided for by the law or statute is perverse because there is no evidence or facts before the trial Court to show that there is a law or statute that regulate the stool of Onidun of Igboidun. He stated that a perverse finding has been defined by the Court in case of:IRONKWE VS. UBA PLC(2017) ALL FWLR PT. 879 PG 650 @ P. 684, PARAS A-B as thus:
A perverse finding is a finding which is merely speculative and not based on any evidence before the Court. It is a finding that is unreasonable and unacceptable because it is wrong and completely outside the evidence before the Court.
He further submitted that the uninhibited right of every citizen to approach the Court seeking a relief or determination of any question as to his civil right is guaranteed by the Constitution of the Federal Republic of Nigeria which should not or cannot be prevented by any domestic arrangement or remedies. He referred to the case of: MUSENDIKU VS. LIADI (2012) ALL FWLR PT. 611 PG 1609 @ P. 1619, PARAS A-B where the Court held thus:
By the Provisions of Section 6 (6) (b) of the Constitution of the Federal Republic of Nigeria 1999,the uninhibited right of every person to go to Court seeking a determination of any question as to his civil rights and/or obligation is guaranteed. For any condition to the exercise of that constitutional right to be effective; it must be constitutional, legally and expressly provided.
He concluded on Issue Three that the Chiefs Law of Kwara State 2006 being not applicable in this suit should not be used to justify the position of the Lower Court to prevent the Appellants from approaching a Court of law.
He urged us to resolve the Issue in favour of the Appellant.

………………………G…………………….

The Respondents more especially through the 1st and 2nd Respondents contend on Issue Three that the learned trial Judge was right to have held at Page 253 of the Record that Chieftaincy disputes make provision for settlement or resolution before the institution of action, the breadth of which touches on jurisdiction and that the Court could only come in after all steps have been taken. The Respondents further supported this general proposition by the learned trial Judge with the cases of:
AYENI VS. OBASA (2012) ALL FWLR (PT. 611) 1509 at 1533;
and PRINCE OLUSEGUN ADEOLA & OTHERS VS. MR. ISAAC ADEYINKA AYEOBA & OTHERS (2009) ALL FWLR (PT. 458) 355.
They (Respondents) submitted that apart from the pleadings filed by parties wherein the roles of the appointing Royal families, the King makers, Traditional Council and the Local Government Council were mentioned, the Provisions of Sections 34 and 36 of the Local Government (Miscellaneous Provisions) Law Cap. L8 Laws of Kwara State 2006 state the duties of the 2nd Respondent in the area relating to Chieftaincy matters thus:
36(a) ----------------
(b) ---------------–
(c) ---------------–
(d) ---------------–
(e) ---------------–
(f) ----------------
(g) To determine questions relating to Chieftaincy matters and offices and where such matters are within the exclusive prerogative of the Emirate or Oba Chief to give advice there on where so requested.
The Respondents submitted that the 2nd Respondent herein has a duty to play in matter relating to Chieftaincy including where there is dispute relating to selection, appointment and approval. They (Respondents) added that the cases of:
TIMOTHY ADEKO ADEFULU & 12 ORS VS. BELLO OYESILE & ORS. (Supra);
IRONKWE VS. UBA PLC (Supra); and
MUSENDIKU VS. LIADI (Supra).
cited and relied on by the Appellants Counsel are irrelevant and inapposite to the case at hand.
In his Reply Brief, learned Counsel for the Appellants submitted that the reason for the decision to exhaust domestic remedies before approaching the Courts in the cases of:
AYENI VS. OBASA (2012) FWLR (PT. 611) 1509 at 1503; and
PRINCE OLUSEGUN ADESOLA & OTHERS VS. MR. ISAAC ADEYINKA AYEOBA & ORS (2009) FWLR (PT. 458) 355 at 378.
relied upon by the Counsel to the Respondents is that those cases were based on Section 13(2) and (5) of the Chiefs Edict of 1984 (as amended) of Ondo State as applicable to Ekiti State. But, that the Onidun of Igboidun under contention is not regulated by any state declaration being an ungraded stool.
That, in fact, in the case of: AYENI VS. OBASA (Supra) at Page 1534, it was held that:
the Respondents did not exhaust domestic remedies before deciding to ventilate their grievances in Court - it was therefore incompetent as the statutory remedies were yet to be fully explored.
He submitted that the resolution clause being a statutory provision that does not govern the stool in dispute, it cannot be said to be mandatory for the Appellants to exhaust before commencing the present suit.
On another wicket, Appellants Counsel submitted that by the combine reading of Section 33, 34 and 36 of the Local Government (Miscellaneous Provision) Law, Kwara State with Section 7 of Chiefs (Appointment and Disposition) Law Cap. C9 Laws of Kwara State, the functions of the Oba/Emir or the traditional Council as the case may be is to give advice to Local Government and not to serve as dispute resolution body in Chieftaincy matters.
He submitted that if the makers of the law had intended to give the Emir/Oba or Traditional Council the power to serve such purpose as a mediating body before any person can approach a law Court in respect of un-graded stool, it would have been stated clearly in the Chief Laws of Kwara State and the procedure provided clearly to meet such demand.
Appellants Counsel concluded that it is a general principle of law that where judicial or administrative power is granted by a statute, procedure to meet such would ordinarily be provided but, in respect of Sections 33, 34 and36 of the Local Government (Miscellaneous Provision) Law of Kwara State, it is obvious that the position of the Traditional Council is advisory to the government in Authority.
Also, that this is strengthened by Section 7 (2) and (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
I do not think it is right for the learned trial Judge to hold generally and in respect of the Appellants case that every Chieftaincy dispute makes provision for settlement or resolution before the institution of action .
The starting point for the position of the law in this regard is that the issue as to who is qualified to ascend to any traditional stool or throne is subject to the Customary Law and traditions of the people concerned which in turn is a question of fact to be proved by calling evidence unless

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same has made it to attain the legal status of notoriety so as to be judicially noticeable. Also, that where there is no formal declaration in respect of the appointment and selection in a particular Chieftaincy, the custom and tradition of the people concerned must be strictly adhered to.
MAFIMISEBI VS. EHUWA (2007) 2 NWLR (PT. 1018) 385 SC;
OLOWU VS. OLOWU (1985) 3 NWLR (PT. 1018) 385 SC; and
UMORU VS. ZIBIRI (2003) 11 NWLR (PT. 832) 647 SC.
The simple contention of the learned Counsel for the Appellants in this regard is that there is no formal provision regulating the internal or customary resolution of the ungraded Chieftaincy stool of Onidun of Igboidun outside of the custom and tradition of the people of Igboidun.
That for one to be sure that the custom and tradition of Igboidun has such practices, it must be established by calling evidence and cannot be assumed.
It seems to me in this respect that the learned Counsel for the Appellants is right. The learned trial Judge in his own Judgment did not demonstrate the statute if any that compels the exhaustion of local and/or administrative remedies before approaching the Courts in relation to the un-graded stool of the Onidun of Igboidun. Clearly, the authorities referred to by the learned trial Judge in his Judgment particularly the cases of:
ARIBISALA VS. OGUNYEMI (2005) ALL FWLR (PT. 252) PAGE 451; and
OWOSENI VS. FALOYE (2005) ALL FWLR (PT. 284) 220
deal with graded Chieftaincies and not un-graded Chieftaincy as in the present case.
Indeed, the need to exhaust administrative remedies in those cases became mandatory because statute provides a legal line of action.
Similarly, neither the Provision of Sections 34 and 36 of the Local Government (Miscellaneous Provision) Law Cap. L.8 Kwara State 2006 nor the cases of:
AYENI VS. OBASA (2012) ALL FWLR (PT. 611) 1509 at 1533;
and
PRINCE OLUSEGUN ADEOLA & OTHERS VS. MR. ISAAC ADEYINKA AYEOBA & OTHERS (2009) ALL FWLR (PT. 458) 355
relied upon by learned Counsel for the 1st and 2nd Respondents are relevant to the case in hand.
The crux of the matter in relation to Issue Three is that the stool of Onidun of Igboidun is regulated not by statute but by the native law and custom of Igboidun community.
Therefore, the provision for mandatorily exhausting domestic remedies before access to the Courts is not applicable until proved by evidence.
The objection by the Respondents in the instant case was taken by Notices of Preliminary Objection and there was no proof of any tradition compelling the Appellants to exhaust domestic remedies before approaching the Courts.
Issue Three is resolved in favour of the Appellants.
Three Issues were formulated for the determination of this Appeal. Issues One and Two were resolved against the Appellants while Issue Three was resolved in favour of the Appellants.
For this reason, the Appeal is allowed in part.
The portion of the Ruling of the learned trial Judge which in addition struck out the Appellants Claimants case for failure to exhaust domestic remedies is hereby set aside.
However, the portion of the Ruling of the learned trial Judge striking out the Appellants Claimants case for failure to serve pre-action notice on the 4th Respondent is hereby affirmed.
There shall be no Order as to costs.
HAMMA AKAWU BARKA, J.C.A.: The judgment of my learned brother MOJEED ADEKUNLE OWOADE JCA. was made available to me in draft. I wholly agree with the reasoning and conclusions reached thereby allowing the appeal in part as in the lead judgment. I also abide on order made as to costs
BOLOUKUROMO MOSES UGO, J.C.A.: I had the privilege of reading in draft the judgment of my learned brother MOJEED ADEKUNLE OWOADE, J.C.A. and I am in complete agreement with his reasoning and conclusion that this appeal fails except for issue 3 which succeeds but still does not turn its fortunes in any significant way. At the end of the day the contested ruling of the lower Court turned on appellants’ failure to serve the required pre-action notice on the 3rd and 4th respondents who are by the nature of the case undoubtedly necessary parties to the entire action
While appellant relied on the decision of the Supreme Court (Ayoola J.S.C.) in the case of Mobil Producing Nigeria Unlimited v. Lagos State Environmental Protection’ Agency (LASEPA) & Ors. (2003) FWLR (PT 137) 1029, (2003) LPELR-1887 (S.C.) where it was decided that the requirement of service of pre- action notice is for the benefit of the party required by statute to be so served so he can waive it and is deemed to have waived it if he does not raise it in his defence, 3rd and 4th respondents anchored their objection on the later decision of the same Court inNigercare Development Co. Ltd v. Adamawa State Water Board (2008) ALL FWLR (PT 422) 10p2, (2008);34-NSCQR 226 where it was held that because service of pre-action notice, where required by statute, is a condition precedent to exercise of jurisdiction by the Court, it can be raised at any time and the failure to plead it does not affect its efficacy. Incidentally, in Nigercarethe issue of service of pre-action notice was not raised by the defendant in its pleading or even in final address, it was rather the trial judge who while writing judgment stumbled on it and asked counsel to address him on it after which he declined jurisdiction and struck out the case on that ground. The apex Court on appeal by the plaintiff held, unanimously, that the trial judge was in order. By reason of the decision in Nigercare this Court (Ejembi Eko, J.C.A. as he then was) was even prompted to declare in Port Harcourt Refining Co. Ltd v. Okoro (2012) ALL FWLR (PT 606) 466 @ p. 485 – 466 that the long-revered authority of Katsina Local Authority v. Makudawa (1971) 1 NMLR 100 which had held that a condition precedent like service of pre- action notice is deemed waived if not pleaded, which case was incidentally copiously cited and considered in Nigercare, no longer represents the position of the law Much as the objection in Mobil Producing Nigeria, Unlimited v. Lagos State Environmental Protection Agency (LASEPA) & Ors. was raised by another party in the action instead of Lagos State Environmental Protection Agency (LASEPA) who was entitled to it, unlike this one where it was raised directly by 3rd and 4th respondents who the Kwara State Local Government Law requires that pre-action notice be served, it seems to me that Nigercare conflicts with Mobil Producing Nigeria Unlimitedwhen read between the lines as to precondition for raising objection of non-service of pre-action notice. Nevertheless, the former, Nigercare, having been decided by the apex Court ih 2008 is five years more recent than Mobil Producing Nigeria Unlimited of 2003. By rules of stare decisis this Court cannot pick and choose between the two cases. We are bound by the more recent of the two. That, the apex Court made clear in Osakue v. F.C.E. (Tech.) Asaba (2010) ALL FWLR (Pt. 52) 1601 @ 1619& 1622-1625 (2010) 2-3.S.C.(PT 111) 158 and Obiuweubi v. C.B. N. (2011) NWLR (PT 1247) 465 @ 501 (S.C.), (2011) LPELR 2185 (S.C.). For this little embroidery of the lead judgment of my learned brother Owade, J.C.A., which judgment I here adopt, I also dismiss this appeal and order that parties bear their costs.