Oba Amos Babatunde v. Mr. Simon Olatunji & Anor

 The main question that arises for determination in this appeal is: Whether a person against whom a judgment is given or an order made can disobey and ignore it on the ground that it is null and void. This is informed by the fact that in the appellants view, the decision in the earlier case in Suit No. Z/11/67 by the High Court of Kwara State was given without jurisdiction contrary to the provisions of Section 161 (3) of the 1963 Constitution. The proceedings in that suit were admitted in evidence as Exhibit 1 in the present case. It was argued that the said proceedings were null and void and should have been treated as non-existent.
Section 161(3) of the 1963 Constitution reads:
“161(3)  Notwithstanding anything in any other provision of this Constitution (including in particular sections 32 and 53 of this Constitution) but without prejudice to the proviso to subsection 1 of section 22 and subsection 4 of section 27 of this Constitution, no chieftaincy question shall be entertained by any court of law in Nigeria, and a certificate which is executed by an authority authorised in that behalf by a law coming into force in a territory on or after the date of the commencement of this Constitution (including a law passed before that date) and which states-
(a) that a particular person is or was, by reference to that territory or a part of it, a chief of a specified grade at a specified time or during a specified period; or
(b) that the provisions of a law in force in that territory relating to the removal or exclusion of chiefs or former chiefs from areas within the territory have been complied with in the case of a particular person, shall be conclusive evidence as to the matters set out in that statement.”
Exhibit 1 tendered at the trial as I have already indicated is a certified true copy of the Writ of Summons, Statement of Claim, Statement or Defence, the trial proceedings and the judgment or the High Court of Justice, llorin in Suit No.Z/11/1967 between Olukotun Adeniyi and Anor v. Amos Babatunde Alaran & Anor’. On the face of it, the subject matter in that case was a chieftaincy dispute.

P.1

In that case, when in 1967 Adewoye Aromokeye from Ile Oba Ibuoye became the Odofin, the predecessors-in-title of the 2nd appellant herein took the 1st appellant Oba Amos Babatunde and the late Odofin Adewoye to Court. That suit was dismissed. There was no appeal there from.
The facts of the present case are simple. In 1989, after the demise of Odofin Gabriel Adewoye from The Oba Ibuoye Ruling House, the respondents selected and presented one Chief Ajitoni Ibuoye to the 1st appellant to be appointed and installed as the Odofin of Arandun. The 1st appellant refused and rather accepted and approved the nomination of the 2nd appellant, who was subsequently installed as Odofin of Arandun on 8th June, 1989. In consequence of this, the respondents brought an action in the Kwara State High Court at Omu-Aran.
At the trial court, the respondents-as-plaintiffs sought the following reliefs in paragraph 16 of their Statement of Claim:-
“Declarations:-
1. That under the native law and custom of Arandun the families of the 2nd Defendant are not entitled to ascend the stool of Odofin of Arandun.
2. That the appointment, installation and recognition of the 2nd Defendant as Odofin of Arandun is irregular, null and void.
3.That Chief Ajitoni Ibuoye being the rightful nominee of the Ile-Oba Ibuoye Ruling Family is the rightful person to become the Odofin of Arandun immediately after Gabriel Adewoye (deceased).
4. Orders:
(i) Setting aside the purported nomination, appointment and installation of Ayinla Aransiola, 2nd defendant, as Odofin of Arandun.
(ii)Perpetual injunction restraining the defendants, their servants, privies or any person howsoever deriving authority, permission or order from any of them, from recognising or continuing to recognise, deal with, address regard the 2nd defendant as the Odofin of Arandun.
(iii)Perpetual injunction restraining the 2nd defendant from continuing henceforth from calling, introducing, parading, addressing or presenting himself either to defendants or any person(s) howsoever and at any occasion or place as Odofin of Arandun.
(iv)Directing the defendants to appoint and install Chief Ajitoni Ibuoye as Odofin of Arandun within 30 days from the date of judgment.”

P.2

The plaintiffs called 3 witnesses and tendered Exhibit 1. The defendants called 5 witnesses and tendered 8 Exhibits. The learned trial Judge after an evaluation and consideration of the evidence: oral and documentary, entered judgment for the plaintiffs.
The defendants’ appeal to the Court of Appeal was dismissed. They have further appealed to this court. As I have already indicated the question to be resolved is whether a person against, or in respect of, whom an order is made or a judgment is given by a court of competent jurisdiction can disobey and ignore it on the ground that it was null and void. In the context of this case, it was submitted for the appellants that a judgment or order given or made without jurisdiction is a nullity; that lack of jurisdiction in the court deprives the judgment or order of any valid existence and or effect whether by estoppel or otherwise. For this submission, learned counsel relied on the case of J.C. Ltd. v. Ezenwa (1996) 4 NWLR (Pt.443) 391 at 414 – 415. It follows from that submission that the action in Suit no. Z/II/67 (Exhibit 1) did not lie when it was instituted because by virtue of Section 161(3) of the Constitution of the Federation 1963 the pleadings, the entire proceedings and judgment in that suit (No.Z/11/67) are non existent and should not have been received in evidence. This is so because the provisions of Section 161(3) aforesaid, oust the jurisdiction of any court of law in Nigeria in matters relating to chieftaincy question. Since Suit No. Z/11/67 (Exhibit 1) involved the determination of a chieftaincy question no court of law in this country had the jurisdiction to hear and determine such question. That being so, it was contended, there could be no judgment (Exhibit 1) in a case that by constitutional law could not be heard. Learned counsel for the appellants relied on the case of Governor of Oyo State v. Afolayan (1995) S NWLR (Pt. 413) 292 at 321 and 329.
For his part, learned counsel for the respondents submitted that unless and until Exhibit 1 is set aside by a competent court, it remains valid and binding and cannot therefore be ignored. He relied on the case of Odofin v. Agu (1992) 3 NWLR (Pt.229) 350 at 371 – 372.
In order to appreciate the submissions of counsel on the issue under consideration, it is necessary to reproduce the salient paragraphs of the Statement of Claim and the Statement of Defence. The respondents as plaintiffs in paragraphs 9 – 13 of their amended Statement of Claim pleaded thus:

P.3

9. The Plaintiff state that after the demise of Odofin Arandun. Odofin Awofaran from Ile Oba lbuoye family, one Ajiboye Oyebanji from the family of the 2nd defendant in 1967 was wrongly nominated by Ilufemiloye family to ascend the throne, the 1st defendant who was the Alaran of Arandun on the throne at the time failed, refused and rejected the nomination, rather he in good conscience accepted the nomination and appointmenl of Odofin Gabriel Adewoye. He accordingly installed him and continued to recognize and accorded Odofin Adewoye respect until he died.
   10.The Plaintiffs aver that the said Ajiboye Oyebanji and one Olukotun Adeniyi being dissatisfied with the appointment of Gabriel Adewoye filed a suit to challenge the appointment vide Suit No. Z/11/67. Olukotun Adeniyi, Ajiboye Oyebanji v. Amos Babatunde Alaran & Gabriel Adewoye Odofin.
   11.The Plaintiffs aver that the suit was dismissed; the plaintiffs plead and will tender at the hearing, the certified true copy of Writ of Summons, the Statement of Claim, the Statement of Defence, the proceedings at trial and judgment of the Court.
   12.The Plaintiffs aver that Alaran, Amos Babatunde being the custodian of the people’s custom and tradition in the Statement of Defence filed in the suit stated the position of Odofin Chieftaincy correctly.
   13.The Plaintiff will give evidence of families entitled to become Odofin Arandun. the history and names of previous holders of the office and their relationship with the Plaintiff.
   14.The Plaintiffs avert that on the demise of Odofin Gabriel Adewoye, the family or the Ruling House properly and validly entitled indeed nominated Chief Ajitomi Ibuoye to ascend the vacant stool but the 1st defendant in violation of the custom and tradition of Arandun; in contradiction of his avowed position in Suit No. Z/11/67 stated above, nominated and installed the 2nd defendant as the Odofin of Arandun.
   On the oher hand; the appellants as defendants joined issue on the paragraphs of the amended Statement of Claim reproduced in paragraphs 12 and is of their Statement of Defence. They pleaded thus:
   “12. Further to paragraphs 9, 10, 11 and 12 of the Statement of Claim, the defendant aver as follows:-
   (i) That the 1st defendant never gave evidence to support any pleading in Suit No. Z/11/67 mentioned in paragraph 10 of the Statement of Claim:
   (ii) That none of the defendants in the said case also gave any evidence and that no body asserted in evidence in the said case that the 2nd defendant’s family is not entitled to ascend the stool of Odofin.

P.4

18. The defendants shall contend at the trial of this case that Suit No. Z/11/67 vests no right or interest on the plaintiffs family to the exclusion of the 2nd defendant’s family or any of the four ruling houses to ascend to or monopolise the Stool of Odofin of Arandun and neither was any evidence led nor any pronouncement made to justify the stand they now take in this case.”
    The learned trial Judge in the course of his judgment observed at page 170 to 171 thus:
    “The next point for consideration on the issue of the native law and custom of Arandun regarding the Odofin chieftaincy title is the effect of exhibit 1 which is the record of proceedings and judgment in the case between 2nd defendant’s relatives on one hand, and the 1st defendant with the late Odofin Gabriel Adewoye on the other hand. In Exhibit 1 page 2 the plaintiffs therein claimed that there are 4 Odofin chieftaincy families at Arandun and that it was the turn of Oba Ilufemiloye family which has unanimously made its choice of the 2nd plaintiff therein and presented same to the 1st defendant (now the 2nd defendant herein) for approval.
    The 2 defendants therein averred at page 4 that there are only 2 Odofin chieftaincy families in Arandun rotating the title and they are:-
    (1) The house of Odun and
    (2) The house of Odofin Alaran
    They went further that Ile Oba Ilufemiloye is not an Odofin house. In its judgment which was not appealed against the court at page 14 dismissed the plaintiffs’ action.
    That specifically is a decision on the issue of the right of Ile Oba llufemiloye to ascend the Odofin stool. It is a valid subsisting and extant judgment by a competent court which has decided against the right of the unanimous choice of Ile Oba IIufemiloye to ascend the Odofin stool. The 2nd defendant said that he was then aware of the litigation by his relatives.”
    The learned trial Judge continued at page 172 as follows:
    “Can the 1st and 2nd defendants resile from the position taken in exhibit 1? I think not, in exhibit 1 the 1st plaintiff who was the Olukotun and in that capacity chief of Ile Oba IIufemiloye and the 2nd plaintiff who was the unanimous choice of the family for Odofin stool were in the circumstance fighting the battle of the entire family. This is clearly borne out by their pleadings. The battle line was drawn between Ile Oba Ilufemiloye and the Alaran of Arandun from Ile Odun and the then Odofin from Ile Oba Ibuoye. The issue centered on the right or otherwise, of Odosare to fill Odofin stool. The decision is unequivocal that it had no such right.”

P.5

The court below affirmed the decision of the court of trial. It agreed that the contents of exhibit 1 bind the appellants and that they could not resile from it.
I think the option open to a person against whom an order was made or a judgment given is plain. He should apply to the court to discharge the order or appeal against the judgment that it might be set aside as the case may be. This is good sense, for as long as the order or judgment existed, it must not be disobeyed. A judgment of a court of competent jurisdiction remains valid and binding, even where the person affected by it believes that it is void, until it is set aside by a court of competent jurisdiction. In Chuk v. Cremer (1846) 1 Coop. temp. Cott. 342; 47 E. R. 884 Lord Cottenham, L. C. said:
“A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it… It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid – whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.”
This view was re-echoed by Romer, L.J. in Hadkinson V. Hadkinson (1952) 2 All E.R. 567 where he said:
“It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.”
In a nutshell, the judgment of a court of competent jurisdiction subsists unless and until it is set aside even where the person affected by it believes it to be void or irregular. The procedure for selling it aside is simple. The party affected must appeal against the judgment.
The position clearly therefore is this. That a person, who knows of a judgment, whether null or valid given against him, by a court of competent jurisdiction cannot be permitted to disobey it. His unqualified obligation is to obey it unless and until that judgment has been set aside. See Rossek v. A. C. B. Ltd. (1993) 8 NWLR (Pt.312) 382; Hadkinson v. Hadkinson (1952) 2 All E.R. 567. It is settled practice that there is a presumption of correctness in favour of a court’s judgment. Unless and until that presumption is rebutted and the judgment is set aside, it subsists and must be obeyed. It cannot for any reason under our law be ignored.

P.6

In Oba Aladegbemi v. Oba Fasanmade (1988) 3 NWLR (Pt.81) 129 Eso JSC held thus:
“… for a court of competent jurisdiction, not necessarily of unlimited jurisdiction (and I will come to this anon) has jurisdiction to decide a matter rightly or wrongly. If that court never had jurisdiction in the matter, then its decision is, without jurisdiction, void, but then should a court of law not even decide the point? That is, the court without jurisdiction decided without jurisdiction? Should the decision just be ignored? Surely it would not make for peace and finality which a decision of a court seeks to attain. It would at least be against public policy for persons, without the backing of the court, to pronounce a court decision a nullity, act in breach of the decision whereas others may set out to obey it. In my respectful view it is not only desirable but necessary to have such decisions set aside first by another court before any act is built upon it despite the colourful diction of the law Lord in U.A.C. v. Macfoy (supra). “
The appellants have argued that it was not necessary to have the decision in Suit No. Z/11/67 set aside on appeal. In the light of the law on this point which I have highlighted above, this argument is fallacious; it is badly flawed. The decision is valid and subsisting. And it is presumed correct. Until that presumption is rebutted on appeal and the decision is set aside, the person affected by it must obey it.
In the light of the foregoing, this appeal must fail. Accordingly I dismiss it and affirm the decision of the court below. The respondents are entitled to costs which I assess at N10,000.00.