Esuwoye v Bosere and Others (SC.890.2014) [2016] NGSC 8 (30 June 2016)

JUDGMENT
(Delivered by Walter Samuel Nkanu Onnoghen, JSC)

This is an appeal against the judgment of the Court of Appeal, Ilorin Division in appeal No. CA/IL/71A/2012 delivered on the 16th day of July, 2014, in which the court allowed the appeal of appellant, in part, by overruling the trial court’s holding that the counter claim of appellant was statute barred but failed/refused to consider other issues relating to the merit of the said counter-claim.

The facts of the case include the following:

The last Olofa of Offa, Oba Mustafa Ola wore Olanipekun Ariwajoye II, died or joined his ancestors in March, 2010 thereby rendering the stool vacant. He was of the female line of the ruling house known as ANILELERIN. Following the death, the kingmakers called for nomination from the OLUGBENSE, the male ruling house, and ANILELERIN, the female ruling house to fill the vacancy. Appellant in this appeal emerged as the candidate of Anilelerin Ruling House while the 2nd respondent was the candidate of OLUGBENSE Ruling House. Appellant emerged as the winner of the contest and was presented to the 9th respondent, the Governor of Kwara State, for appointment as the new Olofa of Offa. He was so appointed and given a staff of office and crowned the Olofa of Offa.
 
Following the coronation of appellant the 1st - 3rd respondents instituted suit No. KWS/OF/15/2010 in the High Court of Kwara State, Holden at Offa, for themselves and on behalf of OLUGBENSE Ruling House of Offa against appellant and 4th - 7th respondents who are the Kingmakers of the stool of Olofa of Offa and the 8th and 9th respondents being the Attorney-General and Governor of Kwara State, respectively

The claims of the claimants/plaintiffs in that case are as follows:-

“(a)     A declaration that ascension to the stool of Ofofa of Offa is rotational between Olugbense (Male) ruling house and Anilelerin (Female) ruling house of Offa.

(b)    A declaration that Anilelerin ruling house having produced the late Oba Mustapha Olawore Olanipekun Ariwojoye II, who ruled for over 40 years, it is now the turn of Olugbense ruling house in law and/or equity to produce the Olofa of Offa on the basis of rotation.

(c)    A declaration that Anilelerin ruling house is precluded from producing the candidate to fill the vacancy created by the death of Oba Mustapha OLAWORE Olanipekun Ariwajoye II from Anilelerin ruling house.

(d)    A declaration that in view of the established Chieftaincy custom of Offa from 1969, ascension to the vacancy stool of Olofa of Offa is rotational between the two ruling houses of Offa viz Olugbense ruling house and Anilelerin ruling house.

(e)    A declaration that by virtue of the decision of Kwara State Government published in the Kwara State press release No. 275 of 9th July, 1969 (pursuant to the report of the Sawyer Commission of Enquiry to Olofa Chieftaincy Stool), ascension to the stool of Olofa of Offa, is rotational between the Olugbense ruling house and the Anilelerin ruling house.

(f)    A declaration that the consideration of candidates (2nd claimant and 5th defendant) from the two ruling house - Olugbense and Anilelerin respectively at the same time by the kingmakers of Offa (1st - 4th defendants) and the acceptance/ recommendation of the 5th defendant by the 1st -4th defendants as Olofa of Offa to the 7th defendant thereby is illogical, wrongful, unlawful, inequitable, unjust, invalid, null and void and of no effect what so ever.

(g)    A declaration that by virtue of the Chieftaincy declarations contained in the Kwara State of Nigeria Gazette, No. II Vol. 4 of 12th March, 1970 and legal notices 3 and 4 of 1969      herein, in respect of the process of selection of a candidate for the stool of Olofa of Offa by Anilelerin ruling house and Olugbense ruling house respectively ascension to the stool of Olofa of Offa is by rotation and not by competition between the two ruling houses.
 
(h)    A declaration that the recognition of the 5th defendant as Olofa of Offa by the 6th and 7th defendants is illogical, wrongful, unlawful, unconscionable, null and void and of no effect what so ever.

(i)    A declaration that the appointment and installation of the 5th defendant as the Olofa of Offa by the 7th defendant is wrongful, unlawful, null and void and of no effect what so ever.

(j)    A declaration that the nomination of the 2nd claimant, Alhaji (Prince) Abdul-Rauf Adegboye Keji by the Olugbense ruling house as the Olofa of Offa is valid and he is the only candidate entitled to be recommended for approval as Olofa of Offa by the Kingmakers of Offa (1st- 4th defendants) to the 7th defendant.

(k)   A declaration that the nomination of the 2nd claimant from Olugbense ruling house as the candidate for the stool of Olofa of Offa is valid and he is entitled to be recognized by the and 7th defendants.

(I)    A declaration that the 2nd claimant from Olugbense ruling house is validly and duly nominated candidate of the stool of Olofa of Offa and entitled to be appointed and installed by the 7th defendant.

(m)  An order nullifying the appointment and installation of the 5th defendant as the Olofa of Offa and removing him forthwith from the stool of Olofa of Offa.
 
(n)     An order compelling the 1st – 4th defendants to accept the nomination of the 2nd claimant as the Olofa of Offa.

(o)   An order compelling the 7th defendant to approved the appointment of the 2nd claimant as the Olofa of Offa and a further order compelling the 7th defendant to install 2nd claimant as the Olofa of Offa.

(p)     An order of perpetual injunction restraining the 5tu defendant from parading himself as the Olofa of Offa"

The 1st - 5th defendants in the suit, including the present appellant, counter claimed against the claimants as follows:

'(1)     The1st – 5th Defendants repeat paragraphs 4 - 18 of the Statement of Defence.

(2)    That the Olugbense Ruling House have been disinherited and have gone into extinction going by the curse and the decision of Oba Olugbense their progenitor to allow only the female lineage of Anilelerin to occupy the Olofa Stool.

(3)    That by reason of the fact that since the demise of Oba Olugbense it is the female lineage of Anilelerin that have been occupying the Olofa Stool the Anilelerin House have become the main and the only Ruling House in Offa.
 
(4)     Where of the 1st - 5th Defendants/Counter-Claimants pray as follows;

a.    A declaration that No Rotational Policy exist in Offa between the Ruling Houses in Offa on the appointment of Olofa of Offa whenever a vacancy occur to the stool.

b.    A declaration that the only Ruling House that exists in Offa for the purpose of appointing an Olofa of Offa is the Anilelerin Ruling House.

c.    A declaration that the Kwara State Government Gazette No. It. Vol. 4 of 12th March, 1970 and any other Notices as it recognizes Olugbense as a Ruling House in Offa be declared null and void as it is contrary to the History, custom and tradition of Offa on Offa Chieftaincy.

d.    An order of perpetual injunction restraining the 6th and 7th Defendants from treating and or recognizing the Olugbense Ruling House that have a right to the Chieftaincy title of Olofa of Offa."

At the conclusion of the trial, the learned trial judge dismissed the claims of the claimants and those of the counter claimants which resulted in an appeal and cross appeal to the Court of Appeal numbered as CA/IL/71/2012 and CA/IL771A/2012 respectively.

The Court of Appeal allowed the main appeal, CA/IL/71/2012, while the cross appeal was dismissed despite the fact that the court found that the trial court was in en or in holding that the counter claim, giving rise to the cross appeal, was statute barred.

Funny enough, the judgment of the lower court in respect of appeal No. CA/IL/71/2012 generated many appeals to this Court namely SC/647/2013; SC 648/2013; SC/650/2013 and S.C/650A/2013, apart from cross appeals.

The instant appeal, No. SC/890/2014, is against the judgment of the lower court on the cross appeal No. CA/IL/71A/2012 and tags along a preliminary objection and a cross appeal

In the appellant brief filed on 2/3/15 by the leading learned Senior Counsel for appellant, CHIEF R.A. LAWAL-RABANA, SAN and adopted in argument of the appeal on the 28th day of April, 2016, the following two issues have been formulated for the determination of the appeal.

"1.     Whether the learned Justices of the Court of Appeal were not in error when they struck out issues one and two raised by the appellant on the basis of the earlier decision in the sister appeal CA/IL/71/2012.

2.     Whether the learned Justices of the Court of Appeal were not in error when they failed to exercise their powers under section 15 of the Court of Appeal Act to make consequential order(s) based on the evidence on record in support of the counter claim having held that the counter claim were not statute barred:

I have stated that the 1st - 3rd respondents in the appeal filed a cross appeal against the decision of the lower court to the effect that the counter claim of appellants is not statute barred and consequently filed a cross appellant brief on the 15th day of June, 2015 through learned Senior Counsel, JOHN OLUSOLA BAIYESHEA SAN in which the following three issues have been identified for determination, to wit-

"1.    Whether the cause of action in this case accrued in 2010 and not 1970 and, if the cause of action accrued in 1970, whether the case of the counter claimants/1st – 5th cross-respondents is not statute barred. (Grounds. 2, 3, 5, 6 and 9 of the cross-appellants' Grounds of Appeal).

2.    Whether in view of the facts and circumstance of this case the lower court's decision that the counter-claim is not statute barred is just and equitable (Ground 4 of the cross-appellants' Grounds of Appeal).

3.    Whether the lower court was right when it dismissed grounds 2 3, 4 and 5 of the cross-appellants' preliminary objection (Ground 1 of the Cross - Appellants Grounds of Appeal) ''

It should also be pointed out that the 1st – 3rd respondents in the main appeal raised an objection to the appeal which was argued in the 1st – 3rd respondents: brief filed on 20th April, 2015 by learned Senior Counsel, JOHN O. BAIYESHEA, SAN and adopted in argument at the hearing of the appeal on the 28th day of April 2016.

The grounds of the objection are as follows:-

"1.   That ground 2 in the notice of appeal does not emanate from the decisions of the lower court.

2.    That ground 2 is a new or fresh issue/ground raised for the first time in this Court.

3.    That no leave of this court was sought prior to the filing of the notice of appeal/grounds of appeal.

4     Ground 2 is a ground of mixed law and fact/ground of fact atone.

5.     Ground 1 is a ground of fact/mixed law and fact

6     That the requisite leave of court pursuant to section 233(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) was not sought and obtained in this case before filing the grounds of appeal in this case. The two grounds of appeal require leave of the court before filing same.

7.    That this Court lacks jurisdiction to hear this appeal."

However, and by way of an alternative, learned Senior, Counsel formulated the following two issues for the determination of the main appeal in the said 1st - 3rd respondent’s brief filed on 28/4/15:

"1.   Whether the learned Justices of the Court of Appeal were right when they struck out issues one and two raised by the appellant on the basis of issue estoppel.

2.       Whether the learned Justices of the Court of Appeal were not in error when they failed to exercise their power under section 15 of the Court of Appeal Act to make consequential order(s) based on the evidence on record in support of the counter claims having held that the counter claim was not statute barred?"

Having regard to the facts of this case, the issues in contention, I intend to deal with the preliminary objection first followed by issue 1 of the cross appeal as it deals with the competence of the counter-claim. It is only after a finding that the counter claim is competent or that the lower court is right in holding that it is competent, that we can properly proceed to determine the other issue(s) in contention between the parties. I therefore proceed to determine the preliminary objection, the grounds of which had earlier been reproduced in this judgment.

Learned Senior Counsel for 1st - 3rd respondents formulated a single issue for the determination of the objection. It is as follows:
 
Whether, considering the grounds of appeal in this case, this Court has the jurisdiction to hear this appeal"

It is the submission of learned Senior Counsel that ground 2 of the grounds of appeal herein is grossly incompetent as well as the issue formulated therefrom in that the ground does not emanate from the decision(s) of the lower court, relying on the case of Merchantile Bank of Nigeria, PLC vs Linus Nwobodo (2005) All FWLR (pt. 281) 1640 at 1647 -1648; A-G and Obatoyinbo vs Oshatoba (1996) 5 NWLR (pt. 450) 531 at 549. The reason for submitting that ground 2 of the grounds of appeal does not arise from the decision of the lower court is that it states/complains that the lower court "refused, neglected and or failed to make pronouncement………." on the point appealed against; that the issue of applicability of section 15 of the Court of Appeal Act was not raised in the lower court neither was it considered by the court thereby rendering the issue a new/fresh one needing leave of court to raise; that failure to obtain the prior leave of court to raise the issue makes the issue incompetent and robs the court of the jurisdiction to hear and determine same for which learned Senior Counsel cited and relied on the case of Madukolu vs Nkemdilim (1962) NSCC 374 at 379; that since appellant failed to raise the issue of applicability of section 15 of the Court of Appeal Act in the lower court appellant cannot raise it in this Court under the provisions of section 22 of the Supreme Court Act; that appellant also failed to obtain leave of court to file the said ground 2 contrary to the provisions of section 233(3) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the ground being of fact or mixed law and fact.

On ground 1 of the grounds of appeal, learned Senior Counsel is of the view that the ground raised the issue of issue estoppel which calls for evaluation of the facts of the case vis-a-vis the decision of the lower court in the sister appeal (CA/IL/71/2012) as well as the facts of this case before application of the law, making same a ground of mixed law and fact for which leave is needed; that failure to obtain the leave renders the ground incompetent and liable to be struck out - relying on C.C.C.T.C.S Ltd vs Ekpo (2008) 6 NWLR (pt. 1083), 362 at 407 - 409; Akinyemi vs Odua Investment Co. Ltd (2012) 17 NWLR (pt. 1329)209 at 230-231.

Learned Senior Counsel finally urged the court to strike out the appeal.

In the reply brief filed on 7/4/16, learned Senior Counsel for cross respondent CHIEF R.A. LAWAL-RABANA, SAN submitted that the objection to ground 1 of the grounds of appeal on the ground that it is incompetent is misconceived having regard to the classification of grounds of appeal in the case of NNPC vs Fama Oil Ltd (2012) 17 NWLR (pt. 1328) 148 at 175 - 176; Ajuwa vs S.P.D.C.N. Ltd (2011) 18 NWLR (pt. 1279) 822 - 823; Akinyemi vs Odua Inv. Co. Ltd (2012) 17 NWLR (pt. 1329) 209 at 230 - 231; that ground 1 is a ground of law requiring no leave of court as it calls for the determination of what constitutes issue estoppel.

On ground 2, learned Senior Counsel submitted that the contention that the ground does not arise from the judgment on appeal is erroneous; that the lower court, haven come to the conclusion that the counter claim was not statute barred ought to have proceeded to determine same and not doing so constitutes the complaint of appellant, that the case of Merchantile Bank of Nigeria Plc vs Nwobodo supra; A-G and Obatoyinbo vs Oshatoba (supra) cited and relied upon by Senior Counsel for 1st – 3rd respondents are irrelevant; that learned Senior Counsel for 1st - 3rd respondents is also in error in his submission on section 15 of the Court of Appeal Act - the fact that it was not raised in the lower court - and submitted that once the lower court came to the conclusion it reached on the issue of the claim not being statute barred, the application of the section became automatic as the power is inherent in the court; that the non-application of the said section 15 of the Court of Appeal Act is, in the circumstance, not a fresh issue for which leave is required: that the issue involves substantial question of law which the court should entertain to avoid miscarriage of justice, relying on Adio vs State (1986) 2 NWLR (pt. 24) 581 at 588; Ajuwon vs Adeoti (1990) 3 S.C (pt. 11) 76 at 87; Ucha vs Elechi (2012) 13 NWLR (pt. 1317)330 at 362.

Finally, learned Senior Counsel urged the court to overrule the objection.

I have carefully gone through the record and arguments of Counsel for the contending parties on the preliminary objection. The question is whether ground 1 of the grounds of appeal is on mixed law and fact thereby requiring the leave of this Court. The complaint in ground 1 of the grounds of appeal is as follows:-

“    The learned Justices of the Court of Appeal erred in law when they upheld the preliminary objection of the 1st - 3rd Respondents on the ground of issue estoppel and struck out grounds one and two of the Appellant's Notice of Appeal and the two issues formulated therefrom on basis of their earlier decision in the sister appeal CA/IL/71/2012."

I have to point out that the complaint above is not estoppel simpliciter but on issue estoppel; it is not estoppel per rem judicatam, per conduct, per record etc but issue estoppel.
 
What then is issue estoppel and whether a complaint on it is of law or mixed law and fact?

In the case of Fadiora vs Gbadebo (1978) 3 S.C 219 at 228, IDIGBE, J.S.C stated, inter alia, as follows:-

“    Now there are two kinds of estoppel by record inter parties or per rem judicatam, as it is generally known. The first is usually referred to as cause of action estoppel and it occurs where the cause of action is merged in the judgment……… Therefore, on this principle of law (or rule of evidence) once it appears that the same cause of action was held to lie (or not to lie) in a final judgment between the same parties, or their privies, who are litigating in the same capacity (and on the same subject matter), there is an end of the matter. They are precluded from re-litigating the same cause of action. There is however, a second kind of estoppel inter parties and this usually occurs, where an issue has earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in these circumstances issue estoppel arises. This is based on the principle of law that a party is not allowed to (i.e he is precluded from) contending the contrary or opposite of any specific point which having been once distinctly out in issue, has with certainty and solemnity been determined against him."
Emphasis supplied by me.

From the above, it is clear that a complaint in a ground of appeal as to what constitutes an issue estoppel is in the realm of legal principles or legal interpretation of terms of art and inference drawn therefrom and consequently a ground of law. See the classification of grounds of appeal in N.N.P C. vs FAMA OIL Ltd supra; Nwadiku vs Ibekwe (1987) 12 S.C (Reprint) 12; Ajuwa vs S.P.D.C.N. Ltd (2011) 18 NWLR (pt. 1279) 797 at 822 - 823 etc.

With respect to ground 2 of the grounds of appeal, the complaint is as follows:-

“    The learned Justices of the Court of Appeal erred in Law when they refused, neglected and or failed to make a pronouncement on the substance of the appellant's counter claim, having held that the counter claim was not statute barred, in line with the powers under section 15 of the Court of Appeal Act, thereby leaving a vacuum as the prospect of the Counter Claim."

Can it be said that the above ground of appeal does not emanate from the judgment of the lower court? The answer is obviously in the negative. It is not in dispute that the lower court agreed with the appellants that the counter-claim was not statute barred. It is also not in dispute that the lower court, haven so found, did not proceed to determine the appeal on the merit or otherwise of the said counter claim which it has found to be extant. The complaint of appellant before this Court - in ground 2 of the grounds of appeal is simply against the failure or neglect of the lower court to so pronounce on the counter-claim. Even the blind should see it as such.

It should be noted that three issues were submitted to the lower court for determination including the issue as to whether the trial court was right in holding that the counter claim was statute barred These issues are as follows:-

"(1)     Whether on the state of the facts as borne out of the pleadings and evidence adduced by the parties, the findings by the that court that there are two ruling houses in Offa, Olugbense and Anilelerin ruling houses are correct and sustainable.

(2)    Whether "Exhibit J" established any ruling house in Offa, or has set aside the curse on Olugbense house as to constitute the latter in a ruling house under the Offa native law and custom.

(3)    Whether the counter claim of the 1st - 5th defendants/appellants is statute barred."

Appellant's complaint in this ground 2 is simply that the lower court ought to have proceeded to determine the counter claim in line with issues 1 and 2 after holding that the counter claim was not statute barred and that failure to do so constitutes an error in law!!
 
On the issue as to non-raising of application of section 15 of the Court of Appeal Act before the lower court, I agree with the submission of learned Senior Counsel for appellant that the lower court was bound to apply the said provision haven come to the conclusion it reached on issue 3 supra. In any event, if the court had resolved issues 1 and 2 supra, the question of application of section 15 of the said Act would not have arisen.

Finally, I hold the strong view that the issue is not a fresh one which needs the leave of this Court particularly as the questions involve substantial points of law which needed determination to avoid a miscarriage of justice. See Adio vs State (1986) 2 NWLR (pt. 24) 581 at 588.

In conclusion, I find no merit whatsoever in the preliminary objection raised by Senior Counsel for 1st - 3rd respondents and accordingly dismiss same.

Turning now to the issues raised in the main appeal and cross appeal, I am of the opinion that cross appellants' issues 1 and 2 which should be considered together, should come first, before the issues raised for determination in the main appeal, particularly as the said issues 1 and 2 of the cross appeal raised the question as to the existence or accrual of a cause of action in relation to the Counter Claim, subject matter of the appeal before the lower court. I therefore proceed to consider the said issues accordingly.

For emphasis issues 1 and 2 of the cross appeal are as follows:-

"1.     Whether the cause of action in this case accrued in 2010 and not 1970 and, if the cause of action accrued in 1970, whether the cause of the counter-claimants/1st – 5th cross respondents is not statute barred. (Grounds 2, 3, 5, 6 and 7 of the cross appellants' Grounds of Appeal)

2.     Whether in view of the facts and circumstance of this case the lower court's decision that the counter-claim is not statute barred is just and equitable (Ground 4 of the cross appellants' Grounds of Appeal):

I must point out from the onset, in relation to issue 2, supra, that a decision of a court of law on an issue as to whether an action is statute barred or not is a matter of law which has nothing to do with equity. If a court holds that an action is statute barred or not statute barred, the only issue that can arise, from such a decision is whether the decision is right in law or not. You cannot say that such a decision is right in law but wrong in equity. It is for the above reason that I do not intend to consider the said issue 2. It is hereby discountenanced.
 
It is the contention of learned Senior Counsel for cross appellants that it is the case of the plaintiff that determines when the cause of action accrued, relying on Woherem vs Emereuwa (2004) All FWLR (pt. 221) 1570 at 1581; that the case of the counter-claimants is based on two claims, viz;

(a)    that there is only one ruling house in Offa which is Anilelerin; and

(b)    that the Gazette made in 1970 recognizing Olugbense and Anilelerin as ruling houses in Offa be set aside as same, according to them, is contrary to the native law and custom of Offa;

that from the evidence as well as pleadings, there is no doubt as to when Olugbense ruling house was recognized as a ruling house in Offa which is in 1970 vide the Gazette and that the cause of action as to the existence or recognition of Olugbense ruling house accrued in 1970 not in 2010, as erroneously held by the lower court, relying on the case of Uwaifo vs A-G: Bendel State & ors (1982) vol. 13 NSCC 221 at 269 - 270 which held that the cause of action in that case arose on the date when Edict No. 10 of 1977 was promulgated and the property of appellant forfeited; that exhibit ‘J’ the Gazette, provided for a commencement date of December, 1969; that either way, the counter claim is statute barred; that counter-claimants were aware of the existence of exhibit 'J' that exhibit 'J' was not challenged within 3 months of its enactment in 1970 and, cannot be challenged thereafter, relying on Nasir vs Civil Service Commission. Kano State (2010) 2 SCNJ 184 15 198; Forestry vs Gold (2007) 5 SCNJ 302 at 314; section 2 of Public Officers Protection Law Cap. 111 Laws of Northern Nigeria, 1963 as applicable to Kwara State in 1969.

It is also the submission of learned Senior Counsel for cross appellants that the law applicable to Chieftaincy matters as at 1970 is the 1963 Constitution of Nigeria which ousted the jurisdiction of the courts on chieftaincy matters, particularly section 78(6) thereof and section 11 of the

Chiefs (Appointment and Deposition) Law of Northern Nigeria Cap. 20 of 1963; that by the provisions of Decree 28 of 1970 applicable to the cause of action in 1970, exhibit J cannot be challenged by the cross respondents; that the case of Edjerome vs Ikine (2001) 12 SCNJ 184 relied upon by the lower court in coming to the conclusion that the counter claim was not statute barred is distinguishable from the facts of this case; that even a letter of appointment of a Chief by a Military Administrator has been held by this Court to enjoy the protection of the Public Officers Protection Act, section 2, and can only be challenged within three months of its issuance, much less exhibit J which is a Gazette made by the Military Administration, relying on the case of Alh. Ibrahim vs Alh. Maigida Lawal (2015) LPELR and urged the court to resolve the issue in favour of cross appellants and dismiss the counter claim of the appellant.

On his part, learned Senior Counsel for cross respondents, CHIEF R.A. LAWAL-RABANA, SAN stated that exhibit ‘J’ was made in 1970 to have a retrospective effect from December, 1969 and that it makes provisions for the procedure to adopt in the selection of Olofa of Offa but that the late Olofa of Offa, ascended the throne in 1970 and remained on it until his death in 2010; that there was no need to put exhibit ‘J’ into operation until the death of the late Olofa of Offa, when the Olugbense Ruling House along with Anilelerin Ruling House were called upon to present candidates to fill the vacancy - in line with exhibit ‘J’ that the process so initiated produced the appellant/5th cross respondent as the Olofa of Offa which was not accepted by the cross appellants hence the action, challenging the appointment of 5th cross respondent as the Olofa of Offa; that by way of a cross action, the 1st – 5th cross respondents challenged the provisions of exhibit 'J' on the ground that it is inconsistent with the Native Law and Custom of Offa people.

Learned Senior Counsel referred the court to the decision in J.F.S. INV. LTD VS BRAWALLINE LTD (2010) 19 NWLR (pt. 1225) 494 at 534 where this Court laid down the process for determining whether an action is statute barred.

It is the submission of learned Senior Counsel that the cause of action of the cross respondents accrued in 2010 when the cross appellants were called upon to make nomination for the position of Olofa of Offa in accordance with exhibit 'J' via exhibit ‘K’ and not in 1969 or 1970 when the said exhibit 'J' came into effect.

Learned Senior Counsel then proceeded to give a definition of “cause of action" by quoting from the decision of this Court in Edjerome vs Ikine (2001) 12 SCNJ 184 at 198 and Onuekwusi vs R.T.C. MZ.C (2011) 6 NWLR (pt. 1243) 341 at 359 – 360, and submitted that the approach adopted by the lower court in coming to the decision that the counter claim was not statute barred is in conformity with the requirements of the law as laid down; that the wrongful provision of exhibit 'J' merely gave the 1st - 5th cross respondents the cause of complaint leaving the second element of “consequent damage'' in abeyance as affirmed by the lower court at page 41 of the judgment; that it is of no moment that exhibit "J" was in existence for about 40 years and the cross respondents did not challenge it as there was no cause for it; that the fact that an action is founded on a document does not necessarily mean that the cause of action in respect thereof arose on the date of the document; that neither the date of commencement of exhibit ‘j’ i.e 1969 nor its promulgation in 1970 is synonymous with the date when the cause of action in the counter claim accrued; that the case of Uwaifo vs A-G, Bendel State supra does not apply as the Edict No. 10 of 1977 involved in the matter actually forfeited the property of the appellant therein at the date it was promulgated thereby making the cause of complaint and damage simultaneous; that the case of Ikine vs Edjerome, supra, is relevant to the facts of this case particularly the lead judgment of Ejiwunmi, JSC constitutes the ratio decidendi in the case - see pages 199 -200 of the report.

On the issue that exhibit 'J' cannot be challenged having regard to the provisions of the 1963 Constitution which ousted the jurisdiction of the courts, learned Senior Counsel submitted that the submission on the issue amounts to raising a fresh issue as the matter was neither raised at the trial court nor at the lower court and no leave of court had been obtained before raising it here.

In the alternative, learned Senior Counsel submitted that