ONI & ANOR v. GOV., EKITI STATE & ORS
(2020)LCN/15434(CA)
In The Court Of Appeal
(ADO-EKITI JUDICIAL DIVISION)
On Wednesday, November 18, 2020
CA/EK/06/2020
RATIO
ESTOPPEL PER REM JUDICATAM: CONDITIONS TO BE SATISFIED FOR A SUCCESSFUL PLEA OF ESTOPPEL PER REM JUDICATAM
The rule of estoppel per rem judicatam, requires that where a final decision is given by a Court of competent jurisdiction, the parties thereto cannot be heard to contradict that decision in any subsequent litigation between them in respect of the same subject-matter. As a plea, the decision operates as a bar to a subsequent litigation and as evidence; it is conclusive between the parties to it. The plea applies where a Court has given a final decision on the matter like deciding that it has no jurisdiction to entertain a matter and there is no appeal against it. The A.G referred the Court to Section 54, of the Evidence Act 2011, as well as the cases of Bonny v Yougha (1969) ANLR 388 at 393; Agu v Ikewibe (1991) 3 NWLR (Pt. 180) at 412 H and Iyaji v Eyigebe (1987) 3 NWLR (pt.61) 523 at 533.
For emphasis A.G reiterated the fact that, the plea of res judicata is to ensure that no one is proceeded against the second time, if it is proved that the present action is for the same cause which has been decided by a Court of competent jurisdiction. He referred to the cases of Obikpon v Offiong (2000) 3 NWLR (Pt. 648) 324 at 332; Adone v Ikebudu (2001) 14 NWLR (Pt 733) 385; Maya v Oshuntokun (2001) 11 NWLR (Pt.723) 62.
The A.G without equivocation put the subject matter of this case as being the same with the location or relocation of the headquarters of Ilejemeje Local Government Council from lye-Ekiti to Eda-Oniyo Ekiti.
The conditions to be satisfied before a successful plea of estoppel per rem judicatam can succeed, the party relying on it must prove that:-
1. The parties or their privies are the same in both previous and present proceedings;
2. The claim or the issue in dispute in both proceedings is the same;
3. The res or subject matter of the litigation in the two cases is the same;
4. The decision relied upon to support the plea of estoppel per rem judicatam must be valid, subsisting; and
5. The Court that gave the previous decision relied upon to sustain the plea must be a Court of competent jurisdiction. PER FATIMA OMORO AKINBAMI, J.C.A.
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
Fatima Omoro Akinbami Justice of the Court of Appeal
Paul Obi Elechi Justice of the Court of Appeal
Between
- OBA JONATHAN A. ADELEYE ONI (The Oniye Of Lye-Ekiti) 2. ENGR. ELIJAH OLUFEMI KUPOLATI (President, Lye Development Association) (For Themselves And On Behalf Of The People Of Lye-Ekiti Community) APPELANT(S)
And
- THE GOVERNOR OF EKITI STATE 2. THE ATTORNEY-GENERAL OF EKITI STATE 3. OBA JULIUS A. AWOLOLA (The Eleda Of Eda-Oniyo-Ekiti) RESPONDENT(S)
FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): On the 1st of October, 1996, the Federal Military Government of Nigeria, by the State’s Creation Transitional Provisions Decree NO. 36 of 1999 created among others, Ekiti State with Ilejemeje Local Government Area as one of the constituent Local Governments. The headquarter of this Local Government was located at Eda-Oniyo, the town where the 3rd Respondent herein is the paramount traditional Ruler. Soon after the creation of the Local Government Area, the machinery of the Local Government was established in Eda-Oniyo. The Chairman of Ilejemeje Local Government Council and the staff of the Local Government moved to Eda-Oniyo and set up all the required administrative machinery.
The Council operated for nearly three months before its Headquarters was relocated from Eda-Oniyo Ekiti, to lye-Ekiti through a letter dated 12th March, 1997 which purportedly emanated from the office of the Chief of General Staff.
In protest, the 3rd Respondent contacted the office of the head of State, which informed him that the Federal Military Government had not ordered the relocation of the Local Government headquarter from Eda-Oniyo to lye-Ekiti. Subsequent action of the Federal Military Government and all official correspondences with Ilejemeje Local Government confirmed Eda-Oniyo, as the head quarter of the Local Government.
After the purported relocation of the Council’s Headquarter, the Federal Military Government subsequently made two Decrees which re-affirmed Eda-Oniyo Ekiti as the Headquarter of Ilejemeje Local Government Council.
These two Decrees are:
(A) Local Government (Basic Constitutional and Transitional Provisions) Decree No. 7 of 1997.
(B) Local Government (Basic Constitutional and Transitional Provisions) Decree No.36 of 1998.
Sometimes in 1999, the Ekiti State Government enacted the Local Government Administration Law No 2 of 1999.
The said Local Government Law which listed lye-Ekiti in the said schedule as the Headquarter of Ilejemeje Local Government Council came into effect on 26th November, 1999 well over three months after the 3rd Respondent instituted Suit No. HAD/56/99 challenging the purported relocation of the Council Headquarter from Eda-Oniyo Ekiti to lye-Ekiti. Suit No. HAD/56/99 filed by the 3rd Respondent eventually culminated in a subject of appeal before the apex Court in Suit NO SC.194/2008, wherein judgment was delivered on 14th December, 2018 in favour of the 3rd Respondent.
It was after the delivery of the judgment by the Supreme Court that the Appellants on record instituted the instant suit at the lower Court over the same subject matter of relocation of the Council’s Headquarter from Eda-Oniyo Ekiti to lye-Ekiti.
This appeal is against the judgment of the Lower Court delivered on the 19th November, 2019. The appeal was premised on five ground:-
1. To the effect that the lower Court erred in law and fact for failing to give effect to the Local Government Administration Law No.2 of 1999, which had effectively relocated the Headquarters of Ilejemeje Local Government Council to lye-Ekiti.
2. The trial Court erred in law and fact when it concluded that the decision of the Supreme Court in SC. 194/2008-Awolola v Governor of Ekiti State is binding on it.
3. The trial Court erred in law when after acknowledging that the Administration of Local Government Law No.2 of 1999 was not brought to the attention of the Supreme Court in its determination of Suit. No SC 194/2008- Awolola v Governor of Ekiti State.
4. The trial Court misdirected itself in its holding that:
“the proper thing to do in the circumstance is to go back to that Court with Law No. 2 of 1999 of Ekiti perhaps urging the Supreme Court to review its judgment of 14th December, 2018.”
5. The trial Court erred in law and fact when it held that the Appellants’ suit was a re-litigation of the same matter or issue that had been determined by the Supreme Court in SC 194/2008- Awolola v Governor of Ekiti State.
The appellants, in their brief of argument dated 27th February, 2020 but filed on 28th February, 2020 deemed properly filed 1st July, 2020 identified and formulated two issues for determination thus:
1. Whether the judicial Order in Awolola v Governor of Ekiti State & Ors of 14th December, 2018 recognizing Eda Oniyo-Ekiti as the headquarters of Ilejemeje Local Government, made at a time the Court was unaware of the Statutory Law, to wit: Local Government Administration Law No.2 of 1999 which had established and statutorily backed up lye-Ekiti as the headquarters since 26th November, 1999, overrides or prevails against Law No.2 of 1999 and subverts its effect. (Grounds 1, 2, and 3 of the Notice of Appeal dated 18th December, 2019).
2. Whether the Appellants’ case is a re-litigation of Suit No. 194/2008: Awolola v Governor Ekiti State & 2 Ors which warrants the trial Court’s directive to the Appellants to apply to the Supreme Court for review as the proper means of redressing the Appellants’ grievance in this case. (Grounds 4 and 5 of the Notice of Appeal).
The 1st and 2nd Respondents, on their part filed a notice of preliminary objection that the Appellants’ case as presently constituted in this appeal is Res judicata, patently incompetent and liable to be dismissed. At the hearing of the appeal learned counsel for the 1st and 2nd Respondents informed this Court that the preliminary objection predicated on two grounds, has been argued at paragraphs 4.00 – 5.00 of their brief of argument dated 25th June, 2020 and deemed properly filed and served vide the order of this Court made on 1st of July, 2020. And at paragraph 6.01 of the same brief of argument, the 1st and 2nd Respondents distilled four issues for determination, to wit:
1. Whether the Appellants’ case is not an abuse of Court process.
2. Whether the decision in Awolola v Governor Ekiti State & Ors delivered on 14th December, 2018 was reached per incuriam and if so whether the Appellants should not have approached or joined the suit at the Supreme Court for a review of the judgment.
3. Whether State Law can take precedence over Federal Law.
4. Whether the lower Court has power to review the judgment once delivered by the Supreme Court.
The third (3rd) Respondent’s brief of argument, dated 26th day of June 2020, was filed on 29th June, 2020.
In it, two issues for determination were identified to wit:
1. Whether the lower Court was right when it held that the proper thing for the Appellants to do in the circumstance was to go back to the Supreme Court with Law No. 2 of 1999 of Ekiti State for a review of its decision of 14th December, 2018.
2. Whether the Local Government Administration Law No.2 of 1999, constituted a valid legal basis for the relocation of the Headquarters of Ilejemeje Local Government Council from Eda-Oniyo Ekiti to lye-Ekiti.
It is noteworthy that the Appellants on receipt of the respective briefs of argument of the 1st, 2nd, and 3rd respondents, filed a joint reply on points of law to the said briefs of argument and 1st and 2nd Respondents’ notice of Preliminary Objection. Appellants’ counsel with the leave of the Court adopted his response to the 1st and 2nd Respondents’ preliminary objection as contained in the Appellants’ reply on points of law to the 1st and 2nd Respondents’ brief of argument dated 13th July, 2020.
It must be noted that the Appellants filed List of Additional Authority – Judgment per Aladejana J. Dated 10th December, 2001 in Suit No. HAD/56/99: Awolola v Governor of Ekiti State & 2 Ors. Note pages 1, 2, 20 and 21 of the judgment.
It is expedient to first consider and determine the 1st and 2nd Respondents’ notice of preliminary objection, before considering the Appellants’ appeal.
The grounds upon which the preliminary objection of the 1st and 2nd Respondents is laid are couched as follows:
1. That the case of the Appellant as presently constituted in this appeal has been finally determined by the Supreme Court.
2. By the doctrine of Res-judicata and stares decisis the Appellants’ appeal is liable to be dismissed.
Arguing the preliminary objection for the 1st and 2nd Respondents, Olawale Fapohunda Esq., Attorney-General, Ekiti State submitted that the Appellants’ case as presently constituted in this appeal has been finally determined by the Supreme Court in SC. 194/2008 – Awolola v Governor of Ekiti State, via its judgment delivered on the 14th December, 2018 relocating the headquarter of Ilejemeje Local Government Council from lye-Ekiti to Eda-Oniyo, where it was originally located via State Creation and Transition Decree No 36 Volume 83 of 1996. That the Supreme Court has by its judgment of 14th December, 2018 ordered the relocation, and the 1st and 2nd Respondents had complied. It is upon the action of the 1st and 2nd Respondents’ complying with the Supreme Court’s judgment, that the Appellant commenced the action leading to this appeal which action is incompetent and liable to be dismissed.
On the doctrine of res-judicata counsel enumerated the five conditions that must be present and met i.e:-
1. The parties must be the same including their privies or was in rem.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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2. The parties must be given the opportunity of being heard.
3. The subject matter must be the same.
4. The subject matter must have been decided by a Court of competent jurisdiction.
5. The decision must be final and on the merit.
He referred to the case of Dauda v A.G Lagos State (2011) 13 NWLR (PT 1265) 427 at 446-448.
Counsel submitted that in this instant case, all the above enumerated conditions are present. The parties are the same in both the earlier suit and this present suit. The Appellants who were not parties in the earlier suit have admitted in their affidavit on page 5, of the record of appeal, (paragraphs 6-11 of the Appellants’ Affidavit in support of Originating Summons at the lower Court) that they were aware of the institution of the matter in Court, which case they followed up to the Supreme Court, where the final judgment was given. Also Appellants’ counsel was a counsel in the earlier suit, even up to the Supreme Court They never at any time applied to be joined as parties, in the suit so as to enable them present their case based on the Local Government Administration Law being relied on by them, thereby giving the trial judge the opportunity of deciding whether they are necessary parties who will be affected by the decision of the Court. A.G contended that since they have elected to watch until the matter was finally laid to rest, they are estopped from re- litigating the matter afresh. He cited the case of Dauda v Lagos State (supra) 447, and concluded that the Appellants slept on their rights. A.G gave the reasons for the doctrine of res judicata estoppels as the interest of the public in the determination of disputes, the antecedents of judicial decision and the fact that the individual ought to be protected from vexatious suit and multiplicity of suits.
The fact was reiterated by A.G that, once the Supreme Court has ruled on a matter, parties are bound by its decision, and same cannot be a subject matter of litigation again. He referred to the case of Okonkwo v FRN (2011) 11 NWLR (pt 215) 250. Referring to this appeal, A.G contended that to allow this appeal would be to re-litigate a matter already decided by the Apex Court, and to decide otherwise will amount to this Honorable Court reviewing and acting in an Appellate capacity over the Supreme Court judgment. He again referred to the case of Okonkwo v FRN (supra) at 251, where the Court held that a lower Court in the judicial hierarchy has no power, authority or jurisdiction to review the decision or determination of a higher Court in any case under any pretext in a latter case. And in Mohammed v Olawunmi 1993 4 NWLR (Part 287) page 254 as well as Halsbury’s Laws of England, 3rd Edition Vol 15, paragraph 359, the position of the law as regards the plea of res judicata was well enunciated.
A.G further contended that, the Appellants ought to have gone before the Supreme Court for judicial review, on the argument that the judgment of the Supreme Court delivered on the 14th December, 2018 was delivered in error, without considering the Local Government Administration Law. In that no other Court, can review the decision of the Supreme Court other than itself. Therefore to ask the lower Court to review the said judgment will amount to judicial summersault and rascality. He therefore urged this Court in this circumstance to dismiss this Appeal in its entirety.
The point was reiterated by the A.G that based on the doctrine of res judicata, where Court of competent jurisdiction has settled, by a final decision, the matters in dispute between the parties, none of the parties or their privies may re-litigate that issue again by bringing a fresh action.
The estoppel created is said to be by record inter pares. The rule of estoppel per rem judicatam, requires that where a final decision is given by a Court of competent jurisdiction, the parties thereto cannot be heard to contradict that decision in any subsequent litigation between them in respect of the same subject-matter. As a plea, the decision operates as a bar to a subsequent litigation and as evidence; it is conclusive between the parties to it. The plea applies where a Court has given a final decision on the matter like deciding that it has no jurisdiction to entertain a matter and there is no appeal against it. The A.G referred the Court to Section 54, of the Evidence Act 2011, as well as the cases of Bonny v Yougha (1969) ANLR 388 at 393; Agu v Ikewibe (1991) 3 NWLR (Pt. 180) at 412 H and Iyaji v Eyigebe (1987) 3 NWLR (pt.61) 523 at 533.
For emphasis A.G reiterated the fact that, the plea of res judicata is to ensure that no one is proceeded against the second time, if it is proved that the present action is for the same cause which has been decided by a Court of competent jurisdiction. He referred to the cases of Obikpon v Offiong (2000) 3 NWLR (Pt. 648) 324 at 332; Adone v Ikebudu (2001) 14 NWLR (Pt 733) 385; Maya v Oshuntokun (2001) 11 NWLR (Pt.723) 62.
The A.G without equivocation put the subject matter of this case as being the same with the location or relocation of the headquarters of Ilejemeje Local Government Council from lye-Ekiti to Eda-Oniyo Ekiti.
The conditions to be satisfied before a successful plea of estoppel per rem judicatam can succeed, the party relying on it must prove that:-
1. The parties or their privies are the same in both previous and present proceedings;
2. The claim or the issue in dispute in both proceedings is the same;
3. The res or subject matter of the litigation in the two cases is the same;
4. The decision relied upon to support the plea of estoppel per rem judicatam must be valid, subsisting; and
5. The Court that gave the previous decision relied upon to sustain the plea must be a Court of competent jurisdiction.
The A.G emphasized that, unless the above pre-conditions are established, the plea of estoppel per rem judicatam cannot be sustained. In that it is entirely a question of fact, whether the parties and their privies, and the subject matter of the claim are the same, in both the previous and present suits. The plea operates not only against the parties, but also against the jurisdiction of the Court itself and robs the Court of its jurisdiction to entertain the same cause of action on the same issues previously determined by a Court of competent jurisdiction between the same parties.
Finally, the A.G urged this Court to uphold the preliminary objection, and dismiss this appeal as the lower Court has rightly done on the ground that the Supreme Court judgment delivered on the 14th December, 2018 in SC. 194/2008- Awolola v Governor of Ekiti State constitute a final decision.
The Appellants in their reply to the preliminary objection of the 1st and 2nd Respondents, which they contend is anchored on the fact that this case is affected by res judicata, which robs the Court of jurisdiction. Appellants’ counsel pointed out that the issue of res judicata is contained in Ground 4 (iv) and(v) of their Notice of Appeal. And furthermore, their second issue for determination on the issue whether this action is a re-litigation of Suit No. 194/2008- Awolola v Governor of Ekiti State & Ors deals with the issue of res judicata. See paragraphs 5.6 – 5.21 of the Appellants’ Brief. Learned counsel adopted the same arguments. He contended that the issue of Law No.2 of 1999, which was pronounced on in Awolola v Governor of Ekiti State & 2 Ors gives right to the Appellants to approach the Court. And Law No.2 gives them a right. Ubi jusibi remedie: where there is a right, there is a remedy. See paragraphs 5.36-5.41 of the Appellants’ Brief.
The Appellants’ counsel concluded in paragraph 5.20 of their Brief that, this action is by no means a re-litigation of the previous case, and that the doctrine of res judicata was inappropriately applied in this case.
Appellants’ counsel submitted that it is odd, and wrong for the 1st and 2nd Respondents to fix their preliminary objection on Appellants’ ground 3, which ground and the issue relating thereto have been argued in the Appellants’ Brief.
He cited the case of N.E.P.A V Ango (2001) 15 NWLR (Pt.733) 627.
Appellants’ counsel contended further that the 1st and 2nd Respondents’, preliminary Objection which is based on the Appellants’ Ground 3 of the Notice of Appeal is misconceived. Whilst Ground 2, of the 1st and 2nd Respondents’ Objection is on the doctrine of judicial precedent/stare decisis. That on pages 5, 6, 7, 8, 9, 10, and 11 of 1st and 2nd Respondents’ brief, they failed to offer any argument on the ground relating to judicial precedent/stare decisis. This Court is urged to strike out the aspect relating to stare decisis, and look at the arguments in paragraphs 4.42, 4.43, 4.44 of Appellants’ Brief in establishing that the Supreme Court case of Awolola v Governor of Ekiti State, is distinguishable from this case.
Finally, this Court was urged to discountenance the preliminary objection.
Now, the issues formulated for determination by the appellants in their brief of argument for determination in this appeal, had been reproduced earlier in this judgment. The said issues indisputably, query the validity, sustainability and reliability of the decision of the Supreme Court in Appeal No. SC 194/2008- Awolola v Governor of Ekiti State & Ors delivered on 14th December, 2018 recognizing Eda -Oniyo-Ekiti as the headquarters of Ilejemeje Local Government, made at a time the Court was unaware of the statutory law, to wit: Local Government Administration Law No. 2 of 1999 which had established and statutorily backed up lye-Ekiti as the headquarters since 26th November, 1999, overrides or prevails against Law No.2 of 1999, and subverts its effect.
So, according to the Appellants, the lower Court ought not to have relied on the said judgment of the Supreme Court, when the former dismissed the Appellants’ suit on 19th November, 2019. If the contention of the Appellants’ as indicated in the first leg of the issue for determination in their brief of argument, is not a query or challenge to the validity, sustainability and reliability of the judgment of the Supreme Court in question, then half of 12 is not six and so also six is not half of a dozen!
I am of the very certain opinion that the first issue formulated for determination by the Appellants, in their brief of argument, clearly questions the validity, sustainability and reliability of the Supreme Court judgment in the Appeal No: SC. 194/2008- Awolola v Governor of Ekiti State & 2 Ors.
Undoubtedly, the Appellants’ suit was dismissed by the lower Court on 19th November, 2019, based on the summary of Appellants’ written address wherein they argued and contended that the Supreme Court judgment of 14th day of December, 2018, in Suit No. SC 1194/2008: Awolola v Governor of Ekiti State and 2 Ors was reached per incuriam, as the attention of the Apex Court was not drawn to the existence of Local Government Administration Law No. 2 of 1999, Laws of Ekiti State which statutorily established lye-Ekiti as the Headquarters of Ilejemeje Local Government Council since 26th day of November,1999. That the Appellants were not parties to the decision of the Supreme Court. The learned trial judge asked a simple question – What is the subject matter in contention? He answered that the simple answer is the location or relocation of Ilejemeje Local Government Headquarters at lye-Ekiti or Eda-Oniyo Ekiti. Suit No. SC/194/2008 is between Oba J.A Awolola the Adeda of Eda Oniyo (for himself and on behalf of the entire people of Eda Oniyo ) as the Appellant and;
1. The Governor of Ekiti State
2. The Attorney-General, Ekiti State
3. The Chairman Ilejemeje Local Government, Ekiti State as the Respondents. The Supreme Court in its judgment on 14th December, 2018 allowed the appeal. The effect of which Eda-Oniyo remains the Headquarters of Ilejemeje Local Government.
The decision of the Supreme Court for all intent and purpose is binding on all Courts in Nigeria and effect must be given to same.
The argument of learned counsel for the Appellants that the Appellants were not parties to that suit or appeal holds no water, as the subject matter therein as stated above is the location of the headquarters of Ilejemeje Local Government, and the Chairman of the said Local Government was a party to the appeal.
That aside, the Local Government Administration Law No. 2 of 1999 Ekiti State which learned counsel for the Appellants argued vehemently that it was not brought to the attention of the Supreme Court before its decision of 14th December, 2018 holds no water. Learned counsel Mr. Taiwo Kupolati was counsel for the Chairman Ilejemeje Local Government, if the 1st and 2nd parties failed to draw the attention of the Court to the existence of the Law No 2 of 1999, of Ekiti State, I ask the question Why then did Mr. Kupolati fail to draw the attention of the Supreme Court to it, or is it a ploy to re-litigate the same issue through the back door as it appears in the circumstance of this case?
The Appellants’ first issue for determination in their brief of argument, to my mind, is an invitation to this Court, to pronounce albeit, unwittingly, on the correctness or validity of the Supreme Court judgment in question and whether it was proper for the lower Court to have relied on that judgment by dismissing the appellants’ originating summons on 19th of November, 2019.
I cautiously refuse to be lured into the temptation of pronouncing on the said judgment of the Apex Court. I cannot condemn but commend the lower Court for keeping faith with the time honoured common law doctrine of stare decisis or precedent, by being bound as of course, it was bound to, by the judgment of the Supreme Court in the Appeal No: SC.194/2008.
The doctrine of precedent and respect for the hierarchical order of our Courts and the superiority of the Supreme Court over them all was well stated by Okay Achike JSC (now of blessed memory) in Abacha vs Fawehinmi (2000) 6 NWLR (pt.660) 228 at p. 317 thus:
“It is an inexcusable judicial disrespect or arrogance to dent the subsistence of the hierarchical order of superiority of Nigerian laws as adumbrated by the Supreme Court in Labiyi’s case.
This posture of the lower Court is more startling in the absence of any convincing reason given for that far-reaching proposition of the law when the doctrine of precedent, stare decisis of great antiquity embedded in the English common law, and indeed, an integral part of our law which is anchored in good reason, logic and common sense has not been demonstrated to be manifestly out of step with modern development in law should be blown away by a side-wind. There is therefore no basis whatsoever for the lower Court not to have followed the decision in Labiyi’s case.
The same doctrine was restated by the apex Court in Dalhatu Vs Turaki (2003) 15 NWLR (pt 843) 310 at p.350, inter alia:-
“The doctrine of judicial precedent otherwise known as stare decisis is not alien to our jurisprudence, it is a well settled principle of judicial policy which must be strictly adhered to by all lower Courts.
While such lower Courts may depart from their own decisions reached per incuriam, they cannot refuse to be bound by decisions of higher Coutts even if those decisions of a higher Court were reached per incuriam. The implication is that a lower Court is bound by the decision of a higher Court even where that decision was given erroneously:Emerah & Sons Ltd Vs Attorney General Plateau State & Ors (1990) 4 NWLR (Pt.147) 788; Global Trans Oceanic S.A. v. Free Ent. (Nig) Ltd. (2001) 5 NWLR (Pt.706) 426 at 441”
And more recently in Osakue Vs Federal College of Education Asaba (2010) 10 NWLR (pt.1201) 1 at pp.35 – 36, the Supreme Court re-echoed the doctrine again, to wit:
“In the case of Dalhatu Vs Turaki & Ors. (supra), it was/is stated that a refusal by a judge of the Court below, to be bound by the decision of this Court is gross insubordination and that such a judicial officer is a misfit in the judiciary.
Lastly and in summary, the legal position is that the Court of Appeal and indeed all lower Courts are bound by the decision of this Court. However where the principles enumerated in any decision of this Court, it is not relevant or applicable to the issue or issues arising for determination in the case before the Court of Appeal or the lower Court, that is a different matter or a different ball game.”
Therefore, it would have smacked of judicial irresponsibility, rascality, impertinence and insubordination, if the lower Court, having become aware of the judgment of the highest Court in Nigeria in SC.194/2018 and still pretended that it had nothing to do with the originating summons before it and went ahead with the proceedings on it. Further see: Atolagbe & Anor vs Awuni & 2 Ors (1997) 8 NWLR (pt. 522) 536 at p. 567. And in any event, Section 59 of the Evidence Act, 2011, unambiguously provides that:
“The existence of any judgment, order or degree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact, evidence of which is admissible which the question is whether such Court ought to take cognizance of such or hold such trial.”
I am satisfied that with the existence of the judgment of the Supreme Court in SC.194/2018, this Court has no jurisdiction to entertain and determine this appeal. I hold that the preliminary objection of the 1st and 2nd respondents succeeds on this ground.
The second main contention of the 1st and 2nd Respondents in their grounds for the preliminary objection against the hearing of the appeal is that by the doctrine of Res- judicata and stares decisis the appeal is liable to be dismissed since this Court cannot grant an order of mandatory injunction compelling the 1st and 2nd Respondents their servants, agents and committees to continue to recognize and hold lye-Ekiti as the Headquarters of Ilejemeje Local Government Council, as per the provisions of the Local Government Administration Law No.2 of 1999.
The 1st and 2nd Respondents’ preliminary objection succeeds in respect of Issue 1 of No 1 vis-a-vis ground 1 of the appeal.
I should not flog a dead horse. I agree with the submissions of learned counsel for the 1st and 2nd respondents. I adopt my reasons and conclusions on the 1st ground of the 1st and 2nd Respondent’s preliminary objection to the effect that the case of the Appellant as presently constituted in this appeal has been finally determined by the Supreme Court in suit No. SC/194/2008.
In conclusion, the preliminary objections by the 1st and 2nd Respondents, having succeeded to the effect that by the doctrine of res judicata and stares decisis the Appellants’ appeal is liable to be dismissed.
This appeal is devoid of any merit and it is accordingly hereby dismissed.
The decision of the Ekiti State High Court, Ado-Ekiti Judicial Division, contained in the judgment of Hon. Justice A. Adesodun, delivered on the 19th day of November, 2019, holding that there is no merit in the Originating Summons is hereby affirmed.
No costs is awarded.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.
PAUL OBI ELECHI, J.C.A.: I read in draft, the lead judgment just delivered by my learned brother FATIMA OMORO AKINBAMI JCA.
I agree with her that the appeal be dismissed for being unmeritorious.
Appeal dismissed.
Appearances:
TAIWO KUPOLATI, ESQ. For Appellant(s)
OLAWALE FAPOHUNDA, A. G. EKITI STATE, with him, S. B. J. BAMISE, ESQ. DCL EKITI STATE – for the 1st & 2nd Respondents
DR. E. K. ADETIFA, with him, A. A. EJERE, ESQ. and S. O. DADA, ESQ. – for the 3rd Respondent For Respondent(s)
