MR ADELANI ADEWOYIN v. THE EXECUTIVE GOVERNOR, OSUN STATE & ORS.
(2011)LCN/4938(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 30th day of November, 2011
CA/I/3/2008
RATIO
PROLIFERATION OF ISSUES: WHETHER A PARTY CAN FRAME MORE ISSUES THAN THE NUMBER OF GROUNDS OF APPEAL.
The law is well settled that in practice, there should be no proliferation of issues. Therefore out of three grounds of appeal, an appellant cannot formulate or frame four issues. In other words, a party cannot frame more issues than the number of grounds of appeal. See UGO V. OBIEKWE (1989) 1 NWLR (Pt.99) 556; AGU V. IKEWIBE (1991) 3 NWLR (PT.180) 385; ATTORNEY-GENERAL, BENDEL STATE V. AIDEYAN (1989) 4 NWLR (Pt.118) 646; OGOYI V. UMAGBA (1995) 9 NWLR (pt.419) 283 AND ALHAJI KARIMU IBIKUNLE V. ALFA LISAU LAWANI (2007) 3 NWLR (Pt.1022) 580. PER ADUMEIN, J.C.A.
TECHNICALITIES: WHETHER COURTS CAN DECIDE CASES OR RESOLVE ISSUES ON MERE LEGAL TECHNICALITIES
It is now settled that courts should not decide cases or resolve issues on mere legal technicalities. See the case of EGOLUM V. OBASANJO (1999) 7 NWLR (Pt.511) 255 at 413, where the Supreme Court, per ACHIKE, JSC, held thus: ‘The heydays of technicalities are now over because the weight of judicial authorities has today shifted from undue reliance on technicalities to doing substantial justice evenhandedly to the parties to the case.” The significance of entering an appearance by a defendant, as provided by the rules of the court, is very important and it cannot be over-emphasized. The consequences of failure to enter an appearance by a defendant to a writ of summons or an originating process include a plaintiff having a judgment against such a defaulting defendant and or the defendant being denied the right to be heard – see the Supreme Court case of INAKOJU V. ADELEKE (2007) All FWLR (Pt.353) 1 at 2O2, per OGBUAGU, JSC. In the said case it was held at page 138 per KASTINA-ALU, JSC (as he then was, later CJN) that even when such a defendant intends to challenge the jurisdiction of the court, he must first file an appearance at least a conditional appearance for the reason that where the rules so demand, “a defendant served must enter appearance.” PER ADUMEIN, J.C.A.
ENTERING OF APPEARANCE OF THE DEFENDANT: WHETHER A SERVED DEFENDANT MUST ENTER APPEARANCE
The significance of entering an appearance by a defendant, as provided by the rules of the court, is very important and it cannot be over-emphasized. The consequences of failure to enter an appearance by a defendant to a writ of summons or an originating process include a plaintiff having a judgment against such a defaulting defendant and or the defendant being denied the right to be heard – see the Supreme Court case of INAKOJU V. ADELEKE (2007) All FWLR (Pt.353) 1 at 2O2, per OGBUAGU, JSC. In the said case it was held at page 138 per KASTINA-ALU, JSC (as he then was, later CJN) that even when such a defendant intends to challenge the jurisdiction of the court, he must first file an appearance at least a conditional appearance for the reason that where the rules so demand, “a defendant served must enter appearance.”(Underlining mine) PER ADUMEIN, J.C.A.
PLEA OF RES JUDICATA: CONDITIONS PRECEDENT TO A SUCCESSFUL PLEA OF RES JUDICATA
The parties, who are from Osun State, do not need to go too far to find the conditions precedent to a successful plea of res judicata. In a case that emanated from Osun State High Court and proceeded to the Supreme Court, one of the cases relied upon by the 4th respondent, the case of SALAMI AFOLABI V. GOVERNOR OF OSUN STATE (2003) 13 NWLR (Pt.386) 119 at 129 – 130 the Supreme Court emphasized thus: “It is settled law that to sustain in a plea of res judicata, the party pleading it must satisfy the following conditionalities, to wit – i. That parties (or their privies as they may be) are the same in the present case as in previous case; ii. that the issue and subject matter are the same in the previous suit as in present suit; iii. that the adjudication in the previous case must have been given by a court of competent jurisdiction; and iv. that the previous decision must have finally decided the issues between the parties”. PER ADUMEIN, J.C.A.
CITING OF LEGAL AUTHORITIES: WHETHER A COURT OF LAW CAN MAKE USE OF RELEVANT JUDGMENTS OR DECISIONS IN LAW REPORTS CITED BY LEGAL COUNSEL
It is an accepted practice that law reports are usually cited by parties and copies of such law reports made available to the court, even from the bar. A court of law can make use of relevant judgments or decisions in law reports cited by learned counsel without insisting that judgments in the law reports be certified by the appropriate court(s) which delivered the judgments. PER ADUMEIN, J.C.A.
JUDTICES:
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1. MR ADELANI ADEWOYIN
(For himself and on behalf of Olubakin Ruling House, Obaagun) – Appellant(s)
AND
1. THE EXECUTIVE GOVERNOR, OSUN STATE
2. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, OSUN STATE
3. IFELODUN LOGAL GOVERNMENT, IKIRUN.
4. PRINCE ALIMI MOJOYINOLA
(For himself and on behalf of Iwolode Ruling House) – Respondent(s)
ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellant was the plaintiff while the respondents were the defendants in Suit No. HIK/25/2004 filed in the High Court of Osun State, Ikirun Division. In his amended statement of claim, the appellant, as plaintiff in the lower court, sought the following relief, namely:
“(a) DECLARATION that the Olobaagun of Obaagun Chieftaincy Declaration of 31st day of December, 1986 made by the third Defendant, and approved by the first Defendant, is of no effect, unconstitutional and invalid since it was not made under the relevant law.
(b) DECLARATION that the Chieftaincy Declaration of Olobaagun of Obaagun of 27th day of May, 1957 is the only valid declaration in respect of the Olobaagun of Obaagun Chieftaincy.
(c) PERPETUAL INJUNCTION RESTRAINING the 1st, 2nd and 3rd Defendants, from giving effect or recognizing the Olobaagun Chieftaincy Declaration of 1985.”
The 4th respondent, who was not originally a party to the suit, was joined as the 4th defendant by an order of the court below. By a notice of preliminary objection dated 30th day of June, 2005 but filed on the 10th day of June 2006 the 4th respondent sought for “An ORDER for dismissing this suit in its entirety for lack of jurisdiction”. The grounds upon which the prayer was premised were:
“1. That subject matter of this suit has previously been litigated upon and decided by the Supreme Court between the parties in Suit Nos. S.C. 251/1984 AND S. C. 143/1999.
2. The Plaintiff by operation of the doctrine of estoppel per res judicata is precluded from bringing this action.
3. The action is frivolous, vexatious and abuse of judicial process.
4. This Honourable Court lacks jurisdiction to entertain this matter”.
The 4th respondent’s notice of preliminary objection was supported with an affidavit of 14 paragraphs and, in opposition, the appellant filed a counter affidavit of 10 paragraphs (pages 6 – 11 of the records of appeal). The parties were heard on the preliminary objection and in a reserved ruling delivered on the 20th day of November, 2006 the preliminary objection was upheld and the appellant suit was dismissed with costs. The ruling of the lower court spans pages 20 to 30 of the record of appeal. The appellant was not satisfied with the decision of the lower court and he filed a notice of appeal containing the following grounds:-
GROUNDS OF APPEAL
“(1) The judgment is against the weight of evidence
(2) The learned trial iudge erred in law and thereby came to a wrong decision by failing to properly consider the issues submitted to him for adjudication.
PARTICULARS OF ERROR IN LAW
(I) It is the primary duty of a trial court to dispassionately consider and evaluate submissions made before it in order to reach just conclusion.
(II) The trial court’s failure in the said primary duty and occasioned a miscarriage of justice.
(III) The Learned Trial Judge erred in law in making use of documents pleaded but not tendered in court as exhibits.
PARTICULARS OF ERROR IN LAW.
I. It was wrong for the Trial Court to go on a frolic of its own to authenticate the existence of the judgments pleaded but not tendered as Exhibits before it for purpose of comparison and by making use of the law reports in which they are reported.
4 The learned Trial Judge erred in law by assuming jurisdiction on the application when it held that Order 13 Rule 1 of the Osun State High Court (Civil Procedure) Rules, 2003 was mere technicality and not a pre-condition for attacking the jurisdiction of the court of the 4th respondent.
PARTICULARS:
(I) The provision of Order 13 Rule 1 of the Osun State High Court Civil Procedure Rules 2003 constitutes a condition precedent to the validity or legality or an attack on the competence of a Trial Court to entertain an action.
5 The Trial Court erred in the law when it did not exercise its discretion in awarding costs in favour of the Defendants and against the plaintiff.
PARTICULARS
The costs awarded are punitive and excessive.”
As can be seen from the grounds of appeal, reproduced above, there is no ground 3.
In accordance with the rules of this court, the parties filed and exchanged briefs. The appellant’s brief dated 20th day of May, 2008 was filed on the 11th day of June, 2008. The 1st and 2nd respondents’ joint dated the 27th day of January, 2009 was filed on the same day but was deemed properly filed on the 14th day of August, 2008. The 4th respondent’s brief dated on the 29th day of August 2008 was – filed on the 1st day of September, 2008 and it was deemed properly filed on the 11th day of May, 2009.
In his brief of argument, the appellant through his learned counsel formulated the following issues for determination:
1. Could the failure of the 4th respondent to enter appearance to this suit still entitle him to be heard in respect of a preliminary objection to the competency of the suit.
2. Did the 4th respondent discharge the onus of proof on him to establish plea of res judicata.
3. Was the failure of the 4th respondent to exhibit judgments in Suit Nos. SC.251/1984 and SC.143/1999 not fatal to his objection.
4. Could reference to Law Reports in which the said cases were reported be a substitute to the judgments, which were not attached to the affidavit in support of Preliminary Objection.
The 1st and 2nd respondents, however, formulated only the following two issues for determination :
i. “Whether non filing of memorandum of appearance of the respondents be made an issue to invalidate the ruling of the trial court in this matter.
ii. Whether the plea of res judicata raised in the preliminary objection by the 4th Defendant/Respondent and upheld by the trial court was well founded”.
The 3rd respondent also formulated two issues for determination, namely:
1. “Whether the personal appearance of counsel to the Respondents without a formal filing of memorandum of appearance is proper
2. Whether the failure of the 4th Respondent to attach copies of Judgment of the Supreme Court in Appeal No.SC.129/1984 and SC.143/1999 to his application was fatal.”
The sole issue formulated by the 4th respondents is:
“Could the lower court have justifiably dismissed the case of the more? Grounds 1, 2 and 3.”
As can be seen from the issues formulated by the appellant, no issue was framed from ground five -the ground complaining of the costs awarded against him. This ground (ground 5) is hereby struck out.
From his surviving three grounds of appeal the appellant framed four issues. The law is well settled that in practice, there should be no proliferation of issues. Therefore out of three grounds of appeal, an appellant cannot formulate or frame four issues. In other words, a party cannot frame more issues than the number of grounds of appeal. See UGO V. OBIEKWE (1989) 1 NWLR (Pt.99) 556; AGU V. IKEWIBE (1991) 3 NWLR (PT.180) 385; ATTORNEY-GENERAL, BENDEL STATE V. AIDEYAN (1989) 4 NWLR (Pt.118) 646; OGOYI V. UMAGBA (1995) 9 NWLR (pt.419) 283 AND ALHAJI KARIMU IBIKUNLE V. ALFA LISAU LAWANI (2007) 3 NWLR (Pt.1022) 580.
In the overriding interest of justice, however, I shall determine this appeal on its merits. From the issues formulated by the parties and the arguments proffered by them, the following two issues call for determination in this appeal:
1. Whether the failure by the 4th defendant/respondent to file a memorandum of appearance was fatal to his objection to the jurisdiction of the lower court.
2. Whether or not the plea of res judicata raised by the 4th defendant/respondent was properly upheld by the lower court
ISSUE NO 1:
Whether the failure by the 4th defendants/respondent to file a memorandum of appearance was fatal to his objection to the jurisdiction of the lower court.
The appellant contended that the lower court was wrong to have proceeded to entertain the preliminary objection of the 4th respondent when he (the 4th respondent) failed to comply with the provisions of Order 13 rule 1 of the High Court of Osun State (Civil Procedure) Rules. He referred to the meaning of appearance given in the case of F. O. ODUGBESAN V. PACIFIC INSURANCE CO. (1979) FWLR (Vol.12) 216 at 218 and submitted that “entering an appearance is a condition precedent to taking further steps by a defendant in a case and failure to comply renders the step taken as incompetent”.
The appellant, relying on the case of MAJA V. SAMOURIS (2002) 3 SCNJ 29 at 33, submitted that rules of court are binding on parties and the court.
In response the 1st and 2nd respondents argued that appearance of counsel in a suit is more that filing a memorandum of appearance. On this point, they referred the court to the case of ADEGOKE MOTORS V. ADESANYA (1989) 3 NWLR (Pt. 109) 250 at 270. Furthermore, the 1st and 2nd respondents submitted that a party represented by counsel had complied with the law relating to appearance and, on this point, they called to their aid the case of METRO GAS LIMITED V. EFERAKEYA (2001) FWLR (Pt.39) 1442 at 1451.
The separate arguments of the 3rd and 4th respondents are substantially the same as the joint argument of the 1st and 2nd respondents, save that the 4th respondents added that Order 13 rule 1(1) of the High Court (Civil Procedure) Rules of Osun State should be accorded its simple grammatical meaning as it is clear and unambiguous. The 4th respondent referred to and relied on the cases of NNPC V. LUTIN INVESTMENT LTD (2006) 2 NWLR (Pt. 965) 506 at 528; A-G BENDEL STATE V. A-G FEDERATION (1983) 1 SCNLR 293 and ODU’A INVESTMENT LTD V. TALABI (1997) 10 NWLR (Pt.523). The 4th respondent then submitted as follows:
“It is further submitted that the provisions of Order 13 rule 1 of the High Court Civil Procedure Rules envisaged a situation where the defendants have been sued right from the onset that is, vide the Writ of Summons. Extending the requirement of filing a Memorandum of Appearance to situations where a party-like the 4th Respondent applied on his own to be joined as defendant as (sic) so joined by the court would simply produce an absurdity and a violent ridicule of the provisions of the said Order 13 rule 1. Submit that the Supreme Court has held that in the primary sense of the word, the parties to a proceeding or application are said to appear on it when they are present before the Court when it is heard and a party appears in court either in person or by his counsel. ADEGOKE MOTORS LTD V. ADESANYA (1989) NWLR (Pt. 109) 250 at 272”.
Order 13 Rule 1 of the High Court (Civil Procedure) Rules of Osun State provides thus:
“(1) A defendant shall within the time limited in the writ or other originating process enter an appearance in the manner hereinafter prescribed”.
From the printed record of appeal, there is no evidence that the 4th respondent, who was joined as the 4th defendant by an order of the lower court, was served with the writ of summons and or other processes in Suit No: HIK/25/2004 as required by law or at all. In any case, the 4th defendant/respondent’s preliminary objection was signed by one ADEWALE ADEGOKE, ESQ of CHIEF AFE BABALOLA, SAN & CO. Chambers and when the lower court heard the parties on the 16th day of November, 2006 – a learned counsel – I. L. ALABI, ESQ was physically present in court and he represented the 4th respondent. In the case of ADEGOKE MOTORS LTD V. DR. BABATUNDE ADESANYA & ANOR (supra) at 273 cited and relied on by the respondents, the Supreme Court, per OPUTA, JSC gave both the primary and secondary meanings of the word “appearance” and held that it “is no more than the presence of the defendants in court when the case is being heard…”.
In the present case, the 4th respondent, although no evidence that he was served with the originating writ of summons, furnished his address for service to the appellants and other respondents. The 4th respondent followed up the matter by the physical presence of his learned counsel in court. To my mind, this was sufficient appearance by the 4th respondent. In any case, the essence of entering a formal appearance by a defendant is to intimate the plaintiff that he (the defendant) intends to contest the plaintiffs claim. See ADEGOKE MOTORS V. DR. BABATUNDE ADESANYA & ANOR (supra) at 272, paragraphs. G – H.
The appellant has not demonstrated any injustice occasioned by the failure of the 4th respondent to file a formal memorandum of appearance. The appellant seems to cling to a mere technicality in this matter. It is now settled that courts should not decide cases or resolve issues on mere legal technicalities. See the case of EGOLUM V. OBASANJO (1999) 7 NWLR (Pt.511) 255 at 413, where the Supreme Court, per ACHIKE, JSC, held thus:
‘The heydays of technicalities are now over because the weight of judicial authorities has today shifted from undue reliance on technicalities to doing substantial justice evenhandedly to the parties to the case.”
The significance of entering an appearance by a defendant, as provided by the rules of the court, is very important and it cannot be over-emphasized. The consequences of failure to enter an appearance by a defendant to a writ of summons or an originating process include a plaintiff having a judgment against such a defaulting defendant and or the defendant being denied the right to be heard – see the Supreme Court case of INAKOJU V. ADELEKE (2007) All FWLR (Pt.353) 1 at 2O2, per OGBUAGU, JSC. In the said case it was held at page 138 per KASTINA-ALU, JSC (as he then was, later CJN) that even when such a defendant intends to challenge the jurisdiction of the court, he must first file an appearance at least a conditional appearance for the reason that where the rules so demand, “a defendant served must enter appearance.”(Underlining mine)
In the present case, the 4th respondent was not originally a defendant to the appellant’s suit. The 4th respondent was joined by an order of the lower court and there is no evidence that after he was joined by the order of court he was served with the appellant’s originating writ of summons. In such circumstances, I am not able to say or confirm that the 4th respondent failed to comply with the provisions of Order t3 rule 1 of the High Court (Civil Procedure) Rules of Osun State requiring a defendant to enter an appearance ‘within the time limited in the writ or other originating process.”
I resolve this issue against the appellant.
ISSUE No.2:Whether or not the plea of res judicata raised by the 4th defendant/respondent was properly upheld by the lower court. The appellant referred to section 11 of the Evidence Act and the cases of ONONO V. ALHAJI MAISANGO & ANOR (1981) FNLR (VOL. 1) 91 and ATTONRNEY GENERAL (PLATEAU STATE) V. ATTORNEY GENERAL (NASARAWA STATE) (2005) 4 SCNJ 120 at 128 and argued that the 4th respondent ought to attach certified true copies of the judgments relied upon as the said judgments were public documents.
It was contended by the appellant that the burden of proof lies on a party who sets up the defence of res judicata to establish all the pre-conditions laid down by law. For the pre-conditions laid down by law, the appellant referred to and relied on the cases Of OSHODI V. EYIFUNMI (2000) 7 SCNJ 585 at 503 and OLORIEGBE V. OMOTOSHO (1993) 1 SCNJ 30. The appellant submitted that since he joined issues with the 4th respondent by filing a counter affidavit, it was incumbent on the 4th respondent to attach the judgments as Exhibits to enable the court to determine whether the parties, their privies and the issues raised in the cases relied upon by the 4th respondent were the same as those in this case.
The appellant finally urged the Court to “allow the appeal and send back the case for the trial at the High court of Osun State.” The respondents, in their separate briefs, save the 1st and 2nd respondents who filed a joint brief, submitted that the lower court rightly held that the decision in OSHODI V. EYIFUNMI (2000) 7 SCNJ 295N at 300 relied upon by the appellant did not preclude the court from making use of a taw report. The respondents referred to the conditions precedent for a plea of res judicata to succeed as set out in the case of SALAMI AFOLABI V. GOVERNOR OF OSUN STATE (2003) 13 NWLR (Pt. 385) 119 at 129 – 130 and submitted that the conditions were satisfied in this case.
The respondents finally urged the court to dismiss this appeal.
One very interesting aspect of this appeal is that the appellant is not challenging the findings of the trial court on each of the conditions to be satisfied in a case of plea of res judicata. The appellant has also not complained that the judgment in the two law reports relied upon by the lower court were wrong or incomplete or incorrect. The appellant’s main complaint is that the said judgments, being public documents ought to be certified and tendered in evidence before the 4th respondent’s objection could be sustained.
In paragraphs 4 – 11 of the affidavit in support of notice of preliminary objection, the 4th respondent deposed thus:
“4. I know as a fact that the main target of this suit is the Plaintiffs objection to the inclusion of Iwolode Ruling House as one of the four recognized ruling houses for consideration to Olubaagun Chieftaincy Title.
5. In furtherance of these claims, the plaintiff is contesting the validity of 1982 and 1986 Chieftaincy Declaration registered by the Old Oyo State, which included Iwolode as a Ruling House to the Olubaagun Chieftaincy.
6. That on the 25th of February, 1982, a chieftaincy Declaration in respect of Olobaagun chieftaincy was registered by the government of Old Oyo State before the creation of Osun State. This declaration in the main included Iwolode Ruling House to the Olobaagun Chieftaincy.
7. Aggrieved by the said registration of the declaration, the present Plaintiff instituted an action challenge the inclusion of Iwolode Ruling House.
8. That the case was litigated upon to the supreme court wherein judgment was given against the Plaintiff among other parties in 1985.
9. That on 31st of October, 1985 a chieftaincy Declaration for the regulation and selection of Olobaagun was registered by the then government of Old Oyo State.
10. The present Plaintiff once again headed for court and instituted an action, which was also litigated upon to the Supreme Court where the plaintiff lost again.
11. That Idowu Lanre Alabi Esq. Counsel handling this case informed me and I verily believe him that:
a. Both cases where the Plaintiff challenged the declaration of 25th February 1982 and 31st December 1985 have been reported in (1935) 2 NWIR (pt.9) 734 and (2003) 13 NWLR (pt.836). Page 113 respectively.
b. The parties or their privies are the same both in the present case and in the earlier ones decided by the Supreme Court.
c. The issues and subject matter, brought before this Honourable Court for adjudication, have been decided by the Supreme Court in previous suits.
d. The Supreme Court has finally decided all the issues in controversy between the parties.
e. The action is aimed at re-litigating issues already decided by the courts.
f. That the couching of the reliefs in both the Writ of Summons and statement of Claims are designed to pool wool over the eyes of this Honourable Court so as to believe that they are different from suits brought by the Plaintiff or his privies”.
In his terse counter affidavit, the appellant feebly deposed in paragraphs 3 and 4 at page 10 of the record of appeal, as follows:
“3. That paragraph 2, 4, 5, 7, 8, 10, 11, 12, 13 and 14 of the affidavit are false.
4. That paragraph 5 and 9 of the affidavit are true.
The parties, who are from Osun State, do not need to go too far to find the conditions precedent to a successful plea of res judicata.
In a case that emanated from Osun State High Court and proceeded to the Supreme Court, one of the cases relied upon by the 4th respondent, the case of SALAMI AFOLABI V. GOVERNOR OF OSUN STATE (2003) 13 NWLR (Pt.386) 119 at 129 – 130 the Supreme Court emphasized thus:
“It is settled law that to sustain in a plea of res judicata, the party pleading it must satisfy the following conditionalities, to wit –
i. That parties (or their privies as they may be) are the same in the present case as in previous case;
ii. that the issue and subject matter are the same in the previous suit as in present suit;
iii. that the adjudication in the previous case must have been given by a court of competent jurisdiction; and
iv. that the previous decision must have finally decided the issues between the parties”.
After listening to the parties and reading the previous judgments, as reported in the law reports, the learned trial judge – Hon. Justice A. A. Aderibigbe, comprehensively stated at pages 24 – 26 of the records of appeal as follows:
“The first condition is whether the parties (or their privies as the case may be) are the same in the present and previous cases? Were they the same parties in previous case? For ease of reference I will reproduce the names of the parties in the two previous case and the present case.
SC.251/1984
MR SAIAMI AFOLABI (for and on behalf of kayode Ruling House)
MR LASISI ADEBOYE (for and on behalf of Olubaakin Ruling House)
ALHAJI GBADAMOSI OLANIYAN (for and on behalf of Oduoye Ruling House)(sic)
vs.
GOVERNOR OF OSUN STATE
ATTORNEY-GENERAL OF OSUN STATE
SECRETARY, IFELODUN CENTRAT LOCAL GOVERNMENT
MR ALIMI MOJOYINOLA (For and members of Iwolode Family in Obaagun)
SC.143/1999
SALAMI AFOLABI (for himself and members of Kayode Ruling House)
SUIAIMANU OYETUNDE (for himself and members of Olubaakin (sic) Ruling House)
ALHAJI GBADAMOSI OLANIYAN (for and on behalf of Oduoye Ruling House)
VS
GOVERNOR OF OSUN STATE
ATTORNEY-GENERAL OF OSUN STATE
SECRETARY, IFELODUN CENTRAL TOCAL GOVERNMENT
MR ALIMI MOJOYINOLA (For himself and on behalf of Iwolode Ruling House)
The parties in the present suit are:
MR ADELANI ADEWOYIN
(For himself and on behalf of Olubaakin Ruling House, Obagun)
VS.
GOVERNOR OF OSUN STATE
ATTORNEY-GENERAL OF OSUN STATE
SECRETARY, IFELODUN CENTRAT LOCAL GOVERNMENT
MR ALIMI MOJOYINOLA (For himself and on behalf of Iwolode Ruling House)
It is obvious from the above that save for the following perfunctory changes in the names, the parties in SC.143/1999 were the same with those in SC.251/1984. These changes were:
– The substitution of Sulaimanu Oyetunde for Lasisi Adeboye for Olubaakin Ruling House.
– Olubakin, which was wrongly spelt “Olubaka”
– Oyo changed to Osun, and
– Ifelodun Local Government Council replaced secretary Ifelodun central Local Government.
The difference between the two previous cases and the present one are the following:
– The 1st and 3rd plaintiff were not included as plaintiff
– Mr Adelani Adewoyin was substituted for Lasisi Adeboye for Olubakin Ruling House as sole plaintiff.
– Ifelodun Local Government Council replaced Ifelodun Central Local Government.
It should be noted that the applicant was initially party to the suit. He applied to be joined as the 4th defendant for and on behalf of the Iwolode Ruling House.
From the above analysis it is crystal clear that the parties in the three Gases are basically the same and, without belabouring this point, I hold that the applicant has satisfied the first condition.”
The foregoing findings of the learned trial judge cannot be faulted, and indeed they have not been faulted.
It is an accepted practice that law reports are usually cited by parties and copies of such law reports made available to the court, even from the bar. A court of law can make use of relevant judgments or decisions in law reports cited by learned counsel without insisting that judgments in the law reports be certified by the appropriate court(s) which delivered the judgments.The two previous judgments relied upon by the 4th respondent were respectively reported in (1985) 2 NWLR (Pt. 9) 734 and (2003) 13 NWLR (Pt. 836) 119. It is a matter of common public knowledge, especially among members of the legal profession – Legal Practitioners, Law Lecturers and Law Professors, Law Officers, Magistrates, Khadis, Judges and Justices that the acronym “NWLR” means “Nigerian Weekly Law Reports” published by the Nigerian Law Publications Limited founded by one of the finest, brightest and most hardworking legal practitioners that Nigeria has ever produced – Chief Gani Fawehinmi (SAN), of blessed memory. In the discharge of my duties, speaking for myself, I have found the law reports and publications by Nigerian Law Publications Limited most reliable and very helpful. In the absence of allegation of supply or suppression by the law reporters of any part in the two judgments as reported in the Nigerian Weekly Law Reports (NWLR), cited above, I am very comfortable that the learned trial judge rightly relied on the two law reports in determining the 4th respondent’s notice of preliminary objection, notwithstanding that certified true copies of the said judgments were not filed with the said notice.
I have carefully examined the ruling of the lower court. The lower court meticulously examined the remaining three pre-conditions for a successful plea of res judicata and the resolution of the entire application in favour of the 4th respondent cannot be impeached.
There must be an end to litigation and this is in the interest of litigants, the courts and the general public. This theory of law is expressed in the well-known legal maxim . Interest republicae ut sit finis litium meaning “it is in interest of the state that there be limit to litigation.” The issue is hereby resolved in favour of the respondents.
In sum, this appeal lacks merit and, accordingly, it is hereby dismissed.
The sum of N30,000.00 is hereby awarded as costs in favour of the 4th respondent against the appellant.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN J.C.A.: I have had the benefit of reading in draft the judgment of my learned brother, Adumein, JCA, just delivered. His Lordship has competently considered and resolved the issues submitted for determination in this appeal, I agree with the reasoning and conclusion reached.
My brief comments are by way of emphasis. Courts and counsel alike have been admonished time and time again to eschew technicalities and to seek to have matters determined on their merits. The appellant’s suit was instituted before the lower court in 2004. The reliefs sought are fully set out in the lead judgment. The 4th respondent was subsequently joined as 4th defendant by an order of court. Upon his joinder, he filed a notice of preliminary objection seeking an order striking out the suit on the grounds, inter alia that the subject matter of the suit had previously been adjudicated upon by the Supreme Court between the parties in Suit Nos. SC.251/1984 and SC.143/1999 and that by the doctrine of res judicata he is precluded from relitigating the same issue.
Affidavits were exchanged and after listening to counsel, the learned trial Judge in a considered ruling upheld the preliminary objection and dismissed the suit with costs.
The appellant’s grouse against the ruling as contained in his notice and grounds of appeal are mainly:
1) That the 4th respondent pleaded the Supreme Court Judgments as reported in the Nigerian Weekly Law Reports without exhibiting certified copies thereof as exhibits to his preliminary objection and
2) That the 4th Respondent failed to file a Memorandum of Appearance as required by Order 13 Rule 1 of the Osun State High Court (Civil Procedure Rules) 2003.
My Lord has satisfactorily addressed these issues in the lead judgment. I adopt his reasoning and conclusion as mine.
Suffice it to say that this appeal is a clear example of a waste of judicial time and resources. The appellant has not made any complaint against the finding of court below that indeed the subject matter of his action before the trial court had been litigated upon on two previous occasions all the way up to the Supreme Court.
What did he hope to achieve with this appeal? He has not argued that the two judgments as reported do not reflect what was actually decided or that the parties and/or subject matter are not the same. Assuming the appeal is allowed and the parties are sent back to the trial court only to exhibit copies of the judgments that tell the same story, what would the appellant have gained? He would merely have postponed the evil day.
Learned counsel, as officers in the temple of justice have a sacred duty to assist the court to do substantial justice in any matter before it. His first duty is to the court. The second to his client. It is almost five years to the day since the ruling complained of was delivered.
Precious judicial time and resources have been wasted pursuing technicalities. It is for these reasons that I find this appeal to be completely lacking in merit. I dismiss it accordingly and award costs in the sum of N30,000 in favour of the 4th respondent against the appellant.
CHINWE E. IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, Moore A. A. Adumein JCA. I agree with his reasoning and conclusions. He has dealt fully with all the issues raised in the appeal. I agree that the appeal lacks merit and should be dismissed. The learned trial Judge rightly upheld the plea of res judicata raised by the 4th respondent. I too hereby dismiss the appeal with N30,000.00 costs in favour of the 4th respondent against the appellants.
Appearances
O. O. Olaniran, Esq For Appellant
AND
Adisa Anbali, Esq. (PSC, Osun State) with Mrs. A. F. Adekunmi (SSC, Osun State) for the 1st and 2nd respondents.
R. O. Ewuola, Esq for the 3rd respondents.
I. L. Alabi, Esq. for the 4th respondent. For Respondent
