CHIEF AYOOLA ADEOSUN & ORS v. OBA ELIJAH OLADELE AYENI & ORS (2013)

CHIEF AYOOLA ADEOSUN & ORS v. OBA ELIJAH OLADELE AYENI & ORS

(2013)LCN/6170(CA)

In The Court of Appeal of Nigeria

On Thursday, the 9th day of May, 2013

CA/EK/5/2012

JUSTICES:

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

Between

1. CHIEF AYOOLA ADEOSUN
(Also known as “Mr. Adeosun Ayoola”) (For himself and on behalf of “Ebi Omo Owa Amilede”)

2. PRINCE MICHAEL OMOTOSO FAMUYISE

3. MR. KOLAWOLE ELECTRICAN
(Also known as “Oba Oniyangidi”)

4. MADAM KOREDE ADUMATI FALEYE

5. MADAM ARINOLA AROGUNDADE

6. MADAM OPENIYE

7. MR. SOLA ARIGBEDE

8. PRINCE OYE OSAGUNNA
(For himself and on behalf of the children of Late Prince Gabriel Omoniyi Osagunna)

9. MR. KEHINDE AJIMO

10. MADAM AYO CARETAKER

11. PRINCE OMOLE FELE

12. PRINCE DIPO ADUMATI OWONIFARI – Appellant(s)

AND

1. OBA ELIJAH OLADELE AYENI
(The Olupoti of Ipoti-Ekiti)

2. HIGH CHIEF GABRIEL OLAYOMI
(The Sajiyan and Quarter-Head of Ejiyan Quarter, Ipoti-Ekiti)

3. HIGH CHIEF AKODU BABAJIDE
(The Ajana-Owa and Quarter-Head of Owa Quarter, Ipoti-Ekiti)

4. HIGH CHIEF EZEKIEL OLUMUTIMI
(The Odofin-Ipoti and Quarter-Head of Odofin Quarter, Ipoti-Ekiti) (For themselves and on behalf of the entire Ipoti-Ekiti Community except the 1st to 12th Defendants)

5. THE GOVENOR OF EKITI STATE

6. THE ATTORNEY-GENERAL OF EKITI STATE
(Also known as “Eyelorisa”)

7. THE COMMISSIONER FOR LANDS, HOUSING AND ENVIRONMENT, EKITI STATE

8. THE PERMANENT SECRETARY, MINISTRY OF LANDS, HOUSING AND ENVIRONMENT, EKITI STATE – Respondent(s)

RATIO

THE CONCEPT OF ABUSE OF COURT PROCESS

It is settled that a defendant who conceives that he has a good ground of law which if raised and resolved will determine the action in limine, is entitled to raise such a ground of law. See Martins vs. Administrator of the Federation & Anor. (1962) 1 SCNLR 209, (1962) 1 All NLR 120. To my mind, the determination of this appeal largely turns on the issue of abuse of court process and locus standi.
Strictly speaking, an abuse of judicial process is the improper use of the judicial process by a party in litigation. It may occur in diverse ways. What amounts to abuse of court process has been variously defined by the Supreme Court over the years and it includes the following situations:
(i) Where a party improperly uses judicial process to the annoyance, embarrassment, harassment, irritation and of the adverse party.
(ii) To interfere with the administration of justice.
(iii) Where two or more similar processes are taken out by a party against the same party/parties with regard to the exercise of the same right and or subject
(iv) Where the process of the court has not been used bona fide and properly.
See Okorodudu v. Okoromadu (1977) 3 S.C. 21; Nnama v. Nwanebe (1991) 2 NWLR (Pt. 172) 181; Okafor v. Attorney-General, Anambra State (1991) 6 NWLR (Pt. 200) 659; Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156; African Reinsurance Corp. v. JDP Construction (Nig.) Ltd. (2003) 5 MJSC 104; Ntuks & Ors. v. N.P.A. (2007) 13 NWLR (Pt. 1051) 392 and Olutinrin v. Agaka (1998) 6 NWLR (Pt. 554) 366. It is to be noted that the list of situations listed above is not exhaustive. PER OREDOLA, J.C.A.

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

It is a basic and elementary principle of law that the jurisdiction of a court is fundamental to the adjudication process. It is so crucial and radical that it constitutes the indispensable foundation cum fulcrum of adjudication. Thus, if a court lacks jurisdiction, it thereby lacks the requisite competence to entertain the claim before it, not to talk of determining it. See Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508. In this regard, when an objection is raised against the jurisdiction of a court, to either entertain or continue to entertain an action, the court at that point in time has the bounden duty to enquire whether or not its jurisdiction exists or it has been overtaken by events. See Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688.

WHETHER OR NOT A PERSON WHO INSTITUTES AN ACTION MUST BE COMPETENT TO DO SO

The Supreme Court in plethora of cases settled the position of the law to the effect “that competency to institute an action is an essential or indeed a vital factor in deciding the competency of the action itself, and if challenged by a defendant, the plaintiff has the onus of establishing it.” Furthermore, “that it is fundamental that a person who institutes an action in court must be competent to do so.” See Alhaji Olorunkemi Ajao v. Mrs. L. E. Sonola & Anor. (1973) 1 All NLR (Pt. 1) 533/537. It is within contemplation that if a plaintiff’s locus standi to bring and or continue an action is successfully challenged, the court would in turn have no jurisdiction to adjudicate thereon. This is more so, because if a plaintiff is incompetent to bring the action, the court as well, will not be competent to entertain or continue to entertain an action from an incompetent plaintiff, as his action would not have been brought, “upon the fulfillment of a condition precedent to the exercise of the court’s jurisdiction.” See Madukolu v. Nkemdilim (1962) 1 All NLR 587/595. PER OREDOLA, J.C.A.

ASSOUD ABDULRAHAMN OREDOLA, J.C.A. (Delivering the Leading Judgment): This appeal is against the interlocutory ruling delivered on 20th October, 2009 by Hon. Justice C. I. Akintayo, J. of the Ekiti State High Court, Ijero-Ekiti Judicial Division, wherein the notice of preliminary objection dated 16th September, 2009 raised in limine by the appellants was dismissed.
The 1st – 4th respondents herein as plaintiffs at the trial court, had sought and obtained leave of the trial court on 21st July, 2009 to institute the instant action in a representative capacity for themselves and on behalf of the entire Ipoti-Ekiti Community, with the exception of the 1st – 12th defendants thereat, together with the 5th – 8th respondents herein. Pursuant thereto, the 1st – 4th respondents as plaintiffs filed both their writ of summons and statement of claim on 28th July, 2009. The 1st respondent described himself in the said statement of claim, that he “is a Traditional Ruler” and “the incumbent Olupoti of Ipoti-Ekiti and the traditional Paramount Ruler of Ipoti-Ekiti.” The 2nd – 4th respondents are said to be members of Olupoti – in – Council and ranked 2nd, 3rd and 4th respectively to the 1st respondent. The dispute bordered on a large parcel of land and in respect of which the 1st – 4th respondents inter alia claimed declaratory, monetary and injunctive reliefs.
In paragraph 115 of the statement of claim, the reliefs sought therein by the 1st – 4th respondents against the appellants alongside other defendants, that is the 5th – 8th respondents herein are reproduced below:
“WHEREOF the Plaintiffs claim against the defendants jointly and severally following reliefs:-
(i) A DECLARATION that the large parcel of land (also known as “Olupoti Palace Compound”, “Afin Compound” or “Ile Owa”) lying, being and situate Along Ijero Road, Ipoti-Ekiti is a stool land which belongs to the Olupoti of Ipoti-Ekiti in his official capacity as the Olupoti for exclusive occupation, use and management of any reigning Olupoti of Ipoti of Ipoti-Ekiti who the holds same for his own benefit and that of the entire Ipoti-Ekiti Community;
(ii) A DECLARATION that the Olupoti of Ipoti-Ekiti, in his official capacity, is the only person entitled to the Statutory Right of Occupancy in respect of the said stool land.
(iii) A DECLARATION that none of the 1st and 8th Defendants is entitled to a Certificate of Statutory Right of Occupancy over the said Olupoti Stool Land.
(iv) The sum of N10,000,000 (Ten Million Naira) only being general damages for trespass committed and still being committed by the 1st to 12th defendants on the said Olupoti Stool land.
(v) An order compelling the 1st Defendant who is the leader of the so-called Ebi Omo Owa Amilede or Amilede Ruling House, to remove the sign-post which he and the Amilede faction have wrongfully and illegally erected on the Stool land.
(vi) An order of perpetual injunction restraining the 1st to 12th Defendants, their agents, servants, privies, delegates and/or otherwise however called or any person(s) taking order from or under them, from any farther acts of trespass and/or from further entry on the said stool land and/or from doing any adverse thing or act in respect of the said Olupoti stool land or any part thereof.
(vii) An order compelling the 2nd to 12th Defendants, their agents, servants, privies, delegates and/or otherwise howsoever called or any person(s) taking order from or under them to immediately vacate Buildings Nos. 1 to 9 and their appurtenances which they are respectively illegally occupying on the said Olupoti stool land.
(viii) An order of perpetual injunction restraining the 13th to 16th defendants, their agents, servants, privies, delegates and/or otherwise howsoever called particularly the 15th defendant from taking any steps whatsoever towards the issuance of Certificate of Occupancy to the 1st Defendant or any other person except the 1st Plaintiff in his official capacity in respect of the Olupoti Stool land situate at Aafin Compound, Along Ijero Road, Ipoti-Ekiti.
(ix) An order of perpetual injunction restraining the 13th to 16th Defendants, their agents servants, privies, delegates and/or otherwise howsoever called particularly the 15th defendant from dealing with the 1st defendant and other members of the Amilede faction pertaining to, connected with and/or in respect of the application for a Certificate of Occupancy submitted by the 1st defendant on behalf of the so-called Ebi Omo Owa Amilede on the Olupoti Stool land at Aafin Compound, Along Ijero Road, Ipoti-Ekiti.
(x) An order of perpetual injunction restraining the 1st defendant his agents, servants, privies, delegates and/or otherwise howsoever called or any person(s) taking order from or under him or any other members of Amilede family from submitting or presenting to the 15th, defendant, his agents, servants, privies, delegates and/or otherwise howsoever called or any person(s) taking order from or under him any further document, letter and/or application for consideration, processing and/or dealing with or in anticipation of being issued Certificate of Occupancy to the so-called “Ebi Omo Owa Amilede” on the Olupoti Stool land at Aafin Compound, Along Ijero Road, Ipati-Ekiti.”
(Pp. 34 & 35 of the record of appeal.)
At the trial court, appellants entered conditional appearance and also filed their statement of defence, wherein they stated their intention to raise preliminary objection, seeking that the suit be struck out for being an abuse of court process. For ease of reference, clarity and convenience, the said appellants’ notice of preliminary objection dated 16th September, 2009 is reproduced below:
“NOTICE OF PRELIMINARY OBJECTION
TAKE NOTICE that the 1st – 12th Defendants shall raise a Preliminary Objection-in-limine to the hearing of this suit for being an abuse of Court process.
GROUND OF THE OBJECTION
1. The judgment of the Court of Appeal, Benin delivered in Suit No: CA/B/155/93 between Elijah Oladele Ayeni & 3 Ors. v. Joseph & Adebayo Osagunna & 3 Ors. referred to in paragraphs 72 & 77 of the Statement of claim is between the same principal parties to this action is now pending before the Supreme Court in Suit No: SC/19/1997.
2. The Statement of claim in the present Suit contained virtually the issues conversed in the said suit pending before the Supreme Court. (sic)
3. A hearing date in respect of the applications filed by the parties is already fixed for 8th Dec. 2009 and served on the parties.
RELIEF SOUGHT
The 1st – 12th Defendants shall pray this honourable Court to strike out the Plaintiff’s action for being an abuse of Court process as this honourable Court cannot assume jurisdiction over issues that are still pending before the Supreme Court”
(P. 58 of the record of appeal.)
The said notice was supported by a seven paragraph affidavit with documents attached thereto and marked as exhibits. On 6th October, 2009 the 1st – 4th respondents deposed to and filed a ten paragraph counter affidavit in opposition thereto and wherein it was stated in paragraph 6 (f) thereof “that the subject matter of this suit is the ownership of the land in dispute.” (P.86 of the record of appeal.)
On 20th October, 2009 the application was duly heard and arguments on the preliminary objection were taken before the learned trial judge. The learned trial judge heard the addresses of both learned counsel for the parties in respect of the said preliminary objection and in a bench ruling delivered thereon, he dismissed the same. He stated and ruled thus:
“I have considered the submissions of both parties and the issues before this court while I am in agreement that what is before the court has to do with the Olupoti Chieftaincy declaration, I must say that the application has not been able to satisfy this court that the subject matter in the present case, the reliefs sought and the parties and this capacities hereto are the same with those as in the former case. In fact I am of the view that they are not the same. I hold therefore that the present action as it is constituted is competent and not an abuse of court process. This application lacks merit and it is hereby dismissed.” (sic)
[Pp. 98 & 99 of the record of appeal.)
Dissatisfied with the said ruling and pursuant to order of this Court made/granted on 6th July, 2011, the appellants filed their notice of appeal on 13th July, 2011. It contained one ground of appeal. The 1st – 4th plaintiffs at the trial court are hereinafter referred to as the 1st – 4th respondents. Similarly, the 1st – 8th defendants are hereinafter referred to as the appellants, while the erstwhile 13th – 16th defendants are hence thus referred to as the 5th – 8th respondents.
Appellants’ brief of argument was deemed duly filed and properly served on 4th December, 2012. It was prepared by Owoseni Ajayi, Esq. The 1st – 4th respondents’ brief of argument was similarly deemed duly filed and properly served on 16th January 2013. On 11th February 2013 this Court granted leave to the appellants to argue this appeal on the appellants and 1st – 4th respondents’ briefs of argument, as a result of failure or refusal on the part of the 5th – 8th respondents to file their respondents’ brief within the time allowed by the rules of this Court and in the absence of any pending application in respect thereof.
On the said 11th February, 2013 when this appeal was heard, both the learned counsel for the 5th – 8th respondents and the parties/clients were absent and not represented. We were satisfied with the proof of service placed before us by the Registrar of this Court to the effect that they were duly served with hearing notice with regard to the day’s sitting. Thus, or the said date, the learned counsel for the appellants, Mr. Owoseni Ajayi leading M. S. Ejelonu Esq., adopted their brief of argument. He referred us to the Supreme Court decision in Chief Ayoola Adeosun v. Governor Ekiti State & 5 Ors. (2012) 4 NWLR (Pt. 1291) 581. He urged the court to allow the appeal and grant the reliefs sought by the appellants. Learned counsel for the 1st – 4th respondents, L. O. Ogundele Esq. with him O. M. Asefon Esq. and S. C. Ogbonna Esq. also adopted their brief of argument and urged us to dismiss the appeal.
From the sole ground of appeal, learned counsel for the appellants raised one issue for determination in this appeal. The issue is:
“Whether the lower trial judge was right in dismissing the Appellants Notice of Preliminary Objection which indicated that the principal issue for determination and principal parties in this suit are one and the same with the one subsisting in the Supreme Court”
The 1st – 4th respondents also submitted the following sole issue for determination. It states:
“Whether the parties, issues, subject matters and reliefs in this Suit and Suit No: CA/B/155/93 (i.e. SC.19/1997) are the same to warrant upholding of the Appellants’ Preliminary Objection by the lower court?”
Both issues formulated by the learned counsel for the parties are similar, though differently couched. Howbeit, the issue formulated by the appellants would be used for the determination of this appeal.
In arguing the sole issue, learned counsel for the appellants, Owoseni Ajayi Esq., submitted “that the suit filed at the lower court by the 1st – 4th respondents is clearly an abuse of court process and the learned trial judge erred in law to have dismissed the Appellants Preliminary Objection urging him to strike out the said suit.” For this submission, the appellants grounded their standpoints on the facts inter alia that the parties in the decision of the Court of Appeal, Benin Division in Appeal No. CA/B/155/93 copiously referred to in paragraphs 49, 50, 72 and 77 of the statement of claim are the same with the principal parties in the instant case. Additionally, that even though the subject matter in the instant case bordered on a land dispute, but the core issue raised therein for determination, concerned the Olupoti chieftaincy tussle which is the subject matter of Appeal No. SC.19/1997 which was then pending before the Supreme Court and wherein the parties had joined issues. It was further opined that the instant case cannot be “determined without the determination of the status of the 1st respondent,” and that the trial court in its ruling found, “as a fact that the matter in Suit No. CA/B/155/93 is already pending before the Supreme Court.” It was thus further argued that the instant case “is a gross abuse of judicial process” which has been defined as “the improper use of the judicial process by a party in litigation.” Reference was made to Nyah v. Noah (2007) 4 NWLR (Pt. 1024) 320/337 E – F; Okorodudu v. Okoromadu (1977) 3 SC 21; Okafor v. Attorney-General, Anambra State (1991) 6 NWLR (Pt. 200) 659 and Agwasim v. Ojichie (2004) 10 NWLR (Pt.882) 613/622-623 E – B on what constitutes abuse of court process and the inherent power of a court to prevent an abuse of its process.
Learned counsel for the appellants further submitted that the appellants are entitled to raise a preliminary point of law in the given circumstances of the instant case, where the main subject matter appertaining thereto is a subject of appeal before the Supreme Court. He referred to and placed reliance on Aremo II v. Adekanye (2004) 13 NWLR (Pt. 891) 572/594 – 595 E – A. He quoted extensively therefrom for this submission. It was then pointed out that the appeal in question has been heard and judgment delivered thereon by the Supreme Court while this appeal was pending before us. It was further noted, that “in the unanimous judgment of the Supreme Court delivered on 20th January, 2012 the appeal of the appellant in the said case and incidentally the 1st appellant in this case was allowed.” Thus, while the Supreme Court set aside the decision of the Court of Appeal, Benin Division in Appeal No. CA/B/155/93 delivered on 22nd March, 1996 it restored and affirmed the judgment of the trial court in Suit No. AK/62/88 delivered on the 15th day of January, 1993.
Learned appellants’ counsel then made the point that having ceased to be the Olupoti of Ipoti-Ekiti, the status assumed by the 1st respondent to institute this action; that is the “locus standi of the Plaintiffs/Respondents had been destroyed.” It was contended “that if a plaintiff is incompetent because he has no locus standi to bring an action, the court would in turn be incompetent and without jurisdiction to entertain the plaintiffs action.” For the definition of locus standi and its effect when it is lacking on the part of a plaintiff, we were referred to Attorney-General Akwa Ibom State v. Essien (2004) 7 NWLR (Pt. 872) 288/320 D – E and Uguru Usani v. Donal Duke (2004) 7 NWLR (Pt. 871) 116/139 H. In conclusion, we were urged to allow the appeal, set aside the unfavourable trial court’s ruling and “make an order striking out the entire suit.”
Responding to the above submissions, learned counsel for the 1st – 4th respondents highlighted what constitutes abuse of court process. He cited the cases of Okonkwo v. Federal Republic of Nigeria (2011) 11 NWLR (Pt. 1258) 215/253 A – D; Uduaghan v. Ogboru (2011) 2 NWLR (1232) 608/620 C; Chindo v. Isah (2011) 4 NWLR (Pt. 1236) 27/36 F – H; NDIC v. Okeke (2011) 6 NWLR (Pt. 1244) 445/438 439 G – B; A.C.B. Plc. v. Nwaigwe (2011) 7 NWLR (Pt. 1246) 380/392 – 393 H – C; with the submission that in order to amount to an abuse of court process, “the appellants herein must satisfy the requirement of sameness of subject matter, relief, issue and parties in the earlier suit as well as in the instant case.” It was then contended that, “where the subject matter is not the same there is no abuse of court process.” He cited the case of Conoil Plc. v. Vitol S. A. (2012) 2 NWLR (Pt. 1283) 50/90 – 91 G – G. It was also argued that the instant suit does not constitute an abuse of court process, more so, when the subject matter/issues, parties and reliefs in the instant suit and the matter before the Supreme Court, that is Suit No. SC.19/1997 are not the same. He called in aid, the cases of Nyah v. Noah (2007) 28 WRN 98/114; Ogoejeofo v. Ogoejeofo (2006) 22WRN 183/199 – 200 for this standpoint.
Learned counsel for the 1st – 4th respondents restated the position of the law, “that in determining whether the plaintiff has locus standi and cause of action or whether the court has jurisdiction to entertain a suit, the court will consider the writ of summons and statement of claim.” We were referred to the following cases: Okorocha v. U.B.A. Plc. (2011) 4 NWLR (Pt. 1228) 348/373 E; Wilson v. Okeke (2011) 3 NWLR (Pr. 1235) 456/476 – 477 H – A; JVC Professional Products (UK) Ltd. v. Famuyide (2011) 4 NWLR (Pt. 1238) 572/592 C – E. Additionally, that the statement of claim must disclose a justiceable cause of action. He cited Saulawa v. Kabir (2011) 2 NWLR (Pt. 1232) 417/441 E – F; Taiwo v. Adegboro (2011) 11 NWLR (Pt. 1259) 562/580 B – D.
It was repeatedly argued by the learned counsel for the 1st – 4th respondents that, “even though the 1st respondent has by the said judgment ceased to be Olupoti, however it does not have any effect on the status of 1st – 4th respondents in this case since the subject matter, issues, parties and reliefs in the two suits are not the same,” and that the action is competent. The case of Onuekwusi v. The Registered Trustees of the Christ Methodist Zion Church, (2011) 6 NWLR (Pt. 1243) 341/359 E – F was cited in this regard. It was further submitted “that since the 1st – 4th Respondents have locus standi to institute this action, the lower court is competent and has jurisdiction to entertain this suit” and as such, “the locus standi of the 1st – 4th Respondents have not been destroyed by the Supreme Court in Suit No. SC.19/1997.” We were urged to resolve the sole issue in favour of the 1st – 4th respondents, uphold the trial court’s ruling and dismiss this appeal.
It is settled that a defendant who conceives that he has a good ground of law which if raised and resolved will determine the action in limine, is entitled to raise such a ground of law. See Martins vs. Administrator of the Federation & Anor. (1962) 1 SCNLR 209, (1962) 1 All NLR 120. To my mind, the determination of this appeal largely turns on the issue of abuse of court process and locus standi.
Strictly speaking, an abuse of judicial process is the improper use of the judicial process by a party in litigation. It may occur in diverse ways. What amounts to abuse of court process has been variously defined by the Supreme Court over the years and it includes the following situations:
(i) Where a party improperly uses judicial process to the annoyance, embarrassment, harassment, irritation and of the adverse party.
(ii) To interfere with the administration of justice.
(iii) Where two or more similar processes are taken out by a party against the same party/parties with regard to the exercise of the same right and or subject
(iv) Where the process of the court has not been used bona fide and properly.
See Okorodudu v. Okoromadu (1977) 3 S.C. 21; Nnama v. Nwanebe (1991) 2 NWLR (Pt. 172) 181; Okafor v. Attorney-General, Anambra State (1991) 6 NWLR (Pt. 200) 659; Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156; African Reinsurance Corp. v. JDP Construction (Nig.) Ltd. (2003) 5 MJSC 104; Ntuks & Ors. v. N.P.A. (2007) 13 NWLR (Pt. 1051) 392 and Olutinrin v. Agaka (1998) 6 NWLR (Pt. 554) 366. It is to be noted that the list of situations listed above is not exhaustive.

Accordingly, and in giving consideration to this issue, as to whether the trial court has or lacks jurisdiction to entertain or continue entertaining an action, it is established that invariably, it is the plaintiff’s claim as endorsed on the writ of summons and statement of claim that the court has to consider and not the statement of defence. See Adeyemi v. Opeyori (1976) 9 – 10 S.C. 31.
It is significant and instructive to note that in the instant case, all the ten reliefs both the principal and ancillary claims by the respondents at the trial court are not interdependent of each other. Indeed, they are so closely interwoven as to be inextricable. The likely grant of one or more of the reliefs will invariably have a reverberating effect on most if not all the other reliefs; in view of the linkage effects and the latent interconnectivity therein. A careful perusal of the said ten reliefs claimed by the respondents herein as contained in paragraph 115 of their joint statement of claim which has been reproduced in this judgment, clearly show that they relate to a land dispute. Howbeit, the land has been variously described as “the large parcel of land (also known as “Olupoti Palace Compound,” “Afin Compound” or “Ile Owa”.) It was further referred to as, “stool land which belongs to the Olupoti of Ipoti in his official capacity as the Olupoti for the exclusive occupation, use and management of any reigning Olupoti of Ipoti-Ekiti who holds same for his own benefit and that of the entire Ipoti-Ekiti Community.” Thus, the pertinent question begging for an answer is simply this: whether in the given circumstances and peculiar facts of the instant case, the trial court is still vested with the requisite jurisdiction to continue entertaining the matter to the point of determining the same. Put differently; could the respondents and more particularly the 1st respondent have locus standi to institute the instant action alongside the other respondents if he was not the then de facto Olupoti of Ipoti? My noble Lords, the answer in this case is not blowing in the wind. The answer which is in the negative and with the resultant effect that the reverse would have been the position. This is more so, because the fact remains that once a vested authority has been lost, it can no longer be exercised not to talk of an effective and valid exercise of such an authority. Furtherance to my bid towards answering the question asked above, I am of the humble viewpoint that the reliefs, both injunctive and monetary, claimed in paragraph 115 of the respondents’ statement of claim and predicated on the pleadings as it were, could not have given a competent and justiciable cause of action to the 1st respondent and other respondents herein, with the 1st respondent having lost his high stool as the then de facto Olupoti of Ipoti-Ekiti. This is more so, because going by the tenor of the pleaded facts and issues joined by the parties herein both the stool and the land in dispute have a somewhat inseparable symbiotic synergy, which attaches one to the other.
It is thus worth restating that by their joint pleadings, the respondents in clear terms averred inter alia in paragraph 63 thereof, that the land in dispute attaches to the stool. Hence, the occupation and management of the said land by whosoever is the incumbent Olupoti of Ipoti-Ekiti, “who has complete use and enjoyment of it for the benefit of himself and the entire Ipoti-Ekiti Community under native law and customs.” Additionally, that the ownership/title of the said land is vested in the Olupoti. These averments to my mind constitute an unequivocal admission. Accordingly, in the current dispensation and in view of the Supreme Court’s decision with regard to the stoolship of Olupoti of Ipoti-Ekiti, the platform on which the respondents stood tall and high has been removed. They are thereby left stranded without any semblance of authority to be exerted or wielded. It then stands to reason, that the instant action as presently constituted is incapable of being sustained or continued not to talk of its completion. No one should be allowed to approve and reprove simultaneously. A cry and a smile cannot be accommodated on the face of a person at the same time. The question begging for an answer is still simply this: In what capacity or status will the 1st respondent in particular and other respondents in general continue to maintain the instant action? Definitely, not as presently instituted or constituted, since the Supreme Court allowed the main appeal by the 1st appellant herein, set aside the judgment of the lower court, that is the Court of Appeal, Benin Division, while it restored and affirmed the judgment of the trial court, that is, High Court of the then Ondo State holden at Akure in Suit No. AK/62/88 delivered on 15th January 1993, wherein the said trial court specifically and emphatically restrained the 1st respondent herein “from parading himself and exercising any of the Olupoti royal functions because of the defect in the instrument of his appointment.”
A party must be clothed with the garb of locus standi from the conception to the conclusion of an action. No turbulence should be allowed to destabilize, jeopardize or upturn the acquired authority or capacity to sue. A party who has become encumbered, incapacitated or stultified in his standing to sue, has equally lost the nexus between such a party and the disclosed cause of action appertaining to his civil rights and obligations which have been or are in danger of being infringed upon. It is both logical and legal that what cannot be done directly is incapable of being done indirectly. Thus, what cannot be achieved through the main or principal source cannot be attained through a devious or inviduos secondary/subsidiary source. Hence, in the instant case, if the main claimant, that is the 1st respondent, has been dethroned so to say and divested of his claim to royalty, all other joint claimants in this regard must sheathe their swords and take a back seat. It is not worth it, to fight a losing battle.
The learned counsel for the appellants ably argued that the resultant effect of the Supreme Court decision on the instant case is that the locus standi of the 1st respondent has become spent and or non-existent. Thus, with the 1st respondent’s locus standi to institute the suit having been successfully challenged and or impugned the action became incompetent and thus the trial court lacks the requisite jurisdiction to entertain, not to talk of its being vested with the judex to determine the same.
With the way things presently stand, the respondents on a collective basis have no real stake or interest in the subject matter of the litigation. Let me state, that I have given adequate consideration to the established position of the law, to the effect that in determining whether a party has locus standi or not, the chances of success or otherwise in the action is immaterial. See Williams v. Dawodu (1988) 4 NWLR (Pt. 87) 189. It is however, trite that all courts in Nigeria have the bounden duty to enforce decisions of the Supreme Court. By virtue of Section 287(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, the decisions of the Supreme Court remain the final position on any issue determined by it. Indeed and there is no two ways about it, unless and until the Supreme Court itself states otherwise, such a decision by the Supreme Court shall be enforced in any part of the Federation by all authorities and persons and more particularly by courts with subordinate jurisdiction to that of the Supreme Court. This court being a penultimate court is a court of subordinate jurisdiction to that of the apex court – Supreme Court. In this vein, I am of the humble view point that if the 1st respondent is allowed to proceed with the prosecution of the instant case, it would amount to an abandonment, disobedience and denigration of the Supreme Court’s decision described above. No court in Nigeria should deliberately and willfully embark on such a retrogressive course of action. It is a fact of life that a vested power, interest or authority can be lost or divested through acknowledged or recognized means. Having been derobed by the Supreme Court’s judgment, the 1st respondent who was at the helm/vanguard in the dispute, has suffered a reversal of fortune and ipso facto his locus standi and thereby rendering the action incompetent, albeit midway into the proceedings. This development engendered loss of jurisdiction in the trial court.
I am of the humble mindset that in view of the decision of the Supreme Court in Suit No. SC.19/1997 delivered on 20th January, 2012 and reported as Chief Ayoola Adeosun v. The Governor of Ekiti State & 5 Ors. (2012) 4 NWLR (Pt. 1291) 581/606, which said decision finally decided and resolved the issue of validity of 1st respondent’s claim to the stool of Olupoti of Ipoti-Ekiti; afortiori why the continued existence, or continuation of the instant suit as presently instituted when the tussle over the stool has been disposed of and laid to rest by the apex court should not be condoned. It is thus logical and legal to reason and argue that the said suit constitutes and abuse of the process of the court. I am thus inclined to subscribe to the standpoint that in such a given circumstance, the process of the court if allowed, would have been used mala fide and improperly. To my understanding, it would amount to absurdity dignified by recognition if the respondents herein are allowed to continue with the hearing of the instant action in the way and manner that it is presently constituted. Abuse of court process can ensue either at the onset or in the course of an ongoing proceeding. The main attribute is the mischief sought to be obviated or prevented. Topmost among which is; overreaching and unnecessarily encumbering the adverse party and the court. In the instant case the manifest resultant effect of the Supreme Court’s decision in Appeal No: SC.19/1997, between Chief Ayoola Adeosun v. Elijah Oladele Ayeni & Ors; delivered on 20th January 2012, is that the 1st respondent has lost whatever semblance of claim he might have had to the Olupoti stool on which his initial claim was predicated. With the loss of his claim to the stool, he has lost the seat/throne by virtue of the said Supreme Court’s judgment. Consequently, he has lost an authoritatively valid position or a solid platform to stand on. The Supreme Court in Chief Sodipo v. Lemminkainen OY & Anor. (1992) 8 NWLR (Pt. 258) 229/242 pointed out and lucidly defined abuse of court process thus:
“Abuse of court process means that a party in a litigation takes a most irregular, unusual and precipitate action in the judicial process for the sake of action qua action with an aim of wasting valuable litigation time. It is an action which could be one or more too many. It is an action which could be avoided by the party without doing any harm to the matter in dispute. Putting it the other way, the process of the court is used mala fide to overreach the adverse party to the direct annoyance of the court”
Any defect in competence either at the commencement or while an action is pending is fatal; for the proceedings are worthless, howsoever well conducted and decided. This is more so, because the defect is extrinsic to the adjudication process. It is trite that courts do determine only live issues. They do not determine academic issues. In the instant case, I do not conceive any way in which the action can be continued to its logical conclusion without the judicial process being grossly abused. To my mind and firm viewpoint, the trial court did not do the right thing when it refused to uphold the appellants’ “preliminary objection in limine, to the hearing of this suit for being an abuse of court process.” In the instant case, the 1st respondent and his co-travelers can be rightly said to have lost their bearing and locus standi to institute the suit, talk less of continuing with its prosecution. When the bottom has been knocked out of a case, there is nothing for it to stand on. Litigation is a serious business. It is not an avenue for a litigant to pursue a vindictive vendetta without bothering to play the game according to the rules. That is the more reason why courts of law have an inherent jurisdiction to prevent abuse of judicial process by frivolous or vexatious proceedings. A litigant, who has lost a seat or position, has no earthly justification to enjoy the status, retain the benefits or privileges that are derivable or likely to accrue solely from the occupation of such a seat or position which has been lost anyway.
I have carefully examined the court processes filed by the respondents in the instant action with particular reference to the writ of summons and statement of claim. With the strong challenge mounted by the appellants against the capacity of the 1st respondent to continue with the instant case. I have no hesitation whatsoever in stating that in the given circumstances and peculiar facts of the instant case, the respondents and more particularly the 1st respondent, have lost their locus standi to proceed with the said case. Having been ordered to stop parading himself as the Olupoti, the 1st respondent has been divested of the functions attached to the stool and thus bereft of the locus standi to continue with the instant action. The Supreme Court in plethora of cases settled the position of the law to the effect “that competency to institute an action is an essential or indeed a vital factor in deciding the competency of the action itself, and if challenged by a defendant, the plaintiff has the onus of establishing it.” Furthermore, “that it is fundamental that a person who institutes an action in court must be competent to do so.” See Alhaji Olorunkemi Ajao v. Mrs. L. E. Sonola & Anor. (1973) 1 All NLR (Pt. 1) 533/537. It is within contemplation that if a plaintiff’s locus standi to bring and or continue an action is successfully challenged, the court would in turn have no jurisdiction to adjudicate thereon. This is more so, because if a plaintiff is incompetent to bring the action, the court as well, will not be competent to entertain or continue to entertain an action from an incompetent plaintiff, as his action would not have been brought, “upon the fulfillment of a condition precedent to the exercise of the court’s jurisdiction.” See Madukolu v. Nkemdilim (1962) 1 All NLR 587/595. Indeed, a proper plaintiff so called, should be a party who has a vested right of action from the conception to the completion of the suit.” See Green v. Green (1987) 7 SCNJ 255/277. What is more, in the instant case, both parties conceded the point that at the time the said suit was instituted at the lower court, the status of the 1st respondent as the Olupoti of Ipoti-Ekiti was being challenged at the Supreme Court in Appeal/Suit No. SC.19/1977 with both the 1st appellant and 1st respondent herein as parties therein. In Oredoyin & Ors. v. Arowolo & Ors. (1989) 4 NWLR (Pt. 114) 172/187 the Supreme Court held that the issue of locus standi really goes to jurisdiction and it could be raised at any stage, even for the first time at the Supreme Court.
It is thus my considered viewpoint that the learned trial judge was wrong when he overruled the notice of preliminary objection raised by the appellants herein against the proceedings at that point in time, when it was raised before the said learned trial judge. In this regard, the sole issue raised and adopted for determination in this appeal is resolved in favour of the appellants and more specifically against the 1st – 4th respondents herein.
In conclusion and in the premise, the appeal has merit and it is accordingly allowed by me. Consequently, the trial court’s ruling wherein it held, that “the present action as it is constituted is competent and not an abuse of court process”, which thereby led to the dismissal of the said application/objection by the appellants is hereby set aside by me. In its stead, I make an order striking out Suit No. HIJ/15/2009 between Oba Elijah Oladele Ayeni & 3 Ors. v. Chief Ayoola Adeosun & 15 Ors., pending before the Ekiti State High Court, Ijero-Ekiti Judicial Division. I award N50,000.00 as costs in favour of the appellants and against the 1st – 4th respondents herein. Ordered accordingly.

JIMI OLUKAYODE BADA, J.C.A.: I had a preview of the lead Judgment of my learned brother, MASSOUD ABDULRAHMAN OREDOLA, J.C.A., just delivered; and I agree with the reasons given therein and the conclusion reached.
There is merit in the appeal and it is also allowed by me.
I endorse the consequential orders made in the said lead Judgment including the Order on costs.

UCHECHUKWU ONYEMENAM, J.C.A.: I had the privilege of reading in draft the lead judgment delivered by my learned brother, MASSOUD ABDULRAHMAN OREDOLA, J.C.A. I agree with the reasoning and conclusions therein. The trial court’s ruling is set aside. I also strike out Suit No: HIJ/15/2009. I abide by the order as to costs.

Appearances

Owoseni Ajayi Esq. with M. S. Ejelonu Esq.

L. O. Ogundele Esq. with O. M. Asefon Esq. and S. C. Ogbonna Esq. For Appellant

AND

5th – 8th Respondents – Absent and unrepresented For Respondent