EMMANUEL ADEKUNLE ALABI v. GEORGE AKINYELE ADELEYE & ORS (2015)

EMMANUEL ADEKUNLE ALABI v. GEORGE AKINYELE ADELEYE & ORS

(2015)LCN/7989(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 19th day of August, 2015

CA/B/298/2009

RATIO

CUSTOMARY LAW: CHIEFTAINCY; THE PROCEDURE TO BE FOLLOWED TO FILL A MINOR CHIEFTAINCY

Taking the above provision of Section 9 of the Chiefs (Amendment) Edict, 1991 alongside the recognized procedures to be followed to fill a minor Chieftaincy, the following picture emerges:
(a) Those who are entitled by customary law to nominate and in accordance with customary law, will nominate a person to a vacancy.
(b) The kingmakers will then appoint the person nominated by those entitled by customary law to nominate candidate to a vacancy.
(c) The prescribed authority or chieftaincy committee established by law will then proceed to approve the appointment.
(d) Where a dispute arises as to whether a person has been appointed in accordance with customary law to such chieftaincy, it is the prescribed authority that will determine the dispute.
(e) If any person is aggrieved by the decision of the prescribed authority in exercise of the powers above, that person may make representation to the Commissioner for chieftaincy affairs within 21 days and the Commissioner may affirm or set aside the decision of the prescribed authority.
(f) A person who is aggrieved by the decision of the Commissioner for Chieftaincy Affairs may apply to the Court for redress. per. MOJEED ADEKUNLE OWOADE, J.C.A.

PRACTICE AND PROCEDURE: WHETHER A COURT IS AT LIBERTY TO REFER TO A DOCUMENT IN ITS RECORD FOR THE JUST DETERMINATION OF A MATTER BEFORE IT

There is no gainsaying that a Court is at liberty to refer to a document in its record for the just determination of a matter before it. See: Agbareh v. Mimrah (2008) 2 NWLR (pt. 1071) 378 at 410-411. per. MOJEED ADEKUNLE OWOADE, J.C.A.

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

MOHAMMED A. DANJUMA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

EMMANUEL ADEKUNLE ALABI Appellant(s)

AND

GEORGE AKINYELE ADELEYE & ORS Respondent(s)

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision (Ruling) of the High Court of Justice, Ondo State sitting at Oka Akoko delivered by the Honourable Justice C.E.T. Ajama on 22/6/2009.

By a Writ of Summons and Statement of Claim dated 11-5-2009 and filed on 12-5-2009, the 1st Respondent as plaintiff (for and on behalf of his Faborode Asaloke Ruling House of Okeogboron Quarter supare) took out this action against the present Appellant and the 2nd – 6th Respondents as Defendants.

By paragraph 34 of the statement of claim, the 1st Respondent as plaintiff claims against the defendants jointly and severally as follows:
(a) Declaration that the purported selection/appointment/installation of the 1st defendant by the 2nd and 3rd defendants as Chief Olokeogboron of Okeogboron quarter of Supare Akoko South West Ondo State is null and void and of no effect whatsoever as it is against the provisions of Chiefs (Amendment) Edict 1991 and supare’s tradition and custom.
(b) Order of the court setting aside the said purported election/appointment/installation of the first defendant as Chief Olokeogboron of Okeogboron supare and all the activities already taken either by the 2nd and 3rd defendants or by any person or authority for that matter towards the selection/appointment/installation of the 1st defendant as Chief Olokeogboron of Okeogboron supare.
(c) Injunction, restraining the 1st defendant from parading himself, holding out himself or declaring himself as Chief Olokeogboron of Okeogboron quarter Supare Akoko South West Local Government Area, Ondo State.
(d) Injunction restraining the 2nd, 3rd, 4th, 5th and 6th defendants by themselves, their agents, privies, officers, or anybody claiming through them or acting on their respective behalf from recognizing, regarding, holding out, addressing, treating or relating with the 1st defendant as Chief Olokeogboron of Okeogboron quarter supare Akoko South West Local Government Area, Ondo State.

By a Notice of preliminary objection dated 2-6-2009 and filed on 4-6-2009, the Appellant as 1st defendant in the Court below objected to the competence of the plaintiff/1st Respondent’s action on the ground that “the suit is pre-mature as the plaintiff did not comply with the mandatory provisions of Section 9(4)(5) and (6) of the Chiefs (Amendment) Edict 1991, and Section 1 of the Chiefs (Amendment)(No. 2) Edict 1991”

In determining the preliminary objection by the 1st defendant Appellant, the learned trial judge held sundrily as follows:
“———— The ruling of this Honourable Court in suit No. HKA/2/2009 which was cited by the 1st Defendant’s counsel, was on a similar objection raised by the plaintiff here against a suit filed by the 1st Defendant who then sued as the plaintiff. In that suit which also had to do with Olokeogboron Chieftaincy, the Court cited the case of Nkuma V. Odili (2006) 6 NWLR (pt 777) 587 and some other authorities where the Court held that in determining whether the Court has a jurisdiction to entertain a Chieftaincy matter or not, the claim before the Court as endorsed in the statement of claim is what the Court has to look at.
In the instant case that is no doubt that the Olokeogboron Chieftaincy for which the disputants and others are in Court – is a minor Chieftaincy and that the 2nd Defendant, the Olusupare of supare is the prescribed authority in Supare Land.
He is here sued as 2nd Defendant and not only has he filed a Statement of Defence in this matter admitting all the allegations of fact in the statement of claim, his counsel has argued against the preliminary objection raised in Court by the 1st Defendant, meaning that the prescribed authority of supare land prefers this case to be heard on its merits”

Secondly, and after referring to the provision of Section 9(4)(5) and (6) of the Chiefs Edict 1991, the learned trial judge further held at page 35 of the record of appeal thus:
“The above provision of the law, to my mind gives the prescribed authority some degree of protective shield against his subjects who may wish to open the flood gates of litigation in his domain on minor chieftaincies.
Same is not meant to retract or diminish from the powers of the prescribed authority. Where therefore the prescribed authority thinks his authority is being ignored or side-lined, I do not see how Section 9 of the Chiefs Edict can be used to prevent the decision of the prescribed authority to seek the protection of the Court.
In the instant case, like I said earlier, the prescribed authority has aligned himself with the plaintiff. Is there any merit in this?
These are questions which we cannot look into at this stage of the proceedings except we proceed to trial.
The situation, to my mind, is different from where an aggrieved party has to take his case beyond the prescribed authority to the Commissioner responsible for Chieftaincy affairs.
The situation on ground now is that the plaintiff is alleging in paragraphs 25 to 32 that he was selected by his family for the Olokeogboron Chieftaincy after due consideration and that the 2nd defendant, the prescribed authority has approved of his candidature”

Thirdly, at pages 35-36 of the record, that:
“Taking into consideration the circumstance in suit No. HKA/2/2009 which the parties referred to in their arguments, the plaintiff here seems to be the one given the nod of approval by the 2nd Defendant, hence suit No. HKA/2/2009 which was struck out for non-compliance with the provisions of the Chiefs Edict. The question for consideration here is: who is the aggrieved party that needs to go on appeal to the Commissioner responsible for Chieftaincy Affairs or who must comply with Section 9(4)(5) and (6) of the Edict? Is it the plaintiff who is alleging that he is the approved choice of the prescribed authority, or the 1st Defendant who first complained that he was cheated out of the race?”

And, finally, still on page 36 of the record that:
“For it is that person who was not favoured by the decision of the prescribed authority that Section 9(4), (5) and (6) of the Chiefs (Amended) Edict 1991 and Section 1 of the Chiefs Edict (Amendment) No. 2 Edict 1991 seeks to focus on and not a person in the plaintiff’s category. All the authorities cited by the 1st Defendant’s counsel seem to have to do with cases where the aggrieved party is not the choice of the prescribed authority. Here it is really the prescribed authority and his choice of candidate that seems to be on the receiving end of the 1st Defendant’s alleged conduct and that makes the whole difference. In the circumstance, I cannot see my way clear as to how fair it will be to use Section 9(4),(5) and (6) of the law above cited to shut the doors of the Court against the plaintiff whose statement of claim has set out clear triable issues and who is not in the category of persons envisaged by the law relied upon by the 1st Defendant’s counsel. Accordingly, the 1st Defendant’s preliminary objection is hereby dismissed”

Dissatisfied with the above decision, the 1st Defendant/Appellant filed a Notice of Appeal containing four (4) grounds of appeal in this Court on -7-2009.

The relevant briefs of argument for this appeal are as follows.
(a) Appellant’s brief of argument dated 28-10-2010 and filed on 2-11-2010 – settled by Chief A.A. Adeniyi.
(b) 1st Respondent’s brief of argument dated 13-1-2011, filed on 19-1-2011 but deemed filed on 11-2-2013 – settled by Fele Asho Esq.
c) 2nd Respondent’s brief of argument dated 7-9-2012 filed on 24-10-2012 but deemed filed on 13-4-2015 – settled by Hussein Afolabi Esq.

Learned counsel for the Appellant nominated two (2) issues for determination, they are:
1. Whether the Hon. Learned trial judge was right in dismissing the Appellant’s preliminary objection and consequently holding that he can assume jurisdiction.
2. Whether the Hon. Learned trial judge was right in taking into consideration the averments in statement of Defence of 1st and 2nd Defendants in reaching his finding that, it was the 1st Defendant/Appellant that ought to have fulfilled the condition precedent to bringing this suit by exhausting the statutory administrative remedies before instituting this suit.

Learned counsel for the 1st and 2nd Respondent adopted the issues formulated by the Appellant.

In determining this appeal, the submission of the learned counsel for the Appellant would be placed on one side of the scale of justice, while the submission of the 1st and 2nd Respondents shall be treated together as those of the “Respondents”.

This is for the reason of the shared common interest between the Respondents and also for convenience.

On issue 1, learned counsel for the Appellant submitted that the combined effect of Section 9(4) and (5) of the Chiefs Amended Edict, 1991, is that an aggrieved person must first take a mandatory two stages procedure steps before he can validly initiate a court proceeding in respect thereof.

That such an aggrieved person must first submit such dispute, whatever it is, to the prescribed authority for resolution. The prescribed authority in return has a statutory duty of first making an attempt to resolve or pronounce on the dispute referred to it and communicate his decision on the dispute to the aggrieved person in writing. If the decision or pronouncement of the prescribed authority on the dispute is acceptable to the aggrieved person, the matter naturally is put to a final rest. If otherwise, the aggrieved person then proceeds to the 2nd stage of exhausting the statutory prescribed remedy. But, that, if the aggrieved person is still not satisfied with the decision of the prescribed authority on the dispute, the aggrieved person must make further recourse to a designated member of the executive, that the decision of the prescribed authority is not acceptable to him and that the decision be set aside. This second representation, said counsel, must be made within 21 days of the receipt of the prescribed authority decision on the dispute as first submitted to it.

Learned counsel referred to the cases of Bamisile V. Osasuyi (2007) 9 NWLR (pt.1042) 225 at 270-271; Faloye V. Omoseni (2004) FWLR (pt.35) Page 723 (2001) 9 NWLR (pt. 717) 190; Adesola V. Abidoye (1999) 14 NWLR (pt. 637) 28 at 56, ALL on the mandatoriness of the above procedures notwithstanding the fact that the drafters of the Section 9(4) and (5) of the Chiefs Amendment Edict, 1991, used the word ‘may’ in the statute under reference.

Learned counsel submitted that in the instant appeal, a careful study of the Plaintiff’s/1st Respondent’s statement of claim will reveal the following:
(i) The dispute is in respect of a minor Chieftaincy.
(ii) The 1st Respondent was aggrieved by the nomination, selection installation and appointment of the Appellant as Chief Olokeogboron of Okeogboron, hence he initiated this suit at the lower Court.
(iii) The 1st Respondent’s case vide his statement of claim is that the 2nd Respondent had accepted his nomination as to fill the vacant Chieftaincy stool.
(iv) The Appellant subsequently claimed that the Defendants had also accepted his own nomination and had in fact installed him to fill the vacant chieftaincy in dispute.
(v) The 1st Respondent aggrieved by the purported appointment and installation of the Appellant to fill the vacant stool of Olokeogboron of Okegboron, the chieftaincy in dispute against the tenet of Section 9(4) of Chiefs Amendment Edict, 1991 made representation in writing to the 3rd Respondent instead of the prescribed authority as prescribed by the law and who in the instant appeal, is the 2nd Respondent.

Appellant’s counsel submitted that the above facts present a violent contravention of Section 9(4) and (5) of Chiefs Amendment Edict, 1991 and thereby constitute a non-compliance with the said law.

Counsel submitted further that in the instant case, whereas Section 9(1) of the Chiefs Amendment Edict, 1991 provides that in a dispute of this nature, representation must first be made to the prescribed authority who must first be given a first shot at settling the dispute and make a decision on it one way or the other, the 1st Respondent by-passed the prescribed authority and wrote to the 3rd Respondent on 6th May, 2009 without waiting for the decision of the 3rd Respondent on his letter of 6th May, 2009 rushed to Court and filed this suit on 11th May, 2009.

Learned counsel submitted that such action renders the filing of this suit premature and incompetent.

He further referred to the case of Aribisala V. Ogunyemi (2005) 6 NWLR (pt. 92) 212 at 231-232 and urged us to resolve the issue in favour of the Appellant.

The Respondents on the other hand submitted in respect of issue 1 that the learned trial judge rightly held that Section 9 of the Chiefs (Amendment) Edict 1991 does not apply to this case as contained on page 35 of the record of appeal.

They argued that considering the Provisions of Section 9(4) and (5) of the Chiefs (Amendment) Edict 1991 and paragraphs 22, 23, 24, 25, 26, 27, 28, 29, 30, 31 and 32 of the plaintiff’s/1st Respondent’s Statement of Claim, the 1st Defendant/Appellant is the aggrieved person who ought to explore Section 9(4) and (5) of the Chiefs (Amendment) Edict 1991 instead of his self proclamation as Chief Olokeogboron of Okeogboron, Supare, to the surprise of the prescribed authority, who had already approved the candidature of the Plaintiff/1st Respondent as Chief Olokeogboron of Okeogboron, Supare.

It was further submitted for the Respondents that there was no dispute to be submitted to the prescribed authority by the Plaintiff/1st Respondent. That the case of Aribisala V. Ogunyemi (2005) Vol. 11 WRN 28 relied upon by the Appellant is not relevant. That in the Aribisala v. Ogunyemi case (Supra) the prescribed authority, the Onikoyi of Ikoyi was not ignored or sidelined as in the present case. But, that in the present case, the prescribed authority, Olu Supare of Supare was not reckoned with, he was ignored and would not even know who made the Appellant Chief Olokegboron of Supare.

The Appellant, according to the Respondents, in flagrant abuse of the native law and custom proclaimed himself as Chief Olokegboron and paraded himself as such. Hence, considering the facts and circumstances of the case it becomes not only impracticable but absurd to say that Section 9(4) and (5) Chiefs (Amendment) Edict, 1991, should be complied with by the 1st Respondent who was favoured by the 2nd Respondent (Prescribed Authority).

The Respondents further submitted that the authorities cited by the Appellant are not applicable to the facts of the case. In particular, the Respondents submitted that the cases of Bamisile V. Osasuyi (2007) 9 NWLR (pt. 1042) 225, Faloye V. Omoseni (2004) FWLR (pt. 35) 723, Adesola V. Abidoye (1999) 14 NWLR (pt. 637) 28 do not apply to the present case as in none of the cases was the prescribed authority ignored or sidelined.

In determining Appellant’s issue one, which indeed is the central issue in the appeal, it is pertinent to reproduce the provision of Section 9(4), (5) and (6) of the Chiefs (Amendment) Edict, 1991 as follows:
Section 9(4):
“Where there is a dispute as to whether a person has been appointed in accordance with customary law to a minor chieftaincy, the prescribed authority, may determine the dispute and the person concerned shall be notified of the decision”
Section 9(5):
“Any person who is not satisfied with the decision of the prescribed authority may within twenty-one days from the receipt of the notification, make representations to such member of Executive Council to whom responsibility for Chieftaincy Affairs is assigned that the decision be set aside and he may, after considering the representations confirm, or set aside the decision.”
Section 9(6):
Before exercising the powers conferred by subsection (5) of this section, the member of the Executive Council responsible for Chieftaincy Affairs may cause such inquiries to be held as appears to him necessary or desirable.

By the above outlined procedure, a person who is favoured with the approval of his appointment to the vacancy of a minor chieftaincy in paragraph (c) above cannot be said to be an aggrieved person for the purpose of a dispute resolution in paragraph (d) even if, as it happens in the instant case, he turned to be a plaintiff who instituted a suit. This is simply because a person who is not aggrieved by the approval of an appointment by the prescribed authority and/or who indeed is favoured by the prescribed authority may be compelled to institute an action against an usurper to the vacant minor chieftaincy.

The above point is adequately demonstrated by an holistic construction of the claims of the 1st Respondent against the Appellant in this case, more especially by the averments in paragraphs 21 to 32(b) of the Plaintiff/1st Respondent’s Statement of claim reproduced below:
21. With the death of the plaintiff’s father there has been a vacancy in the Olokeogboron Chieftaincy.
22. As a result of the vacancy the plaintiff’s sub clan wrote a letter of 21st October, 2008 to inform the 2nd defendant of its intention to fill the said vacancy according to Supare’s Custom.
23. By a letter of 14th September, 2008. The 2nd defendant informed the head of the plaintiff’s sub clan to present a candidate to fill the said vacancy.
24. By another letter of 2nd October, 2008 plaintiff’s sub clan presented the plaintiff to the 2nd defendant in council as its candidate.
25. By a letter of 16th October, 2008 the 2nd defendant accepted the plaintiff as the choice of his sub clan and the 2nd defendant gave out some conditions to the plaintiff’s sub clan to satisfy which the plaintiff’s sub clan did.
26. The plaintiff shall give evidence of items his sub clan presented to the 2nd defendant in council towards plaintiff’s installation as demanded by Supare Custom.
27. The 2nd defendant in Council later invited the plaintiff to a meeting in furtherance of his appointment/installation and Paul Famubo accompanied the plaintiff to the meeting of the 2nd defendant in Council.
28. The plaintiff pleads all the letters already mentioned herein before.
29. The plaintiff’s sub clan having customarily satisfied all necessary conditions, plaintiff’s installation was then fixed for 15th December, 2008 by the 2nd defendant in Council when the 1st defendant wrote a letter of protest to the 2nd defendant to halt the installation. The letter of 26th November, 2008 is pleaded.
30. The 2nd defendant was still looking in to the 1st defendant’s complaint with a view to settling the dispute when 1st defendant brought Police from Area Commander Office, Owo to arrest the plaintiff over the Chieftaincy matter.
31. The Area Commander advised the 2nd defendant to settle the matter being a Chieftaincy matter but the 1st defendant rushed to Court and sued the plaintiff herein and others over the Chieftaincy in Suit. No. HKA/2/2009. The plaintiff pleads the writ of summons in the Suit.
32. The 1st defendant’s suit was later struck out. Certified true copy of the ruling of the Court striking out the suit is pleaded.
(32a) On 4th May, 2009 the 1st defendant proclaimed and paraded himself a Chief Olokeogboron of Okeogboron, Supare round the town of Supare claiming that the defendants had installed him and perfected his installation as such.
(32b) Not being satisfied with the purported appointment and installation of the 1st defendant as Chief Olokeogboron Supare by the defendants or by anybody for that matter the plaintiff caused his counsel to write a letter of 6th May, 2009 to 3rd defendant and the 4th and 6th defendants were copied, Original copy of the letter was sent to the 3rd defendant and the plaintiff pleads the letter.

By the above paragraphs of the statement of claim of the Plaintiff/1st Respondent, the learned trial judge was perfectly justified to have held that the Appellant rather than the 1st Respondent was the aggrieved person for the purpose of the provision of Section 9(4)(5) and (6) of the Chiefs (Amendment) Edict, 1991.

Put in another way, the 1st Respondent in the circumstances of his claim before the Court was not obliged to fulfill the conditions stipulated in Section 9 of the Chiefs (Amendment) Edict, 1991 having already been favoured with the approval of his nomination by the prescribed authority.

The learned trial judge was therefore right when he held at page 36 of the record of appeal, that:
“——— for it is that person who was not favoured by the decision of the prescribed authority that Section 9(4), (5) and (6) of the Chiefs (Amendment) Edict, 1991 and Section 1 of the Chiefs Edict (Amendment) No. 2 Edict 1991 seeks to focus on and not a person in the plaintiff’s category.
All the authorities cited by the 1st Defendant’s counsel seem to have to do with cases where the aggrieved party is not the choice of the prescribed authority. Here it is really the prescribed authority and his choice of candidate that seems to be on the receiving end of the 1st Respondent’s alleged conduct and that makes the whole difference ——–”

Issue 1 is resolved against the Appellant.

On issue 2, learned counsel for the Appellant submitted that the learned trial judge in dismissing the preliminary objection leading to this appeal took matters extraneous to the writ of summons and statement of claim of Plaintiff/1st Respondent into consideration as apparent on the record.

He submitted that the above was in fact the reason behind the learned trial judge decision that it was the 1st Defendant/Appellant who was not the choice of the prescribed authority that must fulfill all the conditions precedent to instituting an action in Court as provided by Section 9(4) and (5) of Chiefs (Amendment) Edict 1991.

He submitted that the learned trial judge at page 34 of the record contrary to the long tested principle of law that at the stage of determining whether a Court has jurisdiction or not, it is only the statement of claim of plaintiff where one is filed that Court must restrict itself to in coming to the conclusion whether to assume jurisdiction or not, not only referred to the 2nd Defendant/2nd Respondent Statement of Defence, but was persuaded by it when it held:
“In the instant case there is no doubt that the Olokeogboron Chieftaincy for which the disputants and others are in Court is a minor chieftaincy and that the 2nd Respondent, the Olusupare of Supare is the prescribed authority in Supare land. He is here sued as 2nd Defendant and not only has he filed a statement of Defence in this matter admitting all the allegations of facts in the Statement of Claim, his counsel has argued against the preliminary objection raised in Court, by the 1st Defendant, meaning that the prescribed authority of Supare land prefers this case to be heard on its merits”

Again, said counsel, at page 35 of the record, the learned trial judge held thus:
“——– like I said earlier, the prescribed authority has aligned himself with the plaintiff”

And, that at page 36, the trial judge held:
“Here, it is really the prescribed authority and his choice of candidate that seems to be on the receiving end of the 1st Defendant’s alleged conduct and that makes the whole difference”

Learned counsel submitted that the foray into the 2nd Defendant/2nd Respondent’s Statement of Defence at that stage was premature, unnecessary and wrong in law and practice. More so, according to counsel, when it is clear that the said foray was the only reason that influenced the decision of the learned trial judge in dismissing the Appellant’s preliminary objection.

On this, counsel referred to the cases of Igwe V. Ezeamochie (2010) 7 NWLR (pt. 1192) 61 at 86 and Bancorp Ltd. v. S.S.L. Ltd. (2007) 2 NWLR (pt. 1020) 148 at 173 that it is the matters pleaded in the Statement of Claim that determine the question of jurisdiction.

He concluded on issue 2, that the act of the learned trial judge in considering and attaching weight to the averment in 2nd Respondent’s Statement of Defence that resulted in misconstruing the Appellant’s preliminary objection and Section 9(4) and (5) of Chiefs Edict (Amendment) No. 2 1991.

Learned counsel to the two sets of Respondents on the other hand submitted that the learned trial judge did not take into consideration any averment contained in the 2nd Defendant/Respondent’s Statement of Defence to arrive at his decision as there is no single portion of the ruling where the learned trial judge relied on any paragraph of the 2nd Respondent’s Statement of Defence.

They argued that the references to the learned trial judge’s statement at pages 34, 35 and 36 of the record do not indicate or show that the learned trial judge relied on any paragraph of the statement of defence of the 2nd Defendant/Respondent.

That, mere allusion to the statement of defence does not indicate a reliance thereon by the learned trial judge, let alone been influenced by the statement of defence of the 2nd Defendant/Respondent.

I totally agree with the learned counsel for the Respondents on issue 2, that the mere allusion to the statement of defence without more as was done in the instant case, could not be said to have amounted to considering, giving weight and or relying on the 2nd Respondent’s statement of defence by the learned trial judge.

I equally agree with the Respondents that a consideration of the totality of the Plaintiff/1st Respondent’s statement of claim especially paragraphs 21 to 32 of the same would have produced the same result and conclusion as was rightly reached by the learned trial judge.

There is no gainsaying that a Court is at liberty to refer to a document in its record for the just determination of a matter before it.
See: Agbareh v. Mimrah (2008) 2 NWLR (pt. 1071) 378 at 410-411.

In the instant case, the learned trial judge could not be said to have considered, given weight relied or influenced by the Statement of Defence of the 2nd Defendant/Respondent in reaching his decision.

Issue 2 is also resolved against the Appellants.

Having resolved the two (2) issues in this appeal against the Appellant, the appeal lacks merit and it is accordingly dismissed.

N30,000 costs is awarded against the Appellant.

MOHAMMED A. DANJUMA, J.C.A.: Having read the record of appeal and the Brief of Argument of the parties, I do agree with the lead Judgment rendered, that the appeal be dismissed.

I concur with the Judgment of HIS LORDSHIP MOJEED OWOADE, JCA and the consequential order entered.

JAMES SHEHU ABIRIYI, J.C.A.: I had the privilege of reading in advance the lead judgment just delivered by my learned brother Mojeed Adekunle Owoade, JCA.

He has exhaustively dealt with the issues for determination in this appeal. I have nothing more to add.

For the reasons contained in the lead judgment, I too dismiss the appeal.

I abide by the order as to costs.

Appearances

A. Oso with Lawal Alabi and K.I. OyiboFor Appellant

AND

F.C. Asho for the 1st Respondent
Oba S.K.A. Adedoyin with A.I. Osho, O.A. Otitoju and A.A. Adedoyin for the 2nd RespondentFor Respondent