ADEBIYI & ANOR v. SILVA & ORS (2020)

ADEBIYI & ANOR v. SILVA & ORS

(2020)LCN/14636(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Tuesday, September 15, 2020

CA/L/52/2010

RATIO

PLEADINGS: WRIT OF PROHIBITION – DEFINITION AND APPLICATION

The Black’s Law Dictionary, 9th Edition at page 1331 defined writ of prohibition as:
“An extraordinary writ issued by an appellate Court to prevent a lower Court from exceeding its jurisdiction or to prevent a nonjudicial officer or entity from exercising a power.”
I find the Law Dictionary’s quotation of Benjamin J. Shipman’s Handbook of Common-Law Pleading Section 341, at 542 (Henry Winthrop Ballantine ed. 3d ed. 1923), most appropriate to this appeal thus-
“Prohibition is a kind of common-law injunction to prevent an unlawful assumption of jurisdiction…. It is a common-law injunction against governmental usurpation, as where one is called coram non judice (before a judge not authorized to take cognizance of the affair), to answer in a tribunal that has no legal cognizance of the cause. It arrests the proceedings of any tribunal, board, or person exercising judicial functions in a manner or by means not within its jurisdiction or discretion”
The Supreme Court and indeed this Court have adopted the above definition of writ of prohibition and its sister writ of certiorari in several decisions and also highlighted the situations under which the order of prohibition will lie to be issued by a high Court in its supervisory power to an inferior Court or tribunal in Nigeria. An order of prohibition usually lie and is issued whenever anybody or persons of authority having the legal right to determine questions affecting the rights of subjects/citizens and having the duty to act judicially acts in excess of their legal authority. It is described as a tool used by the high Courts to curb the excessive use by an inferior judicial body of its jurisdiction. See Hart V. Military Administrator of Rivers State (1976) LPELR-1355) (SC), Iyoho Vs. Effiong & Anor. (2007) LPELR- 1580), Korea Nat. Oil Corp. Vs. O. P. S. (Nig.) Ltd (2018) 2 NWLR (pt. 1604) 394, and Nwaoboshi & Ors. Vs. Military Governor of Delta State & Ors. 2003) LPELR- 2113 (SC).
The grant of an application to issue an order of prohibition is discretionary and like all matters of discretion, the Courts are expected to exercise same judicially and judiciously relying only on the material placed before them by the party seeking the indulgence of such discretion. ‘Judicial discretion’ has been defined by the Black’s Law Dictionary, Ninth Edition at page 534 as;“the exercise of judgment by a judge or Court based on what is fair under the circumstances and guided by the rules and principles of law; a Court’s power to act or not act when a litigant is not entitled to demand the act as a matter of right.” The Supreme Court approved this definition in Adeniyi & Anor. Vs. Tina George Industries Ltd & Ors. (2019) LPELR 48891- (SC) at pages 27 to 29 paragraph E-D, per Augie J.S.C. and further held that:
“The operative words in the above definition are-“a Court’s power to act or not to act when a litigant is not entitled to demand the act as a matter of right.” It is also settled that all judicial discretion must be exercised according to common sense and according to justice. If there is a miscarriage of justice, it is within the competence of an appellate Court to have same reviewed.”
See also Tijani Vs. FRN (2018) LPELR-45844 (CA) and Nzekwe V. Anaekwenegbu (2019) LPELR-4900 (SC) to the effect that unless the exercise of discretion by a trial Court leads to miscarriage of justice, the Appellate Court will not interfere. The reason being that the discretion is the personal judgment of the Judge of what is fair in the case. Per BALKISU BELLO ALIYU, J.C.A.

RATIO

PLEADINGS: JUDICIAL DISCRETION MUST BE EXERCISED ACCORDING TO JUSTICE AND COOMON SENSE.

Judicial discretion, indeed all judicial powers must be exercised according to justice and common sense. See Adeniyi & Anor. Vs. Tina George Ind. Ltd & Ors. (supra). It does not appeal to common sense that the trial Court will find in exhibit ‘A’, the written authorization of the entire family, a documentary evidence that was not contradicted it by another documentary evidence and still consider a branch with no authorization worthy of not ignoring. I am of the firm view that the appearance of any “branch” of the family of the Appellants before the tribunal should be ignored. Per BALKISU BELLO ALIYU, J.C.A.

RATIO

PLEADINGS: DISCRETION -MEANING

It was within the perimeter walls of judicial discretion of the lower Court to entertain the appellant’s application for the writ of prohibition which parented the appeal. Discretion connotes the power of a Judex to act in line with the dictates of his personal knowledge and conscience uninfluenced by those of others, see Nzekwe v. Anekwenegbu (2019) 8 NWLR (Pt. 1674) 235. The law commands the Court to exercise its discretion judicially and judiciously. In the face of the available facts before the lower Court, it with due reverence, failed to act judicially and judiciously. Wrong exercise of discretion, inter alia,constitutes a ground to interfere with a decision. The lower Court defiled the law with its injudicious exercise of discretion which, ipso facto, impregnates the appeal with good chances of great success. Per OBANDE FESTUS OGBUINYA, J.C.A

RATIO

PLEADINGS: THE EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE IS THE PRIMARY FUNCTION OF THE JUDGE

It is hornbook law that the evaluation of evidence and ascription of probative value thereto is primarily the function of the judge at nisi prius: MOGAJI vs. ODOFIN (1973) NSCC 275 at 277 and BALOGUN vs. AGBOOLA (1974) LPELR (721) 1 at 9. It is not the business of an appellate Court to substitute its views of undisputed facts for the views of the trial Court.
However, an appellate Court can interfere where the findings of fact made by the trial Court are perverse; more so in the circumstances of this case which was heard on affidavit evidence and does not involve the demeanour and credibility of witnesses. See AKPAN vs. BOB (2010) 17 NWLR (PT 1223) 421 at 479 and JAMES vs. INEC (2015) LPELR (24494) 1.In LAWAL vs. DAWODU (1972) LPELR (1761) at 26 Coker, JSC asseverated:
“A trial Judge, however learned, may draw mistaken conclusions from indisputable primary facts and may indeed wrongly arrange or present the facts on which the foundations of the case rest. In those circumstances, it would be completely invidious to suggest that a Court of Appeal should not intervene and do what justice requires but should abdicate its own responsibility and rubber-stamp an error however glaring.”
The leading judgment is therefore on strong wicket when it proceeded to evaluate the affidavit and documentary evidence in order to obviate the injustice occasioned by the manner of evaluation of evidence by the lower Court, which is exemplified by its refusal to grant the order of prohibition sought. See ADEGOKE vs. ADIBI (1992) LPELR (95) 1 at 29-30. An appellate Court is in as good a stead as the trial Court in the evaluation of documentary evidence: UNION BEVERAGES LTD vs. PEPSICOLA INT’L LTD (1994) LPELR (3397) 1 at 11-12, GONZEE (NIG) LTD vs. NERDC (2005) LPELR (1332) 1 at 16, IWUOHA vs. NIPOST (2003) 4 SC (PT Il) 37 and REV. KING vs. THE STATE (2016) LPELR (40046) 1 at 49. Per UGOCHUKWU ANTHONY OGAKWU, J.C.A

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

1. PRINCE SAMMY A. ADEBIYI 2. PRINCE DR. RASHEED A. MODILE APPELANT(S)

And

HON. JUSTICE OLASEINDE SILVA (CHAIRMAN) 2. HON. MUKAILA ALUKO (MEMBER) 3. CHIEF TUNDE SERIKE (MEMBER) 4. ALHAJI BILIAMINU AYINDE MUNIRU (MEMBER) RESPONDENT(S)

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Lagos State, holden at Ikeja judicial division (trial Court) delivered on the 11th May 2009 in respect of the Appellants’ suit No: M/499/2007. The Appellants sought and were granted leave by the trial Court on the 14th January 2008 to apply for an Order of Prohibition against the Respondents sitting as a tribunal of inquiry. Pursuant to the leave granted the Appellants, they filed their application via a motion on notice on the 24th January 2008 supported by affidavit and counsel’s written address (located in pages 35 to 57 of the record of appeal) and prayed the trial Court for:
An Order of prohibition against the respondents prohibiting further proceedings of the Tribunal of Inquiry into Disputes on Chieftaincy Appointments, Declarations Regulating the Selection of the Obas and Recognized Chiefs in Lagos State in so far as same relates to the Oba of Lagos stool.

The Appellants relied on the following grounds in the statement in support for the application for leave filed on the 23rd November 2007:
1. The

Lagos State Government in 2001 set up a Tribunal of Inquiry to disputes on chieftaincy appointments, declarations regulating the selection of Obas and recognized chiefs in Lagos State. The terms of reference of the Tribunal of Inquiry are contained in L. S. L. N. NO. 7 of 31st December 2001, Gazette NO. 44 Vol. 34 being instrument constituting the standing Tribunal of Inquiry into disputes on chieftaincy appointments, declaration regulating the selection of Obas and recognized chiefs in Lagos State.
2. The Applicants herein instituted an action in 2003 in Suit NO: LD/1215/2003 in Prince Dr. R. A. Modile & Anor. Vs. Governor of Lagos State & 5 Ors. seeking the following reliefs:
(a) A DECLARATION that upon the acceptance by the Lagos State Government of the recommendations of the Chief V. Solanke Report and/or Justice Kassim’s Report of the Tribunals of Inquiry into the identity and rotation of the Ruling Houses entitled to present candidates to fill a vacancy in the Obaship of Lagos, of 1975 and 1978 or thereabout, the defendants are estopped from denying that it is the turn of the Akinsemoyin Ruling House to present a candidate or

candidates to fill the stool of the Oba of Lagos after the reign of Oba Adeyinka Oyekan II.
(b) A DECLARATION that Prince Rilwan B. O. Akiolu (3rd defendant) and the Ologunkutere (or Erelu Kuti) Ruling House or Family of Lagos are estopped in law and/or in equity from denying that it is the turn of the Akinsemoyin Ruling House to present a candidate (or candidates) to fill the stool of Oba of Lagos upon the demise of Oba Adeyinka Oyekan II.
(c) A DECALARATION that:
(i) the purported selection or appointment of the 3rd Defendant by the Kingmakers (5th defendant) and/or purported approval of the same by the Lagos State Government is illegal in law and/or in equity, null and void and of no effect whatsoever.
(ii) upon the dispute as to the purported appointment of the 3rd defendant as Oba of Lagos by the 5th defendant, and/or the purported approval by the 1st defendant of the appointment, the 1st defendant should cause an inquiry to be made into the said appointment before his final decision on the same under the Obas and Chiefs Of Lagos State Law, Cap. 138 Laws of Lagos State, 1994.
(d) A DECLARATION that the purported capping of the 3rd

defendant as Oba of Lagos and all acts of installation as Oba of Lagos based thereon are illegal, null and void as the person who purportedly performed the act as the Eletu Odibo was not qualified to so act.
(e) AN INJUNCTION restraining the 1st and 2nd defendants, their servants, and/or agents from gazetting the purported appointment/approval of the 3rd defendant as the Oba of Lagos, approving or participating in the crowning, coronation or presentation of staff or instrument of office to the 3rd defendant, or, in any manner howsoever, dealing with or treating the 3rd defendant as the Oba of Lagos.

Attached to the affidavit in support of the application are exhibits ‘SA’ and ‘SA1’ comprising of the certified true copies of writ of summons and the statement of claim both dated 30/5/2003 filed before the trial Court in Suit No. LD/1215/2003 which suit was still pending as at the time the Appellants filed their application for an order of prohibition.

In response to the application of the Appellants, the 1st Respondent who was the chairman of the Tribunal of Inquiry (which proceedings the Appellants sought to prohibit) filed

a counter-affidavit on the 10th April 2008 with documentary exhibits attached in opposition to the Appellants’ application. The counter-affidavit is copied in pages 96 to 123 of the record of appeal. The 1st Respondent averred that the 2nd and 3rd Respondents named in the Appellants’ application were no longer members of the Tribunal of Inquiry into Chieftaincy Matters since 2006. He averred that the referral of the Oba of Lagos chieftaincy dispute to the Hon. Justice A. O. Silva led Tribunal of Inquiry was in compliance of the order of the High Court of Lagos State made on the 7th November 1997 in suit No. M/484/94 by Akinsanya, J. He stated that the reference of the dispute to the tribunal of inquiry was before the Appellants herein instituted their suit No. LD/1215/03, and the tribunal had already concluded it’s sitting on the 10th October 2007 before the 1st Respondent was served with the Appellants’ processes seeking order of prohibition on 24th January 2008. He also stated that the tribunal made publications in a widely read newspaper inviting interested parties to submit memoranda and in response, 5 factions or branches of the

Appellants’ Akinsemoyin family appeared before the tribunal and submitted memorandum to the tribunal.

In a further affidavit filed on the 19th June 2009 in reply to the counter affidavit of the 1st Respondent, the Appellants asserted that the tribunal was yet to conclude its assignment which included making recommendations and submission of report. They also averred that the 2nd and 3rd Respondents were appointed pursuant to the Tribunal of Enquiry Law contained in LSLN NO. 7 of 31st December 2001 and none of the members have been removed by any gazette. In reply to the assertion of the 1st Respondent wherein he stated that the decision to refer the Oba of Lagos chieftaincy dispute to the tribunal was taken before the Appellants instituted their suit No. LD/1215/03, the Appellants averred that the tribunal commenced sitting on the 20th November 2006 while their suit No. LD/1215/03 Prince Modile Vs. Governor of Lagos State was instituted on the 30th May 2003. The Appellants also averred that they were not parties to the suit No. M/484/94- Alhaji Mukaila A. adams & Anor. V. The Military Administrator of Lagos State referred to by the Respondent in

their counter affidavit. And that there are no factions in the Akinsemoyin ruling house but there are only branches each of which has a head of the family and none of the heads of the branches appeared before the tribunal. Further none of the persons that appeared before the tribunal has the authority of the family to represent it at the tribunal.

After considering the affidavits evidence and the written addresses of counsel on both sides, the learned trial Judge delivered the Court’s ruling and held that the tribunal whose proceeding is sought to be prohibited was set up pursuant to the order of the trial Court in suit NO. LD/M/484/94 and the fact that several branches of the Appellants’ Akinsemoyin family were represented at the hearing of the tribunal, the order of prohibition was refused because the tribunal cannot be said to have unlawfully assumed jurisdiction. The Appellants’ application was dismissed.

The Appellants were unhappy with the dismissal of their application and they filed a notice of appeal on the 7th August 2009 challenging the said ruling on five grounds of appeal, thereby praying this Court to set aside the

trial Court’s ruling and to grant the order of prohibition sought by the Appellants. The record of appeal was transmitted on the 22nd January 2010 but deemed properly transmitted on the 19th May 2010. The Appellants brief of argument settled by B. A. M. Fashanu, SAN, was filed on the 5th July 2010, wherein the learned senior counsel identified the following two issues for the determination of this appeal:
1. Whether, having held that the subject-matter of Suit No. LD/1215/2003 falls within the purview of the Tribunal’s inquiry and that prohibition can be ordered against part of a tribunal’s proceedings which is beyond its jurisdiction, the lower Court was not wrong in holding that the Tribunal did not exceed its jurisdiction?
2. Whether having regards to its findings on representation of the Akinsemoyin Ruling House by the applicants and upon the evidence before the Court, the lower Court was not wrong in refusing the application.

Regrettably, the learned senior counsel left the issues at large, having failed to tie/marry any of the two issues to any of the five grounds of appeal.

In opposing this appeal, the Respondents

filed their brief of argument settled by Ade Ipaye Esq. on the 30th October 2012. Learned Counsel nominated two issues for determination of the appeal thus:
1. Whether the learned trial Judge was right in refusing to grant the order of prohibition that the Tribunal of Inquiry whose proceedings is sought to be prohibited was set up pursuant to the Order of Akinsanya, J. in Suit No: LD/M/484/94 and the fact that several branches of the Akinsemoyin Chieftaincy Family are shown to have been represented at the hearing of the Tribunal of Inquiry. (Ground 1 of the notice of appeal).
2. Whether the learned trial Judge was right in refusing to hold that the Tribunal of Inquiry exceeded its jurisdiction having found that the subject matter of Suit No. LD/1215/2005 falls within the purview of the Tribunal’s inquiry and that prohibition can be ordered against part of a Tribunal’s proceedings, which is beyond jurisdiction. (Ground 2 of the Notice of Appeal).

It is observed that the issues identified by each of the parties are identical save for difference in language style. For this reason, I adopt the two issues identified by the

Appellants’ learned senior counsel for the determination of this appeal.

SUBMISSIONS OF COUNSEL
In arguing the Appellant’s issue one, the learned Senior Counsel referred us to the finding of the learned trial Judge at pages 181 to 182 of the record to the effect that the Appellants’ suit No. LD/1215/2003 involved the Lagos State Government that set up the tribunal of inquiry. The learned trial Judge also found that the tribunal’s terms of reference included the subject matter of the Appellants’ suit before the High Court, that is, the Obaship of Lagos stool. He also found that the Appellants were not parties to suit No: M/484/94 in which the order to set up tribunal of inquiry was made as such; they were not bound by the order in respect thereof. Again, the learned trial Judge held that an order of prohibition can be issued against part of the tribunal’s proceedings that was found to be beyond its jurisdiction. Learned senior counsel submitted that having made all these findings, the learned trial Judge was wrong to decline to make the order of prohibition against that part of the tribunal’s proceeding that

was covered by suit No. LD/1215/2003.

He further submitted with regards to Section 18(2) of the Tribunals of Inquiry Law of Lagos State, that the learned trial Judge also correctly found that the said section could not bar the High Court from conducting proceedings on the Appellants’ suit No. LD/1215/03, to the extent that it could not limit the Constitutional power of the High Court. He referred to the further finding of the learned trial Judge in page 175 of the record of appeal wherein he found that the Appellants’ suit before the High Court was already pending before the Government referred the matter to the Tribunal. However, the learned trial Judge erroneously relied on the suit No. M/484/94 to interpret subsection (2) of Section 18 of the Tribunal of Inquiry Law. It was submitted that the trial Court having agreed that the Section 18(1) was void to the extent that it sought to limit the powers or jurisdiction of the High Court in chieftaincy matters, Section 18(2) cannot be read to limit that power either, but must also be interpreted to give effect to the trial Court’s conclusion on Section 18(1) empowering the High Court over

the tribunal since Section 18(2) is merely adjunct to Section 18(1). He relied on the case of Balogun V. Ode (2007) 4 NWLR (pt. 1023) 1 at 15-16 where the Supreme Court held that any law or a chieftaincy declaration of a state which amounts to removal of chieftaincy questions or matters from the jurisdiction of the High Court will be inconsistent with Section 236(1) of the 1979 Constitution now Section 272(1) of the 1999 Constitution of Nigeria.

The learned senior counsel further argued that since the affidavit evidence before the trial Court showed that the Appellants’ suit LD/1215/2003 was already in existence and pending before the Oba of Lagos stool enquiry was referred to the tribunal in 2006, the trial Court ought to have interpreted the provisions of Section 18(2) to preserve the case and the superiority of the High Court to the tribunal of inquiry and preserving the Appellants’ case otherwise, the section would be void on the authority of Balogun Vs. Ode (supra).

With regards to issue two, on the representation of the Akinsemoye Royal Family before the tribunal, the learned Appellant’s senior counsel argued that the 1st

Respondent did not claim in his counter-affidavit that the Akinsemoye ruling house was represented before the tribunal. But he claimed that 5 factions or branches of the family appeared and submitted memorandum to the tribunal. However, the 1st Respondent exhibited the memorandum of only two of the branches and not five that he claimed. It was submitted that since the learned trial Judge noted the position of the Appellant in his ruling as having the written authority of the persons who participated in the proceedings before the tribunal, it should have been the end of the matter since no other written authority of the family was presented before the tribunal or the trial Court. He argued that the learned trial Judge misdirected himself when he held that since the Appellants did not deny the existence of the 5 branches that participated in the tribunal proceedings, their representation cannot be ignored. He relied on the cases of Agwuneme V. Eze (1990) 3 NWLR (pt. 137) 242, Adegbite Vs. Lawal (1948) WACA398 and Ajeigbe V. Odedina (1988) 1 NWLR (pt. 72) 584 for support.

In conclusion, learned senior Counsel submitted that the lower Court failed to

properly exercise its discretion judicially and judiciously in that it took into consideration matters irrelevant to the application before it and misapplied the law to the facts. He drew our attention to the fact that the suit being an application made upon affidavit evidence, this Court is in as good a position as the trial Court to decide same. He referred to the decision in Eliochin (Nig.) Ltd Vs. Mbadiwe (1986) 1 NWLR (pt. 14) 47 in support, and urged the Court to resolve the two issues in favour of the Appellant and to allow the appeal.

For the Respondents, on issue one, learned counsel narrated the genesis of the reference of the chieftaincy stool of Obaship of Lagos to the tribunal, which was through orders of High Court made by Akinsanya, J. in respect of Suit No. LD/M/484/94 and submitted that the reference was in compliance with the said order of Court. That since the fact that the Appellants did not deny that the branches of their family that participated in the proceedings of the trial existed means that they have no backing of the entire Akinsemoyin Family, especially as neither of the Appellants was described as the head of the family.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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On the Respondent’s issue two, his learned counsel conceded that Section 18(1) ‘violated’ (is inconsistent with?) Section 6(6) of the Constitution, but same cannot be said of sub-section (2) of the section, which preserved the power of the Tribunal of inquiry to proceed assignment referred to it. It was further submitted that the trial Court refused to make the orders of prohibition in view of the fact that referral of the Obaship of Lagos state to the tribunal headed by the 1st Respondent was pursuant to a lawful order of a competent Court which remains binding on the Lagos State Government and by virtue of the provisions of Section 18(2) of the Tribunal of Inquiry Law that preserved the power of the tribunal to conclude its proceedings. Learned counsel did not deem it fit to assist the Court by referring to or relying on any authority to support his submissions.

RESOLUTION
ISSUE ONE
As a background to the determination of this issue, it will not be out of place to remind us what the writ of prohibition entails. The Black’s Law Dictionary, 9th Edition at page 1331 defined writ of prohibition as:
“An extraordinary

writ issued by an appellate Court to prevent a lower Court from exceeding its jurisdiction or to prevent a nonjudicial officer or entity from exercising a power.”
I find the Law Dictionary’s quotation of Benjamin J. Shipman’s Handbook of Common-Law Pleading Section 341, at 542 (Henry Winthrop Ballantine ed. 3d ed. 1923), most appropriate to this appeal thus-
“Prohibition is a kind of common-law injunction to prevent an unlawful assumption of jurisdiction…. It is a common-law injunction against governmental usurpation, as where one is called coram non judice (before a judge not authorized to take cognizance of the affair), to answer in a tribunal that has no legal cognizance of the cause. It arrests the proceedings of any tribunal, board, or person exercising judicial functions in a manner or by means not within its jurisdiction or discretion”
The Supreme Court and indeed this Court have adopted the above definition of writ of prohibition and its sister writ of certiorari in several decisions and also highlighted the situations under which the order of prohibition will lie to be issued by a high Court in its supervisory power

to an inferior Court or tribunal in Nigeria. An order of prohibition usually lie and is issued whenever anybody or persons of authority having the legal right to determine questions affecting the rights of subjects/citizens and having the duty to act judicially acts in excess of their legal authority. It is described as a tool used by the high Courts to curb the excessive use by an inferior judicial body of its jurisdiction. See Hart V. Military Administrator of Rivers State (1976) LPELR-1355) (SC), Iyoho Vs. Effiong & Anor. (2007) LPELR- 1580), Korea Nat. Oil Corp. Vs. O. P. S. (Nig.) Ltd (2018) 2 NWLR (pt. 1604) 394, and Nwaoboshi & Ors. Vs. Military Governor of Delta State & Ors. 2003) LPELR- 2113 (SC).
The grant of an application to issue an order of prohibition is discretionary and like all matters of discretion, the Courts are expected to exercise same judicially and judiciously relying only on the material placed before them by the party seeking the indulgence of such discretion. ‘Judicial discretion’ has been defined by the Black’s Law Dictionary, Ninth Edition at page 534 as;“the exercise of judgment by a judge

or Court based on what is fair under the circumstances and guided by the rules and principles of law; a Court’s power to act or not act when a litigant is not entitled to demand the act as a matter of right.” The Supreme Court approved this definition in Adeniyi & Anor. Vs. Tina George Industries Ltd & Ors. (2019) LPELR 48891- (SC) at pages 27 to 29 paragraph E-D, per Augie J.S.C. and further held that:
“The operative words in the above definition are-“a Court’s power to act or not to act when a litigant is not entitled to demand the act as a matter of right.” It is also settled that all judicial discretion must be exercised according to common sense and according to justice. If there is a miscarriage of justice, it is within the competence of an appellate Court to have same reviewed.”
See also Tijani Vs. FRN (2018) LPELR-45844 (CA) and Nzekwe V. Anaekwenegbu (2019) LPELR-4900 (SC) to the effect that unless the exercise of discretion by a trial Court leads to miscarriage of justice, the Appellate Court will not interfere. The reason being that the discretion is the personal judgment of the Judge of what is

fair in the case.

In this appeal the contention of the Appellants under this issue is that having regards to the subject matter of their suit No. LD/1215/2003 filed and pending before the Lagos State High Court prior to the Government’s setting up of the tribunal with the subject matter of their suit (relating to the Oba of Lagos stool) included in the tribunal’s terms of reference, the lower Court should have exercised its discretion in their favour to issue an order of prohibition regarding same to the tribunal.

The case was determined by the trial Court on affidavit evidence, which does not involve the observation of witnesses while they testify. In that circumstance, this Court as an appellate Court shares jurisdiction with the trial Court to examine the affidavit evidence and the documents attached thereto in order to resolve the complaint of the Appellants herein. See FIRS Vs. Michael (2013) LPELR-20485 (CA), Lafia Vs. Exec. Governor of Nasarawa State (2012) LPELR-20602 (SC) and Emeka Vs. Okoroafor & Ors. (2017) LPELR-41738 (SC).

The affidavit in support of the Appellants’ motion seeking order of prohibition is located

in pages 37 to 38 of the record of appeal. There is a further affidavit filed on the 19th January 2009 in reply to the counter affidavit of the Respondent. Documents attached to the affidavit in support include the writ of summons and statement of claim filed by the Appellant by which they commenced suit NO: LD/1215/03. They averred that the suit was still pending before the High Court, this fact not disputed. They relied on these processes to show that the terms of reference of the Tribunal of inquiry chaired by the 1st included the subject matter of their pending suit before the High Court.

My further examination of the record of appeal disclosed in pages 178 to 181 that the learned trial Judge considered this claim and extensively reproduced, for his guidance the claims of the Appellants in their suit No. LD/1215/03 after which he found and held at page 181 of the record that:
“There is no doubt that the subject matter of Suit No. LD/1215/2003 falls within the purview of the Tribunal’s inquiry.”

However, the learned trial Judge declined to make the order of prohibition on the ground that the tribunal was set up pursuant to the

order of the High Court in suit No. M/484/94, which the Appellants were not parties to. I think the learned trial Judge, with due respect misconceived the fact that the tribunal was set up via an order of High Court, it cannot be subject to the supervisory power of the same Court. On the contrary, the tribunal is still subject to the supervisory power of the High Court, notwithstanding that it was set up pursuant to the order of same High Court. All that the trial Court, as a High Court will concern itself on whether or not to make an order of prohibition, taking into consideration of the affidavit evidence before it, is the legality of the proceedings in view of the Appellants’ pending suit. And since His Lordship clearly found that the terms of reference of the tribunal included the subject matter of the Appellants’ suit, an order of prohibition would lie and ought to have been made prohibiting any inquiry that touched on the subject matter that was before the High Court.

I agree with the submissions of the learned senior counsel for the Appellants that the learned trial Judge misdirected himself when he reached the conclusion not to

exercise his discretion in favour of the Appellant based upon a wrong perception of the facts of the case and the applicable principle of law. Had the learned trial Judge adverted his mind to the fact that the tribunal of inquiry even though set up through an order of the High Court, it is still inferior to the High Court and therefore subject to its supervisory control, he would have exercised his discretion differently. This is so especially as he found at page 182 that:
“It is observed that although the subject-matter of Suit No. LD/1215/2003 falls within the purview of the Tribunal’s inquiry, the terms of reference of the Tribunal is not limited to the inquiry into the mode of succession of the Oba of Lagos stool but is a lot wider…”

It means only that aspect of the tribunal terms of reference that related to the Obaship of Lagos, already before the High Court in suit No. 1215/2003 that should be prohibited from the inquiry. Having acknowledged the fact that the Appellants’ suit existed before the High Court, the subject matter therein is outside the jurisdiction of the tribunal to inquire into. In other words, the subject

matter of Obaship of Lagos stool has become sub-judice, that is, it is before a judge of higher jurisdiction. It cannot be validly inquired into by the tribunal. I have no doubt that in this circumstance, an order of prohibition should lie and ought to be granted to prevent the tribunal from exceeding its jurisdiction. It is for this reason that I feel confident to interfere with the exercise of the discretion of the learned trial Judge and I resolve issue one in favour of the Appellants.

ISSUE TWO
This issue questioned the trial Court’s second reason for its refusal to make an order of prohibition sought by the Appellants. The learned trial Judge found at page 182 to 183 that the Appellants denied that the two persons who represented their Akinsemoyin family before the tribunal had the authority of the family to represent it. He however held that their presentation could be ignored. The question is why not. There is evidence before the trial Court in form of exhibit ‘A’, which the learned trial Judge acknowledged in page 183 of the record of appeal. Exhibit ‘A’ is the Appellants Akinsemoyin family’s resolution,

authorizing them to institute the application for an order of prohibition before the trial Court. Interestingly, the learned trial Judge actually considered this exhibit and observed that; “the resolution of the Akinsemoyin family authorizing this action does not refer to the branches of the family being represented in this action.” With the written evidence of the family authorization before the trial court and His Lordship acknowledgment that there was no branches to the family shown in exhibit ‘A’, there was no reason to consider the appearance of some “branches” of the family before the tribunal as relevant consideration for refusing an order of prohibition. Judicial discretion, indeed all judicial powers must be exercised according to justice and common sense. See Adeniyi & Anor. Vs. Tina George Ind. Ltd & Ors. (supra). It does not appeal to common sense that the trial Court will find in exhibit ‘A’, the written authorization of the entire family, a documentary evidence that was not contradicted it by another documentary evidence and still consider a branch with no authorization worthy of not

ignoring. I am of the firm view that the appearance of any “branch” of the family of the Appellants before the tribunal should be ignored.

In any event, in my resolution of issue one supra, I found and held that the order of prohibition lies against the tribunal from inquiring into the Obaship of Lagos being the subject matter of Appellants’ suit No. LD/1215/2003 before the High Court of Lagos State. It therefore makes no difference whatsoever who appeared before the tribunal for the tribunal. It still had no power/jurisdiction to make an inquiry into the subject matter of the said suit NO. LD/1215/2003 in its proceedings. Issue two is also resolved in favour of the Appellants.

Having resolved the two issues in favour of the Appellants, it means that the appeal has merit and it is allowed by me. The ruling of the Lagos State High Court delivered on the 11th May 2009 in respect of suit No: M/499/2007 is hereby set aside.

Consequently, the application of the Appellants granted as prayed. An order of prohibition is hereby issued prohibiting further proceedings of the Tribunal of Inquiry Into Disputes on Chieftaincy Appointments,

Declarations Regulating the Selection of Obas And Recognized Chiefs in Lagos State in so far as same relates to the Oba of Lagos Stool, in view of the fact that the said subject matter was pending before the High Court in Suit NO: LD/1215/2003. Parties shall bear their respective costs.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the ample opportunity to peruse, in draft, the succinct leading judgment delivered by my learned brother: Balkisu Bello Aliyu, JCA. I am in full agreement with the articulate reasoning and conclusion in it.

constitutes a ground to interfere with a decision. The lower Court defiled the law with its injudicious exercise of discretion which, ipso facto, impregnates the appeal with good chances of great success.

It is this reason, coupled with the cogent reasons marshalled in the erudite leading judgment, that l, too, allow the appeal in the manner ordained in it.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: It is hornbook law that the evaluation of evidence and ascription of probative value thereto is primarily the function of the judge at nisi prius: MOGAJI vs. ODOFIN (1973) NSCC 275 at 277 and BALOGUN vs. AGBOOLA (1974) LPELR (721) 1 at 9. It is not the business of an appellate Court to substitute its views of undisputed facts for the views of the trial Court.
However, an appellate Court can interfere where the findings of fact made by the trial Court are perverse; more so in the circumstances of this case which was heard on affidavit evidence and does not involve the demeanour and credibility of witnesses. See AKPAN vs. BOB (2010) 17 NWLR (PT 1223) 421 at 479 and JAMES vs. INEC (2015) LPELR (24494) 1.

In LAWAL vs. DAWODU (1972) LPELR (1761) 1

at 26 Coker, JSC asseverated:
“A trial Judge, however learned, may draw mistaken conclusions from indisputable primary facts and may indeed wrongly arrange or present the facts on which the foundations of the case rest. In those circumstances, it would be completely invidious to suggest that a Court of Appeal should not intervene and do what justice requires but should abdicate its own responsibility and rubber-stamp an error however glaring.”
The leading judgment is therefore on strong wicket when it proceeded to evaluate the affidavit and documentary evidence in order to obviate the injustice occasioned by the manner of evaluation of evidence by the lower Court, which is exemplified by its refusal to grant the order of prohibition sought. See ADEGOKE vs. ADIBI (1992) LPELR (95) 1 at 29-30. An appellate Court is in as good a stead as the trial Court in the evaluation of documentary evidence: UNION BEVERAGES LTD vs. PEPSICOLA INT’L LTD (1994) LPELR (3397) 1 at 11-12, GONZEE (NIG) LTD vs. NERDC (2005) LPELR (1332) 1 at 16, IWUOHA vs. NIPOST (2003) 4 SC (PT Il) 37 and REV. KING vs. THE STATE (2016) LPELR (40046) 1 at 49.

I have mulled over

the affidavit and documentary evidence on record and the evaluation and ascription of probative value thereto in the leading judgment of my learned brother, Balkisu Bello Aliyu, JCA, which I read in draft; and I find that the manner of resolution of the appeal is in line with my views. Accordingly, I also allow the appeal on the same terms as set out in the leading judgment.

Appearances:

O. ERHIEYOVEWE ESQ. For Appellant(s)

Z. MUSA ESQ., FOR 2ND – 4TH RESPONDENTS

1ST RESPONDENT’S COUNSEL ABSENT. For Respondent(s)