ARAOYE & ANOR v. ADETOLAJU
(2020)LCN/14354(CA)
In The Court Of Appeal
(ADO-EKITI JUDICIAL DIVISION)
On Tuesday, June 09, 2020
CA/EK/90/2018
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
Fatima Omoro Akinbami Justice of the Court of Appeal
Paul Obi Elechi Justice of the Court of Appeal
Between
1) CHIEF OLUFEMI ARAOYE 2) HRM OBA ADEBANJI AJIBADE ALABI (AFUNTADE 1) (THE ALAWE OF ILAWE-EKITI) APPELANT(S)
And
HIGH CHIEF SUNDAY ADETOLAJU RESPONDENT(S)
RATIO
FACTORS THAT DETERMINE WHETHER OR NOT THE TRIAL COURT HAS JURISDICTION
In that respect, in determining whether or not the trial Court has jurisdiction to entertain and determine the suit, or whether a reasonable cause of action is disclosed or whether the plaintiff has locus standi, it is the Statement of Claim that the Court looks into. BARCLAYS BANK V CENTRAL BANK (1976) 6 S.G. P.175: ADEYEMI &ORS V OPEYORI (1976) 9 & 10 S.C. P. 31; NWOKORIE V OPARA (1999) 1 N.W.L.R (Pt. 587) P. 389; ALHAJI UMARU ABBA TUKUR V GOVERNMENT OF GONGOLA STATE (1989) 9 S.C.N.J. P.1: ZIZA V MAMMAN (2002) 5 N.W.L.R (Pt. 780) P.243 at PP.265 – 266 and MINISTER FOR WORKS & HOUSING V TOMAS (2001) 48 W.R.N. P.119. See also OMINA (NIG) LTD V DYKTRADE LTD (2007) 15 N.W.L.R (PT.1058) P.576. PER AKINBAMI, J.C.A.
WHETHER OR NOT A PARTY WHO WISHES TO RELY ON ANY GROUND OF APPEAL MUST BE RAISED SPECIFICALLY AND CLEARLY AS A GROUND OF APPEAL IN A NOTICE OF APPEAL
It is trite law that a party who wishes to rely on any ground of appeal in an appeal, must raise such ground specifically and clearly as a ground of appeal in his notice of appeal, or cross-appeal. He must not raise it as a particular to a ground of appeal, because particulars of a ground of appeal are complements to and dependent on the ground of appeal. Consequently, once particulars of a ground of appeal speak a different language outside the contemplation of ground of appeal, they are no more particulars of relevant ground, and go to no issue. See Anammco vs. First Marina Trust Ltd (2000) 1 NWLR Part 640 p. 309. The purpose of a ground of appeal is to give to the Respondent, notice of the exact complaint the appellant has against the decision. Therefore, a ground of appeal should be drawn up with the greatest legal skill, accuracy, elegance and expertise which a solicitor must muster. Particulars of error to a ground of appeal, must flow from the ground of appeal and must support it, which is not the case in this particular appeal. Particulars not so related are incompetent, and ought to be disregarded. If all the particulars to a ground of appeal are unrelated to the ground, the latter is incompetent and ought to be struck out. See alsoCross River Basin & Rural Development Authority vs. Sule (2001) 6 NWLR Part 708 p. 194. PER AKINBAMI, J.C.A.
WHETHER OR NOT A SUCCESSFUL PLEA OF ESTOPPEL PER REM JUDICATAM OUSTS THE JURISDICTION OF THE COURT BEFORE WHICH IT IS RAISED
A successful plea of estoppel per rem judicatam ousts the jurisdiction of the Court before which it is raised.
See: Igbeke Vs Okadigbo (2013) 12 NWLR (Pt.1368) 225 @ 254 D – E; Igwego Vs Ezeugo (1992) 6 NWLR (Pt.249) 561. It is pertinent to note that although issue estoppel and estoppel per rem judicatam both come under one head of estoppel by judgment, there are subtle differences between the two. The difference was clearly illustrated by this Court in: Oshodi Vs Eyifunmi (2000) 13 NWLR (Pt.684) 298 @ 326 A-D, thus:
“This type of estoppel are of two kinds. There is the cause of action estoppel which effectively precludes a party to an action of his agents or privies from disputing, as against the other party in any subsequent proceedings matters which had been adjudicated upon previously by a Court of competent jurisdiction between him and his adversary and involving the same issues. There is the second class of estoppel which is issue estoppel: within a cause of action, several issues may come into question which are necessary for the determination of the whole case. The rule is that once one or more of such issues have been distinctly raised in a cause of action and appropriately resolved or determined between the same parties in a Court of competent jurisdiction, as a general rule, neither party nor his servant, agent or privy is allowed to re-open or re-litigate that or those decided issues all over again in another action between the same parties or their agents or privies on the same issues.
See Lawal v. Yakubu Dawodu (1972) 1 All NLR (Pt. 2) 270 at 272; (1972) 8-9 SC 83; Olu Ezewani v. Nkali Onwordi and Ors (1986) 4 NWLR (Pt.33) 27 at 42 – 43; Samuel Fadiora and Anor v. Festus Gbadebo and Anor (1978) 3 S.C. 219 at 228 – 229 etc.”
See also: Ito Vs Ekpe (2000) 3 NWLR (Pt 650) 678. PER AKINBAMI, J.C.A.
DEFINITION OF AN ACTION IN REM
In the case of Ogboru Vs Uduaghan (2011) 17 NWLR (Pt.1277) 727 @ 764 – 765 C-A, a judgment in rem was defined thus:
“A judgment in rem is a judgment of a Court of competent jurisdiction determining the status of a person or thing as distinct from the particular interest of a party to the litigation. Apart from the application of the term to persons, it must affect the “res” in the way of condemnation, forfeiture, declaration, status or title. …The feature of a judgment in rem is that it binds all persons, whether party to the proceedings or not. It stops anyone from raising the Issue of the status or person or persons or things, or the rights or title to the property litigated before a competent Court. It is indeed conclusive against the entire world in whatever it settles as to status of the person or property. All persons whether party to the proceedings or not are estopped from averring that the status of persons is other than the Court has by such judgment declared or made it to be.”
See also: Okpalugo Vs Adeshoye (1996) 10 NWLR (Pt.476) 77; Fointrades Ltd. Vs Uni Association Co. Ltd. (2002) 8 NWLR (Pt.770) 669; Olaniyan V. Fatoki (2003) 13 NWLR (Pt.837) 273; Adesina Oke V. Shittu Atoloye & Ors (1986), NWLR (Pt.15) 241. PER AKINBAMI, J.C.A.
FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Ekiti-State High Court, sitting in Ikere- Ekiti delivered by Hon. Justice O. I. O Ogunyemi on 27th day of July, 2018. The learned trial judge found in favour of the Respondent and granted all the reliefs sought by him at the trial Court.
The Respondent by his Originating Summons dated 4th January, 2017 and filed on the 9th February, 2017, raised the following questions for the determination of the lower Court:
1. Whether the High Court can rely on the findings, terms and conditions of the judgment of the Court of Appeal in Appeal No. CA/AE/47/2010 delivered by virtue of the provisions of Section 287(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
2. Whether the Defendants have complied with or can deviate from the findings, terms and conditions of the judgment of the Court of Appeal in Appeal Number CA/AE/47/2010 delivered on 11th May, 2011, which judgment affirmed the judgment delivered by Justice J.O. Adeyeye in Suit No. HCR/6/2002 and held that the Aro Family does not exist in Irorin Quarters, of
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Ilawe Ekiti.
3. Whether the 1st Defendant can claim to be a member of Aro Family in Irorin Quarters of Ilawe- Ekiti, the Court of Appeal having held on the contrary.
4. Whether the 1st Defendant can be appointed or installed as a chief by the Aro family or anybody at all in Irorin Quarter’s of Ilawe-Ekiti, despite the judgment of the Court of Appeal delivered on 11th May, 2011, which judgment confirmed that Aro Family does not exist in Irorin Quarters of Ilawe- Ekiti.
5. Whether the 2nd Defendant can recognize or approve the appointment and installation of the 1st defendant as Chief Aromuagun despite the Court of Appeal’s judgment of 11th, May, 2011.
The Claimant seeks the following reliefs:
(A) A declaration that the Defendants have not complied with the findings, terms and conditions of the judgment of the Court of Appeal in Appeal No: CA/AE/47/2010 delivered on 11th May, 2011 on the non-existence of Aro Family in Irorin Quarters of Ilawe-Ekiti.
(B). An order directing the Defendants to comply with the findings, terms and conditions of the judgment of the Court of Appeal in Appeal No: CA/AE/47/2010 which judgment affirmed
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the judgment delivered by Hon. Justice J.O Adeyeye in Suit No: HCR/6/2002 to the effect that Aro family does not exist in Irorin Quarters of Ilawe-Ekiti.
(C). An order nullifying and setting aside the appointment of the 1st Defendant as Chief Aro or Aromuagun of Irorin Quarters of Ilawe- Ekiti having been done or perpetrated by an imaginary Aro Family of Irorin Quarters of Ilawe already declared not to exist by the judgment of the Court of Appeal in Appeal No. CA/AE/47/2010 delivered on 11th May, 2011.
(D). An order of perpetual or permanent injunction restraining the 2nd Defendant, his agents, servants, privies and representatives from recognizing the 1st Defendant, as the Aro or Aromuagun or Amuagun of Irorin Quarters of Ilawe-Ekiti or Ilawe now, forthwith and henceforth.
(E). An order of perpetual injunction restraining the 1st Defendant, his agents, servants, assigns, privies and representatives from parading himself as a member of Aro Family of Irorin Quarters of Ilawe-Ekiti, and Aro or Aromuagun or Amuagun of Irorin Quarters or Ilawe Ekiti now, forthwith and henceforth.
In support of the originating summons, the Claimant/Respondent
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filed a 20-paragraph affidavit to which are attached six exhibits (Exhibits HCSA-HCSA5):
(1) Exhibit HCSA- the judgment of His Lordship , Justice J. O. Adeyeye
(2) Exhibit HCSA1- Judgment of the Court of Appeal, CA/AE/47/2010
(3) Exhibit HCSA2- Invitation to Iwuye Ceremony of Chief Olufemi ARAOYE-Courtesy of Deji & Niyi Araoye
(4) Exhibit HCSA3-Invitation to the Iwuye Ceremony of Chief Olufemi Araoye as the Amuagun of Ilawe-Ekiti.
(5) Exhibit HCSA4-Letter written by Taiwo Ogunmoroti & Co to HRM Oba Adebanji Alabi – The Alawe of Ilawe.
(6) Exhibit HCSA5-Letter written by Taiwo Ogunmoroti & Co to the Permanent Secretary, Bureau of Chieftaincy Affairs, old Governor’s office, Ado-Ekiti.
In compliance with the Rules of Court, learned counsel filed a written address.
In response, on 19th July, 2017, the Appellants filed a Notice of Preliminary Objection on grounds of law praying the Court to dismiss the Respondent’s suit. The said Notice of Preliminary Objection reads thus:
1.That the Claimant has no locus standi to institute the action against the Defendants.
2. That the Claimant has no
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reasonable cause of action against the Defendants.
3. That the entire suit is an abuse of Court process.
4. That the Claimant, failed and or neglected to exhaust the remedies provided by law before approaching the Honorable Court.
Grounds of Objection
1. That the Claimant has not shown his locus to challenge the authority of the Prescribed Authority in a matter of appointment of Minor Chiefs in Ilawe-Ekiti.
2. The Claimant is unsure of which Chieftaincy title he is challenging whether Aro or Aromuagun or Amuagun Chieftaincy.
3. That the Claimant has not shown that he belongs to the 1st Defendant’s family (either Aro, Bobajua or Amuagun family in Irorin Quarters of Ilawe- Ekiti) and that it is Adetolaju family’s turn to produce a candidate for Amuagun Minor Chieftaincy.
4. The Claimant has not shown that there is vacancy in the Aro or Aromuagun Amuagun Minor Chieftaincy title and that he is interested in it as an eligible and interested candidate to fill it.
5. The Claimant did not show that he took part as a candidate during the selection process of the 1st Defendant by his family as Chief Amuagun.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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- The Claimant did not show through his Affidavit that he is the prescribed authority whose written approval is required and must be obtained before the 1st Defendant could be installed as a minor Chief. (Chief Amuagun).
7. The claimant lied on oath at paragraphs 1(a) and 8 of his Affidavit in support of the Originating Summons and thereby committed perjury in view of the Court of Appeal decision to the contrary at pages 24 and 28 of Claimantâs exhibit HCSA2 that the 1st Defendant is NOT FROM AAYE QUARTER but from Irorin Quarter in Ilawe-Ekiti.
8. The Claimant has no locus standi to institute this action.
9. That Claimant has no cause of action against the Defendants.
10. The reliefs sought by the Claimant are abuse of Court process.
11. The Claimant refused, failed and neglected to exhaust all the local remedies provided by law before approaching the Court and therefore renders this suit liable to be dismissed. Claimantâs Exhibits HCSA4 and HCSA5 have no recipients and they are all afterthoughts.
12. That the Honorable Court lacks jurisdiction to hear and determine the claimant’s suit.
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The objection was premised on Claimant’s challenge of the 1st defendant as Amuagun and to successfully do this and before the lower Court can exercise jurisdiction, the provisions of Section 13 of the Chief’s Law, must be proved to have been fully complied with without which the Court would have no jurisdiction.
The original Notice of Appeal is dated 2nd of August, 2018 and filed on the 3rd August, 2018. However, the Appellant filed an Amended Notice of Appeal on the 12/7/2019 vide the order of this Court consisting eight Grounds of Appeal. The Grounds of Appeal without their particulars are as follows:
Ground 1
The learned trial judge erred in law in dismissing the Appellants’ Preliminary Objection to jurisdiction when he held at page 11 of the judgment thus:
“At this stage, considering the arguments put forward by the Defendants in the objection, l am dismissing forthright. I uphold the submission of learned counsel to the Claimant since the Defendants’ objection has cause to be on points of law, same cannot be decided without evidence. In other words, failure of Defendants to file an Affidavit to back the objection. The objection
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is hereby dismissed.
Ground 2
The learned trial judge erred in law when he held at page 18 of the judgment thus:
“I am disregarding the last processes filed by both the Claimant and Defendants. Both not being in line with the provisions of Order 39, Rule 1 (1),(2),(3) & (4) of the High Court (Civil Procedure) Rules of Ekiti-State ,2011.”
Ground 3
The learned trial judge erred in law when he held at page 18 of his judgment thus:
“When the above provisions of Section 281 (2) &(3) of the 1999 CFRN (as amended) is further read in conjunction with the provisions of Section 60 of the Evidence Act, 2011, the only legal thing to do in the instant case particularly with reference to Exhibit HCSA – Judgment of His Lordship Adeyeye J., of the Ekiti State High Court and Exhibit HCSA1 Judgment of the Court of Appeal which affirmed the Judgment of Adeyeye J i.e HCSA is to resolve Issue One in favour of the Claimant.”
Ground 4
The learned trial judge erred in law in holding that the law does not prescribe the form and manner of protest or complaint since oral complaint is also regular and lawful more so
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that the claimant served Exhibit HCSA4 and HCSA5 on appropriate authorities without jurisdiction.
Ground 5
The learned trial Judge erred in law when he held at page 21 of the Judgment as follows:
“Having resolved Issue One in favour of the Claimant, Issue Two automatically submerges into Issue One.”
Ground 6
The learned trial judge erred in law when he held at page 20 of the judgment that where a valid Court’s order is unjustifiably violated, the person who violates it may be committed for contempt and that the actions taken or influenced appointment made by the 2nd Defendant in contravention of Exhibit HCSA and HCSA1 are hereby reversed and nullified.
Ground 7
The trial judge erred in law when he delivered his judgment after the constitutional time frame within which judgment must be delivered after the close of final address.
Ground 8
The judgment is against the weight of evidence.
As demanded by the Rules of this Court, both parties filed briefs of Argument. The Appellant’s Brief of Argument is dated the 18th of September 2019, but deemed filed properly on 24th September, 2019 vide
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motion on Notice filed on 20th September, 2019. The Respondent’s Brief of Argument is dated and filed
the 1st day of November , 2019.
From the eight Grounds of Appeal, the Appellants distilled five (5)issues for determination at pages 6-7 of the Appellant’s Brief of Argument as follows:
1. Whether considering the totality of the facts and processes in this case, as it relates to Amuagun Chieftaincy title, the learned trial judge was not wrong to have dismissed the Appellants’ Preliminary Objection to jurisdiction on the ground that the Appellants did not file an Affidavit to backup their grounds of objection. (Ground 1).
2. Whether the decision of the trial Court to disregard the Appellants Further Counter Affidavit before arriving at its conclusions is not perverse and in breach of the Appellants’ right to fair hearing thereby occasioning a miscarriage of justice. (Ground 2).
3. Whether Issue One formulated by the trial Court was not wrongly resolved in favour of the Respondent. (Grounds 3, 4, 6 and 8).
4. Whether the learned trial judge at the Court below was not wrong when he automatically submerged his Issue two into Issue
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One, in his judgment which issues are not related. (Ground 5).
5. Whether the judgment of the lower Court in this case delivered outside the mandatory Constitutional period of ninety days after the close final addresses is not a nullity and liable to be set aside for being perverse and having occasioned a miscarriage of justice. (Ground 7).
The Respondent formulated three (3) issues for determination from the grounds of appeal as contained in the Amended Notice of Appeal, as follows:
1. Whether the preliminary objection of the Appellants was not properly refused or overruled or dismissed by the learned trial judge. (Ground 1).
2. Whether the learned trial judge was not right in disregarding the last process filed by the Appellants namely; further counter-affidavit. (Ground 2).
3. Whether the learned trial judge was not right in granting the claim of the Respondent. (Grounds 3, 4, 5, 6, 7 and 8).
A cursory look at the issues formulated by the Appellants and the Respondent would reveal that they are similar in substance and scope. The difference lies in the manner they were couched. In that respect, I propose to adopt the issues
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formulated by the Respondent, they encompass Appellants’ issues.
The appeal was heard on the 16th day of March, 2020.
Mr. Ezekiel Agunbiade of counsel, who appeared with Mr. Stephen Ademuagun adopted the Appellant’s Brief of Argument and the Reply Brief, and urged us to allow the appeal and set aside the Judgment of the trial Court dated the 27th of July, 2018. Mr. Taiwo Ogunmoroti of learned counsel for the Respondent, equally adopted the Respondent’s Brief of Argument, and urged us to dismiss the appeal and affirm the judgment of the lower Court.
The Appellants filed a Reply brief dated 30th January, 2020 filed on 13th March, 2020 and deemed properly filed on the 16th March, 2020 in which they more or less reargued their appeal.
In the case of DR. AUGUSTINE N. MOZIE & ORS V. CHIKE MBAMALU & ORS 2006 LPELR 1922 SC Niki TOBI JSC –
“It is not my understanding of the law of brief writing that a reply brief seeks a different relief outside the main brief. A reply brief, as the name implies, is a reply to the respondent’s brief. A reply brief is filed when an issue of law or arguments raised in the respondent’s brief call for a
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reply. A reply brief should deal with only new points arising from the respondent’s brief. In the absence of a new point, a reply brief is otiose and the Court is entitled to discountenance it. A reply brief is not a repair kit to put right any lacuna or error in the appellant’s brief.”
In the circumstance, the above reply brief which is all a reply brief should not be is discountenanced in this appeal.
I now proceed to consider the issues arising for determination in this appeal. The issues will be considered seriatim; beginning with issue 1, which is:
“Whether the preliminary objection of the Appellants was not properly refused or overruled or dismissed by the learned trial judge.” (Ground 1).
Arguing their issue 1, learned counsel for the Appellants submitted that, this issue bothers on question of jurisdiction to hear and entertain the suit of the Respondent at the lower Court. He defined jurisdiction relying on the case of Inakoju v Adeleke (2007) 4 NWLR (Pt 1025) 423 @ 588-589 PARAS E-F; Madukolu v Nkemdilim (1962) 2 SCNLR 341; Onyeanucheya v The Military Administrator of lmo State (1997) 1 NWLR (Pt 482) 429.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Learned counsel contended that jurisdiction is the pillar upon which the case before the Court stands. The Court will only exercise its jurisdiction where the Court is properly constituted, the subject matter in the case is within the Court’s jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction, the case comes before the Court of law initiated by due process of law and upon fulfillment of any condition to the exercise of jurisdiction. Therefore, in the determination of whether or not a Court has jurisdiction, the Court process to be used is the pleadings of the Plaintiff which is the Statement of Claim. It is the case put forward by the Plaintiff that determines the jurisdiction of the Court. In this case which action was commenced by originating Summons, the Court process to be used is the Affidavit in support of the Summons. The cases of Inakoju v Adeleke (supra) and Elelu-Habeeb v A.G. Fed.(2012) 13 NWLR (Pt 1318) 423 at 511-515 were cited.
Learned counsel asked the question whether applying the principles in Elelu- Habeeb v A.G Fed (supra), will the trial Court be justified when he held at
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page 260 of the record of appeal thus:
“Failure of the Defendants to file an Affidavit to back up their grounds of objection is fatal to the objection. The objection is hereby dismissed. It is my finding that having raised grounds that deals with facts, the Defendants/applicants should have filed an Affidavit to back up the Preliminary Objection, failure to do so is fatal to the objection. The objection is hereby dismissed.”
He cited the case ofOluwole v Margaret (2012) 13 NWLR (Pt 1318) 13 at 634 para B in support of his contention that a preliminary objection may be filed with or without an Affidavit. That what is necessary is that the grounds upon which the objection is premised must be stated. And in this instant appeal, the Appellants stated twelve (12) grounds upon which their objection was premised. Apart from the grounds, the Appellants filed a counter affidavit and a Further Counter Affidavit with seven (7) exhibits in all (Exhibits A-G).
He noted that both the Preliminary Objection and the substantive suit, were adopted and argued together before the lower Court.
He urged this Court to hold that the decision of the
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trial Court was unfounded in law.
In response, learned counsel for the Respondent submitted that, the preliminary objection of the Appellants was properly overruled and dismissed. He referred to the Appellants’ Notice of Preliminary Objection on page 85 of the record of appeal, that it did not say they were challenging the jurisdiction on grounds of facts, but of law alone, and listed two sets of grounds on pages 85-86 of the record of appeal. He contended that the first set of grounds on page 85 of the record, cannot be determined without affidavit evidence, because they are matters of facts and law e. g locus standi which is a matter of fact and law. Abuse of Court process, reasonable cause of action and exhausting local remedies are both issues of facts and law and cannot be determined without affidavit evidence. He relied on the case of Nweke v FRN (2019) 10 NWLR (1679) 51 at 65.
Learned counsel further referred to Appellants’ second set of twelve (12) grounds on page 86 as issues of facts or at best law and facts requiring affidavit evidence. He cited the case of Nweke v FRN (supra). Counsel contended that the facts in the second set of
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grounds cannot be determined from the Respondent’s claim, because if the Appellants are saying that the Respondent has no locus standi to sue, they have merely accepted the facts in the originating summons as true. He cited the case of Boothia V Maritime lnc v Fareast Mercantile Co Ltd (2001) 9 NWLR (pt 719) 572 at 594.
Learned counsel submitted that, if those facts as contained in the originating Summons are true and correct, Appellants cannot rely on their grounds of objection which are mainly facts to contradict the affidavit evidence in the originating Summons already admitted by them, by virtue of their challenge on the locus standi of the Respondent. Appellants objection ceased to be on points of law, since same cannot be determined without evidence. He cited the case ofJang v INEC (2004) 12 NWLR (PT. 886) 46, 83.
Learned counsel surmised that, the learned trial judge was right when he dismissed the Appellants’ application or preliminary objection for failure to file a supporting affidavit, since grounds are grounds of fact and not of law. He cited the case of Nweke v FRN (supra) at page 65.
Learned counsel submitted that the
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Appellants referred to their counter affidavit, and Further Counter affidavit on pages 99-122, 182-240 of record of appeal. These processes were filed on 22/9/17 and 20/2/18 in opposition to the originating summons filed on 9/2/17, whereas the notice of preliminary objection was filed and argued on 19/7/17, before the counter-affidavit and further counter affidavits were filed. Counsel noted that counter affidavit, and Further Affidavit have no bearing with the preliminary objection. In this instant case the learned trial judge determined the issue of jurisdiction first, before the substantive issue.
The issue raised in the Appellants’ counter affidavit, were determined by the trial judge on pages 268-270 of the record of appeal.
Learned counsel urged this Court to dismiss this appeal with substantial costs.
RESOLUTION OF ISSUE 1
Now, a Preliminary Objection is generally an objection against the regularity of a Court process i.e. a suit or motion. The primary objective of such an objection is to terminate the proceedings at the stage the objection is raised. In other words, the effect of a Preliminary Objection is to nullify the
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proceedings. See OKOI V IBIANG (2002) 10 N.W.L.R (pt. 776) P. 455; ORUOBU V ANEKWE (1997) 5 NWLR (pt. 506) P.618. A Preliminary Objection may or may not be supported by affidavit. It all depends on what is being objected to. Where the objection is based on law, an affidavit may not be necessary, but if it is based on the facts, an affidavit is mandatory. In other words, where the preliminary Objection deals strictly with issues of law, there is no need for any supporting affidavit, but only the grounds for the objection need be clearly stated. However, when the objection leaves the province of law and dwells on facts of the case, the party relying on such Preliminary Objection must support same by filing an affidavit. In that respect, where a preliminary objection is raised on point of law, and relevant facts upon which the objection is based are before the Court, there is no need for additional affidavit evidence to be filed. It is only where there are conflicting assertions as to any fact relating to the objection, or where the facts are not before the Court; that such an objection ought to be supported by an affidavit, which would ensure that all relevant
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materials are placed before the Court for a proper determination of the objection. See AMAH V NWANKWO (2007) 12 N.W.L.R (Pt.1049) P.552 at P.578: A.G: FEDERATION V A.N.P.P (2003) 18 N.W.L.R (Pt.851) P.182 at P. 207 PARAS A-D; and ODEDIRAN V N.P.A (2004) 7 N.W.L.R (Pt.872)P.230.
In the case at hand, since the objection of the Appellants is not on points of law, it cannot be decided without evidence. In other words failure of the Appellants, to file an affidavit to back up their grounds of objection, is fatal to the objection. See the case of Contract Resource Nig LTD & ANOR V UBA PLC (2011) LPELR- 8737 (SC); Okereke v James (2012) LPELR 9347 (SC).
In the instant case, the Respondent as plaintiff at the lower Court had copiously pleaded the particulars of his claim in the Originating Summons.
The Appellants then filed a Notice of Preliminary Objection wherein they gave notice that they would be contending as a preliminary issue that they would object to the hearing, and determination of the suit on twelve (12) grounds, principally on jurisdiction. Where a Statement of Claim has been duly filed, as in the instant case where the Respondent filed a
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20 paragraph supporting affidavit to which exhibits were attached, it is the content and claim as pleaded in the Originating Summons and supporting affidavit, that determines the jurisdiction of the Court. In that respect, in determining whether or not the trial Court has jurisdiction to entertain and determine the suit, or whether a reasonable cause of action is disclosed or whether the plaintiff has locus standi, it is the Statement of Claim that the Court looks into. BARCLAYS BANK V CENTRAL BANK (1976) 6 S.G. P.175: ADEYEMI &ORS V OPEYORI (1976) 9 & 10 S.C. P. 31; NWOKORIE V OPARA (1999) 1 N.W.L.R (Pt. 587) P. 389; ALHAJI UMARU ABBA TUKUR V GOVERNMENT OF GONGOLA STATE (1989) 9 S.C.N.J. P.1: ZIZA V MAMMAN (2002) 5 N.W.L.R (Pt. 780) P.243 at PP.265 – 266 and MINISTER FOR WORKS & HOUSING V TOMAS (2001) 48 W.R.N. P.119. See also OMINA (NIG) LTD V DYKTRADE LTD (2007) 15 N.W.L.R (PT.1058) P.576.
That being so, what the Appellants needed at the lower Court was an affidavit in support of the grounds for the objection. I think that is what the Appellants tried to do belatedly, and the trial judge discountenanced both the counter affidavit and further
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counter affidavit. The Appellants had hinged their Preliminary Objection on, inter alia, want of jurisdiction of the trial Court, and want of reasonable cause of action.
I am therefore of the view, and do hold that the learned trial judge was right when he struck out both the counter affidavit and further counter-affidavit.
He was also right when he dismissed the arguments put forward by the Appellants in the objection. Issue one is therefore resolved in favour of the Respondent.
Issue 2
“Whether the learned trial judge was not right in disregarding the last process filed by the Appellants namely; further counter- affidavit.” Ground 2.
Arguing their issue 2, Appellants’ counsel reproduced the holding of the learned trial judge on page 267 of the record of appeal. He submitted that Order 5 of the High Court (Civil Procedure), Rules 2011, effectively treats as a mere irregularity anything done or left undone or being a failure to comply with requirements of the Order 39, and shall not nullify the proceedings, or any document or Order. In that the Rules of Court cannot be used to choke, throttle or asphyxiate justice.
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Learned counsel submitted that the import of the holding of the learned trial judge is to equate the Rules with the laws.
Learned counsel referring to this Appeal submitted that the Respondent sued the 1st and 2nd Appellants by Originating Summons, with a supporting affidavit. Respondent also filed a Further and better Affidavit and a Further Affidavit. In response, 2nd Appellant filed a counter affidavit and the 1st Appellant filed a Further Counter-Affidavit. Learned counsel argued that for the trial judge to disregard the 1st Appellant’s Further Counter-Affidavit in arriving at its decision, the trial Court has deliberately shut out the 1st Appellant from being heard, thereby infringing on his right to fair hearing as entrenched in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). That the learned trial judge therefore fell into a grave error by equating a Motion/Application on Order 39 Rules 1-4, with an Originating Summons which is guided by Order 3, Rules 1-10 of the High Court of Ekiti (Civil Procedure) Rules, 2011, he urged this Court to so hold.
Learned counsel cited the cases of
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Canal Inv. Ltd v TCR Ltd (2017)3 NWLR (PT 1553) 441 at 460 para C-D; Mana v PDP (2012) 13 NWLR (pt1318)579 at 608-609, in support of their contention that the Appellants cannot keep quiet to the Respondent’s Further Affidavit when it is a cardinal rule of procedure that where a counter-Affidavit is not filed against a supporting Affidavit, the averments contained in the supporting Affidavit will be deemed admitted.
Learned counsel contended that the decision of the trial judge in disregarding the counter-Affidavit of the 1st Appellant to the Originating processes is perverse and amounts to a miscarriage of justice, he urged the Court to so hold.
Arguing further, learned counsel contended that the 1st Appellant’s Counter-Affidavit and the attached Exhibits D-G at pages 182-222 of the record of appeal constitute documents in the Court’s file. They were filed on the orders of the trial Court, made at pages 242-243 of the record of appeal, therefore the Court is bound to utilize them. He cited the cases of Edilcon (Nig) Ltd v UBA Plc (2017) 18 NWLR (PT 1596) 74; Agbaisi v Ebikorefe (1997) 4 NWLR (PT. 502) 630 ; Uzodinma v Izunaso (No. 2)
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(2011) 7 NWLR (PT. 1275) 30 @ 90 para B-C; G & T Investment Ltd v Witt & Bush Ltd (2011) 8 NWLR (PT 1250)500.
Learned counsel enjoined this Court, in the light of the foregoing to hold that, the decision of the trial Court to disregard the 1st Appellants’ Counter Affidavit and all the attached documents constitutes a breach of his right to fair hearing, renders the trial Court’s judgment perverse, thereby occasioning a miscarriage of justice. He urged this Court to so hold. That the trial Court wrongly equated an Originating Summons with a Motion and application filed pursuant to Order 39, Rules(1)(2)(3) of the Civil Procedure Rules for Ekiti State High Court which is not. He urged this Court to resolve Issue 2 in favour of the Appellants.
In his response on Issue 2, Respondent’s counsel reproduced Appellants’ Ground 2 in the Appellants’ Amended Notice of Appeal as well as Appellants’ second issue for determination. He argued that the particulars of error referred to Appellants’ Further Affidavit which does not flow or relate to the ground of appeal and this is fatal. He cited the case of Ushie v Edet (2010) 6 NWLR (PT. 1190)
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386 402 C. Counsel contended that the argument canvassed on pages 11-15 of the Appellants’ brief of argument is simply incongruous and otoise. Counsel noted that the particulars talked of Further affidavit which Appellants said they filed, whilst their brief talks about the 1st Appellant filing a counter affidavit. He reiterated the fact that the Appellants did not at anytime file a further affidavit, rather they filed a Further Counter-Affidavit which does not flow or reflect in the particulars of error in Appellants’ Ground 2.
It was further reiterated by counsel that Appellants devoted quality time on their counter affidavit in their brief of argument whereas the trial Court did not disregard their counter affidavit. He asked why the Appellants unjustly attacked the learned trial judge for dispensing justice according to law. He contended that a Court will not entertain a party’s case, that is not consistent. He urged this Court not to entertain Appellants’ case for lack of constituency. He cited the case of Mekwunye v Imoukhuede (2019) 13 NWLR (PT.1690) 439 at 507 F-G.
It was reiterated by counsel that the last process filed by the
26
Appellants is a Further Counter-affidavit, while that of Respondent is a Further Affidavit, and the learned trial judge was right when he disregarded the Further Counter-Affidavit, in defiance to Order 39 of the Ekiti State High Court (Civil Procedure), Rules 2011. He surmised that the Further Counter-Affidavit filed by the Appellants is a process unknown to law. He cited Order 17, Rule 16 of the Ekiti State High Court (Civil Procedure) Rules, 2011. He submitted that the learned trial judge’s reliance is not out of place, because the order talks about affidavit evidence, which has no provision for Further Counter- Affidavit. Learned counsel contended that Order 39, Rule (1) (2)(3) and (4) is a complement to Order 17, Rule 16.
Referring to the above contention counsel submitted, that Rules of Court are meant to be obeyed, and there is no infringement of any kind of right to fair hearing of the Appellants by disregarding the Further Counter-Affidavit filed by the Appellants. He cited the case of S.P.D.C (Nig) Ltd v Agbara (2019) 6 NWLR (PT. 16) 68312 at 326 H. Counsel reiterated the fact that the learned trial judge did not disregard Appellants’
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Counter Affidavit, which was what Appellants focused their attention on in their brief of argument on Issue 2, as the document disregarded. The processes disregarded were the Further Affidavit, and Further Counter Affidavit, for which Appellants failed to canvass a single argument in respect thereof. Counsel also referred to Nos 2, 3, and 4 of Appellants’ particulars of error in Ground 2 of Appellants’ Amended Notice of Appeal filed on 12/7/19. He urged this Court to dismiss the appeal.
RESOLUTION OF ISSUE 2
âWhether the learner trial judge was not right in disregarding the last process filed by the Appellants namely; Further Counter-Affidavit.â
This issue was distilled from Ground 2 of the Grounds of Appeal in Appellants Amended Notice of Appeal filed on the 12/7/2019 which states as follows:
âGround 2
The learned trial judge erred in law when he held at page 18 of the judgment thus:
âI am disregarding the last processes filed by both the Claimant and the defendants. Both not being in line with the provisions of Order 39, Rule 1(1)(2)(3) &(4) of the High Court of Ekiti State ( Civil Procedure) Rules, 2011.â
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Particulars of Error
1. The matter before the Court was initiated by Originating Summons and not by way of Motion under Order 39 Rule (1),(2),(3), & (4) of the High Court (Civil Procedure) Rules of Ekiti State, 2011.
2. The Appellants’ Further Affidavit to Claimants Originating Summons was validly filed by an order of the trial Court.
3. The trial Court is bound by its record and to look at processes filed by the parties in taking final decision.
4. Disregarding the Appellants’ Further Affidavit and Written Address by the trial Court amounts to lack of fair hearing.
The Appellants’ counsel submitted that Order 5 of the High Court (Civil Procedure) Rules, 2011, treated as a mere irregularity anything done or left undone or being a failure to comply with requirements of the Rules, and shall not nullify the proceedings, or any document or order.
His contention is that the Rules of Court cannot be used to choke justice.
The Respondent’s counsel rightly in my view pointed out that, the particulars of error of Appellants talks of Appellants’ Further Affidavit, which does not flow or relate to
29
the Ground of appeal. I have examined the Ground 2 of the Grounds of appeal already reproduced above. Undoubtedly, I agree with Respondent’s counsel that the particulars of error, do not flow or relate to the ground of appeal.
It is trite law that a party who wishes to rely on any ground of appeal in an appeal, must raise such ground specifically and clearly as a ground of appeal in his notice of appeal, or cross-appeal. He must not raise it as a particular to a ground of appeal, because particulars of a ground of appeal are complements to and dependent on the ground of appeal. Consequently, once particulars of a ground of appeal speak a different language outside the contemplation of ground of appeal, they are no more particulars of relevant ground, and go to no issue. See Anammco vs. First Marina Trust Ltd (2000) 1 NWLR Part 640 p. 309. The purpose of a ground of appeal is to give to the Respondent, notice of the exact complaint the appellant has against the decision. Therefore, a ground of appeal should be drawn up with the greatest legal skill, accuracy, elegance and expertise which a solicitor must muster. Particulars of error to a ground of
30
appeal, must flow from the ground of appeal and must support it, which is not the case in this particular appeal. Particulars not so related are incompetent, and ought to be disregarded. If all the particulars to a ground of appeal are unrelated to the ground, the latter is incompetent and ought to be struck out. See alsoCross River Basin & Rural Development Authority vs. Sule (2001) 6 NWLR Part 708 p. 194. In the present appeal, it is clear that particulars Nos. 1, 2, 3, and 4 which centered on the Originating Summons, Appellants’ Further Affidavit not mentioned in any form in ground No. 2 of the grounds of appeal, are totally unrelated to the said ground. In the light of the decision in Cross River Basin & Rural Development Authority vs. Sule (supra), particulars Nos. 1, 2, 3 and 4 to the ground No. 2, of the grounds of appeal, and all the arguments in the brief relating thereto as advanced under issue No.2 for determination are hereby discountenanced. Issue 2, is resolved against the Appellants.
Issue 3
“Whether the learned trial judge was not right in granting the claim of the Respondent.” Grounds 3, 4, 6, 7 & 8.
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In arguing this Issue, Appellants’ counsel referred to the two Issues distilled by the learned trial judge for the determination of this case at the lower Court:-
“1. Whether the High Court can interpret and enforce the findings, terms and conditions of the Judgments of Court of Appeal on a party, and the effect of the Court of Appeal judgment on persons who were not parties to a suit.
2. Whether the Claimant can successfully challenge Amuagun Minor Chieftaincy, without raising a dispute, and exhausting all the statutory local remedies as provided by law.”
The learned counsel contended that in resolving Issue One thereof, the case oflbrahim v Emein (1996) 2 NWLR (Pt 420) 322 @330 relied on by the learned trial judge in solving the first issue was misapplied to the present case. He further submitted that precedents are used when a Court’s decision in an earlier case has similar facts and laws to a dispute currently before a Court. That in the instant suit on appeal, and unlike in Ibrahim case (supra), the subject matter in this instant appeal is Amuagun Minor Chieftaincy, which was not a subject matter in Exhibits HCSA, and
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HCSA1. There was no finding or orders in respect of Amuagun in the two Exhibits. The second point, the present suit is not about the status of Irorin Quarters as a separate and distinct Quarters in Ilawe-Ekiti, and neither is it about whether Aro family exists in Irorin or Aye Quarters, which are the subject matter of Exhibits HCSA and HCSA1. Thirdly, in HCSA and HCSA1, the Defendant and Respondent respectively in both suits were not sued in a representative capacity. The Appellant was sued in his personal name Chief Olawumi Obajingin (Ororin of Irorin, Aaye Quarters, Ilawe-Ekiti) while the Respondent herein sued for himself as High Chief Sunday Adetolaju (Ororin of Irorin Quarters, Ilawe-Ekiti), therefore the judgments in HCSA and HCSA1 cannot be in rem nor be enforced by and in favour of the Respondent herein. The fourth point raised by learned counsel is the questions for determination and the reliefs sought in Exhibits HCSA and HCSA1 are not the same as in the suit herein.
The Respondent’s counsel on his part, in arguing this Issue, reproduced the Respondent’s claim at the lower Court, which l had earlier reproduced in this judgment.
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He submitted that the learned trial judge rightly granted the claims, when he held “All the reliefs sought for by the Claimant are hereby granted.”
He stated that Exhibit HCSA, is the judgment of the High Court of Ekiti State delivered on 22-6-2008 by Hon. Justice J.O Adeyeye; Exhibit HCSA1, is the judgment of the Court of Appeal, Ekiti Division delivered on 11/5/11. He pointed out that the 2nd Defendant in Exhibit HCSA, Chief Olufemi Araoye is the 1st Appellant in the present appeal. That the Defendant in Exhibit HCSA, which is the judgment in suit No.HCR/6/2002, is the father of the Respondent herein, and his predecessor having succeeded his father who died in 2011, as the Ororin. He referred to paragraph 4 of the affidavit in support of the Originating Summons on page 4 of the record of appeal.
The Respondent’s counsel submitted that the 2nd Appellant is aware of Exhibits HCSA and HCSA1, as can be garnered from paragraph 11(a) of the Further and better affidavit of the Respondent on page 127-134A of the record of appeal. He contended that Exhibits HCSA and HCSA1, are judgments in rem, and not in person am, therefore bind
34
parties and none parties. He cited the cases ofGbemisola v Bolarinwa (2004) 9 NWLR (PT. 1411) 1 at 19 D-H; EFCC V Yanaty Petrochemical Ltd (2017) 3 NWLR (PT. 1552) 171 at 203 A-C; Noeker v Gov. Plateau State (2018) 16 NWLR (PT1646) 481 at 502 A-E; Yanaty Petrochemical Ltd v EFCC (2018) 5 NWLR (PT1611) 97, 142-143 H-F, D-F.
Learned counsel reiterated the fact that, Exhibits HCSA, and HCSA1 are binding on the parties in this case, and the terms and conditions must be obeyed, since there was no appeal against Exhibit HCSA1. He relied on the case of Babatunde v Olatunji (2000) 2 NWLR (PT. 646) 557, 568 E-G, 571 F-G.
In his further submissions, Appellants’ counsel referred to paragraph 4, of the Affidavit in support of the Originating Summons on page 4, of the Record of Appeal, and contended that a predecessor cannot enforce a judgment given to his successor.
Appellants’ counsel noted the commencement date for Ekiti State Chief’s Law 1984. That the Defendant and Respondent in Exhibits HCSA and HCSA1 was made a Chief according to Law and pursuant to the approval of the Prescribed Authority on 22nd May, 1989. Therefore as at the time the suits in
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Exhibits HCSA and HCSA1 began in 2002, the Defendant and Respondent both Exhibits HCSA and HCSA1, was a Chief in law by virtue of the Appellants’ Exhibit A and Section 13(1)(2)(3) of the Chief’s Law Ekiti State. But that contra-wise and conversely, the Respondent tenaciously maintained at paragraph 10 of his Further and Better Affidavit on page 128, that no written approval of the Prescribed Authority is required as far as the appointment or installation of Ororin is concerned or any chief in Ilawe at all. But that the learned trial judge agreed with the Respondent in resolving Issue 1 in his favour which should not be.
The learned counsel in his further submissions asked the question in which way did the findings of the Court of Appeal affect the Amuagun Minor Chieftaincy or in which way is the action of the Appellants’ contemptuous of the findings? He contended that Exhibits HCSA and HCSA1 being declaratory judgment cannot constitute a contempt of Court. He cited the case ofOkoye v Santilli & Ors (1990) 2 NWLR (PT131)172 @ 199-105.
Referring to this instant case, learned counsel submitted that the appellants have not disobeyed
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any terms, conditions, orders or findings as contained in Exhibits HCSA and HCSA1.
Arguing further, learned counsel contended that, it is speculative on the part of the lower Court, to hold that 2nd appellant who was not a party to Exhibits HCSA and HCSA1 was aware of the existence of the judgments, and thereby holding him liable for contempt and reversing his approval given to the 1st Appellant in respect of Amuagun Minor Chieftaincy.
This Court was urged to resolve Issue 3 in favour of the Appellants, since the Respondent cannot benefit from a judgment which he was not a party. Furthermore that the Respondent’s reliefs (c),(d)(e) are directed against the 1st Appellant, as the holder of Amuagun Chieftaincy as approved by the 2nd Appellant, based on his affidavit in support of the Originating Summons, thereby urging the trial Court to determine the eligibility of 1st Appellant and the power of the 2nd Appellant, as the Prescribed Authority over Minor Chieftaincy matters to so approve.
Appellants’ counsel submitted that the Respondent did not satisfy the mandatory preconditions of Section 13 of the Chief’s Law of Ekiti State.
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Therefore the trial Court ought not to have come to the conclusion at page 269 of the record of appeal. He cited the case of Aribisala v Ogunyemi (2005) NSCQLR VOL 21 113 @123-128; Daniyan v Iyagin (2002) FWLR (Pt 120)1805 at 1826. He contended that the learned trial judge was wrong when he held at page 270 of the record that he agreed with Claimant’s submission that the law does not prescribe the form and manner of protest or complaint, since oral complaints is also regular and lawful.
In his reaction to Appellants’ submissions, Respondent’s counsel submitted that the learned trial judge was right when he held that the law does not prescribe form and manner of protest of complaint since oral complaint is also regular and lawful. He cited the cases of Owoseni v Faloye (2005) 14 NWLR (PT 946) 719 at 741 F-G; Awoyemi v Fasuan (2006) 3 NWLR (PT. 996) 86 at 108. It was reiterated by learned counsel that the Respondent exhausted the local remedies available to law and jurisprudence before filing the suit.
The learned counsel further submitted that the Court can take judicial notice of same by virtue of Sections 16 and 18 of the Evidence Act, 2011.
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That by hierarchy of legislation, the Evidence Act is superior to the Chief’s Law, therefore the noise on the effect of Section 13(5) and (6) and the efficacy has waned.
Learned counsel contended that reliefs (a), (b) and (e) as contained on pages 2-3 of the record of appeal have nothing in common with Section 13(5) and (6) of the Chief’s Law of Ekiti State, viz-a-viz domestic fora or local remedies. He urged this Court to dismiss this appeal.
He referred to the two issues formulated by the trial judge contained on page 267 of the record of appeal that they are like Siamese twins. In that Issue 2, formulated by the trial judge is a subset of Issue 1. Therefore there is nothing wrong in the holding of the learned trial judge, and it cannot be faulted as reasons were given for the said judgment.
Learned counsel further submitted that the Appellants violated the terms, conditions and holding of the Court of Appeal in Exhibits HCSA, and HCSA1. That the argument by the Appellants that a declarative judgment cannot be enforced is untenable. He submitted that it is permissible for a party to enforce a declaratory judgment
39
via another suit as the present case, and that is why the Respondent prayed for the interpretation of the terms and conditions in Exhibit HCSA, which is the judgment of the High Court of Ekiti State and Exhibit HCSA1, which is the judgment of the Court of Appeal he cited the case of Ntuks v N.P.P.A (2012) 8 NWLR (PT 1301) 37, 61 E; Babatunde v Olatunji (2000) 2 NWLR (PT. 646) 557 at 568 E-G 572 F-G. That it is rascality for a party not to obey what the Court says, even when he believes or thinks otherwise. He reiterated the fact that the learned trial judge was right when he held on page 269 of the record of appeal “Consequently Issue 1 is resolved in favour of Claimant”. What is more, declaratory relief can be granted by summary judgment.
Learned counsel further submitted that the Appellants have no role to play in the installation of Chiefs in Irorin Quarters of Ilawe, apart from the fact that there is no Aro family in Irorin Quarters, that could possibly produce a candidate for any chieftaincy at all, as something cannot be built on nothing. In effect, the actions of the Appellants in respect of the Chieftaincy are a nullity and the
40
learned trial judge correctly reversed same to guide, guard, protect, and preserve the sanctity of the alter of justice from being soiled with filthy hands.
It was further submitted by counsel, that a finding of Court not appealed against is binding. In that the trial judge adjudged that the Respondent has locus standi to institute the suit for which there is no appeal against the finding on the issue of locus standi, because the learned trial judge correctly held that in constitutional matters locus standi is unnecessary. He cited the case of Anazodo v P.I.T. (Nigeria) (2008) 6 NWLR (PT 1084) 529, 543-545 F-G, D.
Appellants’ counsel in their Issue 5, distilled from ground 7, submitted that from the record of appeal at pages 244-247, the parties in this suit concluded their cases and adopted their final addresses on 10th day of April, 2018. But however the learned trial judge delivered his judgment on 27th day of July, 2018 as contained at pages 249-270 of the record of appeal. He contended that, in view of the provisions of Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999, the judgment of the trial Court is null in
41
law, and its legal effect a complete nullity. And such a judgment cannot constitute an opinion of the trial Court that gave it, for out of nothing, nothing can arise. He then contended that the judgment of the Court being appealed herein, ought to be nullified. The learned counsel urged this Court to nullify the judgment, same having been given without jurisdiction. And determine the suit upon the Affidavit evidence and exhibits before this Court since all material evidence required to do so are all contained in the record of appeal.
On the argument that the learned trial judge delivered his judgment after three months, Respondents’ counsel submitted that Appellants have failed to catalogue or chronicle the injuries they suffered, or the miscarriage of justice occasioned thereat, other than their statement that the judgment was delivered outside three months and so a nullity. He cited the cases ofOwoyemi v Adekoya (2003) 18 NWLR (Pt 852) 307 at 339-340n H-B; Lawal v Quadri (2004) 6 NWLR (Pt 868) 1 at 11F, 15 F-H.
Finally learned counsel urged this Court to dismiss this appeal with substantial costs.
RESOLUTION OF ISSUE 3
The claim of the
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Respondent before the lower Court was set out earlier in this judgment. It is principally declaratory and injunctive reliefs:-
A (A) A declaration that the Defendants have not complied with the findings, terms and conditions of the judgment of the Court of Appeal in Appeal No: CA/AE/47/2010 delivered on 11th May, 2011, on the non-existence of Aro Family in Irorin Quarters of Ilawe-Ekiti
(B). An order directing the Defendants to comply with the findings, terms and conditions of the judgment of the Court of Appeal in Appeal No: CA/AE/47/2010 which judgment affirmed the judgment delivered by Hon. Justice J.O Adeyeye in Suit No: HCR/6/2002 to the effect that Aro family does not exist in Irorin Quarters of Ilawe-Ekiti.
(C). An order nullifying and setting aside the appointment of the 1st Defendant as Chief Aro or Aromuagun of Irorin Quarters of Ilawe-Ekiti having been done or perpetrated by an imaginary Aro Family of Irorin Quarters of Ilawe already declared not to exist by the judgment of the Court of Appeal in Appeal No. CA/AE/47/2010 delivered on 11th May, 2011.
(D). An order of perpetual or permanent injunction restraining the 2nd
43
Defendant, his agents, servants, privies and representatives from recognizing the 1st Defendant, as the Aro or Aromuagun or Amuagun of Irorin Quarters of Ilawe-Ekiti or Ilawe now, forthwith and henceforth.
(E). An order of perpetual injunction restraining the 1st Defendant, his agents, servants, assigns, privies and representatives from parading himself as a member of Aro Family of Irorin Quarters of Ilawe-Ekiti and Aro or Aromuagun or Amuagun of Irorin Quarters or Ilawe Ekiti now forthwith and henceforth.
In the supporting affidavit to the Originating Summons High Chief Sunday Adetolaju who is the Respondent in this Appeal made oath and stated as follows:
1. I am the Claimant and the deponent herein:
A). The 1st Defendant is a retiree of Aaye Quarters Ilawe- Ekiti.
B. The 2nd Defendant is the paramount ruler of Ilawe-Ekiti and lives at the Alawe’s palace.
3. Sometime in 2002, one Philip Olagunju and the 1st Defendant sued Chief Olawumi Obajingin in suit No HCR/6/2002 and judgement was delivered on 27th June 2008.
4. I am the predecessor to Chief Olawumi Obajingin the then High Chief Ororin of Irorin Quarters of Ilawe
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who died in 2011. Upon his death, l was appointed and installed as the Ororin of Irorin quarters of Ilawe-Ekiti.
5. The Plaintiffs in Exhibit HCSA were dissatisfied with the judgment and appealed to the Court of Appeal which Court also affirmed the judgment of the High Court. The judgment of the Court of appeal is herewith attached and marked Exhibit HCSA1.
6. I know that there is no family known and called Aro family in Ilawe-Ekiti. There is also no Chieftaincy title known and called Aro/Aromugun/Amuagun in Irorin quarters of Ilawe-Ekiti or even Ilawe-Ekiti.
7. The 1st Defendant has been claiming that he is a member of Aro family of Irorin Quarters Ilawe-Ekiti.
8. The 1st Defendant is not a member of Irorin Quarters of Ilawe Ekiti. He is from Aaye quarters of Ilawe-Ekiti.
9. The 1st Defendant has recently been parading himself as the Aro/or Aromuagun or Amuagun of Irorin quarters Ilawe-Ekiti and claimed to have been appointed by the Aro family of Irorin quarters of Ilawe-Ekiti.
10. The 1st Defendant made a banner and invited people to his lwuye ceremony. With the following inscription:
“The Aro family Irorin Ilawe-Ekiti
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welcomes you to lwuye ceremony of Chief Olufemi Araoye as Aromuagun of Irorin Quarters Ilawe-Ekiti date 12th November, 2016 venue Chief Olufemi Araoye’s compound.”
11.The photograph of the banner is herewith attached and marked Exhibit HCSA2.
A. The 1st Defendant also produced invitation card which is attached and marked Exhibit HCSA3.
The 1st Defendant described himself as the Amuagun and that it was the Aro family of Irorin Quarters that invited people to the ceremony.
The questions for determination in Respondents originating summons are as follows:
1. Whether the High Court can rely on the findings, terms and conditions of the judgment of the Court of appeal in appeal No: CA/AE/47/2020 delivered on 11th May, 2011 by virtue of the provisions of Section 287(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
2. Whether the Defendants have complied with or can deviate from the findings, terms and conditions of the judgment of the Court of Appeal in Appeal No: CA/AE/47/2010 delivered on 11th May, 2011 which judgment affirmed the judgment delivered by Hon. Justice J.O. Adeyeye in Suit No: HCR/6/2002
46
and held that Aro family does not exist in Irorin Quarters of Ilawe-Ekiti.
3. Whether the 1st Defendant can claim to be a member of Aro family in Irorin Quarters of Ilawe-Ekiti the Court of appeal having held on the contrary.
4. Whether the 1st Defendant can be appointed or installed as a chief by the Aro family, or anybody at all in Irorin Quarters of Ilawe Ekiti, despite the judgment of the Court of Appeal delivered on 11th May, 2011, which judgment confirmed that Aro family does not exist in Irorin Quarters of Ilawe-Ekiti.
5. Whether the 2nd Defendant can recognize or approve the appointment and installation of the 1st Defendant as Chief Aro/Amuagun despite the Court of appeal judgment of 11th May, 2011.
Respondent’s reliefs against the Appellants are as follows:-
A. A declaration that the Defendants have not complied with the findings, terms and conditions of the judgment of the Court of appeal in appeal No: CA/AE/ 47/2010.
B. An order directing the Defendants to comply with the findings, terms and conditions of the judgment of the Court of appeal in appeal No: CA/AE/47/2010, which judgment affirmed the judgment delivered
47
by Honourable Justice J.O. Adeyeye in Suit No: HCR/6/2002 to the effect that Aro family does not exist in Irorin Quarters of Ilawe Ekiti.
C. An order nullifying and setting aside the appointment of the 1st Defendant as chief Aro or Aromuagun or Amuagun of Irorin Quarters or Ilawe having been done or perpetrated by the Aro family of Irorin Quarters of Ilawe already declared not to exist by the judgment of the Court of Appeal in Appeal No: CA/AE/47/2010 delivered on 11th May, 2011.
D. An order of perpetual or permanent injunction restraining the 2nd Defendant, his agents, servants, assigns, privies and representatives from recognizing the 1st Defendant as the Aro or Aromuagun or Amuagun of Irorin Quarters of Ilawe-Ekiti or Ilawe now, forthwith and henceforth.
An order of perpetual or permanent injunction restraining the 1st defendant, his agents, servants, assigns, privies and representatives from parading himself as a member of Aro family of Irorin Quarters of Ilawe-Ekiti and Aro or Aromuagun or Amuagun or Irorin Quaters of Ilawe Ekiti now, forthwith and henceforth.
Among the terms, conditions and findings of the Court of Appeal judgment
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delivered on 11th May, 2011 are that:-
A. Irorin Quaters is a distinct and separate Quarters from Aaye Quarters Ilawe-Ekiti.
B. Aro family does not exist in Irorin Quarters Ilawe-Ekiti.
The 1st Defendant is not from Aro family in Aaye Quarters.
The Claimant protested to the 2nd Defendant and caused a letter to be written to the 2nd Defendant, when he learnt of the appointment of the 1st Defendant as the Aro/Aromuagun or Amuagun. The 2nd Defendant did nothing.
The claimant also protested to the Chieftaincy affairs office which office did nothing. The letters of protests are Exhibits HCSA4 and HCSA5 respectively.
The Appellants on this issue referred to the questions raised by the learned trial judge on page 267 of the Record of Appeal for the determination of this case at the lower Court:
1. Whether the High Court can interpret and enforce the findings, terms and conditions of the judgment of the Court of Appeal on a party and the effect thereof.
2. Whether the Claimant can successfully challenge Amuagun Minor Chieftaincy without raising a dispute, and exhausting all the statutory local remedies as provided by law.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>
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I will now examine the first question distilled by the learned trial judge.
The Exhibit HCSA, is the judgment of the High Court of Ekiti State delivered on 22/6/2008 admitted in evidence by the lower Court. Whilst Exhibit HCSA1, is the judgment of the Court of appeal Ekiti Division delivered on 11/5/11.
The 2nd Defendant, in Exhibit HCSA1 Chief Olufemi Araoye is the 1st Appellant in the present appeal.
The Defendant in Exhibit HCSA, the judgment in HCR/6/2002 is the father of the Respondent, his predecessor in title. He succeeded his father as the Ororin. In paragraph 4 of the affidavit in support of the Originating Summons the Claimant then now Respondent stated as follows:
“I am the (sic) predecessor to Chief Olawumi Obajingin the then High Chief Ororin of Irorin quarters of Ilawe, who died in 2011. Upon his death, l was appointed and installed as the Ororin of Irorin Quarters of Ilawe-Ekiti.”
From paragraph 11(a) of 2nd Appellant’s Further and Better Affidavit on page 127-134 of the record of Appeal, l gather that he is aware of Exhibits HCSA and HCSA1:
Para 11(a)
“The Alawe of Ilawe-Ekiti was
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and is aware of Exhibits HCSA and HCSA1.”
The two judgments are judgments in rem and not in personam Kekere-Ekun, JSC in the case of Akinfela Frank Cole v Mr. Adam Jibunoh & Ors 2016 LPELR 40662(SC) where his Lordship referred to the recent decision of the Supreme Court in: Oleksandr & Ors. Vs Lonestar Drilling Co. Ltd. & Anor. (2015) 4 – 5 SC (pt. 11) 1 @ 46 – 49, I had cause to examine the guiding principles for a successful plea of estoppel per rem judicatam, and the distinction between “cause of action estoppel” and “issue estoppel”. I reproduce the relevant portion hereunder:
“The principle behind the doctrine of estoppel per rem judicatam was explained by this Court in: Yusuf Vs Adegoke & Anor (2007) 11 NWLR (Pt.1045) 332 @ 361 – 362 H – A per Aderemi, JSC thus:
“It has now become well entrenched in our civil jurisprudence that once a matter has been finally and judicially pronounced upon or determined by a Court of competent jurisdiction, neither the parties thereto nor their privies can subsequently be allowed to relitigate such matter in Court. A judicial decision properly handed down is conclusive until reversed
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by a superior Court and its veracity is not open to a challenge nor can it be contradicted. The term derives its force from good public policy which says there must be an end to litigation. The maxim is interest reipublicae ut sit finis litium.”
A successful plea of estoppel per rem judicatam ousts the jurisdiction of the Court before which it is raised.
See: Igbeke Vs Okadigbo (2013) 12 NWLR (Pt.1368) 225 @ 254 D – E; Igwego Vs Ezeugo (1992) 6 NWLR (Pt.249) 561. It is pertinent to note that although issue estoppel and estoppel per rem judicatam both come under one head of estoppel by judgment, there are subtle differences between the two. The difference was clearly illustrated by this Court in: Oshodi Vs Eyifunmi (2000) 13 NWLR (Pt.684) 298 @ 326 A-D, thus:
“This type of estoppel are of two kinds. There is the cause of action estoppel which effectively precludes a party to an action of his agents or privies from disputing, as against the other party in any subsequent proceedings matters which had been adjudicated upon previously by a Court of competent jurisdiction between him and his adversary and involving the same issues.
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There is the second class of estoppel which is issue estoppel: within a cause of action, several issues may come into question which are necessary for the determination of the whole case. The rule is that once one or more of such issues have been distinctly raised in a cause of action and appropriately resolved or determined between the same parties in a Court of competent jurisdiction, as a general rule, neither party nor his servant, agent or privy is allowed to re-open or re-litigate that or those decided issues all over again in another action between the same parties or their agents or privies on the same issues.
See Lawal v. Yakubu Dawodu (1972) 1 All NLR (Pt. 2) 270 at 272; (1972) 8-9 SC 83; Olu Ezewani v. Nkali Onwordi and Ors (1986) 4 NWLR (Pt.33) 27 at 42 – 43; Samuel Fadiora and Anor v. Festus Gbadebo and Anor (1978) 3 S.C. 219 at 228 – 229 etc.”
See also: Ito Vs Ekpe (2000) 3 NWLR (Pt 650) 678.
Issue estoppel may arise where a plea of res judicata could not be established because the cause of action is not the same. See: Adedayo vs. Babalola (1995) 7 NWLR (Pt.408) 383.
The conditions precedent to a successful plea of res judicata
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were amply set out by this Court in the case of The Honda Place Ltd. Vs Globe Motors Ltd. (2005) 14 NWLR (945) 273 at 291 B – E as follows:
(a) There must be an adjudication of the issues joined by the parties.
(b) The parties or their privies as the case may be must be the same in the present case as in the previous case.
(c) The issues and subject matter must be the same in the previous case as in the present case.
(d) The adjudication on the previous case must have been by a Court of competent jurisdiction.
The previous decision must have finally decided the issue between the parties, that is the rights of the parties must have been finally determined.”
In the case of Ogboru Vs Uduaghan (2011) 17 NWLR (Pt.1277) 727 @ 764 – 765 C-A, a judgment in rem was defined thus:
“A judgment in rem is a judgment of a Court of competent jurisdiction determining the status of a person or thing as distinct from the particular interest of a party to the litigation. Apart from the application of the term to persons, it must affect the “res” in the way of condemnation, forfeiture, declaration, status or title.
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…The feature of a judgment in rem is that it binds all persons, whether party to the proceedings or not. It stops anyone from raising the Issue of the status or person or persons or things, or the rights or title to the property litigated before a competent Court. It is indeed conclusive against the entire world in whatever it settles as to status of the person or property. All persons whether party to the proceedings or not are estopped from averring that the status of persons is other than the Court has by such judgment declared or made it to be.”
See also: Okpalugo Vs Adeshoye (1996) 10 NWLR (Pt.476) 77; Fointrades Ltd. Vs Uni Association Co. Ltd. (2002) 8 NWLR (Pt.770) 669; Olaniyan V. Fatoki (2003) 13 NWLR (Pt.837) 273; Adesina Oke V. Shittu Atoloye & Ors (1986), NWLR (Pt.15) 241.
Section 287(2) of the 1999 Constitution of the Federal Republic of Nigeria provides that:
“The decision of the Court of Appeal shall be enforced in any part of the Federation by all authorities, and persons, and by Courts with subordinate jurisdiction to that of the Court of Appeal.
(3) The decision of the Federal High Court, the National Industrial Court, a High
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Court and of all other Courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons and by other Courts of Law with subordinate jurisdiction to that of the Federal High Court, Industrial Court, a High Court and those other Courts respectively.”
Evidence Act Section 60:
Section 60. (1) A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character or to be entitled to any specific thing, not as against any specified person but absolutely, is admissible when the existence of any such legal character, or the title of any such legal persons to any such thing, is relevant. (2) Such judgment, order or decree is conclusive proof-
– (a) that any legal character which it confers accrued as the time when such judgment order or decree came into operation;
– (b) that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such
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judgment, order or decree declares it to have accrued to that person;
– (c) that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease; and
– (d) that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property.
In light of the above provisions, I am in complete agreement with the Court below and learned Respondents’ counsel, that the learned trial judge was right in granting the claim of the Respondent. This issue 3 is resolved against the Appellants.
I find this appeal to be lacking in merit. I dismiss it accordingly and affirm the judgment of the lower Court in Suit No HCR/02/2017.
I award costs of N100,000.00 against the Appellants.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.
PAUL OBI ELECHI, J.C.A.: I agree.
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Appearances:
EZEKIEL AGUNBIADE ESQ., with him, CHIEF OLUBUNMI OLUGBADE ESQ. For Appellant(s)
TAIWO OGUNMOROTI ESQ., with him, TEMITOPE KOLAWOLE ESQ., AYANTUNDE ADELEKE ESQ., OLUWASEUN OYEBANJI ESQ. and OLUWASAYO FAGBOHUN ESQ. For Respondent(s)