ELDER BEN BASUO & ORS v. ELDER MAXWELL DANIEL OTOKOLO & ANOR
(2019)LCN/12790(CA)
In The Court of Appeal of Nigeria
On Monday, the 4th day of March, 2019
CA/PH/554/2016
RATIO
INTERPRETATION: TRIAL DE NOVO
“Now trial denovo, according to Black’s Law Dictionary seventh edition page 1512 means a new trial in the entire case on both questions of fact and issues of law conducted as if there had been no trial in the first instance. It is the law that the consequence of an order of trial denovo is that the whole case should be tried anew as if no trial whatsoever had been had before. See BABATUNDE VS P.A.S. & T.A. LTD (2007) 13 NWLR (PT. 1050) 113. In trial denovo, the whole case is to be proved anew and the findings in the previous or first trial must be discarded while the new trial Judge is entitled to look at the pleadings in the matter so as to ascertain the issues joined by the parties in the case before him. See FADIORA VS GBADEBO (1978) ALL NLR 42.” PER ISAIAH OLUFEMI AKEJU, J.C.A.
JURISDICTION: WHETHER A COURT IS COMPETENT
“It is the law that Court is competent and can exercise jurisdiction over a particular cause or matter when that Court is properly constituted as regards qualification of members of the bench and no members is disqualified for one reason or another, and the subject matter of the case is within its jurisdiction and there is no feature in the case that prevent the Court from exercising its jurisdiction and the case comes before the court by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See MADUKOLU VS. NKEMDILIM (1962) ALL NLR 587; A.G. ANAMBRA STATE VS. A.G. FEDERATION (1993) 6 NWLR (PT. 302) 692; UMANAH VS. ATTAH (2006) 17 NWLR (PT. 1009) 503.” PER ISAIAH OLUFEMI AKEJU, J.C.A.
JUSTICES
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria
Between
1. ELDER BEN BASUO
2. CHIEF KUROEKHGHA FEBO
3. CHIEF ALAMINU BARATUAPRE
4. CHIEF A.S. KIERAMA SENEGHA
5. CAPT. E.K. GEORGE
(Suing in their capacity as head and members and representatives of the Omo family of Okpoama in the Brass Local Government Area of Bayelsa State.) Appellant(s)
AND
1. ELDER MAXWELL DANIEL OTOKOLO
2. HON. REV. WILLIE DANIEL OTOKOLO
(Suing for themselves and on behalf of some of the Children of late Chief Daniel Deo Otokolo, Tiebo III of Peremabiri Town and Okpoama Town in Bayelsa State.) Respondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the decision of the High Court of Bayelsa State given on 10/10/16 in suit No YHC/148/2015 which the Respondents as the claimants commenced through the Writ of Summons filed on 25/8/15 against the Appellants as the Defendants claiming two declaratory reliefs and an order of Perpetual Injunction. The Reliefs are as follows:
1. A declaration that the surreptitious and unilateral action of the Defendants in taking possession and custody of the earthly remains of late HRH Chief Daniel Deo Otokolo Tiebo III of Peremabiri Town in the Southern Ijaw Local Government Area of Bayelsa State without recourse to the claimants who are the children and surviours of the late HRH Chief Daniel Deo Otokolo Tiebo III of Peremabiri Town on 18th February 2015 under the guise of any customary practice in Okpoama and the Defendants continued denial of the claimants to the corpse of their late father is unlawful.
2. A Declaration that the rule of any customary law in Okpoama in the Brass Local Government Area of Bayelsa State which entitled (and still entitles) the Defendants to take hold of the corpse of the late HRH Chief Daniel Deo Otokolo Tiebo III of Peremabiri Town and exclusively superintend the burial arrangements on account of the deceased?s grandmother’s roots/origins to Okpoama is a custom that is repugnant to natural justice, equity and good conscience.
3. An Order of perpetual injunction restraining the Defendants, servants, assigns privies or any person acting through or for them from in any way interfering with the burial arrangement of the late HRH Chief Daniel Deo Otokolo Tiebo III of Peremabiri Town as conceived by the claimants on record. They also claim the cost of the action.
The statement of claim was filed with the writ of summons and the defendants also filed statement of defence. Claimants filed a motion exparte for leave of Court to serve the processes in the suit on the 2nd, 3rd, 4th and 5th defendants through the 1st defendant as well as for orders restraining the defendants from continuing with taking any step as concerns the burial arrangements and interment of the earthly remains of the late HRH Chief Daniel Deo Otokolo Tiebo III of Peremabiri Town in Okpoama town as well as mandatory injunction compelling the defendants to produce and release the earthly remains the late HRH Chief Daniel Deo Otokolo Tiebo III of Peremabiri Town in their possession and control since 18th February, 2015 for safe keeping and proper supervision and preservation.
The prayers were granted as prayed by the claimants/Applicants. The claimants’ prayer for interlocutory injunction in the motion on notice also filed on 25/8/15 was granted and the defendants were restrained from continuing with taking any steps concerning the burial arrangement of HRH Chief Daniel Deo Otokolo Tiebo III of Peremabiri Town, order directing the defendants to produce and release the earthly remains of late HRH Chief Daniel Deo Otokolo Tiebo III of Peremabiri Town and deposit same at the mortuary of Federal Medical Centre, Yenagoa for both parties to have access and care for same.
Following the transfer of the matter to another judge of the same High Court of Bayelsa State and to show their grievances with the orders of the previous Judge, the Defendants filed a preliminary objection on 21st June, 2016 for order of Court declining jurisdiction to hear the suit on the basis that the action is a customary matter in which the High Court does not have original jurisdiction, and the subject – matter of the suit is the burial of HRH Chief Daniel Deo Otokolo whose remains was deposited at the mortuary at Okpoama Kingdom within Brass Judicial Division and not Yenagoa. Other grounds for the objection are that the parties are not within Yenagoa Judicial Division and by Order 2 Rule 4 (1) of High Court (Civil Procedure Rules) of Bayelsa State, suits are usually filed in the Judicial Division of the Defendant.
The parties filed their respective affidavit and counter affidavit as well as counsel addresses, and after hearing the parties the lower Court dismissed the preliminary objection following which the defendants filed their Notice of Appeal on 14th October, 2016 with two grounds of appeal, and in the Appellant?s Brief of Argument prepared by Ebipekeye Sese Esq. of counsel and filed on 6th December, 2016, the following two issues were distilled for determination;
1. Whether the learned trial Judge did not err in law when he had held that a denovo trial does not retain any order from the previous Court but went ahead and conserved the order without allowing the Exparte Motion in the matter to be moved.
2. Whether it is not the cause of action of the plaintiff that determines the jurisdiction of a Court.
The Respondent did not file Brief and the two issues of appellant are adopted.
It was contended on the first issue that the order of the lower Court made subsequent to the transfer of the case to the learned trial judge as a preservative order to preserve the res was made without any party applying therefor but was made by the learned trial judge applying the doctrine of lis pendens which means a pending action or suit or a controversy in court particularly in relation to the subject matter of a property; E.F.P. CO. LTD VS N.D.I.C (2007) 9 NWLR (PT. 1039) 216; BUA VS DAUDA (2003) 13 NWLR )PT. 838) 657.
It was contended that the burial of a deceased person does not warrant the doctrine of lis pendens especially as all the parties know that the deceased was in a private mogue. On what denovo trial entails the learned counsel cited the case of NGIGE VS OBI (2012) ALL FWLR (PT. 616) 592 to submit that it is a new hearing or a hearing for the second time contemplating an ealire trial in the same manner in which the matter was originally heard.
It was contended that the learned trial judge descended into the arena of the litigation and allowed the motions carried from previous motions because the motions carried from the previous Court had not been moved and an appeal was pending before the matter was transferred to the Court, but the learned Judge took up the case of the Respondents.
Now trial denovo, according to Black’s Law Dictionary seventh edition page 1512 means a new trial in the entire case on both questions of fact and issues of law conducted as if there had been no trial in the first instance.
It is the law that the consequence of an order of trial denovo is that the whole case should be tried anew as if no trial whatsoever had been had before. See BABATUNDE VS P.A.S. & T.A. LTD (2007) 13 NWLR (PT. 1050) 113. In trial denovo, the whole case is to be proved anew and the findings in the previous or first trial must be discarded while the new trial Judge is entitled to look at the pleadings in the matter so as to ascertain the issues joined by the parties in the case before him. See FADIORA VS GBADEBO (1978) ALL NLR 42.
Let me state emphatically that the contention of the Appellant on this issue substantially relate to the Ruling of the lower Court delivered on 14th June, 2016 and not part of the Ruling of 10/10/16 subject of this appeal.
However in line with the definition of a trial de novo and its consequences as stated in this judgment, the old things in the case had passed away and everything had become new by which the new trial Judge does not carry the old findings or orders of the previous decision.
I am satisfied that the learned trial judge sufficiently showed consciousness of this principle when he did not merely adopt the ruling made on 14/6/16 in the Ruling of 10/10/16 but reinstated same by saying at page 260 of the Record of Appeal that, I hereby restate the said orders and also make an order dismissing the preliminary objection of the defendants herein
I find no substance in this issue and it is resolved against the Appellant.
On the second issue, the learned counsel for Appellants contended that a cause of action is the entire set of circumstances giving rise to an enforceable claim, and the fact or combination of facts that give rise to a right to sue; ADESOKAN VS ADEGOROLU (1997) 3 NWLR (PT. 504) 237; AJAYI VS MIL ADMI ONDO STATE (1997) 5 NWLR (PT. 504) 237; MESSRS NV SCHEEP VS THE M.V.S. ARAZ (2000) 12 SC (PT.1) 164.
The learned counsel contended that from the reliefs sought in the claimants claim it is clear that what is at stake is the customary right of burial of the Chief Okpoama Kindgom of Nembe viz aviz that of the Peremabiri people of Southern Ijaw, and it is the Customary Court of Bayelsa State that has the original jurisdiction to hear the matter by virtue of Section 6 of the Customary Laws of Bayelsa State. It was contended that Section 282 of the Constitution of the Federal Republic of Nigeria 1999 recognises the Customary Court of Appeal of a State and in a state that has Customary Court of Appeal, actions relating to the Customs and traditions must be commenced from the customary court and the High Court does not have original jurisdiction;CCA; EDO STATE VS AGUELE (2006) 12 NWLR (PT. 995) 545; HIRNOR VS YONGO (2003) 9 NWLR (PT. 824) 77; KODEN VS SHIDON (1988) 10 NWLR (PT. 662) 675.
It was contended that as envisaged by the Constitution, the High Court of a State cannot exercise original jurisdiction in matters involving Customary law. It was argued that Customary Court Law of Bayelsa State has provided in Section 6 for the issues of custom that the customary Court can adjudicate upon which include who should bury a deceased family member. It was argued that the Statement of Defence in paragraph 4 as well as the endorsement on the Writ of Summons have made it clear that the jurisdiction of the High Court has been removed from entertaining the issues that involve Customary Law;ALHAJA KARIMU ADISA VS EMMANUEL OYINWOLA (2000) FLWR (PT. 8) 1349. The learned counsel submitted that a Court cannot expand its own jurisdiction but can expound it and cannot give jurisdiction to itself; DANGANA VS USMAN (2012) 2 SC (PT. 111) 103; BRAITHWAITE VS SKYE BANK PLC (2012) 12 SC (PT.1) 1; AMALE VS SOKOTO LOCAL GOVERNMENT (2012) 1 SC (PT. 4) 45.
The learned counsel contended that the cause of action in this suit is the removal of the remains of Chief Daniel Deo Otokolo Tiebo III deposed by the Peremabiri people in 1978 and who returned to his maternal people since 1978 and lived at Okpoama in Brass Local Government Area whose remains now lie at Okpoama in Brass Local government Area for burial and the High Court designated Court II in Yenagoa now trying this matter has no jurisdiction to entertain the action.
It was further contended that the present action of the Respondents run foul of the decision in the case of IYANDA VS LANIBA II (2003) 8 NWLR (PT. 801) 267 on the matter of territorial jurisdiction. On when the Court is competent, the learned counsel cited the case of MADUKOLU VS NKEMDILIM (2006) 2 LC 208.
The learned counsel argued that the subject matter of this case is the right to bury a relation under the custom of either Okpoama Kingdom or Peremabiri Kingdom which rights are governed by the customs or traditions of the two different persons. The case of OKULATE VS AWOSANYA (2002) 2 NWLR (PT. 246) 530; and IWARIMIE VS IWARIMIE (1974) 2 R.S.L.R. 89 were cited on the meaning of family and it was contended that the burial of late HRH Chief Daniel Deo Otokolo Tiebo III is the collective responsibility of the Appellants and Respondents but to be done in the ancestral home of the deceased which custom is not repugnant to natural justice equity and good conscience.
It was argued that the cause of action in this suit as garnered from the pleadings is the customary rites of both the Appellants and Respondents as it affects the right to be buried either by your father?s people or your mother people and not necessarily by some of the children. The clear contention of learned counsel is that it is the High Court in Brass that can validly exercise jurisdiction over this matter as provided by the Rules of Bayelsa State High Court; WAYEP VS WAYEP (1977) 10 NWLR (PT. 523) 55.
On the meaning of jurisdiction of a Court and the effect of jurisdiction, the learned counsel cited the case of NUCHEYU VS MILITARY ADMINISTRATOR IMO STATE (1997) I NWLR (PT. 482) 432 to submit that it is the power of the Court to decide a matter in controversy.
It was held in the case of UTIH VS. ONOYIVWE (1991) 1 SCNJ 25 that jurisdiction is blood that gives life to the survival of an action in a Court and without jurisdiction the action will be like an animal that has been drained of its blood which will cease to have life. It is for this reason of its importance that the issue of jurisdiction can be raised at any stage of the proceedings. See PETROJESSICA ENTERPRISES LTD VS. LEVENTIS TECHNICAL COMPANY LTD (1992) LPLER 2915 (SC); ADEGOKE VS. ADIBI (1992) 5 NWLR (PT. 242) 410; OLUTOLA VS UNILORIN (2004) 18 NWLR (PT. 905) 416.
It is the law that Court is competent and can exercise jurisdiction over a particular cause or matter when that Court is properly constituted as regards qualification of members of the bench and no members is disqualified for one reason or another, and the subject matter of the case is within its jurisdiction and there is no feature in the case that prevent the Court from exercising its jurisdiction and the case comes before the court by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See MADUKOLU VS. NKEMDILIM (1962) ALL NLR 587; A.G. ANAMBRA STATE VS. A.G. FEDERATION (1993) 6 NWLR (PT. 302) 692; UMANAH VS. ATTAH (2006) 17 NWLR (PT. 1009) 503.
It is obvious from the record that the action of the Claimants relate to the taking away of the deceased HRH Chief Daniel Deo Otokolo Tiebo III, and not question of customary law of marriage, or inheritance or. This was eloquently stated by the learned trial Judge at page 356 of the record of appeal that ?In essence, the cause of action is the propriety of the taking away of the deceased from Port Harcourt to Okpoama whereas he was said to have opted for burial at Perembiri and had been ruler thereof.
Now it is quite true that Order 2 of the Bayelsa State High Court (Civil Procedure) Rules provides for place of instituting and trials of suits, the effect of non compliance with that Order or failure to comply therewith state in Order 5 of the same Rules is that such failure may be regarded as an irregularity neither will it negate the power of the Chief Judge to transfer a matter from one Court to another since by Section 270 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) there is only one High Court for Bayelsa State.
Based on the foregoing, I do not find any substance in this issue and I resolve same against the Appellants.
Consequently the appeal lacks merit and it is accordingly dismissed.
No order as to costs.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the opportunity to read the draft judgment delivered by my learned brother, Isaiah Olufemi Akeju, JCA, and I am fully in agreement with his reasoning and conclusion that this appeal for lacking merit should be dismissed and it is hereby dismissed by me
I make no order as to costs.
ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the priviledge of reading in advance a draft copy of the judgment just read by my learned brother I.O. AKEJU, JCA. I entirely agree with the reasoning and conclusion and I too dismiss this appeal as lacking in merit. I abide by all the consequential orders.
Appearances:
I.H. OsakweFor Appellant(s)
For Respondent(s)
Appearances:
I.H. Osakwe For Appellant(s)
For Respondent(s)
