GANIYU v. ELEWONIBI & ORS
(2022)LCN/16713(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, October 19, 2022
CA/ABJ/CV/645/2020
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
ISA GANIYU APPELANT(S)
And
1. BUSIRIYU ALIU MUSTAPHA ELEWONIBI 2. ALHAJI MUSTAPHA ELEWONIBI 3. MOHAMMED ELEGA (For Themselves And On Behalf Of Omo-Agunni Royal Family Of Odokoro- Gbede. 4. IJUMU LOCAL GOVT. TRADITIONAL COUNCIL 5. HRM OBA AYENI OLUSEGUN WILLIAMS (Chairman, Ijumu Local Govt. Traditional Council) 6. HRM OBA DAVID SUNDAY EHINDERO (The Olu Of Aiyetoro-Gbede. AG Head Of Gbede Group, Ijumu Land) 7. HON. TAOFIQ ISA 8. IJUMU LOCAL GOVT. COUNCIL RESPONDENT(S)
RATIO
WHETHER OR NOT PARTIES BEFORE THE COURT CAN ENGAGE IN MULTIPLICITY OF CASES
Under our laws, it is never tolerated for parties to engage in multiplicity of cases. The filing of two different suits on the same issue in two different Courts or divisions of the Court amounts to multiplicity of actions. The end result is to enthrone an abuse of the process of the Court. In most instances where parties are allowed to maintain and sustain multiple cases in respect of the same subject matter the risk of conflicting decisions is real. See Dingyadi & Anor v. INEC (2010) LPELR – 951 (SC). In the case of Oyeyemi & Ors. v. Owoeye &. Anor., (2017) LPELR – 41903 (SC), the Supreme Court Per Onnoghen,. JSC, (as he then was) held that abuse of process contemplates multiplicity of suits between the same parties in regard to the same subject matter and on the same issue. Let me also point out that it is not the existence of the right to institute these actions that is protested against or that is of concern rather, it is the manner of exercise of this right and the purpose of doing same that is abhorred. Abuse of process is a term applied to proceeding which has a tinge of malice and lacking in bona fide. See Abubakar v. Bebeji Oil & Allied Product Ltd & Ors., (2007) LPELR-55 (SC). PER ADAH, J.C.A
BATURE ISAH GAFAR J.C.A. (Delivering the Leading Judgment): This Appeal emanated from the Judgment of the High Court of Kogi State delivered on the 29th of May 2020 coram Obayomi, J. in Suit no. KGS/EHC/02/2018 in which the trial Court granted the Reliefs sought by the 1st to 3rd Respondents, upheld their claim to the traditional stool of Oba/Olu of Odokoro-Gbede and further also dismissed the Appellant’s Counterclaim in the Suit.
As deducible from the Record of Appeal, the 1st – 3rd Respondents by their Amended Statement of Claim sought from the trial Court several declaratory and injunctive Orders against the Appellant and the 4th to 8th Respondents which altogether were for an Order recognizing and upholding the 1st Respondent as the authentic nominee of the Omo-Agunno royal family for the vacant stool of Oba Odokoro-Gbede and for that purpose a declaration that ascension to the said throne is regulated by the customs and traditions of the Odokoro-Gbede as well as the Kogi State Circular No. GO/LGCA/CHI/S/13/83 of 29th of April 1992. The Appellant too Counterclaimed seeking in the main that the nomination of the 1st Respondent was invalid. It is noteworthy that both the Appellant, 1st to 3rd and 7th Respondents are members of the same family.
At the hearing, the 1st to 3rd Respondents called two witnesses; while the Appellant and the 4th to 8th Respondents called three witnesses. Several documents were tendered in evidence. At the end of it all, the trial Court in its considered Judgment found for and granted the Reliefs sought by the 1st to 3rd Respondents and also dismissed the Appellant’s Counterclaim.
The Appellant was peeved by the decisions of the trial Court and thus approached this Court vide his Notice of Appeal filed on the 30th of June 2020 which was however by leave of this Court amended later on the 15th of March 2022 in which the Appellant complained against the Judgment of the lower Court on eleven Grounds thus:
“GROUND ONE
The Learned Trial Judge erred in law when he relied on Kogi State Government Circular No. GO/LGCA/CH1/S13/83 of 29th April 1992 to determine a minor Chieftaincy stool which is regulated strictly by Custom and tradition.
GROUND TWO
The Learned trial Judge erred in law when he held that the Claimants have substantially proved their case and are accordingly entitled to the grant of the reliefs sought.
GROUND THREE
The Learned trial Judge erred when he held that the nomination of the 1st Claimant by his Omo Agunni family is still valid as is waiting for proper processing and screening in strict compliance with the custom and tradition of Odokoro Gbede and the provision of Kogi State Government Circular of 1992.
GROUND FOUR
The Learned Trial Judge erred when he held that the nomination, selection and appointment of the 4th Defendant is improper and cannot stand as same did not strictly follow the custom and tradition of Odokoro Gbede and Kogi State Government Circular 1992.
GROUND FIVE
The learned trial judge erred in law when without considering and properly evaluating the facts before the Court made declaration of the customary law and procedure relating to the nomination, selection and appointment of the Oba/Olu of Odokoro-Gbede.
GROUND SIX
The learned trial judge erred in law and this occasioned miscarriage of justice on the part of the Appellant when he approbated in his judgment on page 137 lines 29- 32 that:
“The 2nd Claimant bypassed the customary protocol by directly sending the name of the 1st claimant (his son) to the 3rd defendant for consideration. It is my considered view that this first error of the 2nd claimant has fundamentally affected the validity of the nomination of the 1st claimant. Therefore, the 1st claimant cannot be said to have properly and successfully passed through this stage or step”,
and then later reprobated on Page 138 lines 23-29 of the judgment that,
“In a nutshell, it is my considered view that the processing of the nomination of the 1st claimant after his family nomination did not follow the proper customary procedure and not also in line with the provisions of the Kogi State Government Circular 1992. The consequence is that he is the authentic nominee of his omo agunni family awaiting to follow due procedures to the point of final appointment by the 6th defendant and I so hold”.
GROUND SEVEN
The learned trial judge misdirected himself in Jaw when he held on Page 138 lines 30 – 31 and Page 13 9 lines 1-2 that, ”It is clear from the evidence of the Claimant’s witnesses that they were not aware of the Kogi State Government Circular, 1992 guiding the processes as such, it cannot be said that the processing of the Claimant’s nomination was guided by the said circular and I, so hold”
GROUND EIGHT
The learned trial judge erred in law when he held on Page 146 lines 17 – 28 of the Judgment that, “Secondly, it was the evidence of the claimants that screening and selection of candidates to the stool of Oba/Olu of Odokoro-Gbede has never been through video recording and circulation of forms by chiefs; stressing that such practice are not part of the customs and tradition of Odokoro-Gbede. The defendants though canvassed that new innovation could be introduced to determine the suitability of candidates but did not adduce any evidence to show determine the suitability of canvassed that new innovation could be introduced to determined the suitability of candidates but did not adduce any evidence to show that the act of video recording, public screening and the use of forms are part of the customs and tradition of Odororo Gbede in the selection of their Oba/Olu. There is also no provision in the Kogi State Circular allowing such practice
GROUND NINE
The Learned Trial Judge erred in law and approbated and reprobated which thereby occasioned a miscarriage of justice when he held at page 133, paragraph 4 lines 3-6 of the judgment thus: ”It is clear that both the Claimant and Defendants did not plead and prove the procedures for the ascension but relied on procedures canvassed in Suit No. KGS/KHC/22/10” and at page 137, paragraph 1 lines 2 – 7 the judgment held thus: ”A critical look at the issues shows that being an issue of customary law, the parties ought to have pleaded and prove same by evidence except it has been judicially noticed by the Court. It is obvious that Olorunfemi in Case No. KGS/KHC/22/10 did not make specific findings or pronouncement on the customary procedure relating to the ascension to the stool of Olu of Odokoro Gbede”, and at page 141 of the judgment the Judge listed the procedure to be followed at the community level in the nomination of Olu/Oba of Odokoro Gbede and granted the reliefs of the 1st to 3rd Respondents.
GROUND TEN
The judgment of the trial Court is unreasonable, perverse and against the weight of evidence before it and the established principles of law and therefore cannot be supported.
GROUND ELEVEN
Further grounds of Appeal would be filed on the receipts of the official Record of Proceedings.”
In the Appellant’s Brief of Argument settled by his learned counsel Adeolu Salako Esq, three Issues for determination are formulated; on:
“1. Whether the learned trial judge was right to suo motu declare customs and traditions regulating ascension to the throne of Olu of Odokoro-Gbede to grant the 1st – 3rd Respondent’s claims after holding that the customs and traditions of the Odokoro- Gbede people for ascension to the throne of Olu was not pleaded or proved by the parties nor were they judicially noticed? (distilled from grounds 3 and 8).
2. Having regards to the evidence of both parties, whether the 1st respondent was nominated and selected according to the Kogi State Circular 1992 which provides a detailed procedure for ascension; if answered in the negative, was the Appellant’s nomination and selection according to the Kogi State Circular 1992? (distilled from grounds 1, 5, 6, 7, and 9).
3. From the totality of evidence placed before the Court, whether the 1st – 3rd Respondents have substantially proved their case that the 1st respondent is the authentic nominee of the Omo Agunni family? (distilled from grounds 2, 4, 10, 11, 12,13,14).”
For the 1st to 3rd Respondents, their learned counsel Funsho Agbanah Esq. adopted and argued these Issues too in their Brief of Argument.
As I pondered over the Appellant’s Grounds of Appeal (supra) and the entire respective arguments for both sides under the three Issues for determination, begun forming views on the Issues, something struck me as a red alarm. I restudied the entire processes in this Appeal, including the Record of Appeal in search of the red alarm that appears to overshadow my focus on the core disputes between the parties in this Appeal. I finally found the red alarm in the pleadings of the 1st to 3rd Respondents then as Claimants in the Suit No. KGS/EHC/02/2018 that gave rise to the present Appeal. In their Amended Statement of Claim now found at pages 424 to 236 of the Record, the Respondents had claimed interalia as follows:
“5. The claimants state that since the stool of Oba of Odokoro-Gbede became vacant in 2002, the attempts at filling the vacant stool had been the subject to two notable judicial proceedings at the Kogi State High Court of Justice. The first being Suit No. KGS/KHC/22/2010 decided on May, 13 2014 and the second being Suit No: KGS/KHC/16/2016 decided on May 2, 2017.
The Judgments of the two suits are hereby pleaded and will be founded upon at the hearing of this suit.
6. The claimants state that in the latest judgment on the matter of succession to the said Oba stool o£ Odokoro-Gbede, delivered by the Kogi State High Court of Justice, sitting at Kabba, in Suit No. KGS/KHC/16/2016, delivered on the 2nd day of May, 2017, the said High Court held as follows:
a) It is declared that 1st claimant (referring to Busiriyu Aliu Mustapha Elewonibi is the authentic nominee of Omo – Aguni Royal Family for the vacant stool of Oba of Odokoro- Gbede, having been duly nominated by the said Royal Family and by the resolution o£ the ruling families in Odo group passed at a meeting held on 30/3/2011.
b) At page 23, lines 15 -17, the Honourable Court held that by his nomination, the 1st claimant (referring to Mall, Busiriyi Aliu Elewonibi), has acquired a vested right to the stool in dispute and that the family must first set aside that nomination for good reasons before embarking on a fresh one.”
“24. The claimants aver that the introduction of foreign and untraditional practices to the procedure of getting the 1st claimant the clear judgment of the High Court of Justice in the Suit No. KGS/KHC/16/2016, delivered on the 2nd day of May, 2017
26. That in total disregard to the judgment in Suit No. KGS/KHC/16/2O16 delivered by the Kogi State High Court of Justice, the defendants have now by a letter dated 9th April, reappointed or re-instated and/or restored Isa Ganiyu (4th defendant herein) to the position of Olu of Odokoro-Gbede.”
The 1st to 3rd Respondents pleaded further in paragraphs 28 to 29 that:
“28. The claimants aver that the said Isa Ganiyu has been removed as Olu of Odokoro-Gbede in a judgment delivered on May 2nd, 2017 in Suit No, KGS/KHC/16/2016.
29. The claimants aver that Isa Ganiyu felt not satisfied by the said judgment and appealed to the Court of Appeal, Abuja, vide a notice of appeal filed on 30th May, 2017. The Notice of Appeal is hereby pleaded.”
Several other allied pleadings abound in the Amended Statement of Claim.
Specifically, the Appeal referred by the 1st to 3rd Respondents in paragraph 29 of their Amended Statement of Claim (supra) is, as I later searched and found from the records in this Court, Appeal No. CA/ABJ/CV/680/2020 between exactly the same parties and on exactly the same subject matter; although while that Appeal traced its root to Suit No. KGS/KHC/16/2016, the present Appeal is traceable to Suit No. KGS/EHC/02/2018 which was clearly an off- shoot of the earlier suit; which as I mentioned is the subject of Appeal No. CA/ABJ/CV/680/2020. In other words, this Appeal is an offshoot of the said earlier Appeal. Let me emphasize that the parties and the subject matter in both Appeals are exactly the same. In the Judgment in the earlier Appeal No. CA/ABJ/CV/680/2020, this Court held and ordered thus:
“The Judgment of the lower Court delivered on 2nd May 2017 is hereby set aside. The case is hereby remitted to the lower Court for retrial on pleadings to be filed and exchanged by the parties. The Chief Judge of the High Court of Kogi State is to assign the matter to another Judge, not being Ahogu, J., for expeditious conduct of the trial.”
It is noteworthy that the said Judgment in Appeal No. CA/ABJ/CV/680/2020 was delivered very recently on the 25th of May 2022.
In effect, since the very foundation of the present Appeal is based on the 1st to 3rd Respondents’ Suit before the lower Court which as I explained earlier is itself an off-shoot of an earlier Suit No. KGS/KHC/16/2016 from which the earlier Appeal No. CA/ABJ/CV/680/2020 arose, and upon which this Court ordered for a retrial, the present Appeal automatically now has no legs to stand on. The present Appeal collapsed by the Order of retrial of Suit No KGS/KHC/16/2016 on which the present appeal ultimately rests, albeit through the latter related Suit No KGS/EHC/02/2018. There is nothing live to determine in the present Appeal because to do so will amount to a reversal of the clear Order made by this Court in Appeal No. CA/ABJ/CV/680/2020 (supra). As it presently stands, this Appeal is liable to be and is accordingly struck out.
I make no Order on costs.
STEPHEN JONAH ADAH, J.C.A.: I was availed a draft copy of the Judgment just delivered by my learned brother, Isa Bature Gafai, JCA.
I am in agreement with the reasoning and the conclusion that this appeal be struck out.
This appeal is against the decision of the Kogi State High Court, delivered on 29/05/2020, in Suit No: KGS/EHC/02/2018, delivered by Obayomi, J. The matter is in respect of the traditional stool of Oba/Olu of Odokoro-Gbede in Kogi State. This traditional stool had been the subject of Suit No: KGS/KHC/16/2016, and the present Suit No: KGS/EHC/02/2018, which originated from the same High Court of Kogi State.
Under our laws, it is never tolerated for parties to engage in multiplicity of cases. The filing of two different suits on the same issue in two different Courts or divisions of the Court amounts to multiplicity of actions. The end result is to enthrone an abuse of the process of the Court. In most instances where parties are allowed to maintain and sustain multiple cases in respect of the same subject matter the risk of conflicting decisions is real. See Dingyadi & Anor v. INEC (2010) LPELR – 951 (SC). In the case of Oyeyemi & Ors. v. Owoeye &. Anor., (2017) LPELR – 41903 (SC), the Supreme Court Per Onnoghen,. JSC, (as he then was) held that abuse of process contemplates multiplicity of suits between the same parties in regard to the same subject matter and on the same issue. Let me also point out that it is not the existence of the right to institute these actions that is protested against or that is of concern rather, it is the manner of exercise of this right and the purpose of doing same that is abhorred. Abuse of process is a term applied to proceeding which has a tinge of malice and lacking in bona fide. See Abubakar v. Bebeji Oil & Allied Product Ltd & Ors., (2007) LPELR-55 (SC).
The instant appeal is from the decision of the lower Court in the case filed by the 1st to 3rd Respondents registered as Suit No: KGS/EHC/02/2018. There was an earlier case filed by the parties in Suit No: KGS/KHC/16/2016. From the record before this Court, the two cases have been pleaded. In the Case No: KGS/KHC/16/2016, delivered by the High Court on 02/05/2017, the trial Court ordered as follows:
a). It is declared that 1st claimant (referring to Busiriyu Aliu Mustapha Elewonibi (now 1st. Respondent) is the authentic nominee of, Omo-Aguni Royal Family for the vacant stool of Oba of Odokoro-Gbe, having been duly nominated by the said Royal family and by the resolution of the ruling families in Odo group passed at a meeting held on 30/03/2011.
b). That by his nomination, the 1st claimant (referring to Mall Busiriyu Aliu Eiewonibi), (now 1st Respondent) has acquired a vested right to the stool in dispute and that the family must first set aside that nomination for good reasons before embarking on a fresh one”.
The decision was on 02/05/2017.
Similarly, in the Case No: KGS/KHC/22/2010, delivered on 13/05/2016, the trial Court made a prominent order as follows:
Since the 3rd defendant has been nominated by his family; Omo Agunni Ruling Family of Odo group according to the custom and tradition to replace Late Isiaka Aliu Eiewonibi, whose name was earlier forwarded by the 1st defendant to the 2nd defendant for recognition and issuance of letter of appointment, the 2nd defendant is to take necessary steps under the Kogi State- Circular No: GO/LGCA/CH1/S.13/83 of 1992 on Appointment of Ward/Village/District Heads, Gagos and Ba’als by forwarding the name of the 3rd defendant to the 2nd defendant. The 3rd defendant in turn is to comply with paragraph 5 of the said circular or any other necessary steps under the same circular to ensure the recognition and issuance of letter of appointment to the 3rd defendant as Oba of Odokoro- Gbedde.
The copies of the judgment in the two earlier cases in respect of the instant claim are before the Court in the instant case.
One of those cases which was Case No: KGS/KHC/16/2016, came on appeal before this Court. The Appeal No: CA/ABJ/CV/680/2020, was determined on 25/05/2022 and the order was for the case to be remitted to the lower Court for retrial before another judge of the Court. This means that the extant cause of action in this matter is now properly before the trial Court. The instant case is therefore, truly spent and apart from it being abuse of the process of Court, it will now be an academic exercise to look into the case. The Court has no business engaging in academic issues because, academic issues are not to be dealt with by the Court. See – K.R.K. Holdings (Nig. Ltd) v. FBN & Anor (2017) 3 NWLR (Pt. 1552) 326, Efet v. INEC & Ors., (2011) LPELR-8109 (SC). It is for this and the fuller reasons advanced by my learned brother in the lead Judgment that I also order that this lifeless appeal be and it is accordingly struck out.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been afforded in advance copy of the leading judgment just delivered by Lord, ISAH BATURE GAFAI, JCA, I have taken time to read through the Record of Appeal. I have also reviewed the submissions made in the appellate briefs and the issues canvassed therein. I agree completely with the consideration, reasoning and resolution of the issues in the lead judgment, which I hereby adopt as mine. I have nothing more useful to add.
Appearances:
ADEOLA SALAKO, with him, CHIEMEKA ECHEOZE. For Appellant(s)
FUNSHO AGBANAH for 1st to 3rd Respondents. For Respondent(s)
