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IBIYEMI v. OKUNADE & ORS (2022)

IBIYEMI v. OKUNADE & ORS

(2022)LCN/16818(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Friday, January 21, 2022

CA/AK/134/2014

Before Our Lordships:

Rita Nosakhare Pemu Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Yusuf Alhaji Bashir Justice of the Court of Appeal

Between

ALHAJI LASISI IBIYEMI APPELANT(S)

And

1. HRM OBA JIMOH ADEBISI OKUNADE (KAYODE II) OLOBAAGUN OF OBAAGUN 2. ALHAJI ABBAS SHITU 3. ALFA LAWAL OLAYINKA 4. ALFA JIMOH RERINAYO 5. ALFA KAMORUDEEN SANUSI 6. CHIEF JIMOH OLORA 7. ALHAJI LASISI ORELOPE 8. ALFA MUYIDEEN ORELOPE RESPONDENT(S)

 

RATIO

FACTOR TO BE CONSIDERED WHETHER A COURT HAS JURISDICTION TO ENTERTAIN A MATTER OR NOT

​In considering whether a Court has jurisdiction to entertain a matter or not, the Court is guided by the claim before it by critically looking at the Writ of Summons and the Statement of Claim. See Gafar V. Govt. Kwara State (2007) 4 NWLR (Pt. 1024) 375 SC and Tukur V. Govt of Gongola State (1989) 4 NWLR (Pt. 117) 517) 517 SC. PER BASHIR, J.C.A.

WHETHER OR NOT THE POWER OF A COURT CAN BE VITIATED BECAUSE THE MATTER CONCERNS PARTIES WHO ARE MUSLIMS

Section 272(1) of the 1999 Constitution of the F.R.N. has conferred on the State High Court a very wide and often described as unlimited jurisdiction subject only to Section 251 and other provisions of the Constitution itself, apart from the items listed under Section 277(2) of the Constitution other items not mentioned therein are not matters of Islamic Personal Law, the High Court is quite empowered to entertain all matters concerning such questions except where the parties on their own requested the Court that hears the case in the first instance to determine that case in accordance with Islamic personal law. See Section 277(2)(e). Then Islamic personal law will apply.
In all other matters however, the jurisdiction of the State High Court remains extant. BELGORE JSC IN ABULSALAM V. SALAWU held that:
“The power of a Court cannot be vitiated merely because the matter concerns parties who are Muslims or a case is of Muslim law in so far as the matter is not of Islamic personal law.”
The issue being contested in this case though between Muslims and on Islamic Issue but because it is not on Islamic personal law the jurisdiction the of High Court to hear and determine the claim is not adversely affected. I therefore hold that the High Court of Osun State was rightly constituted to hear and determine the issues in this case.
PER BASHIR, J.C.A.

WHETHER OR NOT IT IS THE PLAINTIFF’S CASE THAT DETERMINES THE JURISDICTION OF THE COURT T0 ENTERTAIN THE MATTER

It is indeed a commendable practice for a Court to seek the opinion of experts on recondite questions especially on Sharia or Customary law but at the end of the day it is the Judge concerned who will make the final decision. Infact on issues of jurisdiction, it is the law establishing the Court and the claim of the parties that determines whether or not the Court has the jurisdiction to hear and determine the matter or not. GARBA V. MOHAMMED (2016) LPELR-40612 (SC).

With respect to the orders issued by the Court which is called “Ancillary Orders”, from the ruling of the Court at page 506 of the record of Appeal it is clear that the learned trial Judge had declined jurisdiction, it is also clear that the Court did not hear any evidence meaning it did not hear the case on the merit. Under the law, whenever a Court decides that it lacks the jurisdiction to entertain a suit, the proper order it should make is one of striking out the matter. See OKOLO V. U.B.N LTD. (2004) 3 NWLR (PT. 859) 87 SC and REPUBLIC BANK LTD. v. C.B.N. (1998) 13 NWLR (PT. 581) 306.

Whenever a Court concludes or finds that it has no jurisdiction invariably it ceases to have the power to make any other order apart from the order striking out the action, proceeding to make other declaration especially where the case was not heard on the merit, such orders are void. LAKANMI V. ADENE (2003) 10 NWLR (PT. 828) 353 and AJAO V. ALAO (1986) 5 NWLR (PT. 45) 805. PER BASHIR, J.C.A.

THE ESSENCE OF AN “ESTOPPEL”

Generally, estoppel means a bar that prevents one from asserting a claim that contradicts what one has said or done before or what has been legally established as true, it serves as a bar that prevents the re-litigation of issues. See Tukur V. UBA & Ors (2012) LPELR 9337 SC. None of this has arisen in this case. No estoppel is available therefore. PER BASHIR, J.C.A.

THE POSITION OF LAW ON “CONSEQUENTIAL ORDERS”

A consequential order is an order founded on a claim of the successful party. In other words, a consequential order is one which is not merely incidental to a decision properly made, but one which is merely to give effect to that decision. See LIMAN V. MOHAMMED (1999) 9 NWLR (PT. 617) 116.
In this case, since there is no valid order upon which a consequential order can be founded to give effect to, it goes without saying that the orders of the trial Court described either as consequential or incidental amounts to a nullity, void and of no effect whatsoever.
PER BASHIR, J.C.A.

YUSUF ALHAJI BASHIR, J.C.A. (Delivering the Leading Judgment): This Appeal emanates from the decision of the Osun State High Court of Justice sitting at Ikirun, presided over by Justice S. O. Fadola, in an action by the Appellant Suit No: HIK/13/2010 challenging the appointment of the 2nd Respondent as the Chief Imam of Obaagun Central Mosque seeking for the following reliefs as stated in paragraph 34 of the statement of claim dated the 11th day of August, 2010:
(i) Declaration that the post of Chief Imam of Obaagun Central Mosque is not part of the traditional chieftaincy title or honourary chieftaincy title of Obaagun.
(ii) Declaration that it is Imam Ratibis, that are entitled to select, appoint and determine who among their Islamic scholars that will be leading the Muslim Jama’a congregation at the Central Mosque, Obaagun and not by imposition of the 1st defendant.
(ii) Declaration that the purported selection and or appointment of the 2nd defendant who is not a member of Obaagun Central Mosque at Olobagun palace on 5th day of August, 2010, as the Chief Imam of Obaagun is wrongful, illegal and void and no legal effect whatsoever.

(iv) Declaration that the selection and appointment of Alhaji Lasisi Ibiyemi the 10th plaintiff (Now Appellant) by the league of Imams Ratibis and Alfas as Chief Imam of Obaagun is valid and is in accordance with tenets and norms of Islamic injunctions.
(v) Perpetual Injunction restraining the 1st defendant, his agent, privies, servants and whatsoever claiming through him from performing the duties or presenting himself or holding himself out as the Chief Imam of Obaagun.
(vi) Perpetual Injunction restraining the 2nd defendant from parading himself as the Chief Imam of Obaagun.

The live issue in this appeal is that the Appellant being the 10th Plaintiff claiming he was appointed the Chief Imam of Obaagun Central Mosque on the 4th day of August 2010 by the league of Imams Ratibis and Alfas at the Central Mosque Obaagun, while the 2nd Respondent was also appointed as Chief Imam of the Obaagun Central Mosque by the 1st Respondent at his own palace on 5th August, 2010 (1st Respondent is the Oba of Obaagun).

​The Learned Trial Judge on the 10th day of April 2014 held that the Court had no jurisdiction to entertain the plaintiff’s claim upon the advice of “Sharia Panel” and some Amicus Curie. The Court proceeded to terminate the suit but not before making some orders which seem to touch on the substance of the action. Page 506 of the record of appeal. Thus:
“It is hereby ordered that based on the exhibits tendered and admitted and the submissions made by Learned Counsel for the two parties the Court hereby upholds the decision of Sharia Panel on their two conclusions, that is:
(a) That Abbas Shitu be and is hereby endorsed as the Chief Imam of Obaagun.
(b) That the matter is one of Sharia Law in which case this Court lacks jurisdiction to entertain.”

​The Learned Trial Judge also made the following pronouncements:
“By way of ancillary order, I hereby order as follows:-
(1). The Commissioner of Police through the divisional Police Officer in charge of Obaagun shall direct the reopening of Central Mosque Obaagun forthwith and the next jummat prayer should be observed at the Central Mosque, Abbas Shitu shall lead the prayer.
(2) There shall be only one Central Mosque where Jumaat prayer shall be held at Obaagun henceforth all other Jumat Mosques in the town shall be closed down forthwith beginning from next Jumat service.
(3) Abbas Shitu the Chief Imam of Obaagun shall henceforth tame his language of preaching in such a way that it will not be abusive but conciliatory and invitation to piety.
(4) The Defendant especially the 2nd defendant shall take immediate steps to reconcile all warring factions in Obaagun Muslim community.
(5) Finally the police shall ensure the enforcement of peace and security at Obaagun forthwith.

Aggrieved by this decision the Appellant approached this Court vide a notice of appeal dated 16th April, 2014 but filed at the registry of the lower Court on 17th April, 2014 containing 11 grounds of appeal which was further amended with leave of Court and deemed on 29th September, 2020. The record of appeal was compiled and transmitted on 11th June 2014.

In the appellant’s further amended brief of argument settled by Mr. N. Olalekan Sanusi Esq filed on the 7th day of October, 2019 but deemed on 29th September, 2020, the Learned Counsel formulated three issues for determination:
(1) Whether the Learned Trial Judge was persistent in error when he relied and based his judgment on the decision of the members of an “independent Sharia Panel” and amicus curiae alone and without allowing fair hearing in this suit. (Grounds 1, 2, 3 and 9)
(2) Whether the Learned Trial Judge can validly give judgment and make ancillary order after declining jurisdiction in this suit (Ground 3, 4, 5, 7 and 8)
(3) Whether the Learned Trial Judge can grant reliefs not claimed by party/parties. (Grounds 6, 10 and 11).

G. A. Adesina Esq. of Counsel on behalf of the 1st and 2nd Respondents settled and filed a brief of argument on 26/10/21 and deemed filed on the 3rd day of November, 2021, learned Counsel submitted two issues for determination:
(1) Whether the Appellant can now complain against the lower Court’s reliance on the opinions of the amicus curiae after the Appellant and his counsel have taken active parts in the proceedings without any complaint and whether the Appellant can be said to have been denied fair hearing by the lower Court (Grounds 1, 2, 3 and 9 further amended notice of appeal).
(2) Whether or not the Lower Court has the jurisdiction to entertain the case and make ancillary orders made on 10/4/2014 considering the facts and circumstances of this case. (Grounds 4, 5, 6, 7, 8, 10 and 11.)

The Counsel to the Appellant finally filed the Appellant’s reply brief of argument on the 29th day of October 2021.

In this appeal, the issue of whether or not the trial Court has the jurisdiction to hear and determined the matter has featured very prominently in fact it is on that account that the trial Court terminated the matter before the appeal was lodged here. That explains certainly the reason why both the Appellant and the Respondents counsel raised the question of jurisdiction as an issue for determination in this appeal.

The question of jurisdiction is very fundamental that it should be determined first by the Court before embarking on any further proceeding. If the Court proceeds without jurisdiction, all proceedings however well conducted amounts to a nullity. It is trite law that the issues of jurisdiction must be resolved first before embarking on any further action. See: Manson V. Halliborton Energy Services Ltd (2007) 2 NWLR (Pt 1018) 211 and Ukwu V. Bunge (1997) 8 NWLR (Pt 518) 527 SC.

​I will therefore proceed to resolve this appeal based on the question “Whether or not the Lower Court has jurisdiction to entertain the case” which issue has been mutually submitted and raised by both the Appellant and Respondents’ Counsel as the second issue in their respective briefs of argument.

APPELLANT COUNSEL’S ARGUMENT
The Appellant’s Counsel argued that jurisdiction is the pillar upon which the entire case stands and it can be raised at any time. Dr. Gabriel Olusoga Onagoruwa v. I.G.P. (1991) 5 NWLR (Pt 193) 593 and that it is strict matter of law conferred either by the constitution or by statutes.

The learned counsel continued that by virtue of Section 272 of the 1999 Constitution:
“The High Court of a State shall have jurisdiction to hear and determine any civil proceeding in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue.”

This section according to Counsel is only subject to the provision of Section 251 of the 1999 Constitution that deals with Islamic personal law as far as jurisdiction of the Sharia Court of Appeal is concerned.

It is again submitted that in the case of Alhaji Saidu Abdulsalam & Anor V. Alhaji Abdulraheem Salawu (2002) 13 NWLR (Pt 785) 505 at 515 -518 para G-A the Supreme Court per Belgore JSC, held thus:
“The power of Court cannot be vitiated merely because the matter concerns parties who are Muslims or the case is Muslim law in so far as the matter is not on Islamic Personal Law.”

This authority is on all fours with this case. Counsel submit further that this case is a matter where issue of civil rights and obligation of an individual was trampled upon and not Islamic Personal Law, therefore the lower Court has jurisdiction to entertain this suit. Assuming but not conceding that the lower Court has no jurisdiction, can the same Court give ancillary orders after it had declined jurisdiction? No; he answered. Submits that lower Court has no jurisdiction to declare the 2nd defendant as Chief Imam of Obaagun after the same Court had declined jurisdiction.

​Counsel submits that the jurisdiction of a Court is determined by the claims of the plaintiff through the Writ of Summons and Statement of Claim. The issue is on the civil right and obligations of the Appellant as Chief Imam that this was the issue before the Court and not who is competent to be appointed.

Counsel therefore urged this Court to resolve this issue in favour of the Appellant, allow the appeal and remit the case back to the lower Court for proper hearing.

1ST AND 2ND RESPONDENTS’ COUNSEL
Making submissions in respect of the issue of jurisdiction, Mr. G. A. Adesina counsel to the 1st and 2nd Respondents argued that in determining whether a Court has jurisdiction or not to decide a case filed before it, the principal documents to be considered are the Writ of Summons and the Statement of Claim. Akintokun V. Akionola (1994) 3 NWLR (Pt 330) 659.

Submits that all the reliefs claimed in the Writ of Summon and paragraph 34(VI) of the Statement of Claim in this matter centred on Islamic Law in relation to the position of Chief Imam of Obaagun Central Mosque pages 2, 4 and 5 of the record of appeal.

​That the jurisdiction of the lower Court is governed by Sections 6(5) and 272 of the Constitution of the Federal Republic of Nigeria 1999. Unlike the 1975 Constitution where the High of a State had unlimited jurisdiction to entertain cases, the situation is no longer the same under the 1999 Constitution, where other Courts are created to take care of other areas of law including Sharia Law which are now vested in Sharia Courts and Sharia Court of Appeal.

Counsel submits that the subject matter of the case before the lower Court being the Chief Imam of Obaagun central Mosque is governed by Islamic Law and not by common law or Customary Law. Succession to the office of Chief Imam is a matter which falls within the ambit of Islamic Personal Law of the parties and that only Sharia Court has jurisdiction to entertain the subject matter to the exclusion of any other Court. Cited Usman V Umaru (1992)7 NWLR (Pt 252) 337 and Al-Kamara V. Bello (1992) 8 NWLR (Pt. 261).

Not being a Kadi, the Trial Judge is not competent to handle this case, the Learned Respondent’s Counsel submitted, so the Lower Court is not properly constituted as regards the qualification required of a Kadi to form the bench capable of entertaining the case at the Lower Court as the Trial Judge is only a Judge of the High Court with no capacity to handle issues of Sharia Law. Submits, that the outcome of the previous arbitrations have deprived the Lower Court of the jurisdiction to entertain the claim and stop the Appellant from prosecuting the case, the issue having been properly raised in the 1st and 2nd Respondents address at page 440-445 of the records. That the outcome of the arbitration has created estoppel against the Appellant and deprived the Lower Court of jurisdiction. Respondent’s counsel submits that the case of Abdulsalam V. Salawu (Supra) is distinguishable from this case and so not applicable.

Counsel submits that the Lower Court did not make any declaration in favour of the 1st and 2nd Respondents contrary to the Appellant’s allegation but the Lower Court only upheld the decision of the Sharia panel which endorsed the 2nd Respondent as the Chief Imam of Obaagun and the Lower Court has no jurisdiction to entertain the case.

​Submit that the ancillary orders made by the Lower Court were properly made in the exercise of the discretion vested in the Trial Court based on the facts and exhibits A, B, C and D admitted before the Trial Court without any objection and upon consideration of the submission of counsel to both parties. So the orders were made to preserve the status quo prior to the commencement of the action.

Finally, counsel urged this honourable Court to resolve the issue in favour of the 1st and 2nd Respondents by holding that the Lower Court lacks the jurisdiction to entertain the case and that the Lower Court could make the consequential orders in the exercise of the discretion vested in the Lower Court considering the circumstance of the case.

RESOLUTION OF THE ISSUE
The claim of the Appellant before the Trial Court relates exclusively to the selection and/or appointment to the office of Chief Imam of Obaagun Town in Osun State. The Learned Trial Judge without hearing evidence from the parties, invited what he call “Sharia Panel” of Osun State as amicus curie to assist the Court on criteria for appointment of a Chief Imam and whether the Court has the jurisdiction to hear the matter.

Going through the claim of the Appellant as plaintiff before the trial Court, one is tempted to agree with the submission of the Appellant’s Counsel.

​In considering whether a Court has jurisdiction to entertain a matter or not, the Court is guided by the claim before it by critically looking at the Writ of Summons and the Statement of Claim. See Gafar V. Govt. Kwara State (2007) 4 NWLR (Pt. 1024) 375 SC and Tukur V. Govt of Gongola State (1989) 4 NWLR (Pt. 117) 517) 517 SC.

I have earlier on recounted in this judgment the claim of the Plaintiff before the Trial Court as per the Writ of Summons. Clearly, the claims have absolutely nothing to do with the qualification for becoming a Chief Imam as will make it an Islamic personal question that will bring the dispute within the jurisdiction of the Sharia Court, rather the entire dispute from the Plaintiffs claim revolves squarely around the question of who between the Appellant and the 2nd Respondent was duly appointed the Chief Imam of Obaagun. The Learned Trial Judge conceded jurisdiction to the Sharia Court but the 1999 Constitution specifically Section 277 (1) conferred on the Sharia Court of Appeal a limited jurisdiction to wit:
“The Sharia Court of Appeal of a State shall, in addition to such other jurisdiction as may be conferred upon it by the law of the State, exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic personal law which the Court is competent to decide in accordance with the provision of subsection (2) of the Section.”
It is very clear from the above that 1999 Constitution did not confer original jurisdiction on the Sharia Court of Appeal to deal with the question of Islamic Personal Law as specified under subsection(2) of 272, so there is no provision for the Sharia Court to hear matters of Islamic Personal Law at first instance. The attention of this Court has not been drawn to the existence of such Courts in Osun State. I am unable to agree with counsel on the argument that Sharia Court of Appeal is the appropriate Court to hear this case because the Sharia Court of Appeal is essentially an appellate Court. Section 277(2) defines what constitutes Islamic Personal Law to include: marriage, family relationship, guardianship of an infant, founding, gift or wakf, will or succession, prodigal or person of unsound mind or maintenance, and guardianship of a Muslim who is physically or mentally infirm. None of these subjects covers the appointment of an Imam of a Mosque, see Abdulsalam V. Salawu (2002) LPELR 30 (SC). The Supreme Court in this case dealt with the issue of appointment of a Chief Imam to a Mosque; which subject is quite apposite and relevant to this appeal. I cannot see the distinction counsel to the Respondent is attempting to draw between these two cases.

Section 272(1) of the 1999 Constitution of the F.R.N. has conferred on the State High Court a very wide and often described as unlimited jurisdiction subject only to Section 251 and other provisions of the Constitution itself, apart from the items listed under Section 277(2) of the Constitution other items not mentioned therein are not matters of Islamic Personal Law, the High Court is quite empowered to entertain all matters concerning such questions except where the parties on their own requested the Court that hears the case in the first instance to determine that case in accordance with Islamic personal law. See Section 277(2)(e). Then Islamic personal law will apply.
In all other matters however, the jurisdiction of the State High Court remains extant. BELGORE JSC IN ABULSALAM V. SALAWU held that:
“The power of a Court cannot be vitiated merely because the matter concerns parties who are Muslims or a case is of Muslim law in so far as the matter is not of Islamic personal law.”
The issue being contested in this case though between Muslims and on Islamic Issue but because it is not on Islamic personal law the jurisdiction the of High Court to hear and determine the claim is not adversely affected. I therefore hold that the High Court of Osun State was rightly constituted to hear and determine the issues in this case.

It is indeed a commendable practice for a Court to seek the opinion of experts on recondite questions especially on Sharia or Customary law but at the end of the day it is the Judge concerned who will make the final decision. Infact on issues of jurisdiction, it is the law establishing the Court and the claim of the parties that determines whether or not the Court has the jurisdiction to hear and determine the matter or not. GARBA V. MOHAMMED (2016) LPELR-40612 (SC).

With respect to the orders issued by the Court which is called “Ancillary Orders”, from the ruling of the Court at page 506 of the record of Appeal it is clear that the learned trial Judge had declined jurisdiction, it is also clear that the Court did not hear any evidence meaning it did not hear the case on the merit. Under the law, whenever a Court decides that it lacks the jurisdiction to entertain a suit, the proper order it should make is one of striking out the matter. See OKOLO V. U.B.N LTD. (2004) 3 NWLR (PT. 859) 87 SC and REPUBLIC BANK LTD. v. C.B.N. (1998) 13 NWLR (PT. 581) 306.

Whenever a Court concludes or finds that it has no jurisdiction invariably it ceases to have the power to make any other order apart from the order striking out the action, proceeding to make other declaration especially where the case was not heard on the merit, such orders are void. LAKANMI V. ADENE (2003) 10 NWLR (PT. 828) 353 and AJAO V. ALAO (1986) 5 NWLR (PT. 45) 805.

In this case notwithstanding the fact that the Court found and held that it had no jurisdiction and notwithstanding that the learned trial Judge did not listen to evidence meaning he did not hear the case on the merit yet the Court went on to make some far reaching orders and declarations recognizing the 2nd Appellant as Chief Imam of Obaagu, making specific orders closing some mosques and preventing them from observing Jummat Service/prayer etc. One wonders where the learned trial Judge got the material in terms of credible evidence to support these Orders?

None of the parties in the matter called evidence. The Sharia panel on whose so called evidence the trial Court based its findings were not called by any of the parties rather they came at the instance of the Court and we know the rule of fair hearing does not allow the Court to make a case for any of the parties in a proceeding before Court. The orders of the trial Court are therefore perverse and must be set aside.

On the issue of estoppel, there is no evidence that a trial of any kind had ever taken place between the parties in respect of the issue at hand before any competent Court as it will constitute estoppel which the Respondents counsel is trying to invoke.

Generally, estoppel means a bar that prevents one from asserting a claim that contradicts what one has said or done before or what has been legally established as true, it serves as a bar that prevents the re-litigation of issues. See Tukur V. UBA & Ors (2012) LPELR 9337 SC. None of this has arisen in this case. No estoppel is available therefore.

A consequential order is an order founded on a claim of the successful party. In other words, a consequential order is one which is not merely incidental to a decision properly made, but one which is merely to give effect to that decision. See LIMAN V. MOHAMMED (1999) 9 NWLR (PT. 617) 116.
In this case, since there is no valid order upon which a consequential order can be founded to give effect to, it goes without saying that the orders of the trial Court described either as consequential or incidental amounts to a nullity, void and of no effect whatsoever.

In all, this appeal in my view has merit and it is accordingly allowed. The decision of the Osun State High Court in suit No. HIK/13/2010 declining to entertain this suit on grounds of lack of jurisdiction is hereby set aside.
An order is made remitting this case back to the Osun State High Court for proper hearing of this case before a different Judge other than Hon Justice S. O. Falola.

RITA NOSAKHARE PEMU, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my brother YUSUF ALHAJI BASHIR, JCA.

I agree with his reasoning and conclusions.
I allowed the Appeal.

Consequently, the judgment of the Osun State High Court sitting at Ikirun in Suit No. HIK/13/2010 delivered by Justice S. O. Fadola is hereby set aside.

JAMES GAMBO ABUNDAGA, J.C.A.: I have had the advantage of reading in draft the judgment delivered by my learned Brother, BASHIR A YUSUF, JCA. I agree with his Lordship that this appeal is meritorious.

I add my voice to his Lordship’s that the crux of the matter does not involve Islamic personal law to exclude the High Court’s jurisdiction. Furthermore, having declined jurisdiction, the trial Court was without power to make any orders at all. What it ought to have done was to make an order striking out the suit.

​Premised on the above and the detailed reasoning of his Lordship in the leading judgment, this appeal is allowed. The orders made by the trial Court are hereby set aside while the case is remitted for hearing before another judge.

Appearances:

N. O. SANUSI, Esq. For Appellant(s)

G. A. ADESINA, Esq. – 1st and 2nd Respondents. For Respondent(s)