OBOKUN LOCAL GOV. & ANOR v. OSUN STATE BOUNDARY COMMISSION & ORS (2021)

OBOKUN LOCAL GOV. & ANOR v. OSUN STATE BOUNDARY COMMISSION & ORS

(2021)LCN/15509(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Friday, March 26, 2021

CA/AK/20/2011

Before Our Lordships:

Rita Nosakhare Pemu Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

1. OBOKUN LOCAL GOVERNMENT 2. OBA GABRIEL OYEKANMI ADENIYI (ALASE OF ASE) APPELANT(S)

And

1. OSUN STATE BOUNDARY COMMISSION 2. BOLUWADARO LOCAL GOVERNMENT 3. GBADEBO AGBE RESPONDENT(S)

 

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the judgment of an Osun State High Court in respect of an application for judicial review by way of prohibition filed by one Gbadebo Agbe (1st Respondent) seeking to prohibit the Osun State Boundary Commission (1st Respondent) from adjudicating over a boundary dispute between Obokun Local Government Area, 1st Appellant herein, and Boluwaduro Local Government Area, the 2nd Respondent herein referred to it by the Bureau of policy coordination in the office of the Governor, Osun State

​It is evident even from the records, that the 1st Appellant and the 1st Respondent share common boundary. Not unnaturally, disagreements as to what was the correct boundaries between the two Local Governments was bound to occur, and having been witnessed by the 2nd Appellant, being the Alase of Ase (a traditional ruler), addressed a petition to the Governor of the State (Osun State) on the matter requesting government to instruct or direct the appropriate authorities to take steps and to determine the correct boundaries between the two Local Government Areas.

Having received the petition afore stated, the Osun State Government referred the dispute to the department of Political and Security Affairs in the office of the State Governor for investigation, the consequence of all this administrative actions culminated to the 1st respondent, the Osun State Boundary Commission being asked to wade into the matter inclusive of all cases of intra and inter Local Government boundary disputes within the state for resolution. The State Government was said to have acted pursuant to its powers granted under Section 5 of the Local Government and Community Boundaries Settlement Law Cap. 73 Laws of Osun State which stipulate that:
“The Governor may by order refer to a commissioner for determination, the boundaries or any part of the boundaries between the area of two or more Local Governments or communities.”

At the sitting of the commission, and the 3rd Respondent having been invited, ostensibly in order to testify on certain grey areas, agitated him, and on the 23rd of July, 2002 the said Mr. Gbadebo Agbe, (the 3rd respondent herein), and by way of motion ex-parte brought pursuant to Order 43 Rules (1) and (3) of the High Court (Civil Procedure) Rules 1988 of Oyo State, prayed for order of Court granting leave to the applicant to apply for the following orders pending the determination of the motion on notice.
i. An order of prohibition, prohibiting the Osun State Boundary Commission Oshogbo from adjudication in respect of case No. BC/OS/7.
ii. Any further order or other orders as this Honorable Court may deem fit to make in the circumstance.

The lower Court on the 8/8/2002 heard the ex-parte application and thereby granted leave to the 3rd Respondent to apply for an order of prohibition, prohibiting the 1st Respondent from adjudicating in respect of case No. OS/BC/7/2002 between Boluwadaro Local Government and Obokun Local Government Areas.

​The 3rd respondent thereafter proceeded to file a motion on notice still seeking for order of Court for prohibition, prohibiting the 1st respondent from adjudicating in respect of case No. OS/BC/7/2002 between Boluwaduro Local Government and Obokun Local Government. The application was supported with a 29 paragraph affidavit deposed to by the applicant in person, and hinged thereto are other documents including certified copies of Court judgments, in which the applicant participated with respect to certain parcels of land which other Courts had determined to his favor.

Both Appellants and the 1st respondent herein filed counter-affidavits to the applicants motion, as well as written addresses as demanded by the rules of Court.

​On the 10/10/2008, the lower Court quorum O.D. Afolabi J, after taking arguments, reasoned and thereby concluded that:-
“from the above, one can distill the following as instances when an order of prohibition will lie:
(i) the Respondent to be prohibited must be a legal authority. 1st respondent is a legal authority by the provision of Local Government and Community Boundaries Settlement Law Cap. 73 Laws of Osun State.
(ii) it or he must be saddled with the responsibility of determining questions affecting the rights of the subjects as in this case.
(iii) he or it must have a duty to act judicially and;
(iv) he or it must be acting in excess of its jurisdiction.
All the above are present in the instant case. In view of my findings, this application succeeds and an order of prohibition is accordingly issued against the 1st Respondent prohibiting it from hearing or determining case No. BC/OS/07 between Boluwaduro Local Government and Obokun Local Government.”

Peeved with the said decision by the lower Court wherein the 3rd respondent’s application for prohibition was granted, appellants appealed to this Court vide a notice of appeal filed on the 21/11/2008, predicated on three grounds of appeal. The record of appeal having been transmitted to this Court out of time, but duly regularized on the 30th of May, 2012, parties proceeded to file in their written submissions as demanded by the rules of Court, and the appellants brief was subsequently filed on the 18th July, 2012. On the 28/1/2021, being the scheduled hearing date, Mr. O.A. Okin of learned counsel who appeared for the Appellants adopted the brief filed and urged the Court to allow the appeal.

​Mr. E. Olakunle of learned counsel who appeared for the 2nd respondent, identified the 2nd respondent’s brief filed on the 11/4/17 out of time, but duly regularized with the leave of Court, adopted the same in urging the Court to dismiss the appeal in its entirety for being frivolous, incompetent, lacking in merit and a mere academic exercise.

It is worthy to note that even though the 1st and 3rd respondents in the action have been severally served the processes and the hearing notices in the appeal, they failed to file any process and also refused to attend Court on the date scheduled for hearing even though served.

In the appellants brief settled by O.A. Okin with S.O. Abdulkareem, and specifically at page 3 of the brief, learned counsel isolated three issues capable of resolving the appeal as follows:
i. Whether the 3rd respondent application for an order of prohibition is competent.
ii. Whether the 3rd respondent has locus standi to present the said application.
iii. Whether the Osun State Boundary Commission is estopped per rem judicatam from adjudicating on the boundary dispute between Boluwaduro and Obokun Local Governments referred to it by the Governor of Osun State.

Also in the brief settled for the 2nd respondent by Chief Femi Popoola and argued by E. Olakunle, three issues were crafted for the resolution of the appeal as follows:-
i. Whether the case is properly constituted before the Osun State Boundary Commission.
ii. Whether the Appellants are competent to file this appeal.
iii. Whether the Osun State Boundary Commission is not estopped per rem judicata from adjudicating in boundary dispute between the Appellants and 2nd and 3rd respondents.

Having carefully examined the two set of issues crafted by the parties, I am of the view that there is no discernable difference between the two, and I thereby opt to be guided by the issues formulated by the parties.

ISSUE ONE
Whether the 3rd respondent application for an order of prohibition is competent.
The issue as crafted by the appellants relates to the interpretation of Order 43 Rule 3(1) and (2)(b) of the High Court (Civil Procedure) Rules of Osun State being the rules applicable as at the time the application was made which provided that:-
“Order 43 Rule 3 (1) and (2) (b), of the High Court (Civil Procedure) Rules of Osun State of Nigeria, provided as follows:
“3 (1) No application for judicial review shall be made unless leave of the Court has been obtained in accordance with this rule.
(2) An application for leave shall be made ex-parte to the judge and shall be supported:
(a) by a statement, setting out the name and description of the applicant, the relief sought and the grounds on which it is sought, and
(b) by affidavit, to be filed with the application, verifying the facts relied on.”

Learned Counsel then alluded to the 3rd respondent exparte application located at pages 1 – 4 of the record as well as the ruling of the lower Court at P. 256 of the record to the effect that:-
“on the issue of non-compliance with the rules of Court 3rd respondent counsel had argued that applicant’s non-compliance with the provisions of Order 43 Rule 3 (1) and (2) (b), of the High Court (Civil Procedure) Rules renders the application incompetent and otiose… To some extent, there is merit in this submission. However, our Courts are enjoined not to apply technical justice as we should not allow technicalities to continue to rule us from their graves. It is true that the applicant failed to file a verifying affidavit. It is to be noted however, that what the applicant filed in Court is an affidavit in support of the application. Who prepared the affidavit? A Lawyer engaged by the applicant who hold (sic) himself out as professionally qualified. If the lawyer made a mistake should I visit his sin on the applicant? The answer as far as I am concerned is No! Luckily enough the Rules of Court pursuant to which this application was brought provides in Order 47 Rule 1 that subject to particular rules, the Court may in all causes and matters make any order which it considers necessary for doing justice whether such order has been expressly asked for by the person entitled to the benefit of the order or not.”

Learned counsel then contended that there is a clear difference in the competence of an action and a defect in procedure. He argued that where there is a defect in the competence of the action such spells the absence of jurisdiction of the Court to entertain the same, and called in aid the cases of Nalsa & Team Associates Vs. NNPC (1991) 11 SCNJ 51 and Shell Trustees Ltd Vs. Imani & Sons Ltd. (2000) 6 NWLR (Pt. 662) 639.

​He goes on to submit that the failure of the 3rd respondent to fulfill the conditions laid down by Order 43 Rule 2 (b) of the High Court (Civil Procedure) Rules of Osun State is not a mere irregularity but impacts on the capacity of the trial Court to entertain the action initiated without due process.

Relying on Oyawole Vs. Shehu (1995) 8 NWLR (Pt. 414) 484, counsel maintained that the failure to file the verifying affidavit is a non-compliance which affected the root, foundation or props of the application and cannot be treated as a technicality but a precondition, the absence of which affected the competence of the originating process.

Learned Counsel then went further to cite the age old case of Madukolu Vs. Nkemdilim (1962) 2 SCNLR 341 on the ingredients of a competent originating process, and submits that any defect in competence is fatal and the proceedings thereof a nullity however well conducted. He argued further still that the Court having found that the 3rd respondent failed to file a verifying affidavit, his resort to Order 47 Rule 1 of the rules of Court rendered his judgment perverse and misconceived.

On his second issue, whether the Osun State Boundary Commission is estopped per rem judicatam from adjudicating on the boundary dispute between Boluwaduro and Obokun Local Governments referred to it by the Governor of Osun State; Learned Counsel was of the view that the plea was not available to the applicant. On the meaning of estoppel per rem judicata counsel referred to the case of Pam Vs. Choji (2005) ALL FNLR (Pt. 291) 1745 at 1751-1752, positing that where a course of action in a present suit has been determined in a previous action between the same parties, that cause or action becomes merged in that judgment. He referred to the case of Ogbeni Vs. Chachoro (2003) FNLR (Pt. 136) 926-942, where it was held that:-
“In New Brunswick Rail Co. Vs. British and French Trust Corporation Ltd. (1939) A.C. 1, Lord Maugham at pp. 19-20 expressed the position accurately when he said:-
“the doctrine of estoppel (per rem judicata) is one founded on considerations of justice and good sense. If an issue has been distinctly decided in an action, in which the parties are represented, it is unjust and unreasonable to permit the same issue to be litigated afresh between the same parties or persons claiming under them”.
It is therefore important for the issues in the earlier case to be identified with those in the current case in which the estoppel is raised, and the issue so relied upon to have been raised and distinctly decided in the earlier case. Finally, the parties or their privies must be the same. It should not be a decision by implication”
and proceeded to submit that there are some pre-conditions for a successful plea of estoppel per rem judicata as enumerated in a host of cases particularly the case of Ekong Vs. Udo (2003) FNLR (Pt. 139) 1576 where Edozie JCA posited that:-
“for the plea of estoppel per rem judicata to succeed, the party relying on it must establish that:-
i. the parties or their privies are the same, that is to say that the parties involved in both the previous and present proceedings are the same;
ii. the claim or the issue in dispute in both the previous and present proceedings are the same.
iii. the res, that is to say, the subject-matter of the litigation in the two cases is the same;
iv. the decision relied upon to support the plea of estoppel per rem judicata must be valid, subsisting and final; and
v. the Court that gave the previous decision relied upon to sustain the plea must be a Court of competent jurisdiction.
And unless the above pre-conditions are established, the plea of estoppel per rem judicata cannot be sustained. See: Oke Vs. Atoloye (1985) 1 NWLR (Pt. 15) 241 @ 260.”

Learned counsel further argued that being a defense, the plea has to be morally set up by pleadings and or… for the 3rd respondent to apply to be joined in the proceedings and then file in his statement of pleadings before the commission and to raise the plea. Not having so proceeded, counsel submits that the issue ought to be resolved against him. In the alternative learned counsel made reference to the parties before the Court who were not parties in the earlier suits where the res was the farmland. He also stated that the claim or issue in dispute in the instant case and the earlier suits are not the same and finally that the decisions of the various High Courts and the Court of Appeal, as well as exhibit O, the finding of the Odunsi Boundary Commission cannot be said to be a final decision. He posited that for the principle to exist, all the preconditions must exist and four out of the five conditions not having been established, the issue should be resolved in favour of the Appellants.

On the third and final issue; whether the 3rd Respondent has the locus standi to bring the application before the lower Court, referred to the holding by the lower Court. viz:-
“…The applicant in this application has established in this Court that he is not likely to obtain justice before the 1st respondent. He deposed to the fact that his proprietary interest is likely to be affected if the 1st respondent is allowed to determine case No. BC/OS/7. To my mind, the applicant has satisfied the Court in respect of this application for prohibition that he has the locus standi to institute this action since his legal and proprietary rights in the land along the boundary will be affected. I resolve this issue against the 1st, 3rd and 4th respondents.”

Contending that the 3rd respondent had no locus standi to institute the application since he was not a party to the petition before the 1st respondent in suit No. OS/BC/7/2002; Boluwaduro Local Government Vs. Obokun Local Government, Learned Counsel drew the Court’s attention to the holding in Adesanya Vs. President of the Federal Republic of Nigeria (1981) 12 NSCC 146, submitting that the matter before the 1st Respondent which the 3rd respondents tried to prohibit is in respect of a right common to his community, the 2nd respondent, the determination of which does not affect the legal right or interest of the 3rd respondent. To sustain any locus, the 3rd respondent must show that he will be adversely affected by the action or that he has sustained or is in immediate danger of sustaining an injury to himself over and above that of the general public. The case of Owodunni Vs. Registered Trustee’s Celestial Church of Christ (supra) @ 1479 was cited and relied upon.

He argued that the determination of the boundary between the 1st and the 2nd respondents will in no way affect the title of the 3rd contained in exhibits (a-g) and further that by Order 43 Rule 3(5), which provides that:-
“the Court shall not grant leave unless it considers that the applicant has sufficient interest in the matter to which the application relates,”
argued that if the 3rd Respondent was in any fear of his interest in the said land the boundaries of which was to be determined by the 1st respondent, the right thing was for him to join as a party in the proceedings and thereby canvass the issue as permitted by Section 7 (c) of the Law:-
“7. where an order has been made under Section 5 referring the determination of any boundary to a commissioner, the commissioner shall-
(c) permit any Local Government or community or any other person who satisfies the commissioner that he is in any way interested in or concerned with the boundary which is the subject matter of the inquiry to be represented by counsel at the inquiry.”

He concluded by submitting that the 3rd respondent not having availed himself of the provisions of Section 7, failed to show that he had the locus to bring the application and the case of Ifedayo Local Government Vs. Osun State Boundary Commission & 1 Ors. suit HOS/MISC.6/2005 delivered by Bada J. as he then was, referred to. He urged the Court to resolve the issue in favour of the Appellant and finally strike out the applicants application in its entirety with substantial cost.

​Responding to the submissions of the learned counsel for the Appellant, Chief Femi Popoola, the learned counsel for the 2nd respondent, and specifically with regards to whether the case was properly constituted before the Osun State Boundary Commission, leveraged on the provisions of Section 5 of the Local Government and Community Boundaries Settlement Law Cap. 73, Laws of Osun State, to contend that the jurisdiction of the commission is limited to the determination of boundaries between the area of two or more Local Government Areas, as against individuals or families. He pointed out that the petition by the 2nd respondent was in relation to litigations conducted between the petitioners family and his family, and maintained that the case for determination of boundary between the 1st and the 2nd respondents is on the same parcel of land which had been litigated upon between the 2nd Appellants family and the 2nd respondent’s family. Submits that the involvement of the 2nd and the 3rd respondents robbed the 1st respondent of the jurisdiction to hear and to determine the case before it, as it is no longer between the two local governments or communities, but between individuals. He submitted also that it was irregular the title of the parties before the 1st and the 2nd respondent who initiated the petition to the Governor, as the 2nd respondent was not aware of any boundary dispute between them, maintaining that the prohibition order benefited the petitioner before the boundary commission and the petitioner now made the 2nd Appellant before this Court. He insists that the parties were not properly stated or constituted before the commission, and by that act alone robbed the commission of its jurisdiction to hear the case. He then maintained that the order of prohibition granted by the lower Court was the proper order to make in the circumstance and therefore urged the Court to dismiss the appeal as being frivolous and unwarranted.

​Also submitting on whether the Appellants are competent to have filed this appeal, being the applicants before the commission, it was argued that the appellants position is akin to that of a defendant who failed to file a counterclaim, while the 2nd respondent is that 2nd plaintiff who has a specific claim against the defendant in a civil action. He submitted that Appellants lacked the competence to have filed the appeal and thereby urged the Court to dismiss the appeal upon this ground.

On the 3rd respondent and final issue canvassed by the appellants, i.e. whether the Osun State Boundary Commission is estopped per rem judicata from adjudicating on boundary dispute between the Appellants and the 2nd and 3rd respondents, learned counsel made reference to the case ofEkong vs. Udo (2003) FWLR (PT. 139) 1576 @ 1599 on the pre-conditions necessary for the application of the plea of estoppel per rem judicata, contending that the claim for a declaration of title to land by the 3rd respondent in the previous case which fixed the boundary of land between the 1st and the 2nd respondents cannot be re-litigated as the present boundary between the two local governments is a decision of a Court of competent jurisdiction. Further still counsel argued that the same farm land litigated upon by the 3rd and the 2nd respondent’s family forms the boundary between the two Local Government Areas and there is no other land between the boundary area of the two Local Governments, other than the land litigated upon, while by the said decision the boundary between the two local governments was fixed, also denying that there was any dispute on the issue. He insists that all the pre conditions for the operation of the principle of estoppel per res judicata avail the 2nd respondent, and thereby urged the Court to dismiss the appeal in its entirety as that lacking in merit, frivolous, incompetent and a mere academic exercise lacking in value. The foregoing are the submissions of the learned counsel upon which the entire appeal revolves. I have therefore accorded the arguments of learned counsel a solemn but dispassionate consideration. My humble view is that the issues contended upon are almost interrelated, and can be looked at the same time, which I intend to do in the resolution of the appeal. But first to be resolved is whether the appeal before the Court is competent as contended by the appellants, being a jurisdictional issue and secondly whether the commencement of the action before the Local Government and Community Boundaries commission was competent.

RESOLUTION
The first issue which the Court must quickly dispose of lies on the contention by the learned counsel for the Respondents that Appellants lacked the competence to have filed the instant appeal. The importance of determining the issue timeously, also lies on the fact that it is the Notice of Appeal that invokes the jurisdiction of the Court of Appeal. The incompetence of the appellants Notice of Appeal means that this Court will be lacking in entertaining the appeal in the first place. The state of law with regards to the right of a party to appeal against the decision of a High Court to the Court of Appeal is regulated by the provisions of Sections 241 and 242 of the 1999 Constitution. The Apex Court in Persons, Name Unknown vs. Sahris Int’l Ltd (2019) 13 NWLR (pt. 1689) 203 @ 233, held that:
“The right to appeal against the decision of the High Court to the Court of Appeal is vested by Sections 241 and 242 of the 1999 Constitution. The right of appeal, by dint of Section 243 of the same Constitution is exercisable in the case of civil proceedings at the instance of either party to the proceeding at the trial Court or at the instance of any other person having an interest in the matter”.
See also Nalsa & Team Associates Vs. NNPC (1991) 8 NWLR (pt. 212) 652.
Karibi-Whyte JSC also in the case of Saraki Vs. Kotoye (1992) NWLR (pt. 264) 156 further stated that:
“The Constitution has conferred a right of appeal in respect of decisions on questions of law to Appellants whether interlocutory or final. The exercise of this right cannot be denied by any other law or authority, it seems to me a violation of the provisions of Section 220 (b) of the Constitution to interfere with the exercise of the right even by postponing it to the final determination of the case.”
See also Obikoya Vs. Wema Bank Ltd. (1989) LPELR- 2176 (SC). The learned counsel for the Respondent cannot be right in the circumstance submitting that Appellants had no right to appeal the decision of the lower Court. The other contention is centered on whether the case was properly constituted before the Osun State Boundary Commission. I think with respect to the learned counsel, this issue is being taken out of context. Counsel is either being mischievous about the whole thing, or grossly misunderstood what was the mandate of the Boundary commission. Records show that owing to the petition written to the State Government to the existence of boundary misunderstanding, the State Government now directed Boundary Commission to wade into the issue and to determine any incorrect boundary and other incidental issues that may arise. A boundary commission is not a Court of law and as rightly stated by the Appellant’s counsel, its duties are spelt out by the terms delimiting its functions. It does not lie with the Respondent to argue that just because the petitioner to the Government was involved in series of land cases, any executive act must be read in that narrow sense. Respondent’s entire submission at pages 3 of the brief, is not only presumptuous, but riddled with facts that are not before the Court. I reject the arguments made, and thereby discountenance the same.

Let me now consider the three issues agitated upon by the learned counsel for the Appellant. The 1st issue questioned the competence of the 3rd respondent’s application before the lower Court. It pertains to the stipulations of Order 43 Rule 3(1) and (2) (b) of the High Court (Civil Procedure) Rules of Osun State, applicable to the lower Court, which provided that:
“Order 43 (3) (1) No application for judicial review shall be made unless leave of the Court has been obtained in accordance with this rule.
(2) An application for leave shall be made ex parte to the Judge and shall be supported:
(a) by a statement, setting out the name and description of the applicant, the relief sought and the grounds on which it is sought, and
(b) by affidavit, to be filed with the application, certifying the facts relied on.

The contention by the Appellant was that the failure by the 3rd respondent as applicant before the lower Court to comply with the provisions of Order 43 Rule 2 (b) of the rules governing the lower Court is a non-compliance that affected the root, foundation and props of the application, and thereby robbed the lower Court the jurisdiction of entertaining the case before it. Indeed, the lower Court on the issue evidently did find that applicant failed to comply with the provisions of the above cited rules of Court, having held that:
“On the issue of non-compliance with the rules of Court, 3rd Respondents counsel had argued that applicant’s non-compliance with the provisions of the Order 43 Rule 3 (1) and 2 (b) of the High Court (Civil Procedure) Rules rendered the application incompetent and otiose. To some extent there is merit in this submission. However, our Courts are enjoined not to apply technical justice as we should not allow technicalities to continue to rule us from their graves. It is true that the applicant failed to file a verifying affidavit. It is to be noted however, that what the applicant filed in Court is an application in support of the application. Who prepared the affidavit? A lawyer engaged by the Applicant who hold himself out as professionally qualified. If the Lawyer made a mistake should I visit his sin on the Applicant? The answer as far as I am concerned is No. Luckily enough the rules of Court pursuant to which this application was brought provides in Order 47 Rule 1 that subject to particular rules, the Court may in all causes and matters make any order which it considers necessary for doing justice whether such order has been expressly asked for by the person entitled to the benefit of the order or not. Acting pursuant to Order 47 Rule 1 quoted above, I hold that the application is competent.”
It is apparent that the Respondents do not have any response to the attack launched by the appellants on the issue. It is trite law, that where a statute specifically stipulates the manner of commencing or initiating an action in relation to specified reliefs, the commencement of an action by such form or process becomes the originating process. C.C. (Oil & Gas) Co. Sal. Vs. Masiri (2011) 3 NWLR 283.

The exercise by a Court of its jurisdiction to entertain a suit is predicated on the competence of the originating process. See National Union of Civil Engineering Construction Furniture & Wood Workers vs. United Bank for Africa (2010) LPELR – 4584 (CA). The state of the law gravitates towards the fact that an initiating process, whether writ of summons, originating summons, petition or Notice of Appeal must be valid in order to ignite the jurisdiction of the Court in adjudicating between parties on a subject matter in dispute between them. See Okarika & Ors vs. Samuel & Anor (2013) LPELR – 19935 (SC). In other words, a Court is only competent to adjudicate over a matter when all the conditions precedent for its having jurisdiction have been satisfied, thus any action commenced by an incompetent process will divest the Court the jurisdiction to entertain the matter. Where found to be incompetent or defective, an originating process cannot be used for any purpose whatsoever. SeeEmmanuel I. Olagbenro & Ors vs. Prince Saliu Olayiwola & Ors (2014) LPELR – 22597 (CA), per Uwa JCA.

I agree with the learned Appellant’s counsel, that there is a world of difference, between a defect in the competence of an action and a defect in procedure, for whereas a defect in procedure is curable as envisaged by the lower Court, a defect in the competence of an action is fatal and robs the Court of the vires to entertain the matter in dispute. See Odua Investment Company Ltd vs. Talabi (1997) SCNJ 600, NALSA & Team Associates vs. NNPC (1991) 11 SCNJ 51 and Shell Trustees Ltd vs. Imani & Sons Ltd (2000) 6 NWLR (pt. 662) 639.

It is obvious that the lower Court fell into the wrong assumption that the defective application before him, is one of the specie of irregular processes curable by Order 47 of the rules of the lower Court. He is absolutely wrong in that regard. The non-compliance herein is of the genre that affected the root and/or foundation of the case, the consequence thereof nullifies any proceedings purportedly conducted. It has been our law as stated in numerous cases, including Madukolu v. Nkemdilim (1962) 1 ALL NLR 587, Oke vs. Aiyedun (1986) 2NWLR (pt. 23) 548, that a Court is competent where the following attributes amongst others are fulfilled:
1. …
2. …
3. The case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided. The defect is extrinsic to the adjudication.
​In the instant case, the lower Court having reached the conclusion that there was merit in the assertion that Order 43 Rule 3 (1) and (2) (b) of the High Court (Civil Procedure) Rules, the Applicant having failed to file a verifying affidavit, ought to at that stage declined jurisdiction, for his reliance on Order 47 of the same rules of Court is unavailing in the circumstance. All I am trying to say here is that the lower Court had no jurisdiction entertaining the application and the matter before it, and thereby engaged in a null and vain exercise. This issue is resolved in favor of the Appellants.

There is the temptation to proceed and to examine the other two issues listed, but having reached the conclusion that the lower Court acted in vain, and the entire exercise a nullity, further examination of the remaining issues will be an exercise also in vain for which the scarce judicial time cannot permit.

In conclusion, I see a lot of merit in the instant appeal and accordingly allow it. The judgment of O. D. Afolabi delivered on the 10th of October, 2008 is hereby set aside, similarly the order of prohibition by the lower Court made without jurisdiction is hereby vacated.
Costs of N200,000.000 are awarded in favor of the Appellants.
APPEAL ALLOWED.

RITA NOSAKHARE PEMU, J.C.A.: I had read before now the lead judgment just by my brother HAMMA AKAWU BARKA, JCA.
I agree with his reasoning and conclusion.
​I allow the Appeal. The judgment of the Osun State High Court sitiing in Osogbo in Suit No. HOS/M27/2002 delivered on the 10th of October, 2008, is hereby set aside by me as being made without jurisdiction.
I abide by the consequential order made as to costs.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read in advance the judgment delivered by my Learned brother, Hamma Akawu Barka, JCA. I adopt the reasoning and conclusion reached in the judgment that the application for judicial review was incompetent by reason of the failure of the applicant to file a verifying affidavit.
Therefore, I too allow the appeal set aside the order of prohibition by the lower Court as same was made without jurisdiction.
​I abide by the order on costs.

Appearances:

O. A. OKIN For Appellant(s)

E. OLAKUNLE for the 2nd Respondent For Respondent(s)