OLANREWAJU ASAMU v. ISMAILA LAWANSON & ORS (2014)

OLANREWAJU ASAMU v. ISMAILA LAWANSON & ORS

(2014)LCN/7601(CA)

In The Court of Appeal of Nigeria

On Friday, the 5th day of December, 2014

CA/I/93/2013

RATIO

PRACTICE AND PROCEDURE: ESTOPPEL;THE TYPES OF ESTOPPEL, AND THE TYPES OF ESTOPPEL PER REM JUDICATAM
Now estoppel is an interesting devise steeped in history of centuries of English Law. Its purpose is to stop somebody from saying something, or from doing something or from contesting something. Lord Denning gave this vista about the growth of estoppel. Said the famous law lord:
“There has been built up over the centuries in our law a big house with many rooms. It is the house called Estoppel. In Coke’s time it was a small house with only three rooms, namely, estoppel by matter of record, by matter in writing and by matter in pais. But by our time we have so many rooms that we are apt to get confused between them. estoppel per rem judicatam, issue estoppel, estoppel by deed, estoppel by representation, estoppel by conduct, estoppel by acquiescence, estoppel by election or waiver, estoppel by negligence, promissory estoppel, proprietary estoppel and goodness knows what else. These several rooms have this much in common.
They are all under one roof.
Someone is stopped from saying something or other, or doing something or other, or contesting something or other.”
See Mcllkenny vs. Chief Constable of West Midlands Police Force & Anor. (1980) 2 ALL ER 227 at 235. The case was cited in – Ukaegbu vs. Ugoji (1991) 6 NWLR part 196 p.127 at p.166-167.
It is perhaps necessary to examine the “room” of estoppel per rem judicatam and understand its essentials.
There are two kinds of estoppel per rem judicatam namely, cause of action estoppel and issue estoppel. In the former (i.e cause of action estoppel), once it appears that the same cause of action was held to lie (or not to lie) in a final judgment between the same parties or their privies who are litigating in the same capacity (and on the same subject matter), that is the end of the matter. They are precluded from re-litigating the same cause of action. In the latter (i.e issue estoppel) it usually occurs where an issue has earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties or their privies. See Fadiora vs. Gbadebo (1978) 3 SC 219 (1978) ALL NLR 42. per. OBIETONBARA DANIEL-KALIO, J.C.A.

ACTION: CAUSE OF ACTION; WHAT IS A CAUSE OF ACTION

A cause of action of course is the factual situation on which a claimant relies to support his claim and which factual situation is recognized by law as giving rise to a substantive right capable of enforcement. See Ogbimi vs. Ololo (1993) 7 NWLR part 304 p.130. per. OBIETONBARA DANIEL-KALIO, J.C.A.

EVIDENCE: EVIDENCE AT VARIANCE WITH PLEADINGS; THE EFFECT OF EVIDENCE AT VARIANCE WITH PLEADINGS

It is trite law that evidence at variance with pleadings go to no issue. See Spasco Vehicle and Plant Hire Co. Ltd. vs. Alraine (Nig.) Ltd. (1995) 9 SCNJ p.288 at 299. per. OBIETONBARA DANIEL-KALIO, J.C.A.

PRACTICE AND PROCEDURE: PENDING PROCESSES; THE POSITION OF THE LAW ON PENDING PROCESSES BEFORE THE COURT

JUSTICES

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria

MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria

Between

OLANREWAJU ASAMU Appellant(s)

AND

1. ISMAILA LAWANSON
2. KAZZIM LAWANSON
3. THE SHERIFF, HIGH COURT OF OYO STATE Respondent(s)

OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): This appeal is over the Ruling of the High Court of Oyo State in Suit No.I/621/2010 delivered on 20/3/13 wherein the court found that the issues raised by the appellant who was the plaintiff in the land matter in that court was caught by the doctrine of estoppel per rem judicatam.

Dissatisfied with the Ruling, the appellant by a Notice of Appeal filed on 25/1/13 gave vent to his dissatisfaction on the following three grounds:

Ground One
The learned trial judge erred in law in holding that the land which is the subject matter of the present suit is a part of the land which was the subject matter of Suit No.I/317/91 which culminated in Appeal No.SC/72/2004 and that the 2nd and 3rd respondents have been able to show that the parties are privies of the parties in Suit No.SC./72/2004.
Particulars
i. The judgment of the Supreme Court in SC.72/2004 which was relied upon by the 1st and 2nd respondents as constituting res judicata was never put in evidence before the lower court.
ii. The respondents were not able to establish that the appellant or any of his predecessors-in-title was a privy of any of the parties to SC./72/2004.
iii. The record of proceedings of the case that culminated in SC./72/2004 were not tendered before the lower court.
iv. The plans which the lower court relied upon to arrive at its decision were not put in evidence and identified in the manner required by the law.
v. The learned trial judge did not state how the respondents established that the appellant in this case is a party or privy of any of the parties to SC./72/2004.
vi. In the premises of the foregoing, the ingredients for establishing estoppel per rem judicatam were not proved.

Ground Two
The learned judge of the lower court erred in law by failing to avert his mind to the legal contention of the appellant before the lower court that a prior purchaser of land cannot be estopped as being privy in estate by a judgment obtained against him or his predecessor-in-title after the purchase of the land.
Particulars
i. The appellant by his affidavit and the documents which he had submitted before the lower court showed that his predecessor-in-title had acquired title in the land as far back as 1977, while he himself acquired title in the land in 1978.
ii. Suit No.I/377/97 which ended culminated in Appeal No.SC./72/2004 which the respondents had put forward as constituting res judicata was not filed until 1991.
iii. In the premises of i and ii above, the appellant had argued that assuming without conceding that his land is part of the land which was the subject matter of Suit No.I/317/91 which ended in Appeal No.SC./72/2004, his case is not caught by the doctrine of res judicata.
iv. Apart from summarizing both the affidavit evidence and legal arguments of the appellants on this point, the lower court did not determine this point one way or the other or make a decision on the point at all.
v. The omission has thus led to a miscarriage of justice.

Ground Three
The learned judge of the lower court erred in law in dismissing the case of the appellant without hearing the application of the appellant dated the 8th day of December, 2011 but filed on the 9th day of December, 2011.
Particulars
i. By his Amended reply and defence to the 1st and 2nd respondents’ counter claim, the appellant had among other issues raised the issue of the locus standi of the 1st and 2nd respondents to raise a counter-claim and that the counter-claim of the 1st and 2nd respondents was caught by laches and acquiescence.
ii. The appellant based on the aforementioned points of law had applied by his motion dated the 8th day of December, 2011 but filed on the 9th day of December, 2011 that the counter claim of the 1st and 2nd respondents be struck out or dismissed.
iii. The lower court in total disregard of this application heard the application of the 1st and 2nd respondents dated 8th July, 2011 and dismissed the case of the appellant without appellant’s application dated the 8th day of December, 2011 having been heard and determined.
iv. In the premises of particulars i, ii and iii of this ground, the application of the appellant dated the 8th day of December, 2011 was rendered valueless without a hearing thus occasioning a miscarriage of justice.

The appellant, through his learned counsel M.B. Ganiyu Esq. filed his Brief of Argument on 27/5/13. It was deemed as properly filed and served on 24/9/14. Two issues for the determination of the appeal were formulated in the Brief of Argument. The issues are –
1. Whether the lower court was right in holding that the case of the appellant was caught by the doctrine of estoppel per rem judicatam; and
2. Whether the lower court was not in error to have failed or refused to hear and determine the application of the appellant dated the 8th day of December, 2011.

In their own Brief of Argument filed on 10/10/14, the 1st and 2nd respondents acting through their learned counsel J.O.A. Ajakaiye Esq. agreed with the issues as formulated by the appellant’s learned counsel.

When the appeal came up for hearing on the 5th of November, 2014 Samuel Adeniji Esq. appeared for the appellant. He adopted the Appellant’s Brief of Argument and relied on same.

The 1st and 2nd Respondents Brief of Argument was adopted by J.O.A. Ajakaiye Esq. who also relied on the arguments contained in the said Brief of Argument.
The appellant also filed a reply Brief on 20/10/14. The same was also adopted and relied upon by Samuel Adeniji.

On issue I which is whether the lower court was right in holding that the case of the appellant was caught by the doctrine of estoppel per rem judicatam, appellant’s learned counsel observed that the decision of the lower court is contained only in one page (page 16) out of a 17 page Ruling, 15 pages of which were devoted to the arguments of counsel and to summarizing the affidavit evidence before the court. Learned Counsel submitted that the decision of the lower court was not based on the conclusion reached by the court. Learned Counsel submitted that it is not enough for the trial court to have summarized the arguments of learned counsel and reviewed the evidence before it but that the court must state the reasons for its decision. Learned Counsel referred us to Uwegba vs. Attorney-General of Bendel State (1986) 1 NWLR part 16 p.303 at 323; Imah vs. Okogbe (1993) 9 NWLR part 316 p.159 at 177.
Learned Counsel submitted that conditions for a successful plea of estoppel per rem judicatam were not present in the application before the court that led to the Ruling of the court. He referred us to the case of Omiyale vs. Macaulay (2009) 7 NWLR part 1141 p.597 at 613-614; for the conditions that must be present for a successful plea of estoppel per rem judicatam. It was submitted that the 1st and 2nd respondent were not able to establish before the lower court that the appellant is a privy of any of the defendants/respondents in Suit No.I/317/91 which culminated in SC./72/2004 in the Supreme Court and was the basis of the plea of estoppel per rem judicatam.

Appellant’s Learned Counsel submitted that the assertion of the 1st and 2nd respondents that Lanre Laoye Adeyemi is the 4th defendant in Suit No.I/317/91 is not true as the 4th defendant in that suit is Lanre Laoye Ogunyemi. It was submitted that the 1st and 2nd respondents cannot casually explain away the difference in name between Lanre Laoye Ogunyemi and Lanre Laoye Adeyemi. We were referred to the case of Esenowo vs. Ukpong (1999) 6 NWLR part 608 p.611at 617.
Learned Counsel submitted that there is nothing in the record to show that the land in respect of which the appellant filed the suit before the lower court is the same as the land, the subject matter of suit No.I/317/91 which culminated in the Supreme Court as Appeal No.SC./72/2004. Turning to the case of Ayanboye vs. Balogun (1990) 5 NWLR part 151 which learned counsel submitted was relied upon by the 1st and 2nd respondents at the lower court, it was argued that the case states that for a plan tendered in an earlier proceeding to be used in a later proceeding, it must first be tendered in the later proceeding and an opportunity given for cross-examination of the person through whom it was tendered.
It was submitted that the lower court did not explain the features in the plans which made it arrive at the conclusion it reached. It was argued that the lower court could not have arrived at the decision that the appellant’s case was caught by the doctrine of estoppel per rem judicatam on the strength of the judgment of the Supreme Court in Appeal No.SC./72/2004 since the 1st and 2nd respondents did not put forward the judgment of the Supreme Court relied upon. It was submitted that where a party relies on a judgment as constituting estoppel per rem judicatam, it is incumbent on that party to tender the judgment relied upon. The case of Olukoga vs. Fatunde (1996) 7 NWLR part 462 p.516 at 532 was cited in support.
Learned Counsel submitted that a prior purchaser of land cannot be estopped as being privy in estate by a judgment obtained against his predecessor-in-title in an action commenced against that predecessor-in-title after the purchase. We were referred to the case of Ebueku vs. Amola (1988) 2 NWLR part 75 p.128 at p.141; Omiyale vs. Macaulay (supra).
Learned Counsel submitted that since Suit No.I/317/91 which culminated in the Supreme Court judgment in Appeal No.SC.72/2004 was filed in 1991, that is to say, 14 years after Julius Fola Olayioye had acquired title to the land from Olaoye Olanrewaju Adeyemi, the judgment cannot be said to be binding on Julius Fola Olayioye as he had purchased the land prior to the filing of Suit No.I/317/91 which was finally decided by the Supreme Court in Appeal No.SC./72/2004. It was submitted that since the judgment is not binding on Julius Fola Olayioye it cannot be binding on Olanrewaju Asamu, the appellant in this case. Therefore it was further submitted that the case of the appellant is not caught by the plea of estoppel per rem judicatam.

In his argument in response to issue 1, respondents’ learned counsel J.O.A. Ajakaiye Esq. submitted that from the judgment at pages 124-127 of the Record of Appeal which was produced by the appellant and attached to his further affidavit, it was the man called Lanre Laoye Adeyemi that is called Lanre Laoye Ogunyemi, the 4th defendant in Suit No.I/317/91 Lawanson vs. Oyebanji & Ors.
Learned Counsel submitted that it is clear from the Ruling of the lower court that that court reviewed the case of the Respondents in their motion as well as that of the appellant in his counter-affidavit before coming to the conclusion that the case of the appellant is caught by the plea of estoppel per rem judicatam. We were invited to also look at the contents of the judgment attached to the appellant’s counter-affidavit in response to the Respondents motion. The said judgment he contended is between Juilus Fola Olayioye vs. Alhaji Kola Balogun and is at page 120 – 127 of the Record of Appeal.

Learned Counsel submitted that from the judgment, it is clear that the appellant could not have derived title to the land in 1977. It was submitted that looking at the judgment in suit No.I/671/87 the appellant could not have derived his title to the land before 1991 when suit No.I/317/91 was filed. It was contended that Julius Fola Olayioye Balogun and the appellant were all privies of Lanre Laoye, the 4th defendant in suit No.I/317/91. It was contended that the land in dispute is the same land which the respondents litigated upon in suit No.I/317/91 and SC./72/2004 Oyebanji & Ors vs. Afusat Lawanson & Ors. It was submitted that it was Lanre Laoye Adeyemi, 4th defendant in the suit also known as Lanre Laoye Ogunyemi that sold the land now in dispute to Julius Fola Olayioye who in turn sold the land to various people who later sold it to the appellant. We were referred to the recitals in the Sales Agreement of the appellant at page 35 of the Record of Appeal. It was submitted that from the judgment and the Sales Agreement, it is not correct that the appellant derived his title to the land in dispute in 1978 or thereabout as alleged in the Land Sale Agreement at page 35 of the Record in view of the contents of the judgment in suit No.I/671/87. It was contended that the argument of the appellant that the conditions necessary to establish estoppel per rem judicatam are not present in this case, is misplaced.

Before I proceed, let me state that I intend to confine myself strictly to the issues for determination before the court. Two matters outside the orbit of the issues for determination were argued by the appellant’s learned counsel and I intend to ignore them. The first is the argument that the reasons given by the trial judge in his Ruling are confined to only one page of his 17 page Ruling. That issue is not before us and is hereby ignored. The other one has to do with the argument that a prior purchaser of land cannot be caught by the plea of estoppel per rem judicatam as he is not a privy in estate of the previous judgment that is relied upon in invoking the plea. While it is true that ground 2 in the grounds of appeal covers that line of argument, no issue was formulated based on that ground in this appeal. A ground of appeal that does not crystallize into an issue for determination is fit for nothing and will be struck out. It is issues for determination that are related to grounds of appeal that are considered by the court. As stated by the Supreme court in Kala vs. Potiskum & Anor. (1998) 3 NWLR part 540 p.1, “it is trite that where an issue formulated cannot be related to any grounds of appeal filed, the court will strike it out and all arguments presented in its support wilt be discountenanced.” I therefore strike out ground 2 of the grounds of appeal and discountenance the arguments about a prior purchaser of land not being one that can be caught by estoppel per rem judicatam.

Now to the first issue for determination in this appeal: That issue as will be recalled, is whether the lower court was right in holding that the case of the appellant was caught by the plea of estoppel per rem judicatam.
Now estoppel is an interesting devise steeped in history of centuries of English Law. Its purpose is to stop somebody from saying something, or from doing something or from contesting something. Lord Denning gave this vista about the growth of estoppel. Said the famous law lord:
“There has been built up over the centuries in our law a big house with many rooms. It is the house called Estoppel. In Coke’s time it was a small house with only three rooms, namely, estoppel by matter of record, by matter in writing and by matter in pais. But by our time we have so many rooms that we are apt to get confused between them. estoppel per rem judicatam, issue estoppel, estoppel by deed, estoppel by representation, estoppel by conduct, estoppel by acquiescence, estoppel by election or waiver, estoppel by negligence, promissory estoppel, proprietary estoppel and goodness knows what else. These several rooms have this much in common.
They are all under one roof.
Someone is stopped from saying something or other, or doing something or other, or contesting something or other.”
See Mcllkenny vs. Chief Constable of West Midlands Police Force & Anor. (1980) 2 ALL ER 227 at 235. The case was cited in – Ukaegbu vs. Ugoji (1991) 6 NWLR part 196 p.127 at p.166-167.
It is perhaps necessary to examine the “room” of estoppel per rem judicatam and understand its essentials.
There are two kinds of estoppel per rem judicatam namely, cause of action estoppel and issue estoppel. In the former (i.e cause of action estoppel), once it appears that the same cause of action was held to lie (or not to lie) in a final judgment between the same parties or their privies who are litigating in the same capacity (and on the same subject matter), that is the end of the matter. They are precluded from re-litigating the same cause of action. In the latter (i.e issue estoppel) it usually occurs where an issue has earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties or their privies.
See Fadiora vs. Gbadebo (1978) 3 SC 219 (1978) ALL NLR 42.

Let us now examine the matter on appeal to see if the trial judge came to a right decision by finding that the appellant was caught by the plea of estoppel per rem judicatam. A close examination of the facts is called for. The appellant by his Writ of Summons and Statement of Claim at the lower court sought from that court a declaration that he is entitled to peaceful enjoyment of a property at Iyanbule Village Bashorun, Ibadan in Ibadan North East Local Government Area covered by a Certificate of Occupancy. He also sought an order of perpetual injunction restraining the respondents from trespassing into the land or disturbing or intefering with his possession of same. He sought specifically against the 4th respondent a declaration that it cannot issue or execute any writ of possession in respect of the said property. He further sought a restraining order against the 4th respondent perpetually in that regard. It is in respect of the aforementioned claims that the respondents by their motion on notice filed on 8/7/11 sought from the lower court inter-alia, a declaration that the said court lacked jurisdiction to adjudicate the reliefs sought by the appellant by reason of estoppel per rem judicatam.

The following averments in the affidavit in support of the respondents’ motion on notice are salient in respect of their plea of estoppel per rem judicatam.
Paragraph 3:
“That there has been a long history and protracted litigation over title to the land of which the land in dispute forms part by the defendants against one Alhaji Oyebamiji (deceased) and others who also claimed title in suit No.I/317/91…”
Paragraph 5:
“That the plan of the claimant filed with his statement on oath is identical and it is shown to be the same plot occupied by the 5th defendant Alhaji Ganiyu Kola Balogun in Suit No.I/317/91 which the 1st defendant in that suit sold to him from his layout plan…”
Paragraph 6:
“That by virtue of the aforesaid property survey plan of the claimant in this suit, he is shown to be either the privy of the 1st defendant Alhaji Oyebamiji (deceased) in that suit or that of the 5th defendant Alhaji Ganiyu Kola Balogun to whom Alhaji Oyebamiji deceased sold the plot…”
Paragraph 7:
“That the claimant in this suit did not derive his title to the land from the defendants in this suit whose title has been established but from the defendants in suit No.I/317/91 who have been adjudged to be trespassers.”

From the above averments, it is clear that the respondents are invoking the plea of estoppel per rem judicatam by virtue of the cause of action in Suit No.I/317/91.
To succeed in their plea of estoppel per rem judicatam, as can be extrapolated from the case of Fadiora vs. Gbadebo (supra), the respondents had to establish that:
(a) The cause of action, in the two cases are the same;
(b) The parties or their privies, who are litigating in the same capacity and on the same subject matter, are the same.

Now, what is the cause of action in Suit No.I/317/91? I went through the Record of Appeal with a fine-tooth comb and found the judgment in that suit at page 42 – 71 of the Record of Appeal. The cause of action in that case was trespass. That is clearly evident. Although the statement of claim in that case is not included in the Record, it is easy to tell from the claimants’ claim and the judgment, what the cause of action was in Suit No.I/317/91. The plaintiffs’ claims in suit No.I/317/91 as shown in the judgment of Hon. Justice I.O. Olakanmi read as follows:
(a) N10,000 General Damages for trespass being presently committed by the Defendants on the property of Bamidele Ayinla Lawanson (deceased) the father of the plaintiffs lying and being at Orita Bashorun, Abaa Road, Ibadan covered by Deed of Conveyance registered as 50/50/458 of the lands Registry, Ibadan.
(b) Perpetual Injunction restraining the Defendants by themselves, their agents, servants and privies from committing further trespass on the land.”

On the other hand, the cause of action before the lower court is title to land. Let me add that a claim for trespass as in suit No. I/317/91 does not depend upon a claim for declaration of title. See Ogundipe vs. A. G. Kwara State (1993) 8 NWLR part 313 p.558 at p.572. It is clear therefore that the cause of action in suit No.I/317/91 and the cause of action in the suit before the lower court are not the same.

Now to the parties in both cases: who are the parties in Suit No.I/317/91?
The parties are as follows:
1. Iyabo Afusat Lawanson
2. Ismaila Lawanson
3. Kazzim Lawanson
(next of Kin and Beneficiaries of the Estate
of Bamidele Ayinla Lawanson (deceased) – Plaintiffs
AND
1. Alhaji Oyebamiji
2. Mr. Lucky
3. Alhaji Busari Basiru
4. Mr. Lanre Laoye Ogunyemi
5. Alhaji Ganiyu Kola Balogun
6. Mr. Kayode Omotosho – Defendants

The parties in the court below who are on appeal before us on the other hand are Olanrewaju Asamu (Claimant) and Iyabo Afusat Lawanson, Ismaila Lawanson, Kazzim Lawanson and the Sheriff, High Court of Oyo State (defendants).
Clearly, the parties in suit No.I/317/91 and the parties in the matter before us are not the same. The appellant from his statement of claim at page 4 of the Record of Appeal purchased the land from one Joshua Olu Arogundade on 15/3/78. Josuha Olu Arogundade was not a party in suit No. I./317/91. Besides, the appellant bought the land long before the commencement of suit No.I/317/91.
Furthermore, the capacity in which the Lawansons sued and were sued in both cases are not the same. In suit No. I/317/91, the Lawansons sued as next of kin and beneficiaries of the estate of Bamidele Ayinla Lawanson. In the matter on appeal before us, they are defending the action in their individual capacities. The essentials for a successful plea of estoppel per rem judicatam are starkly missing.

Let me in rounding off on issue 1, state that it is the law that a party seeking to rely on estoppel must specifically plead it unless it is so apparently clear that the court has a duty to consider it. See Sosan vs. Ademuyiwa (1986) 3 NWLR part 27 p.24 at p.25. This is also the purport of Order 15 rule 7(i) of the Oyo State High Court (Civil Procedure) Rules 2010. A look at the Respondents’ Statement of Defence and Counter-Claim at page 15 and 16 of the Record of Appeal shows that estoppel per rem judiatam is neither pleaded nor apparent in the respondents pleadings. Estoppel per rem judicatam having not been pleaded, it ought not to have been considered by the lower court.

It is trite law that evidence at variance with pleadings go to no issue. See Spasco Vehicle and Plant Hire Co. Ltd. vs. Alraine (Nig.) Ltd. (1995) 9 SCNJ p.288 at 299.

The evidence adduced in support of the respondents’ motion on notice on the plea of estoppel per rem judicatam go to no issue. The lower court had no business in entertaining the application of the plea in the first place. This is my humble view. All said, issue 1 is resolved in favour of the appellant.

I now turn to issue 2 which is whether the lower court was not in error to have failed or refused to hear and determine the application of the appellant dated the 8th day of December, 2011. On this issue, appellant’s learned counsel submitted that the appellant filed a motion on notice before the lower court seeking to strike out or dismiss the defence and counter-claim of the 2nd and 3rd respondents on the ground of lack of jurisdiction but that the lower court failed to hear and determine the application. It was submitted that the issues raised in the said motion on notice were jurisdictional issues and should have been given priority by the lower court and that the lower court was wrong in refusing to hear the appellant’s motion on notice.

In his submission in response, the respondents’ learned counsel submitted that the lower court having held that the appellant was caught by the plea of estoppel per rem judicatam had no duty to perform about the appellant’s pending motion on notice. It was contended that once estoppel is successfully raised and proved, it ousts the jurisdiction of the court. The case of Dakolo vs. Rewane Dakolo (2011) 198 LRCN 1 at p.33 was cited in support.

The position of the law on pending processes before the court as explained by the Supreme Court is sufficient to resolve the issue. In Akpan vs. Bob (2010) 17 NWLR part 1223 p.421 the Supreme Court stated thus:
“The position of the law is that where there are pending processes before a court, such as motions or other applications, such issues have to be dispensed with before a final decision is taken on the main action or appeal.”
It is therefore wrong for the trial judge not to have taken the appellants’ pending motion on notice before his Ruling which was final in nature. Having said so, I must add that an application may not be heard not because a court deliberately refuses to hear it but as a result of oversight. It is therefore the duty of counsel to draw the attention of the court to any pending application before a final decision. It is when such attention has been drawn and the court refuses to consider the application that the action of the court can be justly deprecated. As pointed out in Akpan vs. Bob (supra) it would be wrong of a court whose attention has been drawn to a pending process to proceed when such process has not been pronounced upon.

Issue 2 is also resolved in favour of the appellant.
All said, this appeal has merit and is hereby allowed. The Ruling of the lower court in suit No. I/621/2010 delivered on 6/11/12 is hereby set aside. It is ordered that the case be remitted to the chief Judge of Oyo State for re-assignment to another judge.

HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, Obietonbara Daniel-Kalio, JCA gave me in advance the judgment just delivered.

I agree with the reasoning and conclusion of my learned brother on all the issues that came up for determination in this appeal. Consequently, I also hold that this appeal has merit. It is hereby allowed. I abide by the consequential order made therein.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: My learned brother Obietonbara Daniel-Kalio JCA afforded me the privilege of reading before now, the lead judgment just delivered.

To my satisfaction all the issues that were presented for determination in this appeal were eloquently and succinctly considered and completely resolved by my learned brother.

I have no agitation nor need for any contribution that would advance the value of the reasoning and conclusions reached in the lead judgment. I therefore have no hesitation in agreeing with him that this appeal is meritorious and it is hereby allowed. I also set aside the ruling of the lower court in Suit No. 1/621/2010 delivered on 6/11/2012. The suit is remitted to the Chief Judge of Oyo State for reassignment to another judge for trial de novo.

Appearances

Samuel AdeniyiFor Appellant

AND

J. O. A. Ajakaiye Esq. with O. O. Adeleke Mrs. for the 1st and 2nd Respondents
3d Respondent dully served.For Respondent