OOKANOLA v. GOVT OF OSUN STATE & ANOR (2020)

OOKANOLA v. GOVT OF OSUN STATE & ANOR

(2020)LCN/15291(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Thursday, June 25, 2020

CA/I/33/2007

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

OBA AKADIRI OOKANOLA APPELANT(S)

And

1. GOVERNMENT OF OSUN STATE 2. AMINU OLAWALE RESPONDENT(S)

RATIO

WHETHER OR NOT ONCE PRELIMINARY OBJECTION TO THE JURISDICTION OF THE COURT IS RAISED, IT IS SUFFICIENT NOTICE TO THE OTHER PARTY

The law is trite in such a situation that, the procedure to adopt is the procedure of a preliminary objection, in which case, filing an affidavit in support thereof would not be required. It is only where the need to rely on facts becomes necessary that the filing of an affidavit is mandatorily required, whether it was a motion or preliminary objection that had been filed – see the cases of:(1) Amah v. Nwankwo (2008) All FWLR (Pt. 411) p. 879 at p. 900; (2) Contract Resource Nig. Ltd. & Anor. V. UBA Plc (2011) LPELR-8137 (SC); (3) Okereke v. James (2012) LPELR-9347 (SC); (4) Olafisoye v. FBN & Anor. (2013) LPELR-21963 (CA); (5) Iwuji & Ors. v. Governor of Imo State & Ors. (2014) LPELR-22824 (CA) and (6) FAAN v. Ani (2010) LPELR-4147 (CA). In the case of: Iwuji & Ors. v. Governor of Imo State &Ors.(supra), this Court Per Abba’Aji, JCA (as he then was now JSC) restated the legal position in the following pointed words:
“It is trite that once preliminary objection to the jurisdiction of the Court is raised, it is sufficient notice to the other party since no affidavit need be filed by the objector. In Bello vs. National Bank of Nigeria (1999) 6 NWLR (Pt. 246) 206, it was held that there is no mandatory requirement under the Rules of the High Court for a preliminary objection to be accompanied by an affidavit except where the party raising the objection has proceeded by way of Motion on Notice. In Okoi vs. Ibiang (Supra) it was also held that an objection must be based on the document already before the Court and no evidence whether oral or documentary shall be allowed. A preliminary objection needs not be supported by an affidavit as long as enough material is placed before the Court on which it can judiciously pronounce on the objection.” PER OMOLEYE, J.C.A.

DUTY OF THE COURT WHERE THE JURISDICTION OF THE COURT TO ENTERTAIN A MATTER IS CHALLANGED

After all the law is equally settled that, where the jurisdiction of the Court to entertain a cause or matter is challenged, it is only the originating process that would be examined in order to determine the issue – see the cases of: (1) Opia v. INEC & Anor. (2014) LPELR-2186 (SC); (2) Balogun v. Ode & Ors.(2007) 4 NWLR (Pt. 1023) p. 1 at p. 14, paras. D-H and (3) A.-G., Anambra State v. A.-G., Federation (1994) 3 NWLR (Pt. 335) p. 659. PER OMOLEYE, J.C.A.

CONDITIONS TO BE FULFILLED BEFORE A COURT CAN ASSUME JURISDICTION ON A MATTER

It is equally well settled law that, before a Court can assume jurisdiction on a matter, it must be satisfied that, the following conditions are satisfied, namely: (i) the Court is properly constituted regarding the number and qualification of its members, (ii) the subject-matter of the action is within its jurisdiction as donated to it by law, (iii) the action is initiated by due process of law and (iv) any condition precedent to the exercise of its jurisdiction had been fulfilled. See the cases of: (1) Madukolu v. Nkemdilim (1962) 2 SCNLR p.341; (2) Tukur v. Taraba State (1997) 6 SCNJ p. 81; (3) Dairo v. UBN (2007) 16 NWLR (Pt. 1029) p. 164; (4) Okereke v. Yar’Adua (2008) LPELR-2446 (SC); (5) Saraki v. FRN (2016) 3 NWLR (Pt. 1500) p. 531; (6) Okpe v. Fan Milk Plc (2017) 2 NWLR (Pt. 1549) p. 282; (7) Osi v. Accord Party (2017) 3 NWLR (Pt.1553) p. 387 and (8) Buremoh v. Akande (2017) LPELR-41565 (SC). It is also trite that, all the above stated conditions must co-exist in order to instill jurisdiction in the Court. PER OMOLEYE, J.C.A.

WHETHER ORIGINATING SUMMONS IS USED TO COMMENCE AN ACTION WHERE THE QUESTION OF PURE LAW IS INVOLVED

The law is quite settled that Originating Summons, like that employed by Appellant in his action before the trial Court, the subject of this appeal, may only be employed to commence an action where the issue involved is one of the construction of a written law, instrument, deed, will or other document or where some questions of pure law is involved or where there is unlikely to be any substantial dispute on issues of facts between the parties. See the cases of: (1) National Bank of Nig. Ltd & Anor. v. Alakija & Anor. (1978) LPELR-1949 (SC); (2) Keyamo v. House of Assembly, Lagos State & Ors.(2002) 18 NWLR (Pt.799) p. 605; (3) Ossai v. Wakwah & Ors.(2006) 4 NWLR (Pt. 969) p. 208 (4) Pam & Anor. v. Mohammed & Anor. (2008) 16 NWLR (Pt.1112) p.1; (5) Ezeigwe v. Nwawulu & Ors.(2010) 4 NWLR (Pt. 1183) p. 159; (6) Nagogo v. CPC &Ors.(2013) 2 NLWR (Pt. 1339) p. 448; (7) Jev & Anor. v. Iyortyom & Ors. (2014) 14 NWLR (Pt. 1428) p. 575 and (8) Alfa v. Attai & Ors.(2017) LPELR-42579 (SC). Originating Summons are therefore used for non-contentious actions and not used in hostile proceedings. PER OMOLEYE, J.C.A.

WHETHER OR NOT ORIGINATING SUMMONS MUST BE EMPLOYED IN ALL CASES WHERE THERE IS CONFLICTING AFFIDAVIT EVIDENCE

Albeit, the law is also settled that, it is not in all cases where there is conflicting affidavit evidence that Originating Summons cannot be employed, where there exists documentary evidence upon which the Court may ground its decision, the action may be heard and determined on such evidence – see the cases of: (1) Falobi v. Falobi (1976) LPELR-1236 (SC); (2) Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) p. 688; (3) Atungwu & Anor. v. Ochekwu (2013) LPELR-20935 (SC); (4) Ogah v. Ikpeazu & Ors. (2017) LPELR-42372 (SC) and (5) Ezeani v. Uzokwelu & Ors.(2018) LPELR-43760 (CA). PER OMOLEYE, J.C.A.

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Osun State sitting in Osogbo, per F. O. Ogunsola, C.J. [(of blessed memory) (hereinafter referred to as “the trial Court”)] delivered on 16th of August, 2006, in Suit No. HOS/30/05.

The background facts of this matter are that, the Appellant as plaintiff on 17th of March, 2005 filed an action against the Respondents as defendants vide an Originating Summons. He claimed against the Respondents as follows:
“1. DECLARATION that the Plaintiff who has been the Olokinni of Okinni since 1999 and at all time material during the pendency of the appeals CA/I/144/94 and CA/I/133/2000 is entitled to continue in the occupation of the throne of Olokinni until the decisions of the Court of Appeal in the pending appeals state otherwise.
2. DECLARATION that the 2nd defendant cannot be made an Olokinni of Okinni in view of the pendency of appeals CA/I/144/94 and Ca/I/133/2000 in respect of disputes over the throne of Olokinni of Okinni as between the interested parties herein.
3. DECLARATION that any appointment of the 2nd defendant as the Olokinni of Okinni during the pendency of appeals referred to in paragraphs 1 and 2 (supra) is in breach of the rule of law and therefore null and void and of no effect whatsoever.
4. DECLARATION that the pendency of the aforementioned appeals in respect of the throne of Olokinni of Okinni makes the litigation not to end and 2nd defendant can not claim any right, privileges and/or entitlements whatsoever in respect of the stool of Olokinni until the determination of the pending appeals.
5. AN ORDER directing the 1st defendant to reinstate the Plaintiff back to his position as the substantive king of Olokinni pending the determination of the appeals aforementioned.
6. AN ORDER of injunction restraining the 1st defendant from giving recognition or further recognition to any appointment of the 2nd defendant as the Olokinni of Okinni pending the determination of the aforementioned appeals.
7. AN ORDER of injunction restraining the 2nd defendant from parading or further parading, presenting or further presenting or styling or further styling himself as the Olokinni of Okinni or from adorning or further adorning any paraphernalia or symbol of Olokinni of Okinni or Okinni pending the determination of the said appeals.”

The Appellant consequently submitted for the determination of the trial Court the following questions:
“1. Whether in view of the subsisting judgment of Honourable Justice Abiodun Alao delivered in suit No. HOS/109/91 (Abraham Atoyebi & 2 others versus Tijani Adegboye & 2 others) in which the claims of the 2nd defendant to the throne of Okinni were dismissed in their entirety and the Osun State Government warned not to meddle in the Okinni chieftaincy dispute (and which judgment the 2nd defendant has appealed) the 1st defendant can install or cause to be installed or pay the 2nd defendant any salaries or stipends as the Olokinni of Okinni until he has successfully challenged the said judgment in the Court of Appeal?
2. Whether the declaratory judgment delivered by Honourable Justice J. A. Olowofoyeku in suit No. HOS/116/91 (Chief Jonathan Abioye & 1 other Versus Oba Jimoh Oyeyemi & 7 others) in which the learned judge dismissed the claim of the plaintiff for a perpetual injunction restraining the Plaintiff in this suit from parading himself as the Olokinni of Okinni but nonetheless granted a declaratory relief is a sufficient authority upon which the 1st defendant can install the 2nd defendant as the Olokinni of Okinni and pay him salaries as the Olokinni of Okinni when he was not a party to the said judgment and when the said judgment foreclosed on the claims of his ruling house that is entitled to produce the next Olokinni of Okinni?
3. Whether in view of the judgment referred to in paragraphs 1 and 2 (supra) and of the yet to be determined appeal filed by the 2nd defendant against the subsisting judgment, the decision of the 1st defendant to install the 2nd is not illegal, unconstitutional, and an abuse of all known canons of Law and Justice and an invitation to anarchy?
4. Whether the 1st defendant who was not a party directly or by representation in suit No. HOS/116/91 can execute a declaratory judgment in favour of the 2nd defendant who was himself not a party to the said action?
5. Whether in view of the legal principles and settled position of law governing executory judgment, the 2nd defendant can effectively enforce the judgment of Olowofoyeku J, in Chief Jonathan Abioye & 1 other Versus Oba Jimoh Oyeyemi & 7 others (supra)?”

Upon service of the Originating Summons along with its supporting affidavit on the Respondents, the 2nd Respondent by a Notice of Preliminary Objection dated and filed on 12th of April, 2005 challenged the jurisdiction of the trial Court to entertain the action of the Appellant. The grounds upon which the objection was predicated are as follows:
“1. The originating summons dated 16th March, 2005 and filed on 17th March, 2005 commencing this action was inappropriate as the case or issues therein will involve substantial dispute of facts.
2. That this case in as much as it relates to the appointment, installation and recognition of the 2nd defendant/applicant (Oba Aminu Olawale) as the Olokinni of Okinniin September, 2001 is statute barred having been brought/filed outside the three months prescribes by the Public Officers Protection Law/Act.
3. That this case in as much as it relates to the ejection of the plaintiff (Akadiri Okanola) from the Olokinni palace in October, 2004 by the 1st defendant/respondent or its agents or servants is statute barred having been brought/filed outside the three months prescribed by the Public Officers Protection Law/Act.
4. That the reliefs being sought in this case and the issues arising therefore have been adjudicated upon by this Honourable Court in the following case:
(a) Suit No. HOS/116/91 delivered by Hon. Justice Olowofoyeku on 4/3/97.
(b) Suit No. HOS/165/97 delivered by Hon. Justice Bada on 18/6/98.
(c) Suit No. HOS/145/2001 delivered by Hon. Justice R. O. Yussuff on 13/12/2001.
5. That the originating summons in this case constitutes an abuse of the Court process and should therefore be dismissed or struck out in that:
(a) The same or substantially similar reliefs have been filed and struck out by this Court it Suit No. HOS/Misc.9/2004 by Hon. Justice Bada on 15/3/2005.
(b) The same or substantially similar reliefs had been filed and pursued at the Court of Appeal, Ibadan without success in motion No.CA/1/M.8/2000 and CA/1/M.150/98.
(c) This case was brought or filed mala fide and to annoy, injure and oppress or put the 2nd defendant/applicant (Oba Aminu Olawale) to great legal expense.”

Subsequently, an affidavit of twelve paragraphs was purportedly filed by the 2nd Respondent in support of the Preliminary Objection on the 14th of June, 2005.

The 1st Respondent also by a motion on notice dated 29th of June, 2005, filed on the 15th of July, 2005 accompanied by an affidavit of five paragraphs, sought the order of the trial Court striking out or dismissing the action of the Appellant on the ground that same was statute-barred.

The Notice of Preliminary Objection of the 2nd Respondent was consolidated and heard along with the 1st Respondent’s motion on notice and ruling in respect thereof reserved on the 21st of June, 2006 at the close of the arguments of parties‘ counsel.

It is pertinent to state that, at the hearing of the Preliminary Objection and motion on notice, the Appellant equally objected to the competence of the Preliminary Objection of the 2nd Respondent. It was argued in favour of the Appellant that, by filing an affidavit sequel to the notice of Preliminary Objection, the 2nd Respondent had deviated from the procedure of Preliminary Objection to the procedure of motion on notice. Hence, since the said affidavit, was not filed along with the preliminary objection turned motion on notice as required by the rules of the trial Court, but filed out of time and without the leave of Court, same was incompetent. The Preliminary Objection or motion was therefore plagued with incompetence, thereby robbing the trial Court of jurisdiction to adjudicate upon same. The Appellant’s counsel argued that the trial Court should have accordingly struck out the said Preliminary Objection for incompetence.

In the purported joint decision delivered on the 16th of August, 2006 on both the Preliminary Objection of the 2nd Respondent and motion on notice of the 1st Respondent, the trial Court over-ruled the objection of the Appellant to the competence of the Preliminary Objection, upheld the Preliminary Objection and struck out the Appellant’s action for having been commenced wrongly by way of originating summons. The Appellant was displeased with the said decision and therefore filed this appeal against it to this Court.

The Notice of Appeal of the Appellant made up of four grounds of appeal is dated the 24th of August, 2006 and was filed on the 4th of September, 2006. For good understanding and easy referencing, the said four grounds of appeal with their particulars are hereunder set forth verbatim as follows:
GROUND OF APPEAL
1. The learned trial judge erred in law in sustaining the application of the 2nd Defendant/Respondent when the application was patently defective and incompetent.
PARTICULARS OF ERROR
(a) The 2nd Defendant filed a Preliminary Objection against the Plaintiff/Appellant’s Originating Summons on 12th day of April, 2005.
(b) The affidavit in support of Preliminary Objection was filed on the 14th day of June, 2005.
(c) The 2nd Defendant’s counsel relied on the supporting affidavit in the course of his argument on the 22nd April, 2006.
(d) The Plaintiff’s counsel objected to the competence of the 2nd Defendant’s supporting affidavit having not been filed along with the Notice of Preliminary Objection.
(e) The Court relied on the affidavit in support of the Preliminary Objection in its ruling striking out the Plaintiff’s suit.
(f) An application filed on the date different from the date the supporting affidavit was filed is incompetent.

The learned trial Judge erred in law when he struck out the Plaintiff/Appellant’s Originating Summons on the ground that the facts of the case are in dispute.
PARTICULARS OF ERROR
(a) The Plaintiff/Appellant’s Originating Summons sought to interprete the effect of declaratory judgment of Justice J. A. Olowofoyeku and the pendency of two appeals in respect of a subject matter, that is, stool of Olokinni.
(b) The Originating Summons filed had a supporting affidavit and further affidavit in support.
(c) The Respondents did not file any Counter-Affidavit to controvert the depositions in the two affidavits in support of the Originating Summons.
(d) The striking out of the Originating Summons has occasioned a miscarriage of justice.
(e) Facts not denied cannot be said to be in dispute.
3. The learned trial Judge erred in law when he failed to order the parties to file their pleadings instead of striking out the Originating Summons.
PARTICULARS OF ERROR
(a) The Plaintiff/Appellant’s submitted issues bordering on the construction and interpretation of the effect of two judgments which are the subject matters of pending appeals for determination of the said issues submitted to the lower Court.
(b) The Plaintiff/Appellant’s reliefs before the Court were premised on the determination of the said issues submitted to the lower Court.
(c) Originating Summons in which these issues for determinations were submitted was not specifically countered or controverted by the Respondent.
(d) The lower Court ought to have ordered the filing of pleadings when it found that the proceeding was hostile.
(e) The legal order has since shifted from the realm of technicality to that of doing substantial justice.
(f) The compliant of the 2nd Respondent leading to the striking out of the Originating Summons was based on form and manner of commencement of an action.
(g) The lower Court ought to have saved the Plaintiff/Appellant’s right of access to Court.
4. The learned trial Judge erred in law when he failed to counter and/or give effect to the Provisions of Order 2 Rule 1 and Order 47 Rule 1 of the Osun State High Court (Civil Procedure) rules in his ruling.
PARTICULARS OF ERROR
(a) The lower Court struck out the Originating Summons on non-compliance with the requirements of form and manner of beginning an action.
(b) The counsel to the Plaintiff/Appellant called the attention of the lower Court to the Provisions of Order 2 Rule 1 and Order 47 Rule 1 of the Osun State High Court Rules in the course of argument.
(c) Both provisions of the rules are directed at achieving substantial justice.
(d) The lower Court did not make any finding or conclusion in respect of the application of the said provisions to the Originating Summons.
(e) Court is duty bound to give effect to the law and the constitution.
RULES SOUGHT FROM THE COURT OF APPEAL
(1) To allow this appeal and set aside the decision of the Court below.
(2) Remitting the case back for hearing before another Judge.”

In compliance with the rules of this Court, Mr. Sikiru O. Adewoye of the law firm of Lateef O. Fagbemi & Co., Temitope Chambers, Appellant’s counsel settled the Appellant’s brief of argument in substantiation of the grouse of the Appellant about the judgment of the trial Court being appealed against. In the Appellant’s brief of argument dated the 21st of August, 2009, filed on the 29th of September, 2009 but deemed properly filed on the 23rd of February, 2015, the two issues distilled for determination from the four grounds of appeal read as follows:
“(i) Whether the learned trial judge had jurisdiction to entertain the 2nd Respondent’s application on which the decision of the Court was based? (Ground 1); and
(ii) Whether the learned trial Court was not wrong in law when it struck out the case of the Appellant? (Grounds 2, 3 and 4).”

However, the 1st and 2nd Respondents did not react to the appeal despite the fact that they were duly served with the record of appeal and all the processes filed in the appeal by the Appellant especially, the Appellant’s brief of argument as well as hearing notices in respect of all the proceedings therein. Unsurprisingly therefore, on the 18th of March, 2020 when the appeal was heard by this Court, the 1st and 2nd Respondents were not present in Court and no counsel represented them either, even though we were satisfied that hearing notices were served on them for the hearing of the appeal. This appeal is therefore essentially undefended.

Although, in an appeal where the Respondent did not file a brief of argument, such a respondent would be deemed to have conceded to the issues raised and submissions contained in the appellant’s brief of argument, this is immaterial and of no moment, for failure to file the respondent’s brief in no way puts the appellant at an advantage, since the judgment of the Court below is in favour of the respondent. The Appellant therefore still has to show that the judgment of the Court below was wrong. That is, the appellant has to succeed on the merit of the issues argued in his brief of argument. Hence, this Court still owes a duty to consider and determine whether or not the relevant appeal is sustainable – See the cases of: (1) Akanbi v. Alatede (Nig.) Ltd. (2000) 1 NWLR (Pt. 639) p. 125; (2) Fatokun v. Somadi (2002) 1 NWLR (Pt. 802) p. 431; (3) John Holt Ltd. v. Oputa (1996) 9 NWLR (Pt. 470) p. 101; (4) Sofolahan v. Folakan (1999) 10 NWLR (Pt. 621) p. 86; (5) Okelola v. Adeleke (2004) LPELR-2438(SC); (6) Echere & Ors. v. Ezirike & Ors. (2006) LPELR-1000 (SC) and (7) Cameroon Airlines v. Otutuizu (2011) 4 NWLR (Pt. 1238) p.512. It is therefore legally incumbent on this Court to still proceed to the determination of the instant appeal on the merit based on the processes filed by the Appellant.

I have examined the two issues identified for the determination of the appeal in the Appellantâ’s brief of argument. Both have been reproduced earlier on in this judgment. They are in accord with the grounds of appeal and I shall adopt and consider them seriatim in resolving the intendment of the appeal.

ISSUE ONE
Whether the learned trial judge had jurisdiction to entertain the 2nd Respondent’s application on which the decision of the Court was based? (Ground 1)

SUMMARY OF SUBMISSIONS OF APPELLANT’S COUNSEL
The Appellant’s principal complaint under this head is that, the trial Court failed to consider and pronounce on the Appellant’s objection to the competence of the 2nd Respondent’s notice of preliminary objection. According to Learned Counsel for the Appellant, the 2nd Respondent’s notice of preliminary objection being incompetent, the trial Court was devoid of jurisdiction to entertain same. In his opinion, failure of the trial Court to advert to and rule on the said objection amounted to a denial of fair hearing to the Appellant. He referred to the cases of: (1) Ogbanu v. Oti (2009) 8 NWLR (Pt. 670) p. 590 and (2) X. S. (Nig.) Ltd. v. Taisei (W. A.) Ltd. (2006) 15 NWLR (Pt. 1003) p.533 at p. 558. That the said abdication of its duty by the trial Court to determine the very important point of law vitiated the decision of the trial Court under scrutiny. On this position, he referred to the cases of: (1) Abiodun v. C. J. Kwara State (2007) 18 NWLR (Pt. 1065) p. 109 at pgs. 152-153; (2) Unical v. Ugochukwu (No. 2) (2007) 17 NWLR (Pt. 1063) p. 248 at pgs.269-270; (3) Okonkwo v. Udoh (1997) 9 NWLR (Pt. 519) p.16 and (4) Adelaja v. Oguntayo (2001) 6 NWLR (Pt. 710) p.603.

On the target of the Appellant’s objection, the learned counsel argued that although the said process of the 2nd Respondent was styled “Preliminary Objection”, it was intended to be a “Motion on Notice” which required compliance with the provisions of Order 8 Rules 3 and 4 of the Rules of the trial Court. Order 8 Rule 3 provides that, every motion shall be supported by an affidavit setting out the grounds on which the party moving intends to rely and no affidavit shall be used at the hearing unless it is duly filed. Further under Order 8 Rule 4 of the same Rules of the trial Court, where service of a motion is required by the rules or directed by the Court or Judge, the motion shall be served together with all affidavits on which the party moving intends to rely. By a community reading of the provisions of Order 8 Rules 3 and 4, it is mandatory that an affidavit in support of a motion be filed together with the motion so that the facts upon which the motion is based could be readily ascertained. The affidavit envisaged in law under the rules of Court is, “a supporting affidavit”. On the contrary, where the filing of an affidavit upon which a motion is based is postponed to a later date, the applicant would then be allowed to seek for facts in justification of the motion thereby making the affidavit, “a ratifying affidavit”, and this is not the intendment of the law under the rules of Court.

According to counsel, at the time the motion of the 2nd Respondent was filed, it was clear that there was no supporting affidavit in existence. Therefore, the motion was incompetent, as by virtue of Order 8 Rule 3 of the Rules of the trial Court, a motion must at the time of its filing be supported by an affidavit of facts on which the applicant relied.

Based on the forgoing submissions, the learned counsel for the Appellant contended that it is incumbent on this Court to invoke its powers under Section 15 of the Court of Appeal Act, 2004 to determine the competence of the 2nd Respondent’s so-called Preliminary Objection. He further referred on this contention to the cases of: (1) Abalaka v. Ministry of Health (2006) 2 NWLR (Pt. 963) p.105 and (2) N. B. C. Plc v. Borgundu (1999) 2 NWLR (Pt. 591) p. 408.

RESOLUTION OF ISSUE ONE
As stated at the debut of this head, the complaint of the Appellant is that the Notice of Preliminary Objection of the 2nd Respondent filed at the trial Court challenging the competence of the Appellant’s main action was itself incompetent thereby robbing the trial Court of jurisdiction to entertain the said preliminary objection. Before going into the merit of the Appellant’s objection, it is apposite to straightaway dispose of the contention of the Appellant’s counsel that the trial Court completely failed to advert to the Appellant’s objection to the competence of the 2nd Respondent’s notice of preliminary objection in the decision under scrutiny.

The contention of the Appellant’s counsel in this regard is quite erroneous as it is unsupportable by the record of appeal. In my very firm view, the trial Court duly considered the objection when it stated in its decision contained in lines 8 to 27 at page 43 to lines 34 to 2 at pages 45 to 46, all of the record of appeal as follows:
“In his reply, Mr. Adewoye submitted that the notice of Preliminary Objection is incompetent and same be struck out for non-compliance with the rules of Court.
The non-compliance according to Counsel, arose from the fact that being a notice of Preliminary Objection having accompanied it with an affidavit, it became a motion on notice. He cited Bello V. NBN (1992) 6 Nigerian Weekly Law Report (part 246) p. 206 at 209-213 paragraph A-H.
He submitted that what governed an application are contained in Order 8 Rule 3 and that the applicant has not complied with this rule.
After filing the notice of Preliminary Objection, he filed an affidavit where leave of Court ought to have been obtained before filing of subsequent affidavits. Counsel submitted that not having obtained the leave of Court to regularize the affidavit filed, the application was incompetent. He referred to ground (1) of the 1st Defendant counsel’s application and submitted that the procedure adopted by way of Originating Summons was the most appropriate in the circumstance. …
On the other hand, plaintiff’s Counsel submitted that Order 8(3) of the High Court Rules must be complied with by Counsel. It provides:
8(3) “Every motion shall be supported by affidavit setting out the grounds on which the party moving intends to rely and no affidavit shall be used at the hearing unless it is duly filed.”
Counsel for the Plaintiff then cited Bello v. N.B.N. (Supra) at p.209-213 (Sic) paragraphs A, H.”

Sequel to the above stated finding, the trial Court went ahead to make its pronouncement and overruled the objection of the Appellant. The trial Court indeed relied on the case of: Bello v. N. B. N (supra) cited by the Appellant’s counsel in this wise. Specifically in its own words in lines 2 to 14 at page 46 of the record of appeal, the trial Court stated and held as follows:
“At paragraph H of page 213, Achike JCA (as (sic) then was) held that an affidavit is not a prerequisite to (sic) the raising of preliminary objection unless the objection takes the form of a motion on notice. At p. 219 the Learned jurist went on:
“Certainly there is no hard and fast rule that a preliminary objection need be supported by an affidavit so long enough material is placed before the trial Court on which it can judiciously pronounce on the preliminary objection.”
In view of (sic) above, I am of the firm view that the notice of Preliminary Objective was validly filed on which I can judiciously make my pronouncement.”

It is crystal clear, from the above reproduced portions of the decision as borne out of the record of appeal, that the trial Court duly considered and ruled against the objection of the Appellant to the competence of the 2nd Respondent’s Notice of Preliminary Objection.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Now, regarding the correctitudeness of the above stated opinion of the trial Court that the Preliminary Objection of the 2nd Respondent was competent, I am also of the firm view that the said opinion of the trial Court is sound in law. I have earlier on in this judgment reproduced the five grounds upon which the 2nd Respondent’s notice of preliminary objection was predicated. All the five grounds are pure points of law. The summation of which is that the Appellant’s action was not properly initiated, was statute-barred and constituted an abuse of Court process. This is very patent and indicative of the intention of the 2nd Respondent to challenge the competence of both the action of the Appellant and jurisdiction of the trial Court to entertain same vide the Notice of Preliminary Objection, notwithstanding the subsequent filing of an affidavit thereto. The clear intention of the 2nd Respondent is to contend that the Appellant’s action is incompetent, fundamentally defective and ought to be terminated and made to abate accordingly. The law is trite in such a situation that, the procedure to adopt is the procedure of a preliminary objection, in which case, filing an affidavit in support thereof would not be required. It is only where the need to rely on facts becomes necessary that the filing of an affidavit is mandatorily required, whether it was a motion or preliminary objection that had been filed – see the cases of:(1) Amah v. Nwankwo (2008) All FWLR (Pt. 411) p. 879 at p. 900; (2) Contract Resource Nig. Ltd. & Anor. V. UBA Plc (2011) LPELR-8137 (SC); (3) Okereke v. James (2012) LPELR-9347 (SC); (4) Olafisoye v. FBN & Anor. (2013) LPELR-21963 (CA); (5) Iwuji & Ors. v. Governor of Imo State & Ors. (2014) LPELR-22824 (CA) and (6) FAAN v. Ani (2010) LPELR-4147 (CA). In the case of: Iwuji & Ors. v. Governor of Imo State &Ors.(supra), this Court Per Abba’Aji, JCA (as he then was now JSC) restated the legal position in the following pointed words:
“It is trite that once preliminary objection to the jurisdiction of the Court is raised, it is sufficient notice to the other party since no affidavit need be filed by the objector. In Bello vs. National Bank of Nigeria (1999) 6 NWLR (Pt. 246) 206, it was held that there is no mandatory requirement under the Rules of the High Court for a preliminary objection to be accompanied by an affidavit except where the party raising the objection has proceeded by way of Motion on Notice. In Okoi vs. Ibiang (Supra) it was also held that an objection must be based on the document already before the Court and no evidence whether oral or documentary shall be allowed. A preliminary objection needs not be supported by an affidavit as long as enough material is placed before the Court on which it can judiciously pronounce on the objection.”
Consequent upon the foregoing elucidation, I am of the firm view and hold that the preliminary objection of the 2nd Respondent was competently raised based on the grounds of strict law upon which it was predicated. The subsequent affidavit by the 2nd Respondent was thus not necessary or consequential and an exercise in superfluity. What is more, the materials contained in the Appellant’s originating process, especially both the Affidavit and Further Affidavit in support of the Originating Summons, were sufficient to enable the trial Court determine and pronounce upon the points of the objection raised by the 2nd Respondent.

For the above stated reasons, I hold that issue one fails to avail the Appellant and is therefore resolved against him.

ISSUE TWO
“Whether the learned trial Court was not wrong in law when it struck out the case of the Appellant? (Grounds 2, 3 and 4).”

SUMMARY OF THE SUBMISSIONS OF APPELLANT’S COUNSEL
The complaints of the Appellant under this head are bifold. The first complaint of the Appellant is that the subject of the main action of the Appellant before the trial Court is simply the interpretation of two earlier judgments of the High Court of Osun State, not the trial Court, in relation to the stool of Olokinni of Okinni. His second complaint is that, even if there are disputable facts on the face of the Originating Summons of the Appellant as held by the trial Court, the appropriate order of the trial Court should have been for the parties to file and exchange pleadings and not to strike out the action of the Appellant.

On the first prong, the Learned Counsel for the Appellant submitted that, in activating the jurisdiction of a Court and ascertaining the grouse of a Plaintiff to which a Court is called upon to determine, what is paramount is that the Court must look at the Originating Processes as filed by the Plaintiff. He referred to the case of: Idachaba v. Ilona (2007) 6 NWLR (Pt. 1030) p. 277 at pgs. 294 – 295.

In the instant case, it is the Originating Summons of the Appellant that determines the nature of the case before the Court and not the response of the defendant. It is interesting to note that there was even no defence filed at all in the case, as the Respondents did not file any Counter-Affidavits to the Appellant’s Originating Summons. An examination of the Originating Summons of the Appellant shows that what the Appellant submitted before the trial Court was simply a case to declare his right as the Olokinni of Okinni pursuant to the judgment of Alao J. in Suit No. HOS/109/91, notwithstanding that the said judgment is the subject of appeal No. CA/I/144/94. Failure of the 1st and 2nd Respondents to file Counter-Affidavits to the Originating Summons is equivalent to admitting the facts contained in the said supporting affidavits. It is also pertinent to state that the objection filed by the Respondents constitute a demurrer where every allegation of facts contained in the Plaintiff’s Originating Summons are deemed to have been admitted. He relied in this wise on the cases of: (1) INC v. Mobil Oil (Nig.) Ltd. (1999) 5 NWLR (Pt. 601) p. 12 and (2) Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) p. 423. Thus, the Preliminary Objection cannot be an answer to the Appellant’s Originating Summons. The law as it is still remains that, for a Defendant to properly answer an Originating Summons of a Plaintiff, he must file a Counter-Affidavit thereto, failure to so do is tantamount to not filing any defence at all. Hence, the failure of the Respondents to file any Counter-Affidavit in response to the Appellant’s Originating Summons in the instant matter was fatal to the case of the Respondents and the conclusive inference therefrom is that the Respondents had no answer to the summons.

Regarding the second prong, it was contended by Counsel that, the form in which an action is framed is not in itself significant. What is necessary is that a Plaintiff should state his case with such sufficient facts as to entitle him to a remedy known to law against the Defendant and this is in accord with the principle of doing substantial justice as against the observance of abstract or technical justice. It is a settled position of law that irregularities as to procedure for commencing an action for the enforcement of a right cannot be the basis for denying a Plaintiff access to the Courts. He relied on the cases of: (1) Bello v. A. G. Oyo State (1986) 5 NWLR (Pt. 45) p. 828 and (2) Adebayo v. Johnson (1969) 1 All NLR p. 176.

He argued further that, assuming but without conceding that, the Appellant’s action ought to have been commenced by the procedure of Writ of Summons and not by Originating Summons, as the learned trial Judge had found that the issues as espoused in the Appellant’s Originating Summons are in dispute, the position of law is that, the trial Judge ought to have ordered for pleadings to be filed by the parties instead of striking out the suit of the Appellant in its entirety. He referred on this legal position to the cases of: (1) Adeyelu II v. Ajagungbade III (2007) 14 NWLR (Pt. 1053) p. 1 and (2) Dapialong v. Lalong (2007) 5 NWLR (Pt. 1026) p. 199 at pgs. 212-213. The order of the learned trial Judge striking out the Appellant’s suit therefore constituted an act of grave injustice. He relied on the case of: Saleh v. Monguno (2006) 15 NWLR (Pt. 1001) p. 26 at p. 71.

The learned counsel in the alternative thus urged upon this Court to allow the appeal, set aside the decision of the trial Court and remit the Appellant’s suit for hearing “de novo” before another Judge of the trial Court.

RESOLUTION OF ISSUE TWO
The law is settled as rightly submitted by the Appellant’s counsel that, it is the claim of the plaintiff that determines the jurisdiction of the Court.

The complaint of the 2nd Respondent in his preliminary objection under this limb of the appeal is that, the condition that an action must be initiated by due process of law was not fulfilled by the Appellant. For, the said action ought to have been initiated by the procedure of Writ of Summons in that serious issues of disputed facts are involved and not by the procedure of Originating Summons as done by the Appellant.
An Originating Process is a procedure used for beginning a case, it is the substructure, the cornerstone of any proceedings before any Court. It therefore affects the jurisdiction of the Court, as no Court can assume jurisdiction through an invalid Originating Process. Thus proceedings predicated upon an invalid originating process however brilliantly conducted will consequently amount to a nullity. The submission of the Appellant’s learned counsel that, failure to properly commence an action is a mere irregularity that can be glossed over by the Court is thus a legal fallacy.

There are four broad modes of commencing civil suits namely, by (a) Writ of Summons; (b) Originating Summons; (c) Originating Motions and (d) Petitions. The first three modes are usually prescribed and governed by the Rules of Courts, while petitions are employed in commencing suits pursuant to express statutory provisions. Each of these four modes is referred to as an Originating Process.

Before proceeding to determine whether the mode of Originating Summons employed by the Appellant was appropriate in the circumstances and in view of the nature of the issues involved in the action, I consider it apposite to advert to the point raised by the Appellant that the Respondents ought to have first filed their counter-affidavits in defence to his Originating Summons prior to filing their objection to the action. According to the Appellant’s counsel, failure to file a counter-affidavit was fatal to the case of the Respondents. Further, that the Preliminary Objection and motion on notice filed by the Respondents constituted a demurrer where every allegation of facts contained in the Appellant’s affidavit in support of the Originating Summons is deemed to have been admitted by them. I am not at one with the foregoing propositions of the learned counsel for the Appellant. For, the extant rules of the trial Court have expressly abolished demurrer – see Order 22 Rule 1 of Osun State High Court (Civil Procedure) Rules, 2008 as Amended. Order 22 Rule 2 of the said Rules further provides that parties may raise any point of law, as done<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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by the Respondents in the instant matter, and the Court is empowered to dispose of same before or at the trial of the action. What is more, the law is also trite that, it is not from the facts of a counter-affidavit per se that the Court can determine whether or not facts are in dispute. In the case of: Ossai v. Wakwah & Ors. (Supra), the Supreme Court per Mohammed, JSC (as he then was, now CJN) on this point unquestionably had the following to say:
It must be emphasized that it is not the filing of a counter-affidavit to oppose claims in an Originating Summons that makes such proceedings contentious or result in disputed facts. Even where no counter-affidavit was filed or where counter-affidavit was filed but ignored by the trial Court…, the nature of the claims and, the facts deposed in the affidavit in support of the claims in the Originating Summons are enough to disclose disputed facts and hostile nature of the proceedings.
A close examination of the affidavit evidence of the Appellant would ordinarily reveal whether or not there are facts which are likely to be disputed. Failure of the Respondents herein to file counter-affidavits is thus not tantamount to conceding to the facts deposed in the affidavit evidence of the Appellant, far from that. I am of the strong opinion and hold that the Appellant herein had placed before the trial Court enough materials to assist it in determining the nature of his claims, that is, whether his claims and the facts deposed in the affidavit and further affidavit in support of his Originating Summons were likely to be disputed or indeed hostile or contentious. As I already held hereinbefore in this judgment under issue number one, both the Preliminary Objection and motion on notice of the Respondents were properly constituted before the trial Court in the circumstances of this case.
I have at the debut of this judgment set out both the claims of and questions submitted for determination by the Appellant in his action against the Respondents as stated in his Originating Summons – See pages 1 to 3 of the record of appeal. After restating the claims of the Appellant and the submissions of parties’ counsel in its judgment, the trial Court identified the following two issues for determination:
“(1) Whether the Plaintiff was right in seeking redress in the instant suit by way of Originating Summons; and
(2) Whether the action itself is statute-barred.”
As I earlier on in this judgment adverted to, the trial Court did not make any pronouncement on the second issue identified for determination. In addition, none of the Appellant’s grounds of appeal is a challenge to that subject. However, in respect of the first issue, the trial Court at pages 46 and 47 of the record of appeal held as follows:
“I am also of the firm view that the facts of ejection, installation and recognition are also substantial disputes of facts. …
I am therefore of the view that this action cannot be commenced by way of Originating Summons and I so hold.”
Upon the due consideration of the questions submitted for determination, it is my firm opinion that the Appellant would thus be required to prove that, the 1st Respondent unlawfully meddled in the Olokinni of Okinni Chieftaincy dispute. It must also be proved that the 2nd Respondent was unlawfully installed and unduly paid salaries as the Olokinni of Okinni in defiance of a valid and subsisting judgment of a Court of law. The Appellant would therefore equally prove that, he was unlawfully dethroned and forced out of his palace by the 1st Respondent solely on spurious allegations and scheming of the 2nd Respondent. These are very hostile contentions that have to be proved especially through the crucible of cross-examination of the oral evidence of witnesses. As stated above by me and the law is trite that, Originating Summons are used for non-contentious actions, where therefore there is likely to be substantial dispute of facts or where the relief(s) sought by a claimant is/are declaratory in nature, as in the instant matter, Originating Summons procedure that admits only affidavit evidence would not be employed. In such a situation, the action must be commenced by Writ of Summons, the facts being in very serious dispute. This accords with the principle of justice that where the complaint of the plaintiff makes allegations against a defendant, oral evidence is required. This would provide an opportunity for the defendant to cross-examine witnesses testifying against him. What is more, it is elementary law that, where there are conflicts on crucial and material issues in affidavit evidence, a trial Court is required to invite parties to adduce oral evidence to resolve the conflicts – see the cases of: (1) Akinsete v. Akindutire (1966) 1 All NLR p. 147; (2) Mabamije v. Otto (2016) LPELR-26058 (SC) and (3) Eze v. Unijos (2017) LPELR-42345 (SC).
Albeit, the law is also settled that, it is not in all cases where there is conflicting affidavit evidence that Originating Summons cannot be employed, where there exists documentary evidence upon which the Court may ground its decision, the action may be heard and determined on such evidence – see the cases of: (1) Falobi v. Falobi (1976) LPELR-1236 (SC); (2) Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) p. 688; (3) Atungwu & Anor. v. Ochekwu (2013) LPELR-20935 (SC); (4) Ogah v. Ikpeazu & Ors. (2017) LPELR-42372 (SC) and (5) Ezeani v. Uzokwelu & Ors.(2018) LPELR-43760 (CA).
However, in the instant case, the Originating Summons of the Appellant is quite bare. No single document was annexed to its supporting affidavits upon which the trial Court could determine the questions submitted and grant the declarations sought by the Appellant. The evidence placed before the trial Court in the two affidavits in support of the Originating Summons was in my view not sufficient to ground the claims of the Appellant. The issues raised in the said affidavit evidence of the Appellant could not have been fairly adjudicated upon and judiciously resolved without proffering of oral evidence and affording an opportunity to the parties to cross-examine their respective witnesses.
The trite position of the law, as rightly stated at page 46 of the record of appeal by the trial Court is that, where there are disputes in affidavit evidence as in the instant matter, it can only be resolved by taking oral evidence. Originating Summons Procedure is therefore not the correct procedure to employ in determining hostile proceedings in which facts are in dispute – See the cases of: (1) Agbakoba v. INEC (2008) 18 NWLR (Pt.1119) p.489; (2) Ezeigwe v. Nwawulu (Supra) and (3) Amasike v. The Registrar, Corporate Affairs Commission (2010) 13 NWLR (Pt. 1211) p.337.
An aggrieved litigant should employ Writ of Summons and not Originating Summons as a procedure to ventilate his grievance which are substantially in dispute. It is therefore my considered view and I hold that the Appellant herein had employed the wrong procedure of Originating Summons in the commencement of his action the subject of this appeal. The said procedure would neither permit the matters in controversy in the action to be comprehensively ventilatedby the parties nor enable the Court judiciously determine those controversies thereby ensuring that justice is meted out to all the parties therein.

Under the second limb of the instant issue, the Appellant’s counsel has considered improper the order of the trial Court striking out the suit of the Appellant after ruling that the action was not properly commenced in the circumstances of the case. I agree “in toto“ with the Appellant’s learned counsel. The general principle of law is that, where the Court comes to the conclusion that an action ought not to have been commenced by Originating Summons, the Court shall proceed to order pleadings to be filed and exchanged by the parties – see the cases of: (1) Emezi v. Osuagwu (2005) 12 NWLR (Pt. 939) p. 340 at p.367; (2) Adeyelu II & Ors. v. Ajagungbade III & Ors (Supra) and (3) Atago v. Nwuche & Ors. (2013) 3 NWLR (Pt. 1341) p. 337. In the present matter, the Appellant’s action having been held wrongly commenced, it was improperly struck out by the trial Court. Contrariwise, the trial Court ought to have ordered the parties to file and exchange pleadings.
On the whole, I hold that issue number two succeeds in part.

Before making my terminal pronouncements on the appeal, I consider it very pertinent to state at this juncture that this judgment delivered on the 25th of June, 2020 ought to have been delivered on the 17th of June, 2020. The slight delay in the said delivery was as a result of lockdowns by the Federal Government of Nigeria of interstate travels and the Courts in Nigeria including the Court of Appeal by the Chief Justice of Nigeria to enable safeguard the health of Judges/Justices and all citizens in the nation during this Covid-19 pandemic period.

Consequent upon the foregoing elucidations, issue one and the first prong of issue two which are the meat of this appeal having been resolved against the Appellant, it follows that the appeal is fated for failure. I therefore dismiss the appeal. The decision of the trial Court delivered on the 16th of August, 2006, save the order of striking out the action of the Appellant filed before it, is accordingly affirmed. Concomitantly, the said action of the Appellant, Suit No. HOS/30/05 is hereby remitted to the incumbent Chief Judge of Osun State for reassignment to a Judge of that Court for an expeditious trial “de novo”.
I make no order for costs.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: The lead judgment delivered by my learned brother, Oyebisi Folayemi Omoleye, JCA was served on me which I read with keen interest. I found same properly treated based on the presentation of the appeal by the parties.

I am in agreement with the reasoning and conclusion reached in the lead judgment with nothing useful to add thereto. I too, order for the remittance of Suit No. HOS/30/2005 to the Chief Judge of Osun State for an expeditious trial “de novo” by reassignment to a judge of that Court as ordered in the lead judgment.
There is no order as to costs.

PATRICIA AJUMA MAHMOUD, J.C.A.: I had the privilege of reading before now the judgment just delivered by my learned brother, O. F. OMOLEYE, JCA. His Lordship has exhaustively considered and resolved all the pertinent issues raised in this appeal. I agree with my learned brother that this appeal is completely lacking in merit and should be dismissed. I accordingly dismiss it. I endorse all the consequential orders made therein including the order to remit the action of the appellant in suit No HOS/30/05 to the incumbent Chief Judge of Osun State for reassignment to a judge of that Court for an expeditious trial de novo.

Appearances:

Mr. Sikiru Adewoye with him, Mr. M. A. Fadunmoye For Appellant(s)

The Respondents and their Counsel were absent For Respondent(s)