The Lagos State Government & Ors V. Prince Jamiu Olalekan Sule Onosipe & Ors (2016)
LawGlobal-Hub Lead Judgment Report
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
This is an appeal against the interlocutory Ruling of the High Court of Lagos State, Ikorodu Division, delivered by H.A.O ABIRU J (as he then was) with respect to the Obaship title of OLUBESHE of IBESHE chieftaincy stool in Ikorodu Local Government Area of Lagos State.
The 1st Respondent herein had as Claimant in the Lower Court commenced an action against the Appellants (as 2nd to 4th Defendants) and the 2nd to 4th Respondents in this appeal as the 1st, 5th 6th and Defendants respectively. By a writ of summons and statement of claim dated 15-5-2007 he claimed the following reliefs:-
1. DECLARATION that the Claimant is the person lawfully and legally selected, recommended and nominated for appointment and installation as the next Oba Olubeshe of Ibesheland in Ikorodu Local Government of Lagos State.
2. DECLARATION that the 6th Defendant was never selected, nominated for the appointment or installation as the next Oba Olubeshe of Ibesheland in Ikorodu Local Government Area of Lagos State.
3. A DECLARATION that the inclusion of any other Ruling house which
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is outside the Ruling houses recommended by the Lagos State Standing Tribunal of Enquiry headed by Honourable Justice W.A. Oshodi (Retired) is against the Rule of natural Justice equity and fairness as well as unconstitutional and contrary to the customs and traditions of Ibeshe people/community.
4. AN ORDER of this Honourable Court setting aside any chieftaincy declaration regulating succession to the stool of Oba Olubeshe of Ibesheland which accommodates or includes any other Ruling house outside the five (5) Ruling houses recommended by the Lagos State Standing Tribunal of Enquiry headed by Honourable Justice W.A. Oshodi (Rtd).
5. PERPETUAL INJUNCTION restraining the 1st, 2nd, 3rd, 4th and 5th Defendants jointly and severally by themselves, their agents, servants and/or privies from recognizing or dealing with, appointing or taking any step towards the appointment and/or installation of the 6th Defendant as the next Oba Olubeshe of Ibesheland in Ikorodu Local Government Area of Lagos State.
6. AN ORDER OF PERPETUAL injunction restraining the 6th Defendant from parading himself as the Oba-Elect, that is, as His Royal Highness; the Oba Olubeshe
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of Ibesheland or from parading himself in that capacity either by wearing the crown or other staff or regalia of that office or performing any rite or function pertaining to the said chieftaincy.
The 1st Respondent equally filed a motion on notice for interlocutory injunction on the same 15-5-2007.
The dispute leading to the commencement of the action relates to the stool of Oba Olubeshe of Ibeshe land in Ikorodu Local Government Area of Lagos State.
Briefly put, the facts as presented by the 1st Respondent as Claimant in the Lower Court was that, following the vacancy in the stool of Oba Olubeshe of Ibeshe Land, it became necessary for the vacancy to be filled by the person qualified in accordance with the native law, customs and traditions of Ibeshe Community to succeed the last reigning Oba Olubeshe, His Royal Majesty (HRM) Oba Ayokulehin Oladele Olaide.
The 1st Respondent was nominated for the stool by the Bisoro Royal Family which is the Ruling House whose turn it was to produce the next Olubeshe of Ibeshe land.
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The 1st Respondent?s nomination was approved and ratified by the Ibeshe Land Committee of Kingmakers and the
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entire Ibeshe people in accordance with the native law custom and tradition of Ibeshe.
Subsequently however, the 4th Respondent herein with the connivance of the Appellants sought to usurp the said position of Oba Olubeshe of Ibeshe land contrary to the wishes of the Ibeshe people.
This prompted the commencement of the action in the Lower Court with the filing of the writ of summons and other frontloaded processes together with a motion for interlocutory injunction.
The matter came up for the first time before Onigbanjo J. on the 25-5-2007, with counsel for the Appellants present in Court, the Learned Trial Judge Ordered the parties in the Suit to maintain status quo as at the 25-5-2007 and the case was adjourned to 26-6-2007 for the hearing of the 1st Respondent?s motion for interlocutory injunction. This was however followed with the news that the 4th Respondent herein has been installed as the Oba of Ibeshe by Appellants and 2nd and 3rd Respondents.
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This also prompted the 1st Respondent to file an application dated 25-6-2007 wherein he prayed the Court for the following Orders:
1. AN ORDER of this Honourable Court setting
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aside the purported installation of the 6th Defendant by the 1st-5th Defendants as the Oba Olubeshe of Ibeshe land on 28th May, 2007 during the pendency of the Claimant?s motion on notice dated 15th May, 2007.
ALTERNATIVELY
2. An Order of this Honourable Court directing the purge themselves of contempt of this Honourable Court by renouncing the purported installation of the 6th Defendant as the Oba Olubeshe of Ibeshe land on 28th May, 2007 during the pendency of the Applicant?s motion on notice dated 15th May, 2007 in this suit by the 3rd and 6th Defendants swearing into an affidavit renouncing the 6th Defendant?s purported instalment as the Oba Olubeshe of Ibeshe land.
The Appellants as well as the 2nd to 4th Respondents reacted by filing counter affidavits and their written addresses in support wherein they challenged the 1st Respondent?s application.
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The matter this time around had been assigned to Abiru J (as he then was) and after hearing the said application filed by the 1st Respondent together with a notice of preliminary objection challenging the competence of the main suit. The Learned Trial Judge in a
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considered Ruling delivered on 9-10-2008 dismissed the preliminary objection to the suit as well as the 1st Respondent?s application to set aside the purported installation of the 4th Respondent as the Oba of Ibeshe on the 28-5-2007.
Subsequently, the 1st Respondent applied to the Lower Court for a subpoena ad testificandum to be issued against the 4th Respondent and six other persons. It was also followed with a motion on notice praying the Court for an Order compelling all the seven subpoenaed witnesses to orally testify in the suit in Open Court by way of examination-in-chief, cross-examination and re-examination.
The said application prompted the Appellants, the 2nd to 4th Respondents and other persons subpoenaed to apply to the Court by way of motion on notice to revoke/set aside the writs of subpoena.
A total of six applications were argued before the Lower Court and in a Ruling delivered on 20-4-2009 the Learned Trial Judge dismissed all the five applications challenging the issuance of the writ of subpoena but granted the 1st Respondent?s application for the subpoenaed witnesses to testify orally before the Court.<br< p=””>
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Aggrieved with the outcome of the said Ruling the 1st to 3rd Appellants (Appellants) herein filed a Notice of Appeal dated 28-4-2009 and it contains five grounds of appeal.
Briefs of arguments were eventually filed and served by the parties except the 2nd to 4th Respondents who did not file any brief of argument.
In the Appellants’ brief of argument filed on 16-2-2015 but deemed properly filed on 16-3-2016, the following five issues were formulated for determination.
(1) Whether the doctrine of issue estoppel can arise within the same case and not only within two different cases.
(2) Whether considering the content and decisions of the Learned Trial Judge in the Ruling of 9th October 2008, where and when the installation of the 4th Respondent took place has been conclusively decided to constitute issue estoppel.
(3) Whether the Learned Trial Judge was right to conclude that no improper motive or object has been shown on the part of the 1st Respondent considering the assertion in his argument was to establish where and when was the purported installation of the 4th Respondent done.
(4) Whether the provisions of Order 32
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Rules 1, 16 and 17 of the High Court of Lagos State (Civil Procedure) Rules 2004 is mandatory as to deny the Trial Judge exercise of discretionary power or to have recourse to Section 2 of the High Court of Lagos State (Civil Procedure) Law and Order 32 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules 2004.
(5) Whether the immaculate conduct of counsel within the ambit of the Rules of Court, procedure and ethics of the profession deservedly entitled to have the unmeritorious and virulent comments by the Learned Trial Judge on pages 10-11 of the Ruling expunged from the proceedings?
In the 1st Respondent’s brief of argument filed on 20-2-2015 and deemed properly filed on 16-3-2016, the following five issues were also distilled for determination:-
3.01.1 “Whether the earlier interlocutory Ruling of Hon. Justice H.A.O Abiru (as then was) delivered on 9th October, 2008 (at pages 285 to 296 of the Record of Appeal) has created issue estoppel to preclude the Claimant (1st Respondent herein) from leading necessary evidence at the trial, on the installation procedure as well as on where, when and how the purported installation
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of the 6th Defendant (4th Respondent herein) was done, either on the 28th day of May, 2007 or 10th day of May 2007 vide the eye witnesses that witnessed the purported installation.”??
3.02.2 “??Whether the Learned Trial Judge was right in its Ruling of 20th April, 2009 to have ruled that in the circumstances of the case before the Court, the doctrine of issue estoppel cannot be invoked against the Claimant’??s application to subpoena necessary witnesses in respect of his case and as such; dismissed the 1st to 3rd Defendants’?? motion on notice by way of Preliminary Objection challenging the jurisdiction of Court in entertaining the application of the Claimant on ground of issue estoppel.”??
3.03 3 “??Whether the Learned Trial Judge was right in his conclusion that no improper motive or object has been shown on the part of the 1st Respondent.”??
3.03 4 “Whether in the circumstances of the matter before the Court, the Learned Trial Judge was right to have invoked and applied the provisions of Section 2 of the High Court of Lagos State (Civil Procedure) Law 2004 for the purpose of taking the evidence of perceived
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hostile witnesses whose written depositions cannot be practically taken in accordance with the then provisions of the High Court of Lagos State (Civil Procedure) Rules 2004.?
3.04 5 ?Whether the Learned Trial Judge was right to have frowned at, and or challenged the Defendants? counsel for bringing and or filing frivolous, vexatious and spurious applications which were unnecessary before the Court and whether the related ground of appeal thereto ought to be struck-out for being incompetent.?
The five issues formulated by the parties in their respective briefs of argument are similar in con but I will adopt that of the Appellants in the consideration of this appeal.
ISSUE ONE
Dwelling on this issue Learned Counsel for the Appellant referred to the Ruling of the Lower Court delivered on the 9-10-2008 and based on the motion filed by the 1st Respondent to set aside the purported installation of the 4th Respondent or in the alternative make an order directing the 3rd Appellant and 4th Respondent to purge themselves of the contempt. He added that the 1st Respondent did not file any appeal against the said Ruling but
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resorted to filing another application to subpoena all the would be witnesses of the Defendants in a bid to establish that the 4th Respondent was installed as OBA OLUBESHE of Ibeshe on the 28th May 2007.
Learned Counsel in this regard, submitted that the issue of when and where the 4th Respondent was installed as Olubeshe of Ibeshe constitute an issue estoppel and cannot be reopened or argued in any manner or form with the calling of the supoened witnesses and which issue estoppel can arise within a case contrary to the holding of the Lower Court that issue estoppel can only arise in two different cases. The case of AMOS OGBESUSI ARO VS SALAMI FABOLUDE (1983) 2 SC 75 was cited in supported and which decision was subsequently relied on in ODJEVWEDGE V ECHANOPKE (1987) 1 NWLR (PT 52) 633 at 635.
It was further contended that once an issue has been raised and conclusively determined at an earlier stage of a proceeding, the same issue is not available for fresh consideration and determination at a later stage and a decision is said to be conclusive as to what it determines when it can only be set aside on an appeal brought for the purpose. Vide SKEN
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CONSULT VS UKEY 12 NSCC 1.
ISSUE 2 AND 3
Arguing issues 2 and 3 together, Learned Counsel for the Appellants, submitted that the Lower Court misapplied the doctrine of estoppel by limiting its applicability to only in different cases and as such cannot apply in the same case. He referred to the finding of the Lower Court at pages 356 to 357 of the Record to further contend that the evaluation of evidence by a trial Court is in response to the determination of issues canvassed by parties and it is wrong for the trial Court to now hold that the issue of where and when the 4th Respondent was installed as Oba Olubeshe of Ibeshe has not be determination by the Court.
Learned Counsel also submitted that the motive of the 1st Respondent to compel the subpoenaed witnesses to testify is clear and it is to the where and when the 4th Respondent was installed and which motive is improper.
ISSUE 4
Herein, Learned Counsel for the Appellant referred to Order 32 Rule 1 (1), (3), (16) and (17) of the High Court of Lagos State (Civil Procedure) Rules 2004 to submit that evidence of any witness during examination in chief is limited to deposition on oath
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and Order 32 Rule 16 envisage that a witness on subpoena should have his evidence taken by way of affidavit by an officer of the Court or a person appointed to take such evidence for use before a Court during trial. It was then noted that notwithstanding the provision of the Rules, the Learned Trial Judge proceeded to have recourse to Section 2 of the High Court of Lagos State (Civil Procedure) Law, 2004 to hold that Order 32 Rule 16 and 17 does not cover the situation of a perceived hostile witness.
ISSUE 5
Dwelling on the issue, Learned Counsel for the Appellant traced the history of the proceedings at the Lower Court during the hearing of the multiple applications to set aside the service of subpoena on the Appellants and others and which act the Court recognised as proper.
He added that it was however shocking to counsel when the Learned Trial Judge in dismissing the applications to set aside the issuance of subpoena decended heavily on the counsel with uncomplimentary remarks and virulent comment despite the industry put in the matter by the said counsel without regard to the fact that the Rules of Court permits a counsel to react to any
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application before the Court as filed by the adverse party pursuant to the duty of counsel to his client and to the Court.
This Court was then urged to expunge pages 10 to 11 of the Ruling of the Lower Court delivered on 20-4-2009 for being unnecessary and uncalled for and also to allow the appeal.
Given that issues 1, 2 and 3 as argued in the Appellants’?? brief of argument revolve on issue estoppel, the 1st Respondent in his own brief of argument argued issue 1, 2 and 3 together in reply to the submissions made by the Appellants.
Therein Learned Counsel for the 1st Respondent analysed the doctrine of issue estoppel and cited the following authorities in support. OYEDE VS OLUSESI (2005) 39 WRN 157 at 192-193; EBBA VS OGODO (2000) 6 SC (PT 1) 133 at 140.
It was then submitted that, from a long line of authorities, for the doctrine of issue estoppel to apply, (a) there must be two different suits and (b) the question the Court is invited to determined in the subsequent suit had earlier been resolved in the previous suit and also that (c) the decision in respect of such question in the previous suit must be final. He added that the three
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respective features must be concurrently and conclusively present before the previous decision could be held to have constituted an issue estoppel in the present suit.
Learned Counsel further submitted that what was in issue in the interlocutory Ruling of 9-10-2008 and which formed the basis for the raising of issue estoppel by the Appellants was the 1st Respondent’??s motion on notice dated 25-6-2007 and found at pages 131 to 132 of the Record of Appeal, wherein the 1st Respondent sought the order of Court to set aside the purported installation of the 4th Respondent as the Oba Olubeshe of Ibeshe on the 28-5-2007 during the pendency of an application before the Lower Court and in the alternative to order the Appellants and 4th Respondent to purge themselves of contempt of the Court by renouncing the said installation.
He noted that the said 1st Respondent’??s application was dismissed by the Lower Court on the ground that the 1st Respondent did not establish that the installation of the 4th Respondent took place on 28-5-2007 and not 10-5-2007 as claimed by the Appellants and the 4th Respondent.
??Learned Counsel then referred to the
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findings and holdings of the Lower Court in both the Rulings delivered on 9-10-2008 and 20-4-2009 respectively to submit that, in view of the laid down conditions to be satisfied before the doctrine of issue estoppel can be applied, the earlier interlocutory Ruling delivered on 9-10-2008 does not preclude the 1st Respondent from leading evidence in the substantive trial on the procedure as well as on where, when and how the purported installation of the 4th Respondent was done either on the 28-5-2007 or 10-5-2007 by subpoenaing those who witnessed the purported installation to give evidence on same.
Four points where then raised to challenge the invocation of issue estoppel in the matter.
The first is that there are no two separate suits in the matter in which case issue estoppel cannot apply. The case of INAKOJU VS ADELEKE (2007) 1 SC (PT 1) Page 1 at Page 127 was relied on.
The second point is that the Ruling of 9-10-2008 referred to by the Appellant in raising the issue estoppel is not a final decision but an interlocutory Ruling preceding the hearing of the substantive suit. For this the case of OYEDE VS OLUSESI Supra was cited in support as
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being on all fours with the issue in this appeal.
The third point is that the real issues in contention are basically:-
(1) “??who as between the Claimant and the 6th Defendant was presented/nominated by the BISORO Ruling House and recommended/approved by the kingsmakers committee of Ibeshe to be appointed and installed as Oba, Olubeshe of Ibeshe.
(2) When (the date) and where (the place) was the purported installation of the 6th defendant done? Was it on either 10th or 28th May 2007 and was it done in Ikorodu or in Ibeshe and who were at the said installation ceremony.”
It was thus submitted that a comparisons of the Rulings on 9-10-2008 and 20-4-2009 will reveal that out of the five issues identifiable above, only one of them seem to have been dealt with in the Ruling of 9-10-2008, leaving four other issues undecided, in which case issue estoppel cannot apply or the 1st Respondent estopped from calling witnesses to establish those fact in the substantive trial.
Further argument was canvassed to the effect that there are exceptions to the general doctrine of issue estoppel and which exception is based on special
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circumstances as laid down by Lord Denning in the case of FIDELITAS SHIPPING CO. LTD VS V/O EXPORTCHIED (1966) 1 Q. B 630 at 640 and also approved and adopted by the Supreme Court in AMOS AGBESUSI ARO VS SALAMI FABOLUDE (1983) 2 SC 75 at 100 and SHANU VS AFRIBANK (2002) 6 SC (PT 11) 135.
The fourth point is that at the interlocutory stage which precedes the trial of the substantive suit, it is premature and pre-emptory of the Appellants to determine which evidence will be given orally by the seven subpoenaed witnesses, when they are yet to appear before the Court to give their evidence.
ISSUE NO 4
Responding on this issue in their own issue No4, Learned Counsel for the 1st Respondent noted that it centered on the proper construction or interpretation of the provisions of the High Court of Lagos State (Civil Procedure) Rules 2004 and specifically on the how, when and where to obtain the evidence of a subpoenaed witness. In other words, whether the aforementioned Rule made adequate provision for obtaining evidence of a subpoenaed witness and if not, whether recourse could be made by the Court to Section 2 of the High Court of Lagos State (Civil
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Procedure) Law 2004, which provides thus:-
?Whether a matter arises in respect of which no adequate provisions are made in the Rules, the Court shall adopt such procedure as will in its view do substantial Justice between the parties concerned.?
The relevant Rules of Court in contention were then listed as follows:-
Order 32 Rule (1) & (3); Order 32 Rule 2 (1); Order 32 Rule 16, and Order 32 Rule 17 and 18.
Learned Counsel then embarked on an analysis of the aforementioned provisions of the rules vis-a-vis the 1st Respondents application and the Rulings of the Lower Court delivered on 9-10-2008 and 20-4-2009 respectively.
It was then submitted that a combined reading of the relevant statutory provisions and the Rules of Court relating to how the evidence of a subpoenaed witness should be taken show that the Lower Court is vested with the discretionary powers to do the needful with the aim of doing substantial Justice, moreso that the said Rules did not specifically provide for the way and manner or the procedure to be adopted in taking evidence from a perceived hostile witness invited by way of subpoena ad
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testificandum. He argued further that the lacuna so created was properly addressed by the Lower Court when the provisions of Section 2 of the High Court of Lagos State (Civil Procedure ) Law and Order 32 Rule 2(1) of the Rules were invoked to meet the ends of Justice.
It was further submitted that the obvious lacuna in the 2004 Rules was justifiably filled and regularised in the new High Court of Lagos State (Civil Procedure) Rules 2012 particularly in Order 32 Rule 4 and that has taken care of the situation presently being contested in the instant case.
Learned Counsel concluded by contending that the order of the Lower Court directing that evidence of the subpoenaed witnesses be taken in open Court by way oral examination in chief, cross-examination and re-examination is just and equitable in order to ensure that substantial Justice is done in the matter.
ISSUE NO 5
Herein Learned Counsel for the Appellant submitted that Counsel who are ministers in the temple of Justice have the duty to assist the Court in ensuring that cases are decided expeditiously by refraining from bringing frivolous, vexations and unmeritorious applications aimed
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at protracting the trial of a matter and where this is found to be the case, the Court has a duty to challenge such counsel in order to protect the image of the legal profession.
He argued further that though a party served with a writ of subpoena has the right to apply to set it aside, such right can however be exercised, only when the grounds for such application are cogent and crucial.
He also was of the stance that such comments or remarks against a counsel cannot form a ground of appeal because it is not part of the issues canvassed before the Court as held in BALONWU VS GOVERNOR OF ANAMBRA STATE (2009) 12 SC (PT 1) 31. This Court was then urged to strike out the said ground of appeal together with the issue formulated therefrom and to dismiss the entire appeal for lacking in merit.
The Appellants filed a reply to the 1st Respondent’??s brief of argument on the 10-3-2016 and deemed properly filed and served on 16-3-2016, the said reply was limited to issues 1 and 4 as argued in the 1st Respondent’??s brief argument.
It was therein submitted inter alia, that the new High Court of Lagos State (Civil Procedure) Rules 2012 seems
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to be in consonance with the stance taken by the Learned Trial Judge and which may invariably render the issue in contention merely academic but that is not the case because the subpoena served on the witnesses were not specific to enable the recipients and the Court know the nature of the evidence the witnesses are coming to give in the Court and that is the Appellants’ complaint.
Learned Counsel then listed the conditions to be fulfilled for a subpoena to be held as competent and cited in support, the following cases. AFRICAN PRESS LTD VS A.G. WESTERN NIGERIA (1965) ANLR 12 At 1; MACMILLAN INC. VS BISHOPGATE INVESTMENT TRUST LTD (1993) 4 ALL ER 998; USAIN VS DULE (2006) 17 NWLR (PT 1009) 610; TAJIK ALUMINIUM PLANT VS HYDRO ALUMINIUM (2005) 4 ALL E.R 1232 and JINADU VS ESUROMBI ARO (2005) 14 NWLR (PT 944) 142.
It was then contended that the subpoena as contained at pages 300-301 and 336 to 340 of the Record did not state the business the witnesses are coming to do in Court as it ought to be more specific to enable them know the aim of their mission.
I will now deal with issues 1, 2 and 3 together as they are based on the
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applicability of the doctrine of issue estoppel.
The condition precedent to the application of issue estoppel is based on the principle of law that a party is precluded from contending the contrary of any specific point which having been once distinctly put in issue has with certainty been determined against him. See BWACHA VS IKENYA (2011)3 NWLR (PT 245)610. Where the elements necessary for determining whether issue estoppel will be applicable were listed as follows:-
(a) Whether the parties in the previous proceedings and the current proceedings are the same.
(b) Whether the issues are material to the cause of action in the previous and in the letter case and
(d) Whether the issue has been resolved in the previous case.
See also IKENI VS EFAMO (2001)10 NWLR (PT 720)1; EBBA VS OGODO (2000) 10 NWLR (PT 675) 387, INAKOJU VS ADELEKE (2001) 1 SC (PT 1) page 1 at 127.
In the instant case, the Lower Court in resolving whether issue estoppel is applicable relied on the Supreme Court case of ADEDAYO VS BABALOLA (1995) NWLR (PT 408) 383 and INAKOJU VS ADELEKE (2007)4 NWLR (PT 1025) 423 to hold that issue estoppel cannot be invoked in the
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same case but in a different or subsequent case. Secondly it held that it did not determine the issue of when the Appellant was installed as Oba Olubeshe of Ibeshe Land and the venue for the installation in the Ruling delivered on 9-10-2008 which the 2nd to 4th Respondents relied on in raising issue estoppel. For purposes of clarity I herein below set out the relevant portion of the Ruling of the Lower Court at page 356 to 357 of the Record, it reads:-
“??The first to the third Defendants predicated their reliance on issue estoppel on the Ruling of this Court delivered on the 9th of October, 2008. These present proceedings are a continuation of the same case in which the Ruling was delivered and it is not a different case. The law as laid down by the Supreme Court is that the doctrine of issue estoppel cannot be invoked in the same case but in a different case. It is only in that circumstance that the first case, in appropriate circumstances, acts as issue estoppel against the second one. The Supreme Court stated that issue estoppel cannot apply on appeal in the same case and this is because the nature of the appellant process involves one single case
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not two cases and issue estoppel is built in one case against another case where the necessary ingredients are present ?? Adedayo Vs Babalola (1995)7 NWLR (PT 408)383 and Inakoju Vs Adeleke (2007)4 NWLR (PT1025)123 at 631 D-G. The doctrine of issue estoppel is thus not available to the first to the third Defendants in the circumstances.
Even assuming that the principle was available to the first to the third Defendants, in the Ruling of 9th of October, 2008 relied on by them, this Court only stated thus on the issue of the date or installation of the sixth Defendant as Olubeshe of Ibeshe:
On an evaluation of the evidence led by the parties on this application, the evidence led does not preponderate in favour of the Claimants assertion that the sixth Defendant was installed on the 28th of May, 2007 as against the assertion of the first the third and the sixth Defendants that the installation took place on the 10th of May, 2007. The Claimant needed to establish that the installation of the sixth Defendant took place on the 28th of May, 2008 in Order for him to succeed on this application. The Claimant did not discharge this onus by
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credible evidence and this Court cannot thus exercise its disciplinary jurisdiction in his favour.
This was all the Court stated on the issue. The Court did not make any statement in respect of the place of installation of the sixth Defendant as the Olubeshe. The issues of when the sixth Defendant was installed as the Olubeshe of Ibeshe and the place of his installation were not determined by this Court in the Ruling of the 9th of October, 2008. Thus, the doctrine of issue estoppel is not applicable in this case. The motion on notice by way of a preliminary objection is totally misconceived and devoid of any merit and it, with respects to Counsel, shows a lack of proper understanding of the concept of issue estoppel. It will be dismissed by the Court.
A careful review of the above set out Ruling of the Lower Court show that it was well grounded in law given the authorities of the Supreme Court relied upon. Further authorities include UDO VS OBOT (1981)1 SC (PT 1)64 where the Supreme Court held that issue estoppel will only arise in a subsequent suit when that issue had been raised and distinctly determined in a previous suit between the
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parties. See also LAWAL VS DAWODU (1972)1 ALL NLR (PT 2) 270; LADEGA VS DURO SIMI (1978)3 SC 82; IKOTUN VS OYEKANMI (2008)4 SCNJ 377; OJO VS OLAWORE (2008)6-7 SC (PT II)54; OKWUKWUJE VS AKWIDO (2001)25 SCM 113. However in ARO VS FABOLUDE (1983) ALL NLR 67 the Apex Court was equally of the view that once an issue has been raised and distinctly determined between the parties, then as a general Rule, neither party can be allowed to fight that issue all over again. The same issue cannot be raised by either of them again in the same or subsequent proceedings except in special circumstances. See also ADONE VS IKEBUDU (2001)7 SC (PT III) 22. Nonetheless, what is germane in the instant case is whether the issue sought to be estopped was raised and distinctly determined by the Lower Court in the interlocutory Ruling delivered on 9-10-2008.
For the Appellant, the Ruling was conclusive on the issue that the date of installation of the Oba Olubeshe of Ibeshe was not proved by the 1st Respondent to be 28-5-2007.
The Lower Court however in its Ruling of 20-4-2009, after making reference to its decision in the said Ruling of 9-10-2008, emphatically held as follows
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at page 357 of the record:-
The Court did not make any statement in respect of the place of installation of the 6th Defendant as the Olubeshe. The issue of when the 6th Defendant was installed as the Olubeshe of Ibeshe and the place of installation were not determined by this Court in the Ruling of the 9th October, 2008. Thus, the doctrine of issue estoppel is not applicable in this case. The motion on notice by way of preliminary objection is totally misconceived and devoid of any merit and it, with respects to counsel shows lack of proper understanding of the concept of issue estoppel. It will be dismissed by this Court.
Going through the said Ruling of 9-10-2008, I cannot but agree with the holding of the Lower Court, that the issue of place and date of installation were not distinctly determined therein. That decision of the Lower Court, to my mind, remains unimpeachable and I do not see any justification to hold a contrary view that the doctrine of issue estoppel is not applicable in the instant case both on the basis of the authorities earlier cited and on the ground that the issue so raised as constituting estoppel was not
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distinctly determined by the Lower Court in its Ruling delivered on 9-10-2008.
Issues 1, 2 and 3 are accordingly resolved against the Appellant.
On issue No. 4, the relevant Rules in contention are Order 32 Rules 1(1) & (3) Order 32 Rule 2, 16 and 17 of the High Court of Lagos State (Civil Procedure) Rules 2004 and they are herein below set out:-
Order 32 Rule 1 (1): ?subject to these Rules and to any enactment relating to evidence any fact required to be proved at the trial of any action shall be proved by written deposition and oral examination of witnesses in Open Court.
Rule 1 (3): ?The oral examination of a witness during his evidence in chief shall be limited to confirming his written deposition and tendering in evidence all disputed documents or other exhibits referred to in the deposition.?
Rule (2) (1): A Judge may, at the trial of an action, Order or direct that evidence of any particular fact be given at the trial in such manner as may be specified by the Order or direction.?
Rule 16: ?A party may by subpoena ad testificandum or duces tecum require the attendance of any witness before an
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officer of the Court or other person appointed to take the examination, for the purpose of using his evidence upon any proceeding in the cause or matter in like manner as such witness would be bound to attend and be examined at the hearing or trial; and any party or witness having made an affidavit to be used in any proceeding in the cause or matter shall be bound on being so subpoenaed to attend before such officer or person for cross-examination.
Rule 17 ?The practice with reference to the examination and re-examination of witness at the trial shall extend and be applicable to evidence taken in any cause or matter at any stage.?
?The above sets out provisions of the relevant Rules are to my mind, clear and unambiguous. By Order 32 Rule 1 (1) any fact required to be proved at the trial of any action shall be proved by a written deposition and oral examination of witnesses in Court by Rule 1 (3) any witness at the hearing of a matter is required during his evidence in chief to only confirm his written deposition and tender in evidence all disputed documents as well as other exhibits referred to in the written deposition, this will then be
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followed by cross-examination and re-examination where the need arises.
The main point of divergence between the parties however is the interpretation and implication of Order 32 Rule 16 which relates to a subpoenaed witness ad testificandum. For the Appellants, Order 32 Rule 16 adequately provides for the manner such a subpoenaed witness, (whether willing or hostile witness) should testify at the trial of case which is by way of a written deposition first made before an officer of the Court or before a person appointed to do so for use at the proceeding. Therefore the Learned Trial Judge was wrong to have granted an Order directing the 4th Respondent and other subpoenaed witness to give oral evidence in chief and also to be cross-examined accordingly, by placing, reliance on Section 2 of the High Court of Lagos State (Civil Procedure) Law 2004.
The prayers sought by the 1st Respondent in the motion on notice filed on 23-2-2009 are as follows:-
(1) An Order of Court compelling each of the subpoenaed witnesses in this matter to wit;
(a) Oba Richard Ogunsanya
(b) Chief Olatunji Bakare
(c) Chief (Mrs) Iyabo Okunsanya
(d) Chief
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Isola Abudu Ogodo
(e) Mr. Kunle Olusanya and
(f) Mr. Femi Ogbonnikan
…to respectively give oral evidence in this action for the Claimant at the trial of this suit.
(2) An Order of Court compelling all the Claimant?s subpoenaed witnesses to orally testify in this matter in open Court by way of examination-in-chief, cross-examination and re-examination.
In Paragraph 3(b) of the affidavit in support of the application, it was clearly deposed that the Appellant herein is the 6th Defendant in the suit in the Lower Court. The true picture and essence of the prayers sought was detailed in Paragraphs 3 (h) to (l) of the said affidavit in support of the Appellant as follows:-
(h) the evidence of the subpoenaed witnesses are very germane to the Claimant?s claim and all the subpoenaed witnesses are primarily supporting the Defendants would therefore be hostile and un-cooperative witnesses whose evidence cannot be fully obtained by the Claimant vide written depositions in view of their relationship with the Defendants as well the Defendants? Counsel?s position vide their application in Court dated 21st January,
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2009.
(i) It would be necessary and vey pertinent for the Court to watch the demeanours of the subpoenaed witnesses during examination-in-chief in the witness box as it would aid the Justice of this case.
(j) The new Lagos State High Court (civil procedure) Rule 2004 did not categorically state that subpoenaed witnesses cannot give evidence orally in an open Court under examination-in-chief by the party that applied for the subpoena of the said witness(es).
(k) Subpoenaed witnesses, upon being subpoenaed become Court?s own witness(es) and should be questioned and or examined in an Open Court.
(i) In view of the nature, form and con of the issues that are in contention in this matter and in respect of which the aforestated witnesses are subpoenaed witness(es); interest of Justice would be served if the subpoenaed witnesses in this matter are allowed and directed to orally testify in open Court by way of examination-in-chief, cross-examination and re-examination.
The Learned Trial Judge in his well detailed Ruling as contained in pages 360 to 361 of the Record held as follows:-
The Claimant desires this Court to direct a
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departure from this manner of giving evidence and to Order the parties on subpoena to attend Court and give their evidence-in-chief orally without filing any written deposition. The Claimant prediered the request on the facts that these persons were supportive of the case of the Defendants and would be hostile and un-cooperative witnesses whose testimony cannot be fully elicited by the means of written depositions and that it would be necessary for the Court to watch the demeanour of these persons during their testimonies. These depositions were not denied or challenged by any of the parties in their counter affidavit to the application. In fact the sixth Defendant affirmed the depositions in paragraph 5 of his counter affidavit where he stated that prior to the service of the subpoena ad testificandum on him neither the Claimant nor his Counsel approached him to be witness and that if he had been so approached he would not have consented to give evidence. Similarly, in Paragraph 4 of the affidavit in support of their motion, Chief Olatunji Bakare, Chief Isola Abudu Ogodo and Chief (Mrs.) Iyabo Okunsanya stated that if the Claimant had approached them to give
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evidence on his behalf, none of them was willing and prepared to give such evidence.
Now reading through the entire provisions of the Rules of Court, there are no provisions for the way and manner and the procedure to be adopted in taking the written deposition of a perceived hostile witness who has been served with a subpoena. Order 32 Rule 16 and 17 of the Rules do not cover the situation. Section 2 of the High Court of Lagos State (civil procedure) Law states that where a matter arises in respect of which no adequate provisions are made in the Rules, the Court shall adopt such procedure as will in its view do substantial Justice between the parties concerned. Also, Order 32 Rule 2 of the High Court Rules says, that notwithstanding the evidence-in-chief was to be by written deposition, a judge may, at or before the trial in such manner as may be specified by the Order, or direction. Further, it is trite that Rules of the Court are regulations made to assist the Court in its effort to determine issues or controversies before the Court and care must be exercised in Order to avoid the elevation of Rules of Court to the status of a statute
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because Rules of Court are subsidiary instruments. Consequently, Rules of the Court are to be used by the Courts to discover Justice and not to hamper the actualization of Justice. In other words, Rules of Court are not sine qua non in the just determination of a case and therefore not immutable BROAD BANK OF NIGERIA LTD VS OLAYIWOLA & SONS LTD (2005) 3 NWLR (PT 912) 434, and OSIFO VS OKOGBO COMMUNITY BANK LTD (2006) 15 NWLR (PT 1002) 260.
What all these add up to is that, in the circumstances of this case, this Court possesses the power to direct or Order that the testimony of the persons under subpoena be given by other means other than by the use of written depositions. It is discretionary power. It is trite that where a Court is called upon for the exercise of its discretion, the Court must properly do so not only judicially but also judicially. A proper exercise of judicial discretion must be done according to law and not humour. It is not to be arbitrary, vague and fanciful, but legal and regular. All judicial discretion must be exercised according to common sense and according to Justice as dictated by the peculiar facts and
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circumstances of a case ? ASSURANCE FORENINGEN SKULD (GJENSIDIG) VS MV SEALION (EX ?ANTIBES?) (2006) 5 NWLR (PT 973) 286 and ADEOGUN VS FASHOGBON (2008) 17 NWLR (PT 1115) 149. Looking at the entire facts deposed to by the parties and by some of the persons served with subpoenas on their respective applications and at the circumstances and issues in this matter, it is the view of this Court that the Claimant has placed before the Court facts necessary, explicit, adequate and sufficient to bring his requests within the classes of cases in which the Court may exercise its direction in his favour. The application of the Claimant thus succeeds and will be granted.
The above set out portion of the Ruling of the Lower Court adequately dealt with the issue in contention with regard to whether in the circumstance the grant of the 1st Respondent?s application was right and in accordance with the Rules of Court aforestated.
Firstly, I must emphasise that Order 32 Rule 2 (1) should not be underplayed with regard to the power of the Lower Court to make the Order as prayed.
I am therefore inclined to reproduce same again and it reads
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thus:-
Order 32 Rule 2 (1) ?A Judge may , at or before the trial of an action, Order or direct that evidence of any particular fact be given at the trial in such manner as may be specified by the Order or direction.?
The same Order 32 which in Rule 1 Subrules (1) and (3) prescribed that a witness shall testify in a trial by way of written deposition also in Rule 2 Subrule (1) confers on the Trial Judge the discretion to Order or direct that evidence of any particular fact be given at the trial in such manner as the Trial Judge may specify in the Order or direction.
In the instant case, the 1st Respondent had applied for the subpoenaed witnesses to testify in Court by way of oral examination, cross-examination and re-examination and deposed to facts justifying the application in the supporting affidavit which facts, from the findings of the Lower Court were not controverted or challenged by the Appellant?s counter affidavit. It was further shown that the Appellant in Paragraph 5 of his counter affidavit deposed inter alia that if he had been approached by the 1st Respondent he would not have consented to give evidence on his
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behalf.
The Learned Trial Judge thus relied on the provisions of the said Order 32 Rule 2 (1) as well as Section 2 of the High Court of Lagos State (civil procedure) Law to exercise his discretion in favour of granting the application, all in a bid to ensure that substantial Justice is attained in the matter.
The said Section 2 provides that:-
Where a matter arises in respect of which no adequate provisions are made in the Rules, the Court shall adopt such procedure as will in its view do substantial Justice between the parties concerned.
The Appellant’??s Counsel also challenged the Lower Courts reliance on the said provision on the ground that the Rules adequately provided in Order 32 Rule 16 on how a subpoenaed witness whether hostile or not should give evidence in Court, which is by way of written deposition.
As much as I agree that Order 32 Rule 16 prescribed the manner in which a subpoenaed witness will testify in Court, the said provision did not however envisage the situation of a clearly professed hostile witness as in this case. In the circumstance it can safely be stated that the Rules did not make
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adequate provisions to cover such a scenario where a subpoenaed witness had not only applied to set aside the subpoena but also deposed in the counter affidavit as to his unwillingness to testify which makes it virtually impossible to extra a voluntary written deposition from him for the purpose of satisfying the requirements in Order 32 Rule 16 in which case the Justice of the case demands that he be compelled via subpoena ad testificandum to testify orally in Court.
The Learned Trial Judge can therefore rightly be held to have exercised his discretion judicially and judiciously in which case an appellate Court will not easily interfere. See ANYAH VS AFRICAN NEWSPAPERS OF NIGERIA LTD (1992) 7 SCJN 47; AJOMALE VS YUDUAT (1991) 5 SCNJ 172; UNIVERSITY OF LAGOS VS AIGORO (1985) 1 NWLR (PT 1) 143. The Appellate Courts are always reluctant to interfere with the exercise of the discretion by a trial Court in the absence of proof that it was wrongly exercised. There is no hard and fast Rule guiding the exercise of discretion by a Court and the reason is not far fetched. It is to ensure that the power of discretion is not unduly fettered. See ADELEKE VS ASERIFA
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(1990) 5 SC (PT 1) 104; EFETIROROJE VS OKPALEFE II (1991) 5 NWLR (PT 193) 517.
On the whole, Section 2 of the High Court of Lagos State (Civil Procedure) Law can be said to have been rightly invoked by the Learned Trial Judge, given that the Rules under consideration did not make adequate provisions to cover the case as presented by the 1st Respondent.
What is more, the extant High Court of Lagos State (Civil Procedure) Rules 2012 has adequately taken care of the issue in contention by filling the lacuna inherent in the 2004 Rules.
Order 32 Rule 1 (4) provides thus:-
The oral examination of a witness during his evidence in chief shall be limited to confirming his written deposition and tendering in evidence all disputed documents or other evidence referred to in the deposition provided, that a judge may allow a witness on subpoena to lead oral evidence in examination-in-chief without having sworn to written statement in appropriate cases.
The proviso above-stated now expressly confers on the Judge the discretion to allow a witness on subpoena to lead oral evidence in examination-in-chief without the necessity for a prior
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written and sworn deposition.
Therefore, in addition to my earlier stance that the Learned Trial Judge rightly invoked Section 2 of the High Court of Lagos State (Civil Procedure) Law in filling the lacuna inherent in the 2004 Rules with regard to a witness on subpoena. It is worthy to also mention that the new High Court of Lagos State (Civil Procedure) Rules 2012 has now taken care of the inadequacies in the 2004 Rules. The said 2012 Rules incidentally shall now apply to the proceedings in the Lower Court as per the hearing of the main suit if it is still pending.
On the whole, issue is hereby resolved against the Appellants.
On issue No. 5, I am not unaware of the age long admonition by the Apex Court to the effect that judges should not lose their temper with counsel or litigants no matter how irritable they may be so that the composure required to administer Justice may not depart from the temple of Justice. See OBIORA VS OSELE (1989)1 NWLR (PT 97)297; and OKODUWA VS THE STATE (1988)2 NWLR (PT 76) 333. That however with due respect seem not to be the situation in the instant case. A perusal of the comment by the Learned Trial Judge which
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apart from being an obiter dicta presents the picture of an admonition couched in strong terms but devoid of intent to denigrate, abuse or intimidate counsel whose duty is both to his client and to the Court in ensuring that due and acceptable system of administration of Justice is attained.
This is my humble view and it finds support in the postulation by Lord Denning in the case of RONDEL VS WOLSLEY (1967)1 Q.B. 443 also cited in the Ruling by the Learned Trial Judge.
The Bar and the Bench constitute the legal profession and they must work together in harmony and mutual respect in an atmosphere devoid of suspicion or apprehension with the enviable aim of uplifting our judicial system which is the only consistent and dynamic agency for the enthronement of Rule of law in our society.
I am however reluctant to interfere with the view expressed by the Learned Trial Judge whose commentary made obiter, may be termed strong but it is devoid of any inherent absurdity.
On the whole, I find this appeal to be unmeritorious and it is accordingly dismissed.
The Ruling of the High Court of Lagos State, Ikorodu Division delivered by H.O. Abiru J. on
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the 20th April 2009 is hereby affirmed. It is further ordered that the substantive suit should be given accelerated hearing having been commenced since 2007.
Parties to bear their costs.
Other Citations: (2016)LCN/8727(CA)
