Oba Ellijah Oladele Ayeni (Olupoti of Ipoti) & Ors. V. Prince R. A. Ajimoti Elepo & Ors. (2007)
LawGlobal-Hub Lead Judgment Report
TIJJANI ABDULLAHI, J.C.A.
This is an appeal against the Ruling of the lower court, coram E. O. Kowe J, delivered on 21/7/2003. The Appellant was the 1st Defendant at the lower court while the Respondents were the plaintiffs.
By a writ of summons and statement of claim dated 5th day of November, 2002 and filed the same date, the Plaintiffs/Respondents claim against the Defendants/Appellants as follows:
“(a) A declaration that the Obalaaye of Ejiyan is the head chief and or Oba of Ejiyan Quarters in Ipoti Ekiti.
(b) A declaration that it is the prerogative of the Ejiyan people and chiefs to select, appoint and install an Obalaaye of Ejiyan in accordance with their age-long customs and traditions.
(c) A declaration that no Olupoti in history had ever appointed or installed an Obalaaye of Ejiyan.
(d) A declaration that the 1st Defendant is not a prescribed authority over the Obalaaye Chieftaincy.
(e) A declaration that the 2nd & 3rd Defendants either acting alone or in concert with the 1st Defendant have no business with or role to play in the appointment and installation of an Obalaiiye apart from being merely informed of such an appointment and installation after the completion of same by the Ejiyan, people and Chiefs.
(f) AN ORDER OF PERPETUAL INJUNCTION restraining the
(i) 1st defendant either by himself, Chiefs, servant, agents, aides or through any person ,or persons however from interfering or meddling in the process of nominating, selecting, appointing or installing of any candidate including any of the plaintiffs as the Obalaaye of Ejiyan or disrupting, disorganizing or thwarting any meeting called by the Ejiyan people and Chiefs for the purpose of nominating, selecting, appointing, installing an Obalaaye of Ejiyan.
(ii) The 2nd & 3rd Defendants either acting alone or in conjunction with the 1st Defendant from interfering or meddling in the process of nominating, selecting appointment and installing an Obalaaye of Ejiyan.
(iii) The 1st Defendant from removing, deposing dethroning or punishing any traditional Chiefs in Ejiyan Quarters”
The Appellant filed a statement of defence dated 29th day of November, 2002 and filed on 2nd day of December, 2002 while the 2nd and 3rd Defendants did not file any statement of defence.
The Appellant through his counsel raised a preliminary objection on point of law by the motion on Notice dated 21st day of March, 2003 and filed on the same date praying the trial court for an order dismissing the suit of the Plaintiffs on the ground that the action of the Plaintiffs is res-judicata or that plaintiffs are estopped per judicatam by virtue of the judgment of the Court of Appeal therein in suit No: CA/IL/18/2001.
The motion on preliminary objection on point of law was argued on 7th and 21st May, 2003 respectively and ruling reserved for 21st July, 2003.
The trial court in its ruling delivered on 21st July, 2003 after holding that the subject matter, issues and Plaintiffs are the same in the previous and present suit however held at page 22 lines 1 -11 thus:
“In the two of the ingredients of the plea of res judicata are missing viz (1) the parties in the previous suit are not the same as the parties in the present case (2) The decision of the Court of Appeal in appeal No. CA/IL/18/2001 has been appealed against and as such not final. The Law is that unless all the essential ingredients of the plea of res-judicata are established by the Defendants, the plea of res-judicata cannot be sustained. See Oke -vs- Atoloye (supra) Uoye -vs- Olubode (Supra).
In sum since two of the essential ingredients of the plea or res-judicata are missing the doctrine of estopple per rem judicata will not apply. The Defendant/Applicant’s application fails. His preliminary objection on point of law cannot be upheld and it is hereby dismissed.”
Dissatisfied with the said Ruling, the Appellant appealed to this court by filing a Notice of Appeal consisting of three grounds.
On the 27th of April, 2005, Learned Counsel for the appellant, moved a motion dated 31/03/05 and filed on 4/4/05 for leave to amend the existing Notice of Appeal by substituting an amended Notice of Appeal which said application was granted and the amended Notice of Appeal was deemed filed and served on the other parties on the same date (27/04/2005).
The amended Notice of Appeal consists of five grounds. Shorn of their particulars, they are as follows:
“GROUND ONE:
The learned trial Judge erred in law and thereby came to a wrong decision when he held at page 78 Lines 4 – 6 of the records.
“In suit No. HAD/64/2000 and Appeal No: CA/IL/18/2001 the Chairman Ijero Local Government was not a Defendant or a
Defendant/Respondent.”
GROUND TWO:
The Learned trial Judge erred in law and thereby came to a wrong decision when he held at page 78 Lines 26 – 30.
“There is no wherein the statement of claim in the present suit where the plaintiffs alleged the Government of Ekiti State of any wrong doing. The Attorney-General is therefore not a necessary Defendant in the present suit.”
GROUND THREE:
The Learned trial Judge erred in law and thereby came to a wrong decision when he held at page 75 lines 22 – 30; page 76 Lines 10 – 07.
“That decision of the Court of Appeal has been appealed against to the Supreme Court as shown in exhibits A & B attached to the plaintiffs’ counsel counter-affidavit against Notice of Preliminary Objection on point of Law. Exhibit A & B are leave to appeal and Notice of Grounds of Appeal to the Supreme Court respectively…. Meanwhile the ‘appeal is existing and as such the decision of the Court of Appeal in CA/IL/18/2001 is not final ….”
GROUND FOUR:
The Learned trial Judge erred in law and thereby came to a wrong decision when after finding that the issues, subject-matter and plaintiffs in the present and previous suits are the same and that the decision of the Court of Appeal in CA/IL/18/2001 is not final, failed to adjudge that the institution of the present suit HIJ/17/2002 during the pendency of the purported appeal to the Supreme Court against the decision of the Court of Appeal CA/IL/18/2001 is an abuse of court process in line with the principle laid down by the Supreme Court in Ikini & Ors. -vs- Edjerode & Ors. (2001) 18 NWLR (Pt. 745) 446, and Onalaja -vs- Oshinubi (1949) 12 WACA 503.
GROUND FIVE:
Assuming (but not conceding) that the Defendants in the previous and present suit are not the same, the learned trial judge erred in law in not holding that the institution of the present suit HIJ/17/2002 by the Plaintiffs is an abuse of court. ”
Briefs were filed and exchanged. The Appellant formulated the following issues for determination:
“Issue NO.1: RES JUDICATA:
If the Chairman, Ijero Local Government is a party to the previous suit No: HAD/64/2000; If the Attorney-General and Commissioner for Justice, Ekiti State is a party in the present suit HIJ/17/2002 and if the Court of Appeal Judgment in suit No. CA/IL/18/2001 is final WHETHER the plea of res judicata is sustained.
In the alternative, if the Chairman, Ijero Local Government is not a party to the previous suit but a nominal party in the present suit, if the Attorney-General and Commissioner for Justice, Ekiti State is a party to the present suit and if the Court of Appeal Judgment No. CA/IL/18/2001 is final, WHETHER the plea of res judicata is sustained.
In the alternative, if the chairman of the Ijero Local Government is not a necessary party in the present suit HIJ/17/2002; if the Attorney General & Commissioner for Justice, Ekiti State is a necessary Defendant in the present suit and if the Court of Appeal Judgment in CA/IL/18/2001 is final, WHETHER the plea of issue estoppel per rem judicata is sustained.
ISSUE NO.2: Abuse of Court Process:
If the chairman, Ijero Local Government is a party to the previous suit HAD/64/2000, if the Attorney-General & Commissioner for Justice, Ekiti State is a party in the present suit HIJ/17/2002, if the purported appeal to the Supreme Court against the Court of Appeal Judgment in suit CA/IL/18/2001 is existing and having regards to the principles laid down in Ikine -vs- Ederode (2001) 18 NWLR (Pt. 745) 446 and Onalaja -vs Oshinubi (1949) 12 WACA 503, WHETHER the institution of the present suit HIJ/17/2002 constitutes an abuse of court process?
Having regards to the findings of the trial court that the plaintiff, issues and the subject-matter in the previous and present suits are the same and having regards to the principles laid down in Saraki -vs- Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188 and the recent,’ decision (unreported) of the court of Appeal, Lagos Division delivered on 17th December, 2003 in “Vesa General Properties Ltd. -vs- Governor of Lagos State & Ors” WHETHER it is an abuse of Court process to institute the present suit HIJ/17/2002 during the pendency of the purported appeal to the Supreme Court against the judgment of the Court of Appeal case No: CA/IL/18/2001?”
The Respondents on the other hand raised a preliminary objection under Order 3 Rule 15 of the Court of Appeal Rules praying the court to strike out the entire grounds of appeal dated 16th May, 2005 and or the issues formulated thereon.
The grounds of the objection ‘as can be gleaned from the record are:
(i) Ground 1 has no nexus with particulars provided there under
(ii) Particulars a, band c under Ground 1 are academic, hypothetical, moot and speculative
(iii) Particulars a, band c under Ground 2 as well as particulars a, b, c, d, e, g, h, i, j, k, l and m under Ground 3, the entire Ground 3 together with particulars a, b and d under Ground 5 are repetitive, ‘argumentative, prolix, verbose and unwieldy
(iv) Grounds 4 and 5 are fresh issues
Learned Counsel for the Respondents copiously argued in a brief spanning over 11 pages that the grounds are academic, hypothetical, moot and speculative. He submitted quite copiously that the Court of Appeal has no business to deal with moot grounds of appeal. Those grounds 4 and 5 are fresh issues that could only be filed with the leave of the Court of Appeal.
Learned Counsel for the Appellant urged us to discountenance the submissions of the Learned Counsel positing that, the grounds af appeal are valid and subsisting grounds.
They are neither verbose nor augmentative. The fresh issues he further posited were raised after the leave of this court was sought and obtained.
On the 13/12/2006, when the appeal came before us for hearing. Learned Counsel for the parties adopted their briefs of arguments and proffered oral arguments in amplification of the said briefs.
Learned Counsel for the Appellant, Mr. Disu, filed his brief dated 31/3/2005 which was deemed filed on 27/04/2005. The Appellant’s reply brief dated 28/02/2006 and deemed filed on 30/3/3006. The Learned Counsel adopted the two briefs and urged us to allow the appeal and dismiss the plaintiffs’ case at the lower court.
Counsel for the Respondents Mr. Omotunde file a preliminary objection to Appellant’s’ brief dated 10/11/2005 and filed the same date. He also filed the Respondents’ brief dated 10/11/2005 which was deemed filed on 26/11/2005. On the preliminary objection, Learned Counsel referred the Court to the cases of Omozegbian -vs- Adjarho (2006) part 969, P.33 at P.51, paragraph F – G and Iloabuchi -vs- Ebigbo (2000) 8 NWLR (Part. 668) P. 197 at P. 219 and submitted that both issues 1 and 2 are purely academic and hypothetical as same are dotted or punctuated with the word “if” The Appellant he further submitted has put his appeal into the realm of academic or moot questions. This court he went on will not entertain moot or academic issues.
On the reply brief, Learned Counsel referred to paragraphs 2.02 and 2.03 and submitted that there are no new points but just mere further arguments and they are therefore contrary to Order 6 Rule 5 of the Rules of this Court. He urged us to discountenance or strike them out. He cited the case of Cameroon Airlines -vs- Otutuizu (2005) 9 NWLR (part 929) P. 202 at Pages 218 – 219.
On Res Judicata, Learned Counsel submitted that the principles grounding the case on it (Res Judicata) are very strict, the absence of one defeats the claim of Res Judicata. On principle that the parties in suit No. HIJ/17/2002 are not the same with those of suit No. HAD/64/2000, Learned Counsel referred us to pages 1, 3, 10, 17, 29 and 78 lines 8 -15 and lines 21 – 29 as well as page 79 lines 3 – 5 of the record. He also referred us to the Appellant’s brief, page 12, paragraphs 5 and 6.
Secondly, Learned Counsel contended that the present case, suit No. HIJ/17.2002, the issue canvassed in this case has been determined on the merit before suit No.HAD/64/2000 was struck out on preliminary objection. Thirdly, he further contended that the main issues canvassed in suit HIJ/17/2002 are different from those of suit No. HAD/64/2000. Finally, he went on the Appellant in the lower court abandoned legs 2 and 3 of his objection. He referred to page 61 lines 20 – 21 of the record.
Learned Counsel submitted that though Appellant sought permission of this court to raise these issues, they are not issues that can be raised in this court. He contended that appellate court sits mainly on decisions of the trial courts. He further contended that an issue abandoned before the trial court cannot be raised in this court. He urged us to discountenance the issue of joinder and abuse of court’s process canvassed by the Appellant. He relied on the case of A.N.P.P. -vs- R.O.S.S.D. (2005) 5 NWLR (Part 920) P. 140 at 158, paragraphs F- H.
In conclusion, Learned Counsel referred to paragraphs 2.03 and 3.01 of the reply brief of the Appellant and submitted that the ingredients grounding the plea of Res-Judicata are not ‘present in this appeal. Learned Counsel then adopted his preliminary objection and the Respondents’ brief and urged us to dismiss the appeal.
In response to the address of the Learned Counsel for the Respondent Mr. Disu, Learned Counsel for the Appellant, submitted that paragraphs 2.02 and 2.03 of his reply brief are what the lower court said in its ruling and therefore they are not new issues as such.
Learned Counsel submitted that, though the Respondents’ Counsel submitted that decision in case No. HAD/64/2000 was not a decision on the merit, he submitted in paragraph 2.06 of his reply brief that the said decision finally determined the rights of the parties their in. Learned Counsel further submitted that for all purposes, it was a decision on the merit. The decision of whether it was a decision on the merit was not canvassed at the lower court. Counsel cannot therefore raise it without the leave of this court sought and obtained to argue fresh point of law.
Learned Counsel, contended that they argued the issue of abuse of process because they sought and obtained leave of this court to do so. The leave he further contended was given on 27/04/05. Learned Counsel submitted that the Appellant having sought and obtained leave of this court is at liberty to raise those fresh points of law. (joinder and abuse of process). He urged us to allow the appeal and dismiss the plaintiffs’ case at the lower court.
Now, crucial points for consideration from the onset in the preliminary objection of the Learned Counsel for the Respondent are:
(i) What a ground of appeal is supposed to contain.
(ii) How is it couched
(iii) How can its validity be determined.”
On issues 1 and 2 formulated by the Appellants’ counsel, which the Learned Counsel classified as hypothetical and academic, I would to observe that a critical examination of the issues under reference will tend to “support the views expressed by the Learned Counsel. In the case of Omozeghian -vs- Adjarho (supra), this Court per Augie JCA, held thus;
“I agree with the Respondent that issues as formulated by the appellant are more wide-ranging than are necessary in the determination of this appeal. In addition, the appellant split his issue 2 into (i), (ii) & (iii) which is absolutely unacceptable. Authorities abound which state that it is clearly unacceptable for an issue to raise in it, other issues. It is well settled that most appeals are won on a few cogent and substantial issues, well framed, researched and presented than on numerous trifling slips.” See Iloabuchi -vs- Ebigbo (2000) 8 NWLR (Pt. 668); & Ehikhamwen -vs- Iluobe (2002) 2 NWLR (Pt. 750) 151 where the court also held that the practice of splitting issues is likely to confuse consideration of principal issues with subsidiary issues”
I am of the considered view that the issues formulated by the respondents which will be reproduced infra are more to the point and capture in a nutshell, the essence of the complaints in the grounds of appeal, and I will adopt them in dealing, with this appeal.
On the reply brief filed by the Learned Counsel for the Appellants, its appropriate from the onset to say with due respect to the Learned Counsel that he misconceived the import and purpose of filing a reply brief. In the case of Cameroon Airlines -vs- Otutuizu (supra) this court held that:
“A reply brief should be limited in answering only new points. A cursory look at the reply brief filed by the Appellant would leave no one in any doubt that it contains what a reply brief should and ought not to contain. It does not answer any new issue/s but rather, it re-urges the whole case of the appellant that is not what a reply brief should contain. Learned Counsel for the Appellants referred to paragraph 2.02 of the reply brief and submitted erroneously in my view that they are not new issues because the trial judge said so in his Ruling. With due respect to the Learned Counsel, he missed the point. Reply brief as I have said earlier is only to answer new issues arising from the Respondent’s brief. The reply brief of the Appellants in the light of all that I said will not begin any consideration in this judgment.
On fresh issues raised as encapsulated in grounds 4 and 5, I am, in complete agreement with the Appellant’s Counsel that leave of this court having been sought and obtained cannot be discountenanced. I am not prepared to accede to the argument of the Learned Counsel for the Respondents that because they were abandoned at the lower court, they cannot be raised at this court, at any rate leave having been sought and obtained in this court has put the matter to rest, at least for now in this court. Learned Counsel for the Respondents identified two issues for determination as follows:
(i) Having regard to the unambiguous and mandatory conditions or ingredients of res-judicata, coupled with the state of pleadings and the peculiar circumstances of the plea or res-judicata can avail the Appellant-grounds 1, 2 and 3.
(ii) Whether suit No. HIJ/17/2002 constitutes an abuse of process of court – Grounds 4 and 5.
For reasons stated elsewhere in this judgment, I adopt these issues as the ones calling for determination in this appeal.
On issue No.1; Learned Counsel for the Appellant submitted that from the present and previous suits, the Olupoti is the 3rd Defendant in the previous suit HAD/64/2000 while the Olupoti is the 1st Defendant in the present suit HIJ/17/2000. The Secretary, Ijero Local Government is the 2nd Defendant in the previous suit while the Secretary, Ijero Local Government is the 3rd Defendant in the present suit. Learned Counsel further submitted that from the previous suit, the Attorney-General, is the 1st Defendant in the previous suit HAD/64/2000. It is also established that the Attorney-General is a Defendant in the previous and present suits are the same.
Learned Counsel referred to page 77 lines 28-30 of the records and submitted that the plaintiffs in the previous and present suits are the same. Learned Counsel further submitted that one of the ingredients of Res Judicata have been established by the Appellant.
The Appellant submitted that there was no appeal against the judgment of the Court of Appeal CA/IL/18/2001 as at 21st May, 2003 when the’” plaintiffs/Respondents’ Counsel was concluding his address before the Learned trial Judge in opposing the preliminary objection. Learned Counsel submitted that the Judgment of the Court of Appeal CA/IL/18/2001 is valid and subsisting and final. This to the Learned Counsel has established the 2nd ingredient of Res-Judicata.
In the alternative, Learned Counsel submitted that Appellant in the alternative, submits that if the Chairman, Ijero Local Government is not a party to the previous suit, if the Attorney-General, Ekiti State is a party to the present suit and if the Court of Appeal judgment CA/IL/18/2001 is final, the addition of the Chairman, Ijero Local Government as the 1st Defendant in the present suit cannot defeat or ought not to defeat the plea of res judicata raised by the Appellant because the Chairman, Ijero Local Government is a nominal party in the present suit.
Learned Counsel urged us to hold that all the ingredients for the application of the plea of Res-Judicata have been met by the Appellant and he urged us to so hold.
Learned Counsel for the Respondents on the other hand submitted that to sustain a plea of estoppel per rem judicatam, the party pleading it must satisfy the following conditions:
(a) That the parties or their privies as the case may be, are the same in the present suit in which the plea is raised as in the previous suit;
(b) That the issues and subject-matter in the previous suit is the same as in the present suit.
(c) That the adjudication in the previous suit was given by a court of competent jurisdiction.
He submitted that failure to satisfy the ingredients stated (supra) means the failure of the plea in its entirety. He relied on the cases of Odutola -vs Oderinde (2004) 12 NWLR (Pt. 888) Page 574 at 585 A-D, 586 F-H, Nkanu -vs- Onun (1977) 5 SC 11 and Kuse-vs- A/G Plateau State (1999) 4 NWLR(Pt. 597) 1.
Learned Counsel for the Respondent contended that as clearly stated on the processes the parties are not the same. For a party relying on the plea of res judicata to succeed, the parties must be the same. Learned Counsel submitted that the first fundamental condition to ground the plea of res-judicata to the effect that the parties must be the same is lacking. Even at this, the plea of estoppel per rem judicata has failed in its entirety since one of the essential ingredients of the plea of estoppel per rem judicata is missing. See Tsokwa Oil & Marketing Co. -vs- UTC (Nig) Plc. (2002) 12 NWLR (Pt. 782) 437 at 465 – 467, Fadiora -vs- Gbadebo (1978) 3 SC 219 and Odutola -vs- Oderinde (supra).
On whether the issue raised in the two cases is the same, learned Counsel contended that it is different. The issue in suit No. HAD/64/2000 is on the purported appointment or elevation of the 1st defendant as the prescribed authority over the Obalaaye of Ejiyan. The instant case, however has to do with the constitutional right’ of Ejiyan people to self-determination particularly the instant case, however, has to do with the constitutional right of Ejiyan, people to self-determination, particularly with regard to or concerning the issue of who should be their king.
He relied on the cases of Oloriegbe -vs- Omotosho (1993) 1 NWLR (Pt. 270) SC, 386 at 398 paragraph H and 399 Paragraphs A – B as Well as the Case of Dokubo -vs- Omoni (2001) FWLR (Pt. 61) SC 1804 at 1820 Paragraphs C – D.
Learned Counsel contended that suit NO. HAD/64/2000 was not determined on its merit. It was struck out by the trial court on the basis of the preliminary objection raised by the defendants to that suit which was essentially anchored on the fact that the suit was statute barred. Learned Counsel submitted that for res judicata to operate as estopple, in all its ramifications, it is important that the case between the parties presently in court had been adjudicated between the parties before on the merits and the court had read and delivered a final judgment. He referred the court to the case of Obasi -vs- Bros Co. Ltd (2005) 9 NWLR (Pt. 929) Pg. 117 at 128, paragraphs D – E.
Learned Counsel submitted that it has been demonstrated that the ingredients for the application of the defence of Res-Judicata is completely lacking in the case at hand. He urged us to so hold and resolve this issue in their favour.
Now, it is settled by a plethora of decided authorities that for the defence of Res-Judicata to be successfully invoked the following ingredients must be present:
- That the parties or their privies involved in both the previous and present cases are the same.
- That the claim or issues in dispute in both cases are the same,
- That the res or subject-matter of the litigation in both cases are the same.
- That the decision relied upon to support the plea is valid, subsisting and final; and
- That the court gave the previous decision relied upon to sustain the plea is a court of competent jurisdiction.Learned Counsel for the Appellant submitted quite copiously that that they have succeeded in establishing all the ingredients stated (supra). The question to be asked at this stage is this, can it be said from the processes filed before the court in this case that the parties are the same in order to sustain a defence of Res Judicata. To answer this question, recourse had to be made to the record. In the present suit the parties, are clearly stated on pages 1, 3 and 10 of the record. The parties in the previous case are stated on pages 17 and 29 of the record.
Needless to say, the plaintiffs in suit No HAD/64/2000 are the Attorney-General and Commissioner for Justice, Ekiti State, the Secretary, Ijero Local Government and Oba E. O. Ayeni, the Olupoti of Ipoti Ekiti, while the defendants in Suit No. HIJ/17/2002 are Oba Elijah Oladele Ayeni, the Olupoti of Ipoti-Ekiti, the Chairman, Ijero Local Government, Ijero-Ekiti, the Secretary, Ijero Local Government Ijero Ekiti.
It is instructive to note that since the actions were brought in a representative capacity it is not only the named plaintiffs who are parties but others who are unnamed but whom the plaintiffs represented are also deemed to be parites.
However, the defendants are not the same as can be gleaned from the names of the Defendants contained in the two processes under consideration.
Next but not the least, question to be asked is whether the issues are the same. Learned Counsel for the Respondents vehemently submitted that the issues are not the same. Learned Counsel submitted that the issue in suit No. HAD/64/2000 is on purported appointment or elevation of the 1st Defendant as the prescribed authority over the Obalaaye of Ejiyan. The instant case, however has to do with the Constitutional right of Ejiyan people to self-determination, particularly with regard to or concerning the issue of who should be their king.
I pause here to state that it is appropriate at this juncture to reproduce the Claims/issues of the parties in the two suits under consideration with a view to finding out whether the claims/issues are the same. In suit No. HAD/64/2000, it is stated inter alia as follows:
“The plaintiffs take this action claiming as follows:
(1) Declaration that the Olupoti is not the prescribed authority over the Obalaaye Chieftaincy of Ejiyan, in Ipoti – Ekiti.
(2) Declaration that the purported act of the Ondo State Government, (now Ekiti State) in making the Olupoti of Ipoti Ekiti the prescribed (sic) over the Obalaaye of Ejiyan” community, if it has been done, without consultation with the Ejiyan community is against the fundamental human rights of the Ejiyan Community the age old custom, and traditional agreement between the Ipoti community the Ejiyan community, and the owa community and therefore, unconstitutional illegal unlawful, null and void and against the dictates of natural justice.
(3) Declaration that by Ipoti/Ejiyan native law and custom the Obalaaye is the person entitled to appoint and install all traditional chiefs in Ejiyan without prior consultation.
(4) An order of perpetual injunction restraining the Olupoti, 3rd defendant from interfering in any way whatsoever with the appointment of traditional of traditional chiefs in Ejiyan.
(5) A mandatory injunction compelling the first and second defendants to make the Obalaaye the prescribed authority over Ejiyan in Ipoti Ekiti in the interest of justice, peace and order and good government and also in the interest of natural justice.”
In suit NO.HIJ/17/2002, the instant suit, the plaintiffs claim from the defendants either jointly or severally as follows:
i. A Declaration that the Obalaaye of Ejiyan is the head chief and or Oba of Ejiyan quarters in Ipoti-Ekiti.
ii. A declaration that it is the prerogative of the Ejiyan people and chiefs to select, appoint and instal an Obalaaye of Ejiyan in accordance with their age-long customs and traditions.
iii. a declaration that no Olupoti in history had ever appointed or installed an Obalaaye of Ejiyan.
iv. A declaration that the 1st defendant is not a prescribed authority over the Obalaaye chieftaincy.
v. A declaration that the 2nd and 3rd defendants either alone or in concert with the 1st defendant have no business with or role to play in the appointment and installation of an Obalaaye apart from being merely informed of such an appointment and installation after the completion of same by the Ejiyan people and Chiefs.
A hard look at the claims of the parties produced (supra) reveals the fact that the issues at stake are the same. Learned Counsel for the Respondents’ argument that in the instant case, the Ejiyan people are fighting for self determination under the Constitution of the Federal Republic of Nigeria is hair splitting argument which I am not prepared to accept.
Be that as it may, in view of the fact that for a plea of Res Judicata to avail the person raising it, all the ingredients stated elsewhere in this judgment must be met, this issue’ having held that parties are not the same must be resolved in favour of the Respondents and against the Appellant.
The next issue for determination is whether suit No. HIJ/17/2002 constitutes an abuse of process of court-Grounds 4 and 5. Learned Counsel for the Appellant submitted that since the subject matter, issues and the plaintiffs are the same as in the previous and present suit as held by the trial court, pages 74, Ls. 16-2, 76 Ls. 8-11, 77 Ls 28-30 of the records and having regard to the submissions of the Appellant in paragraph 3.01.16 above that, the parties in the previous suit and the present suit are the same the finding of the trial court that there is a pending appeal to the Supreme Court against the Court of Appeal Judgment CA/IL/18/2001, the institution of the present suit HIJ/17/2002 constitutes an abuse of court process and therefore the present suit should be dismissed.
For his part, Learned Counsel for the Respondents submitted that the parties in the previous suit and the instant one are not the same. They are in fact different. The major claims in both suits are also different. In the current suit, the major claim is for a declaration that the Respondents have a right to self determination, including the right to choose their king without interruption from the appellant which they have been doing since time immemorial. See Page 7 of the record. In the former suit, the major claim is a declaration that the purported act of the Ondo State Government in appointing or making the Olupoti a Prescribed authority over the Obalaaye chieftaincy is unconstitutional, illegal, null and void. He submitted that there was no abuse of court process where parties as well as the major claims are different. See Awofewo -vs- Oyenuga (1996) 7 NWLR (PT. 460) Page 360 at 367. In Bendel Feeds & Flour Mills -vs- N.I.M.B. Ltd (2000) 5 NWLR (Pt. 655) Page 29 at 48 B-4.
In the case of Nnah George Onyeabuchi -vs- Independent National Electoral Commission (INEC) Abuja and 4 others (2002) 8 NWLR (Part 769) P. 417 at P. 427, the apex court held as follows:
“It is an abuse of the process of court for the plaintiff to litigate again over an identical question which had already been decided against him. Also, where proceedings which were viable when instituted have by reason of subsequent events become inescapably doomed to fail, they may be dismissed as being abuse of the process of the court.”
Again, the apex court held thus:
“Where the twin pleas of Res-Judicata and abuse of Court process are raised in a case, failure of the former does not necessarily lead to a failure of the latter. It is common to find cases being argued and almost often decided on the basis that if one doctrine does not apply then another certainly should. In the instant case, even if the appellant had succeeded on the grounds on which the finding of estoppel that been challenged the appeal would still have been dismissed as there was no challenge to the finding that the suit was in abuse of process. (Aruba -vs- Aiyeleru (1993) 3 NWLR (Pt. 280) 126 referred to) (P. 441, paras B – D).”
It is appropriate at this juncture to state that it is not in dispute that the Respondents had filed an appeal against the decision of the Court of Appeal in suit No. CA/IL/18.2001.
The said appeal, needless to say is an appeal against the decision of Aladejana J of the Ekiti State High Court, sitting at Ado-Ekiti dated 15th day of February, 2001. in suit No. HAD/64/2000. That being the case, I am of the considered opinion that since the present plaintiffs have appealed to the apex court in that case, it is an abuse of court process to have filed case No. HIJ/17/2002 with identical reliefs. I am of the considered view that instead of filing the present case, the plaintiffs should have persued their appeal vigorously in the apex court.
In the case of Onyeabuchi -vs- INEC, (Supra) the apex court further held as follows:
“Once a court is satisfied that any proceeding before it is an abuse of court process it has the power, indeed the duty, to dismiss it: That is to say that once a court is satisfied that the proceedings before it amount to abuse of process, it has the right, in fact the duty, to invoke its coercive powers to punish the party which is in abuse of its process. Such power quite often is exercisable ‘by “‘a dismissal of the action which constitutes the abuse. (Arubo -vs- Aiyelem (1993) 3 NWLR (Pt. 280) 126 referred to) (Pp. 441-442, Paras G – A; 444, para. F).”
In the light of all that I have said this issue must be resolved against the Respondents in favour of the Appellant. For avoidance of doubt, I hold with ease that suit No. HID/17/2002 constitutes an abuse of process of court. The appeal under consideration is pregnant with a lot of merit and it is hereby allowed.
Suit No. HIJ/17/2002 must be and it is hereby dismissed. The Appellant is entitled to the costs of this appeal assessed and fixed at N10,000.00.
Other Citations: (2007)LCN/2272(CA)
