Lamidi Adebona Adegbenro & Anor V. Suara Aborisade Akintilo & Ors (2009)
LawGlobal-Hub Lead Judgment Report
MODUPE FASANMI, J.C.A.
This is an appeal against the ruling of Oyo State High Court of Justice, Ibadan Judicial Division delivered on the 28th of May, 2003.
The Appellants sought relief against the refusal of the lower court to grant an Order of certiorari against the decision of the 3rd and 4th Respondents in appointing the 1st Respondent as Baale Ajia Ona Ara Local Government, Ibadan, Oyo State. The brief facts of the case are that the Appellants with the 1st & 2nd Respondents contested for appointment as Baale Ajia Ona Ara Local Government, Ibadan Oyo State before the 3rd & 4th Respondents. The 1st Respondent was appointed the Baale of Ajia by the 3rd & 4th Respondents after the respective applications of the parties have been considered. The Appellants and the 2nd Respondent separately appealed against the appointment of the 1st Respondent as Baale of Ajia to the Commissioner for Local Government and Chieftaincy Affairs. When the Hon. Commissioner did not act in good time on the respective appeals of the Appellants and the 2nd Respondent, each of them brought separate applications. The Appellants brought application for certiorari while the 2nd Respondent’s brought application for mandamus. The application of the 2nd Respondent for mandamus was first heard by Honourable Justice Oyelaran and it was granted Appellants application for certiorari was later heard by Honourable Justice Oladeinde and she refused it. The ruling is now the subject matter of this appeal. The learned trial judge heard the application and held in the penultimate paragraphs of her ruling that:
“There is nothing before me to show that the Commissioner refused to look into the appeal of the Applicants or that he will not look into the appeal: The complaint of the Applicants is that he has delayed in looking into the appeal. The best the Applicant can do in this situation is to bring an application for an order of mandamus to compel the Commissioner to perform his duty.
Having not waited for the consideration of his appeal by the Commissioner or brought an application for an order of mandamus to compel him to perform his duty, the Applicant has not exhausted the remedy available to him before bringing this application for judicial review by way of certiorari. The applicant has therefore not made a case for the grant of the reliefs sought in his application for judicial review and I so hold. The application is hereby dismissed.”
Being aggrieved by the decision of the learned trial judge, the Appellants lodged an appeal to this Court. Briefs were filed and exchanged. At the hearing of the appeal, the Appellants adopted and relied on the arguments in the Appellants brief filed on 22/11/07 but deemed properly filed and served on 6th Feb. 08, wherein the Appellants formulated four issues for determination as follows:
(1) Whether the Applicants/Appellants had made a prima facie case for the grant of an order of certiorari to remove the said proceedings of Olubadan in council into the High Court for the purpose of quashing it and grant the reliefs sought by the Applicants/Appellants.
(2) Whether the grant of Order of Mandamus in suit no. M/410 is a justifiable reason for the lower court to refuse the grant of the order of certiorari sought for by the Applicant/Appellants in the matter.
(3) Was the Presiding judge of the lower court right in the exercise of her judicial discretion?
(4) Whether or not the Applicants/Appellants had exhausted all the available remedies under Section 22 (5) of the Chiefs Law Oyo State 1978.
2nd Respondent in his brief filed on 6/3/08 settled three issues for determination as follows:
(1) Whether the learned trial judge considered the cases of (1) Adesola V. Abidoye (1991) 11 & 12 SCNJ at 93 and Abu Vs. Odugbo (2001) 1 SCNJ at 291 and the evidence proffered before her in determining this case.
(2) Whether the learned trial judge abandoned her duty of adjudicating in the application for certiorari before her and hold that she had no jurisdiction to so adjudicate because her predecessor in office had made an order of mandamus at the instance of the 2nd Respondent.
(3) Whether given the whole circumstances of this case, the learned trial judge was right in refusing to grant the Applicant’s prayer for an under of certiorari to quash the decision of the 3rd and 4th Respondents and in the process, set aside the decision of Oyelaran J,
The 1st, 3rd and 4th Respondent adopted their joint brief of argument filed on 6th March 08 and distilled two issues for determination thus:
(1) Whether the learned trial judge sat on the decision of Honourable Justice Oyelaran as a Court of Appeal (Ground 4)
(2) Whether or not the learned trial judge was justified in refusing the Applicants application (Grounds 1, 2, 3, 5 and 6).
Learned Counsel for the parties have formulated the issues for determination though couched in different words but in substance they are identical. However in the interest of clarity, I will consider the Appellants issues for determination which are all encompassing.
Learned Counsel for the Appellants on issue one distilled from grounds (5&6) of the appeal submits that the Appellants had made a prima facie case for the grant of an order of certiorari to remove into the High Court for the purpose of being quashed the proceedings and decision of Olubadan in council i.e. 3rd & 4th Respondents and the purported appointment of the 1st Respondent as Baale Ajia on 2nd July, 2001 and for the grant of all the declarations sought for by the Appellants. The grounds on which the reliefs were sought are stated on pages 4 & 5 of the record of proceedings thus:
(1) The 3rd & 4th Respondents have no jurisdiction to appoint the 1st Respondent, a complete stranger to Ajia family i.e. Ajia Chieftaincy Ruling Houses as Baale on Monday 2nd July 2001.
(2) The 3rd & 4th Respondents exceeded their jurisdiction in purportedly appointing the 1st Respondent as Baale Ajia on Monday July 2nd 2001 as Baale Aji Maja Opo when on the facts before the Olubadan in council it was apparent that the 1st Respondent is not a descendant of Ajia the founder of the Ajia village
(3) The 3rd & 4th Respondents have no jurisdiction to adopt rotational basis promotion in appointing the 1st Respondent who is the Otun as the Baale Ajia contrary to native law and custom.
(4) That the 3rd & 4th Respondents have no jurisdiction to appoint the 1st Respondent as Baale Ajia Maj-Opo when the Baaleship before them was that of Baale Ajia.
(5) The 3rd & 4th Respondents have no jurisdiction to consider and act on any representation/recommendation purportedly made by Ajia Development Community a social group in Ajia, in relation to the appointment of Baale Ajia contrary to native law custom of the Yorubas.
Learned Counsel submitted that all the relevant materials were before the lower Court at the time of the refusal of the Order of certiorari sought for.
He argued further that the appointment of the 1st Respondent who is not a descendant of Ajia as Baale Ajia is contrary to Yoruba Native Law and Custom.
Again that Ajia Progressive and Development Union which recommended the 1st Respondent to 3rd & 4th Respondents had no jurisdiction to do so as the said union is a social group in Ajia and that the ruling house or houses are the eligible people to nominate, select, elect and recommend a prospective candidate to the 3rd & 4th Respondents.
He referred to the case of ADEFULU V OYESILE (1989) 5 N.W.L.R part 122 at pages 377, 397, 405 and 411 – 415. He argued that it is not compulsory for the Appellant to first lodge their appeal as it is optional before bringing their application for an order of certiorari. He referred to the cases of ADESOLA V ABIDOYE & ORS. (1999) 11-12 S.C.N.J page 61 at 100 and ABU V ODUGBO (2001) 7 N.S.C.Q.R page 260 at 291.
Learned Counsel for the 2nd Respondent in reply submits that ADESOLA V ABIDOYE & ORS. (1999) 11-12 SCNJ page 61 and ABU V ODUGBO (2001) 1 SCNJ at 29 cited by the learned Counsel for the Appellants did not decide that it was not compulsory for a person who complains about failure of a prescribed authority to act one way or the other in his decision concerning the appointment of a minor chieftaincy to first lodge an appeal with the Commissioner for Chieftaincy matters. Neither did the two cases decide that lodging an appeal with the Commissioner in charge of chieftaincy matters is optional. He argued that none of the facts enumerated by the Appellants in their affidavit evidence showed any pronouncement oral or written that the Commissioner refused to look into the issue of the alleged wrongful appointment of the Baale of Ajia by the 3rd & 4th Respondents in this case. He urged the Court to hold issue one against the Appellants.
Learned Counsel for the 1st, 3rd & 4th Respondents submits that the Appellants have not made a case for the granting of their application. He argued that ADESOLA VS. ABIDOYE & ORS supra decided that until a party whose case falls under Section 22 of Chiefs Law of Oyo State has exhausted all remedies opened to him under that law, he cannot come straight to High Court to litigate on the matter.
I have painstakingly considered the brilliant submissions of the Learned Counsel to the parties in their briefs of argument on this issue. I have also checked the record of appeal before this Court. The relevant materials that were before the lower Court at the time of the refusal of the Order of certiorari sought for are:
(1) Application for LEAVE to apply for an order of certiorari to remove to the High Court for the purpose of being quashed the proceedings/decision of Olubadan In Council page 1 of the Record.
(2) Enrolment of Order in respect of the Leave granted by SANDA . J. as he then was – pages 71-72 of the record
(3) The application for an order of Certiorari supported by the usual statement showing the grounds on which the application being sought, lack of jurisdiction or excess of jurisdiction to appoint 1st Respondent as Baale Ajia pages4-5 of the record.
(4) The proceedings and decision of Olubadan in Council Exhibits D-D5 pages 10-48 of the record
(5) Application on notice for an Order of Certiorari pages 65-68 with grounds
(6) (1961) Western Region of Nigeria Gazette no 10 of 10th August 1961 Exhibit I where Raji Akintola was published as the holder of the stool pg 94
(7) A letter dated 8th Dec. 1950 written to the Olubadan in Council stating that Maganlola and Adegbenro ruling Houses are entitled to be appointed Baale Ajia see page 105 of the record.
The 1st & 2nd Respondents have debunked this assertion in their counter affidavits. See the counter affidavit of the 1st Respondent at page 91 of the record sworn to on 4th March 2002 para 6 states:
Para6:
“With reference to paragraph 8, nobody selected the 1st Applicant to be Baale Ajia vide exhibit D attached to the application”
The counter affidavit of the 2nd Respondent sworn to on the 11th of April 2002 states:
Para7
“That I was informed by the 2nd Respondent and by Kehinde Adekunle Esq (the 2nd Respondent’s Counsel) and I believe them that the former Western Region of Nigeria did not make any Baale of Ajia Chieftaincy Declaration in 1961.”
Para8
“That I was also informed by the 2nd Respondent and I believe him that Akintola and Adegbenro families were not declared to be entitle to hold the Baale of Ajia by any Government.”
Para9
“That Western Nigeria Notice no 1201 published in Western Nigeria gazette No. 46 Vol. 10th August 1961 (N06) did not declare that any particular family was or is entitled to hold the Baale of Ajia.”
An order for certiorari corrects errors of tribunals or body and quashes erroneous decisions where a Tribunal or body has acted:
(1) Without jurisdiction
(2) In excess of its jurisdiction
(3) In violation of the rules of natural justice. See ABU VS. ADUGBO (2001) 7 N.S.C.Q.R page 624 at 647.
In the interpretation of statutes, the main object is to discover the intention of the law makers which is deducible from the language used. Thus once the language of a statute is clear and unambiguous, the Court will give an ordinary or literal interpretation to it. The literal construction must be followed unless that would lead to absurdity and inconsistency with the provisions of the statute as a whole. The Court of law in the exercise of its interpretative jurisdiction must stop where the statute stops. See the cases of AWUSE VS. ODILI (2004) F.W.L.R part 193 at 325; (2003) 18 N.W.L.R part 851 at 116; BUHARI V YUSUF (2003) 14 N.W.L.R part 841 at 446; BUHARI V OBASANJO (2003) F.W.L.R part 186 at 709 and ATTORNEY-GENERAL ONDO STATE VS. ATTORNEY-GENERAL EKITI STATE (2001) F.W.L.R part 79 at 1431, 2001 17 N.W.L.R part 743 at 706.
The Supreme Court has interpreted the word “may” to mean a mandatory rather than a directory in the case of ADESOLA VS. ABIDOYE (1999) 14 N.W.L.R part 637 pages 28 at 56. The Court held the word “may” used in Section22 (5) of the Chiefs Law of Oyo State that:
“The use of the expression “may” in this situation is not merely facultative but mandatory. There is no alternative. The aggrieved has no choice of action in the remedy provided for him. Accordingly, the word “may” in Section 22 (5) of the Chiefs Law of Oyo State 1978 should be construed as imperative, the exercise of the right being not optional.”
See also the decision of this Court in ADESOLA VS. AYEOBA (2009) ALL F.W.L.R part 458 pages 355 at 381 paras F-G.
The Appellants in this instance complied by lodging the appeal with the Commissioner for Chieftaincy Affairs since August 2001 and up till the time the ruling on the certiorari was delivered in 2003, the Hon. Commissioner has not given any response to the appeal.
Applying the literal interpretation to the statute in Section 22 (5) of the Chiefs Law of Oyo State, the Appellants have exhausted all the remedies under the section having lodged the appeal with the Hon. Commissioner as they cannot wait endlessly. In ADESOLA VS AYEOBA supra, the Appellants failed to submit their grievances to the prescribed authority but decided to proceed straight to the High Court hence the appeal was dismissed. It is not the business of the Court to make declarations of customary law relating to the selection of Chiefs under the Chiefs Law. But it is the business of the Court to make a finding of what the customary law is and apply the law for the claim of declaration. The Courts will also not intervene in the matter of selection of Chiefs unless it was done contrary to natural justice or as required by law. See also OGOLOGO & ORS. VS. UCHE & ORS (2005) L.R.C.N page 2534 at 2557 AP per Belgore J.S.C as he then was said:
“Where a law has given exclusive power to a body to decide, the court cannot come in before that body has exercised that power. Court can come in only where there is exhaustion of all remedies before that Court will then be able to decide whether that power had been exercised lawfully”.
On the face of the materials and the affidavit evidence in the record, it is apparent that the Appellants have a prima facie case to be tried before the lower Court. The success or otherwise of the materials will be determined when the application is decided on its merit. The Court can inquire into the matter since the Appellants have made a prima facie Case and have exhausted the remedies under the Chiefs Law. Issue one is resolved in favour of the Appellants.
Issue 2
Learned Counsel for the Appellants submitted that the learned trial judge was patently wrong for refusing to grant the application for an order of certiorari before her. She argued that the Appellants are not estopped by the order of mandamus granted by Oyelaran J. as they were not parties to the application relating to the order of mandamus. She referred to the case of AYIWE ODJEUWEDJE & OTHER VS. MADAM EBNAGBENA ECHAMOKPE (1987) 3 S.C. page 47 at 67 and 68. She went further in her argument that the failure of the learned trial judge to grant the Order of certiorari is an abandonment of duty placed on her to adjudicate i.e to resolve the issue as to whether the 3rd & 4th Respondents acted properly or whether they did not exceed their jurisdiction to appoint 1st Respondent as Baale Ajia. She referred to the case of IGBOHO, IREPO LOCAL GOVERNMENT COUNCIL AND COMMUNITY VS. THE BOUNDARY SETTLEMENT COMMISSIONER & OR. (1988) 2 S.C part 1 page 55 at 69.
Learned Counsel for the 2nd Respondent on issue 2 submitted that the learned trial judge did not abandon her duty of adjudicating in the application for Certiorari before her on the ground that her predecessor in office had granted an order of mandamus in the same subject matter. He submitted that the learned trial judge was conscious of the point that she must not base her decision on the ruling of Oyelaran J in the application for mandamus in Suit no. M/410/2001 when she held as follows:
“Assuming that my decision thereon is wrong. I will now consider the provisions of Section 22 (5) of the Chiefs Law Cap 21 Vol. 1 Laws of Oyo State 1978 as amended relied on by Counsel on all sides which provided as follows…”
The learned trial judge proceeded to hold that there was nothing before her to show that the Commissioner refused to look into the appeal of the Applicants that is the present Appellants appeal for review tabled before the Commissioner. He urges the Court to uphold the decision of the learned trial judge on the second limb of her judgment quoted above. He argued further that the learned trial judge did not overturn the decision of her learned brother as the two Courts are of coordinate jurisdiction. In conclusion he stated that Oyelaran J. decided the preliminary objection of whether or not the Court had jurisdiction to hear the case while the learned trial judge gave the ruling on the grant of order of certiorari.
Learned Counsel for the 1st, 3rd & 4th Respondents submitted that the learned trial judge did not sit as an appellate court over the judgment of Honourable Justice Oyelaran in which she granted an order of mandamus to compel the Commissioner for Chieftaincy Affairs to look into the 2nd Respondent’s appeal to him on Baale of Ajia. He submitted that the preliminary decision of Oyelaran J on the interpretation of Section 22 of the Chiefs Law is not binding on the trial judge to preclude her from adjudicating on the motion for the grant of order of certiorari. He urged the Court to resolve the issue against the Appellants.
The law is well settled that the issue of jurisdiction could be raised at any stage of the proceedings. It is never too late or too early to raise it. See KOTOYE VS. SARAKI (1993) 5 N.W.L.R part 296 at page 710; BRONIK MOTORS VS. WEMA BANK (1983) 1 S.C.N.L.R at 296 and OBIKOYA VS. REGISTRAR OF COMPANIES (1975) 4 S.C page 31 at 34.
In this instance, the learned Oyelaran J. decided the preliminary objection as to whether or not the Court has jurisdiction to hear the case and she granted the application for the order of mandamus filed by the 2nd Respondent while the learned trial Judge gave the ruling on the application for the grant of the order of certiorari. Both applications were on the same subject matter i.e. the dispute over the Baale of Ajia Chieftaincy but the parties sought for different reliefs from the Court. While Appellants sought for order of certiorari, the 2nd Respondent sought for the order of mandamus.
The purpose of the order of mandamus is to compel a public officer to perform his duty whereas the order of certiorari is used for quashing the erroneous decision of a Tribunal or body that has acted without jurisdiction or in excess of jurisdiction. Going by the above premise, I am inclined to believe that the learned trial Judge misconceived the purposefulness of the two relief’s i.e. Order of mandamus and order of certiorari when she held at page 118 of the record in her ruling thus:
“I have read the ruling of my learned brother Oyelaran J. delivered in suit no. M/410/2001 on 31/7/2000 which is also in respect of the same subject matter in dispute in the case at hand i.e the Baale of Ajia Chieftaincy title. I have no reason to review neither her decision nor the power to reverse the order made by her. The order subsists and binding on the parties in the present case as it is the complaints of non-performance of the Commissioner’s duty i.e. not looking into the appeal of the Applicant that in the premise upon which the Applicant filed the application for judicial review by way of certiorari to quash the proceedings of the 3rd & 4th Respondents in respect of appointment of the 1st Respondent on the Baale of Ajia. For this reason, I am of the view that I cannot grant the Applicant’s application.”
In my view the grant of an order of mandamus cannot and should not be the basis to refuse the application for the order of certiorari.
In the circumstance, I hold that the learned trial Judge sat as Appellate Court over her learned sisters ruling of 17th January, 2002. Issue two is hereby resolved in favour of the Appellants.
Learned Counsel to the Appellants did not proffer any argument on issue 3 in the brief of argument. Where an issue is formulated from the grounds of appeal but no argument or address is proffered on the issue in the brief of argument the issue is deemed and liable to be struck out. See ULABA V SILLO (1973) 1 S.C at 37; ODUARAN V ASARAH (1972) 1 ALL N.L.R part 2 at 137. Issue three is accordingly struck out.
Learned Counsel to the Appellants on issue four submitted that the learned trial judge over turned the decision of Oyelaran J as to whether the lower court could entertain the application for judicial review by holding that there was nothing before her to show on the record that the Commissioner refused to look into the appeal lodged before him or that he will not look into the appeal before him. She submitted that the learned trial judge sat as an appellate court over her learned sister’s ruling of 17th January, 2002 who held that the Applicants have exhausted all available remedies under Section 22 (5) of the Chiefs Law of Oyo State 1978. She submitted that the High Court has supervisory power over the tribunal or any lower court. She cited ADESOLA VS. ABIDOYE 11-12 SCNJ page 61 at 100 and ABU V ODUGBO (2001) 7 NSCQR PAGE 260 AT 291, 293, 309 AND 318. Learned Counsel to the Appellants submitted that they have exhausted all the remedies available to them under Section 22 (5) of the Chiefs Law Oyo State 1978 by lodging an appeal to the Commissioner for Local Government and Chieftaincy Affairs. She finally urged the Court to exercise its powers under Section 16 of the Court of Appeal Rules to grant the reliefs sought by the Appellants/Applicants as contained in the reliefs sought from the Court of Appeal.
Learned Counsel to the 2nd Respondent submitted that the learned trial judge was right and acted properly in refusing to grant the order of certiorari applied for by the Appellants as the facts put forward by the Appellant did not support the grant of the Appellants application. He submitted that the learned trial judge who heard the Appellants motion for leave granted same in order to have the opportunity of hearing the Respondents view on the matter to be able to satisfy the requirement of the principle of fair hearing which is fundamental to all Court procedure and processes. He finally argued that since Oyelaran J. was not the person who granted the Applicants leave to issue an order of certiorari, Oladeinde J. could not have set aside, reversed or overturned a non existent ruling of the said Oyelaran J. who according to the Appellants Counsel purportedly granted the LEAVE to file the application for the issuance of the Order of certiorari being sought for by the Appellants in this suit. He urged the court to resolve the issue against the Appellants.
Learned Counsel to the 1st, 3rd and 4th Respondents submitted that until a party whose case falls under Section 22 of the Chiefs Law of Oyo State has exhausted all remedies opened to him under that law he cannot come straight to High Court to litigate on the matter. He referred to ADESOLA V ABIDOYE & ORS supra, EGUANWENSE V AMAGHIZEMWEN (1993) 11 SCNJ at 27.
He finally submitted that the learned trial judge decided the case primarily on the ground that there was nothing before her to show that the Commissioner for Local Government had taken a decision on the Applicant’s appeal or that he was not willing to take any step on the Appellants appeal to him as required by Section 22 (5) of the Chiefs Law of Oyo State: He urged the Court to dismiss the appeal as lacking in merit.
From the affidavit of the Appellant on record before the Court, the Appellants have lodged an appeal to the Commissioner for Chieftaincy Affairs to give response to the complaints and representations made by them as to what they considered an injustice. See pages 62 and 63 of the record of proceedings for the visitors note book to the Commissioner for Chieftaincy Affairs office by the Counsel to the Appellants dated 6/8/2001 and the subsequent letter dated 17th August 2001 written to remind the Commissioner on his response to the Appellants appeal or representation before him. The application seeking for the grant of the order of certiorari was heard and the ruling delivered on the 28th of May 2003. The ruling was to the effect that there was nothing to show that the Commissioner for Local Government and Chieftaincy Affairs had taken a decision on the Appellants appeal or that he was not willing to take any step on the Appellants appeal to him as required by Section 22 subsection 5 of the Chiefs Law of Oyo State. This is sad to say the least if the Commissioner for Chieftaincy Affairs would not respond one way or the other to an appeal going to almost two years before him. No reasonable person would expect the Appellants in the given situation to go home, sleep off and pretend that all is well in the circumstance. Since there is no provision of Section 22 of the Chiefs Law Oyo State which precludes a party from doing any other thing than appeal to the Commissioner for Local Government and Chieftaincy Affairs, I hold the view that the High Court can intervene in the decision of the 3rd & 4th Respondents having exhausted all the procedural steps. See ADESOLA V ABIDOYE AND OTHERS (1999) 11-12 S.C.N.J page 61 at 100 ABU V ODUGBO (2001) 7 N.S.C.Q.R page 260 at 291, 293, 309 AND 318 AND OWOSENI V FALOYE (2005) All F.W.L.R part 284 pages 220 at 248 paras B-F where Oguntade J.S.C had this to say:
“It is important to stress that laws which prescribe that some procedural steps be taken to resolve a dispute before embarking on actual litigation are not and cannot be treated or categorized as ousting the jurisdiction of the Court. Indeed if such laws attempt to do so, they would be in conflict with the provisions of the Constitution. The laws serve the purpose of preventing actual litigation in Court where it is possible. In relation to Chieftaincy matters, were such laws not in existence, the Court would be inundated with suits on Chieftaincy matters given the bitterness with which Chieftaincy disputes are pursued and regularity with which such disputes occur.”
I hold the view that the Appellants have complied with the precondition for setting the legal process in motion. The days of technicality which is as bad as injustice are over. The trend these days is to strive to do substantial justice on the merits of each case. The Chiefs Law does not bar court actions. The law is that when an action is commenced and there is non-compliance with a stipulated precondition for setting the legal process in motion, the suit instituted in contravention of the condition precedent is incompetent and the court is equally incompetent to entertain the suit. See DEE NIGERIAN UNIVERSAL BANK LTD &. 72 OTHERS VS. SAMBA PETROLEUM COMPANY LTD (2006) 12 N.W.L.R Part 993 pages 98 at 129. See also UBWA VS. BASHI (2008) ALL F.W.L.R Part 445 page 1753 at 1765 paras G-H. Issue four is resolved in favour of the Appellants.
For this Court to invoke Order 15 of the Court of Appeal Act as canvassed by the Appellants Counsel all the materials must be placed before us inclusive of the affidavit evidence of all the parties but where there is need to call evidence outside the affidavit evidence, we cannot invoke the power.
In the particular case at hand, there is conflicting affidavit from the parties on the record. This will require calling of evidence to resolve the conflict between them. This Court is not a court of evidence except under special circumstances.
For this reason, this Court will order a retrial of the application before a different Judge to enable the parties have the opportunity of proving their case on the merit. This will best serve the interest of justice. The appeal succeeds in part. The ruling of the trial court in suit no. M/409/2001 is hereby set aside and the case is hereby remitted to the Honourable Chief Judge, Oyo State to assign same to another Judge to hear and determine the case afresh. The cost of N30, 000.00 is awarded in favour of the Appellant.
Other Citations: (2009)LCN/3275(CA)
