Alhaji Yunnus Bukoye, Essa Of Offa & Ors V. Alhaji Saka Adeyemo Magaji And Head Of Olugbense Ruling House, Offa & Ors (2016)

LAWGLOBAL HUB Lead Judgment Report

AMIRU SANUSI, J.S.C.

This appeal emanates from the Judgment of the Ilorin Division of the Court of Appeal (“the lower Court” for short) delivered on the 9th of July, 2013, which allowed the 1st to 3rd Respondents’ joint appeal and granted all the reliefs sought in the statement of claim of the plaintiffs/appellants as opposed to the decision of the trial High Court of Kwara State sitting in Offa which had on 21/7/2013 which had earlier dismissed the plaintiff/appellants claim filed thereat.

This case had a chequered history. It is a case of chieftaincy tussle between ANILELERI and OLUGBENSE Ruling houses of Offa, in Kwara State of Nigeria. The tussle is basically on who is the rightful person from the two ruling house to occupy the position of Olofa of Offa on the basis of rotation after the demise of the erstwhile Olofa of Offa Ola Mustapha Olawore Olanipekun II who was from the ANILELERIN Ruling house who ruled for forty years and his ruling house Anilelerin which was female ruling house. Ordinarily, the candidate to fill the vacant stool going by the principle of rotation as established by Kwara State Government

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should have been from the OLUGBENSE male ruling house and the 2nd respondent who was from the latter ruling house, was nominated and presented to the kingmakers of Offa who are now the appellants, who refused to confirm the 2nd Respondent as the Olofa of Offa acting in concert with the 5th and 6th respondents and instead they installed the 4th respondent who is also from the same family ruling house of Olofa of Offa.

The case of the appellants and the 4th respondent together at the trial Court was that the male line of Olugbense ruling house had become extinct. The trial Court after taking evidence delivered its Judgment on 19/7/2012 in which it rejected the claimants’ (1st to 3rd Respondents) case, that it was their turn to produce the Olofa of Offa, that the appointment and installation of the 4th Respondent was unlawful and void. It also rejected the counter claim of the appellants’ and 4th Respondent. It further held that there are two ruling houses in Offa, namely the Olugbense male ruling house and the Anilelerin female ruling house but it rejected the claim that the ascension to the stool of Olofa of Offa was by rotation. On appeal to the Court of

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Appeal (the lower Court), the penultimate Court held that the claim of the 1st to 3rd Respondents that the stool became rotational right from 1969 was proved and it granted all the reliefs sought by the 1st to 3rd Respondents.

Dissatisfied with the Judgment of the lower Court, the present appellants appealed to this Court even though they split in that, the 4th respondent with whom they fought the case jointly at both the trial Court and the lower Court has now filed a separate notice of appeal containing ten grounds of appeal at papas 1515-1524 of the record.

The appellant’s jointly filed a notice of appeal dated 23rd July, 2013 containing eight grounds of appeal out of which they formulated four issues for determination by this Court. The four issues are:-

1. Whether having regards to the extant provisions of Section 3 (3) of the Chiefs (Appointment and Deposition) Law CAP. 09 of Kwara State 2006, the Court of appeal acted competently and correctly in countenancing and granting the reliefs, it awarded to the 1st to 3rd Respondents (Ground 1).
2. Whether the Court of Appeal was not in error in suo motu raising and relying on the principle of

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repugnancy test and its perceived “sense of Justice”, to find in favour of the 1st to 3rd respondents, contrary to the case of the parties as formulated in the pleadings and presented by them in evidence. (Grounds 2 & 6)

3. Whether the Court of Appeal was not in error in the view it took of Exhibits A, D and J and its conclusion that ascension to the Olofa of Offa stool is by rotation between the Anilelerin and Olugbense Ruling Houses and that it was the turn of Olugbense Ruling House to produce the next Olofa of Offa in succession to the late Oba Musupha Olawore Olanipekun. (Grounds 3, 4, 5, and 9)
4. Whether the Court of Appeal was not in error in granting the reliefs sought by the 1st to 3rd Respondents when some was not proved as required by law but also caught by the principle of estoppels. (Grounds 7, 8 and 10)

Upon being served with the appellants’ brief of argument, the learned counsel for the 1st to 3rd Respondents filed brief of argument on behalf of his client on 25-11-2015, which was settled by J. O. Baiyeshea SAN. Therein, five issues for determination were raised which read as below:-

A. Whether the trial Court and the

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Court of Appeal had the jurisdiction to adjudicate on the 1st to 3rd Respondents’ case having regard to Section 3(3) of the Chiefs Appointment and Deposition Law of Kwara State (Ground 1)

B. Whether or not the principle of repugnancy was raised suo motu by the Court below or whether or not any of the parties canvassed the principle of repugnancy as an issue at the trial Court and the Court below. (Grounds 2) and

C. Whether the Court below properly relied on Exhibits A, D and J in coming to the conclusion that 1st 3rd respondent had enough evidence on record to establish rotational chieftaincy for the stool of Olofa of Offa from 1969 (Grounds 3, 4, 5 and 9)

D. Whether in the peculiar circumstances of this case, the principle of estoppels applies for the benefit of the appellants (Ground 8)

E. Whether the Court below was right in granting the 1st to 3rd respondents (Grounds 7 and 10).

It is pertinent to state at this stage that the Appellants had on 8/3/2016, filed Appellant’s Reply Brief in response to the brief of argument filed on behalf of the 1st to 3rd Respondents. No briefs of argument were however filed on behalf of the 4th

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to 6th Respondents.

On the 11th day of April, 2016, this Court got set to hear appeals Nos. SC.647/2013, SC.648/2013, SC.650/2013, SC.650A/2013 and SC.890/2013 together. Learned senior counsel to the parties after identifying their respective briefs of argument they filed in each of the five appeals, proceeded to adopt them including the Preliminary Objection where such was or were filed.

After taking the appeals, the Court suo motu invited the learned senior counsel for the parties to address it on the propriety of them filing multiplicity of such appeals all on single Judgment affecting virtually the same parties in the light of this Court’s recent Judgment in Appeal Nos. SC.12/2016 and SC.12A/2016 delivered on 15th day of February, 2016.

Mr. Yusuf Ali, SAN of learned senior counsel of the appellants in SC.647/2016 and for the 1st to 3rd Respondents in Cross appeal No. SC.648 and also in SC650A triggered the first shot by submitting that appeals Nos. SC.647/2013, SC.650/2013 and SC.650A/2013 are the main appeals while SC. 648/2013 is a cross appeal to SC.647/2013. As regards appeal No. SC.890/2014, the learned senior counsel submitted that it

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was delivered by another panel of the Court of Appeal. With reference to this Court’s recent decision in SC.12/2015 and SC.12A/2015, he stated that he participated in those appeals and argued that the decisions in those recent decisions do not have retrospective effect. He finally contended that there is actually the need to discourage filing of multiplicity of appeals on same judgment and urged this Court to exercise its discretion on the matter.

Chief R. A. Lawal Rabana, SAN who appeared for Appellants on SC.650A/2013; for 5th Respondent in SC.650/2013; and for Appellants in SC.890/2014, submitted that appeal in SC.650/2013 is against the Judgments of the High Court and the Court of Appeal. He submitted that where an appellant had shown sufficient interest in his appeal, such would not amount to an abuse of Court process. With regard to appeal No. SC.890/2014, he said that appeal arose from the dismissal of counter-claim by defendant at the trial Court, hence the counter-claimant appealed to the Court below which held that the counter claim was not statute barred.

Mr. K. Ajibade, the learned Attorney General of Kwara State represented the 5th and

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6th Respondents in SC. 647/2013, 6th and 9th Respondents in SC.648/2011, for 9th Respondent in SC.650/2013 and appellants SC.650A/2013 and for 8th and 9th Respondent in SC.890/2014. He aligned himself with the submissions of learned senior advocates Y. Ali and Chief R. A. Lawal Rabana. He submitted that appeal No. SC.650A/2013 was filed separately as a result of the consequential order made by the Court below against the Governor of Kwara State as contained on page 1503 of Vol. 2 of the Record. He said based on the consequential order made on the Governor of Kwara State, they decided to appeal to this Court. He finally urged this Court not to regard their appeal as abuse of Court process.

On his part, Mr. John Olusola Baiyeshea, SAN of learned senior counsel for the Cross Appellant in SC.648/2013, for 1st to 3rd Respondents in SC.650/2013 and SC.650A/2013 and for Cross Respondent SC.890/2014 agreed that multiplicity of appeals amount to abuse of Court process and counsel should be discouraged from filing them. He said the only germane issue is whether there were two ruling houses in Offa and that is the only issue calling for determination which this

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Court should be bold enough to decide and to also adopt the procedure for posterity sake. There is no gain saying that the present two appeals covered by this Judgment and indeed the other appeals except SC.890/2014 are all against the single Judgment of the Court below delivered on the 9th of July, 2013 which reversed the decision of the trial Court. All learned senior counsel are ad idem, that their respective appeals were lodged against the said Judgment of the Court below. I think it will therefore be apt to consider whether the appeals lodged particularly the present two appeals i.e. SC.647/2013 and SC.648/2013 amount to abuse of Court process. It is not in dispute that the crux of the dispute which led to the institution of the action before the trial Court in the first place, is centered on the ascension to the stool of the Olofa of Offa of Kwara State. Also not in dispute is that all the parties relied on the pleadings they filed at the trial Court on which basis evidence were led at the trial Court. Similarly, it needs to be stated also, that by filing appeals and cross appeals against the same Judgment, each party decided to file separately

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appeals or cross appeals and made himself either appellants, cross appellants, respondents or cross respondent in their own appeal against the single Judgment. Admittedly, an appellant is not bound to retain all the parties at the trial in his appeal.

There is no iota of dispute that parties to any suit have unfettered right of appeal against the decision of the trial Court to the Court below and even further to this Apex Court as provided by Section 246 and, 233 of the Constitution of the Federal Republic of Nigeria 1979 and 1999 (as amended) (the Constitution for short) respectably. At any rate, it is my considered view that even though the Constitution provides right of appeal to any party aggrieved by decision of a Court, that does not however give such aggrieved party the right to abuse the process of the Court when exercising such right of appeal. It is trite law, that rights of appeal are exercised according to law, rules and procedures governing such appeal. In other words, it is incumbent upon the litigant to follow the law, rules and procedure governing the exercise of such right of appeal one of which is to guard against abusing the process of

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Court.

The issue to address now is “what does “abuse of Court or Judicial Process” mean. This Court in the case of Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 had held the concept of abuse of Court or judicial process is imprecise and that it involves circumstances and situation of infinite variety and condition that a common feature of the concept is simply the improper use of the judicial process by a litigant to interfere with the administration of justice. In fact at page 188 of the report KARIBI-WHYTE, JSC stated thus:-

“It is recognized that the abuse of the process may lie in both proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse of the judicial process when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice.”

This Court went further to lay down in the same case, the circumstances which will give rise to abuse of judicial process which include the following:-

(a) Instituting a multiplicity of actions on the same subject matter

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against the same opponent on the same issues, or a multiplicity of action on the same matter between the same parties even where there exists a right to begin the action.

(b) Instituting different actions between the same parties simultaneously in different Courts even though on different grounds.

(c) Where two similar processes are used in respect of the exercise of the same right for example, a cross-appeal and a Respondent notice

(d) Where an application for adjournment is sought by a party to an action to bring an application to Court for leave to raise issues of facts already decided by Court below.

(e) Where there is no iota of law supporting a Court process or where it is predicated on frivolity or recklessness.

This Court went ahead to hold that the abuse of process lies in the multiplicity and manner of the exercise of the right rather than the exercise of the right per se. It consists of the intention, purpose or aim of the person exercising the right to harass, irritate and annoy the adverse party and interfere with the administration of justice. It is the inconvenience and inequities involved in the aims and purposes of the

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action. See Okorodudu v. Okoromadu (1977) 3 SC 21; Oyegbola v. Esso West Africa Inc. (1966) 1 All NLR 170; Harriman v. Harriman (1989) 5 NWLR (Pt. 119) 6.

Applying the above listed principles which tantamount to abuse of judicial process to the instant situation of these two cases, one can safely say that the institution or filing of these appeals constitute abuse of judicial or Court process. The appeals are on the same judgment and against the same parties and also on the same subject matter. The appeals in my view were no doubt instituted with the aims of annoying the adverse party thereto. This Court had on previous occasions frowned at the attitude of learned counsel of filing such multiplicity of action at first instance or on appeal and counsel are admonished for filing such numerous processes especially in the most recent appeals No.SC.12/2016 and SC.12A/2016 to which attention of senior counsel appearing for the parties were drawn. Therefore, having held that this appeal No. SC.647/2016 amounts to abuse of judicial process in line with the reasons I have given above, I do not see any need to consider the issues for determination raised by the

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learned counsel for the parties or to consider the appeal on the merit.

In the result, this appeal being an abuse of judicial process deserves to be dismissed and it hereby accordingly so dismissed.

SC.648/2013

This is a cross appeal against part of the decision of the Court of Appeal Ilorin division, delivered on the 9th day of July 2013. The facts giving rise to this cross appeal are the same with those set out earlier in this judgment, facts in SC.647/2013 hence the cross appeal is an off-shoot of SC.647/2013. It will therefore amount to repetition to repeat the facts here.

The three cross appellants filed their Cross Appellants Brief of argument on 14/7/2014, wherein they formulated two issues for determination of the cross appeal which read thus:-

1. Whether the lower Court was right in upholding the decision of the trial Court that ‘Exhibit G’. The Kwara State Press Release of 1969 is inadmissible in evidence on the ground that it was not certified.
2. Whether the lower Court was right in holding that newspapers (Exhibits P, Q, R and S) were inadmissible on the ground that there was no evidence of payment of fees for

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their certification and that newspapers were generally inadmissible in evidence.

The cross appellant had also filed Cross Appellants Reply Brief to 1st to 4th Cross Respondents on 5-4-2016.

Learned senior counsel for the 1st to 4th cross respondents in the brief he filed on their behalf on 14/7/2014 distilled two issues for determination from the grounds of appeal and the dual issues are as follow:-

A. Whether the lower Court was right in upholding the decision of the trial Court that Exhibit G, the Kwara State Press Release is inadmissible in evidence on the ground that it was not certified.

B. Whether the lower Court was right in holding that the newspaper (Exhibits O, P, Q, R and S) were inadmissible on the ground that there was no evidence of payment of fees for their certification and that newspapers were generally inadmissible in evidence.

The fifth Cross Respondent’s brief was filed on 5th August 2014. He also raised two issues for determination as below:-

(i) Whether Exhibits G, being a public document is admissible in evidence having not been certified (Ground 1)

(ii) Whether the Court below, was right to have

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expunged Exhibit O, P, Q, R and S from the Record on the ground that they are public documents which have not accordingly been certified. (G round 2)

Lastly, the 6th and 7th Cross respondents had filed their brief of argument on 16/2/2015. Like others, two issues were also formulated for the determination of the cross-appeal which are reproduced below:-

1. Whether the Court below was right in upholding the decision of the trial Court that Exhibit G, the Kwara State Press Release of 1969 is inadmissible in evidence on the ground that it was not certified.
2. Whether the Court below was right in holding that the newspapers (Exhibits O, P, Q, R and S) were inadmissible on the ground that there was no evidence of payment of fees for their certification and that, newspapers were generally inadmissible in evidence.

As I posited supra, this present cross appeal is an off-shoot of appeal no.SC.647/2016 as it emanated from the decision in the latter appeal in relation to part of the decision of the latter appeal. In my discourse above, I have adjudged appeal No. SC.647/2013 to be an abuse of judicial process for the reasons I have adumbrated supra

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after giving due consideration to the responses by learned senior counsel to all the parties to the question raised suo motu by this Court on the propriety of all the appeals filed, including this particular cross appeal.

My noble lords, permit me to state that this Court in its judgment in the main appeals, namely – SC.650A/2013 and SC.650/2013 delivered today 1st July, 2016 made a far reaching finding that in fact, the two lower Courts were in the first place bereft of jurisdiction to adjudicate in the dispute by the parties on the stool of Olofa of Offa in view of the non-compliance with the provisions of Section 3(3) and (4) of the Chief (Appointment and Deposition) Law (hereinafter referred to as “the law”) by the respondents in those two appeals i.e. SC.650A/2013 and SC.650/2013. For ease of reference and purpose of clarity, I shall reproduce below the relevant provisions of Sections 3 and 4 of the law.

“Section 3(1)

Upon the death, resignation or deproduction of any chief other than a chief of a kind referred to in Section 4, the Governor may appoint as the successor of such chief or head chief, any person selected in that behalf by those

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entitled by customary law and practice to select in accordance with customary law and practice.

2. Where no selection is made before the expiration of interval as is usual under customary law and practice, the Governor may himself appoint such person as he may deem fit and proper to carry out such duties incidental to the chieftaincy as it may be necessary to perform.
3. In the case of any dispute, the Governor, after due inquiry and consultation with persons concerned in the selection, have the final say as to whether the appointment of any chief has been made in accordance with customary law and practice.
4. (1) The provisions of Section 3 shall not apply to the office of a chief which has not originated from customary law and practice but has been created by legislature or administration act of a competent authority, but the provisions of Sub-sections(2) and (3) of this Section shall apply thereto.
5. The powers of the Governor under the proceeding sections of this law shall only be exercised after receiving the advice of the Council of Chiefs.

15.(1) Where the Governor or the appointing authority has approved the appointment of a

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person as a chief, any person who intends to challenge the validity of such appointment shall first deposit with the State Accountant General a non-refundable sum of ten thousand naira.

(2) Where, the Governor or the appointing authority has not approved any appointment to a vacant chieftaincy stool, any aggrieved person who institutes any Court action in connection with a vacant chieftaincy, stool and join the State Government, or any of its agencies as a party to any such Court action shall first deposit with the State Accountant-General a non-refundable fee of ten thousand naira.

This Court held in the said appeal nos. SC.650A/2013 and SC.650/2013 that evidence abound that the parties failed to comply with the provisions of Section 3(3) of the Law.

I am in entire agreement with the reason of this Court in those two appeals mentioned above and also hold that compliance with the provisions of Section 3(3) of the Law is imperative and a pre condition before the parties could rush to the trial Court for the resolution of their chieftaincy, dispute. Failing to so comply, in my view, made the institution of the suit at the trial Court in the first

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place premature, because a vital precondition to filing such suit at the trial Court and by extension, the appeal to the Court below and this Court amounted to putting the cart before the horse. The trial Court and indeed the Court below are loathe of jurisdiction to adjudicate on the matter. See MADUKOLU v. NKEMDILI (1962) 2 SCNLR 341; NURTW & ANOR v. RTEAAN & 5 ORS (2012) 1 SC (Pt. II) 119.

Thus, in the light of my finding on the impropriety of filing this cross-appeal and also the non-compliance by the cross-appellants and of the cross respondents to this cross appeal, with the provisions of Section 3(3) of the Law this cross-appeal also deserves to be discountenanced and is hereby dismissed.

On the whole, I am satisfied that both appeals are entitled to be dismissed for being abuse of judicial process. Similarly, the judgments of both the trial Court and the Court below are nullified for the non-compliance with the provisions of Section 3(3) of the Chiefs (Appointment and Deposition) Law of Kwara State. Both the appeal and the Cross appeal are dismissed accordingly. I make no order on costs.

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SC.647/2013(CONSOLIDATED)