Chief Gabriel Oparanti & Ors V. Alhaji Nasiru Oyeniyi & Ors (2016)
LawGlobal-Hub Lead Judgment Report
MOHAMMED AMBI-USI DANJUMA, J.C.A.
This is an appeal against the Ruling of the High Court of Justice, Osun State, sitting at Osogbo in Suit No. HOS/7/2010, delivered on 18-2-2011 but which enrolled order was dated and issued 17 -2 -2011.
For the avoidance of any ambiguity. I shall set out the history and facts of the case on appeal as clearly set out by the appellants.
STATEMENT OF FACTS
The plaintiffs (hereinafter referred to as ?the 1st and 2nd respondents’) filed their suit before the lower Court to challenge the validity and demand for the nullification of the 2005 Amended Ataoja of Osogbo registered chieftaincy declaration (hereinafter called ‘2005 declaration’), challenge the number and order of rotation of the ruling houses, demand for the merger of Matanmi and Oyipi ruling houses, demand for the removal and derecognition of Laro and Lajomo ruling houses, demand that only their own Sogbo Ruling house and no other ruling house should present candidate(s) to succeed the immediate past Ataojo, Late Oba Iyiola Oyewale Matanmi 111 who hailed from Matanmi ruling house and so on as
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contained in the writ of summons (pages 1 to 4 of the record) and the statement of claim (pages 5 to 15 of the record) and more importantly the 16 reliefs claimed at paragraph 64 (i) to (xvi) of the statement of claim at pages 12 to 14 of the record.
The appellants denied the claim in its entirely as set out in their statement of defence (pages 195 to 200 of the record). By paragraphs 30 – 31 of their said statement of defence, the appellants objected to the jurisdiction of the lower Court to entertain the case on many grounds some of which were that the plaintiffs lacked the locus standi to institute the case, the case was caught by principles of res judicata, capable and limitation period, some of the defendants were not juristic persons capable of suing and/or being sued and so on. As required by the rules of the lower Court and expressly indicated in their defence, the appellants applied vide their motion on notice dated 20/1/2011 but filed on 21/1/2011 for the said preliminary issued or points of law to be set down for hearing before the hearing of the substantive suit since those issues were capable of disposing of the whole case without going
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through the rigours of full trial (pages 395 to 485 of the record). All the respondents were duly served with the said application.
Oba Olanipekun was neither a party to the substantive case nor the 1st and 2nd respondents’ motion dated 17/9/2010 (pages 622 to 643 of the record) filed to set aside and which eventually led to the setting aside of all the process that led to his nomination, selection, approval and issuance of instrument of appointment and presentation of staff of office as the Ataoja of Osogbo as per the lower Court’s ruling of 18/2/2011 (pages 757 to 774 and 1130 of the record) Which is the subject of this appeal.
In its ruling of 1/11/2010, the Trial Court rightly held that an application that challenged the jurisdiction of the Court took precedence over and above all other applications and that such applications should always be heard first (pages 1076 to 1090 of the record) only for the same Court to reverse itself on 28/1/2011 by its refusal to hear and give any date for the hearing of the appellants’ motion on notice filed on 21/1/2011 challenging the Court’s jurisdiction to entertain the case despite some legal authorities and
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the lower Court’s ruling of 1/11/2010 cited to the Court on the pre that the said appellants’ motion is not a preliminary objection per se”. (pages 1071 to 1075 of the record).
It is noteworthy that on 28/1/2011 when the 1st and 2nd respondents’ motion to set aside Oba Olanipekun’s appointment etc. was moved, the ruling was expressly and openly adjourned to, and actually delivered in the open Court on 18/2/2011.
Strangely, the enrolment of order of the said ruling was already made, issued, dated and signed by the Trial Judge and the Registrar of the lower Court on 17/2/2011, a day before the said ruling was actually delivered (pages 1131 to 1134 of the record).”
The relevant processes for the determination of this appeal are
1. The Amended Notice of Appeal dated and filed on 3 – 02 – 2016;
2. The Amended Appellants’ Brief of Argument dated and filed 2 –
2 – 2016 but deemed filed on 16 – 5 – 2016.
3. The 1st and 2nd respondents’ brief of argument.
4. The appellants’ reply brief dated 8 ? 4 -2016 and of argument filed 11 – 4- 2016 and deemed filed on 16 – 5 -2016.
?The Appellants amended grounds of appeal and
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their particulars thereof are reproduced thus:-
Amended grounds of appeal
Take that the 1st to 7th appellants being dissatisfied with the decision of the High Court of justice of Osun State, Osogbo Judicial Division, Osogbo contained in the ruling of Honourable Justice A. A. Aderibigbe dated 18th February, 2011 doth hereby appeal to the Court of Appeal, Akure upon the amended grounds set out in paragraph 3 and will at the hearing of the appeal seek the amended reliefs set out in paragraph 4.
And take further notice that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.
2. Part of decision appealed against
The whole decision except the lower Court’s finding that none of the parties or their counsel gave any undertaking to the lower Court on 8/9/2010.
3. Amended grounds of appeal
The learned judge erred in law and acted without jurisdiction when on 18/2/2011, he set aside all the processes that led to the nomination, selection, approval and issuance of instrument of appointment and presentation of staff of office to Alhaji Jimoh Oyetunji Olanipekun (hereinafter referred to
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as Oba Olanipekun) as the Ataoja of Osogbo without making and/or joining him as a party to the suit and the plaintiffs’ (now 1stand 2nd respondents) application dated and filed on 17/9/2010 on which the said orders were granted, without serving him with the Court processes and without giving him fair hearing, thereby occasioning substantial miscarriage of justice.
PARTICULARS OF ERRORS:
1. Oba Olanipekun was neither made nor joined as a party to the suit and the plaintiffs’ application dated and filed on 17/9/2010 upon which the processes that led to his nomination, selection, approval and issuance of instrument of appointment and presentation of staff of office as the Ataoja of Osogbo were set aside.
2. The Court possesses in the said case and application were never served and/or ordered to be served on Oba Olanipekun by the lower Court; he was neither heard nor given any opportunity to be heard before the said orders were made against him on 18/2/2011.
3. The lower Court’s action caused substantial miscarriage of justice.
2. The learned trial judge erred in law and he failed to exercise his discretion judicially and judiciously
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by his refusal to hear and give any date of the hearing, of the 10th to 17 defendants’ motion on notice dated 20th but filed on 21st January, 2011 to set down for hearing and to hear preliminary issues/points of law which were validly pleaded and raised on issues relating to the plaintiffs’ locus standi to institute the case, juristic personality, limitation period, res judicata, competency of the case and the jurisdiction of the lower Court to entertain in case before the proceeded to hear and grant the plaintiffs’ application dated and filed on 17/9/2010 which set aside the nomination, selection, approval and issuance of instrument of appointment and presentation staff of office to Oba Olanipekun as the Ataoja of Osogbo thereby occasioning miscarriage of justice.
PARTICULARS OF ERRORS:
1. The 10th to 17th defendants entered conditional appearance and filed a joint statement of defence dated 25/10/2010 wherein they denied the plaintiffs’ claims and raised some objections on issues relating to the plaintiffs’ locus standi to institute the case, juristic personality, limitation period, res judicata, competency of the case and the jurisdiction of the
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lower Court to entertain the case, etc with an indication that the said issues would be called upon for determination at/or before the trial (pages 193 to 209 of the record).
6. By their application dated 20/1/2011 but filed on 21/1/2011, the 10 to 17th defendants prayed the lower Court to set down for hearing and to hear their said, various objections and points of law which challenged the proceedings to hear the substantive case (pages 395 to 495 of the record).
7. The plaintiffs reacted to the said application by filing their counter affidavit and counsel’s written address thus making the said application ripe for hearing as at 28/1/2011 on which date the lower Court refused to hear and/or give any date for the hearing of the said 10th to 17th defendant’s application.
8. The lower Court on 28/1/2011 heard the plaintiffs’ motion dated 17/9/2010 and granted some on 18/2/2011 by setting aside the processes leading to Oba Olanipekun’s emergence as the Ataoja of Osogbo without considering the relevant facts, arguments and legal principles and without exercising its discretion judicially and judiciously.
9. The lower Court by its ruling of
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28/1/2011 overruled its previous ruling of 1/11/2010 delivered in the same case on the priority of the applications challenging the Court’s jurisdiction and other applications after the Court had become functus officio, thereby demonstrating bais against the appellants.
3.The learned trial judge erred in law and acted without jurisdiction when at the interlocutory stage of the proceedings, without considering the nature of the case and relevant principles and facts, without hearing the substantive case and without any of the relevant documents relating to the processes of nomination, selection, approval and appointment being produced before him, he held that the acts of the 1st to 3rd, 4th, 7th, and 10th to 17th defendants amounted to lawlessness in the extreme and calculated interference with the Court?s duty to adjudicate and proceeded to grant the plaintiff’s interlocutory application dated 17/9/2010 setting aside the processes that led to the nomination, selection, approval and issuance of the instrument of appointment and presentation of staff of office to Oba Olanipekun as the Ataoja of Osogbo, thereby occasioning miscarriage of Justice. (at
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pages 772 to 773 of the record)
PARTICULARS OF ERRORS:
9. The lower Court did not grant any previous order of interim and/or interlocutory injunction against the parties to the case,Oba Olanipekun and/or anybody else.
10. The doctrine of lis pendens does not apply to chieftaincy matters such as the Ataoja of Osogbo stool involved in this case.
11. The lower Court did not order for the production and he did nomination, selection, appointment, installation and presentation of staff of office of Oba Olanipekun.
12. The lower Court did not consider the nature of the case relevant facts and principle before it made the said order.
13. There was no claim in respect of installation and appointment of Oba Olanipekun in the substantive case.
14. There was no breach of any order already granted by the Court.
15. The defendants, especially the {10th to 17th defendants and the emergence of Oba Olanipekun’s nomination, selection, etc commenced before,the plaintiffs’ case and motion was filed.
4. The ruling of the lower Court is against the weight of evidence
5. The learned trial judge erred in law and acted without
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jurisdiction when he granted some reliefs which were neither claimed nor substantiated by the plaintiffs in their application dated 17/9/2010, thereby occasioning substantial miscarriage of justice.
PARTICULARS OF ERRORS
4. the plaintiffs’ application dated 17/9/2010 did not contain any prayer to declare as irregular, null and void all the processes that led to the nomination, selection, approval, installation and issuance of instrument of appointment and presentation of staff of office to Oba Olanipekun as the Ataoja of Osogbo.
5. The 3 reliefs claimed in the plaintiffs’ said motion were consequential orders which cannot stand on their own null and void.
6. The plaintiffs’ application did not contain any prayer to set aside the appointment and installation of Oba Olanipekun and their supporting affidavit did not contain any fact on the alleged issuance and approval of instrument of appointment to him.
?6. The learned trial judge erred in law and misdirected himself when before he reviewed the facts and arguments of the parties before him he jumped to the conclusion and held at pages 760 of the record that:
“From the facts
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before this, Court which all the parties admitted as true, the process to fill the vacant stool of Ataoja of Osogbo commenced on the same 08/09/2010 when this case was adjourned and by 11/09/2010, the candidacy of Alhaji Jimoh Oyetunji was approved and he was installed as the Ataoja of Osogbo and presented with the staff of office.” Which finding and conclusion the trial judge repeated subsequently at page 771 of the record when there were no such facts and/or admissions before him, thereby occasioning substantial miscarriage of justice.
PARTICULARS OF ERRORS:
6. There was no facts and/or admission of facts before the lower Court by the parties to the effect that the processes to fill the vacant stool of Ataoja of Osogbo commenced on the same 8/9/2010 when he case was adjourned and that by 11/9/2010, Oba Olanipekun was nominated, approved, installed and presented with staff of office as the Ataoja of Osogbo.
7. The plaintiffs alleged in their application dated 17/9/2010 that Oba Olanipekun’s nomination, selection, approval and issuance of the instrument of appointment as the Ataoja of Osogbo took place on 9/9/2010 and that he was presented with
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staff of office on 12/9/2010 but the plaintiffs alleged in paragraphs 26 and 27 of their affidavit in support of the said motion that Oba Olanipekun was installed on 10/9/2010 and presented with staff of office on 11/9/2010.
8. There were uncontroverted facts and evidence before the lower Court from the plaintiffs, the 1st, 2nd, 3rd, 4th and 7th defendants that the processes of nomination, selection, appointment and installation of Oba Olanipekun commenced before the substantive case and the said application were filed.
9. The 10th to 17th defendants had performed their roles by selecting Oba Olanipekun before they were served with the Court processes.
10. The said findings and conclusions of the learned trial judge were not supported by any evidence before him.
?7.The learned trial judge erred in law when he formulated suo motu and held at page 760 of the record that the only issue for determination was “Whether the application ought to be granted in view of the fact that the 1st, 2nd, 3rd, 4tn, 7th,10th, 11th, 12th, 13th, 14th, 15th, 16th and 17th defendants/respondents (“hereinafter called “the respondents”) nominated, approved,
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installed and gave a staff of office to Alhaji Jimoh Oyetunji Olanipekun as Ataoja of Osogbo during the pendency of an application for interlocutory injunction which has been served on all the defendants.” Thereby occasioning substantial miscarriage of justice.
PARTICULARS OF ERRORS;
1. The counsel for the 1st to 3rd defendants, 4th defendant, 7th defendant and 10h to 17th defendants formulated various issues for determination which were not captured in the only issue formulated suo motu for determination by the learned trial judge in respect of the plaintiffs’ application dated and filed on 17/9/2010.
2. The learned trial judge focused on the said sole issue formulated by him in deciding the said application without considering and/or adequately considering the other issues formulated by the counsel to the 1st to 3rd, 4th, 7th and 10th defendants bothering on the locus standi of the plaintiffs, competence and the lower Court’s jurisdiction to entertain the case and the said application.
3. The plaintiffs’ said application did not contain any prayer to set aside Oba Olanipekun’s appointment and installation hence no competent issue could be
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formulated on them.
8. The learned trial judge erred in law when he held at page 769 of the record that:
“Another point raised by almost all the respondents.
Counsel is the fact that the res is the vacant stool of Ataoja of Osogbo which they argued could not be destroyed. It is my opinion that all the counsel missed the point. The present application is not a motion for injunction where the issue of res or presentation thereof will be present. The act been complained about is the processes of nomination, approval, installation and presentation of staff of office during the pendency of this suit and the interlocutory injunction is being heard and not in the present application to set aside.” Thereby occasioning substantial miscarriage of justice.
PARTICULARS OF ERRORS:
9. The plaintiff did not describe any of the 3 reliefs sought in their application dated 17/9/2010 as mandatory orders of injunction.
10. None of the prayers sought by the plaintiffs affected Oba Olanipekun’s installation.
11. The nature of the res involved and the need for its temporary preservation after Oba Olanipekun’s appointment were some of the factors
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which ought to have been duly considered but which were not considered by the lower Court despite that they were validly and timeously raised and argued by the defendants’ counsel.
12. The deliberate refusal of the learned trial judge to consider the said issue weighed heavily in his mind and misled him to grant the plaintiffs’ application dated 17/9/2010.
9. The learned trial judge erred in law and acted without jurisdiction when on 17/2/2011 he had already made, issued and signed the enrolment of order of the ruling which purportedly set aside all the processes that led to the nomination, selection, approval and issuance of instrument of appointment and presentation of the staff of office to Oba Olanipekun as the Ataoja of Osogbo, a day prior to 18/2/2011 when he actually delivered his reserved ruling in the open Court with contents materially different from the said enrolment of order of the said ruling, thereby making the order and ruling suspect and occasioning substantial miscarriage of justice.
PARTICULARS OF ERRORS:
1. The lower Court on 28/1/2011announced in the open Court that it would deliver its ruling on the plaintiffs’
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application dated 17/9/2010 to set aside the processes that led to the nomination, selection, approval and appointment of Oba Olanipekun as the Ataoja of Osogbo on 18/21/2011
2. The lower Court actually delivered its said ruling in the open Court to 18/2/2011.
3. The said case did not come up and the lower Court did not deliver any ruling in respect of the said application and/or the case on 17/2/2011 on which date the enrolment of order was purportedly made, dated., issued and signed by the learned trial judge and the Registrar of the lower Court, thereby occasioning substantial miscarriage of justice.
4. The contents of the said enrolment of order of the said ruling made, dated, issued and signed by the learned trial judge and the Registrar of the lower Court on 17/2/2011 are materially different from the ruling delivered on 18/2/2011.
10. The learned trial judge erred in law and acted without jurisdiction when at the interlocutory stage of the proceedings and before the commencement of the trial of the substantive suit, he hurriedly and strangely held that Laro was a purported ruling house in respect of the Ataoja of Osogbo chieftaincy
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thereby prejudging some of the important reliefs being claimed by the plaintiffs in the substantive case and occasioning substantial miscarriage of justice.
PARTICULARS OF ERRORS:
1. The 1958, 1981 and 2005 registered declarations in respect of Ataoja of Osogbo chieftaincy recognized Laro as a ruling house in respect of the said chieftaincy.
2. Laro was the next ruling house to produce an Ataoja after the Matanmi ruling house which produced Late Oba Iyiola Oyewale Matanmi 111 under the said 1981 and 2005 declarations.
3. The plaintiffs? family had unsuccessfully challenged the said 1981 declaration in their bid to abolish Laro Lajomo ruling houses in Suit No. HOS/41/82: Raji Gboyeola Kolawole & 3 Ors. V. Oba Iyiola Oyewale Matanmi & 14 Ors but their said claims relating thereto were dismissed and the 2 ruling houses confirmed by the Court
4. There was no appeal against the said judgment of the Oyo State High Court which was delivered since 1988 by Hon. Justice Yekinni Adio, (as he then was) but the case before the lower Court was filed in 2010 to recontest the issues already validly decided in the said judgment and
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implemented by government since 2005.
5. The learned trial judge did not give the defendants, most especially the 10th to 17th defendants the prior opportunity of being heard, he did, not consider the Ataojo of Osogbo chieftaincy declarations made in 1958, 1981 and 2005 and the said judgment before he held at the interlocutory stage of proceedings that Laro was a purported ruling house.
6. The 10th to 17th defendants as the traditional kingmakers and the custodians of the native law and custom of Osogbo relating to the Ataojo stool believed and knew that Laro had always been an authentic and a recognized ruling house in respect of the Ataojo of Osogbo chieftaincy.
11. The learned trial judge erred in law and misapplied the principles in the case of Garba V. Federal Civil Service commission & Anr. (1988) 1 NWLR (pt. 71) 449 when he held that every party who is remotely connected to the case of Court even when such a person would be affected by the order to be made and he proceeded to hold that Oba Olanipekun was not a necessary party to the case and the said plaintiffs’ application dated 17/9/2010 which set aside his nomination, selection,
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approval and documents, thereby occasioning substantial miscarriage of justice.
PARTICULARS OF ERRORS:
9. The reliefs sought by the plaintiffs and granted by the lower Court were targeted at nullifying the actions of some of the defendants and the appointment of Oba Olanipekun as the Ataoja of Osogbo.
10. Upon his said appointment, Oba Olanipekun had already acquired vested intereet and rights which were personal and exclusive to him over and above anybody else, members of his family inclusive.
11. The facts and circumstances in Garba’s case on which the trial judge relied heavily were not similar and relevant to the case.
12. The documents which were set aside in Garba’s case were produced before the said Court unlike this case where no document was produced before the lower Court.
13. The learned trial judge erred in raw when he held at page 771 of the record that ‘Going by the various affidavits of service and the admission of the parties every defendant/respondent was served with the motion ex parte and motion on notice for injunction,.
PARTICULARS OF ERRORS:
2. The lower Court did not order that the defendants be
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served with the plaintiffs’ exparte motion and none was served and/or meant to be served on the 10th to 17th defendants.
3. There was no affidavit of service and/or admission of facts before the lower Court that copies of the plaintiffs’ motion exparte for interim injunction were ever served on any of the defendants, the 10th to 17th defendants inclusive.
At the hearing, the leading learned counsel for the appellants, K. O. ljatuyi Esq. adopted the amended appellants’ brief of argument dated and filed on 12/2/2016 and settled by G A. Adesina Esq. for their clients and the reply brief of 11 – 4 -2016 deemed filed 16 – 5 -2016 and urged that the appeal be allowed.
On their part, the 1st and 2nd respondents by their counsel, Mr. Adegoke adopted the brief of argument and urged that the appeal be dismissed. For the 3rd, 4th and 5th respondents, Adeniyi Esq, State counsel Osun State, who filed no brief, says he aligns with the appellants; in the same vein, shittu Esq. for the 6th respondent who filed a brief also aligns with the appellants.
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However, Aliu Esq, for the 7th respondent who filed no brief against the presumption of law, said he
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aligned with the 1st and 2nd respondents. The 8th respondent and 9th respondent, by their learned counsel, Merrs Sanusi and Olaogun, who did not file briefs either, left the outcome of the appeal to the Court’s discretion.
I should say that this appeal and appeal no CA/AK/57/2011 that had just been decided a few minutes ago arose from the same proceedings and facts.
The record of appeal are the same and the appeals were taken together.
It would ordinarily suffice to hold that this appeal abides the outcome of the appeal No. CA/AK/57/2011 against the ruling there – in of just set aside.
This is because in the face of the appellants’ challenge to the incompetence of the action at the trial Court and the jurisdiction of the trial Court, all other further steps taken including the ruling delivered, the subject of this appeal without first resolving the jurisdictional challenge rendered the hearing and ruling null and void for being conducted without jurisdiction and fair hearing.
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That must explain the unanimous non – challance to and the lack of defence/response by the respondents’ learned counsel. It may serve no useful purpose in delving into
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the determination of this appeal which the 1st to the 2nd respondents’ counsel had urged that it be dismissed for the inapplicability of the fast tract rules 2014.
Be that as it may, being a separate appeal, I shall in the interest of justice consider it on its merits, so that parties may be seen to have had their grievances ventilated. The appellants submitted 8(eight) issues for determination to wit:
Arguing the issues, starting with issues No. 1, counsel submitted that the 1st and 2nd respondents had in the interregnum created after the demise of the immediate past Ataojo of Osogbo, Late Oba Iyiola Oyewole Matanmi III filed a suit challenging the validity of and demanding for the nullification of the 2005 declaration on the Ataoja Chieftaincy, the number and order of rotation of the ruling Houses, demanding mergers of Matanmi and Oyipi ruling Houses, removal and derecognition of Laro and Lajomo ruling houses, demanding that their own Sogbo ruling house should be the next ruling house to present candidate(s) for the stool, injunction to restrain the other 4 ruling houses from presenting candidate(s) to succeed Oba Matanmi III and so on as per their
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16 reliefs in paragraphs 649(i)- (xvi) to the statement of claim.
The appellants had denied the claim in its entirety as set out in their statement of defence at pages 195 to 200 of the record. By paragraphs 30 – 31 of their said statement of defence, appellants had objected to the jurisdiction of the lower Court to entertain the case on many grounds, some of which were that the plaintiffs lacked the locus standi to institute the case, case caught by res judicata, estoppel and limitation period, some defendants not been juristic persons, case irregular, incompetent etc.
That in accordance with Order 5 Rules 1 and 2 and Order 22 Rules 1 and 2 of the Osun State High Court (Civil Procedure) Rules, 2008, dealing with demurrer and as expressly indicated in their defence, the appellants applied to set down the said preliminary objections/points of law for hearing vide their motion on notice dated 20 – 1 – 2011 but filed on 21 – 10 2011 supported by affidavit and exhibits, because those issues were capable of disposing of the whole case without going through the rigours of full trial.
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That all the respondents were duly served with the motion and the
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1st and 2nd respondents had reacted by filing their counter affidavit and counsel written address thus making the said application ripe for hearing as at 28 – 1 – 2011.
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Learned counsel referred us to the ruling of the trial Court on 1- 11 -2010 in the same case when he held that an application that challenged the Court’s jurisdiction took precedence over and above any other applications and that such application should always be heard first. (Pages 1076 to 1090 of the record). The learned counsel had argued that his application that he, be heard first before the 17 – 1 – 2010 application and because of the ruling of 1 – 11 – 2011 did not appeal to the Court and his submissions were overruled wrongly upon an injudicious exercise of discretion.
Learned counsel argued that a challenge to the jurisdiction of the Court should be given priority and be settled before any further steps are taken on the merit of a case; that any failure to do so was a fundamental breach that rendered the decision arrived at a nullity.
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See First Bank of Nigeria Plc. V. T. S. A. Industries Ltd. (2010) 38 WRN 1 at 36: AG – Lagos V. Dosunmu (1989) NWLR (pt. 111) 552: (1989) 6
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SCNJ 134: Arabella V. NAICO (2008) 5 SCNJ 109 and that objection to the Court’s jurisdiction ought to have been taken at the earliest opportunity as the appellants demanded for as there were sufficient materials before the Court to consider the case before taking any other steps in the proceedings.
Elabanjo & Anr V. Dawodu (2006) 6 SCNJ 244 at 220 – 222 to the effect that where there is no jurisdiction proceedings are a nullity however well conducted, was referred. That the attempt to wriggle out of this well established principle made the Court to overrule itself and to hold that the appellants objection was “not a preliminary objection per se.”
That the judge was in error, had become functus officio and biased against the appellants by reversing itself on its previous ruling of 1 – 11 -2010 which rightly gave priority of place to challenges against jurisdiction.
That the trial Court’s discretion to set down must not be exercised arbitrarily; that proceeding to hear the other motion to set aside as against the appellants’ application was wrong. That not exercising a discretion in accordance with principles, the Court had rightly identified, made
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his decision perverse and this appellate Court should interfere by reversing this wrongful exercise of discretion. See Williams V. Hope Rising voluntary Society (1982) ALL NLR (pt. 1) 1 at 10.
That this issue be resolved in favour of appellants.
ON ISSUE 2:
Whether, it was proper for the trial judge and the Court Registrar to have made, dated, issued and signed the enrolment order of the ruling of the Court on 17 – 2 – 2011 a day to the actual delivery of the said ruling in open Court on 18 – 2 – 2011 with contents are materially different from each other and whether the said ruling and its purported enrolment order should be allowed to stand in the circumstances of the case. (Ground 9 of the amended grounds).
It was submitted that an enrolment of order is a summary of the ruling or judgment of a Court made, dated, issued and signed after the delivery of the said ruling or judgment in the open Court and not before the ruling or judgment is made. See Olurotimi V. lge (1993) 10 SCNJ 1 at 17: Order 35 Rules 2 and 3 of Osun State High Court (Amended Civil Procedure) Rules. 2008.
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The learned counsel referred to pages 1131 to 1134 of the
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record where the enrolment order is endorsed thus—– issued at Osogbo under the seal of the Court and the hand of the presiding judge this 17th day of February, 2011 .”
Counsel pointed out that the ruling having been delivered on 18 -2-2011 upon the adjournment to that date on 28 – 1 – 2011, it meant the enrolment order had been made before the ruling and that the Court could not have properly enrolled an undelivered ruling.
That it was strange and the said enrolment order was suspect, tainted with fraud, substantially irregular, null and void and should be expunged from the record. That the Olurotimi’s case be applied in expunging the drawn up order, as done by the Supreme Court.
That no retrial should, however be ordered as it was an interlocutory application as against the Olurotimi’s case where it was ordered because it was a final decision. That a retrial of the application will lead to a substantial miscarriage of justice and not meet the ends of justice in this case. That signing the enrolled order before judgment was an error.
That issue 2 be resolved in favour of the appellants.
?Issue 3 – it was argued that the appellants
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and the other defendants before the lower Court had joined issues with the 1st and 2nd respondents/plaintiffs, as to whether or not Laro ruling house should continues to be recognized as a ruling house entitled to Ataoja chieftaincy.
It was argued that since that issue joined was still a life issue to be canvassed by the parties and decided by the Court after the hearing of the substantive case, it was erroneous for the trial Court to have hurriedly adjudged and declared Laro as a purported ruling house in respect of Ataoja of Osogbo Chieftaincy during an interlocutory application without waiting for the trial of the substantive case.
That issues that call for the determination of the main case should be avoided at the interlocutory stage of the proceedings, most especially in chieftaincy matters like this. Okafor V. A – G. Anambra State (1992) 2 SCNJ (pt. II) 219 Uwegba V. A – G Bendel State (19861 1 NWLR.
That to proceed to the determination of the substantive case which terminates the substantive case is a breach of the right to fair hearing, and which renders every decision rendered a nullity. Adegun v. A – G Oyo State (1988) 1 NWLR (pt.53)
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678/709 and INEC V. Izuoga (1993) 2 NWLR (pt. 275). page 295 were referred to.
That the suit was an abuse of Court process and caught by res judicata, the issue of Ilaro as a ruling house, having been decided upon earlier by subsisting judgments. That this Court has the discretion to set aside judgments/rulings/orders that make the allegation of bias, fraud apparent and well founded.
Mark & Anr. V. Eke (2004) 1 SCM 1411156 – 157: Olabanjo V. Odofin (1996) 2 SCNJ 242/247 referring also to Yar’Adua V. Abubakar (2008) 12 SCNJ 3811 385: Total Nig. Plc. V. VMO (2004) 37 WRN 65 @ 83 were referred in arguing that invitation to touch the main issue at an interlocutory stage should be resisted.
On issue no.4, it was submitted that there was no admission as indicated in the ruling, of what ever kind. That the findings in that respect was perverse and should be set aside.
On issue No. 5, it was submitted that the ruling affecting parties (appellants, who were made parties and Oba Olanipekun who was not a party was a breach of their right of fair hearing as they were not given the opportunity to be heard before adverse pronouncements were made
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against them by the lower Court on 18 – 2 – 2011.
That Oba Olanipekun had already acquired a vested interests and rights which were personal and exclusive to him over and above anybody else and even members of his family. That the appellants had not violated any Court orders and ought to have been heard, before proceeding to any order as made if appropriate.
That such orders should be set aside as done in Oyegbemi and Okafor’s cases Supra. That this issue be resolved in favour of the appellants.
Issues 6 – whether the learned trial judge was right and justified by his refusal to consider the nature of the res, the necessity for its temporary presentation pending the trial of their substantive case- ———”
It was contended that it was trite that the doctrine of lis pens does not apply to chieftaincy cases as in this suit. It applies where the object of a suit is to recover or assert title to a specific property which must be real property.
See Ogundiani V. Araba & Anor. (2001) 38 WRN 117 (1978) ALL NLR 165. (1978) 6 – 7 NSC 55 at 80: John Osagie V. Alhaii Oyeyinka & Anr. (1987) 6 SG 199 @ 208 – 209 and Oyegbemi & Anr.
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V. Fatai Aromore & Ors. (2012) 30 WRN 142 @ 167 – 168, 176 ? 177, where it was held that a chieftaincy case is a claim to an honour and the doctrine of lis pendent does not apply. That the res in a chieftaincy is never destroyed and that is why the Courts are reluctant in deposing a Chief, Oba whether installed wrongly or rightly, since at the end of the day if he losses, he will suffer public odium and ridicule.
A chieftaincy stool is not a perishable commodity see Governor of lmo State V. Anosike (1987) 3 NWLR (pt. 66) 663 and Injunctions and Enforcement of Orders by Chief Afe Babalola SAN, Page 167.
Issue 7 – whether the case of Garba V. Federal Civil Services Commission (19881 1 NWLR (pt. 71) 449 was applicable.
It was argued that the Garba case supra relied upon to hold that not all parties remotely connected to a case must be made parties to the case before a relief may be granted against them was not applicable to the instant matter as a chieftaincy matter had the effects borne by the appellants and the chief removed by the order, whereas Garba’s case was decided on the basis that the Permanent Secretary Civil Service Commission
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was not necessary as the commission sufficed as an agency of the Federal Government and could be sued as such solely.
On issue No. 8, it was argued, that the plaintiffs did not ask that the appointment and installation of Oba Olanipekun be set aside and thus the formulation of issue by the Court, to cover that question was not proper and this was more so that the 1st 3rd, 4th, 7th and 10th – 17th defendants had formulated other issues bordering on locus standi, competence and jurisdiction of the lower Court to entertain the 1st and 2nd plaintiffs’ application and the non – joinder of Oba Olanipekun without which no order could be made against him.
On the whole, appellants urged that this issue, with all the other issues be resolved in favour of the appellants; and that the trial Court erred in law and did not exercise its discretion judicially and judiciously when it granted the 1st and 2nd respondents’ application dated 17 – 1 – 2010 by its ruling of 18 – 2- 2011 and when it dated, issued and signed the enrolment of order of the said ruling on 17 – 2 – 2011 a day before the ruling was delivered materially different in contents and refusing
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to fix a date for the hearing of the appellants’ motion dated 20 – 1 -2011 and filed 21 – 11 -2011.
It was urged upon this Court to set aside the lower Court’s ruling delivered on 18 – 2 – 2011 and its purported enrolment of order made on 17 – 2 – 2011 and to expunge same from the record and to allow the appeal set aside the orders made and remit the case with the motions filed thereon to the High Court of Justice Osogbo, Judicial Division to be heard by a judge other than A. A. Aderibigbe, J with an order for accelerated hearing of the appellants’ motion and an order that Oba Jimoh Oyetunji Olanipekun, Larooye ll should remain in office as the Ataojo of Osogbo pending the final determination of the substantive case.
In response, the 1st and 2nd respondents by their brief of argument had argued that the appellants’ counsel was a mere busy body as far as the reference to Oba Olanipekun was concerned as he was also not joined by the appellant’s counsel, nor was he representing him in this appeal or at the trial. Ohakin V. Ogbaso (2010) 19 NWLR (pt. 1226) 172 at 223 paragraph B – D referred.
That the complaint on lack of fair hearing to Oba
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Olanipekun was unfounded as his family had been joined as 9th respondent.
That the order setting aside related to the acts of defendants who were parties and not to any act of the Oba Olanipekun and so the question of breach of the right of fair hearing never arose. Thereafter, counsel proceeded to raise 5 issues for determination, thus:
ISSUE ONE:
It was argued that the trial judge was right in setting aside all the processes leading to the approval and presentation of the instrument of appointment to Alhaji Oyetunji Olanipekun as. Ataoja of Osogbo during the pendency of this suit and the motion for interlocutory injunction even when he was not a party to the suit at the trial Court.
On its second issue it was argued that the trial Court was right to have set aside the acts of the appellants and some of the respondents, which were considered unlawful. That a fait accompli shall not be foisted on the Court.
Effion V. lronbar (2000) 3 NWLR (pt. 650) 545 at 563 refers.
On issue No. 2, it was argued that the trial Court was right in hearing the 1st and 2nd plaintiffs’ motion to set abide rather than the appellants motion to set down
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for hearing some points of law raised in the statement of defence.
On its third issue, it was argued that the fact of the enrolment order dated and issued on 17th February, 2011 while ruling was delivered on 18 -2-2011 had not occasioned any miscarriage of justice.
On issue 4, it was argued that to refer to Laro ruling house as purported was not prejudicial to the appellants as it was part of question raised by the plaintiffs.
On issue 5, it was contended that the holding that the parties including the, appellants were served with the motion exparte had not occasioned miscarriage of justice as that motion was not heard, but adjourned with an order to put the parties on notice.
On the whole, it was urged on us to dismiss the appeal.
In reply, the appellants on issue number one submitted that the complaint on Oba Olanipekun was in order, and not one by a busy body see Alhaji Ado Ibrahim V. Alhaji Megida U. Lawal & 5 Ors.; INEC V. lzuogu (1993) 2 NWLR(pt.275) 270 @ 299: A-G Lagos State V. A-G Federation (2005) WRN 1 @ 130 – 131.
It was argued on issue 3 that there was no admission on the part of the appellants.
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On issue 4,
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there was a re argument as done in issue 3. On issue No. 5, it was contended that the Court had jurisdiction to interfere with perverse findings and conclusions of trial Court or lower Court.
On the whole, appellants maintained that judgment be entered in their favour.
I have perused the issues as raised and argued by the parties and think that though the arguments of the parties are each solid and inviting, but the arguments have clearly shown that issue 2 of the 1st and 2nd respondents will be the determinant of this appeal.
These respondents had argued that the hearing of the motion to set aside was rightly taken in priority to the motion to argue the appellants’ objections to the suit as the other motion was one filed to protect the integrity of the Court against contemptuous’ behavior of the appellants and some of the respondents when the matter was pending and motion for injunction had been filed and served.
The 1st and 2nd respondents contended that the acts of the appellants were an affront on the principle of separation of powers and an invitation to anarchy.
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They referred to Garba V. Federal Civil Service Commission. Daniel
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V. Ferguson (1891) 2 CH 27 at 30: Ivory Merchant Bank V. Partnership Investment Ltd. (1996) 5 NWLR (pt.448) page 362 @ 367 ? 368 amongst other cases.
They submitted that rules of Courts are aids to justice and not intended to frustrate the administration of justice.
On issue 3 – it was argued that the discrepancy on the date on the enrolment order and the date of ruling ie 17 -2-2011 and 18-2-2011 has not been shown to have occasioned a miscarriage of justice.
That the discrepancies in the ruling and enrolment order and inconsistency in the facts in the motion affidavit of those respondents and those recited in the enrolment order were minor and inconsequential; that they do not touch the fundamental of the ruling and had not prejudiced the appellants.
On issue No. 4, it was argued that reference to the Laro Ruling House as a purported ruling house from which Alhaji Jimoh Oyetunji Olanipekun was nominated to fill the vacant stool of Ataojo of Osogbo during the pendency of the suit and motion for interlocutory injunction was not prejudicial and did not mean that the Court had delved into the merit of the suit; that the word ‘purported’
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used in describing the Laro Family as a Ruling House was proper at the stage the description was made.
On issue 5, it was argued that the holding of the trial Court that the appellants were served the motion exparte had not occasioned any miscarriage of justice as after all, such motions are not usually served and even if served had not adversely caused any prejudice.
In response, the appellants’ reply brief of argument sought to raise a point of preliminary objection to the validity of the respondents’ brief of argument on the ground that it exceeded 15 pages and indeed spanned 27 pages contrary to the Court of appeal fast track practice directions, 2014 and Order 18 Rules 3 and 4 of the Court of Appeal Rules 2011; Rules 10(1) (2) and (3) of the Rules of Professional Conduct for Legal Practitioners 2007, and the Directive of the Chief Justice of Nigeria of 12 – 5 – 2015 on the mandatory use of NBA seals on all legal documents prepared for filing in Courts by lawyers.
We were urged to discountenance the said brief for not being a brief in law; that it should be struck out for substantial irregularity and incompetence.
The respondents’
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learned counsel urged that the objection was baseless as the fast track Rules, 2014 was inapplicable.
For its pivotal, position, I shall resolve the preliminary objection first, and to the effect that the preliminary objection must fail as the Fast Track Rules, 2014 of the Court of appeal is in – applicable to the nature of the suit herein, being a chieftaincy matter.
The said Fast Track Rules is applicable only to trials involving terrorism, rape, kidnapping, treason, money laundering and some economic crimes which are intended by the rules to be heard and determined expeditiously and hence the abridged time stipulations and the limitation of the number of pages of the briefs to be filed, so as to circumscribe the arguments and avoid prolific irrelevancies in the processes and arguments proffered that would only delay the hearing and determination of those matters in Court.
Furthermore, the alterative leg, limb or arm of the objection, which is on the alleged non – affixation of the NBA seal on the respondents’ brief is baseless, as same has been affixed to the respondents’ brief of argument contrary to the appellants contention.
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The
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preliminary objection in that regard is, accordingly, overruled.
Replying on the 1st issue relating to appellants arguments concerning Oba Olanipekun as argued by the respondents, the appellants contended that they were not busy bodies and could competently raise the issue of the non – joinder of the Oba as they were parties to the suit who had a right of appeal and the non – joinder was after all a jurisdictional issue that affected the whole case.
See A – G Lagos State V. Attorney General, Federation (2005) 2 WRN 1 @ 130 – 131: INEC V. lzuogu (1993) 2 NWLR (pt. 275) 270 @ 295.
In Alhaji Ado lbrahim V. Alhaji Megida U. Lawal & 5 Ors. (2015) ALL FWLR (pt. 799) 990 @ 1012 – 1013 and 1015 ? 1017, that the appellant who was not a public officer but who raised a defence of limitation period based on Section 2 (a) of the Public Officers Protection Act was not a busy body at all and that he was entitled to raise the said defence despite that the affected public officers involved in the case did not raise it.
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In the Alhaji Megida case supra, the Supreme Court on account of the objection raised by a party that was not a public servant,
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allowed the appeal and set aside the decisions of both the trial High Court and the Court of appeal which had nullified the appointment of the appellant as the Ohinoyi of Ebira Land (a Traditional Ruler) after close to twenty years of litigation. That the nullification of the appointment without a hearing was a violation of his fundamental right.
It was argued that these appellants were parties to the suit, motions and had filed processes wherein the respondents also responded; that the appellants could appeal in respect of any decision arising from that case pursuant to Sections 36, 241, 242 and 243 of the Constitution of the Federation Republic of Nigeria against the Ruling of 18 – 2 – 2011 and the enrolment order of 17 – 2 – 2011.
The learned counsel proceeded to argue that all references to Oba Olanipekun and findings in respect thereon grounds of appeal and cannot be said not to have been appealed against and posited that the submissions of counsel no matter how brilliant cannot take the place of pleadings and evidence, relying. Buhari V. INEC and Odusola V. Coker (1981) 5 SC 197.
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That the arguments against the necessity of joining
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Olanipekun was only been raised for the first time on appeal and that the principle of lis pendens was not applicable to chieftaincy disputes. Oyegbemi & Anr. V. Aromire & Ors. (2012) LPELR 7942 (CA): that there was no way the ultimate decision of the Court on the suit would be rendered nugatory by the continuation in office of Oba Olanipekun during the continuation of the trial, since nobody else including the respondents had been appointed into that office and nobody was deposed for him.
Counsel argued that the Courts have always refused applications or order intended to make an Oba already installed to vacate the office pending the determination of a case against him.
Tanimowo V. Odewoye (2008) ALL FWLR (Pt. 424) 1513 @ 1529 – 1531: In Modile V. Governor of Lagos State (2004) 12 NWLR (pt. 887) 354 & 382.
This Court held thus “…..Be sides, the installation of Oba of
Lagos or any other Oba or traditional ruler for that matter is a serious affair and should not be trifled with, the Court is therefore obliged to take into account the social and economic factors of granting an interlocutory injunction. What will be the Court’s attitude in this regard is
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exemplified by what happened in the case of Gener V. China (Supra) where Katsina – Alu, JCA (as he then was) be moaned the order of injunction where the res is a non perishable commodity as the better course would have been to go to trial. And I strongly stand for that course in this matter.”
The appellant’s reply to the issue No. 2, of the respondents is a reproduction of their appellants argument on issue No. 1 on the impropriety of proceeding to hear and determine the application to set aside to the detriment of the application to set down for hearing and determination the objections raised against the jurisdiction of the Court. They referred to Order 22 of the Osun State High Court Civil Procedure Rules, 2004 and Ajilowura V. Disu (2006) ALL FWLR (pt. 333) 1613 at 1628 per Murhtar,. JSC (as he then was) relying on Order 23 of the High Court of Lagos State Civil Procedure Rules (in pari material to the Order 22 of the Osun State High Court Civil Procedure Rules).
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On issue 3, it was argued that the excuses proffered by respondents on the conflicting statements in the ruling and enrolment order and the dating was speculative. Responding on issue
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No. 4, the appellants’ counsel merely reproduced their argument in their appellants’ brief while arguing similar issue.
On issue No. 5, the appellants re argued their appeal that the trial Court had descended into the arena and considered issues that were meant to be resolved on their merit at the conclusion of the substantive case and had prejudiced the appellants’ by being biased against them and Oba Olanipekun, who was not even joined and served any of the processes nor represented at the suit.
I must say that the appellants’ reply brief though sound in law and demonstrates the full grasps of the facts and circumstances of the case and the law applicable, is nonetheless, essentially a re – argument of the appeal. This cannot be done. It is not the purport or essence of an appellant’s reply brief. That is not the forum. A reply brief is intended to respond to issues of law alone that had arisen a new in a respondent’s brief and which had not been covered by the appellant’s brief nor contemplated.
In the instant appellants’ reply brief of argument, I find that the issues addressed had already been addressed by the appellants, but for the
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greater effort at answering all arguments raised, obiter, the real issues relevant to the determination of this appeal.
I shall decide this appeal on the appellants’ issue number 1 and the 1st and 2nd respondents’ issue No. 2, which are the same.
The issue border on whether the trial Court was right in proceeding to hear and determine the application to set aside the actions taken by the appellants and some respondents as filed by the 1st and 2nd respondents without first setting down and hearing the application of the appellants filed later in time but which challenges the jurisdiction of the trial Court to hear the suit at all.
Having considered the arguments of the learned counsel for either sides in this appeal and on the authority of the cases of Eriori V. Elemo (1983) SC 1: Attorney General of Lagos State. V. Dosunmu (1989) 3 NWLR (pt. 111) 552 @ 566: Ngere V. Oyuruket XIV (2014) 11 NWLR (pt. 1417) page 14 at 163 the trial Court had no jurisdiction to take the application of the 1st and 2nd respondents as it did in priority to the application of the appellants challenging its jurisdiction to hear the matter at all.
?Indeed the lower Court was
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bound, in law to set down the appellants’ application for hearing before any other or further action could be taken by it in the case.
This is because an objection to jurisdiction is extrinsic and not merely intrinsic to the jurisdiction of a Court.
The trial Court had no uncatalysed discretion to tag or consider the appellant’s application as premature or as not being ripe for hearing.
A challenge to jurisdiction may be raised at any time and howsoever and without leave and must be accorded the priority of consideration and determination, no matter the motive for raising same as a Court has the vires to award costs upon the failure of such an application.
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That is the more reason why, the judex must not abandone or gloss over such as objection and proceed to hear applications of far reaching consequences, such as the one affecting a third party as Oba Olanipekun who is not a party to the suit contrary to the audi alterem partem Rule (no one shall be condemned unheard) as enshrined in Section 36 of the 1999 Constitution and a fatal slip into the determination of the substantive case or matters on which issues have been joined but without the
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issues having been agitated at the hearing, yet.
It is made worst when the issues relate to a non perishable item as a chieftaincy stool which the Supreme Court and this Court have held not to be a perishable commodity and not caught by the doctrine of lis pendens, that could attract a preservative order of a reversal of acts taken during the pendency of a suit, and intended to over reach and render nugatory the decision of the Court.
It is my view that all the grounds of appeal and the issues distilled and argued therefrom are germane and well grounded, as the disregard of the appellants’ application no matter when it was filed or raised had taken the footage off the trial Court and all other rulings, orders and actions made pursuant thereto are nullifies and sitting on collapsible quick sand.
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I must say that it is not surprising that the rush to circumvent this jurisdictional challenge of prime and primus status, has led to the drawing out of an enrolment order even before the delivery of the judgment. This may be a semblance of one of the mid – night wonders of humanity that throws up suspicion and constitute effective fact of the assured law
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of carma to prop up evidence of possible bad faith and to negate the presumption of regularity and thus casting a heavy burden on the conscience.
Why must the judex be cast with the avoidable burden of explaining that it might have been a typographical error of the Registrar? I say no more.
My lord, Ariwoola, JSC in his concurring judgment in Ngere v. Okureket XIV (2014) 11 NWLR (pt. 1417) page 14 at page 163 has so lucidly put paid to the sundry issues agitated and stretched in this appeal when His Lordship eruditely and aptly re – stated the position of the law thus:
“The question of jurisdiction may be raised at any stage and even for the first time in the supreme Court. The issue of jurisdiction must be thoroughly examined and finally resolved before the merit of the case can be entertained.
It is trite law that where a Court does not have jurisdiction to entertain a matter, its decision amounts to nothing.
The entire proceedings and decision are void no matter how well conducted. see Madukolu v. Nkemdilim (1962) 2 SCNJLR. 341:
Nwankwo & Anr. V. Yar’Adua & Ors. (2010) 12 NWLR (pt. 1209) 518:6 SGM 121: Chief Oloba V.
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Akereja (19881 3 NWLR (pt. 84) 508.
As stated earlier, the issue of jurisdiction can be raised at any stage of the proceedings. Our rules of practice permit this and this Court has stated so over and over again; the indeed the issue of jurisdiction can be raised up to the final determination of an appeal by this Court.
The reason being that the existence or absence of jurisdiction in the Court of trial goes to the root of the matter so as to sustain or nullify the decision or order of the trial judge in respect of the subject matter.
See Obikove V. The Registrar of Companies and Official Receiver of Pool House GRP (1975) 4 SC 31 Adegoke V. Adibi & Anr.(1992) 5 NWLR (Pt. 242 40: (1992) 6 SCNJ,136:”
I must confess, as my Lord Niki Tobi; JSC (of blessed memory) stated in Dagaci Lere V. Dagaci of Ebwa (2006) Vol. 140 LRCN 2114 at 2169 A – F that I am prepared to team, but counsel for the 1st and 2nd respondents and the trial Court did not provide or release to me the benefit of their knowledge on (1) why the entirety of actions taken prior to a suit, during a suit or at all should be set aside when the issues thereon have been so joined
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and not yet determined; and without any regard to the determination of a challenge to the jurisdiction of the Court. 2. I wish to be better informed on why an issue(s) in controversy should be delved in and resolved at a preliminary stage.
3. I wondered whether the power to punish for contempt is not meant for the furtherance of justice and protection of the integrity of the Courts and assurance of an ultimate prejudice ? free determination of disputes.
4. I wondered whether contempt in the face of the Court may not be punished instanto, whilst contempt ex – facie curie may be transferred to a different judge (Court) for trial rather that visit same on the substantive matter and even against non party that has neither been joined nor heard contrary to the decision in Green V. Green (1987) 3 NWLR (Pt.61) 480: INEC V. Izuoqu (1993) 2 NWLR (Pt.275) 270 @ 295.
For the aforesaid reasonings, elucidations and thought, I have no hesitation in abiding and applying the stand of this Court as done a while ago in the sister appeal in CA/AK/57/2011 by allowing this appeal on the issues agitated by the appellants and in particular on the issue number 1 thereof
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and the respondents issues 1 and 2.
Appeal is allowed.
Accordingly, and in consequence, it is ordered as follows.-
1. The ruling of the trial Court delivered on 18 – 2 – 2011and the purported enrolment Order of 17 – 2 – 2011 in respect thereof are each set aside and quashed by me.
2. It is ordered that the substantive suit no. HOS/71/2010 shall be transferred or reassigned by the learned Honourable Chief Judge of Osun State to another judge other than Adiribegbe, J. which different judge shall hear the matter de novo, taking into account the primacy of the appellants’ application filed on 21 – 1 – 2011.
3. The said appellants’ application how so – ever called, shall be given accelerated hearing.
4. Oba jimoh Oyetunji Olanipekun Larooye II shall remain in office as the Ataojo of Osogbo pending the final determination of the substantive case.
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Costs; parties shall bear their respective costs of prosecuting and defending this appeal.
Other Citations: (2016)LCN/8953(CA)
