Chief J. A. Agbana V. Rtd. Major S. K. Owa & Ors (2004)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C. 

This is yet another chieftaincy dispute. It is between the appellant on the one hand, and the respondents on the other. This appeal is between the appellant and the 1st respondent. It would appear that the 2nd and 3rd respondents are nominal parties.

The appellant as plaintiff filed an action in the High Court of Kogi State, holden at Egbe asking for declarative and injunctive reliefs. He asked for a declaration that the purported appointment and or approval of the appointment of the 1st defendant as the Elegbe of Egbe by the 2nd and 3rd defendants is null and void and of no effect whatsoever, He also asked for a perpetual injunction prohibiting the 1st defendant from acting as or parading himself as the Elegbe of Egbe and the 2nd and 3rd defendants treating the 1st defendant as the Elegbe of Egbe and or paying him the prerequisites of the said office.

The appellant gave evidence at the trial. He did not call any witness. The respondents called six witnesses. At the end of the trial, the learned trial Judge, Medupin, J., gave judgment to the respondents.

He said at page 152 of the record:

“The claim of the plaintiff against the defendants both jointly and severally for the declaration that the purported appointment or approval of the 1st defendant as the Elegbe of Egbe as being void must in the opinion of this court fail. This court therefore holds that the 1st defendant was the person legally appointed as the Elegbe of Egbe in accordance with the tradition and custom of Egbe. Also this court is satisfied that the appointment of the 1st defendant before now as the then Baale of Egbe was with effect from 1st January, 1992.”

His appeal to the Court of Appeal failed. He has come to this court. Briefs were filed and duly exchanged. The appellant formulated three issues for determination:

“i. Whether or not the Court of Appeal was properly constituted (Ground 8, the additional ground of appeal)

ii. Whether or not it was proper of the Court of Appeal not to give notice of hearing of the judgment to the appellant when she adjourned judgment sine die at the time of hearing the appeal on 26/1/99 as shown by last 2 lines of page 235 of the record (Ground 1) and

iii.Whether the Court of Appeal properly considered the appeal before her or not (Grounds 2, 3, 4, 5, 6 and 7 of the appeal at pages 254 – 257 of the record)”

The 1st respondent also formulated three issues for determination:

“1. Whether the Court of Appeal can deliver her judgment at the date fixed when the appellant and his counsel were not in court, but the respondents and their counsel were in court on the notice served on them by the registrar of the Court of Appeal (Ground 1).

2. Whether the Court of Appeal adjudicated on the appellant’s appeal without properly understanding the appellant’s case (Grounds 2, 3, 4, 5, 6 and 7).
3. Whether the Justices of the Court of Appeal can legally deliver her judgment on 30/3/99 when only 2 of Justices were in attendance (Add.ground).”

Respondents also raised preliminary objection in the brief.

Learned counsel for the appellant, Prince J. O. Ijaodola submitted on issue No.1 that the decision of the Court of Appeal by two justices who sat on 23rd March, 1999 or 30th March, 1999 was void because the court was not properly constituted. He contended that section 9 of the Court of Appeal Act, No.3 of 1976 and section 226 of the 1979 Constitution were violated, as both require three justices of the court to determine an appeal. He argued that the case is distinguishable from the decisions of Attorney-General of Imo State v. Attorney-General of Rivers State (1983) 8 SC 108; Chief Igwe v. Chief Kalu (1993) 4 NWLR (Pt.285) 1, (1993) 24 NSCC (Pt. 1) 393; National Bank of Nigeria Ltd. v. Guthrine (Nig.) Ltd. (1993) 3 NWLR (Pt.284) 643, (1993) 24 NSCC (Pt. 1) 401 and Okino v. Obanebira Sc. 258/1993 (unreported) delivered on 3/12/99. Counsel urged the court to answer the issue in the negative.