Chief M. A. Oyelami & Ors V. Military Administrator of Osun State & Ors (1999)
LawGlobal-Hub Lead Judgment Report
ONALAJA, J.C.A.
Plaintiffs claimed in the High Court of JUSTICE, ILE IFE OSUN STATE formerly OYO State against 1st, 2nd, 3rd, 4th and 5th Defendants as follows:-
“(i) The WINGBOLU/AKITIKORI Family is, according to the custom, history tradition of ODE OMU, the only Ruling Houses for the Baale of ODE OMU Chieftaincy title in the Irewole Local Government, Oyo State.
(ii) The purported 1961, Chieftaincy Registered Declaration is a gross violation of the Custom history and tradition of ODE-OMU and is therefore null and void and of ‘no effect either as an instrument or at all.
(iii) The said purported Declaration was not made in accordance with the Chief’s Law Cap 19.
(iv) The 4th Defendant is not entitled under the Custom, history and tradition of ODE OMU or at all to be considered or recommended for or be appointed to or be installed as the Baale of ODE OMU following the death of one Bakare Ojo in July 1987.
(v) The purported election and recommendation of the 4th Defendant as communicated in a letter on or about 10th August, 1987, to the Oyo State Government for appointment as Baale of Ode Omu is contrary to the custom, history and tradition of ODEOMU, the 4th Defendant not being a member of the one and only Ruling House to wit: the WIN-GBOLU/AKITIKORI Family.
(vi) The action of the Government of Oyo State in purporting to approve the recommendation of the 4th Defendant for the title of Baale of ODE OMU is invalid, null and void and of no effect being contrary to the custom, tradition and history of ODE OMU.
(vii) A perpetual injunction against the 1st, 2nd, and 3rd Defendants, their servants, agents and privies from taking any further step whatsoever in regard to the recommendation or appointment or installation of the 4th Defendant as Baale of ODE OMU.
(viii) A perpetual injunction against the 4th and 5th Defendants from parading themselves either as candidates for the Baale of ODE OMU or as being entitled to the Chieftaincy title through their respective “lines” or at all.”
Pleadings were delivered and exchanged after which the case proceeded to trial which led to the delivery of judgment by the High Court of ILE IFE with coram as T. O. ADENIRAN J. on 15th March, 1990.
Being dissatisfied with the judgment of the High Court of Justice ILE IFE led to lodgment of an appeal to this Court, the Court of Appeal. After arguments on the appeal it dismissed the appeal as per the judgment of this court on 18th July, 1997. A copy of the judgment was marked as exhibit FS1 in the supportive affidavit of the Motion on notice filed in this court on 23rd July, 1997 wherein the Appellants now referred to in this Ruling as 1st to 4th Appellants (for themselves and on behalf of WINGBOLU/AKITIKORI RULING HOUSE brought application under Sections 16 and 18 Court of Appeal Act Cap 75 Laws of the Federation of Nigeria 1990, Order 1 rule 20 and Order 3 rule 23 Court of Appeal Rules 1976. The motion was consequential to the dismissal of the appeal lodged in this court.
Applicants aggrieved with the judgment of this court lodged an appeal to the Supreme Court through the notice of appeal marked Exhibit FS2 in the application that gave rise to this ruling.
This 1st, 2nd, 3rd, 4th and 5th Defendants/Respondents in the said appeal are henceforth referred to in this ruling as 1st to 5th Respondents respectively.
Appellants sought the following reliefs from this Court:-
(i) STAY OF EXECUTION of the Court of Appeal Judgment dated 18/7/97 pending the determination of the Appeal filed and now pending in the Supreme Court of Nigeria.
(ii) INJUNCTION restraining the 1st to 3rd Defendants/Respondents by themselves, their agents, servants, privies or other-wise howsoever from taking any step or further steps whatsoever to install or have to be installed any person from the 4th and 5th Defendants/RESPONDENTS/Respondents families respectively or other persons whosoever as the paramount ruler or Baale or purported “Alayegun” of Ode-Omu pending the determination of the appeal filed and now pending in the Supreme Court of Nigeria.
(iii) INJUNCTION restraining any person from the 4th and 5th defendants/respondents/respondents family respectively or any other persons whosoever from presenting himself for the appointment or installation or parading himself as the paramount ruler, or the “Baale” or the “purported Alayegun” of Ode-Omu pending the determination of the appeal filed and now pending in the Supreme Court of Nigeria.
(iv) INJUNCTION restraining the 5th Defendant/respondent/respondent (Stephen Adegboyega Fawole) and the other defendants/respondents by themselves, their agents, servants and privies or otherwise whosoever described:-
(i) from parading the said Stephen Adegboyega Fawole and or the other respondents as the “Baale” (or purported” Alayegun”) of Ode-Omu; and
(ii) from receiving the instrument office howsoever described pertaining to the “Baale” (or purported “Alayegun” of Ode Omu) from anyone whosoever; and
(iii) from performing the functions and taking any further step or steps relating to the “Baale” (or purported “Alayegun”) of Ode-Omu pending the determination of the appeal now pending in the Supreme Court of Nigeria.
AND FURTHER TAKE NOTICE that the ground upon which the application is founded is:-
It is in the interest of justice to maintain the status quo to wit: the vacancy of the Baale-ship or purported “Alayegun”) of Ode-Omu pending the determination of the Appeal filed to the Supreme Court of Nigeria on 22nd July, 1997 by the Plaintiffs/Appellants/Applicants.”
A supportive affidavit of 14 paragraphs with documents marked as exhibits were filed along with the said application.
The grounds of appeal without the particulars formulated in the notice of appeal as reflected in the notice of appeal are as follows:-
“3 GROUNDS Of APPEAL
(1) The Court of Appeal erred in law when it held that “though the Courts now have unlimited jurisdiction under the 1979 Constitution, the effect of Section 6 of the Interpretation Act to the facts of the case which showed that the cause of action had arisen before 1979 is that such is not affected by the coming into operation of the 1979 Constitution. The jurisdiction of the High Courts that has been ousted then remained so ousted.”
(2) The Court of Appeal erred in law in holding that the applicable law for the determination of the action before the Court are those in force when the cause of action arose.
(3) The Court of Appeal erred in law when it used the Respondents’ briefs for the 1st, and 2nd Respondents, the 3rd Respondent and the 4th and 5th Respondents respectively in the determination of the Appeal notwithstanding the fact that the said Respondents’ Brief were based on the Notice of Appeal dated 15th March, 1990 which no longer existed.
(4) The Court of Appeal erred in law in holding that it is not the function of the Court to make a declaration of customary law, and that the rotational/promotional chieftaincy reflected in Exhibit B represented the custom of Ode-Omu…and that the court in the circumstances of this case had no other functions than to apply the 1961 Baale of Ode-Omu Chieftaincy Declaration. When the issue before it was to declare the Registered Declaration null and void as it does not represent the custom and tradition of Ode-Omu”
Later a further affidavit was filed to Support the motion wherein certified true copy of the proceedings of this Court on 9th November, 1994 was marked as Exhibit FS3.
The 1st and 2nd Respondents filed a joint counter aftidavit wherein documents attached to that counter affidavit were marked Exhibits. Some of the Exhibits were also marked as Exhibits in the counter affidavit of the 3rd Respondents.
The 4th and 5th Respondents have a joint legal representative which also led to filing a joint counter affidavit of 30 paragraphs with documents already marked as exhibits in the counter affidavits of 1st, 2nd and 3rd Respondents also admitted and marked as exhibits in the counter affidavit of 4th and 5th Respondents.
Upon the motion coming up for arguments the learned counsel for the Applicants relied extensively on paragraphs 2-15 of the supportive affidavits and Exhibits FS1 and FS2, so also the further affidavit with the proceedings of this court marked Exhibit FS3.
The crux of the application is maintenance of the RES being the Baaleship of ODEOMU through the status quo, by the Court exercising its judicial discretion to grant the stay of its judgment or the granting of the reliefs of injunctions sought in the motion. The same principle of law applies to the grant of the stay of judgment or injunctions pending the determination of the appeal now pending in the Supreme Court. The grant is notwithstanding the accepted rule of law that the court is loathe or reluctant to deprive a successful party the fruits of its judgment.
Where the appeal raised substantial point or points of law requiring further consideration of the Supreme Court or recondite point of law this constitutes an exception to the attitude of all courts not to deprive a successful party the fruits of judgment this position is treated as exceptional circumstance to grant the stay of injunction in this application. The grounds of appeal raise substantial issues of law. Whereas in the instant application the appeal raised the issue of jurisdiction this constitutes exceptional circumstance as decided in N.A.O. Kotoye v. Saraki (1993) 5 NWLR (Pt.296) page 710 at 723 Agbaje v. Adenekan (1990) 7 NWLR (Pt.164) page 595, Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC 77 at 81 – 82.
As the action which led to this ruling was commenced in 1987 made the fact and law in the instant ruling to be distinguishable from the case of Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt.58) page 539 at 541, and should not be applied in this ruling.
On balance of convenience this honourable court should rule in favour of the applicants as the 5th Respondent has not been installed or given the staff of office. The RES in this dispute is intangible and cannot be quantified in monetary compensation or damages, as by exhibit Fs3 the learned counsel for the 5th Respondent gave an undertaking in court not to take any further step pending the determination of the appeal.
For the above reasons applying Y.P.O. Sodeinde v. Registered Trustees of the Ahmadiyya Movement In Islam (1980) All NLR 64; (1980) 1-2 SC. 163 as the grounds of appeal are substantial, this application ought to be granted more especially when it raised the issue of jurisdiction which is an exceptional circumstance to the grant of Stay of judgment or injunction pending appeal reliance was put on Aku v. Aneku (1991) 8 NWLR (Pt.209) 280.
Learned counsel for the 1st and 2nd Respondents opposed the application for the grant of stay of judgment and or interlocutory injunction, in support reliance was put on the 16 paragraphs counter affidavit especially and in particular on paragraphs 8-13 with the documents marked as Exhibits.
Two fundamental issues are raised for consideration
“(i) Whether in the circumstances of this case this court should grant the prayer;
(ii) Whether there arc special circumstances from the deposition of the appellant to grant the application.”
On issue 1 the throne as al present is no longer vacant as deposed to in paragraphs 9, 10, 11 and 12 of the counter affidavit with Exhibits A1, A2, B and C. The 5th Respondent had been functioning and acting in capacity of the chieftaincy since 20th December, 1994. There is nothing any longer to stay. It is trite law that injunction is not granted in respect of a completed and concluded act John Holt Ltd. & Anor v. Holts African Workers Union of Nigeria and Cameroun (1963) 2 SCNLR 383; (1963) NSCC page 313 at 318; Babatunde v. Olatunji (1994) 4 NWLR (Pt.339) page 448 at 491, Dr. Badejo v. Federal Minister of Education & Ors (1996) 8 NWLR (Pt.464) page 15 at 20 SC. On issue (ii) applicants from the content of the affidavits did not depose and did not show special circumstance to warrant the grant of the prayers sought. Applicants also failed to establish any serious issue for consideration in the pending appeal.
Grounds 1, 2 and 4 of the grounds of appeal arc incompetent as they raised issues or mixed law and fact for the type of such grounds or appeal, the leave of this court is a condition precedent, having failed to obtain the leave of this court the notice of appeal is fundamentally defective and therefore should be struck out.
It is not this habit of the court in exercise of application for its judicial discretion to Stay declaratory orders therefore this application lacks merit and should be dismissed with substantial costs in favour of 1st and 2nd Respondents.
The learned counsel for the 3rd Respondent not only associated himself with the submission of the learned counsel for the 1st and 2nd Respondents but also adopted her reasoning and conclusion.
As the 3rd Respondent was carved out in 1989 from that former IREWOLE LOCAL GOVERNMENT which is a different Local Government there was no subsisting court order against the chieftaincy now in issue and dispute, so the application be refused as against 3rd Respondent.
Learned counsel for the 4th and 5th Respondent associated himself completely with the submissions of learned counsel to the 1st, 2nd and 3rd Respondents and adopted them as his own.
He referred to the counter affidavit of 30 paragraphs of 4th and 5th Respondents and the four documents marked as Exhibits. He relied in particular on paragraphs 16, 17, 18 and 19. There has not been any breach of undertaking of 9th November, 1994 in Exhibit FS3 contrary to 25th October, 1994 when the families of the 4th and 5th Respondents met and nominated 5th Respondent as the OBA OF ODE OMU. The undertaking of 9th November, 1994 was not retrospective, as it could not affect a completed act before 9th November, 1994. Since no further affidavit was made to the counter affidavit of 4th and 5th Respondents the facts deposed to in the counter affidavit are deemed to be admitted.
There is no valid or competent appeal to the Supreme Court, as the application was based on a non existing notice of appeal as the notice of appeal bore no stamp of the Court of Appeal that necessary steps was made and for non compliance with Sections 97(e) 109 (a) and 112 EVIDENCE ACT, LAWS of the Federation of Nigeria 1990.
At pages 15 and 20 of Exhibit FS1 the judgment of this court now appealed upon this honourable court declined jurisdiction, there is no challenge on appeal against this finding. Having declined jurisdiction this honourable court cannot now go back and grant itself jurisdiction to grant this application for stay and injunction, so this application should be dismissed with substantial costs to the 4th and 5th Respondents.
In reply learned counsel for the applicants submitted that as 4th and 5th Respondents were in breach of undertakings of 9th November, 1994 they were in contempt and should not be heard by this court whilst still in contempt until after purging themselves of the contempt, See Governor of Lagos State v. Chief Odumegwu Ojukwu (1986) 1 NWLR (Pt.18) page 621, Registered Trustees of Apostolic Church v. Olowoleni (1990) 6 NWLR (Pt.158) page 514 at 537.
With respect the complaints on the competency of the grounds of appeal be rejected as they complied with the law as pronounced by the Supreme Court in the case of Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) page 718, Ogbechie v. Onochie (No.1) (1986) 2 NWLR (Pt.23) page 484. He urged the court to maintain the status quo by granting all the reliefs pending the determination of the appeal against the judgment of this honourable court by the Supreme Court.
The above is a resume of the submissions and contentions of the learned counsel to the appellants/respondents on the perennial and thorny question of grant of stay of the execution of judgment of this court marked Exhibit FS1 and or orders of injunctions as set out supra in the body of this ruling.
In Chief Chukwuma Onuzulike & anor (suing for themselves and on behalf of the other members of the Achaa Improvement Union v. Commissioner for Special Duties Anambra State & anor (1990) 7 NWLR (Pt.161) page 252 at 259 the Court of Appeal by a majority decision held as follows:-
“(1) Just as in stay of execution, a plaintiff who was unsuccessful in a lower court can apply for an injunction to protect his right arising from reliefs sought by him in the lower court pending the determination of an appeal he has lodged (Shodeinde v. Registered Trustees of the Ahmadiyya Movement in Islam (1990) 1-2 SC 163 referred to)
(2) An order for stay of execution or an order for injunction pending appeal amounts to the same end and there are some similar and vital conditions to satisfy before granting the order. These are that (a) there must be special circumstances Nwabueze v. Nwosu (1988) 4 NWLR (Pt.88) 257 referred to)
(b) the grounds of appeal must be somewhat on a novel point (Balogun v. Balogun (1969) 1 All NLR 349 referred to)
(c) the grounds of appeal must raise substantial legal issues to be determined (Utilgas v. Pan African Bank Ltd. (1974) 1 All NLR (Pt.2) 47 at 49 referred to)
(d) it is right to put matters on status quo and that it will be equitable to maintain the status quo or preserve the RES if the appeal is to have any meaning
(3) Where there is an appeal pending, the special circumstances which has received judicial approval where an application for stay of execution is brought are when execution would
(a) destroy the subject-matter of the proceeding or
(b) foist upon the court, especially the Court of Appeal a situation of complete helplessness or
(c) render nugatory any order or orders of the Court of Appeal or
(d) generally provide a situation in which whatever happens to the case in particular, even if the appellant succeeds in the Court of Appeal, there would be no return to the status quo. (Nwabueze v. Nwozu (1988) 4 NWLR (Pt.88) 257 at 269 referred to).
(4) In a proper case, a court from which an appeal lies has a duty to preserve the RES in order to ensure that the appeal if successful is not rendered nugatory and does not make the entire efforts of the appellant and the court end in vain (Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC 77 at 81- 82; (1972) 1 ALL NLR (Pt. 2)483 at 487, Kigo (Nig.) Ltd. v. Holman Brothers Ltd. No.1 (1980) 5-7 SC 60 at 70-71 referred to and followed).
(5) The right to ensure that an injury is not allowed to be inflicted or perpetuated or to ensure the occurrence or prevention of an event, is capable of being protected by a party to an action as an intangible RES (Kigo (Nig.) Ltd v. Holman Brothers Ltd. No.1 (1980) 5-7 SC 60 AT 75 referred to)
See further on principles guiding the grant of stay of execution as exhaustively and comprehensively expounded by the Supreme Court in Vincent Standard Trading Co. Ltd. v. Xtodeus Trading Co. (Nig.) Ltd. (1993) 5 NWLR (Pt.296) page 675 Okafor v. Nnaife (1987) 4 NWLR (Pt.64) page 129 at 136-137, Martins v. Nicannar Food Co. Ltd (1988) 2 NWLR (Pt.74) at 75,83 all applied, followed and adopted by the COURT OF APPEAL in Klifco Limited v. Philipp Helzmann & Co. & Anor( 1996) 3 NWLR (Pt.436) at 276, 294-296.”
At page 20 of Exhibit FS1 this honourable court stated as follows:-
“What is more, since the applicable law is the Chiefs Law of Western Region 1959, the trial High Court has of jurisdiction in this case. In consequence, the appeal lacks merit and it is dismissed on the issue of lack of jurisdiction of the trial High Court and the validity of Exhibit B which had not been impeached by the appellants. Since the Appeal fails on the issue of lack of jurisdiction of the trial court I shall not deal with the subsidiary issues raised in the appeal. (The italics are mine).
This court affirmed and confirmed the judgment of the trial High Court which dismissed the action on lack of jurisdiction. It is against the confirmation that the trial High Court lacked jurisdiction that Applicants appealed to the Supreme Court as formulated in ground one supra of the grounds of appeal. Based on the challenge of the issue of jurisdiction predicated the application for stay of judgment and or injunctions set out supra.
The decision of this court is going to be based on the judgment of the Supreme Court the apex court in Government of Gongola State v. Alhaji Umaru Abba Tukur (1989) 4 NWLR (Pt.117) page 592 at pages 603, 604 and 1609 wherein OBASEKI, J.S.C observed and stated as follows:-
“It should be borne in mind that at the stage when a court declares that it has no jurisdiction or has jurisdiction in a matter it has not entered into the determination of the rights of the parties. If it has heard evidence beside the evidence on the issue of jurisdiction, it has not assessed and evaluated the evidence to enable it determine the rights of the parties and or grant or refuse the reliefs claimed. It is saying at that stage that it is incompetent to entertain, hear, and determine the case or that it is competent to hear and determine the case. If it declares that it has no jurisdiction and is incompetent to hear and determine the case that is a complete decision in itself. It means that the court cannot proceed to hear evidence and determine the rights of the parties in the case. There is nothing in the decision calling for enforcement by any of the parties. So there is nothing to be executed and there is nothing to be stayed.”
PER NNAEMEKA-AGU, J.S.C.
To say that an order must be obeyed and respected is one thing and to say that it is capable of execution which can be stayed is quite another. In my opinion, as the Court of Appeal merely declared that the Federal High Court had no jurisdiction to entertain the suit which declaration is negative in form, there is nothing to execute just as there is no execution to be stayed.” (The italics are mine)
Applying the above to the instant case this Court of Appeal merely declared that the trial High Court had no jurisdiction to entertain the suit, therefore the declaration of want of jurisdiction is not capable of execution and cannot be stayed. QUOD ERAT DEMONSTRANDUM a fortiori there is nothing to stay by this court more also as the same principle applies for grant of stay of execution and for grant of injunction to an unsuccessful plaintiff/applicant. Therefore the prayers of the applicants are refused based upon the rule in Gongola State Government v. Alhaji Umaru Abba Tukur (1989) 4 NWLR (Pt.117) page 592 at 603, 604 and 609 SC supra to which none of the learned counsel to the parties referred to in their list of authorities.
The above principles reechoed in Mrs. F. M. Saraki & anor v. NAB Kotoye (1992) 9 NWLR (Pt.264) page 156 at 190 wherein OGUNDARE, J.S.C. held that
“It is elementary that if the Court of Appeal has no jurisdiction to adjudicate on an appeal, the issue is not yet being justiciable A FOTIORI it cannot grant an application for stay of further proceedings in the Lower Court.”
Following the rule of judicial precedent the above judgments of the Supreme Court are binding on this court applying them as there is nothing to stay based on declaration of lack of jurisdiction by the trial High Court, this application lacked substance in law and unmeritorious leading to the refusal of all the reliefs sought by the Applicants, the application is therefore dismissed.
Having dismissed the application the Respondents are entitled to the cost of the appeal which owing to the declining purchasing power of our currency the Naira and acting judicially and judiciously I fix the costs as follows. I award the sum of N2,000.00 to the 1st and 2nd Respondents against the Applicants jointly and severally. Similarly I fix N1,000.00 as costs in favour of 3rd Respondents and in favour of 4th and 5th Respondents the sum of N2,000.00 against Applicants. The cumulative costs awarded against applicants is a sum of N5,000.00
Other Citations: (1999)LCN/0518(CA)
