Justice O. Thomas (Rtd) & Anor. V. Omoniyi Aderinokun (Suing by His Attorney) & Anor. (2008)

LawGlobal-Hub Lead Judgment Report

ISTIFANUS THOMAS, J.C.A.

At the Lower Court, the present respondent was the applicant in which he filed an originating summons against the present appellants seeking the following reliefs:

1. A declaration that having regard to the Infants Law of Oyo State, upon the death of MRS OLUTOBI ARAMIDE ADERINOKUN, the mother of MAYOWA and TEMILOLA ADERINOKUN, the plaintiff being their natural father, is by operation of Law, the guardian of the said children TEMILOLA ADERINOKUN, the plaintiff being their natural father, is by operation of Law, the guardian of the said children.
2. Order directing the respondents forth with to deliver up to the applicant by himself or through his Attorney, servant or agent, the actual custody of the above named children namely MAYOWA ADERINOKUN DOB 22/12/95 and TEMILOLA ADERINOKUN DOB 7/1/98.
3. Order that the International Travelling Passports of the said children be delivered to the applicant or his Attorney, servant or agent.
4. Order that the children being American citizens by birth be returned to the jurisdiction of the State of New York in the United States of America.
5. Such further or other orders as this Honourable Court may seen just and proper in the circumstance.

When the respondents, but now appellants were served with the originating summons, they filed a notice of Preliminary Objection, on the ground, that, similar application in an Ex-parte originating summons in Suit No. M/421/2001, was earlier granted on 7-10-2001 in their favour, which according to the appellants, is still live and binding and that, the Lower Court, had no jurisdiction to sit on appeal over the earlier decision of a court of co-ordinate jurisdiction.

The learned trial court judge coram Mashod A.A. Abass (J), considered the preliminary objection and the opposition of the parties, and on 08-01-2003, delivered a ruling dismissing the preliminary objection on the basis that suit No. M/421/2001 delivered on 7-10-2001 could not sustain a plea of res judicata suice the parties in the suit were not the same parties in suit No. M/330/1001 which was before the Lower Court. In other words, the applicant now respondent (in originating summon No. M/330/1001) was not a party in the other ex-parte originating summons No. M/421/2001. Based on the Lower Court’s decision, dismissing the preliminary objection, appellants have appealed on twelve (12) grounds of appeal.

It is however, important to know the relevant facts, that brought about the earlier decision in Ex-parte originating summons on which the appellants raised their preliminary objection in suit No. M/330/2002. It is also, the main ground in their briefs of argument formulated in their four issues for determination of this appeal. The relevant fact is at follows:-

The present respondent got married to OLUTOBI ARAMIDE who then was daughter of the present appellants. The respondent and his wife were blessed with the two infants. Disaster struck when the respondent’s wife was painfully murdered by armed robbers in Lagos. Before the death of respondent’s wife, there was a mutual agreement between the appellants and their son-in-law and their late daughter, whereby the two infants were moved from their residence of American citizenship to reside with their maternal grand parents, namely the appellants. The infants were enrolled into LIFE FORTE NURSERY AND PRIMARY SCHOOL in Ibadan and according to the appellants, the infants are now in the American Christian Academy in Ibadan.

When the death of the mother of the infants was committed, the respondent, per his affidavit evidence in Paragraph 24, was already in United States of America. At this point, it appears, the loss of appellants’ daughter, being also a loss to the respondent and the innocent infants, mistrust, and suspicion emerged. These mistrusts and suspicion are contained in the totality of 4S paragraph affidavit – evidence filed on 25-1- 2001, deposed to by the 2nd appellant in support of their Ex-parte Originating Summons in Suit No. M/ 421/2001, see Paragraphs 26-27 of the record. Similar mistrust and suspicion are also contained in the 68 paragraph affidavit evidence deposed to by the applicant/respondent in support of his Originating Summons in Suit No. M/330/2003 – See paragraphs.3-7 of the record of appeal. From the parties mistrusts and suspicions, this Court understands the deep sentiments and worries of the parties respectively. The present appellants had already received guardianship by the former trial Court’s decision delivered by Ige (J) on 7- 10-2001 as shown in Exhibit A2 in Suit No. M/421/2001 at Ibadan High Court. It is contained at page 43 of the record.

Exhibit A2 reads as follows:-

1. That there exists necessary circumstances warranting the appointment of the applicants as the guardians of the named infants.
2. That the applicants be appointed as the guardians for the above named infants.
3. That the custody of the above named infants be awarded to the applicants.

The guardians now appointed shall act always in the best interest and welfare of the said infants that is :

1. MAYOWA DEMI ADERINOKUN (F). 6 YEARS.
2. TEMILOLA BRIANNA ADERINOKUN (F) 3 YEARS.

ISSUED AT IBADAN Under the seal of the Court and the Hand of the Presiding Judge this 17th day of October, 2001.

Now coming to the main issues before this Court, appellant’s brief of argument was dully filed on 2-10-2003 in which they have raised four (4) issues for determination as follows:-

1. Whether the applicant/respondent can apply to the Lower Court for reliefs already granted by that Court to the respondents/appellants and whether that court is competent to entertain the application. (Grounds 1, 2 and 3).
2. Whether the learned trial Judge misdirected himself and thereby came to a wrong conclusion when he held that FORM 58 “is being used as a shield to deprive a necessary party to an action from being heard” when FORM 58 used in Exhibit A2 is in strict compliance with the High Court Civil Procedure Rules of Oyo State. (Grounds 4, 5, 7 and 9).
3. Whether in view of the Court’s finding that Exhibit A2 is a final order and the subject matter of this action and Exhibit A2 are the same, the learned trial Judge was right to have dismissed the Preliminary objection and assumed jurisdiction. (Grounds 6, 7, 8 and 12).
4. Whether or not the learned trial Judge could sit on appeal on a subsisting order of a Court of co-ordinate jurisdiction. (Grounds 6, 10, 11 and 12.)

In response, the respondent filed his written brief on 19-5-04 from which he raised Notice of Preliminary objection in respect of grounds 4, 5, 6 and 7 from which the appellants formulated issue NO.2 for determination.

I will later consider the respondent’s Preliminary objection in this judgment. The respondent has formulated two (2) in alternative order, issues for determination and they read as follows:

1. Whether Suit No. M/330/2002 commenced by the Respondent here in before the lower Court is caught by the doctrine of Estoppel per Rem Judicata in view of the decision contained in the Applicants Ex-parte order in Suit No M/421/2001.

OR