Mr. Abdulganiyu Adeniran & Anor V Hrh Oba Abdulganiyu Ajibola Ibrahim & Ors (2018)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

This Motion on Notice was brought pursuant to Order 2, Rule 29 of the Supreme Court Rules and the inherent jurisdiction of the Court.

The 1st respondent/applicant, HRH Oba Abdulganiyu Ajibola Ibrahim Olusookun II, Elerin of Erin-Ile prays for the following reliefs: –

1. An order striking out the appeal for failure to comply with the mandatory provisions of Order 2, Rule 8 and Order 8, Rule 2 of the Supreme Court Rules.
2. An order striking out the appeal for incompetence as the necessary and mandatory party i.e. the incumbent Olofa of Offa who ought to be a party is not before this Court.
3. An order dismissing the suit before the trial Court for the Court’s lack of jurisdiction to entertain same.
4. And for such further or other order(s) as the Honourable Court might deem fit to make in the circumstances of this case.

GROUNDS FOR THE OBJECTION:

i. The title of the appeal as filed does not reflect the same title as that which obtained before the trial Court, as required by Order 2, Rule 8 of the Supreme Court Rules.

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The Notice of Appeal was not endorsed with the names and addresses of, nor served on all interested parties as required by Order 8, Rule 2 of the Supreme Court Rules.

iii. This honorable Courts judgment in CHIEF ADEMOLA OGUNNIYI & AMUSA OKENIYI ALAWODE v DR FUNSHO ADARAMOLA & SUNMONU AROYEHUN (SC/171/73) of 10/12/1973 Concerned the boundary between Erin-Ile and Offa Communities, represented by their various community leaders.

iv. The suit before the trial Court leading to this appeal was brought by the Olofa of Offa against the Elerin of Erin-Ile, contesting the same boundary issue decided by this honourable Court in 1973.

v. His Majesty M. O. Olanipekun, Ariwajoye II, the Olofa of Offa who represented the Offa Community before the trial Court was also an appellant before the lower Court having lost at the trial Court, but died in the course of the appeal.

vi. The present appellants/respondents applied to the lower Court and got an order striking out the name of His Majesty Oba M. O. Olanipekun, Ariwajoye II, on account of his demise.

vii. The vacancy thus created in the stool of the Olofa

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of Offa was later filled by the appointment of His Royal Highness Alhaji Mufutau Gbadamosi, Esuwoye II, but no attempt was made by the appellants/respondents to join him as a party to the appeal before the lower Court to represent the interest of Offa Community.

viii. The issue of estoppel per rem judicata raised by the appellants/respondents in ground 2 of this appeal cannot be effectively determined by this honourable Court in the absence of the current and incumbent Olofa of Offa whose stool survives the occupant thereof.

ix. The judgment in CHIEF ADEMOLA OGUNNIYI & AMUSA OKENIYI ALAWODE v DR. FUNSHO ADARAMOLA & SUNMONU AROYEHUN (SC/171/73) of 10/12/1973 constitutes a judgment in rem and precludes anyone from relitigating the issue thus decided.

The application is supported by a 15-paragraph affidavit deposed to by Olamide Oyetayo legal practitioner in the firm of counsel to the 1st respondent/applicant and also a written address in which were identified three issues for determination, viz: –

i) Whether the appeal as filed is competent, in view of its non-compliance with the mandatory of Order 2 Rule 8 of the Supreme Court Rules

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ii) Whether the appeal is competent and can be heard in the absence of a necessary party, the Olofa of Offa (for himself and the Offa Community), having regard to the mandatory provisions of Order 8 Rule 2 of the Supreme Court Rules

iii) Whether the trial Court had jurisdiction over the appellants/respondents’ suit leading to this appeal, in view of the judgment of this honourable Court in CHIEF ADEMOLA OGUNNIYI & AMUSA OKENIYI ALAWODE v DR. FUNSHO ADARAMOLA & SUNMONU AROYEHUN (SC/171 173) of the 10th day of December, 1973 setting the boundary between both communitiesThe appellants opposed the application and filed a counter affidavit of 16 paragraphs on 18/5/2017. It was deposed to by Fayokemi Oladele, legal practitioner in the firm of D. Akin Akintoye & Co, counsel to appellants/respondents, Legal counsel also filed a written address.The 3rd respondent also filed a written address on the 15/5/17.

I shall make use of the issues as drafted by the applicant and altogether.

ISSUES I AND II:

I) Whether the appeal as filed is competent, in view of its non-compliance with the mandatory provisions of Order 2 Rule 8 of the Supreme Court Rules and

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II) Whether the appeal is competent and can be heard in the absence of a necessary party, the Olofa of Offa (for himself and the Offa Community), having regard to the mandatory provisions of Order 8 Rule 2 of the Supreme Court Rules

III) ISSUE III –

Whether the trial Court had jurisdiction over the appellants/respondents’ suit leading to this appeal, in view of the judgment of this honourable Court in Chief Ademola Ogunniyi & Amusa Okeniyi Alawode v Dr. Funsho Adaramola & Sunmonu Aroyehun (SC/171/73) of the 10th day of December, 1973 setting the boundary between both Communities.Learned Senior Advocate, Asiwaju Awomolo submitted that the Court should hold that Order 2 Rule 8 of the Rules of Supreme Court is mandatory that must be complied with by every appellant before this Court. That by virtue of Section 19 of the Interpretation Act, the Supreme Court Rules enjoy an equal status with substantive legislation and cannot be disregarded as mere rules. He cited Owners of MV Arabella v Nigeria Agricultural Insurance Corporation (2008) 4-5 SC (Pt.11) 189 at 204-205;

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Agip (Nig.) Ltd v Agip Petroli Int’l (2010) 5 NWLR (Pt.1187) 348 at 389.

That the Supreme Court Rules in contention were made, pursuant to Section 236 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and it has effect as a substantive legislation and the Court is under a bounden duty to ensure that it enforces the rules. He cited NNPC & Anor v Famfa Oil Ltd (2012) 17 NWLR (Pt.1328) 148 at 196; Popoola v Babatunde (2012) 7 NWLR (1299) 302 at 331 (CA).

The learned Silk went on to submit that the Rules in question are rules peculiar to this Court, made to regulate the conduct of cases before this Court and cannot be ignored by a party approaching this Court without due consequences. That the provision clearly connotes a mandatory duty, a pre-requisite to validity and where a statute provides a particular method of performing a duty regulated by statute, that method and no other must be adopted. He referred to Co-operative & Commerce Bank (Nigeria) Plc v Attorney-General of Anambra State & Anor (1992) 8 NWLR (Pt.261) 528 at 556; Shettima v Goni (2011) 18 NWLR (Pt.1279) 413 at 454.

Learned counsel for the applicant submitted

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that it is trite that a suit or an appeal cannot be properly heard and determined in the absence of a necessary and indispensable party whose interest is at stake in the proceedings and so the jurisdiction of this Court over the present appeal is questioned on this ground of the absence of proper parties.

That from the Record of Appeal the suit before the trial Court was between four claimants and four defendants and the fourth claimant was “His Majesty Oba M. O. Olanipekun, Ariwajoye II, the Olofa of Offa (for himself and the Offa Community)” whose capacity is self-explanatory as flag bearer for his Offa Community while the 1st respondent/applicant was sued as the 2nd defendant also as representing his Erin-Ile Community.

That the bone of contention in this appeal as before the trial Court is the boundary between the Offa Community of Offa Local Government on the one hand and the Erin-Ile Community of Oyun Local Government on the other hand.

He stated on that before the Lower Court an application was made and granted for the striking out of Pa Saliu Popoola (the 1st Claimant before the trial Court) and “His Majesty

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Oba M. O Olanipekun, Ariwajoye II the Olofa of Offa (for himself and the Offa Community)” from the proceedings thus effectively removing the Offa Community from the contest in affirmation of her disinterest in the outcome of the appeal. He referred to Exhibit 5 attached to the application.

Asiwaju Awomolo SAN submitted that the Offa Community by choice was not a party before the Lower Court and is not a party before this Court and so the subject matter of the suit from inception to date being the boundary between the two communities of Offa and Erin-Ile is therefore no longer an issue before this Court and this evidenced in Exhibits 1 and 2 attached to the application.

That the failure to join the Olofa of Offa in this appeal is fatal to the appeal. He relied on Carrena & Anor v Akinlase & 2 Ors (2008) 6-7 SC (Pt.1) 66.

It was further contended that it goes without saying that a boundary dispute between the Offa Community and the Erin-Ile Community cannot be effectively determined by any Court in the absence of their traditional rulers who are the custodians of the land and this is the purport of the provision

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in Order 8 Rule 2 of the Supreme Court Rules which required a notice of appeal to set forth the names and addresses of all parties directly affected by the appeal and shall be accompanied by a sufficient number of copies for service on all such parties. He cited Ihedioha v Okorocha (2016) 1 NWLR (Pt.1492) 147 at 179-180; Order 2 Rule 8 and Order 8 Rule 2; Madukolu v Nkemdilim (1962) 2 SC NLR 341; SLB Consortium Ltd v NNPC (2011) 4 SC (Pt.1) 86 at 95-96.

That the appeal thus filed is incompetent and the Court lacks jurisdiction to entertain it. He relied on Odunze v Nwosu (2007) 5-6 SC 40 at 58-59; Adamu v State (2017) 1-2 SC (Pt.1) 79 at 94.

It was also submitted that Exhibit 1 which is the judgment in rem which enures against the appellants/respondents and the whole world. He cited Sosan v Ademuyiwa (1986) 3 NWLR (Pt.27) 241 at 251; Ikotun v Oyekanmi (2008) 4-5 SC (Pt.1) 1 at 13.

Mr. Akin Akintoye II for appellants/respondents submitted that the provisions of Order 2, Rule 8 of the Supreme Court Rules have been complied with in this appeal. That the title of this case in terms of suit number and parties has remained the same from trial Court to the Supreme Court

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and what seems to have changed is the non inclusion of two persons who started the case but died along the way for which an application was made for their names to be struck out and the living parties continued to prosecute the appeal based on the order of the lower Court. That their affidavit evidence showed compliance with Order 8, Rule 9 of Rules of Court. He cited Sapo v Sunmonu (2010) 5 SCNJ 1; Bukoye v Magaji (2017) All FWLR 338 at 356; Okotie v Olughor (1995) 5 SCNJ 217; Okwaraononi v Mbadugha (2013) 6 SCNJ 346 at 362.

For the appellants/respondents it was submitted that the appeal is not a tussle for land between the Offa Community and Erin – Ile Community, rather it is a case between the Adeyi Apata family and the users of the land without their authority. That the outcome of this suit will affect only the land belonging to the Adeyi Apata family and not the entire Offa Community as wrongly conceived by the 1st respondent/applicant.

That there is no necessity to make the Olofa of Offa a party since the death of a party during the pendency of a suit does not affect the rights and status of the remaining living parties,

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particularly where the cause of action survives the death of a party. He cited Olufeagba v Abdur-Raheem (2009) 12 SCNJ 349 at 377.

That on this issue of jurisdiction it has to be seen that it is the same subject matter which is the main substratum of the appeal before this Court but the plea of res judicata would not hold sway as the previous case is different from the present case. He relied on D. T. T. Ent. Co (Nig.) Ltd. v Buhari (2011) 8 NWLR (Pt.1249) 387 at 410-411; Ayuya v Yonrin (2011) 10 NWLR (Pt.1254) 135; Alapo v Agbokere (2010) 9 NWLR (Pt.1198) 30.

B. F. Lawal for the 2nd respondent did not file any process

R. O. Yusuf of counsel for the 3rd respondent submitted that the appellant had made previous applications and objections while in disregard of the Rules of Court requiring them to reflect the parties as obtained at the Court of trial and so are not entitled to the discretion of the Court. He cited Nigerian Navy v Labinjo (2012) 17 NWLR (Pt.1328) 56 at 90.

That the notice of appeal remains without inclusion of necessary parties amounting to contravention of mandatory rules and proceedings commenced other than as provided by

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the rules and so incompetent and jurisdiction of Court ousted. He cited Anyanwoko v Okoye (2010) 5 NWLR (Pt.1188) 497 at 521; Ibrahim v Lawal (2015) 17 NWLR (Pt.1489) 490 at 525; Zakari v Nigerian Army (2015) 17 NWLR (Pt.1487) 77 at 106 etc.

That the present situation is not one of those special circumstances upon which the Rule of Court can be waived. He cited Dingyadi v INEC (NO.1) (2010) 18 NWLR (Pt.1224) 1; Idegwu v State (2015) 6 NWLR (Pt.1455) 286 (CA); Okoye v Centre Point Merchant Bank Ltd (2008) 7 – 12 SC 1 at 25.

That the Olofa of Offa is an indispensable party because his territorial jurisdiction is in question in the cause of action leading to this appeal. He relied on Ekagbara v Ikpeazu (2016) 4 NWLR (Pt.1503) 411.

For the 3rd respondent, it was canvassed that the non-compliance in this instance is not a mere irregularity but goes to the root of this Court’s jurisdiction. He cited PPA v INEC (2012) 13 NWLR (Pt.1317) 215; Okereke v Yar’Adua (2010) 17 NWLR (Pt.1100) 55; Agip (Nig.) Ltd v Agip Petroli Int’l (2010) 5 NWLR (Pt.1187) 348.

That Exhibit 1 attached to the 1st respondent/applicant’s application (the judgment in Chief Ademola

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Ogunniyi & Amusa Okeniyi Alawode v Dr. Funsho Adaramola & Sunmonu Aroyehun qualifies as a judgment in rem. He relied on Cole v Jibunoh (2016) 4 NWLR (Pt.1503) 499 at 531-532.

Central to the application of the applicants is that this Court lacks jurisdiction as the appellants have failed to comply with the mandatory provisions of the law governing the institution of appeals. The salient rule of Court for the purpose of commencing an appeal is as stipulated in Order 2, Rule 8 of the Rules of the Supreme Court which provides as follows: –

ORDER 2 RULE 8:

“Every notice of appeal, notice of leave to appeal and every other process filed in connection with an appeal shall reflect the same title as that which obtained at the Court of trial”.

Without question, those provisions are crafted in mandatory terms and so where there is non-compliance the process and, in this case, the notice of appeal is incompetent and liable to be struck out

It is reiterated that by virtue of Section 19 of the Interpretation Act, the Supreme Court Rules enjoy an equal status with a substantive legislation and cannot be treated as mere rules.

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That is the position of the law and it has not changed. I refer to some authorities of this Court in support of what the Court should do faced with circumstances such as are present in the case at hand.

See OWNERS OF MV “ARABELLA” v NIGERIA AGRICULTURAL INSURANCE CORPORATION 2008) 4-5 SC (Pt.11) 189 at 204-205 where this Court held, per OGBUAGU, JSC thus:

“Firstly, as to how rules of Court are treated, it is now firmly settled that rules of Court, are not mere rules, but they partake of the nature of subsidiary legislations by virtue of Section 18 (1) of the Interpretation Act and therefore, have the force of law. See the case of Akanbi & Ors v Alao & Anor (1989) 5 SC 1; (1989) 5 SCNJ 1 at 10. That is why rules of Court must be obeyed. This is because and this is also settled, that when there is non-compliance with the rules of Court, the Court should not remain passive and helpless. There must be sanction, otherwise, the purpose of enacting the rules will be defeated. In other words, rules of Court are not only meant to be obeyed, they are also binding on all parties before the Court. See the case of Ajayi & Anor v Omorogbe (1993) 7 SCNJ (Pt.1) 168”.

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See also AGIP (NIG.) LTD v AGIP PETROLI INT’L (2010) 5 NWLR (Pt.1187) 348 at 389 C-D and particularly at 416-417 where ADEKEYE, JSC held: –

“This Court has held in numerous decisions that rules of Court must be obeyed by litigants – and they are binding on all the parties before the Court. Rules of Court are not mere rules but one by nature akin to subsidiary legislations by virtue of Section 18 (1) of the Interpretation Act and therefore have the force of law”.

See also NNPC & Anor v Famfa Oil Ltd (2012) 17 NWLR (Pt.1328) 148 at 196 where my learned brother Rhodes-Vivour JSC stated thus: –

“I must observe that the schedule of an Act/Statute is part of the Act and it is as potent as any part of the Act. It is the duty of the Court to ensure that it is bound by the rules made under the law of the land. Such rules can never be ignored. If it does the attainment of justice may be left to the whims and fancies of powerful individuals and this would not be in the interest of justice”.

In POPOOLA v BABATUNDE (2012) 7 NWLR (Pt.1299) 302 at 331 F-G, his Lordship, OKORO, JCA (as he then was) held:

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“Each Court has its own set of rules which regulate its affairs, parties who appear before our Courts must study their rules carefully and approach these Courts according to laid down rules in order to avoid chaos in the judicial process. Where a Court insists that its rules must be obeyed, this should not be equated with technicality”.

Clearly the operative word shall in Order 2, Rule 8 connotes an obligatory discharge of duty and when so used as in this particular Rule of Court the requirement needs no second guessing but must be complied with and any contravention or non-compliance is fatal to the offending notice of appeal. See Co-operative & Commerce Bank (Nigeria) Plc v Attorney General of Anambra State & Anor (1992) 8 NWLR (Pt.261) 528 at 556; Shettima v Goni (2011) 18 NWLR 9pt.1279) 413 at 454.

The principles above restated taking in con with the facts of this case which the affidavit evidence would clarify especially in paragraphs 4, 5, 6, 7, 8, 9, 10, 11 and 12 which are thus: –

4. That in 1973, this honourable Court determined the boundary between the 1st respondent/applicant’s Erin-

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Ile Community and the appellants/respondents’ Offa Community, in CHIEF ADEMOLA OGUNNIYI & AMUSA OKENIYI ALAWODE v DR. FUNSHO ADARAMOLA & SUNMONU AROYEHUN (SC/171/73). A certified copy of the judgment of this Court delivered on the 10th day of December, 1973 is attached hereto as Exhibit 1.

5. That Exhibit 1 affirmed the judgment of the High Court of Kwara State which had upheld the findings of Dr. Funsho Adaramola, a sole Boundary Settlement Commissioner appointed to inquire into the boundary between the two communities. A Certified copy of the map showing the boundary as found and determined by the boundary Settlement Commissioner and upheld by this honourable Court is attached hereto as Exhibit 2.
6. That while Chief Ademola Ogunniyi and Amusa Alawode represented the Offa Community in the appeal determined in Exhibit 1, Sunmonu Aroyehun as its paramount ruler represented the Erin-ile Community in the same appeal.
7. That the present appellants/respondents were co-claimants with one Pa Saliu Popoola and “His Majesty Olanipekun, Ariwajoye II, the Olofa of Offa (for himself and the Offa Community)” in Suit No. KWS/OF/3/2006

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wherein they renewed their agitation on the boundary between the same communities of Erin-Ile and Offa.

8. That His Majesty Oba M. O. Olanipekun, Ariwajoye II, the Olofa of Offa who was the 4th Claimant at the High Court died while the appeal before the Lower Court was pending.
9. That the 1st respondent/applicant and the aforesaid Oba M. O. Olanipekun, Ariwajoye II fought the suit from inception in representative capacities for their respective communities. A certified copy of the ruling of Adewara J. dated the 23rd day of June, 2006 is attached hereto as Exhibit 4.
10. That although His Majesty Oba Mufutau Gbadamosi, Esuwoye II was appointed to fill the vacancy created by the death of the said Oba M. O. Olanipekun, Ariwajoye II, no attempt was made by the appellants/respondents to substitute him for his predecessor to continue representing the Offa Community.
11. That the failure referred to in paragraph 10 above is deliberate, as expressed by the counsel to the appellants/respondents in a letter of 27th August, 2013 addressed to M. A. Bello Esq., one of the lawyers representing the 1st respondent/applicant in this appeal.

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A copy of the said letter has been shown to me and attached hereto as Exhibit 5.

12. That as a legal practitioner, I know”

a) That an appeal as the instant one is a continuation of the hearing from the Court of first instance;

b) That all parties that participated in the trial from the Court of first instant ought to be on record and reflected as participating in the appeal up till the determination of the appeal;

c) That by the exclusion of the office of the Olofa of Offa as a party to represent his Offa Community in this appeal, the Offa Community has been portrayed as having no subsisting interest in the case;

d) That failure by the appellant/respondent to reflect in this appeal the title of the suit as obtained before the trial Court (which is a mandatory requirement of the Rules of this honourable Court) has changed the coloration of the appeal by leaving out the whole Offa Community as represented by their paramount ruler the Olofa of Offa;

e) That the exclusion thus renders this appeal incompetent.

The depositions in the counter affidavit confirmed the change of parties in the case in SC/171/73 and the instant case.

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I shall quote paragraphs 5 -13 as follows: –

5. That I know as of fact that the parties in the case of Chief Ademola Ogunniyi & Amusa Okeniyi Alawode v Dr. Funsho Adaramola & Sunmonu Aroyehun in the Supreme Court in SC/171/73 are not the same as parties in the instant case, neither are the parties in the instant case privies to the parties in the said Supreme Court case.
6. That I know as of fact and from records that Dr. Funsho Daramola Sunmonu Aroyehun were sued in the said case referred to in paragraph 5 above as members of the Boundary Settlement Commission and not as a paramount rule representing the Erin-Ile Community. This instant case is not a boundary dispute.
7. That I know as of fact that His Majesty Oba M. O. Olanipekun, Ariwajoye II, the then Olofa of Offa who was the 4th Claimant at the trial Court in this instant case died while the appeal was pending before the lower Court and he was not substituted. Consequently, his name was struck out from the case based on an application made to the Court below on 23rd February, 2012.
8. That I was informed by Mr. Akin Akintoye II, on 10th May, 2017 and I verily believe him that the

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Court of Appeal during the pendency of this appeal before it on 23rd February, 2012 gave an order to the effect that the names of the then 1st appellant/cross-respondent, Pa Saliu Popoola and the then 4th respondent, His Majesty Oba M. O. Olanipekun, Ariwajoye the then Olofa of Offa be struck out from the Appeal due to their demise and further directed that counsel to the parties should re-file their processes reflecting the positions of the living parties.

9. That based on the said directive the parties in the appeal have since been reflecting the living ones in the subsequent processes and it is the same in the Notice of Appeal before this Honourable Court. None of the parties herein has appealed against the said Order of the Court below.
10. That surprisingly and by inadvertence on the part of the lower Court’s Registry, the said proceedings of 23rd February, 2012 was not included in the compiled and transmitted Record of Appeal in this case.
11. That the appellants/respondent, through their counsel, applied to the Court below for the Certified True Copy of the Record of proceedings of the said 23rd February, 2012.

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A copy is herein attached as Exhibit ‘A’. An application has been filed in the Court on 24th March, 2016 to bring in the Certified True Copy of the Proceedings as an Additional Record of Appeal.

12. That as a legal practitioner, I know:

(a) That an appellant is not bound to retain all the parties at the trial in his appeal.

(b) That the death of a party does not necessarily abate an appeal.

(c) That a Notice of Appeal filed on behalf of or in the name of a dead person is clearly incompetent.

13. That Mr. Akin Akintoye II told me and I verily believe him that Exhibit 5 attached to the applicant’s motion was written against the background that since Pa Soliu Popoola and HRH Oba M. O. Olanipekun are dead and have been so struck out, he was no longer their counsel.

It is glaring that the matter of difference in parties is a common ground not in dispute. This Court has not left for debate what should happen when there is disparity in the parties on appeal as against those at the Court of trial. I refer to the case of Progressive Peoples Alliance v Independent National Electoral Commission & Anor (2012) 13 NWLR (Pt.1317) 215 at 237 per Ngwuta JSC thus:

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“The facts that the appellate Court will review in an appeal are facts presented by, or elicited from, the parties at the trial Court. If a party is displaced and a stranger to the proceedings at the trial Court has usurped his place, the appeal will be incompetent and the appellate Court will lack jurisdiction to hear it. This applies equally to an application for leave to appealBased on the alteration of parties, I agree with the respondents that the application is incompetent and ought to be struck out”.

In the contribution of ARIWOOLA, JSC at page 258, his Lordship held:

“What is more, a cursory look at all the processes filed in this Court shows that they do not reflect the same title as that which obtained in the trial tribunal. The parties are completely and radically different. As shown earlier, the petitioners before the Election Tribunal were “Chief Sam Nkire and Peoples Progressive Alliance (PPA) as 1st and 2nd petitioners respectively, whereas the applicant seeking leave to appeal against the decision of the trial tribunal is progressive peoples Alliance (PPA)”. Order 2, Rule 9 of the Rules of this Court provides thus:

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“It is not in dispute that rules of Court are meant to be obeyed and duly observed. Otherwise, the Court may be robbed of the required competence to adjudicate on the matter. For a Court to have jurisdiction, one of the conditions to be satisfied is that proper parties are before the Court. Where proper parties are not before the Court, the Court will be lacking in competence. hence, the case is liable to be struck out”.

What is borne out of the Record of Appeal is that the suit at the trial Court was between four claimants and four defendants and the fourth Claimant was “His Majesty Oba M. O. Olanipekun, Ariwajoye II, the Olofa of Offa (for himself and the Offa Community)” and the capacity explains itself that the Olofa was the flag bearer for his Offa Community while the 1st respondent/applicant was sued as the 2nd defendant also as representing his Erin-Ile Community. For a fact what is at the base of the dispute in this appeal as before the trial Court is the boundary between Offa Community of Offa Local Government on the one hand and the Erin-Ile Community of Oyun Local Government on the other hand.

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At the Court of Appeal, there was an application made for the striking out of Pa Saliu Popoola, the 1st Claimant before the trial Court and His Majesty Oba M. O. Olanipekun, Ariwajoye II, the Olofa of Offa (for himself and the Offa Community’ from the proceedings. The effect of that striking out is the removal of the Offa Community from the contest and a confirmation of Offa no longer being interested in the outcome of the appeal. This situation is buttressed by Exhibit 5 attached to this application wherein counsel for the appellants/respondents stated in clear terms thus:-

“On 1st August, 2013, our office was served with a motion in respect of the above suit which was filed by your office at the Supreme Court on 29/7/2013. The said motion has the names of the 1st appellant (Pa Saliu Popoola) and 4th appellant (His Majesty Alhaji Oba M. O. Olanipekun Ariwajoye II, Olofa of Offa stated therein.

“Please note that the two said persons are not our clients and the appeal at the Court of Appeal, Ilorin Division in which judgement was delivered on 20th September, 2012 does not have them as parties”.

In a nutshell, the failure of the appellants to join the Olofa of

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Offa in this appeal is fatal and it cannot be covered by what the appellants now respondents to this Preliminary Objection are positing that the Oba Mustafa Olawore Ariwajoye II died in the course of the appeal at the Court below whereby an application by the same appellants to have his name struck out was made and done by the appellate Court. That the Olofa at that time died did not mean the extinction of the either the title or stool of Olofa which remained indestructible and the appellants’ ought to have brought an application for substitution with the new occupant of the stool as the interest of the Offa Community was at stake and whoever was on seat as the Olofa would represent the Community in the said dispute with the other community. This Court had laid down some guiding principles in the determination of a necessary party in a suit. I refer to the case of Carrena & Anor v Akinlase & 2 Ors (2008) 6-7 SC (Pt.1) 66 as follows:-

i) that the presence of such party is necessary for the effectual adjudication of the matter in dispute;

ii) that the plaintiff’s claim against the existing defendants also affects the party sought to be joined; and/or

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(iii) that his interest is the same or identical with that of the existing defendants.

Indeed there is nothing that would change the situation of things in this instance being a boundary dispute between the Offa Community and the Erin-Ile Community, which dispute cannot be effectively determined by any Court in the absence of their traditional rulers who are the custodians of the land.

That is the purport of the provisions of Order 8 Rule 2 (1) of the Supreme Court Rules which requires that a notice of appeal among other things would contain, “the names and addresses of all parties directly affected by the appeal and shall be accompanied by a sufficient number of copies for service on all such parties”.

The present appeal being bereft of the necessary parties invokes the spirit of the case of Madukolu v Nkemdilim (1962) 2 SC NLR 341 thus:

“A Court is competent when:

a) it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another;

b) the subject matter of the case is within its jurisdiction, and there is no feature in the case

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which prevents the Court from exercising its jurisdiction; and

c) the case comes before the Court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction”.

See also SLB CONSORTIUM LTD v NNPC 4 SC (Pt.1) 86 at 95-96.

It follows that the necessary pre-condition to the assumption and exercise of jurisdiction has not been met and the appeal has not come before this Court commenced by due process of law and on the fulfilment of the mandatory provision of the enabling Rules of Court. See Ihedioha v Okorocha (2016) 1 NWLR (Pt.1492) 147; Odunze v Nwosu (2007) 5-6 SC 40 at 58-59; Adamu v State (2017) 1-2 SC (Pt.1) 79 at 94.

I shall get back to the matter of Exhibit 1, the judgment of this Court of 1973 which is Chief Ademola Ogunniyi & Amusa Okeniyi Alawode v Dr. Funsho Adaramola & Sunmonu Aroyehun (SC/171/73) of 10/12/1973 is a judgment in rem against the whole world as it pronounced on the boundary between the two Communities which effect is res judicata. I shall refer to the case of Sosan v Ademuyiwa (1986) 3 NWLR (Pt.27) 241 at 251 (Reprint) per Oputa JSC thus:

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“The rule of estoppel per rem judicatam may also apply in the case of a decision or judgment in rem. In such a case the decision is binding both on parties (or privies) as well as on non parties whether it is used as a foundation of an action or relied upon as a bar this Court quite recently considered the distinction between a judgment in rem and a judgment in personam and held that a judgment is in rem when and where it is a solemn pronouncement upon the status of a particular subject matter. The term judgment in rem is clearly understood in law as a judgment of a Court of competent jurisdiction determining the status of a person or thing or the disposition of a thing. The action which ends in such a judgment should be an action filed for the purpose of such determination”.

See also IKOTUN v OYEKANMI (2008) 4-5 SC (Pt.1) 1 at 13, per CHUKWUMA-ENEH, JSC (as he then was) thus: –

“… As the judgments as per Exhibits B and D are final decisions given by Court of competent jurisdiction, they are conclusive as to the cause of action and all the issues that are germane and decided in directly establishing the cause of action as between the parties

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or their privies. A party so affected by it is estopped as per rem judicatam from relitigating the matter all over again. The implication of the above assertion vis-a-vis the judgments as per Exhibits B and D is that they are binding as to the cause of action and the issues directly decided in the previous case are called to question as between the same parties or the privies. So that the party is estopped from bringing a fresh suit before any Court on the same case and on the same issue already pronounced upon by the Court in a previous case.

I agree with learned SAN for applicant that the subject lordships’ 1979 decision in Exhibit 1 (CHIEF ADEMOLA OGUNNIYI & AMUSA OKENIYI ALAWODE v DR. FUNSHO ADARAMOLA & SUNMONU AROYEHUN – SC/171/73) is as to the status of the boundary between the two communities. There, this Court found that:

“The Commissioner duly carried out his assignment and submitted his determination of the question in controversy between the parties to the Governor of Kwara State. To this report was attached a plan (Exhibit A) in the proceedings before the High Court showing the boundaries as determined by the Commissioner.” (Page 152, lines 4-9 of the Records).

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One can go on and on without stopping for breath as the matter is settled in that the appellants failed to comply with the mandatory provisions of Order 2, Rule 8 and Order 8, Rule 2 of the Supreme Court Rules which renders the appeal incompetent and liable to be struck out since the incumbent Olofa of Offa who ought to be a party is not before the Court by virtue of Order 2, Rule 8 (2) of the Rules of the Supreme Court.

Again most crushing of the facts is that assuming the appeal was competent, it seems to me an abuse of Court process since what is in dispute is the boundary between Offa Community and Erin-Ile Community a matter well rested by this Court in 1973 which has thrown up the principle of estoppel and the need to proclaim that the time has come for society to be mindful and not go chasing after issues long adjudicated upon and decided. It is on that note that I do not hesitate in upholding this application which I grant. It is thus ordered: –

1. The appeal being an abuse of Court process is hereby dismissed.
2. The suit before the trial Court is dismissed on the

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principle of estoppel per rem judicatam.

I award the sum of N500,000 costs to the Applicants to be paid by the Appellants.

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SC.516/2012(R)