Mr. Richard Ogunsanya V. Prince Jamiu Olalekan Sule Onosipe (2016)

LawGlobal-Hub Lead Judgment Report

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

This is an appeal against the interlocutory Ruling of the High Court of Lagos State, Ikorodu Division, delivered by H.A.O ABIRU J (as he then was) with respect to the Obaship title of OLUBESHE of IBESHE Chieftaincy Stool in Ikorodu Local Government Area of Lagos State.
The 1st Respondent herein had as Claimant in the Lower Court commenced an action against the Appellant (as 6th Defendant) the 1st to 5th Defendants who are the 2nd to 6th Respondents respectively in this appeal. By a writ of summons and statement of claim dated 15-5-2007 he claimed the following reliefs:-
1. DECLARATION that the Claimant is the person lawfully and legally selected, recommended and nominated for appointment and installation as the next Oba Olubeshe of Ibesheland in Ikorodu Local Government of Lagos State.
2. DECLARATION that the 6th Defendant was never selected, nominated for the appointment or installation as the next Oba Olubeshe of Ibesheland in Ikorodu Local Government Area of Lagos State.
3. A DECLARATION that the inclusion of any other Ruling house which is

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outside the Ruling houses recommended by the Lagos State Standing Tribunal of Enquiry headed by Honourable Justice W.A. Oshodi (Retired) is against the Rule of natural justice equity and fairness as well as unconstitutional and contrary to the customs and traditions of Ibeshe people/community.
4. AN ORDER of this Honourable Court setting aside any chieftaincy declaration regulating succession to the stool of Oba Olubeshe of Ibesheland which accommodates or includes any other Ruling house outside the five (5) Ruling houses recommended by the Lagos State Standing Tribunal of Enquiry headed by Honourable Justice W.A. Oshodi (Rtd).
5. PERPETUAL INJUNCTION restraining the 1st, 2nd, 3rd, 4th and 5th Defendants jointly and severally by themselves, their agents, servants and/or privies from recognizing or dealing with, appointing or taking any step towards the appointment and/or installation of the 6th Defendant as the next Oba Olubeshe of Ibesheland in Ikorodu Local Government Area of Lagos State.
6. AN ORDER OF PERPETUAL injunction restraining the 6th Defendant from parading himself as the Oba-Elect, that is, as His Royal Highness; the Oba Olubeshe of

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Ibesheland or from parading himself in that capacity either by wearing the crown or other staff or regalia of that office or performing any rite or function pertaining to the said chieftaincy.

The 1st Respondent equally filed a motion on notice for interlocutory injunction on the same 15-5-2007.

The dispute leading to the commencement of the action relates to the stool of Oba Olubeshe of Ibeshe land in Ikorodu Local Government Area of Lagos State.
Briefly put, the facts as presented by the 1st Respondent as Claimant in the Lower Court was that, following the vacancy in the stool of Oba Olubeshe of Ibeshe Land, it became necessary for the vacancy to be filled by the person qualified in accordance with the native law, customs and traditions of Ibeshe Community to succeed the last reigning Oba Olubeshe, His Royal Majesty (HRM) Oba Ayokulehin Oladele Olaide.

The 1st Respondent was nominated for the stool by the Bisoro Royal Family which is the Ruling House whose turn it was to produce the next Olubeshe of Ibeshe land.

?The 1st Respondent?s nomination was approved and ratified by the Ibeshe Land Committee of Kingmakers and the entire

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Ibeshe people in accordance with the native law custom and tradition of Ibeshe.
Subsequently however, the Appellant herein with the connivance of the 2nd, 3rd and 4th Respondents sought to usurp the said position of Oba Olubeshe of Ibeshe land contrary to the wishes of the Ibeshe people.

This prompted the commencement of the action in the Lower Court with the filing of the writ of summons and other frontloaded processes together with a motion for interlocutory injunction.

The matter came up for the first time before Onigbanjo J. on the 25-5-2007, with counsel for the 2nd to 4th Respondents present in Court, the Learned Trial Judge Ordered the parties in the Suit to maintain status quo as at the 25-5-2007 and the case was adjourned to 26-6-2007 for the hearing of the 1st Respondent?s motion for interlocutory injunction. This was however followed with the news that the Appellant herein has been installed as the Oba of Ibeshe by the 2nd to 6th Respondents.

This also prompted the 1st Respondent to file an application dated 25-6-2007 wherein he prayed the Court for the following Orders:
1. AN ORDER of this Honourable Court setting

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aside the purported installation of the 6th Defendant by the 1st-5th Defendants as the Oba Olubeshe of Ibeshe land on 28th May, 2007 during the pendency of the Claimant?s motion on notice dated 15th May, 2007.
ALTERNATIVELY
2. An Order of this Honourable Court directing the Respondents particularly the 3rd to 6th Defendants i.e the Appellants and the 4th Respondent herein to purge themselves of contempt of this Honourable Court by renouncing the purported installation of the 6th Defendant as the Oba Olubeshe of Ibeshe land on 28th May, 2007 during the pendency of the Applicant?s motion on notice dated 15th May, 2007 in this suit by the 3rd and 6th Defendants swearing into an affidavit renouncing the 6th Defendant?s purported instalment as the Oba Olubeshe of Ibeshe land.

The Appellant as well as the 2nd to 6th Respondents reacted by filing counter affidavits and their written addresses in support wherein they challenged the 1st Respondent?s application.

?The matter this time around had been assigned to Abiru J (as he then was) and after hearing the said application filed by the 1st Respondent together with a notice

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of preliminary objection challenging the competence of the main suit. The Learned Trial Judge in a considered Ruling delivered on 9-10-2008 dismissed the preliminary objection to the suit as well as the 1st Respondent’?s application to set aside the purported installation of the Appellant as the Oba of Ibeshe on the 28-5-2007.

Subsequently, the 1st Respondent applied to the Lower Court for a subpoena ad testificandum to be issued against the Appellant and six other persons. It was also followed with a motion on notice praying the Court for an Order compelling all the seven subpoenaed witnesses to orally testify in the suit in open Court by way of examination-in-chief, cross-examination and re-examination.

The said application prompted the Appellant, the 2nd to 6th Respondents and other persons subpoenaed to apply to the Court by way of motion on notice to revoke/set aside the writs of subpoena.
A total of six applications were argued before the Lower Court and in a Ruling delivered on 20-4-2009 the Learned Trial Judge dismissed all the five applications challenging the issuance of the writ of subpoena but granted the 1st Respondent’s

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application for the subpoenaed witnesses to testify orally before the Court.

Aggrieved with the outcome of the said Ruling the Appellant herein, filed a notice of appeal with six grounds of appeal on the 4th May 2009.

Briefs of argument were subsequently filed and served by the parties who also adopted same at the hearing of the appeal on the 16-3-2016.

In the Appellant’s brief of argument settled by Chief K. A. Akinyele, five issues were formulated for determination as follows:-
3.01 Whether the Learned Trial Judge was right by resorting to the invocation and application of the provision of  Section 2 of the High Court of Lagos State (Civil Procedure) Law, 2004 when he held that there is no provisions for the ways and manner and the procedure to be adopted in taking the written deposition of a perceived hostile witnesses who has been served with subpoena despite the provision of Order 32 Rule 16 & 17 of the High Court (Civil Procedure) Rules, 2004.
3.02 Considering the claims/reliefs claimed by the Claimant and the pleadings of parties and the fact that the issue of whether the purported installation of the 6th

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Defendant/Appellant was done either on the 28/05/2007 as canvassed by the Claimant or on the 10/05/2007 as canvassed by the Defendants having been raised as an issue in an earlier application by the Claimant and same decided and determined by the Lower Court in its Ruling of 9th October, 2007, whether the Learned Trial Judge properly and adequately consider that the only issue arising from the pleadings of the parties was limited to the issue of who between the Claimant/1st Respondent and the 6th Defendant/Appellant was validly and legally nominated and appointed the Oba Olubeshe of Ibeshe land at the trial and that same does not require the perceived evidence of the subpoenaed witnesses to establish.
3.03 Whether the Learned Trial Judge was not in error to have dismissed the motion on notice by way of preliminary objection challenging the jurisdiction of the Lower Court in entertaining the application of the Claimant on the ground of issue estoppel on the matter relating to “when the purported installation of the 6th Defendant as the Oba Olubeshe of Ibeshe land took place, i.e whether same took place on the 28th May, 2007 or on the 10th May, 2007 (since

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the same issue the Claimant intended the subpoenaed witness to establish), which issue had been dealt with decided and determined between the parties in an earlier Ruling of the Lower Court delivered on the 9th October, 2007.
3.04 Whether the Learned Trial Judge is not in error to have arrogated to himself the power to amend the express provisions of the Rules of Court as contained in Order 32 Rule 1(1) & (3) of the Rules that any fact required to be proved at a trial of any action shall be proved by written deposition of witness(es) and that the oral examination of a witness during his evidence in Chief shall be limited to confirming his written deposition only when Trial Judge made Order(s) compelling each of the seven subpoenaed witnesses to attend Court and give oral evidence in the action for the Claimant and that the evidence shall be by way of oral examination in chief, an Order(s) which are in conflict and contrary to the provision of the Rules of Court.
3.05 Whether the Learned Trial Judge was right to have described motion on notice which were seriously opposed by the opposition party by filing counter-affidavit and strong written

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address in opposition as in the instance case, and which was not dealt with immediately and promptly by Honourable Court, but concluded by a dismissal in a well researched Ruling of the Court as been frivolous and spurious applications necessitating the Learned Trial Judge descending on the on the Learned Counsel for bringing such applications by casting on them vituperating comments touching on their competence capacity integrity as counsel in the temple of justice.

The 1st Respondent’s brief of argument settled by A. Oladigbolu Esq and Felix Inalegwu Esq was filed on 25-9-2013 but deemed properly filed and served on 8-11-2013. Therein five issues were also formulated for determination as follows:-
3.01 1 “Whether in the circumstances of the matter before the Court, the Learned Trial Judge was right to have invoked and applied the provisions of Section 2 of the High Court of Lagos State (Civil Procedure) Law, 2004 for the purpose of taking the evidence of perceived hostile witnesses whose written depositions cannot be practically taken in accordance with the then provisions of the High Court of Lagos State (civil procedure) Rule

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2004.”
3.02 2 “Whether the earlier interlocutory Ruling of Hon. Justice H.A.O Abiru (as he then was) delivered on 9th October, 2008 (at pages 285 to 296 of the record of appeal) has created issue estoppel to precludes the Claimant (1st Respondent herein) from leading necessary evidence at the trial, on the installation procedure as well as on where, when and how the purported installation of the 6th Defendant (Appellant herein) was done, either on the 28th day of May, 2007 or 10th day of May, 2007 vide the eye witnesses that witnessed the purported installation.”
3.03 3 “Whether the Learned Trial Judge was right in its Ruling of 20th April, 2009 to have Ruled that in the circumstances of the case before the Court, the doctrine of issue estoppel cannot be invoked against the Claimant’s application to subpoena necessary witnesses in respect of his case and as such; dismisses the 1st to 3rd Defendants’ motion on notice by way of preliminary objection challenging the jurisdiction of Court in entertaining the application of the Claimant on ground of issue estoppel.”
3.04 4 “Whether in the circumstance of

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this case, the Order of Court compelling each of the seven (7) subpoenaed witnesses by the Claimant to attend Court and give evidence in the action for the Claimant by way of oral examination in chief as held in the Ruling of the Learned Trial Judge on 20th April, 2009 amounted to an amendment of the provisions of the Rules of the Court in respect of obtaining testimony of persons under subpoena.”
3.05 5 “Whether the Learned Trial Judge was right to have frowned at, and or challenged the Defendants’ counsel for bringing and or filing frivolous, vexatious and spurious applications which were unnecessary before the Court.”

The 2nd to 6th Respondents did not file any brief of argument. Except for grammatical differences, the five issues formulated by the parties are conually similar.

It will however be more convenient to adopt the issues in the Appellant’s brief for the consideration of this appeal.

ISSUES NO 1 AND 4
Dwelling on both issues together Learned Counsel for the Appellant referred to Order 32 Rules 1 (1) & (3)   16 and 17 of the High Court of Lagos State (Civil Procedure) Rules, 2004 to submit

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that Rule 16 enables a party to a suit to apply to the Court for the issuance of a subpoena ad testificadum and duces tecum but Rule 1 (1) requires that any fact to be proved at the trial shall be by written deposition and oral examination of witnesses in open Court while Rule 1 (3) provides that oral examination of witness during his evidence in chief shall be limited to confirming his written deposition and tendering in evidence all documents the witness intends to rely upon and referred to in the deposition.

He added that by Order 32 Rule 16 a subpoenaed witness whether friendly or hostile is required to appear before an officer of the Court or other person so appointed to take examination of the subpoenaed witness for the purpose of placing the evidence of the said witness in a affidavit form that will be used in any proceeding and the said witness subjected to cross-examination.

?It was then contended that the Learned Trial Judge ignored or failed to apply the provisions of Order 32 Rule 16 by holding that there is no provision in the Rules for the way and manner or the procedure to be adopted in taking the written deposition of a perceived

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hostile witness who has been served with a subpoena when infact Rules 16 and 17 covers the situation and ought to be complied with.

Learned Counsel further submitted that the failed appearance initially before an officer of the Court or otherwise as prescribed by the Rules renders them incompetent witnesses because no written deposition of the proposed evidence had been front loaded. He also argued that the Learned Trial Judge was in error to have granted the 1st Respondent?s application by invoking the provisions of Section 2 of the High Court of Lagos State (civil procedure) Law, 2004 while ignoring the mandatory provisions of Order 32 Rule 1 (3) of the Rules. He added that the Court is bound to apply the law and not to amend or depart from it as was done in the instant case and which ought to be set aside by this Court.

?Responding on both issues in their own issues 1 and 4, Learned Counsel for the Respondent noted that both issues centres on the proper construction or interpretation of the provisions of Order 32 of the High Court of Lagos State (civil procedure) Rule 2004 especially as relating to how, where and when to obtain the evidence of

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a subpoenaed witness and also whether the Rules made adequate provisions for same or recourse could be made to Section 2 of the High Court of Lagos State (civil procedure) Law, 2004.

Reference was then made specifically to Order 32 Rule 1 (1) Order 32 Rule 1 (3), Order 32 Rule 16; and Order 32 Rule 17 and 18. He also referred to paragraphs (h) to (l) of the affidavit in support of the 1st Respondent?s motions on notice dated 23-2-2009 as well as the Ruling of the Lower Court at pages 360 to 361 of the Record. It was then submitted that a community reading of the relevant statutory provisions and the Rules of Court clearly show that the Lower Court is vested with the discretionary power to do substantial justice, moreso that the aforementioned Rules did not specifically provide for the procedure to be adopted in taking evidence of a subpoenaed witness perceived to be a hostile witness, hence the resort to Section 2 of the High Court (Civil Procedure) Laws by the Lower Court.

Learned Counsel further contended that the Ruling of the Lower Court on the procedure to be adopted for taking the evidence of a perceived hostile witness on subpoena is

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consistent with Order 32 Rule 2.

Now, the relevant Rules in contention are Order 32 Rules 1(1) & (3) Order 32 Rule 2, 16 and 17 of the High Court of Lagos State (Civil Procedure) Rules, 2004 and they are herein below set out:-
Order 32 Rule 1 (1): ?subject to these Rules and to any enactment relating to evidence any fact required to be proved at the trial of any action shall be proved by written deposition and oral examination of witnesses in open Court.
Rule 1 (3): ?The oral examination a witness during his evidence in chief shall be limited to confirming his written deposition and tendering in evidence all disputed documents or other exhibits referred to in the deposition.?
Rule (2) (1): A Judge may, at the trial of an action, Order or direct that evidence of any particular fact be given at the trial in such manner as may be specified by the Order or direction.?
Rule 16: ?A party may by subpoena ad testificandum or duces tecum require the attendance of any witness before an officer of the Court or other person appointed to take the examination, for the purpose of using his evidence upon any proceeding

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in the cause or matter in like manner as such witness would be bound to attend and be examined at the hearing or trial; and any party or witness having made an affidavit to be used in any proceeding in the cause or matter shall be bound on being so subpoenaed to attend before such officer or person for cross-examination.
Rule 17 ?The practice with reference to the examination and re-examination of witness at the trial shall extend and be applicable to evidence taken in any cause or matter at any stage.?

The above sets out provisions of the relevant Rules are to my mind, clear and unambiguous. By Order 32 Rule 1 (1) any fact required to be proved at the trial of any action shall be proved by a written deposition and oral examination of witnesses in Court by Rule 1 (3) any witness at the hearing of a matter is required during his evidence in chief to only confirm his written deposition and tender in evidence all disputed documents as well as other exhibit referred to in the written deposition, this will then be followed by cross-examination and re-examination where the need arises.

?The main point of divergence between the parties

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however is the interpretation and implication of Order 32 Rule 16 which relates to a subpoenaed witness ad testificandum. For the Appellant, Order 32 Rule 16 adequately provides for the manner such a subpoenaed witness, (whether willing or hostile witness) should testify at the trial of case which is by way of a written deposition first made before an officer of the Court or before a person appointed to do so for use at the proceeding. Therefore the Learned Trial Judge was wrong to have granted an Order directing the Appellant and other subpoenaed witnesses to give oral evidence in chief and also to be cross-examined accordingly, by placing, reliance on Section 2 of the High Court of Lagos State (Civil Procedure) Law, 2004.

?The prayers sought by the 1st Respondent in the motion on notice filed on 23-2-2009 are as follows:-
(1) An Order of Court compelling each of the subpoenaed witnesses in this matter to wit;
(a) Oba Richard Ogunsanya
(b) Chief Olatunji Bakare
(c) Chief (Mrs) Iyabo Okunsanya
(d) Chief Isola Abudu Ogodo
(e) Mr. Kunle Olusanya and
(f) Mr. Femi Ogbonnikan
…to respectively give oral evidence in this

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action for the Claimant at the trial of this suit.
(2) An Order of Court compelling all the Claimant?s subpoenaed witnesses to orally testify in this matter in open Court by way of examination-in-chief, cross-examination and re-examination.

?In paragraph 3(b) of the affidavit in support of the application, it was clearly deposed that the Appellant herein is the 6th Defendant in the suit in the Lower Court. The true picture and essence of the prayers sought was detailed in paragraphs 3 (h) to (l) of the said affidavit in support of the Appellant as follows:-
(h) the evidence of the subpoenaed witnesses are very germane to the Claimant?s claim and all the subpoenaed witnesses are primarily supporting the Defendants would therefore be hostile and un-cooperative witnesses whose evidence cannot be fully obtained by the Claimant vide written depositions in view of their relationship with the Defendants as well the Defendants? Counsel?s position vide their application in Court dated 21st January, 2009.
(i) It would be necessary and vey pertinent for the Court to watch the demeanours of the subpoenaed witnesses during

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examination-in-chief in the witness box as it would aid the justice of this case.
(j) The new Lagos State High Court (Civil Procedure) Rule, 2004 did not categorically state that subpoenaed witnesses cannot give evidence orally in an open Court under examination-in-chief by the party that applied for the subpoena of the said witness(es).
(k) Subpoenaed witnesses, upon being subpoenaed become Court?s own witness(es) and should be questioned and or examined in an open Court.
(i) In view of the nature, form and con of the issues that are in contention in this matter and in respect of which the aforestated witnesses are subpoenaed witness(es); interest of justice would be served if the subpoenaed witnesses in this matter are allowed and directed to orally testify in open Court by way of examination-in-chief, cross-examination and re-examination.

The Learned Trial Judge in his well detailed Ruling as contained in pages 360 to 361 of the Record held as follows:-
The Claimant desires this Court to direct a departure from this manner of giving evidence and to Order the parties on subpoena to attend Court and give their

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evidence-in-chief orally without filing any written deposition. The Claimant prediered the request on the facts that these persons were supportive of the case of the Defendants and would be hostile and un-cooperative witnesses whose testimony cannot be fully elicited by the means of written depositions and that it would be necessary for the Court to watch the demeanour of these persons during their testimonies. These depositions were not denied or challenged by any of the parties in their counter affidavit to the application. In fact the sixth Defendant affirmed the depositions in paragraph 5 of his counter affidavit where he stated that prior to the service of the subpoena ad testificandum on him neither the Claimant nor his Counsel approached him to be witness and that if he had been so approached he would not have consented to give evidence. Similarly, in paragraph 4 of the affidavit in support of their motion, Chief Olatunji Bakare, Chief Isola Abudu Ogodo and Chief (Mrs.) Iyabo Okunsanya stated that if the Claimant had approached them to give evidence on his behalf, none of them was willing and prepared to give such evidence.
Now reading through the

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entire provisions of the Rules of Court, there are no provisions for the way and manner and the procedure to be adopted in taking the written deposition of a perceived hostile witness who has been served with a subpoena. Order 32 Rule 16 and 17 of the Rules do not cover the situation. Section 2 of the High Court of Lagos State (civil procedure) Law states that ?where a matter arises in respect of which no adequate provisions are made in the Rules, the Court shall adopt such procedure as will in its view do substantial justice between the parties concerned.? Also, Order 32 Rule 2 of the High Court Rules says, that notwithstanding the evidence-in-chief was to be by written deposition, a judge may, at or before the trial in such manner as may be specified by the Order, or direction. Further, it is trite that Rules of the Court are regulations made to assist the Court in its effort to determine issues or controversies before the Court and care must be exercised in Order to avoid the elevation of Rules of Court to the status of a statute because Rules of Court are subsidiary instruments. Consequently, Rules of the Court are to be used by the Courts to

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discover justice and not to hamper the actualization of justice. In other words, Rules of Court are not sine qua non in the just determination of a case and therefore not immutable ? BROAD BANK OF NIGERIA LTD VS OLAYIWOLA & SONS LTD (2005) 3 NWLR (PT 912) 434, and OSIFO VS OKOGBO COMMUNITY BANK LTD (2006) 15 NWLR (PT 1002) 260.
What all these add up to is that, in the circumstances of this case, this Court possesses the power to direct or Order that the testimony of the persons under subpoena be given by other means other than by the use of written depositions. It is discretionary power. It is trite that where a Court is called upon for the exercise of its discretion, the Court must properly do so not only judicially but also judicially. A proper exercise of judicial discretion must be done according to law and not humour. It is not to be arbitrary, vague and fanciful, but legal and regular. All judicial discretion must be exercised according to common sense and according to justice as dictated by the peculiar facts and circumstances of a case ? ASSURANCE FORENINGEN SKULD (GJENSIDIG) VS MV SEALION (EX ?ANTIBES?) (2006) 5 NWLR

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(PT 973) 286 and ADEOGUN VS FASHOGBON (2008) 17 NWLR (PT 1115) 149. Looking at the entire facts deposed to by the parties and by some of the persons served with subpoenas on their respective applications and at the circumstances and issues in this matter, it is the view of this Court that the Claimant has placed before the Court facts necessary, explicit, adequate and sufficient to bring his requests within the classes of cases in which the Court may exercise its direction in his favour. The application of the Claimant thus succeeds and will be granted.

The above set out portion of the Ruling of the Lower Court adequately dealt with the issue in contention with regard to whether in the circumstance the grant of the 1st Respondent?s application was right and in accordance with the Rules of Court aforestated.

Firstly, I must emphasise that Order 32 Rule 2 (1) should not be underplayed with regard to the power of the Lower Court to make the Order as prayed.

I am therefore inclined to reproduce same again and it reads thus:-
Order 32 Rule 2 (1) ?A Judge may , at or before the trial of an action, Order or direct that evidence of any

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particular fact be given at the trial in such manner as may be specified by the Order or direction.?

The same Order 32 which in Rule 1 Subrules (1) and (3) prescribed that a witness shall testify in a trial by way of written deposition also in Rule 2 Subrule (1) confers on the Trial Judge the discretion to Order or direct that evidence of any particular fact be given at the trial in such manner as the Trial Judge may specify in the Order or direction.

In the instant case, the 1st Respondent had applied for the subpoenaed witnesses to testify in Court by way of oral examination, cross-examination and re-examination and deposed to facts justifying the application in the supporting affidavit which facts, from the findings of the Lower Court were not controverted or challenged by the Appellant?s counter affidavit. It was further shown that the Appellant in paragraph 5 of his counter affidavit deposed inter alia that if he had been approached by the 1st Respondent he would not have consented to give evidence on his behalf.

The Learned Trial Judge thus relied on the provisions of the said Order 32 Rule 2 (1) as well as Section 2 of the

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High Court of Lagos State (Civil Procedure) Law to exercise his discretion in favour of granting the application, all in a bid to ensure that substantial justice is attained in the matter.

The said Section 2 provides that:-
“Where a matter arises in respect of which no adequate provisions are made in the Rules, the Court shall adopt such procedure as will in its view do substantial justice between the parties concerned.”

The Appellant’s Counsel also challenged the Lower Courts reliance on the said provision on the ground that the Rules adequately provided in Order 32 Rule 16 on how a subpoenaed witness whether hostile or not should give evidence in Court, which is by way of written deposition.

As much as I agree that Order 32 Rule 16 prescribed the manner in which a subpoenaed witness will testify in Court, the said provision did not however envisage the situation of a clearly professed hostile witness as in this case. In the circumstance, it can safely be stated that the Rules did not make adequate provisions to cover such a scenario where a subpoenaed witness had not only applied to set aside the subpoena but also

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deposed in the counter affidavit as to his unwillingness to testify which makes it virtually impossible to extract a voluntary written deposition from him for the purpose of satisfying the requirements in Order 32 Rule 16 in which case the justice of the case demands that he be compelled via subpoena ad testificandum to testify orally in Court.

The Learned Trial Judge can therefore rightly be held to have exercised his discretion judicially and judiciously in which case an appellate Court will not easily interfere. See ANYAH VS AFRICAN NEWSPAPERS OF NIGERIA LTD (1992) 7 SCJN 47; AJOMALE VS YUDUAT (1991) 5 SCNJ 172; UNIVERSITY OF LAGOS VS AIGORO (1985) 1 NWLR (PT 1) 143. The appellate Courts are always reluctant to interfere with the exercise of the discretion by a trial Court in the absence of proof that it was wrongly exercised. There is no hard and fast Rule guiding the exercise of discretion by a Court and the reason is not far fetched. It is to ensure that the power of discretion is not unduly fettered. See ADELEKE VS ASERIFA (1990) 5 SC (PT 1) 104; EFETIROROJE VS OKPALEFE II (1991) 5 NWLR (PT 193) 517.

On the whole, Section 2 of the High Court

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of Lagos State (Civil Procedure) Law can be said to have been rightly invoked by the Learned Trial Judge, given that the Rules under consideration did not make adequate provisions to cover the case as presented by the 1st Respondent.

What is more, the extant High Court of Lagos State (Civil Procedure) Rules, 2012 has adequately taken care of the issue in contention by filling the lacuna inherent in the 2004 Rules.
Order 32 Rule 1 (4) provides thus:-
?The oral examination of a witness during his evidence in chief shall be limited to confirming his written deposition and tendering in evidence all disputed documents or other evidence referred to in the deposition provided, that a judge may allow a witness on subpoena to lead oral evidence in examination-in-chief without having sworn to written statement in appropriate cases.?
The proviso above-stated now expressly confers on the Judge the discretion to allow a witness on subpoena to lead oral evidence in examination-in-chief without the necessity for a prior written and sworn deposition.

?Therefore, in addition to my earlier stance that the Learned Trial Judge rightly invoked

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Section 2 of the High Court of Lagos State (Civil Procedure) Law in filling the lacuna inherent in the 2004 Rules with regard to a witness on subpoena. It is worthy to also mention that the new High Court of Lagos State (Civil Procedure) Rules, 2012 has now taken care of the inadequacies in the 2004 Rules. The said 2012 Rules incidentally shall now apply to the proceedings in the Lower Court as per the hearing of the main suit if it is still pending.

In the final result, the two issues are hereby resolved against the Appellant.

ISSUES 2 AND 3
Dwelling on this issue, learned counsel for the Appellant analysed the principle of law as relating to Estoppel and the two main types of estoppel. These are estoppel per rem judicatam and issue estoppel and pointed out that the latter applies in the instant case

Learned counsel then referred to the 1st Respondent’s motion on notice dated 25-6-2007, the Appellant’s counter affidavit and written address, the Appellant’s notice of Preliminary Objection opposition to it as well as the Ruling of the Lower Court dismissing the said motion on notice together with the Appellant’s

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Preliminary Objection challenging the competence of the Suit. The said Ruling was delivered on 11-10-2009.

Reference was also made to the 1st Respondent’s motion on notice dated 23-2-2009 as well as the counter affidavits filed by the opposing parties and particularly the motion on notice dated 5-3-2009 filed by the 2nd to 4th Respondents challenging the jurisdiction of the Lower Court to entertain the 1st Respondent’s application on grounds of issue estoppel and which objection the Lower Court also dismissed notwithstanding it’s earlier holding on the same issue in the Ruling delivered on 9-10-2008. It was then submitted that the holding of the Learned Trial Judge to the effect that the doctrine of issue estoppel cannot be invoked in the same case but in a different case is not the correct statement of the law given the authority of the Supreme Court in AMOS AGBESUSI ARO VS SALAMI FABOLUDE (1983)2 SC 75 at 100-102 where a number of other cases were also referred to. He further cited in support, the following cases:-
Y.A. LAWAL VS CHIEF YAKUBU DAWODU & ORS (1972) ALL NLR (PT 2) 270; EBBA VS OGODO (2000) 10 NWLR (PT 827) 189.

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He argued that the issue of the date of installation of the Oba Olubeshe of Ibeshe having been resolved in the Ruling delivered on 9-10-2009, the 1st Respondent is estopped from raising the issue again even in the same suit. Therefore the Lower Court erred in holding that the doctrine of issue estoppel does not apply to the same matter or suit because parties cannot be allowed to canvass the same issue again. This Court was then urged to set aside the said Ruling of the Lower Court.

Replying on both issues in their own issues 2 and 3, learned counsel for the 1st Respondent referred to the case of OYEDE VS OLUSESI (2005) 39 WRN 157 where the preconditions for a valid plea of issue estoppel or estoppel inter-parties are listed as follows:-
(a) The same question must be determined in both proceedings (that is to say that the question for decision in the current suit must have been decided in an earlier proceeding)
(b) The decision relied upon to support the plea of issue estoppel must be final, and
(c) The parties or their privies must be the same which means that the parties involved in both proceedings must be the same.

Other

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authorities cited in support include, FADIORA VS GBADEBO (1978) SC 291 AT 228 OYEROGBA VS OLAOPA (1998) 12 SCNJ 115 AT 129, ITO VS EKPE (200)3 NWLR (PT 650) 678 and EBBA VS OGODO .

It was then submitted that from the authorities referred to, it is clear that for issue estoppel to apply:-
(a) There must be two different and distinct suits
(b) The question the Court is invited to determine in the subsequent suit had earlier been resolved in the previous suit and
(c) The decision in respect of such question in the previous suit must be final. All the three features respectively must be present concurrently before the plea of issue estoppel can stand.

Learned counsel submitted that what was in issue in the interlocutory Ruling of 9-10-2008 that form the basis for the Appellant?s contention was the 1st Respondent?s motion on notice praying the Court to aside the purported installation of the Appellant by the 2nd ? 4th Respondents as Oba Olubeshe of Ibeshe on 28/5/2007 during the pendency of a motion on notice dated 15-5-2007 and alternatively for an Order on the Appellant and the 2nd to 4th Respondents to purge themselves of

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contempt of the Court.

He added that the Learned Trial Judge delivered a Ruling on the said application wherein a finding was made that the 1st Respondent needed to establish that the installation of the Appellant was done on the 28-5-2007 in Order for the application to be granted.

But sequel to another application for an Order directing the subpoenaed witnesses to give oral evidence in Court, the 2nd to 4th Respondents via a motion on notice in the nature of a preliminary objection challenged the 1st Respondent?s application on the ground of issue estoppel and the Court in a Ruling delivered on 20-4-2009 dismissed the said motion on notice on the ground that the doctrine of issue estoppel does not avail the 2nd to 4th Respondents.

Learned counsel then submitted that given the laid down condition for the doctrine of issue estoppel to apply. It follows that the interlocutory Ruling delivered by the Lower Court on 9-10-2008 did not give rise to an issue estoppel as to preclude the 1st Respondent from leading evidence as necessary in the substantive suit dealing with the installation procedure as well as where, when and how the purported

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installation of the Appellant was done either on 28-5-2007 or on the 10-5-2007.

On the argument that issue estoppel does not apply in the same suit, he cited the case of INAKOJU VS ADELEKE (2007)1 SC (PT 1) page II.

Also relying on the case of OYEDE VS OYELUSI (2005) 35 WRN 157 he submitted that the Ruling of the Lower Court on the 9-10-2008 is interlocutory and not final.

He also submitted that out of the five issues in contention in the Ruling of 20-4-2009 only one of them seem to have been dealt with in the earlier Ruling of 9-10-2009 and this was also confirmed by the Lower Court while refusing to uphold the issue estoppel.

Further citing the case of FIDELITAS SHIPPING CO. LTD. VS V/O EXPORTCHIED (1966) 1 Q.B. 630 AT 640 and followed by the Supreme Court in AMOS AGBESUSI ARO VS SALAMI PABOLUDE (1983)1 SC 75 at 100 he submitted that the doctrine of issue estoppel will not apply in special circumstances as was in the case of SHANU VS AFRIBANK (2002)6 S.C. (PT 1) 135 AT 150-151.

Fourthly, it was submitted that the invocation of the issue estoppel at this interlocutory stage of the proceeding which proceeding the main trial is not only

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premature but also pre-emptory of the Appellant to determine the evidence to be given by the subpoenaed witnesses when they are yet to appear in Court. Therefore it is only when the subpoenaed witnesses testifies as to the issue whether the installation was on the 10th or 28th that objection could be raised on the issue.

This Court was then urged to affirm the Ruling of the Lower Court on the issue.

The condition precedent to the application of issue estoppel is based on the principle of law that a party is precluded from contending the contrary of any specific point which having been once distinctly put in issue has with certainty been determined against him. See BWACHA VS IKENYA (2011)3 NWLR (PT 245) 610. Where the elements necessary for determining whether issue estoppel will be applicable were listed as follows:-
(a) Whether the parties in the previous proceedings and the current proceedings are the same.
(b) Whether the issues are material to the cause of action in the previous and in the latter case and
(d) Whether the issue has been resolved in the previous case.
See also IKENI VS EFAMO (2001)10 NWLR (PT 720)1; EBBA VS OGODO

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(2000) 10 NWLR (PT 675) 387, INAKOJU VS ADELEKE (2001) 1 SC (PT 1) page 1 at 127.

In the instant case, the Lower Court in resolving whether issue estoppel is applicable relied on the Supreme Court case of ADEDAYO VS BABALOLA (1995) NWLR (PT 408) 383 and INAKOJU VS ADELEKE (2007)4 NWLR (PT 1025) 423 to hold that issue estoppel cannot be invoked in the same case but in a different or subsequent case. Secondly it held that it did not determine the issue of when the Appellant was installed as Oba Olubeshe of Ibeshe Land and the venue for the installation in the Ruling delivered on 9-10-2008 which the 2nd to 4th Respondents relied on in raising issue estoppel. For purposes of clarity I herein below set out the relevant portion of the Ruling of the Lower Court at page 356 to 357 of the Record, it reads:-
“The first to the third Defendants predicated their reliance on issue estoppel on the Ruling of this Court delivered on the 9th of October, 2008. These present proceedings are a continuation of the same case in which the Ruling was delivered and it is not a different case. The law as laid down by the Supreme Court is that the doctrine of issue

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estoppel cannot be invoked in the same case but in a different case. It is only in that circumstance that the first case, in appropriate circumstances, acts as issue estoppel against the second one. The Supreme Court stated that issue estoppel cannot apply on appeal in the same case and this is because the nature of the appellant process involves one single case not two cases and issue estoppel is built in one case against another case where the necessary ingredients are present ? Adedayo Vs Babalola (1995) 7 NWLR (PT 408)383 and Inakoju Vs Adeleke (2007) 4 NWLR (PT1025)123 at 631 D-G. The doctrine of issue estoppel is thus not available to the first to the third Defendants in the circumstances.
Even assuming that the principle was available to the first to the third Defendants, in the Ruling of 9th of October, 2008 relied on by them, this Court only stated thus on the issue of the date or installation of the sixth Defendant as Olubeshe of Ibeshe:
?On an evaluation of the evidence led by the parties on this application, the evidence led does not preponderate in favour of the Claimant?s assertion that the sixth Defendant was installed

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on the 28th of May, 2007 as against the assertion of the first the third and the sixth Defendants that the installation took place on the 10th of May, 2007. The Claimant needed to establish that the installation of the sixth Defendant took place on the 28th of May, 2008 in Order for him to succeed on this application. The Claimant did not discharge this onus by credible evidence and this Court cannot thus exercise its disciplinary jurisdiction in his favour.”
This was all the Court stated on the issue. The Court did not make any statement in respect of the place of installation of the sixth Defendant as the Olubeshe. The issues of when the sixth Defendant was installed as the Olubeshe of Ibeshe and the place of his installation were not determined by this Court in the Ruling of the 9th of October, 2008. Thus, the doctrine of issue estoppel is not applicable in this case. The motion on notice by way of a preliminary objection is totally misconceived and devoid of any merit and it, with respects to Counsel, shows a lack of proper understanding of the concept of issue estoppel. It will be dismissed by the Court.

A careful review of the above set

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out Ruling of the Lower Court show that it was well grounded in law given the authorities of the Supreme Court relied upon. Further authorities include UDO VS OBOT (1981)1 SC (PT 1)64 where the Supreme Court held that issue estoppel will only arise in a subsequent suit when that issue had been raised and distinctly determined in a previous suit between the parties. See also LAWAL VS DAWODU (1972)1 ALL NLR (PT 2) 270; LADEGA VS DURO SIMI (1978)3 SC 82; IKOTUN VS OYEKANMI (2008)4 SCNJ 377; OJO VS OLAWORE (2008)6-7 SC (PT II)54; OKWUKWUJE VS AKWIDO (2001)25 SCM 113. However in ARO VS FABOLUDE (1983) ALL NLR 67 the Apex Court was equally of the view that once an issue has been raised and distinctly determined between the parties, then as a general Rule, neither party can be allowed to fight that issue all over again. The same issue cannot be raised by either of them again in the same or subsequent proceedings except in special circumstances. See also ADONE VS IKEBUDU (2001)7 SC (PT III) 22. Nonetheless, what is germane in the instant case is whether the issue sought to be estopped was raised and distinctly determined by the Lower Court in the interlocutory Ruling

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delivered on 9-10-2008.

For the Appellant, the Ruling was conclusive on the issue that the date of installation of the Oba Olubeshe of Ibeshe was not proved by the 1st Respondent to be 28-5-2007.

The Lower Court however in its Ruling of 20-4-2009, after making reference to its decision in the said Ruling of 9-10-2008, emphatically held as follows at page 357 of the record:-
“The Court did not make any statement in respect of the place of installation of the 6th Defendant as the Olubeshe. The issue of when the 6th Defendant was installed as the Olubeshe of Ibeshe and the place of installation were not determined by this Court in the Ruling of the 9th October, 2008. Thus, the doctrine of issue estoppel is not applicable in this case. The motion on notice by way of preliminary objection is totally misconceived and devoid of any merit and it, with respects to counsel shows lack of proper understanding of the concept of issue estoppel. It will be dismissed by this Court.”

Going through the said Ruling of 9-10-2008, I cannot but agree with the holding of the Lower Court, that the issue of place and date of installation were not

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distinctly determined therein. That decision of the Lower Court, to my mind, remains unimpeachable and I do not see any justification to hold a contrary view that the doctrine of issue estoppel is not applicable in the instant case both on the basis of the authorities earlier cited and on the ground that the issue so raised as constituting estoppel was not distinctly determined by the Lower Court in its Ruling delivered on 9-10-2008.

Issues 2 and 3 are according resolved against the Appellant.

ISSUE 5
Herein, learned counsel for the Appellant submitted that the commentary of the Learned Trial Judge as shown in the Ruling at page 361 of the Record is unnecessary and borders on intimidation and disparagement of counsel. He added that it was uncalled for, for the Learned Trial Judge to further cast vituperating comments on the competence and integrity of the counsel. Moreso that it is normal of a person served with a subpoena to move the Court to set it aside and such instances exist in the law reports and should not be regarded as frivolous, unnecessary and spurious. Responding on the issue, learned counsel for the 1st Respondent submitted that

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counsel who are ministers in the temple of Justice have the duty to assist the Court in ensuring that cases are decided expeditiously by refraining from bringing unmeritorious and vexatious applications aimed at protracting a matter and failure to do so can attract comments by the Court. He added that though a party served with subpoena has the right to file an application to set it aside, such right can only be exercised upon cogent grounds but in the instant case the applications were found by the Lower Court to be frivolous, vexatious and lacks credence, hence the need to frown at such applications filed by the counsel for the defendants.

Well, I am not unaware of the age long admonition by the Apex Court to the effect that judges should not lose their temper with counsel or litigants no matter how irritable they may be so that the composure required to administer justice may not depart from the temple of justice. See OBIORA VS OSELE (1989)1 NWLR (PT 97) 297; and OKODUWA VS THE STATE (1988)2 NWLR (PT 76) 333. That however with due respect seem not to be the situation in the instant case. A perusal of the comment by the Learned Trial Judge which apart

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from being an obiter dicta presents the picture of an admonition couched in strong terms but devoid of intent to denigrate, abuse or intimidate counsel whose duty is both to his client and to the Court in ensuring that due and acceptable system of administration of justice is attained.

This is my humble view and it finds support in the postulation by Lord Denning in the case of RONDEL VS WOLSLEY (1967)1 Q.B. 443 also cited in the Ruling by the Learned Trial Judge.

The Bar and the Bench constitute the legal profession and they must work together in harmony and mutual respect in an atmosphere devoid of suspicion or apprehension with the enviable aim of uplifting our judicial system which is the only consistent and dynamic agency for the enthronement of Rule of law in our society.

I am however reluctant to interfere with the view expressed by the Learned Trial Judge whose commentary made obiter, may be termed strong but it is devoid of any inherent absurdity.

On the whole, I find this appeal to be unmeritorious and it is accordingly dismissed.

The Ruling of the High Court of Lagos State, Ikorodu Division delivered by H.O. Abiru J. on the

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20th April, 2009 is hereby affirmed. It is further ordered that the substantive suit should be given accelerated hearing having been commenced since 2007.
Parties to bear their costs.

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Other Citations: (2016)LCN/8721(CA)