Timothy Adeilo Adefulu & Ors V. Chief O.o. Okulaja & Ors (1998)

LAWGLOBAL HUB Lead Judgment Report

BELGORE, J.S.C.

The applicant, Timothy Adeilo Adefulu prays as follows:-
“(a) An order setting aside the judgment of this Honourable Court delivered on the 13th day of December, 1996 as there was a fundamental defect which goes to the issue of jurisdiction and competence of the court on the day when the appeal was heard and the said judgment was delivered.
(b) FURTHER, OR IN THE ALTERNATIVE, an order that the said judgment is a nullity by reason of the fact that the adjudicating tribunal was not constituted in such a manner as to secure its independence and impartiality in view of the subject matter and antecedents of the suit and the nature of the inquiry the Supreme Court was called upon to conduct.
(c) FURTHER, AN ORDER that the said appeal be restored to the cause list and the appeal against set down and heard de novo before a panel of justices so constituted as to exclude the Justices (Ogundare and Onu, J.J.S.C.) whose participation has rendered the judgment  complained of null and void.
(d) SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make.
(e) AND FURTHER TAKE NOTICE that at the hearing of this application the applicant will rely on the unreported judgment of the Court of Appeal No. CA/1/122/85 dated 25 June, 1987 and that of the Supreme Court reported in (1989)5 NWLR (Pt.122) 377 as well as and in particular, the supporting affidavit to this application.”
On its face, one would wonder if Justices of this Court, while in the Court of Appeal heard and decided a matter and when an appeal against their decision in the Court of Appeal came up in the Supreme Court they participated and wrote the lead and concurring judgments. If this were to be the case, and with the Justices  concerned being aware of their involvement in the same matter in the Court below, it would certainly have been a travesty of justice. It is therefore pertinent that all the facts be set out so that the mischief in this application will be clearly shown.
To this application are annexed two judgments, one delivered at the Court of Appeal, Ibadan Branch on the 25th day of June 1987 (Coram: Omo, Ogundare and Onu, J.J.C.A. as they then were), the appeal was in respect of a judgment of the High Court of Ogun State (Sofolahan. J.); the other is a judgment of this Court, delivered on 13th day of December. 1996 (Coram: Belgore. Kutigi. Ogundare, Mohammed and Onu, J.J.S.C.). Looking at the parties and the titles of the cases, one will easily be taken in that the judgment of 25th day of June, 1987 was the one that found its way on appeal to the Supreme Court and decided on 13th day of December, 1996. The truth is that for all the semblance in titles and parties they are two distinct and separate cases. The appeal decided on 25th day of June, 1987 was in respect of the decision of Sofolahan, J. at Sagamu, dated 13th day of February, 1985 and after it was decided by the Court of Appeal it went to the Supreme Court and decided there on 8th December, 1989. The Supreme Court number is SC.5/1988 and the Court of Appeal number is CA/I/122/1985. The judgment of 8th December, 1988 was delivered by a panel of this Court made up of Obaseki, J.S.C, Uwais, J.S.C. as he then was (who read the lead judgment), Saidu Kawu, J.S.C.; Agbaje, J.S.C. and Nnaemeka-Agu. J.S.C. In the judgment of this case SC.51/1988, this Court  explained in its rationes decisis-:
“1. that nomination within the meaning of Chiefs Law (Amendment) Edict No. I of 1971 and the declaration made thereunder especially under its S. 4(2) in regard to the selection of Olofin of Ilishan-Remo is a selection by members of the ruling house concerned to nominate a candidate and only such a candidate or candidates shall be forwarded to the kingmakers;
2. that Agaigi ruling house by its majority vote at its meeting decided rightly on their nomination of candidates for appointment as Olofin of Ilishan-Remo by sending the names to the kingmakers and this is in line with Section 52(a) of Interpretation Law;
3. any purported approval by the governor in the absence of a nomination of a candidate or where a person not nominated by the ruling house has his name included and approved by the Governor, such approval is null and void and of no effect.”
This is the gist of the decision of the Supreme Court. That decision for the purpose of the Constitution was final. [See section 215 of the Constitution of the Federal Republic of Nigeria, 1979). The parties then went home, so to say, to have the procedure for the appointment of Olofin of Ilishan-Remo initiated properly so as to have legally appointed Oba.
However, on 2nd day of June. 1990 by a writ of summons adopted finally in their statement of claim at the High Court of Ogun State, holden at Shagamu, the present respondents as plaintiffs claimed as follows:-
“(a) Declaration that the purported nomination of Timothy Adeilo Adefulu by a splinter group led by Alhaji Lawai Balogun on Monday the 5th day of March, 1990 and the purported appointment of the said Timothy Adeilo Adefulu as the Olofin of Ilishan from Agaigi ruling house are unlawful and therefore null and void.
(b) Injunction restraining the Secretary, Ijebu Remo Local Government from forwarding the name of Timothy Adeilo Adefulu to the Commissioner for Chieftaincy Affairs for approval by the Ogun State Executive Council and the Military Governor of Ogun State from approving the said appointment and the said Timothy Adeilo Adefulu from parading himself as Olofin of Ilishan-Remo.”
After all the parties had filed and exchanged pleadings, they settled issues before Sonoiki, J. as follows pursuant to Order 35 High Court (Civil Procedure) Rules of Ogun State:
“1. Whether it is open to the 1st defendant to be nominated by the Agaigi Ruling House as a person to fill the vacancy in the Olofin of Ilishan Chieftaincy having regard to the judgments in HCS/125/31, CA/ 1/122/85 and SC.5/1988 and the provisions of the Chiefs Law Cap. 20 Laws of Ogun State of Nigeria, 1978.
2. Whether the 2nd defendant was right in inviting fresh nominations from the Agaigi Ruling House after the judgment of the Supreme Court in Suit No. SC/5/1988.
3. Whether the vacancy created in the Olofin of Ilishan Chieftaincy in 1981 as a result of which the Agaigi Ruling House was invited by the Secretary, Ijebu- Remo Local Government in February, 1981 to nominate candidates to fill the vacancy was filled by the 1st defendant and if so whether a new vacancy was created on the 8th of December, 1989.”
To all intent and purposes this was a new cause of action even though connected with Olofin of Ilishan-Remo stool but in a different way. The trial Judge found in favour of the defendants including the applicant before us. The Court of Appeal (this time made up of a panel consisting of Ogwuegbu, J.C.A. [as he then was], Salami, J.C.A. and Danlami Mohammed, J.C.A.) set aside the trial Court’s decision and this decision was the subject of appeal decided here in December, 1996, as appeal No. SC.56/1993 by Belgore, Kutigi,Ogundare. Uthman Mohammed and Onu, J.J.S.C. now subject of this motion.
The mischief of the applicant is in exhibiting the decision of the Court of Appeal in No. CNI/122/1985 of 25th June, 1987 and Supreme Court decision in Appeal No. Sc. 56/1993 decided on 13th December, 1996 as in respect of the same suit, they are not and the parties know this and the applicants are very aware of this. Assuming they are in respect of the same matter, certainly some great injustice must have occured but in the face of S. 215 of the Constitution (supra), it would be a final decision and nothing can be done about it. However, the appeal decision of the Court of Appeal and of this Court exhibited with this application are in respect of separate matters finding their way to this court from the High Court through the Court of Appeal. Had Mr. Sofunde, SAN” who fought the cases for the applicant to this court made this application on behalf of the applicant serious ethical questions would have arisen, but we know the gentleman Sofunde, Esq. is not the one to be involved in this attempt to mislead.
This now takes me to the question pertinent to this motion. When is a judge precluded from hearing a case The answer to this is simple: It is when he has personal interest when he would seem to be a judge in his own matter; or when having dealt with the same issue and it comes or resurfaces when he is in a superior court and is being called upon to decide an appeal against his own decision; or because of some obvious or latent connection of his with either of the parties or  all of them, it would not be conscionable of him to participate in hearing the case or generally his being a member of the tribunal would not appear to be in the interest of justice as he will not be seen to do justice. None of these has been adduced at the hearing of the appeal that culminated in the decision in appeal No. SC.56/1993 and nobody raised any objection. Mr. Adefulu of counsel in this application confirmed he was in court when this court was hearing the appeal even though not as counsel but as a son to the applicant but no objection was raised as to the composition of the court. Had the decision been in their favour would they have raised this big storm in a teacup
As explained earlier, this motion is misconceived as the two cases exhibited are not in respect of the same suit that originated in the trial court – they are two separate cases each originated by a writ of summons followed by pleadings. One was not for interpretation of the other. The first case declared an appointment a nullity; the second also did the same but each was in respect of separate faulty nomination of Olofin of Ilishan-Remo. Several authorities were cited by all the parties – from lroegbu v. Urum (1981) 4 SC 18; Rexv. Sussex Justices (1924) 1KB 256, 257; Ariori v. Elemo (1983) 1 SCNLR 1;(1983) 1 SC 13, 57; Petrojessica Enterprises Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) 675 to Adio v. A-G Oyo State (1990) 7 NWLR (Pt.163) 448 by the applicants and Madukolu v. Nkemdilim (1962) 2 SCNLR 341 and Abiola v. Federal Republic of Nigeria (1995) 7 NWLR (Pt. 405) 1, 14, 15, 16 by the respondents – they are cases not nearly on all fours with the present application in that each concerned judge dealing with the same case unlike this dealing with two distinct cases.
This application, without even alluding to S. 215 of the Constitution is, to say the least, frivolous and is an abuse of this court’s process. I therefore dismiss it with N10,000.00 costs to each set of the respondents.

SC.56/1993