S. Esuruoso & Ors V. Alhaji Afolabi Ambali Ogidi (2002)

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DALHATU ADAMU, J.C.A.

The five (5) appellants herein as plaintiffs sued the respondents’ at the High Court of Ogun State holden at Ijebu Igbo, claiming the following reliefs: .’

(a) The plaintiff’s claims is for a declaration that the 5th plaintiff is the lawfully recognized and regularly installed BASEGUN OF IJEBU-IGBO BRANCH OF OGUN STATE Traditional Healers “Association of Nigeria.

(b) An injunction restraining the Defendant jointly and severally from interfering in any way in the functions and activities of Ogun State Traditional Healers Association or from recognizing the second Defendant as Basegun of Ijebu-Igbo.

(c) An injunction restraining the second Defendant from parading himself as BASEGUN OF IJEBU-IGBO under the Ogun State’s Traditional Healers Association of Nigeria.

Upon being served with the writ of summons and the statement of claim the two defendants/respondents entered appearance and filed a joint statement of defence. Both parties then called their witness in proof of their pleadings during the hearing of the case. At the conclusion of hearing of the parties and their respective counsel the learned trial judge dismissed all the claims of the plaintiffs/appellants (herein after called “the appellants). The appellants who were aggrieved by the judgment of the trial Court lodged an appeal against it in this Court. They perfected all the conditions of the appeal within time.

In their original Notice of Appeal, the appellants filed three (3) grounds of appeal which they later amended with the leave of this Court (without an addition) in order to comply with the provision of Order 3 Rule 2 of the Court of Appeal Act, 1981 (as amended). Both the appellants and the 2nd defendant/respondent (hereinafter also called “the respondent) who survived the 1st respondent after the latter’s demise, have filed their respective briefs of arguments as required under the rules of this Court. Out of their three (3) grounds of appeal, the appellants have formulated the following two (2) issues for determination in their brief of arguments filed on 19/4/2000 which was adopted at the hearing of the appeal:-

“ISSUES FOR DETERMINATION”

1. Whether the 1st – 4th plaintiffs were still the lawfully registered Trustees of Ogun State Traditional Healers Association and if so whether they had the LOCUS STANDI to institute the action
2. Whether the title of “BASEGUN” (Head of Traditional Healers) can be regarded as a minor Chief under the Chiefs Law of Ogun State, 1978, over which the first Defendant is the prescribed Authority.”

In the respondent’s brief filed on 9/3/2001 which was also adopted by his learned counsel the following three (3) issues for determination are framed:

“1. Whether the 1st-4th Appellants had locus to institute the action as constituted.

2. Whether the learned trial judge was right in holding that the 1st Defendant was the prescribed Authority over the Chieftaincy in dispute.
3. Whether the learned trial judge was right in holding that factions existed in the Ogun State Traditional Herbalist Association.”

In the respondent’s brief, the above issues are related to the three (3) grounds of appeal. It is however to be observed that both parties agree on the first two issues (as reproduced above). It is only the 3rd issue of the respondent that differs from or was not raised by the appellants (in their brief). Consequently the immediate question that arises is whether a respondent can still raise an issue not raised by the appellant on the grounds of which has been abandoned by the said appellant (even though such an issue is related to the ground of appeal so abandoned). In answering the question, I have considered the effort of the respondent’s counsel who related all the respondents issues to the grounds of appeal filed in the case (see paragraph 5.00 of the respondent’s brief at page 5) thereof. Thus what the respondent has done in his framing of issues is to revive ground 3 of the grounds of appeal which was abandoned by the appellants’ counsel who framed his issues on only grounds 1 and 2. The law is clear on this type of approach and the respondent’s counsel can, even where there was no cross-appeal or a respondent notice, frame a different issue or different issues from those of the appellant provided that such issues framed by the said respondent are distilled from or are well related to the grounds of appeal filed – See Adeyemo v. Ida (1998) 4 NWLR (pt 546) 504, and Adelaja v. Oguntayo (2001) 6 NWLR (pt 710) 593. It is therefore my humble view that the 3rd (additional) issue of the respondent which covers the field or the ground (ground 3) abandoned by the appellant and which is well related to the said ground and which, also arises from the judgment of the trial court appealed against is quite in order and competent. The third issue of the respondent will consequently be considered in this judgment on its merit bearing in mind that the appellant has not replied to the said third issue by way of filing a reply brief.

The dispute that led to the suit in the present case arose after the 1st defendant, Oba Adetayo Sani Kupa Kude IV, (who is now deceased) as the traditional ruler of Ijebu-Igbo appointed and installed the 2nd defendant (the respondent herein) as the BASEGUN of Ijebu-Igbo (i.e. the head of traditional healers). Before the appointment and installation there was a tussle of leadership amongst members of the Ijebu-Igbo branch of Traditional Healers Association of Ogun State which tussle led to divisions and factions amongst the said members of the association. The deceased traditional ruler then acted by appointing the respondent his own candidate which appointment instead “of bringing an end to the tussle led to the present suit by other members of the association as its registered trustees who wanted the 5th appellant to be installed as the BASEGUN of Ijebu-Igbo.

In the respondent’s brief “preliminary matters” are raised which give the impression that they are meant to be preliminary objections attacking ground two of the grounds of appeal and a fortion issue 2. The respondent urges us at” the end to strike out the said ground and the issue which it is distilled or formulated from the appellants’ brief.

Even though the respondent’s brief does not expressly describe or refer to the preliminary matters as preliminary objection which is recognized under Order 3 rule 15 of the Court of Appeal Rules, 1981 (as amended). I will treat them as such and must first resolve them (if need be) before going into the consideration of the issue formulated for the determination of the appeal. See EZEKWESILE V. ONWUAGBU (1998) 3 NWLR (pt. 54) 217; and “NWANWATER VS. ESUMEI (1998) 8 NWLR (pt.563) 650. I am however of the view that even if the matters raised by the respondent are treated as preliminary objections, they must comply with the rule of this Court dealing with such Objections (i.e. Order 3 Rule 15 (1) of the Rules supra). It is expressly provided in that rule of this court as follows:-