Governor of Ekiti State & Ors. V. Prince James Adeleke Osayomi & Ors. (2004)

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MIKA’ILU, J.C.A.

By way of writ of summons, an action was instituted against the appellants as defendants by the respondents as plaintiffs at Ondo State High Court. The claim against the appellants was for the following:

1. A declaration that from time immemorial and up till time of taking this action, the traditional kingmakers for the selection and appointment of Olosan of Osan are Chief Obalapa, Chief Odojin and Chief Obaoye of Osan.
2. A declaration that the appointment of the 6th defendant Julius Ogunkayo, as a warrant Chief by the 1st defendant, whilst the incumbent holder, Chief Totime Adeoye Obalapa is alive and capable, ready and willing to perform such functions is unwarranted and against the Native Law and Custom of Osan-Ekiti.
3. A declaration that the 1st plaintiff has been duly selected by the majority of the Kingmakers as the Olosan of Osan since 1988 in accordance with the Native Law and Custom of Osan-Ekiti.
4. A declaration that the purported approval by the 1st 3rd defendants of the selection of the 4th defendant Yusuf Babatunde Anisu as the Olosan of Osan-Ekiti as against the Native Law, tradition and custom of Osan, irregular, unconstitutional and therefore illegal null and void.
5. A declaration that the 4th defendant, Yusuf Babatunde Anisu is not a prince by birth hence he is not eligible to the throne of Olosan of Osan Ekiti.
6. An injunction restraining the 4th defendant from presenting himself to anyone for (sic) installation as the Olosan of Osan-Ekiti or performing the duties and or functions of the Olosan or wearing (sic) the regalia of the said Olosan of Osan chieftaincy.
7. An injunction restraining the 1st – 3rd defendants, their agents, servants or their privies from giving any further recognition for the appointment of the 4th defendant as the Olosan of Osan-Ekiti.

The above is as per the writ of summons in suit No.HCJ/20/93. At the trial, five witnesses testified for the respondents/plaintiffs. The case for the defence was not heard. Counsel for the respondents at the end also addressed the trial court while neither the appellants/defendants addressed the court or their counsel. The trial court entered judgment in favour of the respondents as per all the reliefs sought in their writ of summons. The judgment was delivered by Hon. Justice Sir L.B. Awe, Judge, on 18th June, 1998.

The 1st and 2nd defendants/appellants were dissatisfied with the said judgment and therefore filed appeal before this court on five grounds. Likewise the 3rd – 5th defendants/appellants being dissatisfied filed their appeal before this court on seven grounds.

Briefs have been filed and exchanged. When this appeal came up for hearing, the learned Counsel for the 1st and 2nd appellants, A.A. Morakinyo, Deputy Director Civil Litigation, Ekiti State, adopted the brief of argument of the 1st and 2nd appellants deemed filed on 6th November, 2003. The learned counsel for the 3rd – 5th appellants adopted the brief of argument of the 3rd – 5th appellants deemed filed on 6th November, 2003 and their reply brief deemed filed on 22nd April, 2004. The learned Counsel for the respondent, K.B.A. Badmus, Esq., adopted the respondents’ brief of argument to the 1st and 2nd appellants’ brief and respondents’ brief of argument to 3rd – 5th appellants’ brief of argument, both of 4th February, 2004 and 27th January, 2004. There are two appeals in this matter.

In the respondents’ brief of argument to the 1st and 2nd appellants’ brief a preliminary objection has been raised on ground 4 of the grounds of appeal of the 1st and 2nd appellants which reads as follows:

“4. The learned trial Judge erred in law by giving judgment to the plaintiffs on the writ of summons when many claims therein been (sic) destroyed under cross-examination of the plaintiffs’ witnesses.”

The ground for the preliminary objection is that the above ground violates the provisions of Order 3 rule 2(2) of the Court of Appeal Rules, 2002. He avers that it failed to state the particulars and the nature of the error in law alleged as required by the rules of this court. He has contended that this failure renders the ground vague and therefore liable to be struck-out. Similarly, preliminary objection has been raised in respect of ground 3 of the 1st and 2nd appellants’ grounds of appeal on the basis that none of the three issues formulated by the 1st and 2nd appellants in their brief covers the ground. That ground 3 being not covered by an issue is deemed abandoned and should be struck-out. It has been counter-argued by the learned Counsel for the appellants that ground 4 has in plain and comprehensible words revealed all the necessary, relevant and detailed particulars of errors or misdirection complained or alleged. That they are all embodied in the main ground. He has further submitted the relevance of purpose of particulars or details have been adequately met in the main ground as envisaged or intended in the details. He has cited a portion of the ground as follows:

“… When many of the claims therein has been destroyed under cross-examination of the plaintiffs and their witnesses.”

He avers that courts look at substance rather than form. Thus it is the purpose and functions of words employed in the couching of this ground of appeal that is to be considered. He has relied on the Military Administrator of Benue State & 7 Ors. v. Ulegede & 1 Anr. (2001) 17 NWLR (Pt. 741) 194; 202-203 paras. G-B where Karibi-Whyte, JSC stated as follows:

“It seems to me that although the particulars of error or misdirection are usually appended to the grounds in the interest of clarity. The provisions of rule 2(2) merely states that they shall be stated clearly. It follows, however, that as long as the particulars of error or misdirection alleged had been incorporated in the of the ground of appeal, and had been clearly stated in the absence of any heading indication particulars of error will not affect the validity of the ground of appeal”

He has added that the Supreme Court further held that such objections or application as made by the respondents in this instance;

“Will merely be servile to form rather than substance.

It is competent to incorporate particulars or error in the body of the ground of appeal. Such a practice does not contravene the provision of Order 3 rule 2(2) and does not render the ground incompetent.”