Abass Oladosu & Anor V. Samuel Oloyode Olaojoyetan & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the High Court of Osun State sitting at Osogbo Judicial Division delivered on the 8th day of June, 2005 dismissing a suit instituted by the plaintiffs/appellants for a review of the Judgment of Osogbo High Court in Suit No.HOS/116/89: Lawani Siyanbola & 2 Ors v. Oba Jimoh Oyeyemi (Oludo of Ido-Osun) & Anor delivered on 10/12/92 on the ground that the said judgment was obtained by fraud.

This appeal concerns the Baale Woru minor Chieftaincy stool in Woru village Egbedore Local Government of Osun State. The facts giving rise to the appeal are as follows: Following a vacancy in the stool, one Aminu Adebayo, the father of the 2nd appellant herein was selected, appointed and installed as the Bale Woru. His selection, appointment and installation were challenged by the representatives of the two ruling houses of Bale Woru Chieftaincy in Suit No HOS/116/89. In a judgment delivered on 10/12/92, the learned trial Judge declared the selection, appointment and installation of Aminu Adebayo Bale Woru null and void and against the native law and custom regulating the selection, appointment and installation of Bale Woru.

His appointment, selection and installation were consequently nullified and he was further restrained from parading himself as Bale Woru. There was no appeal against this judgment. In 2002, the 2nd appellant herein, the son of the deposed Bale Woru and one other instituted suit No HOS/161/2002 against the two ruling houses of Baale Woru Chieftaincy claiming inter alia a review of the judgment of Osogbo High Court in Suit no HOS/116/89 on the ground that the said judgment was obtained by fraud. After exchange of pleadings, the defendants/respondents filed a motion on notice for the striking out of the suit on grounds of lack of jurisdiction, res judicata and abuse of court process. The motion was vigorously opposed by the appellants. The learned trial Judge in a reserved ruling delivered on 8/6/2005 upheld the contention of the respondents and dismissed the appellants’ suit. The appellants dissatisfied with the ruling filed a notice of appeal containing seven grounds of appeal. Out of the seven grounds of appeal, the appellants in their brief settled by Awoniyi Alabi Esq. formulated two issues for the determination of this court. The issues are:

1. Whether the learned trial Judge was right in declining jurisdiction to entertain the Appellant’s suit on the grounds that

(i) The court lacks jurisdiction to review the judgment of Alao J. in suit No HOS/116/89; Lawani Siyanbola & 2 ors v. Oba Jimoh Oyeyemi (Oludo of Ido-Osun) & ors;

(ii) That the suit was caught by the doctrine of res judicata; and

(iii) That it therefore constitutes an abuse of court process? (Grounds I, III, V, VI, and VII)

2. Whether it was proper for the learned trial Judge to have decided the proof or non-proof of fraud on the basis of pleadings alone without having gone into full trial in the circumstances of this case? (Grounds II and IV).

The respondents in their brief of argument settled by Tunde Akande, Esq. distilled three issues for determination in this appeal. They are:

1. Whether the learned trial Judge was right in declining jurisdiction to entertain the Appellants’ suit.
2. Whether the learned trial Judge was right when (sic) the appellant suit was caught by the doctrine of res judicata.
3. Whether the mere averments in paragraph 37 – 39 of the amended statement of claim as contained in pages 35D – 35F of the record of proceedings constitute sufficient and explicit particulars of bribery as a fraud perpetrated by the 1st Respondent.

Learned counsel for the respondents in his arguments in the brief treated issues 1 and 3 together and issue 2 separately and thereby effectively reducing the issues to two just as the appellants. I shall briefly summarize the arguments of both sides.

The summary of the contention of the appellants is that the learned trial judge was wrong to decline jurisdiction on the ground that it will amount to sitting on appeal on the decision of a brother Judge of coordinate jurisdiction. Counsel argued that the basis of the new suit in the lower court is that the judgment in suit no HOS/116/89 was obtained by fraud and that there in now fresh evidence both to prove the fraud as well as to establish the true position of things to enable the court to come to a just and equitable decision. Counsel relying on the cases of Talabi v. Adeseye (1972) 8 – 9 SC 20 @ 40 and Anatogu v. Iweka (1995) 8 NWLR (Pt.415) 547 @ 586 paras A – G submitted that that the law is that if a judgment or order has been obtained by fraud, a fresh action will lie to impeach the judgment. Such fresh action, counsel argued is not the same as an appeal as the substance of the new suit and the old one are different. Counsel submitted that the learned trial Judge erred in his conclusion that the particulars of fraud relied on in the new suit have not been properly pleaded in a way to enable the court try and determine the suit. Counsel further submitted that there was sufficient pleading of the particulars of the fraud to sustain the case and that if the learned trial Judge had heard the case on its merits, evidence of the fraud would have been led to satisfy the court that the judgment was obtained by fraud which prevented the defendants in suit no HOS/116/89 from putting before the trial court minutes of the family meeting which would have established beyond doubt that the 2nd defendant in the case (the father of the 1st appellant herein) was a member of the Baale Woru Chieftaincy family. On the doctrine of res judicata, counsel submitted that it was inapplicable as the subject matter in the two cases and the parties are different. Counsel also submitted that there was no abuse of the process of the court as the review of the case on grounds of fraud being asked for is allowed by the rules and procedure of the court.

Mr. Akande for the respondents in his brief of argument in reply, called the attention of the court to the following documents:

1. Appellants’ claims in his amended statement of claim at pages 35E – 35F of the supplementary records;
2. The affidavit in support of the application for the dismissal of the suit at pages 23 and 24 of the record of appeal;
3. The judgment of Alao J. in suit No. HOS/116/89, Exhibit A attached to the application of the respondent at the lower court which judgment provided the platform for the ruling of Bada J (as he then was) appealed against at pages 38 51 of the record of appeal.

Counsel submitted that a perusal of the documents set out above will reveal that the lower court was right to have declined jurisdiction to “review the judgment of Osogbo High court in Suit No. HOS/116/89” as prayed for in paragraph 39(1) of the amended statement of claim at page 35E of the supplementary records because the two courts are courts of coordinate jurisdiction and one cannot review the judgment of the other. Further, counsel conceded that while a judgment obtained by fraud could be set aside, the fraud must have been established and the particulars clearly and explicitly pleaded in the statement of claim. Counsel submitted that the particulars of the alleged bribe were not explicitly stated in the amended statement of claim. The learned trial judge was therefore right in declining jurisdiction.

I have considered carefully the above points and other issues raised by the parties, it is necessary to set out the facts that gave rise to suit No.HOS/116/89 for a better understanding of the issues at stake here. The case was a minor chieftaincy dispute. The plaintiffs represented the two ruling houses of Woru Isale and Woru Oke for the Baale Woru Chieftaincy. Upon the demise of the late Baale, members of the two ruling houses met to nominate one of them to be appointed as the next Baale Woru. The 3rd plaintiff Oloyede Olaojoyetan was nominated and was presented to the Kingmakers who approved his nomination. The Kingmakers wrote to the 1st defendant Oba Jimoh Oyeyemi the Oludo of Osun who is the prescribed authority for Baale Woru Chieftaincy. Instead of appointing the 3rd plaintiff as the new Baale Woru, Oba Oyeyemi went ahead to handpick the 2nd defendant and installed him as the Baale Woru. The plaintiffs were aggrieved by this appointment which they claimed contravened their native law and custom relating to Baale Woru chieftaincy. They traced their genealogy to their ancestor Kankulola, a prince of Oyo who came to settle at Woru so that he could have children. He married Omosawo the daughter of Oludo of Iddo-Osun. Kankulola begat Oladodu. Oladodu married Aisaku and Asagere. The children of the two wives now constitute the two ruling houses of Woru Isale and Woru Oke. At the time of the original settlement, there were no Kingmakers. Kingmakers later emerged and are now four namely Jagun Woru who is the chief to place “akoko” traditional leaf on any Bale of Woru at the time of his installation, Ese Woru, Otun and Ikolaba. It was not the native law and custom of Woru people for Chief Oloriga of Iddo-Osun to place “akoko’ leaf on Baale Woru. The Baale plaintiffs claimed that the 2nd defendant the newly installed Woru is not related to them and is not a descendant of Kankulola as he claimed because he has eleven tribal marks as against the eight which members of the ruling family have. He lives at Ilobu whereas the plaintiffs live at Osogbo; that he is a customary tenant of the plaintiffs and not a Woru landlord; that he did not participate in the building of Woru palace; that his father worships at Erinle whereas the plaintiffs are Sango devotees. They consequently wanted his installation nullified.

The 2nd defendant now Baale Woru traced his genealogy to Baale Kankulola. He claimed that Asagere one of the two wives of Oladodu begat Olamise. Olamise begat Aromaragun who begat Dele, Falola and Osadiya. Osadiya begat Oke, his father. He claimed that after the invasion of Woru town by the Fulanis, part of the Woru community fled to Ilobu and part went to Osogbo to settle. The 2nd defendant belonged to the part that settled in Ilobu. He claimed to be related to the plaintiffs because they are from the same ancestor Kankulola. He conceded that there are two ruling houses for the Baale Woru chieftaincy but claimed that the ruling houses are Olamise ruling house consisting of those who fled to Ilobu to which he belongs and Lalakin comprising of those who fled to Osogbo to settle to which the plaintiffs belong. He claimed that when ever there is a vacancy in Baale Woru chieftaincy, the person to fill the vacancy is chosen at a family meeting. Members of Olamise ruling house living at Ilobu met and chose him the 2nd defendant to fill the vacancy. He claimed Woru Kingmakers were at the palace of Oludo of Ido Osun on the day of his installation and that they followed him home for merriment. He admitted that it is the function of the Kingmakers to approve the nomination of the ruling houses before the name of anybody appointed is sent to the prescribed authority for approval. He claimed his family at Ilobu consulted with the plaintiffs’ family at Osogbo but his candidature to fill the vacant stool was rejected by them. He claimed he is related to the plaintiffs because some of his children have facial tribal marks like the plaintiffs. He also claimed that the third plaintiff, Mufutau his son and Atoyebi are joint signatories to the family’s joint account at a bank at Idiseke Osogbo. He shares in the proceeds of sale of Baale Woru Family land at Woru. The learned trial judge considered the evidence of the plaintiffs and the defendants as stated above and the evidence adduced by other witnesses called by the parties and came to the following conclusions: