Chief Anthony Awote & Anor. V. Chief Olatunji Odunsi & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

ALFRED PEARSON EYEWUMI AWALA, J.C.A.

The applicants here filed this motion praying this court for:

(A) Leave to raise and argue a new point of law in this court which point of law was not previously raised in the lower court viz: “The Ijebu Ode Council of Olorituns, by name and style under which the action was filed is not a juristic person cannot therefore sue or be sued and so there is no proper plaintiff in law.”

(B) Leave to amend the original Omnibus ground earlier filed in this case and dated 18/10/02 by adding further grounds thereto as follows:

1. The Ijebu Ode council of Olorituns the name and style under which the action was filed is not a juristic body and so cannot sue or be sued and consequently there is no proper plaintiff in law.
2. The learned trial Judge erred in law by holding that the plaintiffs had a right to prosecute the action despite the fact that they had opted out of Ijebu-Ode Council of Olorituns and had formed a parallel body – the Ijebu-Ode Progressive Olorituns Consultative Council and thereby came to a wrong decision which had occasioned a miscarriage of justice.
3. The learned trial judge misdirected himself in law when he held on page 130 lines 18-22 that:

“My answer to the first question for determination is in the affirmative. The ljebu-Ode Council of Olorituns has the power to discipline its members including the 1st and 2nd plaintiffs by way of suspension but later concluded on page 150 items 4 and 5 that “The suspension of the 1st and 2nd plaintiffs…. .is unfair, null, void and of no effect.

He said later … is hereby quashed” and thereby occasioned miscarriage of justice.

4. The learned trial judge erred in law when he held that the defendants proved their case that whoever is Oliwo Agbadagbodo of Ijasi is the permanent chairman when the issue as it were had been settled on the pleadings and evidence and thereby arrived at a wrong conclusion.

Particulars

(a) Plaintiffs, by paragraph 26 of their statement of claim averred that the next chairman, should by logic of rotation thus came from Isale Iwade which evidence was completely contrary to the evidence of the Oloritun of Isale Iwade D.W.7 who said 636 Nigerian Weekly Law Reports 21 May 2007 (Awala, J.C.A.)

(i) The chairmanship was not by rotation and

(ii) in any case it was not the turn of Isale Iwade to be chairman

5. The learned trial judge erred in law by nullifying the chairmanship of the Olorituns when such situation enjoyed the SUPP0I1of the vast majority of the Ijebu-Ode Council of Olorituns and thereby occasioned a miscarriage of justice.
6. The learned trial judge erred in law by declaring the suspension of the 1st and 2nd plaintiffs (respondents) illegal and void when such decision was carried out by a vast majority of the members of the council of Olorituns and thereby came to a wrong conclusion which had occasioned a gross miscarriage of justice.
7. The judgment of the lower court is against the weight of evidence adduced.
8. Granting the appellants extension of time within which to file the appellants’ brief in this case.

At the hearing of the application dated 27/1/2006 filed 7/2/2006 on Wednesday 27/9/06 Chief (Dr) O. A. Mamora moved same submitting the motion is brought pursuant Order 3 rule 2 (4) (5), rule 16 and under the inherent powers of the court. The motion is supported by an eleven paragraphed affidavit sworn to by the first applicant. Chief Anthony O. Awote. I am reproducing all the paragraphs therein because it is short and all germane thus:

1. That I am one of the appellants in this case, and I swear to this affidavit for myself and on behalf of the other appellant.
2. That on going through the records in this case, my solicitor Chief Toba Mamora told me in his office and I verily believed that it is necessary to seek leave of this honourable court to raise and argue a new point of law as to the non juristic nature of the plaintiffs in the lower court.
3. That this issue of law was not raised and argued in the lower court.
4. That Chief Mamora further told me and I verily believed that it is necessary to seek court’s leave to amend the original grounds of appeal earlier filed by adding further grounds thereto.
5. That the proposed amended notice and grounds of appeal are hereby attached and marked exhibit A.
6. That the time allowed to file our appellants brief had expired.
7. That when the records were received it was discovered that so many pages containing evidence of witnesses were missing.
8. That my solicitor Chief Mamora then wrote to the registrar of Ijebu Ode High Court to point out the missing parts.
9. That the missing pieces of evidence have now been incorporated to the records and numbered 56A-56J, 91A-91192A.
10. That consequently our time expired in the process.
11. That an order for extention of time to file the appellants brief will meet the justice of the case.

Chief Afolabi Fashanu SAN for the respondents in opposition filed a counter-affidavit of 9 paragraphs sworn to by Olusoji Oduntan a legal practitioner in the Chambers of Toye Coker & Co. I reproduce pertinent paragraphs only herewith as follows:

3. That at the trial court, the respondents after suing individually in their personal capacity sought and obtained leave to sue and sued on behalf of Council of Olorituns excluding the appellants’ Splinter’s group.
4. That the appellants who were equally sued in their individual capacity similarly sought and obtained leave of the trial court to defend the action for themselves and on behalf of Council of Olorituns.
5. The action as constituted was to challenge the appellant (sic) first appellant who claimed to be the Permanent Chairman of Council of Olorituns among others issues.
6. That the case was also fought and defended on the same basis.
7. That after the judgment and before this honourable court, the appellants have consistently been affirming the existence of Council of Olorituns.
8. That I reasonably believe that the issue of juristic nature of Council of Olorituns is not a new issue that has just been revealed to appellants’ counsel.

Prayers B and C, that is to say (1) leave to amend the original omnibus ground earlier filed in this case and dated 18/10/02 and (2) extension of time within which to file appellants brief in this case respectively were not contentious. They were not argued. The controversial issue is “A,” namely for leave to raise and argue a new point of law in this court which point of law was not previously raised in the lower court, viz.:

“The Ijebu Ode counsel of Olorituns by name and style under which the action was filed is not a juristic person, cannot therefore sue or be sued and so there is no proper plaintiff in law”.