Chief Ayo Omo Bare V. Chief Olorunfemi Mark Okun & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of Hon. Justice G. O. Imadegbelo of the Edo State High Court refusing an application of the Appellant to transfer the substantive suit from the Abudu Judicial Division to the Sabongida Ora Judicial Division. The facts that led to this appeal are as follows:

The 1st Respondent as the Plaintiff had filed a claim for declaratory and injunctive reliefs at the High Court. The claims are set out below:

The Plaintiff claims against the Defendants jointly severally as follows:

1. A Declaration that the 2nd Defendant has no power whatsoever to appoint and/or recognize the 1st Defendant as the Traditional Ruler of luleha Clan, Owan West Local Government Area, Edo State and his purported appointment and/or recognition as such is irregular, ultra vires, unconstitutional, null and void and of no effect whatsoever.
2. A Declaration that the Plaintiff has been duly appointed the traditional Ruler of luleha Clan, Owan West Local Government Area, Edo State in accordance with the luleha native law and custom.
3. An order of this Honourable court setting aside the purported appointment and/or recognition of the 1st Defendant as the Traditional Ruler of luleha Clan, Owan West Local Government Area, Edo State.
4. An order of injunction restraining the 1st Defendant from parading himself and/or functioning or acting in any capacity whatsoever as the Traditional ruler of luleha Clan Owan West Local Government Area, Edo State.
5. An order of injunction restraining the 2nd and 3rd Defendants whether by themselves their servants, agents and workmen howsoever from dealing in any manner whatsoever with the 1st Defendant and/or installing him as the Traditional Ruler of luleha Clan Owan West Local Government Area, Edo State.
6. An order of this Honourable Court directing the 2nd and 3rd Defendants to approve forthwith the appointment of the Plaintiff as the Traditional Ruler of luleha Clan.

On the application of the Appellant herein, the case was transferred from Benin Judicial Division where it was initiated to Afuze and later to Sabongida Ora Division, to be tried de novo before His Lordship, Hon. Justice G. O. Imadegbelo (Mrs). Thereafter, the case started de novo and apparently three Plaintiffs witnesses had given evidence.

On the 28/10/09, the Plaintiff as PW4 (the 1st Respondent herein) commenced giving evidence and was duly examined in chief. On the application of the 1st Defendant (Appellant herein) the case was adjourned to 24/11/09 for continuation of cross examination.

Before the next adjourned date, His Lordship, Hon. Justice G. O. Imadegbelo (Mrs.) was transferred to Abudu Judicial Division.

Subsequently, the case was transferred to Abudu Judicial Division to enable his Lordship conclude the trial, and all parties including Appellant herein were duly notified via a hearing notice. The Appellant filed a motion on notice praying the trial court to re-transfer the suit back to Sabongida Ora High Court to be commenced de novo.

The motion was supported by a 19 paragraph affidavit. I will set out the portions germain to this appeal which are paragraph 8 – 17 at pages 11 – 12 of the record:

8. That the 1st Defendant does not reside within Abudu Judicial Division but within Sabongida Ora Judicial Division.
9. That I do not carry on business in Abudu Judicial Division but in Sabongida – Ora Judicial Division.
10. That the cause of action did not arise in Abudu Judicial Division.
11. That I did not apply for the transfer of the suit and none of the other parties, Plaintiff, 2nd and 3rd Defendant applied for transfer of the suit to Abudu Judicial Division.
12. That I am not aware that the court transferred the suit to Abudu Judicial Division and if the court did so, it is a transfer that has a most inconvenient arrangement for the trial of such suit.
13. That with incessant record of crimes and kidnappings in Edo State, I am not prepared to risk my life to leave Uzebba very early in the morning for the purpose of keeping time to Court at Abudu.
14. That the Plaintiff and 1st Defendant are the stars in the suit and both of them reside within Sabongida – Ora Judicial Division.
15. That my life is at stake if the suit is transferred to be tried at Abudu which is over 132 kilometers from the place where the cause of action arose.
16. That cause of action arose in Uzebba and not Abudu.
17. That the trial has not reached defence stage.

The 1st Respondent as Plaintiff opposed the application vehemently and filed a counter-affidavit. The relevant portions are paragraphs 7-15 on pages 13-14 of the record stated below:

7. That in reply to paragraph 11, I aver that the transfer of the Suit to Abudu Judicial Division has been effected.
8. That the transfer is to enable Honourable Justice G. O. Imadegbelo continue and determine the matter which is already at an advanced stage.
9. That I am the last witness who is already being cross examined by Defendant’s Counsel.
10. That it took about five years before hearing commenced in this matter on 22/5/2002.
11. That this application is a ploy to continuation of hearing in this matter so that hearing will start de novo.
12. That this application is meant to delay the determination of this matter.
13. That the 1st Defendant is benefiting from the delay in determining the matter.
14. That there is no threat to the life of the 1st Defendant/Applicant in Abudu.
15. That the 1st Defendant/Applicant will not suffer any inconvenience if the suit is determined in Abudu.

After hearing counsel for the parties in a considered ruling the learned trial Judge refused the application to transfer the case back to Sabongida Ora. It is against that refusal that the Appellants have appealed to this court.

The 2nd & 3rd Respondents were the 2nd & 3rd Defendants at the trial court. They were duly served with all processes including hearing notices for the hearing of this appeal. They did not respond to these notices. It is apparent that they are unwilling or unable to oppose this appeal.

The Appellant’s brief was filed on 25/6/10 while the 1st Respondent’s brief was filed on 17/9/10 to which the Appellant filed a reply on 6/10/10. The 1st Respondent filed a notice of preliminary objection on 13/9/10 arguments in respect of which are contained in the brief. I will deal with the notice of preliminary objection first. The 1st Respondent’s raised an objection to the appeal in the following terms:

1) The appeal is incompetent