Chief Gabriel Oparanti & Ors V. Alhaji Nasiru Oyeniyi & Ors (2016)

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MOHAMMED AMBI-USI DANJUMA, J.C.A.

This judgment is in respect of interlocutory decision of the High Court of Osun State delivered on 28/1/2011 and 18-2-2011 respectively in suit no. HOS/7/2010, per Aderibigbe, J. pursuant to an amended notice of appeal filed on 3/02/16. Following the leave of this Court granted on 20-1-2016, the appellants herein filed their amended appellants? briefs of argument dated 3-2-2016 on the 12-2-2016 in respect of their two appeals.

In consequence of the aforesaid and in response, the 1st and the 2nd respondents filed their joint 1st and 2nd respondents’ brief of argument, whilst the 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th and 11th respondents did not file any brief of argument in opposition to the appeals.

The appeals emanating from the same proceedings and not having been consolidated, I shall proceed to determine each of them on their respective briefs of arguments as filed and oral submissions on points of law where made and as allowed in law. Starting with the first appeal.
APPEAL NO CA/AK/57/2011.
?To capture the essence of this appeal, I think it

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appropriate to set out the amended notice of appeal and the particulars thereof. They are as follows:-
AMENDED GROUNDS OF APPEAL.
?Take notice that the 1st to 7th appellants dissatisfied with the decision of the High Court of Justice of Osun State, Oshogbo Judicial Division, Osogbo contained in the ruling of Honourable Justice A. A Aderibigbe dated 28th January, 2011 both hereby appeal to the Court of appeal, Akure upon the amended grounds set out in paragraph 3 and will at the hearing of the appeal seek the amended reliefs set out in paragraph 4.
Take notice of further notice that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.
2. PART OF DECISION APPEALED AGAINST- THE WHOLE DECISION
3. AMENDED GROUNDS OF APPEAL
1. The learned trial Judge erred in law and he failed to exercise his discretion judicially and judiciously by his refusal to hear and give any date for the hearing of the 10th to 17th defendants’ motion on notice dated 20th but filed on 21st January 2011 to set down for hearing and hear the preliminary issues/points of law which were validly pleaded and raised on issues relating to the plaintiffs’ locus standi to institute

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the case, juristic personality, limitation period, re judicata, competency of the case and the jurisdiction of the lower Court to entertain the case before he proceeded to hear and grant the plaintiffs’ application dated and filed on 17/9/2010 seeking to set aside the nomination, selection, approval and issuance of instrument of appointment and presentation staff of office to Oba Olanipekun as the Ataoja of Osogbo thereby occasioning miscarriage of justice.
PARTICULARS OF ERRORS
1. The 10th to 17th defendants entered conditional appearance and filed a joint statement of defence dated 25/10/2015 wherein they denied the plaintiffs’ claims and raised some objections on issues relating to the plaintiffs’ locus standi to institute the case, juristic personality, limitation period, res judicata, competency of the case and the jurisdiction of the lower Court to entertain the case, etc with an indication that the said issues would be called upon for determination at/or before the trial (pages 193 to 209 of the record).
2. By their application dated 20/1/2011 but filed on 21/1/2011, the 10th to 17th defendants prayed the lower Court to set down for

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hearing and to hear their said various objections and points of law which challenged the substantive case (pages 395 to 496 of the records).
3. The plaintiffs reacted to the said application by filing their counter affidavit and counsel’s written address thus making the said application ripe for hearing as at 28/1/2011 on which date the lower Court refused to hear and/or give any date for the hearing of the said 10th to 17th defendants’ application.
4. The lower Court on 28/1/2011 heard the plaintiffs? motion dated 17/9/2010 without considering the relevant facts, arguments and legal principles and without exercising its discretion judicially and judiciously.
5. The lower Court by its ruling of 28/1/2011 over ruled its previous ruling of 1/11/2010 delivered in the same case on the priority of the applications challenging the Courts jurisdiction and other applications after the Court had become functus officio, thereby demonstrating bias against the appellants.
2. The learned trial judge erred in law when he failed, declined and /or neglected to consider and follow the decisions of the Supreme Court and other Courts of records

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including (1) Owners of the MV “Arabella” V. Nigeria Agricultural Insurance (2008) 5 SCNJ 109 @ 124 to 126 (2) First Bank off Nigeria Plc. v. T.S.A Industries Ltd. (2010) 38 WRN 1 at 36, (3) A.G. Lagos v. Dosunmu (1989) 3 NWLR (Pt. 111). 552 (1989) 6 SCNJ 134, (4) Madukolu v. Nkemdilim (2001) 46 WRN 1, (5) Sofekun v. Akinyemi (1981) 1 NCLR 135, (1980) 1 ALL NLR 158, (6) Elebanjo & Anr. v. Dawodu (2006) 15 NWLR 76 @ 134-143; (2006) SCNJ 204 @ 238-245 cited to him on the on the issue of the priority of two applications before the proceeded to hear the plaintiffs’ application filed on 17/9/2010 seeking to set aside the appointment and installation of Oba Olanipekun as the Ataoja of Osogbo without first hearing the 10th to 17th defendants’ motion dated 20/1/2011 but filed on 21/1/2011 praying to set down for hearing and to hear the appellants’ preliminary points of law/objection to dismiss or strike out this case thereby occasioning miscarriage of justice.
Particulars of errors
a. The appellants’ motion filed on 21/1/2011 was capable of disposing of the plaintiffs’ motion to set aside the appointment and installation of Oba Olanipekun and this case

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without full trial
b. Various decision of the Supreme Court and other courts cited before the learned trial judge on the need to give priority to the appellants’ motion to set the objections down for hearing before considering the plaintiffs’ application to set aside Oba Olanipekun appointment were ignored.
3. The learned trial judge erred in law when failed to exercise his discretion judicially and judiciously by proceeding to hear and by hearing the plaintiffs’ motion to set aside Oba Olanipekun’s appointment and installation without first hearing the appellants’ motion set down for hearing and to hear the appellants’ objections to the whole case, thereby occasioning miscarriage of justice.
PARTICULARS OF ERRORS
a. The discretion given to the Court by Order 22 of the Osun State High Court Amended (Civil Procedure) Rules 2008 ought to be exercised judicially and judiciously.
b. The Lower Court did not exercise its discretion judiciously.
4. The decision of the lower Court is against the weight of evidence.
4.AMENDED RELIEFS SOUGHT BY THE APPELLANTS
1. An order to set aside the ruling of the lower Court delivered on