Chief J. A. Agbana Vs Rtd. Major S. K. Owa (2004)

LAWGLOBAL HUB Lead Judgment Report

NIKI TOBI, JSC

This is yet another chieftaincy dispute. It is between the appellant on the one hand, and the respondents on the other. This appeal is between the appellant and the 1st respondent. It would appear that the 2nd and 3rd respondents are nominal parties.

The appellant as plaintiff filed an action in the High Court of Kogi State, holden at Egbe asking for declarative and injunctive reliefs. He asked for a declaration that the purported appointment and or approval of the appointment of the 1st defendant as the Elegbe of Egbe by the 2nd and 3rd defendants is null and void and of no effect whatsoever. He also asked for a perpetual injunction prohibiting the 1st defendant from acting as or parading himself as the Elegbe of Egbe and the 2nd and 3rd defendants treating the 1st defendant as the Elegbe of Egbe and or paying him the prerequisites of the said office.

The appellant gave evidence at the trial. He did not call any witness. The respondents called six witnesses. At the end of the trial, the learned trial Judge, Medupin, J., gave judgment to the respondents. He said at page 152 of the Record: “The claim of the plaintiff against the defendants both jointly and severally for the declaration that the purported appointment or approval of the 1st defendant as the Elegbe of Egbe as being void must in the opinion of this court fail. This court therefore holds that the 1st defendant was the person legally appointed as the Elegbe of Egbe in accordance with the tradition and custom of Egbe. Also this court is satisfied that the appointment of the 1st defendant before now as the then Baale of Egbe was with effect from 1st January, 1992.” His appeal to the Court of Appeal failed. He has come to this court. Briefs were filed and duly exchanged. The appellant formulated three issues for determination:

“i. Whether or not the Court of Appeal was properly constituted (Ground 8, the Additional Ground of Appeal)

Whether or not it was proper of the Court of Appeal not to give notice of hearing of the judgment to the appellant when she adjourned judgment sine die at the time of hearing the appeal on 26/1/99 as shown by last 2 lines of page 235 of the record (Ground 1) and

iii. Whether the Court of Appeal properly considered the appeal before her or not (Grounds 2, 3, 4, 5, 6, and 7 of the appeal at pages 254 – 257 of the record)”

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The 1st respondent also formulated three issues for determination:

“1. Whether the Court of Appeal can deliver her Judgment at the date fixed when the Appellant and his Counsel were not in Court, but the Respondents and their Counsel were in Court on the Notice served on them by the registrar of the Court of Appeal (Ground 1).

Whether the Court of Appeal adjudicated on the Appellant’s Appeal without properly understanding the Appellant’s case (Grounds 2, 3, 4, 5, 6 and 7).

Whether the Justices of the Court of Appeal can legally deliver her Judgment on 30/3/99 when only 2 of Justices were in attendance (Add. Ground).” Respondents also raised preliminary objection in the brief. Learned counsel for the appellant, Prince J. O. Ijaodola submitted on Issue No. I that the decision of the Court of Appeal by two justices who sat on 23rd March, 1999 or 30th March, 1999 was void because the Court was not properly constituted. He contended that section 9 of the Court of Appeal Act No.3 of 1976 and section 226 of the 1979 Constitution were violated, as both require three justices of the court to determine an appeal. He argued that the case is distinguishable from the decisions of Attorney-General of Imo State V. Attorney-General of Rivers State (1983) 8 SC 10; Chief Igwe V. Chief Kalu (1993) 24 NSCC (Pt. 1) 393; National Bank of Nigeria Ltd. V. Guthrine (Nig) Ltd. (1993) 24 NSCC (Pt. 1) 401 and Okino V. Obanebira SC. 258/1993 (unreported) delivered on 3/12/99. Counsel urged the court to answer the issue in the negative.

On Issue No.2, learned counsel cited Nwosu V. Board of Customs and Excise (1988) 12 SCNJ (Pt. II) 313 and conceded that although absence of an appellant at the time of delivery of a judgment does not invalidate a judgment, the position of the law is subject to non- occasioning of substantial miscarriage of justice. While further conceding that there was no miscarriage of justice in this case since the affected appellant was able to file his appeal within time, he urged the court to go out of its normal course and give the cautionary note, even though obiter dictum in the interest of justice such obiter dictum, learned counsel reasoned, will enjoy highest respect in all our courts, and that will avoid any abuse. Taking Issue No.3, learned counsel submitted that the Court of Appeal erred in affirming the perverse decision of the High Court. To learned counsel, there is no way in which one may choose to look at the decision of the High Court as it is perverse in the extreme. He submitted that Exhibit D4, the letter of appointment from the Military Administrator to the 1st respondent, is contrary to section 3(1) of Chiefs Appointment and Deposition etc) Law No.7 of 1992 of Kogi State. The appointment of the 1st respondent was null and void, counsel contended. He urged the court to answer Issue No.3 in the negative and allow the appeal. Learned counsel for the 1st respondent, Chief Olatunji Arosanyin, in his preliminary objection, submitted that the Record of Proceedings of the Court of Appeal failed to comply with Order 7 rule 8(2) and (3) of the Supreme Court Rules as it does not contain who were the parties present in court on the date of delivery of judgment and indicate or include the evidence of hearing notice for the judgment of the Court of Appeal which was sent to the parties or the mode of communication to the parties. It was also the submission of learned counsel in his preliminary objection that the appellant purportedly filed additional grounds of appeal without waiting to have the motion dated 5th June, 2000 seeking to file the said additional grounds of appeal heard and granted. He also contended that the appellant unilaterally and without an order of this court formulated issues from the alleged additional grounds and argued same in his brief dated 5th June, 2000. Citing Owena Bank (Nig) Plc. V. Nigerian Stock Exchange Limited (1997) 7 SCNJ 160 at 163, learned counsel argued that where leave of court is required before a step is taken by any party, such leave must be sought and obtained before the step is taken. He urged the court to resolve the preliminary objection in favour of the respondents and strike out the offending additional grounds of appeal and discountenance submissions advanced by counsel in the appellant’s brief of argument. Counsel however took the merits of the appeal in the alternative. He submitted on Issue No.1 that the Court of Appeal can legally and validly deliver its judgment on the date fixed even if none of the parties and their counsel are in court on the date fixed for the judgment. Counsel pointed out that the case was not adjourned sine die, as alleged by the appellant, but rather the judgment of the case was reserved on a date to be announced and when the date for the judgment was given, notice of such date was given to the parties. The 1st respondent’s counsel received his notice of the date of judgment and was present in the court when the judgment was delivered, learned counsel maintained. Counsel submitted that the absence of an appellant at the time of delivery of a judgment does not invalidate the judgment. Citing Nwosu V. Board of Customs and Excise (1988) 5 NWLR (Pt. 93) 225 at 228, counsel submitted that the absence of the appellant at the time judgment of Court of Appeal was delivered on 30th March, 1999 did not occasion any miscarriage of justice since the judgment was brought to the notice of the appellant and he was able to file his appeal within time. Counsel urged the court to resolve the issue in favour of the respondents and uphold the decision of the Court of Appeal.

Learned counsel submitted on Issue No.2 that the Court of Appeal properly understood the appellant’s case before the trial court and examined the case as presented to that court. The appellant who was the plaintiff at the trial court did not ask in his pleadings for a declaration that he was appointed as the Oba/Elegbe of Egbe, counsel contended. Referring to paragraphs 1, 2 and 4 of the statement of claim and paragraphs 2 and 7 of the reply to the statement of defence, learned counsel submitted that the statement of claim supersedes the endorsement on the writ of summons. He referred to the evidence of the appellant on pages 28 – 33 of the Record and the judgment of the learned trial Judge on pages 134 and 135 thereof. He also referred to the Judgment of the Court of Appeal on page 244 of the Record. Taking the evidence of DW4, learned counsel submitted that evidence given under cross-examination was in furtherance of his evidence in-chief that Anike Ruling House in response to a request by Oba Olokundu for their nomination of a Baale, met and nominated 1st defendant for the position. To learned counsel, counsel for the appellant quoted DW4 out of context. He submitted that the Court of Appeal examined thoroughly the evidence proffered before the trial court, the exhibits tendered by the parties and the findings and judgment of the trial court before dismissing the appeal of the appellant. On the issue of proof by the appellant, learned counsel submitted that it is the duty of the plaintiff/appellant to prove his claim or reliefs with credible evidence adduced by him and his witnesses and with documentary evidence if any. He cited Kodilinye V. Odu (1935) 2 WACA 336 at 337; Mogaji V. Odofin (1978) 4 SC. 91 at 93 and Adesanya V. Otuelo (1993) 1 NWLR (Pt. 270) 442. He submitted that the cases of Chief Buraimoh V. Chief Eso (1990) 1 SCNJ 1 and Amuda V. Adelodun (1997) 5 SCNJ 266 cited by counsel for the appellant are distinguishable.