Chief Raimi A. Lawal V. Salimon Eleko & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the High Court of Oyo State, Saki Judicial Division delivered on 30th November, 2006 granting an order of prohibition against the 2nd – 4th respondents on grounds of likelihood of bias pursuant to an application filed by the 1st respondent.

The facts that gave rise to this appeal as can be gathered from the record of appeal and the appellant’s brief of argument are as follows: The appellant instituted an action against the 1st respondent herein before the Ilero Grade ‘C’ Customary Court, Ilero, Kajola Local Government Area of Oyo State for a declaration of title to 10 acres of land situated at Alaparun Area of Ilero, Kajola Local Government Area of Oyo State.

The 1st respondent who was the defendant in the suit before the Customary Court, upon being served with the processes, filed a motion on notice challenging the jurisdiction of the court to entertain the suit. He also filed a motion ex-parte dated and filed on 15/3/2006 before the Oyo State High Court sitting at Saki, for leave to apply for an order of prohibition against the 2nd – 4th respondents (the President and members of the aforesaid Customary Court) prohibiting them from further adjudicating and or determining the case No. ICC/21/06: Chief Raimi A. Lawal Vs Salimonu Eleeko pending the determination of the motion on notice. The grounds for the application were:

a. Lack of jurisdiction;

b. Failure to comply with the rule of fair hearing; and

c. Likelihood of bias.

Apart from challenging the jurisdiction of the Court, the 1st respondent averred in his affidavit in support of the motion ex-parte that the 2nd – 4th respondents refused to fix his application challenging the court’s jurisdiction for hearing; that they had shown special interest in the case of the appellant (4th respondent before the High Court) and had even taken over the case of the appellant against him. The motion ex-parte, supporting affidavit and other processes annexed thereto are at pages 5 – 20 of the record.

The applicant was granted leave accordingly on 20/3/06.

The motion on notice dated 20/3/06 and filed on 22/3/06 was argued on 13/11/06 and ruling reserved till 30/11/06. In a considered ruling delivered on 30/11/06 the learned trial Judge found no merit in grounds (a) and (b) of the application. In respect of ground (c), His Lordship held at page 67 of the record:

“In the instant case, the mere fact that the appellant has challenged the jurisdiction of the lower court and has accused them of denying him fair hearing does not show likelihood of bias on the side of the 1st to 3rd respondents”.

His Lordship however went on to make certain observations regarding the conduct of the 1st respondent and the 2nd – 4th respondents in the courtroom and within the court premises, which in his opinion showed undue familiarity. It was on this basis that he held that there was indeed likelihood of bias against the 1st respondent and granted the order of prohibition sought.

The appellant was dissatisfied with the decision and filed a notice of appeal dated 11/12/06 and filed on 13/12/06 containing one ground of appeal. In compliance with the rules of this Court, the appellant filed his brief of argument, which is dated and filed on 13/9/07. The brief was settled by Adewale Adegoke Esq. All the respondents were duly served with the processes in this appeal but did not file any process. The appellant, by a motion on notice dated 12/2/08 and filed on 22/2/08 sought for an order for the appeal be heard on the appellant’s brief alone, the respondents having failed to file any brief. The application was granted on 9/7/08. When the appeal was heard on 22/3/2010, Mr. Adewale Adegoke adopted and relied on the appellant’s brief and urged the court to allow the appeal. The record of the court revealed that all the respondents were duly served with hearing notices against that date. They were absent and unrepresented by counsel.

The appellant formulated the following issue for determination from the single ground of appeal: