Moses Atobatele & Ors. V. Chief Dele Faseru & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE E. IYIZOBA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Falade J. of the Osun State High Court sitting at Ilesha delivered on the 15th day of April 1999 in favour of the respondents who were defendants in the court. The appellants being dissatisfied with the judgment appealed to this court.

The appellant’s suit at the lower court arose from disputes over the installation of the 7th respondent as the Ogboni of Ijebu-Jesa. The claims of the appellants as plaintiffs in the lower court in their further further amended statement of claim are as follows:

1. “Declaration that there are four Ruling Houses from where Ogboni of Ijebu-Jesa are installed and that the four ruling houses are the descendants of the first Oba of ljebu-Jesa AGIGIRI who accompanied Owa Obokun from Ile-Ife
2. Declaration that AJIGITERI was not a descendant of AGIGIRI and did not belong to any of the four (4) Ruling Houses i.e. IDAEKUN, AYAPAKI-EFON, NIBAYO and AKOOKUAHUN.
3. Declaration that the 7th defendant claiming to be a member of AJIGITERI family is not entitled to be appointed the Ogboni of Ijebu-Jesa.
4. Declaration that the purported installation of the 7th defendant as Elegboro and/or Ogboni of Ijebu-Jesa is contrary to the tradition and native law and custom governing the installation of the Ogboni of Ijebu-Jesa who since time immemorial, is always installed at Ilesa, at Owa Obokun’s Palace and that the title purportedly alleged to be assumed by the 7th defendant is at variance with the Provision of Chief’s Law Cap 21 Laws of Oyo State of Nigeria as applicable in Osun State.
5. Declaration that by agreement among the four Ruling houses, the next Ruling House to produce Ogboni of Ijebu-Jesa is IDAEKUN ruling house.
6. PERPETUAL INJUNCTION restraining the 1st to 6th defendants, their servants, and/or privies from installing the 7th defendant or any person from AJIGITERI family the Ogboni of Ijebu-Jesa.”

The case of the appellants as gathered from their brief is that on completion of pleadings, the lower court set the case down for hearing. After the appellants had called four out of their five witnesses, the learned trial judge on 31/3/99 adjourned further hearing in the case to 14th and 15th April, 1999. The appellants claim that civil servants in Osun State began an indefinite strike action on Monday 13th April 1999. The strike action was declared by the Osun State Chapter of the Nigerian Labour Congress. When the appellants and their counsel got to the court on the 14th of April 1999, the second day of the strike, the court did not sit. The appellants claimed the respondents and their counsel were in court. Appellants alleged that the court did not sit due to the on-going strike action. They alleged that the court premises were locked. Appellants claimed that both sides went away in the belief that hearing will resume after the strike action. To their utter shock and surprise, the court sat the next day 15/4/99. The 1st and 7th defendants and their counsel were in court. Counsel for the appellants Olalekan Ojo in his brief alleged that of all the judges in Osun State, it was only the learned trial judge that sat on that 15/4/99. Further, counsel alleged that the court hall was opened by the court clerk on the instruction of the learned trial judge. The trial judge on finding the appellants absent closed their case and called on the defence to open their case. The defendants called three witnesses including the 7th defendant and thereafter closed their case. Without any address from the plaintiff, the trial judge there and then on the same 15/4/99 read his judgment which according to the appellants when typed was up to 23 pages. The appellants on 26/4/99 filed a motion on notice to set aside the proceedings and judgment of the lower court of 15/4/99 on various grounds including the ground that the proceedings were nullities having been conducted in violation of the plaintiffs’ right to fair hearing. The appellants then wrote to the Chief Judge requesting that the case be transferred to another judge for the hearing of the motion.

In the meantime the learned trial judge had fixed the motion for hearing on 3/5/99. Learned counsel for the appellants wrote to the trial judge informing him of the application for transfer of the case, urging him to adjourn the motion to await the decision of the Chief Judge on the application for transfer. The plaintiffs’ counsel was not in court. Learned counsel for the 1st-4th and 7th defendants opposed the application for adjournment of the motion. The 1st plaintiff who was present in court stated that he had no reply and that he could not even argue the motion. The trial judge thereupon dismissed the motion.

Learned counsel for the 1st-4th and 7th respondents in his brief painted a different picture of the events leading to the judgment of the trial court. According to learned counsel, when the stool became vacant invitations were sent to the princes to nominate candidates and they complied. The kingmakers appointed the 7th respondent and the appointment was approved by the government of Osun State. The plaintiffs sued on behalf of all the princes of the Ruling Houses of Ijebu Ijesa challenging the appointment of the 7th respondent. Three of the original plaintiffs (1) Ayo Palmer (21 Moses Ayeni Uti and (3) Daniel Atitebi, 2nd – 4th plaintiffs withdrew from the action. James Agbekorede and Thomas Alonge were later substituted for the 3rd and 4th plaintiffs. James Agbekorede the 3rd plaintiff again withdrew from the case leaving only the 1st and 4th plaintiffs representing only two of the four ruling houses that originally instituted the action. The plaintiffs called four witnesses between 1/4/98 and 21/4/98 when their counsel withdrew from the case. Learned counsel alleged that the plaintiffs changed their counsel on 30/6/98 and sought for adjournment on several grounds including intention to explore possibility for settlement. The case was then adjourned to 27/7/98 when the plaintiffs sought for further adjournments which was granted to 20th and 21st October 1998. On 21/10/98, the plaintiff called one witness and then asked for adjournment to call their last witness, one Pastor Oluwatise. The case was then adjourned to 3rd and 4th November 1998. On 4/11/98, the plaintiffs sought for further adjournment to locate their last witness Pastor Oluwatise whose where about they did not know and that the possibility of locating him was nil. The court counsel alleged reluctantly granted an adjournment for them to make up their mind about their last witness. On 17/11/98, the plaintiffs raised a preliminary objection to certain paragraphs of the statement of defence and argued same. Ruling was reserved and after it was delivered there were several adjournments. On 31/3/99, the plaintiffs indicated that they were not calling any more witnesses. The case was then adjourned to 14th and 15th April 1999 for further hearing. Counsel alleged that on 14/4/99, the court did not sit as it also did not sit on 3/11/98. The plaintiffs were not in court. Counsel alleged that on 15/4/99, the court sat, read rulings in other cases before calling on the defence to open its case. Counsel further alleged that the court heard the defence and gave judgment that same 15/4/99.

With the order of the court granting the appellants extension of time within which to appeal, the appellants on 21/11/2000 filed a notice of appeal with 7 grounds of appeal. The grounds of appeal shorn of their particulars are as follows:

1. The trial judge demonstrated his prejudice and bias against the plaintiffs and acted contrary to law and his oath of office when he alone in the State emerged in court on the 2nd and 3rd day of strike action, opened the case of the defendant and delivered a type-written judgment immediately after the close of the defence case which judgment contained patent falsehood.
2. The learned trial judge erred in law and exercised his discretion injudiciously, arbitrarily and in a manner which violated the plaintiffs/appellants’ right to fair hearing by failing to adjourn further hearing in the suit on 15th April, 1999, the second day of the strike action which the judgment acknowledged by not sitting on the 14th when the strike action began.
3. The learned trial judge erred in law and acted in disregard of the plaintiffs/appellants’ right of fair hearing when he closed the plaintiffs/appellants’ case and called on the 1st to 4th and 7th defendants/respondents to open their defence in the absence of the plaintiffs/appellants when on the printed records the plaintiffs’ case was not closed.
4. The learned trial judge erred in law and in breach of the plaintiffs/appellants’ right to fair hearing by giving judgment in the case without giving the plaintiffs/appellants the opportunity to address the court and thereby occasioned a miscarriage of justice.
5. The learned trial judge erred in law when before considering the totality of the case of the plaintiffs/appellants and evaluating the entire case concluded that the plaintiffs/appellants had not made out any prima facie case and thereby occasioned a miscarriage of justice.
6. The learned trial judge erred in law and abdicated his role as an unbiased umpire in the proceedings when he held as follows:-

“This is a peculiar case which the plaintiffs made every effort to oust the 7th defendant as the paramount Ogboni of Ijebu-Jesha or Elegboro of Egboro as the case may be,” and thereby occasioned a miscarriage of justice.

7. The learned trial judge misdirected himself in law when he held as follows:-

“I therefore hold as a fact that the Ogboni Chieftaincy had been infiltrated by strangers and non-descendants of any former ruling house.”

The relief sought from this court by the appellants is to allow the appeal and order a re-trial of the plaintiffs/appellants’ case before another judge.

Out of the 7 grounds of appeal, the appellants distilled four issues for the determination of this court. They are as follows:-

Did the learned trial judge act fairly impartially and in observance of the judge’s duty to protect the appellants’ constitutional right to fair hearing when he out of all the judges in Osun State sat on 15/4/99, the third day of the industrial action embarked upon by civil servants in Osun State, closed the appellants’ case, called on the 1st- 4th and 7th respondents to open their case, took witnesses for the defendants/respondents and delivered judgment without taking appellants’ address and in the absence of the appellants and their counsel who were not in court by reason of the strike action. (Grounds 1 to 4)

ISSUE II

Was the trial court right in concluding that the appellants had not made out any prima facie case when the learned trial judge had not considered and evaluated the appellants’ case? (Ground 5)