Mr. Yekini Adedokun Oyedare (Mogaji) & Ors V. Akin Olayiwola (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of an Oyo State High Court sitting in Ibadan delivered on the l8th of July 2008.

The Respondent was the Plaintiff in the lower court where his claims against the Appellants as endorsed on his Writ of Summons were:

(1) Declaration that the purported execution of Judgment in suit I/467/84 on any of the Plaintiff parcel of land delineated and bounded by Survey pillars numbers YADV850, YADV851, YADV852, YADV853, YADV854, YADV855, YADV856, YADV857, YADL5860, YA6210, YADV858, YADV859, YADV86O, YADV849 and YADV861 shown on Plan No. MAM/OY/97/119 of 24th October 1997 situate lying and being at Ayinde Village, Kolomi Area, Liberty Academy via Odo-Ona Elewe, Ibadan is illegal, unjustifiable, unlawful, null and void;

(2) The sum of One Million Naira being special and general damages for trespass committed by the Defendants on the Plaintiff’s said land;

(3) An Order of perpetual injunctions restraining the Defendants from further entering into the Plaintiff’s land as delineated Survey Plan No.MAM/OY/97/119 personally by their agents, servants, privies or any one claiming through them with a view to or purported view to executing the judgment in suit no.I/467/84 or in any suit or for any purpose whatsoever.

All the Court processes filed were duly served on the Defendants who are now Appellants before this court. The Appellants entered joint appearance through Barrister Oluwole Aina. When the memorandum of appearance was served on the Respondent, he caused to be filed a motion dated 3rd April 2008 seeking an Order of Court restraining Barrister Oluwole Aina from appearing or taking up the defence for the Appellants in this matter. The Respondent attached six (6) exhibits numbered 1, 2, 2A, 3, 4 and 5 respectively.

In opposition to the Respondent’s motion, the Appellants filed a counter affidavit of 20 paragraphs sworn to by the 5th Appellant. The motion seeking to restrain Barrister Aina was heard on 13th May 2008 and ruling was delivered on 18th July 2008. The lower court found for the Respondent and restrained the Counsel to the Appellants from handling the matter at the lower court. Appellants being dissatisfied with the ruling appealed to this court by a notice of appeal dated 31st July 2008. In compliance with the rules of this court, Appellants filed their brief of argument on the 12th of June 2009 but was deemed properly filed and served on the 17th of June 2009. Respondent filed his brief of argument on the 15th of July 2009. Appellants’ reply brief was filed on 30th of July 2009. Appellants distilled four issues for determination from the six grounds of appeal filed as follows:

(1) Whether the learned trial Judge had jurisdiction to entertain the application and give ruling thereon, when the applicant possessed no locus standi to bring the application seeking to restrain an adversary’s legal practitioner from appearing for the adversary;

(2) Whether having regard to the totality of the affidavit evidence which the learned trial judge failed to evaluate and use, the decision of the learned trial Judge complained of is not against the weight of evidence;

(3) Whether the learned trial Judge did not misdirect himself in law when he relied on Rules 20 and 21 RPC 2007 to restrain a Counsel from doing his job when the rules are either inapplicable or the conditions precedent to the applicability of the Rules have not occurred or been fulfilled;

(4) Whether the learned trial Judge was right to overlook the Constitutional provisions of fair hearing that gives the right of choice of Counsel to a litigant, when he restrained the Appellants’ Counsel from appearing but allowed the Respondent to retain a Counsel of his own choice to present his case.

On his part, the Respondent distilled four issues for determination as follows:

(1) Whether the material facts placed before the court was sufficient to sustain the grant of the restraining order sought;