Olabode Oyewinle V. Aragbiji Of Iragbiji & Ors. (2012)

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 judgment of the High Court of Osun State sitting at Ikirun delivered on 9th October 1998 dismissing the appellant’s claims for declarations in respect of the Eesa Chieftaincy of Iragbiji. Being dissatisfied with the judgment he filed a notice of appeal containing a single omnibus ground of appeal. By an order of this court dated 19/11/08 he was granted leave to file and argue ten additional grounds of appeal. Pursuant to the order, the appellant filed an Amended Notice of Appeal on 26/11/08 containing eleven grounds of appeal.

The parties duly filed and exchanged briefs of argument in compliance with the rules of this court. The appellant’s brief is dated 9/11/09 and filed on 17/11/09. It was deemed properly filed and served on 17/1/10. The 1st and 2nd respondents’ brief is dated 27/4/10 and filed on 28/4/10. It was deemed properly filed on 28/4/10. They filed a notice of preliminary objection on 21/11/2011. In addition they also filed a respondents’ notice dated 4/11/02 and filed on 6/2/03 for the judgment to be affirmed on grounds other than those relied upon by the lower court.

The 3rd and 4th respondents’ brief is dated 24/1/11 and filed on 25/1/11. It was deemed properly filed and served on 31/1/12. They too raised a preliminary objection. Their notice of preliminary objection is dated 24/1/2012 and filed on 25/1/2012. The appellant filed reply briefs in answer to both preliminary objections and in reply to arguments in respect of the appeal. The reply to the 1st and 2nd respondents’ brief is dated 19/6/2010 and filed on 21/6/2010 while the reply to the 3rd and 4th respondents’ brief is dated 11/2/2012 and filed on 13/2/12.

We heard the appeal on 26/3/2012. At the hearing, OYE ADEDIRAN ESQ., learned counsel for the 1st and 2nd respondents moved his preliminary objection, which is argued in paragraphs 3.01 – 3.06 at pages 5 – 7 of his brief. He urged the court to uphold the objection and dismiss the appeal. DAPO ADENIJI ESQ., DPP Ministry of Justice, Osun State, learned counsel for the 3rd and 4th respondents also argued his preliminary objection incorporated at pages 6 – 10 paragraphs 2.0 – 4.01 of his brief. He also urged the court to uphold the preliminary objection and dismiss the appeal.

BIODUN ABDU-RAHEEM ESQ., learned counsel for the appellant relied on the submissions contained in the respective reply briefs in opposing the preliminary objections and urged the court to dismiss them. He adopted and relied on the arguments contained in the appellant’s brief and reply briefs and urged the court to allow the appeal. Mr. Adediran and Mr. Adeniji adopted and relied on their respective briefs of argument and urged the court to dismiss the appeal. I shall consider the preliminary objections together.

The 1st and 2nd respondents by their notice of preliminary objection seek the striking out of the appellant’s brief of argument for being incompetent on the ground that grounds 2 – 11 of the notice of appeal allege misdirection in law and on the facts at the same time. The 3rd and 4th respondents on the other hand contend that the grounds of appeal are grounds of mixed law and fact for which the appellant ought to have sought leave before filing same. It is also contended that the appellant failed to provide necessary particulars in respect of the original ground of appeal, which is the omnibus ground. Learned counsel for the 3rd and 4th respondents also raised the issue of res judicata in his preliminary objection.

Learned counsel for the 1st and 2nd respondents argued in his brief that any ground that concludes its complaint as both error and misdirection is incompetent as the two are mutually exclusive and the said ground is liable to be struck out. He cited several authorities including Amojaine Vs Eguegu (1996) 1 NWLR (424) 341 @ 349 D; Ayansina Vs Coop Bank Ltd, (1994) 5 NWLR (347) 742 @ 755 D – G: Anibire Vs Womiloju (1993) 5 NWLR (295) 623 @ 635 F – G.

On the need to obtain leave to file grounds of appeal on mixed law and facts and the consequences of failure to seek leave, learned counsel for the 3rd and 4th respondents relied on: Orakosim Vs Menkiti (2001) 6 SCM 169 @ 175 ratio 1; Opuiyo & Ors. Vs Omoniwari & Anor. (2007) 12 SCM (Pt. 2) 563 @ 571 ratio 3; and Oluwole Vs L.S.D.P.C. (1983) 5 SC 1. He also relied on Order 3 Rule 3 (2), (3) and (7) of the Court of Appeal Rules 2002. He submitted further that the original ground of appeal, without particulars is vague and meaningless. He relied on: Adesina Vs Arowolo (2004) 6 NWLR (870) 606 @ 612. He argued that once the original ground of appeal is incompetent, the additional grounds of appeal are also incompetent and there is no appeal.

On the issue of res judicata, learned counsel submitted that Suit No. HIK/MISC/1/95, commenced by originating summons was considered on the merit and dismissed by the trial court as being an abuse of the court’s process. He contended that the dismissed suit is similar to suit HIK/5/97, which gave rise to this appeal, which was also dismissed by the trial court for being an abuse of the court process having previously been litigated upon by the appellant. He submitted that the present appeal is caught by the doctrine of res judicata and ought to be dismissed. He relied on: Yoye Vs Olubode (1974) SC 221; Bagudu Vs FRN (2004) 1 NWLR (853) 189 @ 204 ratio 13.

In reply learned counsel for the appellant submitted that the 1st and 2nd respondents failed to comply with the provision of Order 7 rule 1 and Order 10 Rule 1 of the Court of Appeal Rules 2007 and 2011, which require a party wishing to raise a preliminary objection to do so by way of motion on notice and supporting affidavit which must be served on the appellant three clear days to the hearing of the objection. He relied on: N.S.P.N. Ltd. Vs F.G.N. & Ors. (2000) 28 WRN 183 @ 191. He also argued that the incorporation of the preliminary objection in the respondents’ brief is not in compliance with the rules. He cited several authorities including Nsirim Vs Nsirim (1990) 3 NWLR (138) 285 @ 296 – 297; D.A. (Nig.) Ltd. Vs Oluwadare (2007) 7 NWLR (1033) 336 @ 350. He was of the opinion that the decision of the Supreme Court in Agbaka Vs Amadi (1998) 7 SCNJ 367 @ 375 – 376 to the effect that a preliminary objection raised in the respondents’ brief is competent notwithstanding the fact that notice to raise same was not filed in compliance with order 3 Rule 15 (1) of the 2002 Rules and order 10 Rule 1 of the 2007 and 2011 Rules merely endorses the discretionary power of the court of Appeal and does not alter the rules. Learned counsel was also of the opinion that the preliminary objection ought to have been filed as a separate process and relevant fees paid in respect thereof. He submitted that failure to pay the necessary filing fees in respect of the preliminary objection argued in the 1st and 2nd respondents’ brief robs this court of jurisdiction to entertain it.

Learned counsel submitted further that the 1st and 2nd respondents failed to give particulars of their complaints i.e, what makes the appellant’s brief incompetent?; which of the grounds of appeal allege error in law and misdirection? And what specific findings did the appellant attack as alleged in paragraph 3.05 of their brief? He submitted that where respondents fail to give details of the nature and details of the incompetence of each ground of appeal, it is not the duty of the court to examine the grounds of appeal on their behalf to determine which of them fits the complaint. He referred to: Ehinlanwo vs Oke (2008) 16 NWLR (1113) 357 2 385: Okafor vs Uchebo (2002) 25 WRN 139 @ 148. He urged the court to strike out the preliminary objection on these grounds.

On the substance of the objection, he submitted that none of the grounds complained of allege both error in law and misdirection. He submitted that only grounds 5, 6 and 7 allege misdirection and contended that the court is concerned with substantial justice rather than undue adherence to technicalities. He submitted that even if the grounds of appeal were wrongly described, it would not be fatal to the appellant’s case, once the other side has sufficient notice as to the nature of the complaint and is not misled. He relied on: Aderonmu & Anor. vs Olowu (2000) 2 SCNJ 180: Ogbebor Vs Danjuma ((2003) 15 NWLR (843) 403 @ 423 – 424.

Learned counsel raised the same issue of non-compliance with Order 7 Rule 1 and Order 10 Rule 1 of the Court of Appeal Rules 2011 in respect of the 3rd and 4th respondents’ preliminary objection. He argued that in their notice of preliminary objection filed on 25/1/12 the 3rd and 4th respondents referred to the arguments incorporated in their brief of argument, which as at that date was not properly before the court since it was only regularized on 31/1/2012, He also contended that the notice is not in the form contemplated by the rules as it contains arguments in support of the objection instead of stating the grounds. He raised the same issues as in respect of the 1st and 2nd respondents’ objection regarding the failure to file the preliminary objection as a separate process and failure to pay the requisite fees therefore.