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Prince Eyinade Ojo & Ors. V. The Attorney-general Of Oyo State & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C.

At the hearing of this appeal on 29th April, 2008, a notification of the death of Olayiwola Olawore and Chief Dr. A. O. Odeleye who were the 1st and 6th respondents respectively in this appeal, was received from their Counsel Mr. H. withdrew the appeal against them and consequently their names were struck out from the list of respondents accordingly. This left the 2nd , 3rd , 4th and 5th respondents as the respondents to the appeal.

This appeal has a chequered history. It originated from suit No. HOY/3/82 filed by the 1st Appellant along with three others as Plaintiffs in 1982 at the Oyo State High Court against the Governor of Oyo State and three other Defendants including the 2nd Respondent and claimed as follows –

“1. Declaration that the 1956 Baale of IIora Chieftaincy Declaration is the only valid Declaration in respect of the Baale of IIora Chieftaincy and that the present Kingmakers are the only persons entitled to select a Baale of Ilora elect;

2. Declaration that the Secretary of Oyo South Local Government’s circular letter reference No. OYLGSG535/VOL.11/394 of 11th January, 1982 appointing warrant kingmakers and inviting such appointees to consider a list of candidates for the purpose of filling the vacancy in the Baale of Ilora Chieftaincy is improper, invalid and of no effect;
3. Declaration that the purported meeting of the warrant kingmakers held at Jobele on Wednesday, 13th January, 1982 and the selection of a candidate for filling of the Baale of IIora Chieftaincy is unconstitutional, invalid, improper and of no effect;
4. Declaration that the 1st plaintiff is the only candidate validly elected as Baale of Ilora elect;
5. Injunction restraining the 3rd defendant from further participation in the processes (as Baale elect) appointment and installation of the Baale of IIora and from parading himself as Baale elect of IIora.
6. Injunction restraining the 1st defendant from approving the 3rd defendant or any candidate that the 4th Defendant may submit to him as Baale elect of Ilora and subsequently, installing any

such candidate as Baale of Dora.

7. Injunction restraining the 4th Defendant from further participation in any exercise connected with the processes of the approval and installation of the Defendant as Baale elect of IIora.”

At the end of the hearing of these claims, the trial court dismissed the appellants’ action and their appeal to the Court of Appeal against the judgment of the trial court was also dismissed. However, the Appellants’ further appeal to this Court was successful as their appeal in SC.218/1985, was allowed on 13th January, 1989 and the following reliefs were granted to them by this Court, namely –

1. Baale of not a Chieftaincy Declaration is the only valid declaration in respect of the Baale of IIora Chieftaincy and that the present Kingmakers are the only persons entitled to select a Baale of IIora elect.
2. A Declaration that the Secretary of Oyo South Local Government’s circular letter reference No.

OYLSG535/VOL. 11/394 of 11tb January, 1982 appointing warrant Kingmakers and inviting such appointees to consider list of candidates for the purpose of filling the vacancy in the Baale of

IIora Chieftaincy is improper, invalid and of no effect.

3. The purported selection of the 3rd Defendant/Respondent by the warrant kingmakers on 13th January, 1982 as the Baale elect of IIora is null and void and of no effect.
4. The purported appointment of the 3rd Defendant/Respondent as the Baale of IIora by the Oyo State Government as per the letter reference No. C.BI41/38/18/VOL.11/644 of 11th February, 1982 is null and void and of no effect.
5. Injunction restraining the 3rd Defendant/Respondent from further participation in any processes for installation as the himself as the (a little omission ) himself as the Baale of IIora.
6. The Oyo State Government as a matter of extreme urgency is to set in motion the processes for

the selection, appointment and installation of a new Baale of IIora.”

Thus the appellants who were the Plaintiffs at the trial court were the successful parties in this Court in their appeal. However, before the Oyo State Government could take appropriate steps to comply with the directive of this Court regarding the appointment and installation of a new Baale of Ilora, the 1st Appellant in the present appeal, who was also the 1st Appellant in the Appeal NO.SC/218/1985, along with .others went back to the trial Oyo State High Court and instituted a fresh action an the same Baale of Ilora Chieftaincy dispute seeking the following reliefs –

“1. Declaration that the 1st Plaintiff has been validly elected as the Baale of IIora.

2. Declaration that the 1st Defendant does not qualify as a candidate for election as Baale of IIora on the platform of Okunla Ruling House.
3. Order restraining the Defendants or anyone lawfully taking orders from them from setting in motion any other process for the selection and election of any other candidate than the 1st Plaintiff as Baale of IIora.
4. ( a little omission Page 5) presenting himself to the kingmakers or anyone else for appointment or installation as candidate for the vacant stool of Baale of Dora.
5. An injunction restraining the 4th, 5th and 6th defendants from intermeddling in the processes of the appointment and installation of Baale of IIora.”

At the hearing of their new case, the appellants as plaintiffs at the trial court called two witnesses in support of their claims while the respondents who were the defendants in the action also called two witnesses in their defence. In the course of the hearing, the record of proceedings in the first action instituted in 1982, suit No. HOY/3/82 by the Appellants which went through to the Court of Appeal and ultimately to the Supreme Court in Appeal No. SC/218/1985 in which judgment was delivered on 13th January, 1989 in favour of the appellants, were admitted in evidence as exhibits ‘A’ and ‘C’ respectively. At the conclusion of the hearing, the learned trial judge came to the conclusion that the appellants’ action was an attempt to frustrate the judgment of this Court in SC/218/1985 between the same parties which that Court has a duty under the Constitution to enforce and therefore dismissed the action in its entirety. The appellants’ appeal to the Court of Appeal against the dismissal of their action by trial court was also dismissed by the Court of Appeal in its judgment delivered on 2nd December, 1999., describing the appellants’ action as an abuse of the process of Court. The present appeal by the of the trial court.

From the 7 grounds of appeal filed by the appellants to challenge the decision of the Court of Appeal, two issues were formulated in the appellants’ brief of argument as follows –

“1. Whether or not the appeal of the appellants received the treatment it deserved from the Court of Appeal. The issue covers grounds 1, 2, 4 and 5 of the amended grounds of appeal.

2. What is the correct interpretation of the Supreme Court judgment in SC.218/1985 and its legal

effect on the Appellants’ claims This issue covers grounds 3, 6 and 7 of the amended grounds of

appeal.”

In the respondents’ brief of argument filed on behalf of the 2nd and 3rd respondents by their learned Counsel, the Attorney General of Oyo State, three issues were identified for the determination of the appeal. They are –

“(i.) Whether the trial and lower Courts have the judicial power to violate the express orders or directives of the Supreme Court and if not whether any suit praying them to do so is not an abuse of the process of the Court

(ii.) Whether the Court of Appeal raised the issue of abuse of Court suo motu.

(iii) (a little omission 7)Court judgment in SC.218/1985, the appellants’ claims could be sustained. ”

However, L. O. Fagbemi, learned senior Counsel for the 1st , 4th , 5th and 6th respondents but now for only 4th and 5th-respondents following the demise of the 1st and 6th Respondents, in the 4th and 5th respondents’ brief of argument, saw only two issues arising from the grounds of appeal filed by the appellants for the determination of the appeal namely –

“1. Whether the Court below was wrong in dismissing the plaintiffs’ suit for being an abuse of process of Court, in the face of its constitutional duty of giving effect to the judgment of the Supreme Court

2. Having regard to the resolution of the Court below that Plaintiffs’ suit was an abuse of Court process, whether the issue of interpretation of exhibit C is still extent”

Taking into consideration of the circumstances giving rise to the appellants’/plaintiffs , present second action instituted after the judgment of this Court in the appellants’ appeal No. 5C.218/1985, delivered on 13th January, 1989, I am of the view that the real and main issue for determination in this appeal is whether or not the Appellants’ action against the Respondents brought at the trial court in 1994, was an abuse of the process of Court as found by the Court below in dismissing the Appellants’ appeal. This is because the complaints of the Appellants that their appeal at the Court below was not accorded the treatment it No. SC.218/1985 articulated in the two issues identified in the Appellants’ brief of argument, are only complaints arising from this single issue connected with the abuse of the process of Court.

It was argued for the Appellants that the issue of abuse of the process of Court was taken suo motu by the Court below in determining the Appellants’ appeal against them without giving them an opportunity of being heard. Some of the cases relied upon in support of this argument include Ayanduba v. N.R.T.C. (1992) 5 N.W.L.R. (Pt. 243) 535 at 561; Am v. Alesinloye (2000) 15 F.W.L.R. 2610 S.C. at pages 2642 – 2643;(2000) 6 NWLR (Pt.660) 177. At pages 2642-264 ; Management Enterprises & Anor. v. Otusanya (1987) 2 N.W.L.R. (Pt. 55) 179 and Shitta-Bay v. Federal Public Service Commission (1981) 1 S.C. 40: that the Court below having acted in breach of the appellants’ right of fair haring, this appeal should be allowed. On the correct interpretation of the judgment of this Court in appeal No. SC.218/1985, learned Counsel to the appellants argued that there was no basis for considering their present case against the respondents as an abuse of the process of Court because of that judgment, as their action cannot be regarded as groundless or a sham. Learned Counsel concluded that the Court below having found that the pivot of the appellants’ case and afortiori all the submissions is or can be narrowed down to the interpretation or the legal effect of the decision of the Supreme Court in SC.218/1985, had a duty to consider and determine that issue because if on a proper interpretation of the judgment, the appellants are right, the have been faulty, justifying allowing this appeal.

Learned Attorney General of Oyo State for the 2nd and 3rd respondents, has pointed out that the face that the Appellant’s suit constituted an abuse of the process of Court was not raised for the first time at the Court below as alleged by the appellants; that it had been an issue between the parties right from the trial court which was quite right having found that the action constituted an abuse of the process of Court, the only, order that Court could have made was one of dismissal of the action having regard to the cases of Saraki v. Kotoye (1992) 9 N. W.L.R. (Pt. 264) 156 at 188; Owonikoko v. Arowosaye (1997) 10 N.W.L.R. (Pt. 523) 61 at 76 and Ambo v. Aiyeleru & Ors. (1993) 12 L.R.C.N. 600;(1993) 3 NWLR (Pt.280) 126, that this issue was also included as part of the issues before the Court below over which arguments were canvassed by the parties resulting in the decision of that Court that the reliefs sought by the appellants at the trial court, constituted estoppel turning their present case a relitigation of the decision of the Supreme Court and therefore an abuse of the Court process.

Learned senior Counsel for the 4th and 5th respondents in his submission on this issue, started by quoting in full, all the reliefs granted by this Court in allowing the appellants’ appeal in its judgment in appeal No. SC./218/1985, given on 13th January, 1989. He observed that the pronouncements in that judgment were that the appointment of the 3rd defendant in that case was declared null and avoid, the office of the Baale of Bora remained vacant and the Oyo State Government was to set a machinery in motion for the selection and appointment of a new Baale of IIora. Learned Senior Counsel pointed out that taking into consideration the reliefs granted to the Appellants by this Court in its judgment and the reliefs they again asked for in their new action at the trial High Court that, Court below was right in finding the Appellants’ new action as an abuse of Court process, if the cases of Saraki v. Kotoye (supra) and C.B.N. v. Ahmed (2001) 11 N.W.L.R. (Pt. 724) 369 at 409 – 410, are taken into consideration. To the complaint of the Appellants that the issue of abuse of Court process was raised suo motu by the Court below, learned senior Counsel to the 4th and 5th Respondents had observed that that issue and the facts to substantiate, same have always formed part and parcel of the case of the parties just like the duty of the parties and the Court to give effect to the decision of the Supreme Court. Learned senior Counsel therefore concluded that the Court below was right in its decision that the Appellants’ present action is an abuse of the process of Court which was rightly dismissed and therefore urged this Court to dismiss the appeal.

In resolving the only issue on abuse of process of Court arising for determination in this appeal, it is significant to observe that the abuse of Court process or abuse of judicial process as the case may be, may be manifest in both a proper or improper use of the judicial process in litigation. However, the employment or use of judicial process is only regarded generally as an abuse when a party improperly uses the issue of judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. For example in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See Oyegbola v. Esso West African Inc. (1966) 1 All N.L.R. 170;(1966) 2 SCNLR 32,and Okorodudu v. Okoromadu (1977) 3 S.C. 21. It is also an abuse of process where there is no iota of law supporting a Court process or where it is premised on frivolity or recklessness. In other words it is the inconvenience and inequities involved in the aims and purposes of the action that constitutes abuse of process. See Alade v. Alemuloke (1988) 1 N.W.L.R. (Pt. 69) 207, Saraki v. Kotoye (1992) 9 N.W.L.R. (Pt. 264) 156 and Central Bank of Nigeria v. Ahmed (2001) 11 N.W.L.R. (Pt. 724) 369 at 409 – 410.

The facts of this case as outline earlier in this judgment are hardly indispute. The parties were at the trial Oyo State High Court in 1982 principally in connection with declaratory and injunctive reliefs sought by the appellants against the respondents on the subject of the selection and appointment of a suitable candidate to fill the vacant stool of the Baale of Ilora in the then Oyo South Local Government Area of Oyo State. That case ended in this Court on 13th January, 1989, when this Court allowed the appellants’ appeal and granted most of the reliefs sought by the appellants. Instead of allowing the implementation of or the enforcement of that judgment in allowing the parties involved in the contest of the vacant stool to comply with the judgment of this Court, the appellants, particularly the 1st appellant whose zeal in the contest for the exercise in the selection and appointment of the Baale of Ilora had virtually blinded him, decided to institute a fresh action which gave rise to the present appeal. This conduct of the appellants is the type of conduct on the institution of an action on the same subject matter and between the same parties that was strongly condemned by this Court in Adigun v. Governor of Osun State (1995) 3 N.W.L.R.(Pt. 385} 513 at 549 as being an abuse of process of Court. In particular, this is what Iguh J.S.C said at page 549.

“I need hardly add that the appellants claims having been predicated on the very issue which this Court had dismissed in very clear terms on the ground that Ogumakinde Ande Ruling House had not been proved to be the only Ruling House of Oluwo of Iwo from which a candidate is to be appointed, the present action appears to me totally misconceived and an abuse of the process of the Court and was properly dismissed by the two Courts below.”

The appellants in the instant case in whose favour the decision of this Court declaring the selection and appointment of the 3nl defendant as the Baale elect of IIora, restraining the same 3rd defendant from further participating in any processes for installation as the Baale of IIora and if already installed from further parading himself as the Baale of IIora and directing the Oyo Sate Government as a matter of extreme urgently to set in motion the processes for selection, appointment and installation of a new Baale of IIora in which exercise the appellants through the 1st Appellant were free to participate, it was clearly a reckless act on the part of the appellants to embark on a fresh action. That action was indeed an abuse of the .process of Court as rightly found by the two Courts below.

The conduct of the appellants in reopening the issues already determined or in relitigating on the issues already decided upon by this Court in a final judgment resolving the dispute between the parties, the law is also trite that once one or more issues have been raised in a cause of action and distinctly determined or resolved between the same parties in a Court of competent jurisdiction, then neither party nor his privy or agent, can be allowed to relitigate that or those decided issues all over again in another action between the same parties or their privies or agents on the same issues. See Fadiora & Anor. v. Gbadebo & Anor, (1978) 3 S.C. 219 at 228 – 229; Ogbogu v. Ndiribo (1992) 6 N.W.L.R. (Pt. 245) 40 at 61 and Adebayo v. Babalola (1995) 7 N.W.L.R. (Pt. 408) 383 at 403.

In the present case, the learned judge after considering the cases of the parties on pleadings and evidence, in a well considered judgment came to the conclusion that what the action of the appellants sought to achieve was to prevent the inforcement of the judgment of this Court of 13th January, 1989 in appeal No. SC.218/1985 which the learned trial judge vouched to resist in order to give effect to that judgment. In affirming the decision of the trial court after dismissing the appellants’ appeal on the issue of estoppel and abuse of Court process, the Court below had this to say at pages 168 – 169 of the records –

“In view of all what I observed above on the merit of this appeal, I do not wish to say more. It suffices to state that the issues under review as canvassed by the appellants (in their brief) have no merit. The other remaining issues (i.e. issues 3 and 5) of the appellants brief are also covered by my resolution of the 1st set of three issues (argued together) as above. The whole appeal of the appellants based on an action which has been held to be an abuse of judicial process and therefore frivolous should be treated as a continuation of such an abuse or frivolity xxxx. The appeal being devoid of merit, is hereby accordingly dismissed. ”

I entirely agree. There is no ambiquity whatsoever in the judgment of this Court in SC. 218/1985 calling for any interpretation or clarification by this Court again. The appellants’ action in my view is not only a glaring abuse of the process of the Court but also a flagrant disobedience of the orders of this Court in the judgment of the final Court of the land that must not only be respected but also must be obeyed by the parties and all Courts.

The law is trite that where there are concurrent findings of facts by two lower Courts as happened in the present case, this Court will not readily interfere with the findings made unless there is some miscarriage of justice or the-violation of some principles of law or procedure. Since the appellants have not attacked any of the concurrent findings of the trial court as well as that of the Court of Appeal, I see no reason whatsoever to disturb those findings. See Ometa v. Numa (1935) 11 N.L.R. 18 and Stool of Abinabina v. Enyimadu (1952) 12 W.A.C.A. 171.

This case has clearly shown the futility of challenging the decision of this Court, as the apex Court in the hierarchy of our Courts system. The finality of the decisions of the Supreme Court in civil proceedings is absolute unless specifically set aside by a later legislation .. Therefore any devices or ingenious moves by parties through their Counsel to circumvent the decision of this Court shall be met with stiff resistence as was courageously d4ne by the Courts below in this case. Applying the decision of this Court in the case of Arubo v. Aiyelero (1993) 3N.W.L.R (Pt. 280) 126 at 142, the appropriate order to make where a party had abused the process of the Court, is the, dismissal of the abusive action as was done by the trial court and affirmed by the court below.

In the result, this appeal is totally without merit and the same is accordingly hereby dismissed with N50,000.00 costs of the respondents against the appellants.

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SC.414/2001