Prince Festus Ikugbanmire & Ors. V. Chief M. I. O. Kudehinbu & Ors. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALI ABUBAKAR B. GUMEL, J.C.A. (Delivering the Lead Ruling)

In a motion on notice dated 22/9/11 and filed on 23/09/11, the Applicants sought for 4 main reliefs. They are: –

“1. AN ORDER granting LEAVE to the applicants to appeal to this Honourable Court as a party affected and having interest in the matter against the judgment in suit No.HOK/8U99 delivered on 15-03-06 by Honourable Justice W. A. Akintoroye of the Ondo State High Court Okitipupa Judicial Division.

2. AN ORDER of this Honourable Court extending the time within which the Applicants may file their Notice and grounds of Appeal in this case.
3. AN ORDER of this Honourable Court deeming as properly filed and served the applicants Notice of Appeal, necessary fees having been paid.
4. AN ORDER permitting the Applicants to use the records of Appeal compiled for the prosecution of the Appeal in APPEAL NO: CA/B/288/2006 which is before this Honourable Court

The application was brought pursuant to S. 243 (a) of the 1999 Constitution of the Federal Republic of Nigeria, as amended. Order 7 rules 1 and 10 of the Court of Appeal Rules 2011 as well as under the inherent jurisdiction of this court.

The grounds for the application are very detailed and are hereby reproduced thus: –

“1. The Applicants are persons affected and interested in the subject matter of the Appeal.

(a) The action at the lower court culminating in Appeal No. CA/B/288/2006 now before this Honourable Court and the Application of the Applicants/Appellants herein are in respect of the right to the throne of Maporure of Agerige-Aheriland in the Ilaje Local Government Area of Ondo State.

(b) The right to the throne of Maporure of Agerige Aheriland is among the 9 male children of Osobitan who descended from Ademitufewa the progenitor of Aheri people.

(c) The said 9 children are Kulajolu (the 1st son and lineage of the Applicants), Awete (the lineage of the plaintiff and the 1st and 2nd Defendants), Gbangun, Peteino, Tehinmowo, Fafo, Molutehin (the lineage of the 6th Defendants), Uhiomare, and Oguntimehin.

(d) The Applicants (Kutajotu Royal Family) has long nominated Prince Esanmbo Asemudera who is a party to this application as the candidate of the Applicants family for the vacant stool of the Maporure of Agerige Aheriland

2. The Plaintiffs deliberately refused to include the Applicants/Appellants as necessary parties in order to exclude them from their inheritance
3. The Applicants are mandatory and necessary parties to this case
4. The judgment of the lower court will effectively exclude the Applicants/Appellants from their inheritance and irreparably prejudice their interests in the Maporure of Agerige Aheriland chieftaincy.
5. The Applicants were not aware of this case at the lower court.
6. The Applicants only became aware of the case through one of the family members who is a legal practitioner and coincidentally in court for another matter when he heard the case being mentioned at the Court of Appeal in Benin.
7. The Applicants now being aware immediately filed Application for joinder of the Appeal on 07-09-2009 at the Benin Division of this Honourable Court
8. The Applicants withdrew the Application for joinder when the present named 1st & 2nd Respondents were substituted for the deceased 1st Respondent, by the order of this Honourable Court on 10-03-2011.
9. The grant of this Application will ensure holistic consideration of the case by this Court and avoid multiplicity of action and proceedings.
10. The Applicant need and are seeking the leave of this Honourable Court to appeal as interested persons.
11. The Applicants also need and are seeking the leave of this Honourable court to file their Notice of Appeal.”

In support of the application is a 41 paragraph no less copious affidavit. It was deposed to by the 1st Applicant on behalf of himself and the other 4 applicants.

The 1st and 2nd Respondents filed a 16 paragraph counter affidavit to oppose this application wherein they denied and challenged paragraphs 2 to 27, 30, 31, 34, 36, 38 – 41 of the affidavit in support. It was deposed to by the 1st Respondent on behalf of himself and the 2nd Respondent.

The court ordered respective learned counsel to file and exchange written addresses. The address of the Applicants is dated 19/11/12 but filed on 22/11/12. The 1st and 2nd Respondents responded with an address dated and filed on 16/01/13 but deemed properly filed and served on 19/2/13. The other set of Respondents did not join issues with the applicants and did not file written address. The reply address of the Applicants to the address of the 1st and 2nd Respondents is dated 5/2/13 but deemed filed and served on 19/2/13.

At the hearing of the application on 19/2/13 respective counsel who filed written addresses adopted and relied on same. After adopting his written address, learned Counsel Mr. Ogungbamila for the Applicants relied on all the arguments and submissions therein and urged on the court to grant the application, while learned Counsel Mr. Atewe for the 1st and 2nd Respondents urged on the court to refuse the application and dismiss same. On behalf of the Appellants/Respondents, learned Counsel Mr. Abioje told the Court that he had no objection to the granting of the application. Mr. Omotayo, learned Counsel to the 3rd Respondent indicated that he too had no objection to the granting of the application, while respective learned counsel to the 4th and 5th respondents and 6th Respondent, though duly served with hearing notice, were not in court on 19/2/13.