Professor Ogbuefi Joseph Edozien & Ors Vs Chief (Engr) Onia Edozien (1993)

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OLATAWURA, J.S.C.

This application before us has nothing to do with the merit of the appeal filed against the judgment of the Court of Appeal, Benin Division delivered on 28th June, 1991. It raises issue of procedure as to the legality or propriety of withdrawing a “notice” already filed by an appellant that he does not wish to prosecute the appeal. To withdraw an appeal is straightforward and uncomplicated but to withdraw a notice already filed has now given rise to the eloquent submissions made before us. Whatever be the merits of this application, it is necessary to state background facts which are not in issue.

The plaintiff at the court of trial sued the defendants and claimed the following reliefs

“1. A declaration that in accordance with the Customary Law of Asaba, the provisions of the Traditional Rulers and Chiefs Edict 1979. and of 8.S.L.N. 139 of 1979, regulating the succession to the title of Asagba of Asaba, it is the turn of Umuezei (Ezenei) Quarter of Asaba to nominate, select and present a candidate for appointment as the next Asagba of Asaba.

2. A declaration that pursuant to the Customary Law of Asaba, the provisions of the Traditional Rulers and Chiefs Edict, 1979. and of B.S.L.N. 139 of 1979 regulating the succession to the title of Asagba of Asaba no candidate or candidates have been nominated by the said Umuezei Quarter of Asaba.
3. A declaration that pursuant to the Customary Law of Asaba and provisions of the Traditional Rulers and Chiefs Edict, 1979, and of B.S.L.N. 139 of Asagba of Asaba, no candidate or candidates have been duly presented to the 2nd defendant for the vacant stool of Asagba of Asaba.
4. A declaration that the purported meeting summoned on 31st January, 1990 by the 2nd defendant was summoned, and/or constituted contrary to the Customary Law of Asaba, the provisions of the Traditional Rulers and Chiefs Edict 1979, and of B.S.L.N. 139 of 1979, regulating the succession to the title of Asagba of Asaba, and in further violation of the principles of natural justice, equity and good conscience and accordingly illegal, unconstitutional, null and void and of no effect whatsoever.
5. A declaration that the Customary Law of Asaba, the provisions of the Traditional Rulers and Chiefs Edict 1979, and of B.S.L.N. 139 of 1979, regulating the succession to the title of Asagba of Asaba, “adult males” include males of the age of 18 to 55 years and accordingly are entitled to attend meeting participate, or vote in the nomination, selection, and/or presentation of the next Asagba of Asaba.
6. A declaration that the 1st defendant has not been duly nominated, presented and or/ selected as the next Asagba of Asaba, in accordance with the Customary Law of Asaba, the provisions of the Traditional Rulers and Chiefs Edict 1979, and of B.S.L.N, 139 of 1979, regulating the succession to the title of Asagba of Asaba.
7. An order settling (sic) aside the purported selection of 1st defendant as the next Asagba of Asaba.
8. An order of injunction restraining the defendants, jointly and severally, from parading, holding-out, presenting, recognizing and/or installing the 1st defendant as the next Asagba of Asaba.”

Pleadings were filed by the plaintiff and 1st-3rd defendants. Interlocutory applications were made by the plaintiff and the 1st to 3rd defendants. Rulings were delivered by the learned Judge. The ex-parte application filed by the plaintiff for an order of interim injunction restraining the 1st defendant from parading, holding out or presenting himself as or for installation as Asagba of Asaba and other prayers pending the determination of the substantive application was granted on 12-12-90. Consequently the 1st, 2nd and 3rd defendants brought an application for the discharge of that order. It was refused on 31st January, 1991. The substantive application for the interlocutory injunction was granted.

The 1st, 2nd and 3rd defendants filed a motion on notice praying the court for:

“An order dismissing/striking out the action of the plaintiff/respondent as the court as at present stage lacks jurisdiction as the condition precedent to assuming jurisdiction has not been compiled with.”

On 15th February 1991, the application was dismissed. On 18th February, 1991 the 1st-3rd defendants filed notice of appeal against the said ruling of 15th February, 1991. On 19th, 1991 the 1st-3rd defendants also filed an appeal against the ruling of 7th February 1991 whereby the learned Judge granted the application for interlocutory injunction. In sum there were two appeals to the Court of Appeal. One was allowed and the other dismissed. The 1st-3rd defendants appealed against the decision of the lower court dated 28th June, 1991. On an application dated 13th March, 1992 and filed on 18th March, 1992, the 1st-3rd defendants (hereinafter referred to as the applicants) filed an application praying this Court:

“for an order granting the 1st, 2nd and 3rd defendants leave to withdraw the NOTICE OF WITHDRAWAL OF APPEAL” filed at the Registry of the Supreme Court on 7th February, 1992 OR otherwise to retain or restore the appeal on the list so that it may be heard on the merit and for such further or other orders as the Supreme Court may deem fit to make.”

There is an affidavit in support of the application. The material averments in the said affidavit are paragraphs 4-18 which read as follows:

“4. On 25th July, 1991 the 1st, 2nd and 3rd defendants filed a motion praying for an order staying or adjourning proceedings in the suit pending the determination of the appeal to the Supreme Court.

5. The motion for stay of proceedings was argued before Edah, J. and ruling thereon was adjourned to 11th December, 1991 but before 11th December, 1991 the matter had been transferred to another Judge Maido, J. and nothing further has yet been said or done about the motion.
6. Because the plaintiff had not been served, the suit was on 10th December, 1991 before Maido, J. adjourned to 17th December, 1991 and thence to 6th January, 1992 for service.
7. On 6th January, 1992, Chief Olisa Chukura was sworn in as Chairman of the Lagos and Ogun States Governorship and Legislative Houses Tribunals and he left the files with me and my senior colleague, Cyril O. Okonkwo, Esquire.
8. On 23rd January, 1992 the trial Judge indicated that he would wish to hear the case as he was specially assigned by warrant to travel from his station at Agbor to Asaba for the case and would not allow interlocutory matters to delay the hearing.
9. Leading Counsel for the plaintiff; Dr. Ilochi Okafor, raised the issue of the pending appeal in the Supreme Court which raised the question of jurisdiction. He urged that the appeal be discontinued so that the trial would begin and be completed if possible on the next adjourned dates i.e. 18th and 20th March, 1990.
10. I thereupon settled and filed a Notice of withdrawal of the appeal at the Registry of the Supreme Court on 7th February, 1992.
11. When Chief Chukura returned to Asaba during the first week in March, he questioned the propriety of withdrawing the appeal and directed that steps be taken to have it restored on the cause list for hearing on the merit.
12. The record of appeal has not been sent to the Supreme Court from the Court of Appeal, Benin City.
13. The Notice of withdrawal of the appeal was signed by myself alone. Neither the plaintiff nor counsel representing him joined in signing or presenting the Notice of withdrawal.
14. The appeal raises important and substantial issues of constitutional and administrative law, particularly, the issue of the fundamental right of fair hearing.
15. The appeal has not been called up for hearing at the Supreme Court.
16. On 11th February, 1992 the plaintiff filed a motion seeking leave to amend his statement of claim but after argument the application was dismissed.
17. The plaintiff appealed from this dismissal on 21st February, 1992 and on 3rd March, 1992 applied for a stay of proceedings pending the determination of his appeal. This was served on me on 9th March, 1992.
18. I agreed to, and did, withdraw the appeal to the Supreme Court on the prospect of a speedy hearing of the suit – without consultation with senior counsel leading me (who was not then available).”

The plaintiff (hereinafter referred to as the respondent) filed a counter-affidavit. The counter-affidavit was filed by one of his Solicitors. Mr. Onyekwuluje deposed in paragraphs 2-15 as follows:

“2. That I am an associate in the legal firm of Okafor, Okere, Ugolo & Co. the Solicitors to Chief (Engr) Onia G. Edozien, the plaintiff/ respondent in the above-mentioned matter.

3.That on 6/1/92, I appeared alone on behalf of the Chambers for the plaintiff/respondent, and informed the court that the suit was not ripe for hearing since there were pending an appeal to the Supreme Court challenging the jurisdiction of the Honourable Court as well as a motion for stay of proceedings pending the determination of said appeal.