<sub>Court Of Appeal – Lagos Division

APPEAL NO: CA/L/702A/2010</sub>

<sub>Areas Of Law
APPEAL, COURT, CUSTOMARY LAW, ESTOPPEL, PRACTICE AND PROCEDURE

Summary Of Facts
This action was commenced by way of writ of summons at High Court of Lagos State, Ikorodu Division by the 1st Respondent as Claimant against the Appellants claiming a declaration that he was lawfully and legally nominated for the appointment and installation as the next Oba Olubeshe of Ibesheland in Ikorodu Local Government of Lagos State, a declaration that the 6th Defendant was never selected, nominated for the appointment or installation as the next Oba, an order setting aside any chieftaincy declaration regulating succession to the said stool among other reliefs.</sub>

_{Following the vacancy in the stool of Oba Olubeshe of Ibeshe Land, the 1st Respondent was nominated for the stool by the Bisoro Royal Family which was entitled to nominate the next Oba. The 1st Respondent’s nomination was approved and ratified by the Committee of Kingmakers and the entire Ibeshe people in accordance with the native law, custom and tradition.}

_{Subsequently, the 4th Respondent with the connivance of the Appellants sought to usurp the said position of Oba contrary to the wishes of the people hence the institution of this action at the trial court. When the matter came up for the first time it was adjourned for the hearing of the 1st Respondent’s motion for interlocutory injunction.}

_{This was followed with the news that the 4th Respondent has been installed as the Oba of Ibeshe by the Appellants and 2nd and 3rd Respondents and this prompted the 1st Respondent to file an application praying for an order of Court setting aside the purported installation.  The Appellants as well as the 2nd to 4th Respondents reacted by filing counter affidavits.}

_{The trial Judge in a considered ruling dismissed the preliminary objection to the suit as well as the 1st Respondent’s application to set aside the purported installation of the 4th Respondent as the Oba of Ibeshe. Subsequently, the 1st Respondent applied to the Court for a subpoena ad testificandum to be issued against the 4th Respondent and six other persons with a motion on notice praying the Court for an Order compelling all seven subpoenaed witnesses to orally testify in the suit by way of examination –in-chief, cross-examination and re-examination.}

_{In reaction to this, the Appellants, the 2nd to 4th Respondents and other persons subpoenaed applied to the Court by way of motion on notice to set aside the writs of subpoena. The trial Judge dismissed all the five applications challenging the issuance of the writ of subpoena but granted the 1st Respondent’s application. Aggrieved with the said ruling the Appellants have appealed to the Court of Appeal.}

<sub>Held
Appeal Dismissed.

Issues For Determination</sub>

• _{Whether the doctrine of issue estoppel can arise within the same case and not only within two different cases.}
• _{Whether considering the content and decisions of the Learned Trial Judge in the Ruling of 9th October 2008, where and when the installation of the 4th Respondent took place has been conclusively decided to constitute issue estoppel.}
• _{Whether the Learned Trial Judge was right to conclude that no improper motive or object has been shown on the part of the 1st Respondent considering the assertion in his argument was to establish where and when was the purported installation of the 4th Respondent done.}
• _{Whether the provisions of Order 32 Rules 1, 16 and 17 of the High Court of Lagos State (Civil Procedure) Rules 2004 is mandatory as to deny the Trial Judge exercise of discretionary power or to have recourse to Section 2 of the High Court of Lagos State (Civil Procedure) Law and Order 32 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules 2004.}
• _{Whether the immaculate conduct of counsel within the ambit of the Rules of court, procedure and ethics of the profession deservedly entitled to have the unmeritorious and virulent comments by the Learned Trial Judge on pages 10-11 of the Ruling expunged from the proceedings?}

_{Rationes
ISSUE ESTOPPEL – CONDITION PRECEDENT TO THE APPLICATION OF ISSUE ESTOPPEL
“The condition precedent to  the application of issue estoppel is based on the principle of law that a party is precluded from contending the contrary of any specific point which having been once distinctly put in issue has with certainty been determined against him.  See Bwacha Vs Ikenya (2011)3 NWLR (Pt 245)610.”PER S. C.OSEJI, J.C.A.}

ISSUE ESTOPPEL – ELEMENTS NECESSARY FOR DETERMINING WHETHER ISSUE ESTOPPEL WILL BE APPLICABLE.
_{“Where the elements necessary for determining whether issue estoppel will be applicable were listed as follows:-
a.    Whether the parties in the previous     proceedings and the current proceedings are the same.
b.     Whether the issues are material to the cause of action in the previous and in the letter case and
c.     Whether the issue has been resolved in the previous case. See also Ikeni Vs Efamo (2001)10 NWLR (Pt 720)1; Ebba Vs Ogodo (2000) 10 NWLR (Pt 675) 387,  Inakoju Vs Adeleke (2001) 1 SC (Pt 1) page 1 at 127.”PER S. C.OSEJI, J.C.A.}

EXERCISE OF THE DISCRETION BY A TRIAL COURT – WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE EXERCISE OF THE DISCRETION BY A TRIAL COURT?
<sub>“The appellate Courts are always reluctant to interfere with the exercise of the discretion by a trial Court in the absence of proof that it was wrongly exercised. There is no hard and fast Rule guiding the exercise of discretion by a Court and the reason is not farfetched. It is to ensure that the power of discretion is not unduly fettered. See Adeleke Vs Aserifa (1990) 5 SC (Pt 1) 104; Efetiroroje Vs Okpalefe II (1991) 5 NWLR (Pt 193) 517.”PER S. C.OSEJI, J.C.A.

Statutes Referred To
High Court of Lagos State (Civil Procedure) Rules 2004
High Court of Lagos State (Civil Procedure) Rules 2012</sub>