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PRINCE PAUL OMOMZUAWO & ANOR v. CHIEF YAKUBU UGBODAGA (JP) & ORS.

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PRINCE PAUL OMOMZUAWO & ANOR v. CHIEF YAKUBU UGBODAGA (JP) & ORS.

PRINCE PAUL OMOMZUAWO & ANOR v. CHIEF YAKUBU UGBODAGA (JP) & ORS.

https://legalpediaonline.com/prince-paul-omomzuawo-anor-v-chief-yakubu-ugbodaga-jp-ors/

(2021) Legalpedia (CA) 99013

In the Court of Appeal

HOLDEN AT BENIN

Wednesday, March 24, 2021

Suite Number: CA/B/33/2007

 

CORAM

OYEBISI FOLAYEMI OMOLEYE

BIOBELE ABRAHAM GEORGEWILL

FREDERICK OZIAKPONO OHO

PRINCE PAUL OMOMZUAWO  |  CHIEF YAKUBU UGBODAGA (JP)

 

 

AREA(S) OF LAW

APPEAL

CHIEFTAINCY MATTER

CONSTITUTIONAL LAW

INTERPRETATION OF STATUTE

JUDGMENT AND ORDER

JURISDICTION

PRACTICE AND PROCEDURE

RES JUDICATA

SUMMARY OF FACTS

By a Writ of Summons and their 6th Amended Statement of Claim, the Appellants before the High Court of Edo State, Fugar Judicial Division, claimed against the Respondents for declaratory reliefs, Order of perpetual injunctions, amongst other reliefs. The action was instituted by the Appellant over Chieftaincy disputes relating to the appointment of the Annegbette Village headship and the Clan head of South Uneme Clan in Etsako Central Local Government Area of Edo State challenging the selection and appointment of the 1stRespondent as the Clan Head of South Uneme made on 3/9/80 by the 2nd Respondent. In reaction, the Respondents denied the Claims of the Appellants and by their 6th amended Statement of Defense challenged the competence of the Appellants’ suit on the ground that it was incompetent by reason of failure to comply with the provisions of Section 19(2) of the Traditional Rulers and Chiefs Edict 1979, a condition precedent prescribing the making of a complaint within 21 days of the appointment of a Traditional Ruler to the Executive Council of Edo State before an action challenging the appointment of the Traditional Ruler can be commenced in Court. The trial Court delivered its ruling in which it upheld the preliminary objection of the 1st Respondent and dismissed the Appellants’ Suit for being incompetent. The Appellants being dissatisfied with the said ruling, had appealed against it vide their Notice of Appeal containing four Grounds of Appeal

HELD

Appeal Allowed In Part

Issues Of Determination

Whether from the Appellants’ Pleadings as contained in their Statement of Claim they have not shown substantial and sufficient compliance with the provision of Section 19 (2) of the Traditional Rulers and Chiefs Edict 1979? Whether it is not an abuse of Court process to re-argue the issue of noncompliance with Section 19 (2) of the Traditional Rulers and Chiefs Edict 1979 after the issue had been previously raised by the 1stDefendant as noncompliance with Section 20 of the Chiefs Law Cap 37 Laws of Bendel State 1976 which is identical with the provision Section 19 (2) of the Traditional Rulers and Chief’s Edict 1979 and which had been argued and determined by the Court below? Whether the Court below was right to dismiss the claim of the Appellants’ Suit for want of Jurisdiction?

RATIONES

APPOINTMENT OF A TRADITIONAL RULER – CONSEQUENCES OF NON-COMPLIANCE WITH THE CONDITION PRECEDENT ON THE VALID EXERCISE OF THE RIGHT OF ACTION TO CHALLENGE THE APPOINTMENT OF A TRADITIONAL RULER IN COURT

“In law, the representation to be made after the appointment or selection of a person under the said law is a statutory mandatory condition precedent and must be complied with before any valid Suit can be initiated in Court by any aggrieved person over such an appointment made pursuant to the said law. The failure of the Appellants so to do, in compliance with the prescription of the said law therefore, in my finding, rendered their Suit incompetent and incurably defective and thus liable to be terminated in limine. Indeed, in law the Court below lacks the jurisdiction, as it rightly held, to entertain an incompetent Suit, such as the Appellants’ Suit. See Section 19 (2) of the Traditional Rulers and Chiefs’ Edict 1979. See also AG. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552; Madukolu V. Nkemdilim (1962) SCNLR 341; Tukur V. Gongola State Government (No. 2) (1989) 4 NWLR (Pt. 117) 517; Western Steel Works Ltd. V. Iron & Steel Workers Union (1987) 1NWLR (Pt. 49) 284; Nigeria Universal Bank Ltd. V. Samba Petroleum Coy Ltd (2006) 12 NWLR (Pt. 993) 98; Ubwa V. Bashi (2008) 4 NWLR (Pt. 1077) 303. –

Per B. A. GEORGEWILL, J.C.A

‘MAY’ – INSTANCE WHEN THE WORD “MAY” WILL CONNOTE A MANDATORY APPLICATION

“I am aware that in coming to the conclusion that the Appellants’ Suit was incompetent the word used in Section 19(2) of the Traditional Rulers and Chiefs Edict 1979 in relation to the requirement for representation after the appointment of a person under the said law as a Traditional Ruler is ‘may’ which ordinarily is interpreted to mean permissive. Yet, it is now trite in law that where the word ‘may’ is used but a right or obligation is thereby conferred, then the word ‘may’ is to be interpreted as ‘shall’ and is taken as mandatory. In the instant appeal looking holistically at the provisions of Section 19 of the said law conferring an obligation or duty as well as rights on the Appellants, I hold that the use of ‘may’ in that sub – Section (2) of Section 19 of the said law amounts to ‘shall’ and is therefore, mandatory. See Adesola V. Abidoye (1999) 14 NWLR (Pt. 637) 28 @ p. 56, where the Supreme Court per Karibi – Whyte JSC,(may God bless his soul) and pronounced with finality inert alia thus: “The construction of the word “may” in provisions of statutes has always raised difficulties. This is not because of the impression of the word….because the word “may” assumes a technical meaning depending upon the intendment of the statutory provision in which it is used. Although the etymological meaning of “may” is permissive and facultative and seldom can mean “must” and imperative it assumes this last mentioned character; when there is anything in the provision that makes it the duty on the person on whom the power is conferred to exercise that power. When the exercise of the power is coupled with a duty on the person to whom it is given to exercise it, then it is imperative. In the instant case, there is a duty on the aggrieved who desires to set aside the decision of the prescribed authority to make his representation to the Commissioner for Chieftaincy Affairs within twenty- one days of the decision. The use of the expression ‘may’ in this situation is not merely facultative, but mandatory. There is no alternative. The aggrieved has no choice of action in the remedy provided for him…. Accordingly, the word ‘may’ in Section 22(5) of the Chiefs Lew of Oyo State, 1978 should be construed as imperative/ the exercise of the right not being optional.” See also Bakare V. Attorney-General of the Federation (1990) 5 NWLR (Pt. 152) 516; Adesola V. Ayeoba (2009) All FWLR (Pt. 458)355; Adegbenro V. Akintilo (2010) 3 NWLR (Pt. 1182) 541; Adigun V. Osaka (2003) 5 NWLR (Pt. 812)126. –

Per B. A. GEORGEWILL, J.C.A

ERROR IN JUDGMENT – WHETHER EVERY MINOR ERROR OR MISTAKE OR EVEN INADVERTENCE WILL RESULT TO A REVERSAL OF THE DECISION OF A LOWER COURT BY AN APPELLATE COURT

“It cannot therefore, not being of any crucial effect on the decision of the Court below, warrant any reversal of the Ruling of the Court below since in law it is not every minor error or mistake or even inadvertence that would result into a reversal of the decision of a lower Court by an appellate Court. See Nwosu V. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 @ p. 717. See also Fadlallah V. Arewa Text. Ltd (1997) 8 NWLR (Pt. 518) 559; Ayoola V. Adebayo (1969) All NLR 754 @ p. 158. –

Per B. A. GEORGEWILL, J.C.A

ABUSE OF COURT PROCESS – DEFINITION OF THE TERM ‘ABUSE OF COURT PROCESS’

“The term ‘abuse of Court process’ relied upon by the Appellants to contend that the 1stRespondents’ second application was incompetent, is often seen to be synonymous with multiplicity of Suits or of Court processes, but though that in a way is a correct proposition of the law yet abuse of Court process is much more than mere multiplicity of Suits. In other words, mere multiplicity of Suits or processes is not the only way by which abuse of Court process could be constituted. Simply put, and for lack of a precise or concise definition of the term ‘abuse of Court process’ it denotes the improper use of the process of Court to achieve unlawful ends or the employment of the judicial process to the annoyance or irritation or injury of the person of another and thus it can safely pass as a doctrine of law without any precise or concise definition. See Dana Airlines Limited V. Mrs. Grace Eventus Mbong & Ors (2017) LPELR- 43052 (CA) per Georgewill JCA. See also Dana Airlines Ltd .V. Yusuf & ors (2017) LPELR 43051 (CA) per Georgewill JCA.

Per B. A. GEORGEWILL, J.C.A

ABUSE OF COURT PROCESS – DUTY OF COURT IN CONSIDERING WHETHER AN ACTION CONSTITUTES AN ABUSE OF COURT PROCESS

“In considering whether or not an action or process constitutes an abuse of Court process, the Court is to critically consider the peculiar facts and circumstances of each case in which the issue of abuse of Court process is raised to determine whether in the peculiar circumstances of the affected case, the act of the party complained of constitutes an abuse of Court process. Happily, over the years authorities have become legion as are replete in the law reports providing some form of guide in carrying out the consideration of whether or not an abuse of Court process has been occasioned by the process of a party. See Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156. See also Daniel V. FRN (2014) 8 NWLR (Pt. 1410) 570; Harriman V. Harriman (1989) 5 NWLR (Pt. 1199) 6; Ukachukwu V. PDP (2014) 4 NWLR (Pt. 1396) 65; CPC V. Omgbgadu (2013) 18 NWLR (Pt. 1385) 66; Chime V. Onyia (2009) 2 NWLR (Pt. 1124) 1; Abubakar V. Bebeji Oil and Allied Products Ltd. (2007) 18 NWLR (Pt. 1066) 319; Adesokan V. Adegorola (1991) 3 NWLR (Pt. 179) 293; Umeh V.Iwu (2008) 8 NWLR (Pt. 1089) 225. The corollary to the above fluid state of uncertainty and imprecise definition of the term ‘abuse of Court process’ is ironically the settled certainty that the factual situations or categories of facts or circumstances that may constitute or amount or give rise to abuse of Court process are never closed and therefore, has no exhaustive list thereof and thus would largely depend on the peculiar facts and circumstances of each case. See Ette V. Edoho (2009) 3 NWLR (Pt. 1144) 601 @ p. 609. See also PDP V. Obi (2009) 3 NWLR (Pt. 1128) 327 @ pp. 339 – 340; Umeh V. Iwu (2008) 8 NWLR (Pt. 1089) 225; Benkay nig. Ltd. V. Cadbury Nig Plc. (2006) 6 NWLR (Pt. 976) 338.-

Per B. A. GEORGEWILL, J.C.A

LACK OF JURISDICTION – EFFECT OF LACK OF JURISDICTION

My lords, the objection of the 1st Respondent challenging the Appellants’ Suit, and which was set down for hearing by the Court below dealt with the radical issue of competence, which is a threshold question of jurisdiction. In law the issue of jurisdiction is very fundamental to adjudication because it goes to the foundational competence of any cause or matter or action before the Court. It is indeed the epicenter of the entire litigation process and thus, without it there can be no validity in any proceedings or resultant judgment or ruling of the Court. Thus, without jurisdiction there can be no competence in the Court to exercise its adjudicatory powers. In such a sitaution, zealousness to do substantial justice, where there is no competnece, is not a virtue! It is simply over zealousnesss. This is so because ‘without jurisdiction, the laborers that is the litigant and counsel on the one hand and the court on the hand labor in vain’ See AG. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552, per Kayode Eso JSC (God bless his soul). See also Madukolu V. Nkemdilim (1962) SCNLR 341. See also Tukur V. Gongola State Government (No. 2) (1989) 4 NWLR (Pt. 117) 517; Western Steel Works Ltd. V. Iron & Steel Workers Union (1987) 1NWLR (Pt. 49) 284. –

Per B. A. GEORGEWILL, J.C.A

JURISDICTION OF COURT – IMPLICATION OF NON-COMPLIANCE WITH A CONDITION PRECEDENT THAT CONFERS JURISDICTION ON A COURT TO DETERMINE A SUIT

This is why, in my view, the law insists on compliance within 21 days of the appointment with the provisions of Section 19(2) of the Traditional Rulers and Chiefs Edict 1979 before resort is had to litigation in the Courts. The Appellants were in law thus under a duty to explore first all the local remedies made available to them by the very law under which they seek to exercise their rights to the remedies they claim against the Respondents before the Court below vide their Writ of Summons and 6th Amended Statement of Claim. Thus, to insist as the 1st Respondent did on prior compliance with the relevant provisions of the law before the filing of the Appellants’ Suit, and with which contention the Court below agreed by its ruling now appealed against, is in my view noble and legal as well as valid and proper. The Appellants are bound to follow and take and fulfill all the procedural steps as provided for and or prescribed in the said law for the valid exercise of their rights to challenge in the Court below the appointment of the 1st Respondent on 3/9/1980 as the Clan Head of South Uneme, to which they are vehemently adverse. It is the law and indeed the right way to go about it! See Owoseni V. Faloye (2005) 14 NWLR (Pt. 946) 719 @ p. 757. In Aladeyobi V. Nigeria Bar Association (2015) EJSC 81, the Supreme Court per Fabiyi JSC, had reiterated and reechoed the succinct position of the law inter alia thus: “The law provides that the appellant should appeal to the Appeal Committee of the Body of Benchers. He must exhaust all the remedies by filing his appeal at the Appeal Committee from where he may have a lee way to imbue this Court with Jurisdiction. Perhaps, it should be further stated that the failure of the Appellants to file his appeal before the Appeal Committee of the Body Benchers against the direction of the legal practitioners Disciplinary Committee before filing appeal in this Court engenders incompetence which cannot be cured. This is because the condition precedent to confer jurisdiction on this Court has not been fulfilled” See also Aribisala V. Ogunyemi (2005) 6 NWLR (Pt. 921) 212 @ pp. 231 – 232; Ogologo V. Uche (2005) 14 NWLR (Pt. 945) 226 @ p. 245; Lawal V. Oke (2001) 7 NWLR (Pt. 711) 88 @ pp. 106-107. –

Per B. A. GEORGEWILL, J.C.A

CHIEFTAINCY LAW – EFFECT OF FAILURE TO EXHAUST ALL LOCAL REMEDIES IN A STATUTE BEFORE RECOURSE TO LITIGATION UNDER THE CHIEFTAINCY LAW

“Thus, it would appear that the decisions in Osagie II V. Offor (1998) 3 NWLR (Pt. 541)205and Okafor & Ors. V. AG. Anambra State & Ors. (1992) 8 LRCN 407, to the effect that regardless of remedies provided for in the Chiefs’ Law an aggrieved person has the unfettered right of access to the Court to ventilate his grievances, are in direct conflict with the decisions in Adesola V. Ayeoba (2009) All FWLR (Pt. 458) 355; Adegbenro V. Akintilo (2010) 3 NWLR (Pt. 1182) 541; Adigun V. Osaka (2003) 5 NWLR (Pt. 812)126; Owoseni V. Faloye (2005) 14 NWLR (Pt. 946) 719; Aribisala V. Ogunyemi (2005) 6 NWLR (Pt. 921) 212 @ pp. 231 – 232; Ogologo V. Uche (2005) 14 NWLR (Pt. 945) 226and Lawal V. Oke (2001) 7 NWLR (Pt. 711) 88, to the effect that that local remedies in a statute must be exhausted before recourse to litigation under the Chieftaincy Law.

Per B. A. GEORGEWILL, J.C.A

DECISION OF COURT – DUTY OF THE COURT OF APPEAL WHEN FACED WITH CONFLICTING DECISIONS OF THE SUPREME COURT

“However, in law this Court when faced with two or more conflicting decisions of the Supreme Court it is bound to follow the latter decision. Thus, on the issue at hand, the latter set of decisions being the recent decisions of the Apex Court are the decisions this Court is bound to follow for the just determination of this appeal. In Osakue V. FCE (2010) 10 NWLR (Pt. 1201) 1 @ p. 29, where the Supreme Court per Ogbuagu JSC, had admonished inter alia thus: ” .. .It is now settled that where there are conflicting judgment of this Court the lower Court or Courts/ is or are bound by the later decision and must follow and apply it” See also Fapohunoa V. RCCN Ltd (2019) 3 NWLR (Pt. 1658) 163 @ pp. 183 – 184. See also Roe Ltd V. UNN (2018) 6 NWLR (Pt. 1616) 420 @ p. 434; Obinweubi V. CBN (2011) 7 NWLR (Pt. 1247) 465 @ p. 501. –

Per B. A. GEORGEWILL, J.C.A

CHIEFTAINCY DISPUTE – CONSEQUENCE OF NON-COMPLIANCE WITH THE MANDATORY STATUTORY PRECONDITION UNDER SECTION 19 (2) OF THE TRADITIONAL RULERS AND CHIEFS EDICT 1979 FOR THE COMMENCEMENT OF CHIEFTAINCY DISPUTE

“This is why, in my view, the law insists on compliance within 21 days of the appointment with the provisions of Section 19(2) of the Traditional Rulers and Chiefs Edict 1979 before resort is had to litigation in the Courts. Thus as far as the requirements of Section 19(2) of the Traditional Rulers and Chiefs Edict 1979 is concerned, such efforts having not been made after the appointment of the 1st Respondent on 3/9/1980 do not amount to neither partial or substantial compliance with the precondition mandatory statutory requirements of the said law and I so hold. I therefore, find the vehement contentions of the Appellants that such representations can be made at any stage of the selection process as not only untenable but clearly going against the grain of the very law under which their right to complaint was recognized and conferred upon them. See Olarenwaju V. Oyesomi (2015) EJSC 171 see also Aladeyobi V. NBA (2015) EJSC 81.

Per B. A. GEORGEWILL, J.C.A

RIGHT OF ACCESS TO COURTS – WHETHER PRE-CONDITIONS FOR THE VALID COMMENCEMENT OF ACTIONS IN THE HIGH COURT AMOUNTS TO AN INFRINGEMENT ON THE RIGHT OF ACCESS TO THE COURTS OR OPERATES AS AN OUSTER OF THE JURISDICTION OF THE COURTS

“It has been argued by the Appellants that the jurisdiction of the Court below, being the High Court of Edo State, is unlimited and the right of the Appellants to approach the Court below to ventilate their grievance is both constitutional and sacrosanct and I cannot but agree with that contention as none can begrudge them of their inalienable right of access to the Courts to ventilate their grievances than a resort to self – help yet there are proper procedures and valid conditions precedent for the valid exercise of those inalienable right of access to the Courts. For instance, to commence an action before the High Court a person must do so in line with the Rules of the Court and thus may not be able to validly commence an action outside the prescription of the Rules of the Court and other enabling Law in that regards, A person cannot just walk into the High Court and merely announce that he has a grievance against another person but must do so through his Writ of Summons or other prescribed valid means or modes of commencement of actions in the High Court. In my thinking, and I so hold, such measures or prescription do not amount to any denial of or any infringement on the right of access to the Courts. It also does not, in my view, amounts to an ouster of the jurisdiction of the Courts as constitutionally vested upon them. See Owoseni V. Faloye (2005) 14 NWLR (Pt. 946) 719 @ p. 757, where the Supreme Court per Oguntade JSC, had reiterated inter alia thus: “It is important to stress that laws which prescribe that some procedural steps be taken to resolve a dispute before embarking on actual litigation are not and cannot be treated or categorized as ousting the jurisdiction of the Court. Indeed if such laws attempt to do so they would be in conflict with the provisions of the Constitution. Such laws only afford the body to which such disputes must be referred to in the first instance an opportunity to resolve the dispute if it can before recourse is had to the Court. In other words they serve the purpose of preventing actual litigation in Court where it is possible or desirable to resolve the dispute. In relation to Chieftaincy matters where such laws not in existence the Courts would be inundated with Suits on Chieftaincy matters given the bitterness with which Chieftaincy disputes are pursued and the regularity with which such disputes occur …” I am aware that in Abu V. Udugbo (2001) Vol. 7 MJSC 87, the Supreme Court had made it abundantly clear that every citizen has an inalienable right to seek redress at the High Court once a prescribed authority has taken a decision. However, the requirement that a complaint and or representation be made to the Executive Council against the appointment of the 1St Respondent within 21 days of his being so appointed or selected on 3/9/1980, on the copious authority of the several decisions of the Apex Court earlier relied upon in this judgment, does not in any way distract from the rights of the Appellants to in compliance with the law approach the Court below for the ventilation of their grievances. After all, it is under the same law which they are proceedings to claim the reliefs made available to any interested person or Ruling House or unsuccessful candidate and therefore, requiring them to comply with the steps provided for in the same law, to say the least, does not in any way infringe upon their right of access to Court or oust the jurisdiction of the Court below. In law, ouster of jurisdiction of the Courts, which both the Courts and democratic societies frown at, is a condition which arises when a Court which once had jurisdiction over a matter ceases to retain its jurisdiction by operation of subsequent law. So, can it be seriously argued that in law Section 19(1) & (2) of the Traditional Rulers and Chiefs Edict 1979 amounted to an ouster clause? I think not! See Salami V. Chairman, LEDB & Ors (1989) LPELR – 2983 (SC).See also Goldsac V. Shore (1050) I All ER 276 @ p. 277 per Evershed, M.R.-

Per B. A. GEORGEWILL, J.C.A

ABUSE OF COURT PROCESS – ESSENTIAL ELEMENTS THAT CONSTITUTES ABUSE OF COURT PROCESS

“I have also averted my mind sufficiently to the essential elements that would constitute abuse of court process, namely: a; There must be, at least, two matters filed in two different courts. b; The said different suits are instituted with the goal of pursuing the same rights (even though on different grounds). c; The subject matter and or the questions for determination in the two suits must be substantially the same. d. Frivolous and scandalous use of a lawful Court process to the irritation and embarrassment of another party. In Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156 @ p. 188, the Supreme Court had opined inter alia thus: “The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions….It is recognized that the abuse of the process may be in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice.” See also Ogoejeofo V. Ogoejeofo (2006) 3NWLR (Pt. 966)205; Ziklagsis Network Ltd V. Adebiye &Ors (2017) LPELR- 42899 (CA) –

Per B. A. GEORGEWILL, J.C.A

PRINCIPLE OF RES JUDICATA – CONDITION PRECEDENT FOR THE APPLICABILITY OF THE PRINCIPLE OF RES JUDICATA – TYPES OF ESTOPPEL

“However, as for the principle of res judicata to apply in any given proceedings, all the pre – conditions to a valid plea of estoppel must be shown to exist, namely: (1) the same question must be for decision in both proceedings, (2) the decision relied upon to support the plea of issue estoppel must be final, and (3) the parties must be the same or their privies. See Osunrinde& Ors V. Ajamogun & Ors (1992) LPELR – 2819 (SC). See also Fadiora V. Gbadebo (1978) 2 SC 219; Ladega V. Durosimi (1978) 3 SC 91. Thus, in law where a Court of competent jurisdiction has settled, by a final decision, the matters in dispute between the parties neither party nor his privy may re – litigate that issue again by bringing a fresh action. The matter is said to be res judicata. There are two kinds of this estoppel, namely: cause of action estoppel and issue estoppel. For ‘cause of action estoppel it would occur once it appears that the same cause of action was held to lie or not to lie in a final judgment between the same parties, or their privies, who are litigating in the same capacity and on the same subject matter. Once this occurs, there must be an end to the matter, the parties are thereby precluded from re – litigating the same cause of action. However, for ‘issue estoppel’ it would occur where an issue has earlier on been adjudicated upon by a Court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties or their privies. This plea is based on the principle of law that a party is not allowed to, contend that is he is precluded from contending, the contrary or opposite of any specific point which having been once distinctly put in issue, has with certainty and solemnity been determined against him by a Court of competent jurisdiction. See Osunrinde & Ors V. Ajamogun & Ors (1992) LPELR – 2819 (SC). See also Fadiora V. Gbadebo (1978) 2 SC 219 per Idigbe JSC @ pp. 228 – 229; Ladega V. Durosimi (1978) 3 SC 91 per Eso JSC, @ pp. 102 – 103; –

Per B. A. GEORGEWILL, J.C.A

FUNCTUS OFFICIO – INSTANCE WHEN A COURT CAN BE SAID TO BE FUNCTUS OFFICIO

“Now, with respect to the Latin phrase ‘functus officio’ which ordinarily means a task performed, having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority. However, in practice it is the idea that the specific duties and functions that an officer was legally empowered and charged to perform have now been wholly accomplished and thus, the officer has no further authority or legal competence based on the original commission. This is because the thing which originally had life had become dead or moribund after the performance of the duty or function by the authority. Thus, a Judge or Court, who has decided a question brought before him becomes ‘functus officio’ and therefore, cannot review his own decision except on grounds of want of jurisdiction, fraud, illegality etc. The law is thus well settled that once a Court of competent jurisdiction delivers its judgment on a matter, it cannot revisit or review or set aside the said judgment except under certain conditions and more importantly, a Court would lack the jurisdiction to determine an issue when it is ‘functus officio’ in respect of the issue or where the proceedings relating to the issue is an abuse of Court process. See Black’s Law Dictionary, 6th Edition @ p. 673. See also Buhari V. INEC & Ors (2008) LPELR – 814 (SC); Dingyadi & Anor V. INEC & ORS(2011) LPELR – 950(SC) –

Per B. A. GEORGEWILL, J.C.A

ABUSE OF COURT PROCESS – WHETHER AN APPLICATION FILED IN A TRIAL COMMENCED DE-NOVO WOULD CONSTITUTE AN ABUSE OF COURT PROCESS

“It would appear, and it was not in any way disputed by the Appellants, that the Chiefs Law Cap. 27 of the Defunct Laws of Bendel State of Nigeria, 1976 as applicable in Edo State was a repealed law and was thus no longer in existence when the 1st Respondent was appointed as the Clan Head of South Uneme on 3/9/1980 as well as when the second application was made before the Court below under the extant law, the Traditional Rulers and Chiefs Edicts No. 16 of 1979 of the Defunct Bendel State as applicable to Edo State, which came into effect on 24/8/1979.In such circumstances, I am inclined to agree with the apt submissions of the learned counsel to the 1st Respondent and I so hold that the two application based on different set of laws were not in abuse of each other, more especially when the former application was predicated on a repealed law and was so overruled by the Court below per C. O. Idahosa J. See Obeta V. Okpe (1996) 9 NWLR (Pt. 473) 401 @ p. 444. See also Uwaifo V. AG. Bendel State (1982) 7 SC 124 @ p. 193; AG. Lagos V. Dosunmu (1989) 3 NWLR (Pt. 111) 552; Utih V. Onoyivwe (1991) 1 NWLR (Pt. 166) 166 @ p. 201. I have also considered the undisputed facts, as the parties are ad idem, that the trial before the Court below per Efe Ikponmwoba J, was a trial de – novo and not a continuation of the trial and or proceedings before the Court below per C. O. Idahosa J. In law when it is said that a trial or hearing is de – novo it means all former things are passed away and wiped off and therefore, any of the parties in the earlier proceedings would be free to bring a-fresh or anew any application brought before by him in the previous proceedings in which an adverse ruling was given against him. Thus, the latter or second application filed by the 1st Respondent in the de – novo trial would not and did not, in my finding constitute an abuse of Court process in this respect. In FBN V. Tsokwa (2004) 5 NWLR (Pt. 866) 271 @ p. 306; Fadiora V. Gbadebo (1977 – 1978) Vol. 11 NSCC 121 @ p. 129, where the Supreme Court per Idigbe JSC, (God bless his soul) had pronounced with finality inter alia thus: “We think that in trials de – novo the case must be proved a new or rather re-proved de – novo and therefore, the evidence and verdict given as well as the completely inadmissible on the basis that prima facie they have been discarded or got rid of. The Court of second trial therefore, is entitled to that end, and indeed, must look at the pleadings before it in order to ascertain and decide the issues joined by the parties before it their pleadings….It is trite law that trial de – novo is a new trial on the entire case, that is, on both questions of fact and issues of law, conducted as if there had been no trial in the first instance.” See also Bakule V. Tanerewa (Nig) Ltd (1995) 2 NWLR (Pt. 380) 728 @ p. 738. See also Odi V. Osafile (1987) 2 NWLR (Pt. 57) 510 @ p. 512; FBN V. Tsokwa (2004) 5 NWLR (Pt. 866) 271 @ p. 306; Fadiora V. Gbadebo (1977 – 1978) Vol. 11 NSCC 121 @ p. 129; Omosaye V. State (2014) 6 NWLR (Pt. 1404) 484; Elijah V. State (2019) 17 NWLR (Pt. 1702) 527. In the circumstances therefore, in which neither the law nor the issues in both application were the same and coupled with the fact that the second application was made in a de – novo trial, the Court below was neither functus officio to determine it nor did the latter application constitutes an abuse of Court process by reason of res – judicata, by way of issue estoppel. In my finding, therefore, both the law and issues thrown by these applications are not the same and thus a decision in one does not, and did not and therefore, cannot operate as res – judicata to the other. It cannot also constitute the latter application as an abuse of Court process with reference to the earlier or former application. It follows, and quite logically and legally too, that the Court below was therefore, right to have heard and determined it on the merit and I so hold. See Osunrinde & Ors V. Ajamogun & Ors (1992) LPELR – 2819 (SC). See also Ogoejeofo V Ogoejeofo (2006) LPELR – 2813 (SC); Mobil Production Nigeria Unlimited V. Monokpo (2003) 18 NWLR (Pt. 852) 346 @ pp. 430 – 431.-

Per B. A. GEORGEWILL, J.C.A

UNCONTRADICTED EVIDENCE – EFFECT OF A PARTY’S FAILURE TO COUNTER AN ARGUMENT OR ISSUE VALIDLY RAISED IN THE BRIEF OF ARGUMENT OR DURING ORAL PRESENTATION

“In law, the failure of all the Respondent to make any counter submissions on issue two would simply amount to a concession by them that indeed when the Court below proceeded to dismiss the Appellants’ Suit for want of competence by reason of non-compliance with the provisions of Section 19(2) of the Traditional Rulers and Chiefs Edict 1779, it did so in grave error having not decided the Appellants’ Claims on the merit. See Dr. Arthur Nwankwo & Ors V. Alhaji Umaru Yar’Adua & Ors (2010) 12 NWLR (Pt. 1209) 518,where the Supreme Court per Onnoghen JSC.,(as he then was now CJN) had held inter alia thus: “It is settled law that where an opponent fails or neglects to counter any argument or issue validly raised in the brief of argument or during oral presentation, the issue is not so contested and is deemed conceded by the defaulting party” See also Elephant Group Plc. V. National Security Adviser & Anor (2018) LPELR – 45528 (CA), per Georgewill JCA; Ahmed V. Ahmed (2013) 41 WRN 1; Dairo V. Aderinoye (2013) 50 WRN 111. –

Per B. A. GEORGEWILL, J.C.A

COURT – DUTY OF COURT TO CONSIDER EVERY ARGUMENTS ON ITS MERIT EVEN WHERE SAME WAS UNCONTESTED

“Be that as it may, in law failure by one party to counter the argument of the adverse party does not automatically amount to merit in the uncontested arguments though deemed conceded. Thus, the Court is still under a duty to consider the arguments on their own merit. See Adah V. NYSC (2004) 13 NWLR (Pt. 891) 639. See also Tanko V. UBA Plc. (2010) 7 NWLR (Pt. 1221) 80; Obiuweubi V. CBN (2011) 17 NWLR (Pt. 1247) 80; Stowe V. Benstowe (2012) 17 NWLR (Pt. 1306) 450; Elelu – Habeeb V. AG. Fed.(2012) 13 NWLR (Pt. 1318) 423; Agi V. Access Bank Plc (2014) 9 NWLR (Pt. 1411) 121. –

Per B. A. GEORGEWILL, J.C.A

INCOMPETENT SUIT– PROPER ORDER THE COURT SHOULD MAKE WHEN A SUIT OR MATTER OR PROCESS BEFORE IT IS INCOMPETENT

“My lords, this is a very straight forward and uncomplicated issue and is as to was to what in law is the proper order to be made when a Court finds that a Suit or matter or process before it is incompetent; is it to strike it out or to dismiss it? I think the proper order to make in such circumstances, as it is settled in law, is to strike it out and not to dismiss it. See Inakoju V. Adeleke (2008) Vol. 30 WRN 1 @ pp. 107 – 108, where the Supreme Court per Niki Tobi JSC, (God bless his soul) had poetically put it inter alia thus: “Are Mr. Lens, the learned judge and Mr. Ayanlaja in that chronological order, correct? Does the submission and decision reflect the state of the law? Is it really the law that a case should be dismissed when the Court has no jurisdiction to entertain it ? With respect, that is not the law and that cannot be the law. The law is that when a Court comes to the conclusion that it has no jurisdiction to entertain a Suit, it will be struck out and not dismissed.” Thus, in law where a Court holds that it has no jurisdiction to entertain an action it does not dismiss the action but merely strikes it out. This is understandably so because in law a dismissal of action is adjudication on the merits and there can be no adjudication on the merit where there is no jurisdiction or competence to adjudicate. See Ojora V. Odunsi (1959) 4FSC 189; Akinbola V. Plisson NWLR (Pt. 88) 335; Onagoruwa V. Inspector General of Police (1991) 5 NWLR (Pt. 113) 593; Alhaji Gombe V. PW (Nig.) Limited (1995) 6 NWLR (Pt. 402) 402; Udo V. Cross River State Newspaper Corporation (2001) 14 NWLR (Pt. 732)116. Din V. Attorney – General of the Federation (1986) 2 NWLR (Pt. 17) 471; National Electronic Power Authority V. Mr Edegbero & Ors (2002) 18 NWLR (Pt. 798) 79; Lakanmi V. Adene & Ors (2003) 4 SCNJ 348 @ p. 355; Onagoruwa V. Inspector General of Police (1991) 5 NWLR (Pt. 113) 593. –

Per B. A. GEORGEWILL, J.C.A

STATUS(ES) REFERRED TO

Chiefs Law Cap 37 Laws of Bendel State, 1976|Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Traditional Rulers and Chiefs Edict, 1979 of Bendel State of Nigeria|

COUNSELS

O. B. Uade Esq, for the Appellants|I. Imadegbelo Esq, with E. J. Alegimelen Esq, for the 1st Respondent|The 2nd – 4th Respondents, though served with hearing notice through the Edo State Ministry of Justice on 3/2/2021, were not represented by counsel at the hearing of this appeal.|

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