ADENIYI v. THE IFELODUN LOCAL GOVERNMENT & ORS (2018)

In The Court of Appeal of Nigeria

On Friday, the 6th day of April, 2018

CA/IL/107/2016

Before Their Lordships

MOJEED ADEKUNLE OWOADE  Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA  Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA  Justice of The Court of Appeal of Nigeria


Between

H. O. ADENIYI
(The Olofa of Ofarese)-Appellant

AND

1. THE IFELODUN LOCAL GOVERNMENT
2. THE IFELODUN TRADITIONAL COUNCIL
3. HIS ROYAL HIGHNESS, ALHAJI AHMODU AWUNI
(The Elese of Igbaja)
4. ABDULRAMAN AJIBOYE-Respondents

…………………….A…………………….

MOJEED ADEKUNLE OWOADE, J.C.A.(Delivering the Leading Judgment): This is an Appeal against part of the decision of His Lordship; Hon. Justice M. AbdulGafar delivered on 21st October, 2015.
Apparently, Suit No. KWS/291/2011 which led to this Appeal was filed by the Appellant as Claimant in respect of a declaration made by the Court of Appeal, Ilorin in CA/IL/77/2008.
In the previous case, the Court of Appeal declared the Appellant in this case as the person entitled to the stool of Olofa of Ofarese and that he fulfilled the requirement of tradition and custom of Ofarese.
The Writ of Summons and Statement of Claim in this Suit was filed in November, 2011.
By Paragraph 17 of the Appellant’s Statement of Claim, he claimed against the Respondents as follows:-
i. For a perpetual injunction restraining the 1st Defendant from according to the 4th Defendant the rights and privileges and perquisites of office of the Olofa of Ofarese, Ifelodun Local Government Area.
ii. For a perpetual injunction restraining the 2nd and 3rd Defendants from according to the 4th Defendant the rights and privileges and 
perquisite of office attaining to the Olofa of Ofarese.
iii. An order of Court restraining the 4th Defendant from parading himself or presenting himself as the Olofa of Ofarese and from collecting perquisites of office of Olofa of Ofarese from the 1st, 2nd and 3rd Defendants or anywhere else as an Olofa.
iv. An order on the 1st Defendant to pay the Claimant salaries, allowances and other perquisite of office of an Olofa of Ofarese commencing from 13th April 2011.
v. An order on the 2nd and 3rd Defendants to recognize and give to the Claimant all the rights and privileges attaining to the Olofa of Ofarese.
vi. And such other order or further orders as the Honourable Court may deem fit to make in the circumstances.

Pleadings were filed and exchanged in between the parties.
However, before the trial of the case, the learned trial Judge disposed off and dismissed two Applications brought by the 4th Respondent. The first Application by the 4th Respondent which was by way of Preliminary objection on ground of abuse of process was dismissed on the ground at Page 166 of Record that the seeking of injunctive relief to give effect to a declaration cannot be construed as abuse of process.
The second Application by the 4th Respondent for stay of proceedings was also dismissed on Page 171 of the Record because the 4th Respondent had not filed a Notice of Appeal against the Judgment of the Court of Appeal at the time the Application was moved.
The parties to this Appeal called witnesses in proof of the injunctive reliefs claimed by the Appellant/Claimant. The learned trial Judge found and concluded starting from Page 205 to 207 of the Record as follows:-
The conclusion I have therefore come to is that the 1st 3rd Defendants have willfully refused to give effect to the declarations contained in Exhibit 17.
This Court has a constitutional duty to enforce the decision of the Court of Appeal, a duty conferred by Section 287(2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which provides thus:
The decision of the Court of Appeal shall be enforced in any part of the Federation by all authorities and persons and by Courts with subordinate jurisdiction to that of the Court of Appeal.
Furthermore, the justice of this case 
demands that this Court enforce the decision of the Court in Exhibit 17. The Claimant who was appointed to the stool of Olofa of Ofarese in 2002 had to go to Court to challenge the refusal of the 3rd Defendant to install him. It was not until 2011 that he got justice from the Court of Appeal and here we are, he is still not able to claim the seat.
Both Mrs. Lawal, the Solicitor General and Mr. Omotunde have however, argued very forcefully that the Court cannot grant the injunctive reliefs sought in view of the pendency of the Appeal against the decision in Exhibit 17, at the Supreme Court.
I have given very anxious consideration to this contention to which Chief Olorunnisola, SAN, has not really responded other than to say that since there is no order for stay by execution, the Court should grant the reliefs.
It is unfortunate that the Claimant who has been in Court since 2002 to challenge the refusal of the Defendants to allow him ascend the stool to which he has been appointed has not been able to reap the fruit of the judgment and it is extremely unjust that the adjudged usurper of that office continues to enjoy the perquisites of the 
office.

…………………….B…………………….


The injustice resulting to the Claimant is not diminished by the fact that his Counsel sought only declaratory reliefs and not injunctive reliefs in the suit culminating in Exhibit 17. See BELLO VS. A.G. OYO STATE (1986) 5 NWLR (PT. 45) 828.
The challenge now is how to give the Claimant his just desert in a manner not to prejudice the Appeal at the Supreme Court. It is necessary in the interest of justice to grant the reliefs because even if the Supreme Court affirms the decision, the Claimant will still need the injunctive orders sought.
Consequently, I find for the Claimant and grant all the reliefs claimed on Paragraph 17 of the Statement of Claim subject to the condition that the reliefs will only become operative if the Supreme Court affirms the decision given in favour of the Claimant in Exhibit 17.

Dissatisfied with the portion of the Judgment which subjected the operation of the injunctive reliefs to the affirmation of the decision given in favour of the Appellant in Exhibit 17, the Appellant filed a Notice of Appeal, containing four (4) Grounds of Appeal in this Court on 08/12/2017.
The relevant Briefs of Argument for this Appeal are as follows:-
1. Appellant’s Brief of Argument dated 07/12/2016 but filed on 08/12/2016. It is settled by Chief P. A. O. Olorunnisola, SAN.
2. 1st, 2nd and 3rd Respondents Brief of Argument dated 13/03/2017 was filed on 14/03/2017. It is settled by F. D. Lawal, (Mrs.) Solicitor General, Kwara State.
3. 4th Respondent’s Brief of Argument dated 06/01/2018 but filed on 07/02/2018 was deemed filed on 07/02/2018. It is settled by Adeola Omotunde, Esq.

Learned Senior Counsel for the Appellant nominated Three Issues for determination. They are:-
1. Whether the Judgment can be justified from the evidence before the Court (Grounds 1 and 2).
2. Whether the trial Court has not acted as an Appeal Court over its earlier Rulings (Ground 3).
3. Whether there was any Application before the trial Court warranting its decision to hold down its own Judgment in respect of another case which was not before it (Ground 4).

Learned Counsel for the 1st, 2nd and 3rd Respondents as well as the learned Counsel for the 4th Respondent separately formulated a sole Issue for determination of this Appeal to wit:
Whether from the facts and circumstances of this case, the decision of the learned trial Judge was wrong.
This Appeal shall be determined by the Issues formulated by the learned Senior Counsel for the Appellant.
Also, the submissions of the 1st, 2nd and 3rd Respondents that is the 1st set of Respondents and those of the 4th Respondent that is the 2nd set of Respondents shall be treated in one piece as the submissions of the Respondents. This is for the reason of the shared common interest between the 1st and 2nd sets of Respondents and also for convenience.
One Issue One, learned Senior Counsel for the Appellant submitted that the case before the Court was for execution of a declaratory Judgment.
That the trial Court agreed with all the facts and address of the Appellant. That the evidence before the Court flowed the same direction. And that, it is therefore strange that the trial Court added an Appendix as it were to its fact and legal findings.
He referred to the case of ONU VS. IDU (2006) ALL FWLR (PT. 328) 691 on the meaning of perverse judgment and submitted that the decision of the trial Court is perverse and should not be allowed to stand.
He submitted that there is nothing in the proceeding and evidence before the Court that would warrant the learned trial Judge to arrest or stay his own Judgment, more so when there was no Application before it from any party.
The Respondents on the other hand submitted that the learned trial Judge was on firm ground when it granted the relief of the Appellant subject to the outcome of the pending Appeal at the Supreme Court.
The Respondents submitted that the Judgment of the trial Court is not perverse. That, an Appellate Court confronted with the issue of evaluation of evidence as a Ground of Appeal (as in this Appeal), has the simple duty only to scrutinize the record carefully and find out whether there is evidence on which the trial Court could have acted and once there are such evidence on record, which formed the basis of the decision of the trial Court, the Appellate Court ought not to interfere with such decision.
They (Respondents) Counsel referred on this to the case of TUNDE ISIAQ AND ORS. VS. OKANLAWON SONOYI (2009) ALL FWLR (PT. 498) 347 AT 383 and relied on the same

…………………….C…………………….

case on the meaning of a perverse decision as that which runs counter to evidence or took into account extraneous matters. Counsel to the Respondents submitted that the trial Court’s decision does not run counter to evidence and that the learned trial Judge did not take into account matters which he ought not to take into account. Respondents Counsel submitted that apart from the claim of payment of arrears of salaries to the Appellant, all the claims are injunctive in nature. That injunctive reliefs are not granted as a matter of course but always premised on declaration of established rights.
Respondents Counsel referred to the cases of:
GOLDMARK NIGERIA LIMITED AND 3 ORS. VS. IBAFON COMPANY LIMITED AND 4 ORS. (2013) ALL FWLR (PT. 663) 1830 AT 1870;
ALLISON AKENE AYIDA AND 4 ORS. VS. TOWN PLANNING AUTHORITY AND ANOR (2014) ALL FWLR (PT. 714) 26.

They (Respondents) argued that the declaratory rights of the Appellant are not subject of the decision under this Appeal.
They (Respondents) submitted that, the call on this Court by the Appellant to allow his injunctive reliefs operative independent of the declaratory reliefs granted by the Court of Appeal but now before the Supreme Court is nothing but putting the cart before the horse.
They (Respondents) further submitted that parties are at consensus that all witnesses called at the trial testified and admitted that there is an Appeal against the Judgment of the Court of Appeal No. CA/IL/77/2008 to the Supreme Court in Appeal No. SC/235/2013. And, that as such, the trial Court and this Court should be wary of making an Order that will impair the outcome of the case at the Supreme Court. The Respondents referred to the case of MOHAMMED VS. OLAWUNMI (1993) 4 NWLR (PT. 287) 254 AT 278 – 279. 
I do not agree with the learned Senior Counsel to the Appellant on his Issue One that the decision of the learned trial Judge in this case is perverse merely because it subjected the injunctive reliefs granted to the Appellant to the decision on Appeal to the Supreme Court on the declaratory reliefs granted to the Appellant by the Court of Appeal via Exhibit 17.
In the first place, it is not in dispute between the parties in this case that the decision of the Court of Appeal which granted declaratory reliefs to the Appellant on the said chieftaincy rights is pending on Appeal in the Supreme Court. Therefore, there was abundant evidence before the learned trial Judge to sustain the conditional injunctive relief granted by the learned trial Judge in this case.
Second, it is now trite that where there is an Appeal before the Supreme Court, as in the present case, a decision by the High Court which will render the result of the Appeal nugatory should be avoided.
See MOHAMMED VS. OLAWUNMI (1993) 4 NWLR (PT. 287) 254 AT 278 – 279. Relatedly, the learned trial Judge was right by his conditional orders to avoid the ugly situation whereby his own judgment granting injunctive reliefs to the Appellant would be rendered impossible and or incapable of being obeyed if the Supreme Court found against the declaratory reliefs which the Court of Appeal earlier granted to the Appellant. The legal maxim is Lex non cogit ad impossibilia  meaning The law does not compel to impossible ends. Thus in the case of BULUNKUTU VS. ZANGINA (1997) 11 NWLR (PT. 529) 526 AT 539 – 540, the Court held that Courts should desist from making Orders in vain and not make Orders that are impossible to be obeyed or implemented.
See also:
C. C. B. (NIGERIA) PLC VS. OKPALA (1997) 8 NWLR (PT 518) 673 AT 694;
OLADIPO VS. OYELAMI (1989)5 NWLR (PT. 120) 210 AT 221.

On this note, Issue One is resolved against the Appellant.
On Issue Two, learned Senior Counsel for the Appellant referred to Pages 166 and 171 of the Record where the learned trial Judge refused the Applications by the 4th Respondent either to dismiss the Appellant’s Suit as constituting abuse of process or to stay proceedings pending the Appeal filed at the Supreme Court on the Judgment in Exhibit 17.
He argued that by granting of conditional injunctive reliefs, the learned trial Judge has overruled his previous decisions in those Rulings. And has wrongly assumed the jurisdiction of the Court of Appeal.
The Respondents on the other hand submitted on Issue Two that previous Rulings of the learned trial Judge paved the way that gave life to the substantive Suit of the Appellant.
That the Rulings center on the fact that, the Appellant’s case or the new reliefs could be ventilated despite the pending

…………………….D…………………….

Appeal at the Apex Court. It does not by any stretch of interpretation, connote the Court sat on Appeal over its earlier Rulings.
The learned Senior Counsel for the Appellant does not seem to have any basis in relation to Issue Two to suggest either that the learned trial Judge sat on Appeal over its earlier Rulings by the granting of the conditional injunctive Orders or even that its final decision contradicted its earlier Rulings.
In any event, a case is authority for what it decides given its peculiar facts and circumstances.    SYLVIA  V. INEC AND ORS (2015)LPELR 24447 (SC);
UGWUANYI VS. NICON INSURANCE PLC (2013) LPELR  20092 (SC);
UDO VS. STATE (2016) LPELR 40721 (SC);
DIRECTOR, S.S.S. VS. IBRAHIM (2016) LPELR  41618 (CA);
ONE LAPTOP PER CHILD ASSOCIATION INC. AND ORS. VS. OYEGBOLA AND ANOR (2016) LPELR 41499 (CA).

The Ruling of the learned trial Judge on the 4th Respondent’s Notice of Preliminary Objection that the Appellant’s Suit for injunctive reliefs based on Exhibit 17 where he was earlier on granted declaratory reliefs by the Court of Appeal does not constitute abuse of process was based on the reasoning that though a suit for declaratory reliefs could be intimately related to a new suit on injunctive reliefs, one being in furtherance of the other, they are in stricto sensu, separate actions that do not constitute abuse of process.
Again, the refusal of the 4th Respondent’s Application for stay of proceedings by the learned trial Judge was not unfounded in law.
The reason for the refusal, being that at the time of the application there was nothing to show that a Notice of Appeal in respect of the Judgment in Appeal No. CA/IL/77/2008 was pending at the Supreme Court.
Perhaps, the learned trial Judge’s Ruling on stay of proceedings would have been in favour of the 4th Respondent if the Court had seen evidence of Notice of Appeal in respect of Appeal No. CA/IL/77/2008 filed in the Supreme Court.
For these reasons, I do not agree with the learned Senior Counsel for the Appellant on Issue Two that the learned trial Judge acted as an Appeal Court over its earlier Ruling(s).
Issue Two is resolved against the Appellant.
On Issue Three, learned Senior Counsel for the Appellant submitted that the High Court is a Court of Record. That the legal procedure of the Court is that by Order 11 of the Kwara State High Court Civil Procedure Rules, Claims and Applications are by written application to Court. That the trial Court had dismissed all previous applications to stay proceedings and that there was no other application before the Court.
He submitted that the Court has no jurisdiction to make such Order which according to Counsel is not consequential to the Judgment or claim.
He submitted further that the trial Court did not invite Counsel to the parties to address the Court on his extraneous proposed Order. This conduct, said Counsel gives room for unhealthy speculation and it is a breach of Appellant’s constitutional right to fair hearing.
He referred on this to the case of TINUBU VS. I. M. B. SECURITIES PLC (2001) FWLR (PT. 77) 1003. He urged us to allow the Appeal.
I adopt my decisions on Issues One and Two in relation to Appellant’s Issue Three. It is important in addition to point out that the learned trial Judge was not obliged to further call on Counsel to address the Court on settled facts in between the parties. The conditional injunctive reliefs granted to the Appellant was based on the state of evidence on record between the parties and it could not be said that there was any breach of the Appellant’s right of fair hearing in all the circumstances of the case.
The position of the learned trial Judge in granting conditional injunctive reliefs in this case could be explained by two legal maxims. The first is Necessarium est quod non potest aliter se habere meaning – That is necessary which cannot be otherwise. The second is Necessitas quod cogit defendit meaning  Necessity defends what it compels.
Indeed, as pointed out by the learned Counsel to the Respondents, there was no other option open to the learned trial Judge at the conclusion of the trial of the suit other than subjecting the injunctive reliefs granted to the Appellant to the pending Appeal before the Supreme Court.
Issue Three is resolved against the Appellant.
Having resolved the Three Issues in this Appeal against the Appellant, the Appeal lacks merit and it is accordingly dismissed.
I make no Order as to Costs.
CHIDI NWAOMA UWA, J.C.A.: I read in advance the judgment of my learned brother MOJEED ADEKUNLE OWOADE, JCA. I agree with the decision that the appeal lacks merit and for the same reason, I also dismiss it and abide by the order made as to costs in the leading judgment.
HAMMA AKAWU BARKA, J.C.A.: I was opportuned to have read in draft the lead judgment just delivered by my learned brother MOJEED ADEKUNLE OWOADE PJ and I agree with his reasoning and conclusion, In the event I also dismiss the appeal and affirm the decision of the lower Court. I also abide on order as to costs.

Appearances

Chief P.A.O. Olorunnisola, SAN with him, M. H. Ibiyemi, (Mrs.), A. O. Adepitan (Miss)-For Appellant

AND

Mrs. Funsho D. Lawal, (Solicitor-General, Kwara State) with him, G. R. Moyosore, Esq. (PSC),
M. J. Orire, Esq. (PSC) and S.B. Alusi, Esq. (Pupil State Counsel)- for 1st, 2nd and 3rd Respondents.

Isaac Adebayo, Esq.-for 4th Respondent-For Respondents.

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