⦿ CASE SUMMARY OF:
Mr Adelani Adewoyin v. The Executive Governor, Osun State & Ors. (2011) – CA
by PipAr Chima
Court of Appeal
⦿ AREA(S) OF LAW
Estoppel per rem judicata;
Memorandum of appearance;
Certified true copy of judgement;
⦿ NOTABLE DICTA
* CANNOT FRAME MORE ISSUES THAN THE NUMBER OF GROUNDS
The law is well settled that in practice, there should be no proliferation of issues. Therefore out of three grounds of appeal, an appellant cannot formulate or frame four issues. In other words, a party cannot frame more issues than the number of grounds of appeal. – Adumein JCA. Adewoyin v. Executive Governor (2011)
* DEFAULT OF ENTERING AN APPEARANCE BY THE DEFENDANT
The significance of entering an appearance by a defendant, as provided by the rules of the court, is very important and it cannot be over-emphasized. The consequences of failure to enter an appearance by a defendant to a writ of summons or an originating process include a plaintiff having a judgment against such a defaulting defendant and or the defendant being denied the right to be heard. – Adumein JCA. Adewoyin v. Executive Governor (2011)
* LAW REPORTS NEED NOT BE CERTIFIED
It is an accepted practice that law reports are usually cited by parties and copies of such law reports made available to the court, even from the bar. A court of law can make use of relevant judgments or decisions in law reports cited by learned counsel without insisting that judgments in the law reports be certified by the appropriate court(s) which delivered the judgments. The two previous judgments relied upon by the 4th respondent were respectively reported in (1985) 2 NWLR (Pt. 9) 734 and (2003) 13 NWLR (Pt. 836) 119. It is a matter of common public knowledge, especially among members of the legal profession – Legal Practitioners, Law Lecturers and Law Professors, Law Officers, Magistrates, Khadis, Judges and Justices that the acronym “NWLR” means “Nigerian Weekly Law Reports” published by the Nigerian Law Publications Limited founded by one of the finest, brightest and most hardworking legal practitioners that Nigeria has ever produced – Chief Gani Fawehinmi (SAN), of blessed memory. In the discharge of my duties, speaking for myself, I have found the law reports and publications by Nigerian Law Publications Limited most reliable and very helpful. In the absence of allegation of supply or suppression by the law reporters of any part in the two judgments as reported in the Nigerian Weekly Law Reports (NWLR), cited above, I am very comfortable that the learned trial judge rightly relied on the two law reports in determining the 4th respondent’s notice of preliminary objection, notwithstanding that certified true copies of the said judgments were not filed with the said notice. – Adumein JCA. Adewoyin v. Executive Governor (2011)
* COUNSEL FIRST DUTY IS TO THE COURT
Learned counsel, as officers in the temple of justice have a sacred duty to assist the court to do substantial justice in any matter before it. His first duty is to the court. The second to his client. It is almost five years to the day since the ruling complained of was delivered. Precious judicial time and resources have been wasted pursuing technicalities. – Kekere-Ekun JCA. Adewoyin v. Executive Governor (2011)
Mr Adelani Adewoyin
1. The Executive Governor, Osun State;
2. Attorney General and Commissioner For Justice, Osun State;
3. Ifelodun Logal Government, Ikirun;
4. Prince Alimi Mojoyinola (for himself and on behalf of Iwolode Ruling House).
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
– O. O. Olaniran, Esq.
* FOR THE RESPONDENT
– Adisa Anbali, Esq. (PSC, Osun State) with Mrs. A. F. Adekunmi (SSC, Osun State) for the 1st and 2nd respondents.
– R. O. Ewuola, Esq for the 3rd respondents.
– I. L. Alabi, Esq. for the 4th respondent.
⦿ CASE HISTORY
The appellant was the plaintiff while the respondents were the defendants in Suit No. HIK/25/2004 filed in the High Court of Osun State, Ikirun Division. In his amended statement of claim, the appellant, as plaintiff in the lower court, sought the following relief, namely:
(a) DECLARATION that the Olobaagun of Obaagun Chieftaincy Declaration of 31st day of December, 1986 made by the third Defendant, and approved by the first Defendant, is of no effect, unconstitutional and invalid since it was not made under the relevant law.
(b) DECLARATION that the Chieftaincy Declaration of Olobaagun of Obaagun of 27th day of May, 1957 is the only valid declaration in respect of the Olobaagun of Obaagun Chieftaincy.
(c) PERPETUAL INJUNCTION RESTRAINING the 1st, 2nd and 3rd Defendants, from giving effect or recognizing the Olobaagun Chieftaincy Declaration of 1985.
By a notice of preliminary objection dated 30th day of June, 2005 but filed on the 10th day of June 2006 the 4th respondent sought for “An ORDER for dismissing this suit in its entirety for lack of jurisdiction”.
The grounds upon which the prayer was premised were:
1. That subject matter of this suit has previously been litigated upon and decided by the Supreme Court between the parties in Suit Nos. S.C. 251/1984 AND S. C. 143/1999.
2. The Plaintiff by operation of the doctrine of estoppel per res judicata is precluded from bringing this action.
3. The action is frivolous, vexatious and abuse of judicial process.
4. This Honourable Court lacks jurisdiction to entertain this matter.
The 4th respondent’s notice of preliminary objection was supported with an affidavit of 14 paragraphs and, in opposition, the appellant filed a counter affidavit of 10 paragraphs (pages 6 – 11 of the records of appeal). The parties were heard on the preliminary objection and in a reserved ruling delivered on the 20th day of November, 2006 the preliminary objection was upheld and the appellant suit was dismissed with costs. The ruling of the lower court spans pages 20 to 30 of the record of appeal. The appellant was not satisfied with the decision of the lower court and he filed a notice of appeal
⦿ ISSUE(S) & RESOLUTION
[APPEAL: DISMISSED, WITH N30,000 COST AGAINST THE APPELLANT IN FAVOUR OF THE RESPONDENT]
1. WHETHER THE FAILURE by the 4th defendant/respondent to file a memorandum of appearance was fatal to his objection to the jurisdiction of the lower court?
I. In the present case, the 4th respondent, although no evidence that he was served with the originating writ of summons, furnished his address for service to the appellants and other respondents. The 4th respondent followed up the matter by the physical presence of his learned counsel in court. To my mind, this was sufficient appearance by the 4th respondent. In any case, the essence of entering a formal appearance by a defendant is to intimate the plaintiff that he (the defendant) intends to contest the plaintiffs claim.
II. The appellant has not demonstrated any injustice occasioned by the failure of the 4th respondent to file a formal memorandum of appearance. The appellant seems to cling to a mere technicality in this matter. It is now settled that courts should not decide cases or resolve issues on mere legal technicalities.
2. WHETHER OR NOT the plea of res judicata raised by the 4th defendant/respondent was properly upheld by the lower court?
I. One very interesting aspect of this appeal is that the appellant is not challenging the findings of the trial court on each of the conditions to be satisfied in a case of plea of res judicata. The appellant has also not complained that the judgment in the two law reports relied upon by the lower court were wrong or incomplete or incorrect. The appellant’s main complaint is that the said judgments, being public documents ought to be certified and tendered in evidence before the 4th respondent’s objection could be sustained.
II. From the above analysis it is crystal clear that the parties in the three Cases are basically the same and, without belabouring this point, I hold that the applicant has satisfied the first condition.” The foregoing findings of the learned trial judge cannot be faulted, and indeed they have not been faulted.
III. I have carefully examined the ruling of the lower court. The lower court meticulously examined the remaining three pre-conditions for a successful plea of res judicata and the resolution of the entire application in favour of the 4th respondent cannot be impeached.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED (STATUTE)
Order 13 Rule 1 of the High Court (Civil Procedure) Rules of Osun State provides thus: “(1) A defendant shall within the time limited in the writ or other originating process enter an appearance in the manner hereinafter prescribed”.
⦿ REFERENCED (CASE)
* SUBSTANTIAL JUSTICE OVER TECHNICALITY
EGOLUM V. OBASANJO (1999) 7 NWLR (Pt.511) 255 at 413, where the Supreme Court, per ACHIKE, JSC, held thus: ‘The heydays of technicalities are now over because the weight of judicial authorities has today shifted from undue reliance on technicalities to doing substantial justice evenhandedly to the parties to the case.”
* CONDITIONS FOR PLEA OF RES JUDICATA
SALAMI AFOLABI V. GOVERNOR OF OSUN STATE (2003) 13 NWLR (Pt.386) 119 at 129 – 130 the Supreme Court emphasized thus: “It is settled law that to sustain in a plea of res judicata, the party pleading it must satisfy the following conditionalities, to wit – i. That parties (or their privies as they may be) are the same in the present case as in previous case; ii. that the issue and subject matter are the same in the previous suit as in present suit; iii. that the adjudication in the previous case must have been given by a court of competent jurisdiction; and iv. that the previous decision must have finally decided the issues between the parties”.
⦿ REFERENCED (OTHERS)
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