Court judgment against Taju Odofin, others

IN THE HIGH COURT OF LAGOS STATE

IN THE IKORODU JUDICIAL DIVISION

HOLDEN AT COURT NO. 1, IKORODU, LAGOS

BEFORE HON. JUSTICE O. A. WILLIAMS (MRS)

THIS  9TH DAY OF JANUARY, 2017

SUIT NO: IKD/1820/GCMW/16

 

BETWEEN

1. PRINCE TAJUDEEN ADEDAPO ODOFIN
2. PRINCE TAYO LADEGA CLAIMANTS
3. PRINCE GBOLAHAN ONABANJO

 

AND

1. OBA KABIRU ADEWALE SHOTOBI DEFENDANTS
2. THE GOVERNOR OF LAGOS STATE
3. THE ATTORNEY GENERAL OF LAGOS STATE
4. THE COMMISSIONER FOR LOCAL GOVT. & COMMUNITY AFFAIRS
5. CHIEF ZACCHEUS ODUSOGA (The Lisa of Ikorodu)
6. CHIEF KAREEM ORE (The Apena of Ikorodu)
7. CHIEF JACOB KOLAWOLE ADARALOYE (Oponuwa of Ikorodu)
8. CHIEF AFOLABI ADEKAYAOJA (Solomade of Ikorodu)

 

The claimants are present.

The 5th – 8th defendants are present.

1. M. Oguntade SAN appears with Gbenga Ajala and Korede Adeboye for the claimants.
2. Fabunmi appears for the 1st, and the 5th – 8th defendants with Richard Oguntade.
3. A. Quadri appears with S. K. Williams (Mrs) for the 2nd, 3rd and 4th defendants.

Akin Duyilemi appears with Yetunde Ogidi and Bola Adeusi for the parties seeking to be joined.

RULING

By their notice of preliminary objection dated 30/9/16, the 1st and 5th -8th defendants pray for an order striking out this suit against them for lack of jurisdiction and for being an abuse of court process. The grounds of this application as stated on the motion paper are:

1. That the claims in this suit had been determined in suit no. IKD/454GCM/2014 – Matthew Adetayo Shodipo & 4 Ors v. Ezekiel Shodipo & 11 Ors.
2. That the parties in this suit are the same as the parties in suit no. IKD/454GCM/2014.
3. That the issues in this suit are the same as that of suit no. IKD/454GCM/2014 – Matthew Adetayo Shodipo & 4 Ors v. Ezekiel Shodipo & 11 Ors.
4. That suit no. IKD/454GCM/2014- Matthew Adetayo Shodipo & 4 Ors V. Ezekiel Shodipo & 11 Ors acts as res judicata and estoppel against the claimants in this suit.
5. That this honourable court lacks jurisdiction to entertain the suit as presently constituted.
6. That this suit as presently constituted is an abuse of court process.

The applicants filed two affidavits in support wherein it was deposed that after the 1st defendant was unanimously picked by the Kingmakers as Ayangbure of Ikorodu, the Lambo branch of the Lasunwon Ruling House instituted an action and the 1st claimant and one Ezekiel Shodipo defended the suit for and on behalf of the Adegorushen branch of the Lasunwon Ruling House and that judgment was delivered in the suit where the issues raised in the present suit were determined.

Learned defence counsel raised and argued two issues for determination in the ………………… address to wit:

1. Whether the judgement in the suit no. IKD/454GCM/2014 acts as res judicata and estoppel against the claimants in this suit an liable to be dismissed.

ii Whether the claimants, having given an undertaking in writing to abide with the outcome of the selection and appointment of any candidate as Ayangbure of Ikorodu and not to create any legal impediment, this suit is an abuse of court process of court and liable to be dismissed for lack of jurisdiction.

Learned counsel referred to Section 146 of the Evidence Act and the case of ………………………………………. (pt. 276) 398 submitted that the judgment in suit no. IKD/454GCM/2014………………….estoppel per res judicata. He

submitted further that it is an abuse of court process ……………………… based on the  same facts between the same parties to be filed in different courts.  He also relied on the case of Ukachukwu v. UBA (2005) 18 NWLR (Pt. 956) 1 to buttress his submissions.

In opposition, the claimants filed two counter affidavits wherein the 1st claimant deposed that none of the contestants for the Ayangbure Obaship stool were screened by the Kingmakers as alleged and no election was carried out to determine which of the contestants emerged victorious. He stated that Suit no. IKD/454/GCM/2014 was brought by originating summons and sought for an interpretation of the validity of the consent judgment entered by the. court in suit no. IKD/57/2007 while the present suit was initiated via a writ of summons for declarative and injunctive reliefs as to whether the IS t defendant is qualified to ascend the Ayangbure stool without relinquishing the title of Odofin of Ikorodu.

Learned counsel to the claimants raised and argued two issues for determination to wit:

1. Whether the notice of preliminary objection dated and filed 30/9/16 is competent in law.
2. In the event that issue 1 is answered in the affirmative, whether the claimants’ case as presently constituted is in fact caught by the principle of res judicata thus depriving the court of the requisite jurisdiction to adjudicate.

Learned counsel for the claimants has submitted that the facts of this case are on all fours with the case of Petkev Nigeria Ltd & Anor v. Ogbogu & Anor (2016) LPELR- 40069 and urged the court to follow same and hold that the notice of preliminary objection on grounds of res judicata is a demurrer which is not permitted by the rules of court.

He submitted that the defendants have failed to place appropriate materials before the court to enable the court determine whether the parties and issues in the two cases are the same and that even if materials had been placed before the court, there will be no basis upon which a plea of res judicata can be anchored.

In sum, the applicants contend that this suit is an abuse of process because:

1. The claimants signed letters of intent containing an undertaking not to contest the appointment of the Ayangburen.
2. The issues raised herein were decided in the previous suit.

The claimants on the other hand contend that the objection raised by the defendants cannot succeed because:

1. At the time it was filed, the defendants had not filed a defence- so it is a demurrer.
2. The letter of intent is not a matter of jurisdiction, as only constitutes a defence.
3. The consent judgment upon which the court decided and other processes filed, in the earlier suit were not placed before this court so the question whether the principle of res judicata applies cannot be answered.
4. In any event, the issues in this suit and the earlier suit differ.

Order 22 rule 1 of the rules of this court on which the claimant rely, provide that no demurrer shall be allowed while rule 2 makes provision for proceedings in lieu of demurrer. Rule 2 (2) provides that the Judge may make any decision as may be just while rule 2 (1) provides that the judge may

dispose of a point raised in the pleadings of a part before or at trail. I firmly believe that the important thing is that the point of law to be determined in relation to a suit is raised in the pleading. The applicants have filed their statement of defence and raised the issue of law to be determined therein by pleading in paragraph 16 thereof that:

The 1st, 5th – 8th defendants aver that this action as presently constituted is incompetent, caught by res judicata, frivolous, vexatious, gold digging and the honourable court lacks the necessary jurisdiction to entertain and determine same and should be dismissed with substantial costs.

The defendants have thus complied with Order 22 rule 2 of the rules of court. I consider this application by way of notice of preliminary objection an invitation to the court to apply order 22 rule 2 (2) of the rules of court. It will be sacrificing justice on the altar of technicality to maintain that the objection of the applicants is incompetent because it was filed earlier than the defence. At the time of the argument of this application, the applicants had complied with the rules of court and that is what matters.

I shall now go into the merit of this application. The paramount issue to be determined in the objection is whether this court is precluded from exercising its jurisdiction in the circumstances of this case as contended by the defendants/applicants. In order to determine that paramount issue, the following questions must be answered:

1. Is this suit caught by the principle of res judicata?
2. Are the claimants precluded from filing this suit having agreed not to contest the appointment of the 1st defendant?

Issue 1

Is this suit caught by the principle of res judicata?

I find it easy to dispose of the claimants’ submission that the applicants did not present necessary materials to the court. The suit on which the applicants’ plea is based was an originating summons so there was only affidavit evidence and not pleadings. The judgment delivered in the suit is Exhibit Z006 and it contains a full statement of the facts and issues that were decided in the suit from which this court can discern whether estoppel per res judicata applies. The doctrine of res

judicata is very old law and it has been recognized in a plethora of cases. It is settled law that there are two types of estoppel. See Osunrinde v. Ajamogun (1992) NWLR Pt. 246, 156. In Ibrahim Ajiboye v. Abraham Olabanji (1998) 7 NWLR (Pt.558) 464, the Court of Appeal held that:

“Before the doctrine of estoppel per res judicata can operate, it must be shown:-

(1) That the parties, issues and subject matter are the same in the previous action as those in the action in which the plea is raised;

(2) That the plaintiff knew of the case and participated; and

(3) That the plaintiff knew of the case and stood by to let someone else fight his cause and his battle.

See Balogun v. Adejobi (1995) 2 NWLR (Pt. 376) 131 and Ezeanya v. Okeke (1995) 4 NWLR (Pt. 388) 142. The estoppel referred to in the said case is cause of action estoppel. The second type of estoppel is issue estoppel. In Igwuego v. Ezeugo (1992) 6 NWLR Pt. 249, 561 it was held that estoppel per rem judicatam arises where an issue of fact has been judicially determined in a final manner between the parties. From the submissions of the applicant’s counsel, their contention is that both types of estoppel apply here.

It is worthy of note that the 2nd defendant in the earlier suit is the 1st claimant in this suit. The claimants in the present suit sue on behalf of themselves and the Lasuwon Ruling House of Ikorodu. The claimants in the earlier suit sued on behalf of Lambo Branch of Lasuwon Ruling House of Ikorodu, while they defended on behalf of the Adegorushen branch of Lasuwon Ruling House. Clearly, the Lasuwon Ruling House was involved in the earlier suit by some of its branches. I find and hold that the Lasuwon Ruling House is a party in both suits.

The 1st defendant herein was the 3rd defendant in the earlier suit, while the 3rd defendant in this suit was the 11th defendant in the earlier suit. The 8th defendant in the earlier suit was Ikorodu Local Government that, to my mind is the same as the 4th defendant herein. The 5th defendant in this suit was the 4th defendant in the earlier suit; the 6th defendant herein was the 6th defendant in the earlier suit while the 8th defendant herein was the 5th defendant in the earlier suit.

I have no doubt that the parties in both suits are the same and or their privies.

What issues arose and were decided in suit no. IKD/454GCM/2014?

As shown on the face of Exhibit 7006, the judgment in the said suit, it was an originating summons in which six questions were raised for determination, the 5th of which was whether the 3rd defendant/ respondent was not bound and estopped from being presented, nominated and selected as a candidate from the Lasunwon Ruling House to any future chieftaincy title.

What are the issues raised by the claimants in the present suit?

The case of the claimants in the present suit is that they are principal members of Lasunwon Ruling House Ikorodu who were entitled to present a candidate to fill the vacant stool of Ayangburen of Ikorodu after the demise of the late Oba on 02/8/14, to be considered in accordance with the Ayangburen Chieftaincy Declaration 1958. But the claimants contend that the declaration was contravened and the 15t defendant who was not qualified due to being a kingmaker emerged as the candidate for Lasunwon Ruling House. They contend that the 1st defendant was foisted on the people of Ikorodu inspite of the fact that he was disqualified by custom and contrary to the Ayangburen Chieftaincy Declaration. They pleaded inter alia, that:

12. The claimants aver that under Ikorodu customs and tradition, a warrant kingmaker held his position for life and by virtue of this, can never aspire to, or be considered as a candidate for the Ayangburen stool. As the Odofin of Ikorodu, the IS t defendant held his position for life and was therefore disentitled from contesting and or emerging as the Ayangburen of Ikorodu.
13. The claimants aver that in a brazen contravention of the provisions of the said Ayangburen Chieftaincy Declaration, no family meeting was ever convened nor any election held which could have purportedly led to the emergence of the 1st defendant, who was disqualified by virtue of his occupation of the life position of the Odofin of Ikorodu (a warrant kingmaker), as the candidate of the Lasunwon Ruling House for the vacant stool of Ayangburen of Ikorodu.
14. The 5th – 8th defendants as warrant kingmakers are the custodians of Ikorodu customs and traditions and were fully aware or ought to have been fully aware that the 1st defendant, being the Odofin of Ikorodu and a fellow warrant kingmaker was as long as he occupied that position, disqualified from being considered in any manner for ascendancy to the Ayangburen royal stool.
15. Despite this knowledge which is of ancient antiquity, the 5th – 8th defendants conspired with the 1st defendant to fraudulently present the 1st defendant to the Ikorodu Local Government as the candidate of the Lasunwon Royal House for the Ayangburen stool vide a letter dated 28/12/14……
16. By Ikorodu tradition, the Oluwo of Ikorodu ought to have played a major role in the selection process by virtue of his leading warrant kingmaker position. The 5th – 8th defendants deliberately sidelined the said Oluwo of Ikorodu, who by a letter dated 11/2/15 wrote to the Ikorodu Local Government denouncing the entire exercise as a sham and a fraud. The said letter is hereby pleaded and will be relied upon at the trial of this action.
17. In what amounted to a bizarre aberration and denigration of ancient traditions, it was after the 1st defendant’s installation on 26/5/15 that he then proceeded to perform the traditional rites which ought to have come before. In further violation of Ikorodu traditions, rather than be crowned by the Oluwo of Ikorodu as is customary, it was the “Ogbeni Odi” (one of the Oba’s servants) who crowned the 1st defendant on 2/8/15, an absurd abomination never witnessed in the long history of Ikorodu Town. The claimants hereby plead and shall rely on pictures of the coronation process at the trial of this action.

Though the claimants made mention of failure to perform some traditional rites before the installation of the 1st defendant, it is obvious that their grouse in this suit is majorly about the fact that the 1st defendant was Odofin of Ikorodu and refused to relinquish that title before contesting for the title of and being appointed the Ayangburen of Ikorodu. This is clear from the reliefs sought in this suit, which are:

1. A declaration that under the customs and tradition of Ikorodu Town, 1st defendant is permanently disqualified from aspiring to, contesting and or ascending the throne of the Ayangburen of Ikorodu, Lagos State.
2. A declaration that the process of selection and appointment of 1stdefendant as the Ayangburen of Ikorodu Town by the 5th to 8th defendants, the warrant kingmakers for the Ayangburen royal stool is wrongful, improper, illegal and contrary to the ancient tradition and custom of Ikorodu Town, Lagos State and the Registered Ayangburen Chieftaincy Declaration of 24/1/1958.
3. An order nullifying, voiding and setting aside the entire process leading to the appointment of the 1st defendant as the Ayangburen of Ikorodu as well as the appointment and installation of the 1st defendant as the Ayangburen of Ikorodu, Lagos State by the 2nd and 4th defendants on 26/5/15.
4. A mandatory order directing that the 1st defendant to forthwith and immediately vacate the stool of the Ayangburen of Ikorodu, Lagos State.
5. An order of perpetual injunction restraining the 2nd – 4th defendants from dealing with and or according any recognition to, the 1st defendant as the Ayangburen of Ikorodu Lagos State.
6. An order of perpetual injunction restraining the 1st defendant from further parading himself in any form or manner as the Ayangburen of Ikorodu Lagos State.
7. Costs.

The issues that arise from the contention of the claimants in this suit are:

1. Whether by the custom of Ikorodu, the Odofin is disqualified from being considered to fill the Ayangburen stool.
2. Whether the appointment and installation of the 1st defendant contravened the Ayangburen Chieftaincy Declaration 1958.

As can be seen the reliefs do not only concern the coronation or installation of the 1st defendant, they seek to nullify “the entire process leading to the appointment of the 1st defendant as the Ayangburen of Ikorodu.” Indeed in his oral arguments, learned counsel for the claimants Mr. G. M. Oguntade SAN stated that: “The issue in this suit is whether the 1st defendant being a kingmaker has the personal right in law and is qualified to have contested for the Ayangburen Obaship stool without first relinquishing the title of Odofin of Ikorodu.”

He added that the issue was not determined in Exhibit Z006. He stated that other hand the issue before the court that was determined in the earlier suit in 2009 was whether the Adegorushen family could present a candidate.

While his concise summary of what the issue in this suit is, is right, with much respect to the learned Silk the submission that followed is not correct. What he neglected to say was that in the earlier suit, it was the contention of the claimants in the suit that the 3rd defendant in the suit was estopped from being presented as a candidate and that contention was based on the fact that he had refused to relinquish his Odofin title.

As submitted by Mr. Fabunmi learned counsel for the applicants in his oral argument, the position of the applicants that there is no law stating that a kingmaker cannot vie for the title of Ayangburen of Ikorodu was raised in the earlier suit as shown in Exhibit Z006.

In the earlier suit, the applicants herein as defendants in the suit argued (as recorded in page 10 of Exhibit Z006) that the 3rd respondent having by virtue of  Exhibit A received and assumed the title and office of Odofin was estopped from challenging the agreement. It was recorded in page 19 of the judgment that counsel for the 1st and 3rd defendants submitted that the claimants only raised the issue of the resignation of the 3rd defendant as the Odofin of Ikorodu before contesting for the vacant stool of Oba Ayangburen 6f Ikorodu. It was further recorded that counsel argued that the contention is unfounded. That: “Counsel referred the court to the minutes of Lasunwon Ruling House held on 17/12/2014 attached as Exhibit C and that the objection of the claimants now unfounded in law as there is nowhere in the Obas & Chiefs Law of Lagos State Law 2013 where it is provided that a person or a holder of Chieftaincy title must resign before aspiring for a higher one, that this does not accord with any known law or common sense.”

In deciding the issue, my learned brother Savage J. held:

“A perusal of paragraphs 5 to 15 of the affidavit of Prince Odofin Adegboyega Aliu deposed to and on behalf of the 1st and 3rd respondents manifest the acts and conduct of the claimant and complicity in the nomination and selection process that produced the 3rd respondent as candidate for the vacant stool of Ayangburen of Ikorodu. Furthermore as the claimants did not object or protest the nomination and selection of the 3rd defendant at the proceedings by the kingmakers i.e. 4th – 7th respondents rather all that was raised was the issue of resignation of 3rd respondent as Odofin of Ikorodu before contesting for the higher vacant stool. I refer to meetings of Lasunwon Ruling House held on 17th December 2014 annexed as Exhibit C. Accordingly, I answer this issue by holding that Adegorushen branch of Lasunwon Royal House is not precluded by IKD/57/2007 from presenting a candidate for the vacant stool of Ayangburen of Ikorodu”

The question of the selection and presentation of the 1st defendant as a candidate was thus raised and decided in the previous suit and that constitutes issue estoppel as contended by the applicants. So the prayers of the claimants cannot be granted by this court because its jurisdiction is ousted by the principle of res judicata.

His lordship, Savage J. went on to hold that having determined all of the questions in the originating summons he was unable to grant any of the prayers sought. That includes the prayer for a declaration that the 3rd defendant having by the consent judgment been installed as Odofin of Ikorodu cannot in defiance of it, present himself as a candidate for the Oba Ayangburen stool.

Issue 2

Are the claimants precluded from filing this suit having agreed not to contest the appointment of the 1st defendant?

Learned Silk noted that the installation of the 1st defendant was done after the judgment was delivered so that issue could not possibly have been covered in the Judgment. That is indeed so. However the issue of the installation of the 1st defendant is covered by the undertaking made by the aspirants to the stool, including all the claimants. The 1st claimant admitted making the undertaking. He deposed in paragraph 6 of his first counter affidavit that:

6. In answer to paragraphs 9 and 10 of the affidavit, I state that whilst it is correct that I signed a letter of intent and to abide by the outcome of the screening exercise, the entire process was fundamentally and incurably flawed as the 1st defendant who held the title of Odofin of Ikorodu, a life appointment was manifestly unqualified and disentitled from contesting and or aspiring to the Ayangburen stool whilst simultaneously holding the Odofin of Ikorodu title.

It is too late in the day to take that position because he voluntarily and unconditionally gave up his right to contest the appointment of a new Ayangburen. By Exhibit ZOOI, he committed himself to “abide by the outcome of the candidate screening exercise”.

He is estopped from resiling from his unconditional undertaking. This also applies to the 2nd and 3rd claimants. See Odulola v. Coker (1981) 5 S. C. (Rep), 120 and

Okonkwo. Kpajie (1992) NWLR Pt.26, 633.

Interestingly, the claimants did not offer any argument in respect of this issue.

Perhaps because there really is no answer to it. Learned Silk simply stated in his submission that the letters of intent cannot constitute an issue of jurisdiction and can only constitute a defence. The applicants indeed raised the issue as a defence and it is now being decided as a point of law raised in the defence. In Chukwuma v. Ifeloye (2008) 12 SC (Pt. Il) 291; the Supreme Court held per Aderemi JSC that:

“I do not want to lose sight of the fact that in the present case, it is the defendant/respondent who is contending that the plaintiff/appellant had made some representations to him which representations find expression on her desire to give up all her legal rights on the parcel of land on which he (defendant/respondent) has built on or was building on, and that for a consideration. That promise or undertaking is, what in law, is called Promissory Estoppel. Thinking or reasoning in logical sequence, it is my view that such promissory estoppel can only be used as a shield not as a sword: it is a contractual defence to an assertion of contractual rights; where one party has given a promise or an undertaking to the other that he would not assert his legal right, if a condition is fulfilled by the other party and that other party, on his part, fulfilled that condition, thus changing his position to the advantage of the promisor, that promisor will not, on good law and equity, be allowed to renege from the position he voluntarily carved for himself. It will be an unconscionable act or behaviour on the part of the promisor.”

That is the situation of the claimants herein who wrote Exhibits ZOOI-3. They made a promise and they are bound by it. So they are precluded from filing this suit.

In the light of the foregoing, I find force and merit in this notice of preliminary objection. I do hereby uphold the applicants’ objection to the jurisdiction of this court. I find that the suit of the claimants is caught by the principle of res judicata and that they are estopped from filing this action by the undertaking they gave.

This suit is therefore dismissed.