Justice Akintunde Savage of a Lagos High Court, sitting in Ikorodu, has dismissed an application filed by two members of the Odusago royal family of the Lasunwon Ruling house seeking to be joined as 13th and 14th respondents in the suit challenging the adoption of the Odofin of Ikorodu, Chief Kabiru Shotobi as the oba-elect by the king makers.
Justice Savage, in his ruling last week, dismissed the application for lacking in merit.
Jamiu Olusola Alejo and Durojaiye Ekundayo Alejo, through their lawyer, Suleiman Talabi, had on behalf of Odusago branch of the Lasunwon Ruling House of Ikorodu, sought to be joined as defendants in the suit.
Those seeking to be joined based their reasons on three main issues in their 17-point affidavit in support of the motion on notice filed before the court.
They averred that it was necessary that they were joined in the suit as defendants. As descendants of Lasunwon Ruling House, also entitled to present candidates for the selection and nomination for the throne of Ayangburen of Ikorodu, the decision of the court, according to them, may adversely affect their claim to the stool should they be excluded from the present suit. They said it was in view of the aforementioned facts and in the interest of the proper and holistic determination of all issues before the court, that they sought to be joined as defendants.
They averred further that it was imperative that all interested parties be included in this suit for the court to have a proper appraisal of the consent judgment delivered by Justice Habeeb Abiru, now of the Court of Appeal, in the earlier suit number IKD/57/2007.
The judge noted that while moving the application, counsel to the joinders , Sulaiman Talabi, had submitted before the court that the members of the Odusago royal family were not interested in the earlier suit, which centered on the position of Odofin of Ikorodu, but was interested in the present suit because the issue at stake was the Ayangburen stool.
They also submitted that it becomes necessary for them to join for easy resolution, and to save the time of the court by avoiding multiple suits.
Justice Savage also noted the opposition of counsel to the applicants, John Osighala and that of the second respondent, Kazeem Adenabjo to the joinders application.
He noted that Osighala in a nine- paragraph counter affidavit had submitted that the parties seeking to be joined are not parties in the previous suit numbered KD/57/2007 and that the matter in the new suit can be resolved without them. He also noted that in his counter affidavit, Adebanjo denied the existence of Odusago royal family of Lasunwon Ruling House of Ikorodu and the fact that those seeking to be joined were not parties to the earlier suit, the enforcement of the consent judgment of which they are seeking in court now.
Adebanjo, the judge said, submitted that the alleged Odusago royal family has never occupied the stool of Ayangburen and that he cited relevant laws and decided cases of the Supreme Court of Nigeria to support his submission on why the application should be rejected and dismissed.
The judge also noted that counsels to other respondents in the suit, including Gbenga Hassan for first and third respondents, O. Fabunmi for fourth to seventh respondents and S. A. Quadri for 11th and 12th respondents did not oppose the application nor file any counter affidavit.
On Justice Savage request, Chief Babatunde Olusola Benson (SAN), who is an “amicus curiae” (friend of the court) and a prominent son of the soil, reported to the court that several meetings held with various counsels after the court’s sitting of March 18, were deadlocked as counsels refused to shift positions.
Justice Savage, while ruling on the matter, held those seeking to be joinders were not parties in the previous suit and that they ought to have shown interest before the consent judgement delivered by Justice Abiru(now Justice of the Court of Appeal) in 2007 or at the Court of Appeal as an intervener. He also noted that the consent judgment was never appealed at the appellate level.
He also held that parties cannot join a suit in which judgment has been delivered and which enforcement has become the subject of another suit.
At this stage, Osighala asked for cost in the sum of N150,000 explaining that the joinders application had made them incurred addition cost as they had to file counter affidavit and serve 13 respondents.
Adebanjo aligned with the request of Osighala, pointing out that the application took them back despite the fact that the court had taken a decision to ensure speedy hearing in the matter. Adebanjo submiited further that the application seeking to be joined was filed “malafides” (in bad faith), adding: “our time was wasted, efforts wasted and three adjournments wasted on the application.”
But Talabi argued that any application in a suit must be judicially determined otherwise “people would be scared of bringing application before the court”.
Talabi declined to concede to costs, but prayed that if the court must award costs, it should not be more than N10,000 and urged the court to use its discretion on the matter. Justice Savage said the two counsels were right to ask for cost and awarded N30,000 each for Osighala and Adebanjo. He said other counsels did not merit costs as they filed no counter affidavit.
Just as Osighala asked the court for a date to move the main application, which was brought by an originating summon, counsel to the state government (11th and 12th respondents), Quadri, told the court that he wanted to withdraw his earlier application dated February 18, and to substitute it with another dated March 16.
Counsels to the third respondent, Hassan, and those of the fourth to the seventh respondents, Fabunmi, did not raise any objection to the development.
But Osighala, counsel to the applicants, opposed the substitution of the application by the government counsel, Quadri, saying: “counsel is attempting to withdraw through the back door, issues already raised in our argument already made and submitted before the court.
“The law does not make provision for substitution. What the law provides for is amendment under Order 24 Rule 2. Secondly, it is “over reaching” wherein by rules and procedures, arguments had commenced and closed, a party is extort from proferring new arguments to over-reach previous issues already canvassed.
“If we keep doing this, there would be no end to litigation because if allowed, I would have to go and file an amendment.” He cited various cases decided by the Supreme Court of Nigeria to buttress his submission.
Adebanjo also said the attempt by counsel to the government to have previous process withdrawn was surprising. He submitted that if allowed, the court would have to call for counter applications fron other counsels in the matter.
Asked for their views on the new development espoused by government counsel, Hassan, counsel to the first and third respondent, said he was indifferent and left the matter to the discretion of the court.
Fabunmi, counsel to the fourth to the seventh respondents, said no harm would be done by the substitution of the application the government wanted to make. “Claimants counsel has the opportunity to respond again,”he said.
Quadri also said arguments had not really commenced on the matter as they were yet to commence hearing of the originating summon. He said the only right counsel to the applicants have is that of reply having been served the application.
He said the court has the discretion to either allow or disallow the substitution of the application, which he claimed has been done “for typographical errors” and to dot the “i’s and “t”s.
Ruling on the matter, Justice Savage held that no harm would be done to issues already canvassed and that counsels can file new responses if issues are affected in the new application.
“The processes filed on February 18 is hereby struck out. Counsels are at liberty to respond to processes dated March 16,” he declared.
The matter was adjourned till today for applicants to move their originating summons.
