In The Supreme Court of Nigeria
On Friday, the 12th day of January 2007
S.C. 160/1995
Before Their Lordships
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Salihu Modibbo Alfa Belgore |
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Chief Justice of Nigeria |
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Sylvester Umaru Onu |
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Justice, Supreme Court |
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Justice, Supreme Court |
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Aloma Mariam Mukhtar |
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Justice, Supreme Court |
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Walter Samuel Nkanu Onnoghen |
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Justice, Supreme Court |
Between
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Oba Adebanjo Mafimisebi |
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Defendants/Appellants/Cross-Respondents |
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Chief Frances Omotunde Ewarawon (Substituted by Order of Court on 2/5/2006) |
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And
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Prince Macaulay Ehuwa |
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Prince Ethiopia Eyiwumi Okiki |
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Plaintiffs/Respondents/Cross-Appellants |
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Prince Ephraim .O. Omotoye |
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Prince Albert .S. Ebigbemi |
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And
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The Military Governor of Ondo State |
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Defendant/Respondent/Cross-Respondent |
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The Secretary, Ilaje/Ese-Odo Local Government |
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The Attorney-General of Ondo State |
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And
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High Chief S.A. Adugben |
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Defendants/Respondents/Cross-Respondents |
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High Chief A. M Agbaro |
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Judgment of the court
delivered by
Dahiru Musdapher. J.S.C.
In the High Court of Ondo State of Nigeria in the Okiti-pupa Judicial Division and in suit No. HOK/7/84, the plaintiffs who are the respondents and the cross-appellants herein commenced this action on the 14/6/1984. In their Further Amended Statement of Claim as per paragraph 36 thereof, they claimed against all the defendants therein, that is the appellants/cross-respondents and the respondents/cross-respondents herein the following declarations and reliefs:-
"(i) Declaration that the Registered Declaration of Ugbo Chieftaincy are (sic) defective and inexaustive of the customs and traditions of Ugbo chieftaincy and therefore null and void.
(ii) Declaration that under the traditions and customs of the Ugbo people regarding Ugbo chieftaincy the appointment of an Olugbo is by rotation between AGBEDUN/OJOGO and OYETAYO/ ATARIOYE section of OJADELE ruling house since the demise of OJADELE.
(iii) Declaration that the Registered Declaration of the Ugbo Chieftaincy to the extent that it fails to provide for rotation between AGBEDUN/OJOGO and OYETA YO/ATARIOYE sections of OJADELE Ruling house is defective, inequitable, invalid, null and void.
(iv) Declaration that the findings and recommendations of Morgan Chieftaincy Review Commission of 1981 relating to the Olugbo of Ugbo Chieftaincy in Ondo State and the Government White Paper issued on it are invalid null and void on the following grounds
(a) that the findings and the recommendations of the said commission on which the 1st Defendant based its decision are contrary to law having disregarded vital evidence placed before it.
(b) That the findings and the recommendations of the said commission which the 1st defendant based its decision is contrary to law having taken into consideration extraneous matters.
(v) Declaration that under the customs and traditions of the Ugbo people, the head of the OJADELE ruling house must present candidates aspiring to the OLUGBO Stool physically for screening and selection before the kingmakers at the meeting where a candidate will be appointed.
(vi) Declaration that the 7th defendant is not a kingmaker of the Olugbo of Ugbo in Ilaje/Ese-Odo of Ondo State.
(vii) Declaration that the purported appointment and approval of the candidature of the 3rd defendant as the Olugbo by the 4th - 7th and 1st to 2nd defendant respectively is irregular, illogical, uncustomary, invalid, null and void and of no effect whatsoever.
(viii) An order of perpetual injunction restraining the 1st ,2nd ,4th ,5th and 7th defendants by themselves or through their servants,agents or privies, or otherwise howsoever from taking any steps or actions in relation to or in furtherance of the purported appointment of the 3rd defendant as the Olugbo elect.
(ix) An Order setting aside the purported appointment of the 3rd defendant as the Olugbo elect.
(x) An Order of perpetual injunction restraining the 3rd Defendant from further presenting or parading himself or holding out himself or allowing himself to be held out as the Olugbo and from exercising any right or performing any functions ascribed to an Olugbo."
Pleadings were filed, exchanged and amended. At the trial the parties gave evidence, and called other witnesses and documentary evidence were tendered. At the conclusion of the trial, in his judgment delivered or the 7thday of June 1990, the learned trial judge dismissed in their entirety the declarations, reliefs and injunctions the plaintiffs claimed as reproduced above. The plaintiffs felt unhappy with the situation and appealed to the Court of Appeal on one original ground of appeal. With the leave of the Court of Appeal 13 additional grounds were allowed to be canvassed on behalf of the plaintiffs.
In the determination of the matter before it, the Court of Appeal per Akpabio JCA (who read the lead judgment which was concurred by Ogebe and Ubaezonu J.C.A) at page 622 of the printed record of the proceedings stated as follows;-
"I have carefully considered all the issues formulated by all the parties above and find that the most important question for determination in this appeal is whether the Registered Chieftaincy Declaration of Olugbo, Exhibit "A" correctly represents the Chieftaincy custom or tradition of the Ugbo people,
... .. .
I consider this question most crucial because if at the end we find the chieftaincy declaration, Exhibit "A" did not correctly represent the chieftaincy tradition of the Ugbo people as they exist on the ground, this court will not hesitate to declare it invalid and set it aside , . If exhibit "A" is set aside, then clearly all other things done under it, such as the appointment of the 3' respondent as the Olugbo or Olugbo elect must also be set aside as null and void."
The Court of Appeal in the aforesaid judgment concluded as follows:-
"I have carefully considered all the evidence adduced in this case and find that the evaluation of evidence, and the ascription of probative value thereto, are matters peculiarly within the province of the trial Court and not that of the Court of Appeal, .
In the instant case where the learned trial judge had failed to make any reference or pronouncement at all on exhibit "J" series . justice therefore demands that this case should be sent back to the court below for a fresh trial before another Judge of Ondo State High Court."
Thus the Court of Appeal allowed the appeal of the plaintiffs on that single issue and ordered retrial before another judge. Some of the defendant that is the appellants herein felt disgruntled with the decision and have now appealed to this court. The plaintiffs also cross-appealed to this court against the order remitting the case back for an order of retrial and contend that this court should look into the evidence and decide the matter or the narrow issue as set out by the Court of Appeal.
But before the examination of the Notices of Appeals, and the various issues for determination identified formulated and submitted to this court, it is desirable at this stage to state the back ground facts of the dispute herein. The facts put very briefly is that the plaintiffs took this action complaining that the Olugbo Chieftaincy Declaration tendered in the proceedings as Exhibit "A" was made on wrong recommendations by the Morgan panel, in that the evidence led before that panel on the customary law and the traditions of the Olugbo people concerning the Olugbo chieftaincy were disregarded by the panel. It is also alleged that the panel based its finding on extraneous matters. It was said to be common ground, that the late Olugbo, Oba Napolean Mafimisebi III took a memorandum based on agreement by the entire members of the ruling house, all the descendants of the Ojadele to Morgan Commission.
The memorandum contained a number of recommendations including order of rotational succession to the Olugbo stool. While giving evidence before the panel, the Oba, the father of the 3rd defendant, urged the panel to recognize two ruling houses viz Agbedun/Ojogo and Oyetayo/Atarioye.
Because, according to him, their ancestor, Ojadele had two wives and each of the wives had two sons. The plaintiffs in the main allege that chieftaincy declaration in Exhibit A does not correctly represent the customary law and traditions of the Ugbo people in relation to the succession to the Olugbo stool. The plaintiffs also averred that there were many irregularities in the nomination, selection and the purported appointment of the 3rd defendant sufficient to vitiate the whole selection exercise, e.g. the secretary to the local Government conspired with the kingmakers to conduct the nomination and the selection exercise behind the back of the members of the ruling house and especially behind the back of the other stool contestants and the wrong membership of the Caleb Kalejaiye [now substituted] to the council of kingmakers. It was averred that he was never appointed Asogba and was therefore not a kingmaker and he had no right to take part in the nomination or selection of an Olugbo.
The defendants disagreed with the plaintiffs in a number of points, but it is common ground that on each occasion a vacancy in the stool of Olugbo arose, there were always many contestants against the son of deceased Oba even though the 3rd defendant and witnesses testified that the succession to the Olugbo stool is from father to son and that there was no rotation. This latter position of dependants was disbelieved by trial judge.
From the pleadings and the evidence adduced, it appears that both the plaintiffs and the 3rd defendant and his witnesses are agreed that Exhibit "A" did not truly represent the customary law and tradition of the Ugbopeople in relation to the succession of the stool of Olugbo. The plaintiffs pleaded and led evidence that succession to the Olugbo stool was by rotation see paragraphs 13, 14, 15, 16 of the Further Amended Statement of Claim, The 3rd defendant by paragraph 7 of the Amended Statement of Defence pleaded and in his evidence stated that the succession to the Olugbo throne is from father to son and he is the only qualified candidate amongst the six contestants that vied for the Olugbo throne which was vacant then. While it is clear that Exhibit "A" limits the succession to the Olugbo to male descendants of Ojadele only.
Faced with this situation, the learned trial judge after discussing the legal status of Exhibit "A" and the circumstances when it can be successfully challenged in a court, referred to the case of Adigun Vs. A. G. Of Oyo State [1987] 1 NWLR (Pt. 53) 678 at 717 and said at page 400 of the printed record:-
" This court has jurisdiction to look into the existing declaration Exhibit "A" and if, from the adduced evidence, I find that it does not represent the true customary law of the Olugbochieftaincy or that the Morgan Chieftaincy Commission was in breach of the rules of natural justice or that the Morgan Commission had acted on extraneous consideration . I shall set Exhibit "A" aside and declare what the true position is as regards the customary law of the Olugbo chieftaincy."
It was after the purported consideration of the evidence adduced by both parties that the learned trial judge said in part of his judgment, See page 413 of the printed record:-
"I must say it is not terribly important for the sake of this suit to find out which of the two versions is correct because Exhibit "A" i.e. the Registered Chieftaincy Declaration is not inconsistent with either version."
Thus the learned trial judge found there was no inconsistency from
the stand of the plaintiffs who averred succession by rotation, the 3rd defendant who averred succession from father to son and Exhibit "A" which simply stated succession to the male descendants of Ojadele.
Again the learned trial judge proceeded to consider whether the plaintiffs have adduced any credible evidence to entitle them to have the declarations sought by them. He concluded thus:-
Apart from the oral evidence of the plaintiffs and their witnesses that the chieftaincy had been in rotation among the 4 children of Ojadele since the death of Ojadele there is no other corroborative evidence which can support this claim. On the other hand there is overwhelming evidence to, support the claim of the 3rd defendant that the, chieftaincy has been hereditary since the death of Ojadele."
Thus, as mentioned before, the learned trial judge found the customary law and tradition of the Ugbo people to be hereditary as against Exhibit "A" which leaves succession to all the male-descendants of Ojadele. He yet proceeded to dismiss the plaintiffs claims. Also as mentioned above, the plaintiffs appealed to the Court of Appeal and mainly complained that the learned trial judge did not properly appraise and analyze all the evidence led before him. It was claimed that the learned trial judge failed to refer or be guided by Exhibits J series, if he had done so he would find the corroboration in the evidence of the plaintiffs on the question of rotation. It was on that narrow ground that the Court of Appeal allowed the plaintiffs' appeal and set aside the dismissal of the plaintiffs' case by the trial court. I shall now discuss the appeal of the 3rd defendant, then the appeal of the 7th defendant and finally the cross-appeal of the plaintiffs. It appears to me that the other defendants, i.e. the king makers, the secretary to the local Government and the Government officials though sometimes referred to as appellants, they did not file any appellants' brief, even if they filed. Notice of appeal, they merely filed respondents' or cross-respondents brief.
The appeal of the 3rd defendant
In his Notice of appeal, the 3rd defendant has filed 4 grounds of appeal and distilled from the grounds, the learned counsel appearing for him has identified, formulated and submitted to this court, the following issues for the determination of the appeal. The issues are:-
(a) Whether the learned justices of the Court of Appeal were right in holding that Exhibit "A" which is the registered declaration of the Olugbo chieftaincy "can be set aside having not been proved to be illegal, unlawful and or null and void.
(b) Whether Exhibit J series are inconsistent with the content of Exhibit "A".
(c) Whether Exhibit J series which are records of Boards of Enquiry of various strives by aspirants to the stool Olugbo in 1950s can be used to alter, amend or modify the contents of a validly made chieftaincy declaration."
Issue (a)
This issue mostly focuses on the question whether the courts have
the competence or the jurisdiction set aside or declare null and void Exhibit "A" the chieftaincy declaration made lawfully in accordance with the provisions of the relevant chiefs' law. It is argued that the Court of Appeal was in error to have held that it has the power to set aside subsidiary legislation such as Exhibit A. Learned counsel referred to the case of
Obala of Otan Aiyegbaju vs. Adesina [1992] 2 NWLR (Pt. 590) 163 at 181. It is further argued that the courts are not empowered to amend the Olugbo chieftaincy Declaration see Ajakaiye vs. Idehai [1994] 8 NWLR (Pt 364) 504. It is further contended that the plaintiffs did not claim a relief for the setting aside of Exhibit A, the plaintiffs merely wanted the court to declare Exhibit "A" as null and void.
The learned counsel for 1st, 2nd and 4th defendants argued and submitted that the function of the court is jus dicere and not jus dare the court cannot assume the role of the legislature to amend or alter a legislation and that the court has no jurisdiction to invalidate a Registered Chieftaincy Declaration such as Exhibit "A" unless it violates the State's Chief Law and counsel referred to and cited Ayoade vs. Governor Of Ogun State [1993] 8 NWLR (Pt 309) Oyefolu vs. Durosinmi II [2001] 16 NWLR (Pt 738) 1.
For the plaintiffs, the learned senior counsel representing them argued, that the courts have the power and the jurisdiction to invalidate any chieftaincy declaration once it becomes apparent, that the declaration does not properly represent the customary laws and traditions of the people. Learned counsel referred to the case Adigun vs. A.G. Oyo State [1987] 1 NWLR (Pt 53) 678 and also the case of Ajakaiye vs. Idehai (supra) Aku vs. Aneku 1991 8 NWLR (Pt 209) 280.
On the question, whether the plaintiffs asked for the relief of setting aside the declaration in Exhibit A by asking for a declaration that it is null and void, it is submitted that the defendants are merely engaged in semantics. It is submitted that when Exhibit "A" is declared as null and void, it means it is no longer in existence.
Now dealing with this issue, in my view, the plaintiffs by asking for a declaration that Exhibit "A" is null and void, they also mean that Exhibit "A" does not really exist, if it exists, it should be set aside. I agree, it is a matter of semantics and it is a distinction without a difference. A careful study of the pleadings of the plaintiffs clearly show that plaintiffs wanted to have the declaration in Exhibit "A" set aside, since it did not truly represent the customary law of the people.
The learned trial judge had no difficulty in finding that the plaintiffs wanted the declaration in Exhibit "A" merely set aside. See from pages 397 to 402 in the printed record where the learned trial judge dealt with the legal status of Exhibit "A'.
Now, to the main question what is the legal status of Exhibit "A" Do the courts have the competence to set aside, the registered declaration? The learned trial judge in his judgment answered the question he stated at page 398 of the printed record:-
"The question whether the High Court has jurisdiction to make a declaratory order such as ones sought by the Writ of Summons and Statement of Claim in this case is well discussed in the case of Adigun vs. A.G. of Oyo State [1987] 1 NWLR (Pt 53) 678. . The Supreme Court held that it does .."
The learned trial judge cited the statement of Eso. JSC at page 717 of the report, thus:
" The effect of such a declaratory Order of the court would be that any declaration made and registered under the Chiefs Law as to the Customary law prevailing which was not in line with the declaratory order of the court as to the existing customary law would be void ..."
In the same case Justice Qbaseki JSC also observed:-
" It cannot, in my view, be correctly and legally argued that the High Court cannot entertain and adjudicate on such a claim in the exercise of its, unlimited jurisdiction vested in it by section 23 6(i) of the Constitution of the Federal Republic of Nigeria 1979."
Applying the above principle, the learned trial judge continued-
" .. I will from the evidence adduced In this court, ascertain and find whether there is customary law on the Olugbo chieftaincy, what it is and then decide whether on the evidence Agbedun/Ojoga and Oyetayo/Atarioye are the two ruling houses . The court can intervene to declare the existing Chieftaincy Declaration valid or invalid."
So, clearly, it is not the Court of Appeal that made this important statement on the power of the court to intervene and to declare as invalid and set aside a chieftaincy declaration, but the trial court. See pages 399 - 400 of the printed record there is no appeal against the decision of the trial court. The Court of Appeal merely restated what the trial judge has stated. This Court cannot therefore in this matter reopen the decision of the trial judge without any appeal to the Court of Appeal on the matter. See Ijale vs Leventis [1959] 4 FSC 108 Oshodi vs. Eyifunmi [2000] 13 NWLR (Pt 684) 298
In the case of Odiase vs. Agho [1972] 3 SC 73, At Page 78, Lewis J.S.C.
"Normally if there is an appeal against a judgment on one point then the appeal stands or falls on that one point. When we give judgment on that point we have not pronounced on this point not argued and, though they rest as part of the decision of the High Court, they remain open to argument as point of law to any other future appeal before us unfitted by any pronouncement of this court as to their validity."
In other word the fact that the Court of Appeal reechoed, the statement made by the learned trial judge who was not appealed against, it cannot be a subject of a further appeal without an appeal on that point to the Court of Appeal. This court clearly has no jurisdiction to entertain an appeal direct from the trial High Court. The complaint under this head is in my view incompetent.
Be that as it may, the Court of Appeal held at page 631 of the printed record that it had power to set aside a registered declaration which does not correctly "declare the chieftaincy custom and tradition of the area concerned." Is this correct? In my view, all the authorities seem to support the view. See sections 5(ii) and 5(2) of the Chieftaincy Edict of Ondo State, Edict No. 11 of 1984. See Fasade vs. Babalola (2003) 11 NWLR and the Adigun case (Pt. 830) p. 25 (supra).
In the instant case Exhibit A was frontally attacked by all the parties as soon as it was made. The parties clearly stated their different versions of the customary law relating to the chieftaincy. None of them agreed with the provisions contained in Exhibit A. According to the 3rd defendant and his witnesses, the customary law of the chieftaincy is that succession to the throne is from father to son. The plaintiffs on the other hand pleaded and gave evidence that it is rotational while Exhibit "A states that ascension to throne is a free affair to all the male descendants of Ojadele. Faced with this conflicting situation, the learned trial judge held that the courts have the jurisdiction to intervene and decide whether Exhibit "A" truly represents the customary law and traditions of the Ugbo people. There is no doubt that the court cannot promulgate a chieftaincy declaration see the judgment of ONU JSC in the case of Ajakaiye vs. Idehai supra pages 532-533 in which he cited the case of Egumwense vs. Amaghizenwen (1993) 9 NWLR (Pt 315) 1 at 41 where it was stated, that the court has no business to promulgate declaration of customary law, but all the authorities are one in that the courts have the competence to see whether a chieftaincy declaration such as Exhibit A is really in conformity with prevailing customary law. See Aku vs. Anekwu supra and accordingly declare it invalid if does not. I accordingly resolve issue A against the 3rd defendant/appellant, that the courts have the competence of setting aside Exhibit "A" if found to be contrary to the proved customary law and practice of the people.
Issue (b)
This issue is concerned with the question whether Exhibit "J" series are inconsistent with Exhibit "A" thus necessitating that they should be considered to impeach and or infract Exhibit "A". It is submitted that Exhibit J series are archival records of reports of various Boards of Enquiry set up to look into the Olugbo chieftaincy disputes. The learned counsel for the 3ld defendant concedes that the learned trial judge did not evaluate or make reference to them, but the learned counsel argued that the documents were inadmissible and that they were not in any event inconsistent with Exhibit "A. The learned counsel for the 1st, 2" and 4th defendant have virtually the same argument against Exhibits J series.
The learned counsel for the plaintiffs on the other hand argues that the issue of admissibility of Exhibits J series is a fresh issue on which there was no appeal against their admissibility either in this court or in the court below, and no leave was obtained to raise the issue of their admissibility. It is further argued that the exhibits were tendered without objection at the trial and it is too late now to object to their admissibility.
It is again argued that the exhibits J series are relevant to show the customary law and traditions of the Ugbo people and there is nothing in the Evidence Act preventing their admissibility. It is submitted that the failure to consider the exhibits by the learned trial judge was fatal to his decision.
Now, there is no dispute what-ever that the learned trial judge had failed to evaluate, appraise the documentary evidence as contained in Exhibit J series which were admitted in evidence mostly without any objection. In his judgment, the learned trial judge as shown above said he would consider all the evidence adduced before him in order to find whether the existing customary law of Ugbo people in relation to the succession of theOlugbo is inconformity with Exhibit "A". He was to look into all the "evidence adduced" he failed to consider these pieces of evidence in his determination of the correct customary law of the Ugbo people. He also accused the plaintiffs of not supplying corroborative evidence on the issue of for example the rotational nature of the accession to the Olugbo throne at page 414 of the printed record. The learned trial judge said:-
"However, I should resolve the issue as to what this court feels about the evidence led here about rotation of the chieftaincy without any prejudice to what the appropriate authority may likely do in the future. Apart from the oral evidence of the plaintiffs and their witnesses that the chieftaincy has been in rotation among the few children of Ojadele since the death of Ojadele there is no other corroborative evidence which can support this claim."
The corroborative evidence if corroboration was necessary was the evidence contained in Exhibits J series and the other documents which the learned trial judge said he was going to consider to find out whether Exhibit A truly represents the customary law and practices of the-Olugbo people. His failure to clearly determine the issue in controversy between the parties by not considering all the evidence adduced before him, the learned trial judge had failed in his duty of just fair adjudication.
It is common ground that Exhibit J series were proceedings of enquiries made as the result of protests always occurring when a new Olugbo was to be appointed. The plaintiffs claim that the Exhibits contain evidence of customary law relating to the chieftaincy. The documents were pleaded and tendered and there was only one in which the defendants lamely and unsuccessfully objected.
The learned trial judge was wrong to have failed to consider the evidential values of the documents. I accordingly resolve issue (B) and (C) against the 3rd defendant/appellant.
There are the 3 issues argued in the 3rd defendant's/appellants brief. These issues having been resolved against the 3rd defendant, his appeal is accordingly dismissed by me.
Appeal of the 7th Defendant as substituted by High Chief Francis Qmotimde Ewarawon
The 2nd appellant herein is the predecessor of the 7th defendant in these proceedings. He was the deceased High Chief Caleb Kalejaiye. He died during the pendency of these proceedings and was substituted by an order of this court with High Chief Francis Omotunde Ewarawon. He filed a brief as an appellant in this matter and in it; the learned counsel for him has identified and formulated one issue for the determination of his appeal. The issue reads:-
"Considering the circumstances of this case, the painstaking and thorough manner with which the trial court considered and evaluated relevant evidence placed before it and came to a decision and in view of exhibits "A", "C" and "S" whether the lower court was not patently wrong in ordering retrial based on the fact that the trial Court did not pronounce of exhibits "J","J1""J2"'J3" and'J4'.