H.R.M OBA VICTOR ADESIMBO KILADEJO (THE OSEMAWE OF ONDO KINGDOM) v. AKINRETOYE & ORS
(2020)LCN/14296(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Wednesday, June 17, 2020
CA/AK/91/2014
Before Our Lordships:
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
HIS ROYAL MAJESTY OBA VICTOR ADESIMBO KILADEJO THE OSEMAWE OF ONDO KINGDOM APPELANT(S)
And
- CHIEF SOLOMON ADEFIAYO AKINRETOYE 2. MR. PHILIP AKINRETOYE (For And On Behalf Of Otun Ojomu Selection Committee Of Ojomu Family) 3. THE COMMISSIONER FOR LOCAL GOVERNMENT AND CHIEFTAINCY AFFAIRS (ONDO STATE) 4. THE ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, ONDO STATE RESPONDENT(S)
RATIO
WHETHER OR NOT THE DECISION OF THE TRIAL COURT IS PREMISED ON THE EVALUATION OF THE TOTALITY OF EVIDENCE BEFORE IT
Like I stated earlier, the decision or judgment of Court is premised on the evaluation of the totality of evidence adduced before her. A trial Court cannot base its finding or judgment on a single document or piece of evidence before her and leave out the others. Where this happens, the appellate Court is entitled to look at the totality of the evidence on record to see if it supports the decision of the trial Court. I do not subscribe to the notion that this is an invitation to this Court to evaluate the evidence of the trial Court. This Court is conscious of its role and powers remembering always that there is another staircase upstairs!. PER MAHMOUD, J.C.A.
DEFINITION OF A “CHEIFTAINCY DECLARATION”
In order to understand this case, I find it necessary to attempt a definition of a chieftaincy declaration and its purport. Onnoghen, JSC (as he then was) in the case of MAFIMISEBI & ANOR V EHUWA & ORS (2007) 2 NWLR, PT 1018, 385 explained the purpose of a registered chieftaincy declaration thus:-
“It is to avoid the problem of calling evidence each time a particular native law and custom needs to be established in relation to chieftaincy in the former Western Region of Nigeria that gave rise to the attempt at codification of the relevant customary laws and traditions of the relevant people in relation to particular chieftaincies otherwise known as Chieftaincy Declaration. Therefore the purpose of registered Chieftaincy Declaration is to embody in a legally binding written statement of fact the customary law of the relevant area in which the method regulating the nomination and selection of a candidate to fill a vacancy is clearly stated to avoid uncertainty.”
See also OLANREWAJU V OYESOMI & ORS (2014) 11 NWLR, PT 1318, 258. PER MAHMOUD, J.C.A.
PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): The dispute in this case relates to the approval and appointment of the 2nd Respondent as High Chief Jomu of Ondo Kingdom, a Chieftaincy exclusively reserved for the Jomo family of Ondo. The 1st Respondent, Mr Philip Akinretoye, together with his late brother Chief Solomon Adefiayo Akinretoye instituted this case in the Ondo State High Court, sitting at Ondo town, claiming eight reliefs as follows:-
1. A DECLARATION that the composition or constitution of the selection committee for the purpose of filling the vacant stool of Jomu of Ondo Kingdom whereby the selection committee invited three members and non members from five ruling houses, is contrary to the custom appertaining to the filling of vacant stool of Jomu of Ondo Kingdom.
2. A DECLARATION that going by the custom appertaining the filling of Jomu of Ondo Kingdom chieftaincy Ruling house, it is not the turn of the 1st defendant’s ruling house to provide a candidate or fill the vacant stool of Jomu of Ondo Kingdom.
3. A DECLARATION that the invitation extended to the 1st defendant to participate in the
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selection exercise appertaining to the filling of Jomu of Ondo Kingdom chieftaincy ruling house and the actual participation and interview of the 1st defendant before the candidates from the plaintiff’s ruling house, is contrary to the custom of Jomu family or appertaining to the filling of Jomu ruling house chieftaincy.
4. A DECLARATION that the purported selection of the 1st defendant to participate in the selection exercise and the submission of the 1st defendant name to the 3rd defendant for approval by the selection committee of Otun Jomu is contrary to the custom appertaining to the filling of Jomu Ruling house Chieftaincy.
5. A DECLARATION that the approval given to the selection of the 1st defendant’s as Jomu of Ondo kingdom by the 3rd defendant when there existed lack of consensus among the five ruling houses of Jomu Ruling house chieftaincy and in particular that of Arowobaiye ruling house is contrary to custom of Jomu family or appertaining to the filling of the vacant stool of Jomu of Ondo Kingdom.
6. An order setting aside the selection, nomination and appointment of the 1st defendant as Jomu of Ondo Kingdom.
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- Perpetual injunction restraining the 1st defendant from parading himself or holding himself out as Jomu of Ondo Kingdom.
8. Perpetual injunction restraining the 4th and 5th defendants, their agents, privies and servants from giving recognition to the 1st defendant as Jomu of Ondo Kingdom.
The plaintiffs based their claim before the trial Court on two platforms, namely: The Ojomu Chieftaincy Declaration of 1958 admitted and marked as Exhibit P1 and on other custom or customary procedure to be followed in the selection and appointment of Ojomu of Ondo Kingdom but not contained in Exhibit P1. The facts relating to the customary practice and procedure in selecting or appointing Ojomu of Ondo Kingdom not contained in the Declaration of 1958 were specifically pleaded in paragraphs 13, 26, 27 and 28 of the plaintiff/1st respondent’s pleading.
The case of the plaintiffs now 1st Respondent at the trial Court is that the 1st Respondent is from the Ayeyeberoja Ruling House of the Ojomu family, which Ruling House should have produced the Ojomu of Ondo Kingdom at the time the last occupier of the stool, late High Chief F. A. Akinwumiju from the
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Ajilaran Ruling House became the Ojomu. At the time the candidate from the 1st Respondent’s Ruling House, late Chief Solomon Adefiayo Akinretoye and their Ruling House of Ayeyeberoja were prevailed upon by the Osemawe of Ondo and the other Ruling Houses of Ojomu Family to step down for late High Chief F. A. Akinwumiju on an oral agreement and understanding that after the reign of late F. A. Akinwumiju, it shall be the turn of the 1st Respondent Ruling House to produce the next Ojomu of Ondo Kingdom. That after the death of High Chief F. A. Akinwumiju, the 2nd and 3rd Respondents, contrary to the custom regulating the selection of Ojomu of Ondo constituted a committee of Otun Ojomu made up of three members each from the Five Ruling Houses instead of the Otun Ojomu Committee to be timely made up of the Ruling House whose turn it is to produce the next candidate as the custom and Exhibit P1 demand. That the 2nd and 3rd Defendants refused, failed or neglected to honour the oral agreement between the 1st Respondent’s Ruling House and late Osemawe, Oba Adesanoye/other Ruling Houses of Ojomu family to the effect that it shall be the turn of the 1st
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Respondent’s Ruling House to produce the next Ojomu after Ojomu Akinwumiju.
In proof of their case, the Plaintiffs called six witnesses and tendered six Exhibits which were marked as Exhibits P1-P6.
The Appellant on his part filed a joint statement of defence with the 2nd and 3rd Respondents and did not deny the averments in paragraphs 26, 27 and 28 of the Statement of Claim. The 4th and 5th Respondents made a general traverse to the said paragraphs without offering any specific defence thereto. There was no specific denial of paragraph 13 of the Statement of Claim by the Appellant and the 2nd – 5th Respondents as they based their defence on the provisions of Exhibit P1.
In their defence, the 1st – 3rd Defendants called two witnesses and tendered two Exhibits, marked as Exhibits D1 and D2.
The 4th and 5th Defendants rested their case on the case of the Plaintiffs.
At the conclusion of hearing, the learned trial Judge, Hon. Justice S. Adesola Sadiq in a well considered judgment delivered on the 31/07/2013 entered judgment in favour of the Plaintiffs, granting them all the reliefs sought in their claim before the Court.
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Being dissatisfied with this decision of the trial Court, the Appellant who was the 3rd Defendant thereat appealed to this Court by a Notice of Appeal dated and filed on the 29/10/2013 on three grounds. This appeal was however argued on the Appellant’s Amended Notice of Appeal dated and filed on the 30/11/2015 but deemed properly filed on the 01/03/2016. This Amended Notice of Appeal contains three grounds of appeal with their particulars as follows:-
GROUND ONE
The learned trial Judge erred in law in holding that Exhibit “P1 – The Declaration made under Section 4(2) of The Chieftaincy Law 1957 of the Customary Law Regulating The Selection of the Jomu of Ondo Chieftaincy” is deemed to be the customary law regulating the selection of a person to be the holder of Jomu Chieftaincy to the exclusion of any other customary usage or rule.
PARTICULARS OF ERROR
1. Exhibit “P1” was made pursuant to the provisions of Section 4(2) Part 2 of the Chieftaincy Law of Western Region of Nigeria which became the Chiefs Law Cap 20 Laws of Ondo State of Nigeria 1978.
2. By the provisions of Section 24(2)(a) of the Chiefs Edict No. 11 of 1984 of Ondo State
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Exhibit “P1” has ceased to have effect.
3. By the combined effect of Section 1(1)(2) and 24(1)(a) and (2)(a) of the Chief Edict No. 11 of 1984 of Ondo State as well as Section 11 of the Chiefs (Amended) Edict No. 4 of 1991 of Ondo State, there is no more in force any Declaration in respect of any “Minor Chieftaincy” in Ondo State of which the Jomu of Ondo Kingdom is one.
4. In the premises, the Judgment of the learned trial Judge was a nullity having been founded on a non-existent Law.
GROUND TWO
The learned trial Judge erred in law in holding that the selection and appointment of the 1st defendant as Jomu of Ondo was not in accordance with Exhibit “P1” when the Plaintiffs have no locus standi to take point. (sic)
PARTICULARS OF ERROR
1. Assuming without conceding that Exhibit “P1” is applicable to the selection and appointment of Jomu of Ondo, the said Exhibit “P1” clearly provided that the person who may be proposed as candidates by the ruling house entitled to fill a vacancy in the chieftaincy shall be a male.
(a) Member of
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ruling house
(b) Member of male line.
(c) Sons of previous holder of the title.
2. The evidence before the Court was that the Plaintiffs were not qualified or suitable to be appointed as Jomu of Ondo because they are not sons of a previous holder of the title.
3. It was also in evidence before the Court that the last Ruling House that produced the holder of the title was Ajilaran Ruling House by reason of which the next Ruling House that is entitled to produce the next Jomu of Ondo, following the order of rotation under Exhibit “P1”, is Ayotilerewa Ruling House.
4. The Plaintiffs are from the Ayeyeberoja Ruling House.
5. In the circumstances of the foregoing facts, the Plaintiffs have no locus standi to maintain an action in respect of the claims awarded to them.
GROUND THREE
The judgment is against the weight of evidence.
Whereof the Appellant seeks an Order of Court allowing the appeal, setting aside the judgment of the trial Court and an order dismissing the plaintiffs’ suit.
The Appellant prosecuting this appeal by his amended appellant’s brief dated and filed on the 30/11/2015 and
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deemed on the 01/03/2016 and his reply brief of argument filed on the 22/03/2017 but deemed on the 23/10/2018.
In arguing the appeal, Mr Olaniran Obele of Counsel for the Appellant adopted both their briefs as their legal arguments in support of their appeal. In the brief, Counsel formulated two issues for determination of the Court, viz:-
1) Whether Exhibit P1 is still an existing law in Ondo State to justify the decision of the learned trial judge that it is the Customary Law regulating selection of a person to be the holder of Jomu Chieftaincy in Ondo State (GROUNDS 1 AND 3).
2) Assuming without conceding that Exhibit P1 is an existing law in Ondo State, whether the 1st Respondent who instituted this action as co plaintiff with the deceased plaintiff in the trial Court have (sic) locus standi to bring this action (GROUND 2).
On issue (1), Counsel referred to SECTION 315(4)(B) of the 1999 Constitution, the case of UNILORIN V ADENIRAN (2007) 6 NWLR, PT 1031, 498 and SECTION 24 of the CHIEFS EDICT No 11 of 1984 to argue that Exhibit P1 is not an existing law. That there is no more in force any declaration in respect of any “Minor
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Chieftaincy” in Ondo State of which the Jomu of Ondo is one. That Exhibit P1 no longer has any effect in law. That minor chiefs are no more covered by declaration by way of appointment but rather are subjected to the approval of a prescribed authority. Counsel submitted that it is now well settled that where the exercise of a power or the doing of an act is challenged in Court, the onus is on the person exercising the power or doing the act to supply the authority for such exercise of power or act. Counsel contended that the decision of the trial judge given on Exhibit P1 in oversight of the latter statutory provision on the appointment of minor chiefs is given per incuriam. Counsel referred to the cases of TANKO V STATE (2009) 4 NWLR, PT 1131, 430 AT 464 and AFRO CONTINENTAL NIGERIA LTD V JOSEPH AYANTUYI (1991) 3 NWLR, PT 178, 211.
Counsel urged the Court to resolve this issue in favour of the Appellant.
On issue (2), Counsel referred to the case of JOLLY NYAME V FRN (2010) 7 NWLR, PT 1193, 344 AT 400 on the judicial definition of locus standi. Counsel submitted that a party who has not established locus standi cannot bring and maintain an
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action in Court. Counsel referred to the cases of YUNANA SHIBKAU V A. G. ZAMFARA STATE (2010) 10 NWLR, PT 1202, 320 AT 339 and CHAIRMAN GWARAN L. G. V HAMZA DANTINE (1993) 2 NWLR, PT 275, 370. Counsel argued that locus standi being a jurisdictional issue; it goes without saying that where a party has no right to commence an action in Court, it means in effect that the Court is precluded from adjudicating on the matter. Counsel referred to the case of OWNERS OF B/V BACO LINERS V EMMANUEL ADENIJI (1993) 2 NWLR, PT 274, 194; ABRAHAM ADESANYA V PRESIDENT OF THE FRN (1981) 2 NCLR, 358; BADEJO V FED MINISTRY OF EDUCATION (1990) 4 NWLR, PT 143, 254; OSUAGWU V EMEZI (1998) 12 NWLR, PT 579, 640 and SECTION 6(6)(b) of the Constitution.
In respect of the instant case, Counsel referred to Exhibit P1 which shows the five different ruling houses and their order of rotation to contend that the next ruling house after Ajilaran which produced the last holder of the stool of Jomu in the person of Chief F. A. Akinwumiju is Ayotilorewa. That it is only persons from Ayotilorewa ruling house and not the Plaintiffs who are from Ayeyeberoja who have locus to institute this action
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or at best someone from Arowobaiye ruling house, the ruling house approved by the Appellant. That on the authority of ADESANOYE V ADEWOLE (2006) 14 NWRL, PT 1000, 242, the Plaintiffs have no vested right in respect of the reliefs sought before the lower Court. That Exhibit P1 leaves no ambiguity as to persons who may contest for the vacant stool of Jomu. Counsel referred to the case of ADESANOYE V ADEWOLE (SUPRA) to contend that the Plaintiffs in the lower Court being grandsons and not direct sons of Jomu who by Exhibit P1 are not eligible to ascend the stool cannot by that token have the locus to challenge the appointee of the office. Counsel also referred to the cases of BOLAJI V BAMGBOSE (1986) 4 NWLR, PT 37, 632 and ADEFULU V OYESILE (1989) 5 NWLR, PT 122, 377. Counsel further referred to the cases of ADEWUMI V AG, EKITI STATE (2002) 2 NWLR, PT 751, 474 AT 519; MOMOH V OLOTU (1970) 1 ANLR, 121 and OLORIODE V OYEBI (1984) 15 NSCC, 286 AT 292 to show that a party will have locus standi where the reliefs he is seeking from Court will confer some benefit on him.
Counsel urged the Court to allow the appeal and set aside the judgment of the lower Court.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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The 1st Respondent responded to this appeal in his amended brief of argument filed on the 04/01/2018 but deemed on 23/10/20. MR. A. A. Suleiman of counsel for the 1st Respondent adopted this amended brief as his legal arguments in opposition to the appeal. In it, counsel formulated two issues for the determination of the Court as follows:-
a) Whether considering the totality of the available evidence before the trial Court, this honourable Court can safely declare the judgment a nullity based on the non existence of Exhibit P1 without having recourse to the unchallenged and uncontroverted evidence of other custom relating to the appointment of Ojomu of Ondo Kingdom not stated in Exhibit P1 pleaded and proved by the 1st Respondent (Grounds 1 & 3).
b) Whether the 1st Respondent, a member of the Ayeyeberoga Ruling House of the Ojomu family has locus to institute this action, taking into consideration the oral agreement between the 1st Respondent’s Ruling House with the late Osemawe, Oba F. I. A. Adesanoye and other Ruling House of Ojomu family, that it shall be the turn of the Ayeyeberoja Ruling House of the 1st Respondent to produce the next
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Ojomu after late Ojomu F. A. Akinwumiju (Ground 2).
The summary of the submission of Counsel in respect of the two issues as contained in the brief of argument is rightly provided as required by ORDER 19(3)(4) of the Rules of Court, 2016. This rule provides for all briefs to be concluded with a numbered summary of the points raised in the brief and the reasons upon which the argument is founded. The appellant’s brief unfortunately did not meet with this necessary requirement of our rules of Court. As I have argued elsewhere albeit passionately, this rule is very essential. It not only gives a bird’s eye view of the brief but saves the Court the burden of having to summarize the submission of Counsel in its judgment. In this regard I reproduce the summary as the overview of the submissions of the learned counsel to the 1st Respondent:-
“It will be unsafe for this Honourable Court to set aside the Judgment of the Lower Court on the ground that Exhibit P1 was not in existence in view of the fact that the 1st Respondent did not base their claims on the said Exhibit alone.
The 1st Respondent pleaded other custom relating to the
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appointment of Ojomu of Ondo but which other custom are not contained in Exhibit P1.
The Appellant as well as the 2nd to the 5th Respondents did not challenge or controvert the 1st Respondent’s evidence on the other custom not contained in Exhibit P1. They are therefore deemed to have admitted same.
The Court is urged to hold as proved/established the other custom not contained in Exhibit P1 by virtue of the Appellant’s admitting same. The Court is further urged to find and hold that the 1st Respondent did not rely only on Exhibit P1 in establishing their claims.
Should the Court nullify the Judgment of the Lower Court on the ground that Exhibit P1 is non-existence, there will be nothing upon which the 2nd Respondent’s appointment as Ojomu of Ondo could stand.
Since the appellant and the 2nd and 3rd Respondents did not comply with the conditions/procedures under the other custom not contained in Exhibit P1, the said other custom would not avail the Appellant and the 2nd & 3rd Respondents.
The appointment of 2nd Respondent will have nothing upon which to stand and the Court will come to the logical and
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irresistible conclusion that he, i.e. the 2nd Respondent was not appointed in line with the custom and therefore dismiss the appeal.
The Court must not punish the 1st Respondent for the failure of the secretary to submit Exhibit P1 to the Commissioner for approval. In the same view, the Court must not punish the 1st Respondent for the failure of the Commissioner to freshly register Exhibit P1 as provided under the provisions of Part 1 of Edict No. 11 of 1984, moreso when the 1st Respondent did not rely solely on Exhibit P1 for the establishment of his claims.
The Court should not allow the Appellant to now discard Exhibit P1 having also relied heavily on same at the Lower Court. The Appellant must not be allowed to eat his cake and have it or blow hot and cold over Exhibit P1.
This Honourable Court has a duty to ensure that it does not allow itself to be used (by the Appellant, the 2nd and 3rd Respondents) as instrument of bad faith to breach the oral agreement between the parties.
The need to do justice is paramount in the administration of justice and the judge in expected to do all he can legitimately do to avoid any rule of law that
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tends to impair the doing of justice.
The 1st Respondent, as a member of the Ayeyeberoja Ruling House (one of the recognized Ruling House that have exclusive right to the Chieftaincy stool of Ojomu of Ondo) has locus standi to institute this action to protect the family interest even where he has no authority of his family.
Having shown tangible interest in the subject matter of the dispute and having established in his Statement of Claim that this right has been or is in danger of being violated, the 1st Respondent has discharged the burden of showing that he has locus to sue.
Issue of locus standi does not depend on the success or merit of the case but on whether the Claimant has sufficient interest or legal right in the subject matter of the dispute.
The 1st Respondent urged the Court to resolve the two issues in favour of the 1st Respondent, dismiss the appeal and affirm the Judgment of the Lower Court.”
The cited authorities are not included in this numbered summary. I will however refer to these as I go along in this judgment as and when relevant.
Whereof the 1st Respondent urged the Court to resolve both issues
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raised in their favour, dismiss the appeal and affirm the judgment of the lower Court.
The 2nd Respondent filed a brief of argument on the 11/10/2016. Same was deemed as properly filed on the 23/10/2018. In arguing the appeal on behalf of the 2nd Respondent, MR O. Akintoye of Counsel adopted the brief as their legal arguments in support of their position. I have read the brief of the 2nd Respondent. It adopted the two issues formulated by the Appellant. A Respondent is expected to answer to issues raised in the appellant’s brief. For the avoidance of doubt, I reproduce ORDER 19(4)(2) of the Rules of Court, 2016:
“19(4)(2) The Respondent’s brief shall answer all material points of substance contained in the Appellant’s brief and contain all points raised therein which the Respondent wishes to concede as well as reasons why THE APPEAL OUGHT TO BE DISMISSED, it shall mutatis mutandis, also conform to Rule 3(1), (2), (3), (4), (5) and (6) of this Order.” (Emphasis mine).
The 2nd Respondent’s brief which not only adopts and argues the issues raised by the Appellant as if they were co-appellants but goes ahead to
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urge the Court to uphold the appeal and set aside the judgment of the lower Court is without a doubt offensive to Order 19(4)(2) of the Rules of Court and therefore incompetent. I accordingly strike same out.
This is not to say that a Respondent must always oppose the Appellant. All it means is that where he does not oppose but supports the appeal like in the instant case, the rules do not expect him to file a brief. He will be taken to have accepted all that the Appellant has argued in his brief. To permit this procedure will amount to arming the Appellant with a double barrel to face the Respondent who is armed only with a single barrel. It also in my humble view amounts to giving the Appellant a second bite at the cherry. This will be unfair and inequitable. I should not be mistaken to be saying that a party who was on the same side with the Appellant in the trial Court must now oppose him because they are now on different sides of the divide. What it simply means is that such a party would not file a brief. His failure to file a brief will be taken to mean that he admits or agrees with all the submissions of the Appellant. In other words while the
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Court can make presumptions along that line the rules forbid a Respondent from filing a brief in support of the appeal.
The 3rd & 4th Respondents did not file any brief of argument. On the 20/01/2020 when this appeal came up for hearing they were absent and unrepresented. The registry of the Court however satisfied us that their Counsel was served with hearing notice a week earlier on the 13/01/2020. As a result the matter was heard in their absence.
The Appellant filed a reply brief to the 1st Respondent on the 22/03/2017. Same was deemed as properly filed on the 23/10/2018. I have read this reply brief. In the introduction on page 2, paragraph 1.2, the Appellant cleverly alluded to the fact that the reply brief is in response to fresh issues raised in the brief of the 1st Respondent. On page 13 from paragraph 3.26 of the reply brief, the Appellant argued on locus standi. This is the appellant’s issue (2) in his brief. He is not competent to respond to the reply of the 1st Respondent on this issue. The submission on this issue in the reply brief is discountenanced as it is not a fresh issue or new point within the meaning of ORDER 19(5)(1) of the Rules of Court, 2016.
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This leaves us with the first issue raised about whether the 1st Respondent’s issue (a) arose from the ground or grounds of appeal of the Appellant. First of all, I do not subscribe to the notion that this objection amounts to a fresh point to which the Appellant can file a reply brief pursuant to ORDER 19(5)(2). This is an issue that touches on the competence of the issue raised by the 1st Respondent for determination by the Court. The Appellant ought therefore to have come by way of motion to give the 1st Respondent an opportunity to be heard on the point. This will accord with the flow of natural justice.
Be that as it may, can it be said that this issue does not flow from any of the grounds of appeal of the Appellant? In answering this question, recourse must be had to the role of the trial Court in evaluating all the evidence before her before giving its judgment. The issue (a) being complained about is “Whether from the totality of the available evidence before the trial Court, this Honourable Court can safely declare the judgment a nullity based on the non existence of Exhibit P1 without having recourse
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to the unchallenged and uncontroverted evidence of other custom relating to the appointment of Ojomu of Ondo Kingdom not stated in Exhibit P1 pleaded and proved by the 1st Respondent.”
Like I stated earlier, the decision or judgment of Court is premised on the evaluation of the totality of evidence adduced before her. A trial Court cannot base its finding or judgment on a single document or piece of evidence before her and leave out the others. Where this happens, the appellate Court is entitled to look at the totality of the evidence on record to see if it supports the decision of the trial Court. I do not subscribe to the notion that this is an invitation to this Court to evaluate the evidence of the trial Court. This Court is conscious of its role and powers remembering always that there is another staircase upstairs! The sum total of what I have been saying thus far is that an issue that calls for a consideration of the totality of the evidence adduced before the trial Court will properly arise from a ground of appeal that challenges the holding of a trial Court based on a single exhibit. What is more, the 1st Respondent has shown in his brief
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that this issue is formulated from grounds 1 and 3 of the grounds of appeal. Ground 3 is the omnibus ground:- “The judgment is against the weight of evidence”. This omnibus ground postulates that there was no evidence, which if accepted would support the findings of the trial judge or the inference which he had made. It could also mean that when the evidence adduced by the Appellant is balanced against that adduced by the Respondent, the judgment given in favour of the Respondent would be against the weight which should have been given, having regard to the totality of the evidence before the Court. For as my learned brother, Mshelia, JCA rightly found in the case of ANYA V ANYA (2014) LPELR – 22479 (CA):
“The phrase also constitutes an attack on the findings of fact made by the trial judge and calls upon the Court of Appeal to make up its mind on the evidence. This the Court does, not disregarding judgment appealed from, but carefully weighing and considering it and not shrinking from overruling it if on full consideration it appears that judgment was given against the weight of evidence. See Balogun V Akanji (1988) 1 NWLR (PT 70)
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301 AT 319. See also UDOSEN V NDE (2019) LPELR – 47157 (CA). I therefore hold that the issue of other evidence outside Exhibit P1 is properly distilled from grounds 1 & 3 of the appellant amended grounds of appeal. This position is fortified by the findings of the trial Court on 407 of the records as follows:-
“FROM THE TOTALITY OF THE EVIDENCE OF THE PLAINTIFFS’ WITNESSES as shown above…” (Emphasis provided)
Furthermore, assuming the 1st Respondent did not file any brief in determining the appellant’s issue (1) as to whether or not Exhibit P1 is a nullity, this Court still has an obligation to look at the totality of the evidence adduced to determine whether or not there is any evidence to support the judgment should the Court rule that P1 is a nullity. That is indeed the function of the appellate Court. So whether or not the 1st Respondent raised the issue, this Court has an inherent power to do what issue (a) asks of it.
The other sub issues raised in the reply brief in respect of Exhibit P1 etc have already been raised in the briefs of both parties. A so called reply on them as being done is
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merely a rehash as they are not new points raised in the 1st Respondent’s brief. I will discountenance the reply brief and deal with them in the course of resolving the issues raised by the parties.
The vexed issue in this appeal is the contention of the Appellant whether Exhibit P1 is an existing law to justify the decision of the trial Court. Inherent in this contention in my humble view is the status of the 2nd Respondent who was allegedly appointed/installed as a minor chief under this law or a non existing law. Exhibit P1 is a chieftaincy declaration in respect of the Jomu of Ondo Stool. In order to understand this case, I find it necessary to attempt a definition of a chieftaincy declaration and its purport. Onnoghen, JSC (as he then was) in the case of MAFIMISEBI & ANOR V EHUWA & ORS (2007) 2 NWLR, PT 1018, 385 explained the purpose of a registered chieftaincy declaration thus:-
“It is to avoid the problem of calling evidence each time a particular native law and custom needs to be established in relation to chieftaincy in the former Western Region of Nigeria that gave rise to the attempt at codification of the relevant
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customary laws and traditions of the relevant people in relation to particular chieftaincies otherwise known as Chieftaincy Declaration. Therefore the purpose of registered Chieftaincy Declaration is to embody in a legally binding written statement of fact the customary law of the relevant area in which the method regulating the nomination and selection of a candidate to fill a vacancy is clearly stated to avoid uncertainty.”
See also OLANREWAJU V OYESOMI & ORS (2014) 11 NWLR, PT 1318, 258.
The point of emphasis therefore is that once a chieftaincy declaration is validly made and registered, the matter therein stated is deemed to be the customary law regulating the selection of a person to be the holder of the recognized chieftaincy to the exclusion of any other customary law and usage or rule. This means that the declaration in the eyes of the law is the tradition, customary law and usage pertaining to the selection and appointment to a particular chieftaincy stool which, of necessity dispenses with the required need of proof by oral evidence of the relevant custom, tradition of the relevant custom, tradition and usage each time the need
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arises to determine succession to that stool or chieftaincy title.
There is no dispute between the parties as to what the purport of a chieftaincy declaration like Exhibit P1 is. They are also agreed that Exhibit P1 is the last known declaration in respect of the Jomu of Ondo Stool. By paragraph 12 of the Statement of Claim contained at P7 of the records the Plaintiffs averred as follows:-
“The registered declaration stated the method of filling of the ruling house chieftaincy in order of rotation.”
The claimants went further in paragraph 13 to aver thus:
“Apart from stating the rotational order of filling the ruling house chieftaincy of Ojomu of Ondo kingdom, other customary necessities in the exercise existed going by custom but not stated in the declaration.”
This paragraph is a pleading of other evidence of customary practice in respect of the Ojomu of Ondo Kingdom. Whether or not the claimants led evidence in support of paragraph 13 of their pleadings remains to be seen. Suffice it to state that Exhibit P1 is in support of paragraph 12. The Statement of Defence of the 1st – 3rd Defendants (inclusively
27
the appellant who was 3rd defendant) is contained at pages 20-22 of the records. In paragraph 1 thereof the 1st – 3rd defendants (which includes the appellant as the 3rd defendant) averred as follows:-
“1. The 1st – 3rd defendants admits (sic) paras 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 19, 23, 30, 31, 32, 36, 37, 38, 42, 43, 44, 53 of the statement of claim and vehemently denies the other averments in the statement of claim.”
In paragraphs 2-5, 7, 9, 10-16 of the pleading the 1st – 3rd defendants averred thus:-
“2. In answer to paragraph 15 of the statement of claim, the defendants admits (sic) the fact that when the last incumbent ascended the throne, it was the turn of AYEYEBEROJA RULING HOUSE TO PRESENT A CANDIDATE BUT BECAUSE THERE WAS NO SUITABLE CANDIDATE THEN AS STIPULATED BY 54 (2) OF THE CHIEFTAINCY LAW OF 1957 REGULATING THE SELECTION OF THE JOMU OF ONDO CHIEFTAINCY, THE TABLE SWITCHED TO AJILARAN RULING HOUSE (Emphasis mine)
3. In answer to paragraph 16 of the statement of claim, the 1st – 3rd defendants admits (sic) the fact that the 1st Plaintiff contested for the then vacant
28
stool before late High Chief F. A. Akinwumiju occupied it, but this was erroneously permitted as he was not eligible being a grandson.
4. In answer to paragraph 17, the 1st – 3rd defendants states (sic) that the 1st Plaintiff showed interest in the stool like all other interested candidate, nevertheless, he was not qualified.
5. In answer to paragraph 18 of the statement of claim, 1st–3rd defendants asserts (sic) that late Oba F. I. Adedanoye could not have shown interest in Late High Chief F. A. Akinwumiju as he is only the prescribed authority and not a member of the Jomu dynasty.”
In support of paragraph 12 of their pleadings, the claimants at the trial tendered Exhibit P1 as the registered declaration in respect of the Ojomu Stool of Ondo Kingdom registered as the 13/08/1958 was admitted through PW3 without objection. PW3 is from the Ajilaran Ruling House of the Ojomu family, the ruling house of the last reigning Ojomu, High Chief F. A. Akinwumiju. PW3, PW4 and PW5 all confirmed in their evidence that Exhibit P1 is the extant declaration in respect of Ojomu Chieftaincy and that there had been no amendment to it. DW1 was the
29
1st defendant at the lower Court and the 2nd Respondent in this appeal. It is indeed his ascension to the position of Ojomu of Ondo Kingdom on the 13/06/2011 that resulted into this case. His evidence in respect of declaration is that contained at pages 131-132 viz:-
“According to the custom and declaration of Jomu Chieftaincy whoever is aspiring to become the Jomu must be the son of the previous holder of the title.”
He was not given Exhibit P1 to identify it as the said declaration. This is however assumed since the 1st – 3rd defendants which includes DW1 had already admitted paragraph 12 of the Claimants pleadings that pleaded the declaration. They did not object when Exhibit P1 was tendered in evidence. They have not pleaded or tendered any other declaration in respect of the Ojomu of Ondo Kingdom Stool. In other words, throughout the proceedings the 1st – 3rd defendants which include the Appellant used and relied on Exhibit P1 as the customary law guiding the appointment and installation of the Ojomu of Ondo Kingdom inclusive of the process through which the 2nd Respondent ascended the Ojomu Stool.
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In a volte-face the Appellant who was the 3rd defendant in the lower Court now challenges the legality/validity of Exhibit P1 in this appeal where he appealed in ground 1 thus:-
“The learned trial judge erred in law in holding that Exhibit “P1 – The Declaration made under Section 4(2) of the Chieftaincy Law 1957 of the Customary Law Regulating The selection of the Jomu of Ondo Chieftaincy” is deemed to be the customary law regulating the selection of a person to be the holder of Jomu Chieftaincy to the exclusion of any other customary usage or rule.”
From the particular of this ground of appeal, the reasoning of learned counsel to the Appellant from my deductions is two fold:-
1) That Exhibit P1 was made pursuant to Section 4(2) part 2 of the Chiefs Law, Cap 20, Laws of Ondo State of Nigeria 1978. That Edict No 11 of 1984 of Ondo State repealed Exhibit P1 which ceased to have effect from that date.
2) That by the combined effect of Section 1(1)(2), 24(1)(a) and 2(a) of the Chiefs Edict No 11 of 1984 of Ondo State and Section 11 of the Chiefs (Amendment) Edict No 4 of 1991 of Ondo State, there is no more in force any Declaration in
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respect of any “Minor Chieftaincy” in Ondo State of which the Jomu of Ondo Kingdom is one.”
In dealing with the first issue first, I have considered in great detail the submission of learned counsel to the Appellant in respect thereof. I find that it is not open to learned counsel to give his own interpretation to a law without giving the full provisions of the law. More so that it is not listed as one of the authorities relied on in his list of authorities accompanying the brief of argument. It is not enough to in the circumstances to cite some sections of the law without attaching a copy of the law to the brief. For example even the Sections (1) and (2) cited by Counsel talk of part II and part I. There is no knowing, whether this refers to a recognized chieftaincy or a minor chieftaincy as the requirements are different. I find therefore that this so called Section 24 of the Chiefs Edict No 11 of 1984 as cited in the Appellant’s brief does not in any way provide a guide to the Court. I refuse to be guided by it. Instead I am guided by the extant law on the matter, the Chiefs Law, Cap 27 Laws of Ondo State, 2006. Part II of this law
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deals with Minor Chiefs, which both parties are agreed is the class to which the instant matter, the Jumo Chieftaincy Stool belongs. There is nothing contained therein that deals with the issue of declaration in respect of minor chiefs. This leaves me with no option but to fall back on case law. I have already referred to a number of authorities to determine the purpose of a chieftaincy declaration. These authorities have established that once a chieftaincy declaration is registered, it becomes the constitution and embodiment of the entire custom of the town whose chieftaincy declaration is so enacted with respect to chieftaincy matters to the exclusion of any other custom rule or usage. That the processes of nomination, selection, appointment, approval and even installation of a candidate to the chieftaincy throne of any town whose Customary Law on Chieftaincy has been codified into a registered declaration will henceforth be regulated by the Chieftaincy Declaration which for all purposes is akin to the constitution of the affected community in respect of all Chieftaincy matters. Agbaje, JSC puts this very succinctly in the case of IMONIKHE & ANOR V AG, BENDEL STATE & ORS
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(1992) 6 NWLR, PT 248, 396:
“The Chieftaincy Declaration is no doubt an instrument which has a constitutional status in that it was made a law which was duly passed in the manner provided for by the constitution.”
Having settled the nature and status of a declaration, it behoves on me to answer the pivotal question of the Appellant’s counsel. This is whether the repeal of the enabling law, in this case the Chiefs Law, Cap 20, LAWS OF ONDO STATE, 1978 affected the validity of anything duly done under the enactment. The Supreme Court in the case of AGBETOBA & ORS V THE LAGOS STATE EXECUTIVE COUNCIL (1991) LPELR – 238 (SC) at Page 35, PARAS D-E provide the answer fully per Karibi-Whyte, JSC thus:
“…As long as the declaration was made under a valid exercise of enabling powers, the repeal of the enabling Law did not affect the validity of anything duly done under the enactment – see Ogamioba V Oghene (1961) 1 ALL NLR 59 (1961) 1 SCNLR 115; Tuke V Queen (1961) I ALL NLR 258; (1961) 1 SCNLR 357; S. 6(1)(b) of the Interpretation Act, 1964.”
I adopt this answer wholly and hold
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that the fact of the Chiefs Law Cap 20, of Ondo State 1978 under which the instant declaration was made was repealed does not in any way affect the validity of Exhibit P1. I am fortified in this position by the holding of Ogundare JSC in OLADELE & ORS V OBA AROMOLARAN II & ORS (1996) 6 NWLR, PT 455, 180:-
“Just as the Court may take judicial notice of a custom relating to the selection and appointment of a chief if it has been acted upon by a Court of superior or co-ordinate jurisdiction in the same area to an extent which justifies the Court to apply it in assuming that the persons or the class of persons concerned in that area look upon the same as binding, so also, in my respectful view, may it take judicial notice of such custom that is reduced into writing in accordance with Section 4 of the Law.”
This is how it should be as the custom of the people will not be altered because the law under which a declaration was made has been repealed. This is especially so in this case as the law did not specifically/specially repeal Exhibit P1. The appellant has not shown through his pleadings and evidence that Exhibit P1, assuming
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Section 24 of the Chiefs Edict No II of 1984 is applicable, was not re-registered and was not submitted to the secretary for approval. Or that in fact there was a specific order or proclamation that repealed same. This is especially so as the appellant has not shown the law under which he was appointed as distinct from the declaration which he seemed to have relied on as setting out the conditions for eligibility for ascending the throne among others as set up in the declaration. Afterall according to counsel the amendment demoting the Jomu Chieftaincy from a recognized chieftaincy was only made in 1991. The Law is trite that he who alleges must prove. The Appellant not having discharged this onus cannot be heard to say that Exhibit P1 has not been re-registered in accordance with Section 24(1) & (2) of Edict No 11 of 1984. See (cited cases on this principle). Not having proved that Exhibit P1 has not fulfilled what counsel calls the three conditions precedent to its validity, counsel is estopped from challenging its validity and currency.
The Appellant’s other contention under this issue is that the reduction in rank from a recognized
36
chieftaincy to a minor chieftaincy in the face of the existing declaration Exhibit P1, changed the Customary Law. This poser was unequivocally answered by his Lordship Ogwuegbu, JSC in the case of OGUNDARE & ANOR V OGUNLOWO & ORS (1997) 6 NWLR, PT 509, 360 when he held that:
“It must be restated that where a declaration exists in respect of a recognized Chieftaincy, the reduction in rank of that Chieftaincy to a minor one does not change the customary law as contained in the declaration relating to entitlement, selection and appointment to it. The provisions of such a declaration should prevail until it is amended. See: Agbetoba V Lagos State Executive Council (1991) 4 NWLR (Pt 188) 664, Ayoade V Military Governor of Ogun State (1993) 8 NWLR (Pt 309) 111 and Oladele & Ors V Aromolaran II & Ors (1996) 6 NWLR (Pt. 453) 180.”
This position was amplified by the Supreme Court in the latter case of FASADE & ORS V BABALOLA & ANOR (2003) 11 NWLR, PT 830, 26 when the Court per Uwaifo, JSC held:
“Where a declaration has been validly made in respect of a recognized Chieftaincy and registered, it represents the
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applicable customary law regulating the selection and appointment of a candidate to a vacant chieftaincy; and the provisions of such a registered declaration should prevail until amended: see Ogundare v Ogunlowo (1997) 6 NWLR PT 509) 360.”
As my learned brother Lokulo-Sodipe, JCA opined in JEJE V ENTERPRISE BANK LTD & ORS (2015) LPELR – 24829 (CA) to go purely technical as learned counsel seems to be dragging the Court to that direction would only result in injustice. Courts exist to ensure justice and equity and not to blindly adhere to technicality. I am particularly both perplexed and disturbed by the trend in the instant case. This is a case in which the two substantive grounds of appeal, the third being the omnibus ground are on what I would prefer to call technicalities. The Appellant was the 3rd defendant in the lower Court. The claim in the lower Court was a challenge to the appointment and installation of the 2nd Respondent as the Jomu of Ondo Kingdom. This appeal never challenged the decision of the lower Court on its findings of both fact and law. The presumption is that the appellant accepts the findings. The implication being
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that the 2nd Respondent who was installed as the Jomu of Ondo Kingdom by the Appellant was not installed in accordance with the Customary Law of the Ojumu people. This will be the effect if the Court finds that the law is valid. The 1st – 3rd Defendants in the Lower Court did not counter claim in the trial Court to show that the 2nd Respondent was validly installed in accordance with the applicable Customary Law of the Ojumu people. They could not have done so because they admitted that Exhibit P1 was the applicable chieftaincy declaration in respect of the applicable chieftaincy. Very surprisingly, the Appellant has not shown compliance with Part II of the extant Chiefs Law Cap 27, Laws of Ondo State. In other words, they have not shown to the Court that the Appellant was appointed by the Ondo State Executive Council as the prescribed authority to appoint minor chiefs in his Local Government pursuant to Section 16(1) of the Law. Or that he had not run foul of Section 16(2) by appointing a minor chief without the prior written approval of the prescribed authority. Interestingly too the 2nd Respondent did not cross appeal to show that he complied with
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Section 16(3) of the Law. In this scenario where the 1st – 3rd Defendants have not shown that the 2nd Respondent was appointed either under the chieftaincy declaration, Exhibit P1 or the Chiefs Law of Ondo State and they want this Court to allow the appeal is indeed a sad reflection of the state of affairs in our institutions. It is common knowledge that the political class has whittled down traditional institutions by their interference. Situations abound of people who have no royal blood in their vein being made traditional rulers. If now Courts are being enjoined to decide chieftaincy matters not on established Customary Laws regulating such matters but on pure technical rules then I fear that sooner than later there will be no traditions left to uphold. Then Chiefs whether minor or recognized and perhaps family heads will be appointed at the whims and caprices of the political elite. In my little effort to keep that day at bay for as long as practicable and from all my findings so far in this judgment, I resolve this issue against the Appellant and in favour of the 1st Respondent.
In considering the second issue of locus standi, I find it
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necessary to reproduce Exhibit P1:
“i. There are five ruling houses and the identity of each such ruling house is:
(1) Arowobaiye
(2) Atowurojoye
(3) Ayeyeberoja
(4) Ajilaran
(5) Ayotilerewa
ii. The order of rotation in which the respective ruling houses are entitled to provide candidates to fill successive vacancies in the chieftaincy shall be:
(1) Arowobaiye (present ruling house)
(2) Atowurojoye
(3) Ayeyeberoja
(4) Ajilaran
(5) Ayotilerewa
iii. The person who may be proposed as candidates by the ruling house entitled to fill a vacancy in the Chieftaincy shall be a male:
(a) Member of ruling house
(b) Member of the male line
(c) Sons of previous holder of the title.
In the event of the ruling house whose turn it is to nominate a candidates for the vacant title having no suitable candidate descended from the male line, the right to nominate candidates shall automatically pass to the next ruling house in order as shown in (ii) above.
iv. There are five Kingmakers as under:-
(1) The Osemawe of Ondo
(2) The Lisa of Ondo (High Chief)
(3) The Odunwo of
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Ondo (High Chief)
(4) The Sasere of Ondo (High Chief)
(5) The Adaja of Ondo (High Chief).
v. The method of nominations by each ruling house is as follows:
As soon as Chieftaincy is declared vacant the Otunjomus of the ruling house whose turn it is to provide a candidate shall nominate at a family meeting to be summoned by the family head a candidate for the chieftaincy, to be presented by the family head to the kingmakers.
Installing (sic) follows without further formality.”
There is no dispute between the parties as to the five ruling houses entitled to the Chieftaincy:
1) Arowobaye
2) Atowurojoye;
3) Ayeyeberoja;
4) Ajilaran and
5) Ayotilerewa.
The parties are also agreed on the order of rotation to the Chieftaincy. Paragraph (iii) of Exhibit P1, the declaration provides:-
“iii. The person who may be proposed as candidates by the ruling house entitled to fill a vacancy in the Chieftaincy shall be a male:
(d) Member of ruling house
(e) Member of the male line
(f) Sons of previous holder of the title.
In the event of the ruling house whose turn it is to nominate
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a candidates (sic) for the vacant title having no suitable candidate, descended from the male line the right to nominate candidates shall automatically pass to the next ruling house in order as shown in (ii) above.”
A casual reading of clause (iii) of the declaration tends to show that the three qualifications are not to be read or considered disjunctively. This was indeed the position of the Supreme Court in the case of ADESANOYE V ADEWOLE (2006) 14 NWLR, PT 1000, 242 as relied on by the appellant’s counsel. In that case the apex Court, relying on the 1958 declaration of Osemawe Chieftaincy of Ondo Kingdom held that the claimants being grandsons cannot ascend the throne. To determine whether this authority is applicable and it is necessary to reproduce the 1958 Osemawe Chieftaincy declaration:-
“(i) There are five ruling house and the identity of each such ruling house is:
1. Jisomosu
2. Jilo
3. Fidipote
4. Aroworayi
5. Tewogboye
(ii) The order of rotation in which the respective ruling house are entitled to provide candidate to fill successive vacancy by a ruling house entitled to provide
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candidates to fill successive vacancies in the chieftaincy shall be:
1. Jisomosu
2. Jilo
3. Fidipote
4. Aroworayi
5. Tewogboye
(iii) The persons who may be proposed as candidates by a ruling house entitled to fill the vacancy in the chieftaincy shall be:
(a) Member of the ruling house
(b) Of the male line
(c) Sons of a previous holder of the title
(d) Sound both in mind and body and shall have no deformity.
(iv) There are five kingmakers as under
(a) High Chief Lisa of Ondo
(b) High Chief Jomu of Ondo
(c) High Chief of Odunwo of Ondo
(d) High Chief Sashere of Ondo
(e) High Chief Adaja of Ondo
(v) The method of nominations by each ruling house is as follow:
The ruling house whose turn to provide a candidate shall nominate by simple majority vote at a family meeting to be summoned by family head a candidate for the chieftaincy, the candidate shall then be presented by family head to the kingmakers.”
The qualifying clause in the Jomu Chieftaincy declaration is not contained herein. This makes the authority of ADESANOYE V ADEWOLE (SUPRA) which excludes grandsons
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inapplicable to this case. This is understandably so because while Osemawe is a recognized chieftaincy, Jomu is a minor chieftaincy as the Osemawe, the Appellant herein by Exhibit P1 is one of the Kingmakers for the Jomu Chieftaincy. Being a recognized Chieftaincy it is perhaps important to narrow the scope considering that there are five ruling houses. I find that if the intention was to have excluded grandsons, this provision in respect of nomination would not have been included in the declaration. It will in my view be absurd to reach a contrary conclusion in the circumstance. This view or position is aptly of the learned trial judge in his judgment. He found that Exhibit P2 the report of the 2nd Defendant to the 3rd Defendant on the result of the screening exercise and Exhibit D1, the result of the previous exercise that saw the emergence of High Chief Akinwumiju, that it was the temperament of the 1st Plaintiff (now deceased) as opposed to the issue of being a grandson as gleefully alluded to by the 1st – 3rd defendants that was the disqualifying factor. I agree with the learned trial judge that the way and manner qualification to the Jomu
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Chieftaincy was viewed and interpreted was like he did; that ascension to the throne of Jomu is descended from the male line. I find therefore that the Plaintiffs at the lower Court had vested interest and therefore the locus standi.
As to the rotational order of the ruling houses, counsel had argued that the next ruling house after Ajilaran, the last one is Ayotilerewa. That since the Plaintiffs did not belong to that ruling house they have no right to complain and therefore no locus. The pleading and evidence of the Plaintiffs at the lower Court which remained unchallenged and uncontroverted was that the Osemawe preferred the candidacy of High Chief F. A. Akinwumiju and jumped their ruling house of Ayeyeberoja which was next in line. That after they went to Court, the Osemawe persuaded them to withdraw the suit with a promise that the chieftaincy will come to them after the Ajilaran ruling house. The contention of the 1st – 3rd defendants on the other hand was that the ruling houses of Ayeyeberoja and Ayotilerewa were by passed because they were disqualified for presenting grandsons instead of sons. This assertion was completely unsupported by
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any credible evidence. To show credence to the position of the Plaintiffs/1st Respondent, their ruling house was first approached. By the uncontradicted/uncontroverted evidence of PW2 it was shown that at the first meeting of the committee to select a Jomu, it voted 8 to 4 in favour of it being the turn of Ayeyeberojo ruling house to nominate candidate as the next Jomu. I therefore find that the order of rotation is in favour of the 1st Respondent’s ruling house which gives him the locus to challenge an interloper. Assuming without conceding that this position is faulty, the next ruling house in order of rotation is the Ayotilerewa ruling house. This ruling house was by passed for the ruling house of Arowobaiye. The contention of the Appellant is that it is they who have the locus. That may well be so. However by distorting the order of rotation of the ruling houses this action of the 1st – 3rd defendants threatens the customary law of the community. This can lead to chaos, instability and can destroy the peace which the community enjoys. In this regard, I dare hold that each member of a ruling house, nay the society has a vested interest to ensure
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that succession to the throne is done in line with their set, acceptable tradition and customary law that guarantees stability, peace and progress of their community. Viewed from this angle I find that the Plaintiffs had locus to have maintained this action. From a consideration of all these points, I also do resolve this issue in favour of the 1st Respondent and against the Appellant.
I am gravely perplexed and pained by this case. The 1st – 3rd defendants in the lower Court while reacting to the contention of the plaintiffs that when the last Jomu, High Chief F. A. Akinwumiju was to ascend the throne and they challenged him in Court, the late Osemawe of Ondo, Oba F. I. A. Adesanoye persuaded them to drop the matter with a promise that their own ruling house would be given preference in the event of a vacancy in the throne, stated as follows:-
“This view is extraneous to the written declaration which is the BIBLE OF THE JOMU CHIEFTAINCY.” (Emphasis provided).
How the written declaration, Exhibit P1 translated from the Bible by which they swore to the vilified document they label as illegal is completely baffling. This
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certainly amounts to the Appellant blowing hot and cold in my view. It is trite that a party cannot blow hot and cold at the same time. See OKORIE V UNAKALAMBA & ANOR (2013) LPELR – 22508 (CA), OZOMGBACHI V AMADI & ORS (2018) LPELR – 45152 (SC) and MTN V ABIA STATE GOVT & ORS (2019) LPELR – 46652 (CA). If I may echo my thoughts , loud enough in the instant case, it is irrelevant that the Appellant is hiding under the cloak of jurisdiction. Jurisdiction is not cast in stone nor is it rocket science. The Appellant in this case has not concealed his antics by pretending to attack the judgment of the lower Court on grounds of fact or evaluation of evidence. I wish that the 1st Respondent had challenged the competency of the first ground of appeal, the Appellant not having raised or questioned the legality of Exhibit P1 in the trial Court. They are aware that they will be challenged for raising on appeal an issue on appeal different from that presented in the trial Court. Then I would have borrowed the concluding apt phrase of Oputa, JSC in AJIDE V KELANI (1985) 3 NWLR, PT 12, 248 that “justice is much more than a game of hide
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and seek.” It is about fairness and equity, about morality, about good conscience and much more. It is that justice that frowns at a party taking benefit of a document and turning round to challenge its legality/validity. The learned counsel to the 1st Respondent argued passionately that the Appellant having relied on Exhibit P1 at the trial Court should be stopped from attacking the validity of same on appeal. This is especially so as the Appellant even in this appeal in ground 1 alleges illegality of Exhibit P1 which he contends should affect the jurisdiction of the trial Court but in ground 2 attacks the locus standi of the Plaintiffs/1st Respondent on the strength of Exhibit P1. In the case of MTN NIG COMMUNICATIONS LTD V CC INVESTMENT LTD (2019) LPELR – 47042 (SC), the Supreme Court held that it is morally despicable for a person who has benefited from an agreement to turn around and say that the agreement is null and void or unenforceable. Though the instant case is not a contract but this principle must hold true for all similar situations. I am persuaded by this holding and apply it to this case. See also the case of
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BATALHA V WEST CONST. CO. LTD (2001) 18 NWLR, PT 744, 95. Falling back on the principles in these decisions, all my findings in this judgment and because I agree that it is morally despicable for the Appellant to rely on Exhibit P1 in the trial Court and turn around in this Court to attack it in one breathe and rely on it in another, I hold that this appeal is unmeritorious. It is perhaps appropriate to conclude this judgment with the illuminating words of Sanusi, JSC in ALAHASSAN & ANOR V ISHAKU & ORS (2016) 10 NWLR, PT 1520, 230:
“These pieces of evidence which she rigidly relied on is at variance with the case she initially presented and has rendered the said evidence worthless and of no moment. This Court in the case of Emenike V PDP (2012) 12 NWLR, Pt 1315, 556 stated as below at page 593:
“This Court has stated in clear terms, that a party should be consistent in stating his case and consistent in proving it. Justice is more than a game of hide and seek. IT WILL NEVER DECREE ANYTHING IN FAVOUR OF SO SLIPPERY A CUSTOMER AS THE APPELLANT. See Ajide V Kelani (1985) 3 NWLR, PT 12, 248 AT 269 …Again, it should be stated that there should be
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consistency in prosecuting a case by a party. See Kalu V Uzor (2006) 8 NWLR, PT 981, 66 at 67.
This appeal fails and I dismiss it. Consequently I affirm the decision of the trial Court delivered on the 31/07/2013. I am sensitive to the fact that chieftaincy matters can tear families apart. Not wanting to contribute to that division, I make no order as to costs in this appeal.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree and abide by the decision in the lead and the order on non award of costs as entered by my lord, Patricia A. Mahmoud JCA, in this appeal.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: Having read the lead judgment delivered by my learned brother, Patricia Ajuma Mahmoud, JCA who proficiently dealt with the issues therein, I subscribe to the reasoning and conclusion contain thereof with nothing useful to add thereto.
This appeal fails and I dismiss it. The judgment of the Lower Court delivered on the 31st day of July, 2013 is affirmed as in the lead judgment. I abide to the consequential order as to costs of my noble lord.
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Appearances:
MR Olaniran Obele For Appellant(s)
MR A. A. Suleiman – for 1st Respondent
MR O. Akintoye – for 2nd Respondent
The Counsel to the 3rd – 4th Respondents was served with ‘H’ notice on the 13/01/2020 but did not appear in Court For Respondent(s)
