EZEKIEL OGUNLEYE v. H.R.H OBA JOSHUA O. AINA & ORS.
(2010)LCN/3870(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of June, 2010
CA/IL/41/2009
RATIO
RELIEFS: REQUIREMENT FOR THE GRANT OF DECLARATORY RELIEFS
It is trite that the Plaintiff can only succeed on the strength of his case and not on the weakness of the defendant’s. In this vein, before a Court can grant a declaratory relief, there must be cogent and sufficient materials, as well as admissible evidence to engender the grant and where the matter involves affidavit evidence, it is incumbent on the Claimant to substantiate averments in the affidavit exhibiting relevant materials. PER IGNATIUS IGWE AGUBE, J.C.A.
EVIDENCE: EXCEPTIONS TO THE GENERAL RULE ON THE ADMISSIBILITY OF PHOTOCOPIES OF CERTIFIED TRUE COPIES
It is however pertinent to note that there are exceptions to the general rule on the admissibility of photocopies of certified true copies which is that if the photocopy of the certified true copy is not one that is inadmissible completely, that it is to say, it is admissible under certain conditions and was admitted without objection then it becomes legal evidence upon which the court can act. See Alade v. Olukade (1976) 2 S.C 183, per Agu JCA in DTN v. Williams (Supra); Avong v. K.R.P.C Ltd. (2002) 14 NWLR (Pt.788) 508; S32;Onubruchere v. Esegine (1986)1 NSCC 343 at 350; Kwara State Water Corporation v. AIC (NIG.) Ltd. (2009) 47 WRN 90 at 118-119 and generally C.C. Nweze LLM; P.H.D (now J.C.A) in his book “Contentious issues And Responses in contemporary Evidence Law In Nigeria vol. One (First Edition published by Institute for Development Studies, University of Nigeria; Enugu Campus”, at page 322-324. PER IGNATIUS IGWE AGUBE, J.C.A.
RELIEFS: ATTITUDE OF COURT TOWARDS GRANTING RELIEFS WITHOUT HEARING EVIDENCE FROM PARTIES
It is trite that court, are not in the habit of making declaratory of rights on either admissions: or default of defence without hearing evidence from the parties and satisfying themselves that the claimant merits the grant of the declaratory reliefs sough, See Motunwase v. Sorungbe (1988) 4 NWLR (Pt.92) 90 and further Melifonwu & ORS v. Charles E. Egbuji (1982) 9 S.C ,45 a, 165 per Bello J.S.C of blessed memory Akinleye v. Afribank Plc (2006) ALL FWLR (Pt.305) 722 at 782 and 734 and Livestock Feeds Plc. v. Funtua (2005) ALL FWLR (Pt.266) 753 at 770-771; cited by the learned counsel for the Appellant. PER IGNATIUS IGWE AGUBE, J.C.A.
JUSTICES
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
CENTUS CHIMA NWEZE Justice of The Court of Appeal of Nigeria
Between
EZEKIEL OGUNLEYE Appellant(s)
AND
1. H.R.H OBA JOSHUA O. AINA
Okinbaloye-Jegede II (Eletan of Etan)
2. EKITI LOCAL GOVERNMENT TRADITIONAL COUNCIL
3. COMMISSIONER FOR LOCAL GOVERNMENT AND CHIEFTAINCY AFFAIRS
4. ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, KWARRA STATE Respondent(s)
IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Kwara State High Court. Ilorin Division, per M. O. Adewara, J; delivered on the 31st day of March. 2009 granting part of the Plaintiff (now 1st Respondent’s) claim and dismissing the Counter-claim of the 5th Defendant/Counter-Claimant (now Appellant) in its entirely. Dissatisfied with the judgment as handed down by the learned trial Judge, the Appellant filed a whopping ten Grounds of Appeal as contained in pages 363 to 368 of the record of proceedings.
The Plaintiff on his part filed a Cross-Appeal against part of the lower court’s decision refusing to grant reliefs 3, 5, 6 and 10 of the Plaintiff/1st Respondent’s claim. After the Record of proceedings had been transmitted to this Honourable Court, parties were ordered of exchange their briefs in line with the Rules of the Court and in the brief settled by Dayo Akinlaja Esq. on behalf of the Appellant, three issues couched in the following terms were distilled for determination thus:-
ISSUE ONE:
Whether the learned trial judge was not wrong in countenancing and giving probative value to exhibits 1, 2, 3, 8, and 11 in this case? Ground one.
“ISSUE TWO:
Whether having regard to the evidence available in this case the learned trial judge ‘was not wrong in granting the reliefs granted in favour of the 1st respondent? Grounds two, three, four, five, six, nine and ten.
ISSUE THREE
Whether the learned trial judge was n0t wrong in dismissing the counter-claim of the appellant? Grounds seven and eight.”
The 1st Respondent in the brief settled on his behalf by Temidayo Eseyin Esq. distilled two issues as calling for determination which are set down hereunder as follows:-
“1. Whether having regard to the evidence adduced before the lower court, the Learned Trial Judge was right when he granted the Reliefs of the 1st Respondent? (Grounds 1, 4, 5, 6, 9 and 10).
“2. Whether the Learned Trial Judge was right in dismissing the Counter-Claim of the Appellant? (Grounds 7 and 8).
As for the 3rd and 4th Respondents, the Learned Attorney-General of Kwara State, as he then was, Alhaji Saka A. Isau (SAN), also identified three issues as calling for determination inter alia:-
1. Whether on the strength of the evidence before the trial court, the 1st Respondent was entitled to the reliefs granted by the Court in his favour? (Grounds 1, 4, 5, 6, 9 and 10).
2. Whether the Learned Trial Judge did miss-apprehend the facts in issue in, this case? (Grounds 2 and 3).
3. Whether the Learned Trial Judge was right in dismissing the Appellant’s Counter-Claim? (Grounds 7 and 8).
The 2nd defendant did not appeal or file any process in this Appeal and Cross-Appeal because the Claim against it had been struck out for failure of the Claimant/1st Respondent to serve the said 2nd Defendant with the necessary pre-action notice.
However, during the hearing of the Appeal, Olukayode Akande Esq. of Counsel for the 2nd Appellant aligned himself with the submissions of the 1st Respondent on all the issues raised by the parties for determination.
Before delving into the arguments of Learned Counsel for the respective parties, it is only appropriate to have a resume of the facts of the case which culminated in this Appeal. The case of the Plaintiff/1st Respondent is that the Traditional Ruler of Etan Community is generally referred to as the Eletan of Etan. He was according to him appointed and installed as such and as the 18th Eletan of Etan in accordance with the custom and traditions of Etan Community on the 5th day of January, 1970 after having performed the traditional Onika rites. He is said to hail from Iloyan Ruling House (the sole Ruling House in Etan) in Etan Ekiti in Ekiti Local Government Area of Kwara State. His appointment and installation as the lawful Eletan was said to have been approved, confirmed and recognized by successive Kwara State Governments as evidenced in the Reports of three different Commissions of Enquiry set up at different times by the Government and Judgments of three different High Courts which were affirmed by the Court of Appeal all in his favour.
The Appellant according to the 1st, 3rd and 4lh Respondents, hails from Iloye Compound in Etan and was appointed a tax collector for Etan by the defunct Ilorin Native Authority and that from what appeared to be a conscious and deliberate mistake the Appellant rather than stick to his role as tax collector started parading himself as the Eletan of Etah. The Appellant signs as such as evident from the processes filed in the High Court. Respondents maintain that because of the confusion generated by the mischief and pretences of the Appellant, various Panels of Enquiry have been set up culminating in the litigations in the High Court and Court of Appeal all in favour of the 1st Respondent.
Indeed, the Appellant was said not to have performed, any of the traditional rites having not been chosen by Ifa Oracle, and that despite the fact that the 1st Respondent had been adjudged the rightful occupant of the stool for 39 years, the incessant agitations by Appellant to the stool of Eletan brought about the suspension of the 1st Respondent by the 1st Defendant (Ekiti Local Government Traditional Council and the 4th Defendant (now the 4th Respondent), from the Council, stoppage of his emoluments and the delay in presenting him with the Stall of Office as a Third Class Chief by the 3rd and 4th Defendants.
Accordingly, by reason of the above, the 1st Respondent approached the Kwara State High Court, Ilorin Division by the Originating Summons process seeking for the determination of the following questions:-
QUESTIONS FOR DETERMINATION
1. Whether having regard to the Reports of the various Panels of Enquiry set up in 1965, 1972 and 1982 respectively by successive Governments which were all in favour of the Claimant, the State Government can validly set up another Panel of Enquiry to look into a non-existing dispute over the stool of Eletan of Etan.
2 Whether ‘having regard to the High Court and Court of Appeal judgments which have determined the matter of the stool of Eletan to finality and which judgments arc subsisting and binding on the Defendants, the 1st-4th Defendants can at instance of the 5th Defendant purport to set up a Panel of Enquiry to inquire into non-existing dispute over the stool of Eletan of Etan.
3. Whether having regard to the 2006 upgrading of the Claimant to a 3rd class Oba together with due recognition accorded the Claimant by successive Kwara State Governments the 1st to 4th Defendants can still purport to suspend the claimant pending the outcome of the so-called Panel of Enquiry to look into a non-existing dispute 6ver the stool of Eletan of Etan.
4. Whether having regard to all the surrounding circumstances and the fact that the matter of the stool of Eletan have been determined to finality by the High Court and Court of Appeal in favour of the Claimant who has occupied the stool of Eletan for over thirty-seven years the purported suspension of the Claimant is justifiable and is not null and void.
5. Whether the 1st Defendant purportedly acting on the directives of 3rd Defendant has the legal authority or power to, suspend the Claimant or slop payment of Claimant’s salaries, allowances and other perquisites of his office as the Eletan of Etan.
6. Whether the Defendants acting jointly or severally can lawfully refuse to be bound ignore, side track, review or set aside a subsisting decision of the Court of Appeal on the stool of Eletan of Etan.
The Plaintiff also sought for the follows reliefs:-
RELIEFS BEING SOUGHT
1. A Declaration that the Claimant is the subsisting lawful and legal Eletan of Etan as confirmed by the Reports of the various Panel of Enquiry as well as the decisions of the Courts and should be so recognized by the Defendants.
2. A DECLARATION that the respondents whether acting severally or jointly cannot refuse to be bound, ignore, side track, review or set aside subsisting decisions of the High Court and Court of Appeal on the stool of Eletan of Etan.
3. A DECLARATION that the Defendants whether acting jointly or severally cannot validly suspend the Claimant or put on hold, the exercise of the functions of his office as the Eletan of Etan for no just cause.
4. A DECLARATION that the 5th Defendant and/or anybody who purports to conduct himself as the Eletan of Etan is in contempt of the Court(s) and liable to sanction (s)
5. AN ORDER setting aside as null and void the following letters:-
(a) Letter of reference No.: EKLG/TRC/S/Vol.1/3/51 dated 25th April, 2007 and captioned “Re-Ground and Member of Ekiti Local Government Traditional Council, Kwara State.”
(b) Letter reference No.MLGCA/CHI/51/S.41/72 dated 17th May, 2007 and captioned “Re-Suspension from Ekiti Local Government Traditional Council”; and
(c) Letter reference No.: EKLG/TRC/S/03/Vol.1/56 dated 18th May, 2007 captioned “Re-Salient Point for consideration in respect of H.R.H. Eletan of Eletan and Onikerin and Ikerin-Opin”.
6. An Order setting aside any action or thing done pursuant to the said letters by the Defendants.
7. A Mandatory ORDER directing the 3rd – 4th Defendants to present the staff of office of 3rd class to the Claimant forthwith.
8. AN ORDER of perpetual injunction restraining the 1st – 4th Defendants, their servants, Agents or Successors in office from appointing and/or recognizing the 5th Defendant or any other person to the stool of Eletan of Etan held by the Claimant.
9. AN ORDER of perpetual injunction restraining the 5th Respondent from presenting, acting or parading himself as the Eletan of Etan.
10. AN ORDER directing the 1st to 4th Defendants to pay the Claimant’s withheld salaries, allowances and all perquisites of his office and position as the Eletan of Etan with effect from April, 2007.
11. AND any other consequential Orders(s) the justice of the matter may demand in the circumstances.
The Originating Summons was supported by an affidavit of thirty paragraphs deposed to by Plaintiff then H.R.N. OBA JOSHUA OYEBANJI AINA, Okinbaloye-Jegede II himself, a written Address and Exhibits 1-19 and a Further Affidavit to which Exhibits 20-21 were annexed.
Upon service of the processes by the Plaintiff/1st Respondent, the 5th Defendant/now Appellant filed a notice of Preliminary Objection against the use of Originating Summons on the ground that there were disputed facts in the case that were substantial in nature and it was imperative to adduce oral evidence for the resolution of those disputed facts. The preliminary objection was supported by a five point affidavit and a written Address. He however swore to a thirty-nine paragraphed Counter-Affidavit against the Originating Summons and Counter-Claimed for declaratory Orders to the effect that:-
1. There is no judgment that ever pronounced the claimant/1st respondent as the Eletan of Etan and there is no judicial basis for his recognition as such.
2. On the footing of the judgment of the High Court of Justice of Northern Nigeria in Suit No.Z29/1966 delivered on the 19th of September, 1967 by Mohammed Bello J. (as he then was), the claimant was/is ineligible to vie for the Chieftaincy Stool of Eletan of Etan immediately after the demise of his father, the Stool being rotational between the three ruling houses of Iloyan, Iremo and Isaoye.
3. The purported reports of various Panels of Enquiry recognizing the claimant as the Eletan of Etan and all governmental or administrative recognitions of the Claimant as such are null and void and of no effect being in flagrant disregard and contravention of the decision in suit No.: Z29/1966 delivered on 19th September, 1967 by Mohammed Bello, J as well as the Native law and custom of Etan.
4. The 4th Defendant/Counter-Claimant being from the next ruling house after the demise of the claimant’s father is entitled to be recognized at the expense of the claimant of Kwara State Government as the rightful Eletan of Etan.
5. An Order restraining the claimant from parading himself as the Eletan of Etan or holding out himself as eligible for the Office until the Stool had gone through the other two ruling houses of Iremo and Isaoye.
6. An order directing the Kwara State Government to present the Staff of Office to the Eletan of Etan to the 5th Defendant.
The case of the 5th Defendant/Appellant in the main is that the primary judgment relied upon by the 1st Respondent to lay claim to the throne of the Eletan has being established that there are three Ruling Houses in Etan ruling rotationally as against the Claim of the 1st Respondent that Iloyan is the only Ruling House in Etan. Proceeding from the rotational nature of the stool, it was therefore wrong for the 1st Respondent to claim to ascend the throne immediately after his father’s demise when it was the turn of the next Ruling House where the Appellant hails from to produce the Eletan, according to the 5th Defendant/Appellant.
It would be recalled that the 1st Defendant (now 2nd Respondent) the Ekiti Local Government Traditional Council subsequently filed its counter-affidavit and written address wherein Mrs. Elizabeth Arinde a Legal Officer and Legal Adviser to Ekiti Local Government Traditional Council (the 1st Defendant/2nd Respondent), deposed to the facts that membership of the Local Government Traditional Council is not as of right for all Traditional rulers but by appointment and that the claimant was notified of his appointment as a member of the 1st Defendant/2nd Respondent vide a letter dated 10th March, 2006 signed by the 1st Defendant’s Chairman – Olori of Osi and a copy of the said letter is tendered as Exhibit A. She also stated that the 3rd Defendant has supervisory powers over Traditional Councils’ Chiefs generally within Kwara State and is constituting membership of the Traditional Council. The third Defendant also has a say on appointment, remunerations, promotions and discipline of any traditional ruler within Ekiti Local Government and the 1st Defendant/2nd Respondent receives instructions from the 3rd Defendant (now 3rd Respondent and Commissioner for Local Government and Chieftaincy Affairs).
Exhibits 16 and 18 in support of the Originating Summons she further averred were written based on directives from the 3rd Defendant and that the Kwara State Governor who is the Chief Security Officer of the State and has the powers to set up Panels of Enquiry whenever wisdom dictates to him that such is necessary for peace to reign in any community. The panel set up in respect of the chieftaincy disputes between the Claimant/1st Respondent and the 5th Defendant/Appellant had not submitted its Report which in any case is advisory and the Claimant/1st Respondent had not been removed as the, Oba but merely suspended from 1st Defendant/2nd Respondent, pending the outcome of the Panel’s report which was the purport of exhibit 16 and 18 tendered by the Claimant/1st Respondent.
The 1st Defendant had done nothing against previous judgments of Courts of law as Exhibited in Exhibits 4, 5 and 6 in support of the Originating Summons and the said Exhibits 4, 5 and 6 did not appoint the Claimant as a member of the Traditional Council neither has the membership or suspension of any member from the 1st Defendant been ever decided by any Court of law or Panel of Enquiry.
Copies of the two letters written by the 1st Defendant to the Claimant dated 25th April, 2007 and 18th May, 2007, respectively were annexed to the Counter-Affidavit and marked Exhibits “B” and “C” respectively. Finally the 1st Defendant also pleaded that it is the practice of the Traditional Councils to suspend any Oba from its meetings whenever there is any enquiry affecting such Oba and that as a Legal Officer, the Governor will call for advice of the 1st Defendant on any matter placed before the Panel of Enquiry. This practice according to her is to guarantee freedom of speech at the Council meetings on the subject matter of inquiry.
For the 2nd and 3rd Defendants (now 3rd and 4th Respondents), their case in a nut shell as can be gleaned from their Counter-Affidavit deposed to by Mrs. S. O. Sanni, Assistant Administrative Officer of the Ministry of Local Government and Chieftaincy Affairs, is that the 2nd Defendant has supervisory powers over the 1st Defendant and all Local Governments in the State, Ekiti Local Government inclusive. She averred that Kwara State Government had set up a Panel of Enquiry on the Eletan of Etan Chieftaincy matter which constitutional and statutory rights the Government has in so doing on any dispute arising out of Chieftaincy matter at any time. In so doing, the Government/Governor has the statutory duty to make adequate consultations with the stakeholders and be convinced before he can exercise his discretion to recognize any one party as a chief or the other.
In consequence of the above, the Governor received advice both on the Report of the Panel of Enquiry into the Eletan Chieftaincy matter and the existing judgments of the various courts on the matter. In this respect, the 2nd Defendant received an approved memorandum from the Office of the Deputy Governor on the Eletan of Etan Chieftaincy; matter directing it to comply with the instructions contained therein – a copy thereof which was exhibited and marked MOJI, A and B respectively.
Owing to the pendency of this Suit, the 2nd Defendant received a letter from the Office of the Secretary to the State Government asking it to stay action on all issues concerning the Eletan Chieftaincy matter. This said letter was annexed as Exhibit MOJ2. The state Government on the other hand, through the Office of the Secretary to the State Government, had sought and received advice from the 3rd Defendant on the Eletan of Etan Chieftaincy matter which was also Exhibited as MOJ3. On the allegation by the Claimant/1st Respondent that the 2nd and 3rd Defendants had refused to be, bound by various Courts’ decisions and the Panel Reports on the Stool of Eletan of Etan, the Defendants/Respondents denied same and explained that the present State Government is law abiding and rule of law compliant and would never do anything against justice but for justice, good governance and development of every facet of the Government in the State. They further asserted that it was in furtherance of the above philosophy that the State Government upgraded the Classes of Chiefs in the state, that of Eletan of Etan inclusive and as a matter of fact the 2nd and 3rd Defendants have not removed the Eletan of Etan at any time.
At page 304 of the Records, the Preliminary Objection of the 5th Respondent/Appellant against the hearing of the case in the lower Court by the Originating Summons Process, was dismissed for lack of merit. After series of interlocutory skirmishes, the substantive case was heard. Accordingly, on the 5th of February, 2009, the learned Counsel on behalf of all the respective parties adopted their written Addresses. In a reserved judgment delivered by the Learned Trial Judge on the 31st day of March, 2009, he held as follows at pages 358-360.
“Whether the 1st, 2nd and 3rd Defendants acting jointly or severally can validly suspend the Claimant or put on hold the exercise of the function of his office as the Eletan of Etan. From the available facts and documentary evidence before me, it would appear that this issue has been overtaken by event.
It is to be noted that this case was triggered off by Exhibit 15. It was written on 25th April 2007 by the Ekiti Local Government Traditional Council. But after the case (sic) been instituted challenging the propriety or otherwise of the suspension, and a Panel of inquiry set up by Government to look into the alleged Chieftaincy dispute in Etan has submitted its report and recommendations, the Government while paper report was released.
Accordingly, on 18th September, 2007, the 1st Defendant, Ekiti Local Government Traditional council again wrote to the Claimant and said amongst other things:-
“1 To inform you of your approval and recognition as the rightful Eletan of Elan.
2. The Ekiti Local Government Traditional Council in compliance with the above directive from the Ministry of Local Government and Chieftaincy Affairs, Ilorin wish to inform you of the followings:-
1 That your attendance of the Ekiti Local Government Traditional Council activities that was put on hold has been lifted. Hence you are urged to attend all the activities of the Council. ‘,
2. The Ekiti Local Government Traditional Council now recognizes your Royal Highness as the rightful Eletan of Etan as well as a member of the Traditional Council.
3. Be informed that all your entitlements and allowances due to you as a member of the Traditional Council during the period of your absence from the Council shall be worked out and paid in full to your Royal Highness. See Exhibit 13A.
From the above, I am tempted to think that there is no reason why I should again waste my precious time in determining the issue which to me has become mere academic.” See Page 359. At page 360, he further concluded on the reliefs of the Claimant/1st Respondent/Cross-Appellant thus:-
“The issue for consideration i.e. suspension of the Claimant from office has already been overtaken by event following the lifting of the suspension order on the Claimant by 1st Defendant. Therefore, I cannot grant reliefs 3, 5, 6 and 10 sought for by the Claimant.”
Turning to the Counter-Claim of the 4th Defendant/Appellant/Cross-Respondent, the Learned trial Judge held still at page 360 inter-alia:-
“Issue 3 is whether there is merit in the Defendant’s Counter-Claim in view of the large documentary evidence in support of the Claimant’s case. In Exhibit1 4 which is the judgment of Mohammed Bella, J. (as he then was) it was clearly stated that the 4th Defendant has not been appointed or purportedly appointed as Eletan of Etan. That was 1967. Up till today the 4th Defendant has not appealed against the Judgment. The judgment is therefore subsisting and valid. I am in complete agreement with A. O. Mohammed Counsel for the Claimant and MRS. Funsho Lawal for the 2nd and 3rd Defendants, that the 4th Defendant, having failed to appeal against the Judgment in Exhibit 4 in particular forever bound by the Judgment. ‘
He is therefore estopped from re-litigating the settled issue in connection with the Stool. To now file a Counter-Claim which to all intents and purposes is a Cross-action, for a declaration that the 4th Defendant/Counter-Claimant, being from the next Ruling House after the demise of the Claimant’s father, is entitled to be recognized at the expense of the Claimant by the Kwara State Government as the rightful Eletan of Etan the 4th Defendant is reopening or re-litigating the case, which in law he cannot do. For this reason, I hold that the Counler-Claim is incompetent. Accordingly, I here dismiss it.”
It is against these decisions that the Appellant and Cross-Appellant have appealed to this Court. Beginning from the main Appeal, I propose to determine same on the issues formulated by the Appellant since all the issues formulated by the 1st, 3rd, and 4th Respondents are subsumed within the three issues formulated by the Appellant.
ISSUE NUMBER ONE- On this issue the Learned Counsel for the Appellant. (Mr. Dayo Akinlaja) drew our attention to pages 27-28, 29-30, 91 and 94-95 of the Records respectively to submit that it is beyond disputation that Exhibits 1, 2, 3, 8 and 11 annexed to the Originating Summons are public documents which their only admissible secondary evidence are their Certified True copies as was decided in Agballah v. Nnamani (2005) ALL FWLR (pt.1052) at 1078 and Yakubu v. Ida (2009) ALL FWLR (pt.465) 1833 at 1846; Omega Bank (NIG) Plc. v. O.B.C. Ltd. (2005) ALL FWLR (Pt.249), 1964 at 1994;
According to the Learned Counsel for the Appellant, the 1st Respondent did not exhibit the originals of the Exhibits, and that the ones being exhibited are copies of the supposed originals which are not admissible in evidence by reason of non compliance with the statutory requirements relating to certification of public documents. He cited the example of Exhibit I (Suit No. Z29/1966) which the only authorized or appropriate official of the Court could have certified the document as a certified true copy, but in the instant case the document is said to have emanated from Ekiti Local Government, Araromi-Opin. He submitted finally that all the documents tendered did not emanate from proper custody to the extent of their certification more particularly as the officials who purportedly certified, the documents did not indicate their names, contrary to Section 111 of the Evidence Act, thereby rendering the documents useless.
In respect of Exhibits 2 and 3, the Learned Counsel for the Appellant also argued that they were worthless they being purported copies of public documents which are uncertified. This is especially so because it is unsigned. For this submission, he relied on the case of Omega Bank (NIG) PLC. v. O.B.C. LTD (2005) ALL FWLR (Pt. 249), 1964 at 1994 to the effect that an unsigned document is a worthless document.
Finally on this issue, Learned Counsel for The Appellant submitted that Exhibits 8 and 11 are not certified at all and they are accordingly not admissible as secondary copies of public documents.
ISSUE NUMBER TWO
Arguing issue Number Two, the Learned Counsel for the Appellant asserted that the claims of the 1st Respondent ought to have been peremptorily struck out in the circumstances of the case. He drew the Court’s attention to the fact that the Claimant/1st Respondents claim were principally declaratory and the Law on the authorities of: Akinleye v. Afribank PLC (2006) ALL FWLR (Pt.305) at 722 at 722 at 732 and 734 and Live Stock Feeds PLC v. Funtua (2005) ALL FWLR (PT.286) 753 at 770-771. It is trite that the Plaintiff can only succeed on the strength of his case and not on the weakness of the defendant’s. In this vein, before a Court can grant a declaratory relief, there must be cogent and sufficient materials, as well as admissible evidence to engender the grant and where the matter involves affidavit evidence, it is incumbent on the Claimant to substantiate averments in the affidavit exhibiting relevant materials.
As noted on Issue Number One, the Learned Counsel for Appellant reiterated that Exhibits 1, 2, 3, 8 and 11 are not admissible in Law and should not have been given probative value. The Learned trial Judge, Learned Counsel further insisted, heavily relied on these exhibits in coming to the decision that the 1st Respondent had variously been recognized as the lawful Eletan by the Kwara State Government, ‘sequel to which the judgment was given in favour of the 1st Respondent. It was therefore contended that if the Court below had not given the undeserved premium to these exhibits, it would have been seen that there was nothing to sustain the declaratory relief that the (1st, Respondent’s appointment as Eletan had been confirmed by reports of various Panels of inquiry. In the circumstances, the claims of the Claimants (1st Respondent) ought to have been dismissed on the footing that it was fraught with the absence of requisite materials to sustain them.
On the question of Exhibit 4 to the originating summons which is of pivotal importance in the determination of this Appeal, the Learned Counsel for the Appellant referred us to page 352 lines 3-16 of the Records and the holding of the Learned trial Judge therein and argued that the Learned trial Judge misapprehended the case of Appellant from; the tenor of the holding as regards Exhibit 4. According to him, the case of the Appellant is that while that Exhibit has foreclosed the right of the 1st Respondent herein to ascend the Royal Stool of Eletan of Etan immediately after the demise of his father (last Eletan of Etan), the said Exhibited not say that the Defendant/Appellant is ineligible to be the Eletan of Etan after the demise of 1st Respondent’s father, and consequently the Appellant is entitled to that stool at the expense of the 1st Respondent.
The Learned Counsel then explained the case of the Appellant for better appreciation by reference, to the history of Exhibit 4 as decided by Bello, J. (as he then was) in 1976 which case was initiated by the privies of the 1st Respondent and one of their reliefs was for:- “A declaration that the customary or traditional ruling family in Etan is Iloyan family;” and the holding of His Lordship on the relief at pages 42 line 3 and 43 line 81 of the Records, submitting that from what can be discerned in that judgment, there were three ruling houses in Etan ruling rotationally. Learned Counsel further referred to paragraph 2 of the Affidavit in support of the Originating Summons at page 16 of the [Records where the 1st Respondent admitted this fact and submitted again that one logical deduction from Exhibit 4 is that the Claimant’s father was the immediate past Eletan of Etan and the 1st Respondent was therefore not entitled to the throne of Eletan until the stool had gone round the remaining two ruling houses because of the rotational nature.
He explained further that as the three houses have been adjudged to be entitled to the stool in rotation, immediately after the demise of the 1st Respondent’s father, the stool automatically moved to the next house in rotational order from where it would eventually move to the third house before reverting-back to the 1st house of Iloyan which is that of the 1st Respondent.
Learned Counsel referred to pages 353 lines 18-21 of the Records and 354 lines 23-25 where the Court held respectively that there is nothing in Exhibit 4 showing that the Claimant/1st Respondent is not entitled to vie for the stool of Eletan until the stool has gone round that the main the remaining ruling houses after the demise of the Claimant’s father and issue before the Court below was whether the Claimant is the lawful subsisting Eletan of Etan and not whether he ought to be appointed being the son of the last reigning Eletan, maintaining that while there is no express pronouncement in the said Exhibit 4 that the Claimant/1st Respondent is not entitled to vie for the stool until the two other Ruling Houses had taken their respective turns, this fact is the irresistible inference that ought to be drawn from the portion of the judgment of Bello, J. (as he then was) on the ascension to the Eletan Stool. The cases of Edokpolo and Co. Ltd. v. Ohenhen (1994), 7 NWLR (pt. 358) 511 at 529; High-Grade Maritime Services Ltd. v. First Bank of Nigeria Ltd. (1991) 1 NWLR (pt.167) 290 at 308; were cited in support of the above submission.
Still on the holdings of the lower Court as earlier highlighted, the Learned Counsel forth; Appellant added that the Claimant/1st Respondent could not have been the lawful (and) subsisting Eletan if he ought not to have been appointed as such ab initio as his alleged appointment is predicated on paragraph 2 of the Affidavit in support of the Originating Summons, wherein he pleaded that he was nominated by the Iloyan family of Etan- the only Royal and Ruling House/family in Etan as the Eletan Elect after the death of his father Oba Aina Okinbaloye, as the 18th Eletan of Etan in 1964. Learned Counsel observed that this deposition was denied by the 4th Defendant/Appellant at page 115 to 121 of the Record of Appeal in the Appellant’s Counter-Affidavit, submitting that what is of moment now is that the 1st Respondent’s claim that his Iloyan family is the only ruling house runs contrary to the decision in Exhibit 4, which neither the 1st Respondent nor any of those his privies who instituted Exhibit 4 appealed against that decision.
On the authorities of Rossek v. A. C. B. (1993) 10 SCNJ 20 at 41 and 42; and, Babatunde v. Olatunji (2000) 2 SCNJ 26 at 33 and 34; which are to the effect that a judgment not appealed against is valid and binding forever, it was posited that the import of the foregoing facts is that, the bottom is knocked off the case of the 1st Respondent and the holdings of the Learned trial Judge as highlighted earlier were faulty and indefensible as the 1st Respondent could not have been the lawful subsisting Eletan where his appointment is unlawful and in contravention of the adjudged custom and tradition of the town.
Learned Counsel for the Appellant also canvassed the point that there is no evidence and/or credible evidence to the purported appointment of the 1st Respondent as the Eletan before the trial Court and that he claimed in paragraph 3 of the Affidavit in Support of the Originating Summons that he was appointed and installed on the 5th of January, 1970 but Exhibit 8 attached to the originating summons shows that as at 10th April, 1972 when the letter was allegedly written, he was still referred to as ‘Mr. Besides, the letter (Exhibit 8) puts the effective date of his appointment as 30th March, 1972 which is in conflict with his deposition in paragraph 3 of the Affidavit in support. Citing the case of Onyemelukwe v. W.C.C. (1995) 4 NWLR (PT.387) 44 at 55; it was submitted that where there is conflict between deposition in an Affidavit and an Exhibit in support thereof, both are worthless.
The Learned Counsel for the Appellant restated the earlier observation that the Appellant in paragraphs 3-5 of his counter- affidavit denied the alleged appointment of the 1st Respondent as Eletan which denial was not challenged by any further evidence adduced by the 1st Respondent and ought to be accepted that the said 1st Respondent was at no time appointed as the Eletan. He therefore took the view that notwithstanding that the learned trial Judge purported to have considered the entire Exhibit tendered before holding that the 1st Respondent is the lawful and subsisting Eletan, of Etan, those Exhibits are not helpful as they cannot dislodge the decision in Exhibit 4 which has not been appealed. The same thing is applicable to the purported recognitions or alleged confirmations pf the 1st Respondent in the light of Exhibit 4.
Talking specifically about the Panels of Enquiry, the Learned Counsel for the Appellant argued that all recommendations thereto has no potency in Law as was held in Tangale Traditional Council v. Fawu (2002) FWLR (Pt.117) 1137 at 1162 particularly when the Kwara State Government had not come out with White Paper to evidence its position on the (Pt.600) 638 at 646 and Yakubu v. Ida Supra at 1846 and Administrator (for Ekiti State) v. Aledeyelu (2007) 5 S.C.N.J 1 at 12 – 13 were cited on the nature of Recommendations of Panels of Enquiry and even white papers on chieftaincy matters which have not been enacted into Law to further submit that the disputed recommendations which have not been accepted by the Government cannot be employed as parameters for holding that the 1st Respondent is the lawful and subsisting Eletan.
On the reliance placed by the Learned trial Judge on Exhibit 13A to hold at pages 358 to 360 of the Records that it has been established that the 1st Respondent is entitled to the stool and functions as the Eletan, Learned Counsel noted that Exhibit 13A is not the last letter from Ekiti Local Government Traditional Council but that the Council issued another letter dated 21st November, 2007 after Exhibit 13A which letter is attached to the 1st Respondent’s Further and Better Affidavit as Exhibit 21 at page 92 of the Records. The said Exhibit 21 Learned Counsel observed, retracted the contents of Exhibit 13A aid further Exhibit MOJIB attached to the Counter-Affidavit of the 3rd and 4th Respondents rendered the said Exhibit 13A otiose and accordingly, the Learned trial Judge was wrong to have treated Exhibit 13A as having settled the issue of the 1st Respondent’s entitlement to the to the stool of Eletan of Etan.
It was consequently contended that there was no basis for the grant of the declaratory reliefs 1, 2, and 4 as sought by the 1st Respondent and the perpetual injunction against the Appellant. As regards Relief 1, he asserted that there was no prior decision of whatever Court, confirming the 1st Respondent as the subsisting Eletan as a careful perusal of Exhibits 4, 5, 6 and 7 will reveal that the 1st Respondent’s claim that he has been judicially confirmed as the Eletan is not only a misconception but mischievous, He referred us again to Exhibit 4 which was a suit against the present Appellant by the 1st Respondent’s privies seeking for declarations that the appointment of Appellant as Eletan was null and void and that Iloyan family was the only ruling house which suit was dismissed in its entirety and there was no appeal by the 1st Respondent where he was declared the valid or legitimate Eletan of Etan. Furthermore, Exhibit 5 did not affirm the 1st respondent as the rightful and lawful Eletan contrary to the claim of the 1st Respondent, rather the said Exhibit is a ruling which held that the High Court had no jurisdiction to entertain the chieftaincy suit filed by Plaintiffs in that case, the suit having not been heard on the merit. Learned counsel for the Appellant further submitted Exhibit 6 he noted was another ruling of the High Court which struck out the Appellant’s case for want of jurisdiction because it was a chieftaincy matter and Exhibit 7 (the Court of Appeal Judgment) upheld the decision in Exhibit 6.
Turning to Exhibits 1, 2, and 3, the Learned Counsel was of the view that Exhibits 1 and 2 cannot be said to have validated the 1st Respondent’s claim to the Eletan same being mere recommendations based on the erroneous beliefs that there was only one Ruling House at Etan in the face of the judgment of Bello J. in Exhibit 4. Besides, the Learned counsel continued, Exhibit 2 which talks of the finding of alleged three man panel and the putative decision of the State Government of them, cannot take the place of the Report of the Panel and the white paper of the State Government of Report as only the said Report and the White Paper thereon can have probative value of Section 132 of the Evidence Act. This is particularly so according to the Learned Counsel because of the contention of the Appellant in his Counter-affidavit that there is no such Report in existence. Citing A.G. Plateau State. v. A.G. Nasarawa State (2005) ALL FWLR (Pt.266) 1227 at 1236, it was submitted that only the judgment of a court can be relied upon as the conclusive proof of matters decided between parties to case.
On Exhibit 3, a Report made to the Kwara State Government in 1982 in respect of the Eletan Chieftaincey dispute, the Learned Counsel pointed out that there is no evidence that the State Government received the Report and accepted or acted on it nor had any White Paper been released or a Gazette published in that Report and accordingly there is no bases for the 1st Respondent to be granted declaratory reliefs on these recommendations.
Placing reliance on the case of Yusuf v. Cooperative Bank Ltd (1994) 7 NWLR (Pt.359) 676 at 696 it was submitted finally on this issue that since there was no need for the grant of declaratory reliefs, the injunctive relief also granted against the Appellant were unwarranted. He then urged us to answer the question in the affirmative.
In the formulation of Issue Number One and arguments of the Learned Counsel for the Claimant/1st Respondent thereof, he had incorporated his reactions to issues one and two of the Appellants as can be gleaned from paragraphs 4.00 to 4.18 of the 1st Respondent’s Brief at pages 4-15 of his Brief. On the contention by the Appellant that the 1st Respondent did not place before the Court cogent; relevant and reliable documents capable of attracting the judgment of the Court in his favour, the Learned Counsel submitted on the contrary that Exhibits 1-3 shows that previous Governments had intervened in the Eletan Chieftaincy dispute through institutions of Panels of Enquiry beginning with Exhibit 1 which represents the outcome of such inquiry conducted in 1995 by the Councillor for Social Welfare wherein it was reported that the 1st Respondent (then a student) was selected to succeed his father the 17th Eletan of Etan. The report of the second enquiry was also communicated to the Appellant’s Counsel (Mr. Adeyinka Adeoye) in his capacity as solicitor and that the Kwara State Government through the 3rd Respondent by a letter dated 29th May, 1972 (two years after the 1st Respondent was installed as Ejetan) stated categorically that the 1st respondent was the rightful Eletan and should be recognized having performed the Onika rites and leaving been chosen by the Ifa Oracle. The Appellant was then asked to resign as the Village Head and Tax Collector.
Learned Counsel to the 1st Respondent also pointed to a Report by the 2nd Respondent dated 13th April, 1982 addressed to the Secretary to the State Government which made reference to the High Court Judgment which favoured the Claimant as the rightful occupant of Eletan stool and Village Head. It was therefore submitted that Exhibit 3 shows that the Panel of Enquiry exhaustively examined the Eletan stool from its historical perspective before affirming the 1st Respondent right to the Stool. Pages 27 to 36 of the Records referred. As for Exhibits 8 and 11, it was argued that they point to the fact that the Kwara State Government had always recognized the 1st Respondent as the Eletan of Etan and Village Head and Government had frowned at the confusion engineered by the mischief of the Appellant.
On the non-certification and inadmissibility of Exhibits 1, 2, 3, 8 and 11 he submitted that the documents have complied with the provisions of the Evidence Act as Exhibit 2 is a letter written to the Appellant’s solicitor while Exhibits 8 and 11 are documents which were copies to the 1st Respondent in person and the submissions by the Learned Counsel to the Appellant in this respect are misconceived.
As regards Exhibit 4, the Learned Counsel for the 1st Respondent was of the view that the judgment of Mohammed Bello, J. (as he then was), was to the effect that the Appellant had never been appointed the Eletan of Etan. He also referred to Exhibits 5, 6, and 7 which according to him was to the effect that the Appellant’s challenge to the 1st Respondent’s fightful occupation of the Stool of the Eletan, was an exercise in futility. Not being satisfied, the Appellant filed a fresh suit in Suit No: Kw/OM/193/82 which was struck out by Orilonise, J. sitting at High Court of Kwara State, Omu-Aran Division on the 19th of May, 1989 for want of jurisdiction. On further Appeal to the Court of Appeal, Kaduna Division, the appeal was also dismissed as can be seen in Exhibit 7 at pages 65-90.
It was therefore Learned Counsel’s submission that Exhibits 8, 9, 10, 11, 12, 13 and 14 attached to the Originating Summons as found at pages 90-99 of the Records, point to the irresistible conclusion that the Appellant? (Read 1st Respondent/Cross Respondent) is the legitimate and recognized Eletan of Etan. Furthermore, by Exhibits 1 to 14, 16 and 19 to the Originating Summons, it was not open for the 2nd to 4th Respondents or anybody for that matter to reopen the issue of Eletan Stool which has been settled to finality by the totality of the aforesaid Exhibits.
He further submitted that the judgment of the Court of Appeal was not appealed against and it is therefore binding on the parties forever. The Learned trial Judge was said to have critically analyzed, the facts placed before it in coming to the conclusion particularly at pages 347-353 and could not have revived the judgment in Exhibit 4 which judgment is still valid, subsisting and binding on the parties on the authorities of Odejewedje v. Echanokpe (1987) 3 SCWJ 30 at 33 and Onamade v. ACB (1977) 1 SCNJ 65 at 83.
Learned Counsel also noted that it is not the habit of appellate Courts to interfere with findings of lower Courts in the absence of visible miscarriage of justice. The authorities in so submitting were cited as Alhassan Maiyaki v. The State (2008) ALL FWLR (pt.419) 500 at 518 para. F; IBWA v. PAVEK INTERNATIONAL Co. (NIG) Ltd. (2004) 4 SCNJ 200; Kraus Thompson Organization Ltd. v. University of Calabar (2004) 4 SCNJ 121 at 136.
On the heavy weather made by the Learned Counsel for the Appellant of the Judgment of Mohammed Bello, J. (as he then was) he submitted that the Learned Counsel for the Appellant refused to take a composite look at the said Exhibit 4 and for a proper appreciation thereof, the Learned counsel for the 1st Respondent drew attention to the holding of the Learned Mohammed Bello, J. (as he then was) at pages 42 lines 38-40 and 43 lines 1-4 and the position of the 1st Respondent’s Counsel that the Iloyan family has only been the traditional Ruling family is fortified as any other family that emerged to rule was due to special circumstances or emergency they being only regents and not Eletan of Etan.
Further references were made to the findings of the Learned trial Judge at page 354 lines 13-17 of the Records and the second paragraph and lines 18-22 thereof to submit that from the clear and unambiguous meaning of the words of the judgment in Exhibit 4, and the evaluation of evidence and conclusion of the lower Court which is within its exclusive powers (province), the Appellant cannot embark on a private or personal interpretation. Owoade v. Omitola (1988) 2 NWLR (pt. 77) 413 at 427; Bello v. Eweka (1981) 1 S.C. 101 and Mogaji v. Odofin (1978) 4 S.C 91 at 93; were all relied upon to submit that the Learned Counsel cannot embark on a private or personal interpretation.
In concluding his arguments on this issue, the Learned Counsel for the 1st Respondent urged us to resolve the issue in favour of the 1st Respondent because apart from Exhibits 1, 2, 3, 8 and 11 which the Appellant attempted to attack, though weakly, the other Exhibits 4, 5, 6, 7, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 will safely convey the case of 1st Respondent to haven even though it is largely declaratory, and the judgment would not have been different.
On the part of the 3rd and 4th Respondents, their position on Issue one which is akin to Issues numbers One and Two of the Appellant, conceded that it is trite that a Claimant in a claim for declaratory reliefs, must satisfy the Court by cogent and credible evidence called by him to prove that he is entitled to the reliefs sought. In this case, the Learned Senior Counsel/Attorney General noted, the 1st Respondent tendered sundry documents in support of his Originating Summons including reports of various panels of inquiry set up by the Government of Kwara State, Court judgments and several correspondences between him and the government agencies concerned with chieftaincy affairs.
It was therefore submitted that the powers to appoint, approve and depose chiefs is conferred only on the State Governor whose statutory powers is to set up Panels of Enquiry where it deems fit so to do for purposes of investigating chieftaincy disputes. Section 3(3) of the Chiefs (Appointment and preposition) Law, Cap 28, Laws of Kwara State, 1994, was cited in this regard and to submit that the Government after various consultations and through recommendations from Panels of Enquiry set up on chieftaincy affairs will then eventually appoint, approve and confirm a person as a Chief.
He recalled that from the facts of the case the previous Kwara state Governments in the exercise of this power have intervened in the Eletan of Etan Stool dispute by setting up various Panels of Enquiry to look into the dispute, hence the 1st Respondent’s Exhibits 1-3 as well as other documents attached to the Originating Summons. Also, the incumbent Governor of Kwara State acting within the powers given him by the chieftaincy Law set up the Enquiry into the Etan Chieftaincy dispute as indicated in Exhibits MOJIA and MOJ2 attached to the 3rd and 4th Respondent’s Counter-Affidavit.
The Learned SAN maintained that a dispassionate perusal of all the documents before the Court particularly Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, MOJIA and MOJ 2 points to only one conclusion that the 1st Respondent has been appointed, approved and I confirmed by successive. Kwara State Governments who alone is the appropriate authority responsible for the appointment and deposition of chiefs in the State. It was submitted further that the approval and confirmation of the 1st Respondent as the rightful Eletan has been validated by Courts of competent jurisdiction as can be seen at pages 27-106 of the Records and accordingly the lower Court was right to have granted all the reliefs sought by the 1st Respondent. This Court should also hold that the 1st Respondent had fulfilled all conditions precedent for the grant of all his declaratory reliefs.
It was further pointed out that none of the recommendations of the Panels and Judgments made reference to the Appellant as having at any time been appointed or recognized as the Eletan of Etan neither did he tender any document to that effect rather by Exhibit 8, the Appellant was sternly warned to stop parading himself as the Eletan as he was not one.
The Learned Senior Counsel for the 3rd and 4th Respondents also referred to Exhibit 4 (pages 37-43) of the Records a decision of Mohammed Bello, J. (as he then was) submitting the two documents amongst others have spelt out the status of the Appellant and 1st Respondent with regards to the legitimate and rightful occupant of the Eletan Stool which the Appellant did not appeal against as it affects his status but rather initiated another Suit before Orinlonise J (Exhibit 5) which was struck out for lack of jurisdiction, learned Counsel further alluded to the recent Panel of Enquiry set up by the Kwara State Government culminating in Exhibits MOJIA and M0J2 and argued that this act of the Government cannot be faulted because it is consonance with previous recommendations from earlier Panels of Enquiry and decisions of Court of competent jurisdiction that has previously adjudicated on this issue.
Citing again Odejevwedje v. Echanokpe (1987) 3 SCNJ 51 at 57-58; Onamade v. ACB (1997) 1 SCNJ 65 at 83; Ondo State University v. DR. Folayan (1994) 7/8 SCNJ 186 at 205 he submitted like the 1st Respondent that a decision which has not been appealed is binding on the parties and the Appellant cannot lay claim to the Stool of Eletan of Etan so do Appellate Courts not form the habit of interfering with judgments of Courts of first instance in the absence of visible miscarriage of justice. Ayeni & ORS v. Sowemimo (1982) 5 S.C.6 at 73-74, Mainagge v. Gwama (2004) 7 SCNJ? Jikantoro & 6 ORS. v. Dantoro & 6 ORS. (2004) 5 SCNJ 152 at 178 and IBWA Ltd v. Pavek International Co. (Nig.) Ltd (2004) 4 SCNJ 200; were all cited to contend that the judgment of the lower Court occasioned no miscarriage of justice to warrant our intervention. Kraus Thompson Organization v. UNICAL (supra) referred.
He cited Fawehinmi v. I.G.P. (2002) 5 SCNJ 103 at 124 on the interpretation of the judgments of Mohammed Bello, J (as he then was) to posit that Exhibit 4 is unambiguous and this Court should not read extraneous meaning/matters into it as there is no where that judgment foreclosed the right of the 1st Respondent to the Eletan nor did the judgment qualify the Appellant to the said Stool as he wants the Honourable Court to believe. Ugwu v. Ararume (2007) 7 MJSC 1 at 26 and 83-84, Aguocha v. Aguocha (2404) 43 WRN 17 at 37-38; Oracle , Omitola (supra) and Mogaji v. Odofin (supra); earlier cited by the 1st Respondent’s Learned Counsel were all replicated to submit that the evaluation and ascription of probative Value to evidence tendered in proceedings fall within the provide of the trial Judge which the Court below in this instance has ably done. In the light of the entire fore goings, he urged us to sustain the findings of the trial Court as done particularly in pages 348 to 358 of the Records and resolve the issue in affirmative.
On the second issue which is whether the Learned trial Judge misapprehended the facts in issue, the Learned Attorney General relied on the case of Gbadamosi v. Tamo (2004) 43 NRN 51 at 73; A.G.F. v. Abubakar (2007) 6 MJSC 1 at 27, Ajayi v. Military Administrate Ondo State (1997) 5 NWLR (pt.504) 237 as to what is the cause of action in the case at hand and how cause of action is determined, submitting that a critical examination of the Claim of the Plaintiff/1st Respondent will reveal that Exhibit 15 will give rise to his action in the lower Court and not the question of ruling houses or who is entitled to the Stool of Eletan of Etan.
He repeated his submissions earlier on Issue number One on the number of Panels of Enquiry whose Report had favoured the 1st Respondent as against the Appellant as regard who is entitled to the Eletan Stool and the fact that the Appellant has no single document indicating that he had at any point been appointed the Eletan of Etan both historically and judicially. Moreover all attempts as in this case, by the Appellant to lay claim to the Stool have failed. Exhibit 4, 5, 6, 7 and 11 as well as Exhibits MOJIA and MOJ2 were referred to in submitting further that it was the Respondent’s suspension by Exhibit 15 by the 3rd Respondent acting through the 2nd Respondent that triggered off the Originating Summons. Therefore he maintained, the decisions of the trial Court below at pages 354 and 358 were unassailable in the face of all the Exhibits tendered by the 1st Respondent and urged us to hold that the lower Court did not misapprehend the facts of the case.
On ISSUE NUMBER 3 of the Appellant which is same with Issue Number 2 of the 1st Respondent and Issue 3 of the 3rd and 4th Respondents as to whether the Court Counsel for the Counter-Claimant/Appellant recalled the nature of the and the terse manner with which the Learned trial Judge dismissed same at pages 360 and 361 of Records on the premise that the Defendant/Counter-Claimant/Appellant was adjudged by the Judgment of Mohammed Bello, J., in 1967, not to have been appointed the Eletan of Etan by any person nor did he hold out himself to be the Eletan. Moreover according to the learned trial Judge, since there was no appeal against the said decision, the Appellant could not re-litigate the issue.
The Learned Counsel for the Appellant therefore submitted that the holding in Exhibit 4 aforesaid is extraneous to the Counter-Claim in this case as the reliefs in the Counter-Claim have no bearing with the 1967 holding of Mohammed Bello, J; but are rather corollaries of the reliefs sought by the Claimant/1st Respondent in his Originating Summons and accordingly the dismissal of the reliefs in the Originating Summons will naturally translate to the success of the Counter-Claim and vice versa as can be discerned from the juxtaposition of the reliefs sought by the Claimant at page 14 of the Records with those contained in the Counter-Claim at pages 197 and 198.
The Learned Counsel further reiterated, that Exhibit 4 did not say that the Appellant was not entitled to vie for the Eletan Stool but that there was no evidence that, the Appellant had been appointed the Eletan of Etan. He maintained that even with this judgment of 1967, the claim of the privies of the Claimant/1st Respondent was dismissed in its entirety and the tenacious efforts of the 1st Respondent to rely on the lost judgment to deprive the Appellant of his right to the Eletan Stool and to shore up his claim to the Stool is not only ironic but preposterous. He explained that the import of that Judgment was that the 1st Respondent was/is not entitled to vie for the Eletan Stool after the demise of his father until other families have taken their respective turns.
The Learned Counsel noted that the learned trial Judge did not exhaustively treat all the reliefs; in the Counter-Claim but merely circumscribed the treatment of the Counter-Claim to Relief Number Four and that assuming without conceding that the Relief failed, he posed the question as to what happened to the other five reliefs.
Still on relief number four, the Learned Counsel for the Appellant noted that there was no dispute that Iremo Ruling House where the Appellant comes from was/is listed as the next Ruling House to Iloyan from where the 1st Respondent originated, in the absence of any opposition from the Iremo House as to the appointment” of the Defendant/Counter-Claimant/Appellant to the Eletan Stool. In his view, the issue in this case B who is (entitled to be recognized as the legitimate Eletan between the Appellant and the 1st Respondent, and there is no Judgment disqualifying the Appellant from being so appointed the Eletan unlike the 1st Respondent who has been ruled on, of eligibility after the exit of his father from the throne. He insisted that since there is no judgment to that effect and by the rotational order of Exhibit 4 which shows that it was/is the turn of the Iremo House, the Appellant and no, the 1st Respondent is entitled to recognition and sanction by the Governor as the legitimate Eletan of Etan going by the contest between the parties since 1966.
Accordingly, the Learned Counsel from the foregoing premises, canvassed the point that there is no judicial basis for the contention by the 1st, and the 2nd to 4th Respondents that 2nd to 4th Respondents were committing contempt of Court by wading into the matter and recognizing the Appellant as the Eletan. On the other hand, he argued that it is contemptuous of the judgment in Exhibit 4 in this case for the 1st Respondent or any one for that matter to Claim that there is only one Ruling House at Etan and that since the Claim of the 1st Respondent is that there is only one ruling House, his case should fall flat in the face of Exhibit 4.
On the folding by the Learned trial Judge at pages 360 to 361 of the Records that relief number four of the Counter-Claim is an attempt: by the Appellant/Counter-Claimant to re-open the issue, it was submitted that the issue for determination in Exhibit 4 upon which the holding of the Learned trial Judge in this case was predicated is whether the Appellant had been appointed as the Eletan of Etan and not that Appellant was at any time ineligible and could not subsequently vie for or be appointed to the Stool of Eletan. Accordingly it was therefore submitted that the issue in Exhibit 4 and the case on appeal, are not same so as to bring the application of issue estoppel doctrine Ajiboye v. Isola (2006) ALL FWLR (pt.331) 1209; Obasi Ibenye v. Abraham Agwu (1998) 9 SCNJ at 14 and Balogun v. Afolayan (2002) FWLR (pt. 85) 331 at 345. In the light of the submissions above proffered on all the issues he urged that the Appellant’s Counter-Claim should have succeeded in the lower Court at the expense of the 1st Respondent’s claim. He then urged us to answer Issue Number 3 in the affirmative; allow the appeal on his Counter-Claim and dismiss the Claim of the 1st Respondent on the footings set down at page 22 of the Appellant’s brief.
In his reaction to argument of the Appellant’s Counsel on this issue, the Learned Counsel for the 1st Respondent, reminded us of the settled principle of law that a Counter-Claim must be proved by the Defendant/Counter-Claimant no matter the weakness of the case of the Claimant/Defendant/1st Respondent. JERIC NIG. Ltd. v. Union Bank of Nig. (2000) 12 SCNJ 184 and Chief Gordon Joe Young Jack & ORS v. Chief R. I. T. Whyte & ORS (2001) were cited to support the above principle to posit that where the Counter-Claimant refuses to prove his Claim, the Court must dismiss the Claim. According to the Learned Counsel, the Appellant in the Court below did not put forward any evidence to buttress his Claims but that his Claim was based on Exhibit 4 and as such the trial Court was correct in dismissing his Counter-Claim on the authorities of Anwoyi & ORS v. Shodeke (2006) 6 SCNJ 219 at 237 and Arabami & Anor v. Adenance Beverages Ind. Ltd. (2005) 12 SCNJ 331 at 353-354. He reiterated as earlier done that the Appellant did not appeal against those judgments and that the Counter-Claimant sought to reopen the issue of the Eletan Stool which he is bereft of the right to so do at that stage for according to him Exhibits 4 and 6 are decisions of two High Courts respectively and Exhibit 7, a decision of the Court of Appeal Kaduna Division which held that the cause of action arose in 1970 (5th January) and that the Appellant was estopped from re-litigating on the matter. To buttress this contention and the further submission that by Exhibit 7 and the Kwara State Limitation Law Cap. 89 (pt.111), Section 18 thereof, the Counter Claim of the Appellant was Statute-barred. He relied on the cases of Engineering Enterprise of Niger Contractors Co. v. Attorney-General of Kaduna State (1987) 2 NWLR (pt?) 381 and Akinfolarin v. Akinola (1994) 4 SCNJ 30 at 33 and Aremo II v. Adekanye (2004) 7 SCNJ 218 at 233 to buttress his submissions and further contended that if the cause of action accrued on 5th of January, 1970, the Appellant had up to the 6th of January, 1975 to litigate the present claim but having failed so to do he is Statute-barred to contest the Stool of Eletan of Etan.
The Learned Counsel also commended to us the cases of Eboigbe v. NNPC (1994) 5 NWLR (pt. 179) 28 and further observed that the 1st Appellant is merely an opportunist who has capitalized on the 1st Respondent’s action which in the main is challenging his suspension as contained in Exhibit 15 (page 100 of the Records) which does not imbue the Appellant with a cause of action which he lost 34 years ago. Aremo II v. Adekanye II (supra) at 222. In view of the above submissions, the learned counsel took the view that the counter-claim constituted an abuse of Court process in that the Appellant has initiated multiplicity of actions between the same parties and in the manner he exercises his right to bring the action. For this submission he cited the case of Saraki v. Kotoye (1992) 11/12 SCNJ 20 at 48. The learned counsel for the Claimant/1st Respondent finally urged this Honourable Court to dismiss the Appeal as the learned trial Judge was right to have dismissed the counter-claim.
On the part of the learned Attorney-General, he on behalf of the 3rd and 4th Respondents aligned himself with the submissions of the learned counsel for the 1st Respondent that the learned trial Judge was right in dismissing the counter-claim of the Appellant which according to him has no bearing with the claim of the 1st Respondent but was a ploy to reopen an already settled issue in relation to Eletan of Etan and the Appellant did not appeal the decision in Exhibit 4. Since the Appellant did not appeal within the limitation period, he further argued, the counter-claim was outside the jurisdiction of the lower court referring to Exhibits 6 and 7 to the originating summons and the case of Oloriode v, Oyebi (1989) 1 SCNLR 390 at 391 – 392 to further argue that the burden of proof rests on the person who asserts and on the person, who would fail if no evidence is adduced on either side (section 135 of the Evidence Act and the cases of Ehidimen v. Musa (2000) 4 SCNJ 325 at 350; Nnabuife v. Nwigwa (2001) 9 NWLR (pt.719) 715 referred). On the submission that a claimant must rely on the strength of his case and not the weakness of the defence; he cited the case of the Abimbola v. Abatan (2001) 4 SCNJ (pt.1) 64 to further contend that in a case where there is a claim and counter-claim where common questions arise for determination, the determination of those questions in either of them disposes the other and the questions do not have to be considered the second time. Alhaji Salami O. Aderounmu & Anor. v. Emmanuel Olafide Olowu (2000) 2 SCNJ 180.
The learned Attorney-General also cited the cases of Jerk Nig. Ltd. v. Union Bank of Nig. (Supra); Chief G. J. Young Jack & Org. v. Chief R.I. T. Whyte (supra) earlier cited by the learned counsel for the Ist Respondent and Anwoyi & Ors. v. Shodeke & Ors; Aderance Beverages Ind. Ltd. (2005) 12 SCNJ 331 to submit that a counter-claim a being a distinct and separate, independent action which ought to be proved against the Claimant/1st Respondent and where a Defendant as in this case did not put forward any cogent evidence in proof the counter-claim, the lower court was right in dismissing the counter-claim. He then prayed that this Honourable Court should resolve all the issues against the Appellant and hold that based on the interpretation given to the Exhibits in the case, the 3rd and 4th Respondents are justified to have appointed recognized and upgraded the 1st Respondent as the Eletan of Etan. He finally urged as to dismiss the appeal.
It would be recalled that Dayo Akinlaja Esq. for the Appellant filed Reply Briefs to the 1st, 3rd and 4th Respondents’ Briefs. In response to Issue One of the 1st Respondent, Mr. Akinlaja pointed out that from the submission of the 1st Respondent in paragraph 4.06 of his Brief he has no. disputed the fact that Exhibits 1, 2, 3 8 and 11 in this case are public documents and that there is nothing in evidence to substantiate the claim of the 1st Respondent that he has complied with the Evidence Act. Accordingly he urged us to hold that the 1st Respondent like the 3rd and 4th Respondents have no answer to the; submissions of the Appellant on his Is, issue. Against this background it was submitted again that there was no justification for the use made by the learned trial Judge of the impugned documents (Exhibits 1, 2, 3, 8 and 11) and that there was no documentary, evidence to justify the decision of the lower court. Furthermore the learned counsel argued, the 1st Respondent also misapprehends the importance of Exhibits 4, 5, 6 and 7 jus. as .he 3rd and 4th Respondents have done. He adopted all the submission in respect of the said Exhibits as proffered in the Appellants’ Brief as well as the Reply to the 3rd and 4th Respondents’ Brief mutatis mutandis.
As for Exhibits 8, 9, 10, 11, 12, and 14 referred to in paragraph 4.10 of the 1st Respondent’s Brief’, he countered that they do not advance the case of the 1st Respondent as they have been rendered otiose by Exhibit MOJIB which is the last correspondence from the Kwara State Government on the issue of who should be recognized as the Eletan of Etan as between Appellant and the 1st Respondent Also he continued, the said Exhibits cannot, dislodge the potency of Exhibit 4 in this case and it is conceded that Appellant is the one who has a legitimate claim to the Eletan Stool and should by the 1st Respondent admission in paragraph 4.10 of his Brief.
On the contention of the Respondents that the Eletan of Etan Chieftaincy has been judicially determined, he argued per contra that as could be seen from Exhibit 15 at page 100 of the, Records that the Government set up a Commission of Enquiry, in that respect and has not released a White Paper on the outcome but that Exhibit MOJIB at page 247 of the; Records has shown that Government has ordered that action be stayed on all the issues concerning the Chieftaincy in deference to the Court action.
Still on the judicial aspect, he reiterated that no judgment has pronounced the 1st Respondent the Eletan rather Exhibit 4 says that there are three Ruling Houses ruling rotationally thereby precluding the 1st Respondent from vying for the stool immediately after the death of his father which decision neither the 1st Respondent nor any of his privies appealed against and accordingly it is rather the 1st Respondent who is caught by res judicata. All the authorities cited by the 1st Respondent apply to his detriment he maintained.
He finally adopted his earlier submissions on the Exhibits to submit that the accusation by the 1st Respondent that the Appellant subjected Exhibit 4 to private interpretation is unfounded as 1st Respondent’s counsel failed to realize that all previous declaratory reliefs sought in Exhibit 4 were dismissed. He finally urged us to resolve Issue Number One of the Respondent in the negative.
In response to Issue Number Two of the 1st Respondent, Mr. Akinlaja again argued that the Counter-Claim is not reopening settled issues as it is a mere upshot or corollary of the claim of the 1st Respondent. He adopted the submissions proffered against issues two and three of the 3rd and 4th Respondents in paragraphs 4.01 to 4.05 of the Appellant’s Reply Brief. The counter-claim, he continued, is not tied to any action that arose in 1970 but assuming there was a cause of action that became statute-barred in 1975, the 1st Respondent has revived same by instituting this action and accordingly, the issue of the counter-claim being statute-barred does not arise, so also do the Limitation Law of Kwara State and the case of Aremo II v. Adekanye not apply.
Still on the case of Aremo II v. Adekanye (supra) he posited that it does not support the Claimant’s submission that the Panels of Enquiry set up by the Kwara State Government cannot create a new cause of action. He recalled the decision of the Supreme Court on the above cited case particularly, the dictum of Edozie, JSC, at page 233 of the Report, which according to him is not the same thing as saying that the setting up of the inquiry by the Government could not in whatever circumstance create a new cause of action. Reference was then made to the dictum of Uwaifo J.S.C., at page 236-237 of the Report which belies the submission of the learned counsel for the 1st Respondent in that respect to submit that there is nothing like abuse of Court Process in circumstance of this case and that the case of Saraki v. Kotoye cited by the 1st Respondent’s Brief is very inapposite. We were finally urged to answer Issue Two of the 1st Respondent in the negative as well.
Responding the arguments in respect of 3rd and 4th Respondent’s Brief, the learned counsel to the Appellant contended that the learned Attorney-General prejudicially slanted the facts of the case in favour of the 1st Respondent as there is no indication on record that the 1st Respondent was duly appointed the 18th Eletan of Etan in accordance with the custom and traditions of the Etan Community on the 5th day of January, 1970 after the performance of the Onika rites and that such claim in paragraphs 2 and 3 of the 1st Respondent’s affidavit in support of the Originating Summons, the Appellant denied in paragraphs 3, 4, and 5 of his counter-affidavit at pages 115 to 116 of the Records. Accordingly, it was argued that it was improper to elevate the case of the 1st Respondent to the level of undisputed facts.
Furthermore, he further asserted, the 3rd and 4th Respondents failed to mention that the last correspondence from the Kwara State Government on the Eletan Stool was Exhibit MOJIB at page 247 of the Records wherein all related issues to the Eletan Chieftaincy were asked by the Government to be stayed and also that contrary to the assertion of the 3rd and 4th Respondents no court of law pronounced the 1st Respondent the rightful occupant of the Eletan of Etan Stool and village Head.
On the inadmissibility of Exhibits 1, 2, 3, 8 and 11 as canvassed by the Appellant in his Brief, the learned counsel for the Appellant also insisted that the 3rd and 4th Respondents have not responded to the issue and on the authority of Okongwu v. NNPC (1989) NSCC (vol.20) 118 at 125, per Nnaemeka-Agu, JSC, and Maersk Line v. Addie Ltd (2002) 4 SCNJ 433 at 461, the import is that the issue has been conceded by the Respondent.
Against the above background, it was submitted that the submission by the Respondents that there was overwhelming documentary evidence to warrant the grant of the reliefs sought by the 1st Respondent, cannot hold water as the court below relied on Exhibit 1, 2, 3, 8 and 11 to hold that the 1st Respondent had variously been recognized.
On the passage quoted by the learned Attorney-General at page 7 of the 3rd and 4th Respondents’ Brief, the learned counsel for the Appellant noted that the quotation emanated from Exhibit 11 and not Exhibit 8 and that the said Exhibit 11 is one of those documents lacking in probative value and reliance on it by the learned senior counsel when he did not address the issue of inadmissibility, is misplaced.
On the relevance of Exhibits 4 and 5 as alluded to by the 3rd and 4th Respondents at pages 8 and 10 of their Briefs, Mr. Akinlaja again held the view that the learned senior counsel misapprehended same which is that it has foreclosed the right of the 1st Respondent to vie for the Stool of Eletan immediately after the demise of his father the last Eletan. As for the submission at page 9 of the 3rd and 4th Respondents’ Brief, it was the view of the learned counsel for the Appellant that it is the 1st Respondent who was been laying claim to the stool in defiance of Exhibit 4 while Exhibit 5 is irrelevant as it was not decided on the merit. On the submission that this court should not interfere with the judgment of the lower court, he insisted that the Appellant has suffered a miscarriage of justice hence this is a proper case for interference of an Appellate Court to upturn the judgment.
On the contention by the 3rd and 4th Respondents that the Appellant introduced extraneous matters to Exhibit 4, the learned counsel for the Appellant countered that the only deduction to be made from Exhibit 4 is that from the surrounding circumstances, the Appellant should be recognized as the rightful Eletan at the expense of the 1st Respondent as the 1st Respondent is not entitled to the stool now and has no locus contend that Appellant cannot ascend the throne he not being a member of the Appellant’s Ruling House, whose turn it is to produce the next Eletan.
According, he submitted that the learned trial judge did not properly evaluate the evidence on Record and the judgment of the court below should be set aside.
In response to ISSUE NUMBERS 2 AND 3 of the 3rd and 4th Respondents, the learned counsel for the Appellant noted that Exhibit 15 which the Respondents purport to be the genesis of this appeal, is inchoate as that document was issued as a result of the dispute between the 1st Respondent and Appellant as to who is entitled to the Eletan of Etan Stool more so as the 1st “Respondent by his reliefs frontally made the issue of the “lawful and, legal” Eletan in this case. He repeated as he did in response to the 1st Respondents argument that the counter-claim is a direct up-shot of the claim of the 1st Respondent and not a ploy to reopen an already settled issue and as already noted according to the Appellant’s counsel, the issues in Exhibit 4 are different from the one at hand therefore, the case of Oloriode v. Oyebi on issue estoppel does not apply as well as other judicial authorities cited in that respect.
Finally, the learned counsel for the Appellant noted that the cases involved in Exhibits 5, 6 and 7 were not decided on their merits and on the authorities of Babatunde v. Pan Atlaific (2007) 4 SCNJ140 at 169 – 170 and Ajoboye v. Isola (2006) All FWLR (pt. 331) 1209 at 1222 – 1223; an action struck out cannot form the basis of a plea of res judicata. On that premise, he held the view that the references made to Exhibits 6 and 7 were misplaced. Accordingly, it was submitted that the lower court had no business dismissing the Appellant’s counter-claim and he urged this Court to resolve the two issues (two and three) against the Respondents.
RESOLUTION OF ISSUES
I have taken time to reproduce almost verbatim, the submissions of the respective learned counsel for all the parties in their respective Briefs. As I said earlier, I shall determine this appeal on the issues formulated by the learned counsel for the Appellant, Mr. Dayo Akinlaja, as all the issues formulated by the Respondents are subsumed within the Appellant’s three issues.-
Issue Number One: “WHETHER THE TRIAL JUDGE WAS NOT WRONG IN COUNTENANCING AND GIVING PROBATIVE VALUE TO EXHIBITS 1, 2, 3, 8, AND 11 IN THIS CASE”
In resolving this issue, it is pertinent to have a look at pages 27 and 28 of the Records which would reveal-that the document marked Exhibit I is captioned “Etan 31 Village Head Appointment: Investigation into the Councillor for Social Welfare & Land 1st July, 1965.”
At page 28 of the Records paragraphs three to four, thereof, it is reported that:
“…but after sonic deliberations, the councilor decided to consult those six women for enlightenment. The woman confirmed the late Eletan is the rightful owner of Etan Chieftaincy. The other two Eletans came from their mother side of the stool of Etan. The Councillor after considering those fads from all the angles has decided that one Mr. Oyebanji, the son of the late Eletan who is the popular choice to the people should be considered for appointment to the stool of Eletan.
This Mr. Oyebanji is now in the Ilorin Training College as a student and he will be of great help to the Ilorin N.A. in discharging his official duties as a Village Head. Olosi has his full support for his appointment. ”
This document was signed by the Security Secretary Ilorin Native Authority; Councilor for social welfare and land, Ilorin Native Authority and the Village Head of Osi (the Olosi). The document dated 3/12/1991 bears the stamp of Ekiti Local Government Araromi-Opin and emanates from,the office of the Sole Administrator. Although, it has inscribed on the bottom left corner “CERTIFIED TRUE COPY” the name, signature, rank and date of certification are absent and beside, it is a photocopy. Exhibit 2 reproduced at page 29 of the Records appears to be a letter written to Mr. Adeyinka Adeoye, Barrister-at-law, Wonuola Chambers, Opomale Street, Ilorin, Kwara State. It emanated from .1.0. Obajemu (Ag. Permanent Secretary) Ministry of Local Government and Community Development, P.M.B. 1407, Kwara State and is dated 29th May, 1972 it is also a photocopy.
The said letter referred to a petition written by the said Barrister to the Military Governor and copied to the Ministry and sought to correct the erroneous impression that his client Mr. Ezekiel Ogunleye (now the Appellant) in this appeal was “unlawfully dismissed from the post of the Village Head of Etan”. Learned counsel was reminded that the protracted Chieftaincy dispute which started in 1964 after the death of Mr. Jegede Aina the former Eletan of Etan and the dramatic turn of events culminating in the recognition of Mr. Ezekiel Ogunleye, a son of one of the sub- chiefs (Kingmakers) as the Village Head and tax collector as against Mr. Joshua Aina (son of the Eletan), by the Ilorin Native Authority which culminated in several petitions by the different sections of the Etan Community thereby necessitating a review of the dispute by government.
Investigations were said to have been carried out with a view to finding a lasting solution which proved abortive. A three man panel comprising the Commissioner for Local Government and Community Development in attendance was set up to visit Etan on 10th February, 1972 to carry out on the spot investigations into the dispute. The panel therefore came up with the following findings:-
“(i) that Mr. Joshua Aina is the rightful Eletan of Etan and hence should, be recognized as the Eletan of Etan and the village Head of Elan.
(a) Investigation revealed that there is only one ruling family in Etan which is ILOYAN from where Mr. Joshua Aina descends. The other two Houses IREMO and ISAOYE – who have their sub-Chiefs Elemo and Asaoye respectively only produced regents at one time or the other in the life of Etan Chieftaincy
(b) All parties to the dispute recognized and accepted the role of Onika as the “Afobaje” in Etan, and he supports the appointment of Mr. Joshua Aina as the Eletan of Etan.
(c) No Kingmaker ever contests the Kingship. Hence Mr. Ezekiel Afolayan’s claim would (Ogunleye) appear not only ridiculous but rather baffling since his father (who is still alive) is a sub-chief and at the same time a Kingmaker; and
(d) Mr. J. Aina is the choice of the tradition i.e through the Ifa Oracle divination.
It was noted that this traditional process was never followed by your client Mr. Ezekiel Afolayan (Ogunleye).
(ii) That the Iremo and Isaoye families which had held regencies should retain their titles as the Kingmakers. They will therefore continue to fulfill their traditional role for presenting the Chief to the Onika (Afobaje) for installation as the Eletan of Etan.
(iii) That Mr. Ezekiel Ogunleye should be asked to resign honourably his appointment as Village Head of Elan and Tax collector or failing which his appointment shall be terminated forthwith as the State Government was no longer prepared to have two people at the Head of Etan Village Administration, one as the Eletan of Etan and the two offices are to be combined by one person – that is the rightful Eletan of Etan.”
In the light of the above, the Permanent Secretary then informed Barrister Adeoye that it was a misconception to talk of imposition of Eletan in respect of Joshua Aina, rather according to him, the stool of Eletan is hereditary to one family i.e the Iloyan family which necessitated the proclamation of the son of the late Eletan as the present Eletan.
Accordingly, the claim by Mr. Ezekiel Ogunleye that the Eletan stool rotated amongst the three Ruling families was dismissed as false. The letter also dismissed the claim by the said Mr. Ogunleye that he was not given the opportunity to be heard because both disputants and other sub-chiefs were present at the investigation. The said letter was neither signed, officially stamped nor certified even though it purports to be a letter from the office of the Permanent Secretary, Ministry of Local Government and Community Envelopment of Kwara State.
Exhibit 3 is a photocopy of a letter from Ekiti Local Government Area via Omu-Aran. Kwaraj State, Nigeria. The letter referenced EKLG/CA/S/ REP/9/VOL.I/65 and dated 13th April, 1982 and addressed to the Secretary to the State Government, Special Services Division, Governor’s Office, is captioned “RE-ETAN CHIEFTAINCY DISPUTE, A PROTEST BY A SECTION OF ETAN COMMUNITY OVER WHAT THEY CALLED IMPOSITION OF CHIEF JOSHUA O.AINA ON ETAN TOWN”.
The said document is stamped “SECRET’ and ‘Ekiti Local Government Araromi-Opin, Office of the Sole Administrator” and dated 3/12/1991. It is also said to be a Certified: True Copy but the name, signature and rank of the certifying officer is not indicated. In any case, the letter contains another Report on the findings of another investigation panel on the Etan Chieftaincy dispute following the protest by a section of the community against the imposition of Chief Joshua O. Aina, the 1st Respondent/Claimant in this appeal. According to the document twenty-five people from Etan Town mainly ward Heads and elderly people were interviewed which interview also extended to the Kingmakers from Ika Compound, Isaoye Alu Elemo of Iremo and Ilase compounds.
At page 2 of the document, the Report in paragraphs 3 and 4 thereof observed that: “3. During the investigation exercise it was observed that almost all the people that were interviewed have been influenced and were carried away by sentiments. Previous investigation conducted on the same issue and the personalities involved appeared to have made it somewhat difficult for the Secretary to the Local Government to collect unbiased information about the issue in question. It was clearly observed that the people have taken their stand behind the personality they have decided to support on the chieftaincy issue. They were not ready to give an undistorted historical background to the issue.”
In paragraph 4 thereof, the Report reflected on the two contestants (now 1st Respondent and Appellant) and that those in support of the 1st Respondent claimed that there was only one Ruling House from where the Oba of Etan Town should be chosen. They supported their claim from the historical facts that all sixteen Obas who had ruled Etan Town I up to date were all from Iloyan Ruling House and that neither of the Kingmakers; nor their children could become or be-made an Oba in Etan town. When the Secretary to the Local Government drew their attention to the fact that at a point there were two Obas (Aniyeloye of Isaoye Compound and Okirikin Babata Alomilese Pepe of Iremo), the supporters of the 1st Respondent alleged that the claim was not true but that what happened at that time was that there were no grown up male children of the ruling Oba but he had two daughters married to Isaoye and Iremo Compounds who had grown up male children for their respective husbands. The sons were therefore allowed to act as regents only until the Oba’s male children were grown up. They went on to state that Okirikin Babata and Aniyeloye were regents and the traditional rights for an Oba were never performed for any of them and within that period they never wore the Etan Crowns which were not released by the Iloyan Ruling House during the regency.
On the part of the supporters of the Appellant they claimed that the ascension to the throne of the Eletan was rotational among three Ruling Houses – Iloyan, Iremo and Isaoye. When questioned by the Secretary as to how many Obas had ruled Etan town from their time of settlement up to date, the persons interviewed were said to be unsure of the number whereas some said they had three Obas, others said they were told of four, seven and some did not know at all how many Obas had ruled the town. None of them said they heard that sixteen Obas had ruled Etan Town.
As to what led to the rotational system of ascension, the supporters of the Appellant explained that initially Etan was ruled by Obas from Ipetu Community. Later a terrible war broke out which claimed the lives of all Ipetu people leaving no male child to be installed the Oba for the town. The only female left in the Ruling House (Iloyan) was Yeye Arika, a princess and that during the wars the communities jointly fought to retain the crown for the ruling house of Iloyan so as to prevent enemies from carrying away the crown. After the war, princess Yeye Arika from Iloyan Ruling House called the Etan Communities together and directed that the throne should be rotated amongst the three groups – Iloyan, lremo and Isaoye because all of them had fought together to keep the crown away from the enemies.
The Secretary then went on to ask whether the son of a Kingmaker could be chosen as an Oba and whether a son from a princess from the Ruling House who was married to another house could become an Oba and the answers from ninety-five persons were in the negative.
From the foregoing, the Secretary preferred the story as told by the supporters of the 1st Respondent who appeared to have the traditional right to the Etan throne. On the other hand the evidence of the supporters of the appellant “appeared inconsistent and illogical”. The Report however has it that: “It is however important to note that out of the twenty-five people interviewed only five people supported Chief Joshua Oyebanji Aina while twenty people supported Ezekiel Ogunleye and one man chose to be neutral see last paragraph of page 34 to paragraph I line I of page 35 of the Records.
The Report also noted that investigation revealed that Joshua O. Aina’s father was the last Oba and it was possible that the people did not enjoy his reign more so as the 1st Respondent is said to be arrogant, tactless in handling issues affecting the town as these qualities have incurred him the hatred of the majority of the people apart from his “know-all” attitude. See paragraph 2 page 35.
In paragraph 3 thereof, the attention of the Secretary to the State Government was drawn to the fact that the Etan Chieftaincy dispute had gone to the High Court and judgment was said to have been in favour of the 1st Respondent. Following the findings the author of the document made the following suggestions and recommendations to the Secretary to the State Government:- ;
“1. Leader of Etan Community be invited by officials of either the Chieftaincy Affairs Department of the Governor’s office or Ministry of Local Government to appeal to them strongly to cooperate with their Oba for purposes of progress of the town.
2. That the leaders should be told that the Court had ruled in favour of Chief Aina and as such Government could not change Courts decision over Chieftaincy issue; ;
3. That Chief Joshua Aina and other Chiefs or Kingmakers be united and he advised to work together as a team with mutual trust and understanding;
4. That the Kingmakers should be told that if anything should happen in Etan as to threatening of law and order they would be held responsible; and
5. That Chief Joshua Oyebanji Aina be advised to handle his subjects with tact and as a leader he should always exercise great restraint and tolerance while dealing with his people. By behaving as a leader and not as a boss he would in no small way win the hearts of his people to himself. ”
Exhibit; 8 is another photocopy of a letter from the Divisional Office, Igbomina/Ekiti Division, Omu’91919197Aran dated 10th April, 1972, addressed to the Administrative Secretary, Local Government [Authority, Igbomina/Ekiti Division, Omu’91919197Aran and captioned “Appointment of Eletan” the letter signed by U.B. Ali, Sole Administrator; of Igbomina/Ekiti Division, informed the Administrative Secretary of the Local Government Authority that Mr. Joshua Oyebanji Aina had been appointed as the Eletan and Village head of Elan with effect from 10th March, 1972. The said letter was copied to Mr Joshua Oyebanji Aina of Etan, c/o Ifelodun District Council, Osi for his information apd directive to report in the office to fill certain documents relating to his appointment, j He was also advised to note that his allowance as village Head of Etan was ?72: 10 / per annum. He was congratulated for his appointment to the stool of Eletan of Etan. The said document also was neither stamped nor certified.
Exhibit 11, another photocopy of a letter Referenced No. S. 293/S.5/Vol.V/352 from the Governor is office Private Mail Bag 1378, Ilorin, Kwara State; dated 18th October, 1981 was addressed to the Chairman Irepodun/Ifelodun Local Government Traditional Council and captioned “ETAN CHIEFTAINCY CONTROVERSY”. The letter must have been written as a result of a complaint by the 1st Respondent that inspite of his being recognized by both administrative and judicial decisions the Appellant was still parading himself as the Eletan of Etan. Accordingly, the author of the letter Alhaji Sidi Aliyu who signed for the Secretary to State Government in paragraph 3 thereof conveyed the suggestion of the Honourable Commissioner that “the Traditional Council should invite Ezekiel Ogunleye and warm him to desist from parading himself as a Chief which he is not and also to refrain from actions and utterances that tended to breach the peaceful atmosphere in the village area.”
Although, the said document has the imprint “certified copy”, there is no name, signature and rank of the certifying officer and there is no official stamp of the Governor’s Office. The letter was however copied to several persons and offices including the 1st Respondent-as Oba Joshua Aina Jegede, Eletan of Etan.
Now, Section 97(1) of the Evidence Act provides for admissibility of Secondary evidence in relation to documents and it categorically states that:
“97(1) Secondary evidence may be given of the existence, condition or contents of a document in the following cases:
(e) Where the original is a public document within the meaning of section 109;
(f) When the ordinal is a document of which a certified copy is permitted by this Act, or by any other law in force in Nigeria, to be given in evidence.”
By Section 97(1)(c); “The Secondary evidence admissible in respect of the original documents referred to in the several paragraphs of the subsection is as follows :(c) paragraph (e) or (f) a certified copy of the document, but no other kind of Secondary evidence, is admissible.”
Section 109 of the Act enumerates documents which are categorized as public documents in; the following terms:-
“109 The following documents are public documents:
(a) Documents forming the acts or records of acts –
i. Of the sovereign authority;
ii. Of official bodies and tribunals; and
iii. Public officers, legislative judicial and executive, whether of Nigeria or elsewhere;
(b) Public records kept in Nigeria of private documents.
Under section 111(1) of the ACT, every public officer having the custody of a public document which any person has a right to inspect shall give has person on demand a copy thereof on payment of the legal fees thereof, together with a certificate written on the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and official title, and shall be sealed, whenever such an officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
In Agagu v. Dawodu (1990) 7 NWLR it was held that once a public document is certified and signed as required by Section 111 such a document is admissible on mere production and it would be unnecessary to prove proper custody or to verify… It has also been held that such a document can be tendered from the bar and it is unnecessary to call the certifying public officer. Ogbunyinya v. Okudo (1979) 3 LRN 3U refers. See Section 112 of the Evidence Act.
From my perusal of the Records particularly pages 27 – 28, 29 – 30, 91 and 94 to 95 Exhibits 1, 3, and 11 appear to have been certified even though they do not meet the requirements of section 111 of the Evidence Act as the names, signatures and designations of the certifying officers are not present in the documents. Exhibits 2 and 8 on the other hand are not certified even though by the provisions of Sections 109 and 113(ii), (iii) (d) all the documents are either Records of Departments or Ministries and Acts of Kwara State Government, orders, notifications, nominations, appointments and other official Communications of the Government of Kwara State and the Ilorin Native Authority and of the Igbomina/Ekiti Local Government which was succeeded by the Irepodun/Ifelodun Local Government Area Council or the Traditional Council thereof. Such documents ought to be certified by the officers who authorized or made such orders or issued such official communications and/or by the Departmental Heads or Commissioners since the executive authority of the State Governor or any person nominated by him extends thereto. As was noted earlier on, those certified and uncertified documents are all photocopies and not copies of the documents per se. There is however a controversy “as to the admissibility of photocopies of certified copies of public documents under Section 97(2)(c) of the Evidence Act.
In Raymond Iheonu & Anor. v. Simeon Obiukwu (1994) 1 NWLR 594, per Edozie JCA (as he then was) held that a photocopy of a copy which on the face of it shows that it is a certified copy duly signed is admissible by virtue of Section 112 of the Evidence Act. See also the decisions of this Court per Ademola JCA in DTN v. Williams (1986) 4 NWLR (pt.36) 525 at 536; per Onalaja JCA in 1MB Nig. Ltd v. Dabiri (1998) 1 NWLR (pt. 533) 284; per Mohammed, JCA in Kabo Air Ltd. v. INCOBER . Ltd (2003) 6 NWLR (pt. 816) 323 at 339; Aderemi JCA in Daniel Taylor Tans. Ent. Ltd. v. Basari (2001) 1 NWLR (pt. 443) 470 and ACB Plc. v. Nwodika where their Lordships variously took the view that a photocopy of a certified true copy of a public document needs no further certification for purposes of admissibility.
On the other side of the divide, Ogundare JCA (as he then was) in SPDC Nig. Ltd. v. Nwolu (1991) 3 NWLR (pt. 180) 496, was of the view that a photocopy of a certified true copy of a public document is not admissible in view of the trenchant provision in of section 97(1)(c) of the Evidence Act earlier cited that “in paragraphs (e) and (f) a certified copy of the document but no other kind of secondary evidence is admissible.” This view accords more with the earlier decisions of the Supreme Court in Ministry of Lands Western Nigeria v. Azikiwe (1969) ALL NLR 49, Omoniyi v. Omotosho (1961) 1 ALL NLR 304, Ojo v. Adejobi (1986) 1 S.C 479 and Jadesimi v. Okotie Eboh (1996) 2 NWLR (pt. 429) 128 further Araka v. Egbue (2003) 33 WRNI by the impregnable doctrine of stare decisis we are bound by these decision of the Supreme Court.
It is however pertinent to note that there are exceptions to the general rule on the admissibility of photocopies of certified true copies which is that if the photocopy of the certified true copy is not one that is inadmissible completely, that it is to say, it is admissible under certain conditions and was admitted without objection then it becomes legal evidence upon which the court can act. See Alade v. Olukade (1976) 2 S.C 183, per Agu JCA in DTN v. Williams (Supra); Avong v. K.R.P.C Ltd. (2002) 14 NWLR (Pt.788) 508; S32;Onubruchere v. Esegine (1986)1 NSCC 343 at 350; Kwara State Water Corporation v. AIC (NIG.) Ltd. (2009) 47 WRN 90 at 118-119 and generally C.C. Nweze LLM; P.H.D (now J.C.A) in his book “Contentious issues And Responses in contemporary Evidence Law In Nigeria vol. One (First Edition published by Institute for Development Studies, University of Nigeria; Enugu Campus”, at page 322-324.
From the foregoing, the learned counsel for the Appellant was therefore on sound ground when he cited Agballah v. Nnamani (2005) ALL FWLR (pt. 1052) at 1078 and Yakubu v. Ida (Supra) to submit that the documents tendered by the 1st Respondent being secondary evidence of public documents in support of his originating summons, they ought to have been certified in accordance with the provisions of section 111 of the Evidence Act as had been earlier observed. I am not however inclined to Mr. Akinlaja’s submission that the document emanating from Ekiti Local Government Araromi-Opin and bearing the official stamp thereof is worthless because the 1st Respondent did not depose in the affidavit in support of the Originating summons that the said Local Government was a successor to Ilorin Native Authority which Officials wrote the document. The creation of new Local Government Areas is a matter that this court and every other court can take judicial notice of, by virtue of section 74(1) of the Evidence Act. See also section 150 (1) and (2) of the Act on the presumption of regularity. Also, the Officials who wrote the documents are presumed to possess the capacities under which they professed to have acted.
I agree totally however that Exhibit 2 is worthless since it does not purport to be secondary evidence of a public document which was not certified nor were the signatures, names and designations, not to talk of the official stamp, of the office from which it purportedly emanated, appended on the document.
In Omega Bank (Nig) Plc v. O.B.C Ltd (2005) ALL FWLR (pt. 249) 1964 at 1994 (2005) 1-2 S,C (pt.1) 49 Tobi; JSC at page 74 in his concurring judgment reiterated what was said in the cases of Ojo v. Adejobi & Ors (1978) 3 S.C(Reprint) 47; and A.G Abia State v. Agbaranya (1999) 6 NWLR (Pt. 607) 362 at 371 thus: “A document which is not signed does not have any efficacy in law. As held in the cases examined, the document is worthless and a worthless document cannot be efficacious.”
It is however conceded that the document had the name of the writer inscribed but since it is an uncertified secondary evidence of a public document, the court below ought not to have given same any probative value to grant the 1st Respondent’s Reliefs. The same fate applies to Exhibit 3 which is not properly certified and it being a photocopy of a purportedly certified true copy of a public document. I have already pointed out that Exhibit 8 is not certified at all while Exhibit 11 is a photocopy of certified copy without the certifying officer’s name, signature and rank not to talk of the stamp of the office from which the document emanated.
It has to be noted that the learned counsel for the 1st Respondent had submitted in paragraph 4.06 of the 1st Respondents brief and the learned Attorney General on behalf of the 3rd and 4th Respondents agrees with him that Exhibits 1, 2 and 3 have complied with the provisions of the Evidence Act for according to him Exhibit 2 is a letter written to Appellant’s solicitor while Exhibits 8 and 11 are documents which were copies to the 1st Respondent and of which, he had personal copies. It may be conceded that Exhibit 8 is the 1st Respondent’s personal copy of the letter written by the Divisional Office through the Sole Administrator, of the Igbomina/Ekiti Division Mr. U.B Ali; so is Exhibit 11 which copy was also made available to him as the petitioner whose complaint warranted the writing of that document. He had earlier deposed in his Further Affidavit that Exhibits 12,13,14,15,17,18, 20 and 21 are letters or documents addressed to him as the Eletan by public officers which do not require certification as the original would be tendered from the bar. However, those documents have not ceased from being secondary evidence of public documents which only certified true copies thereof are admissible in: evidence as have been decided by the earlier cited cases from this court and the Supreme Court. Moreover, in spite of the objection by the learned counsel for the Appellant the case was heard on the Originating Summons process and the necessity for tendering the documents from the bar did not arise, neither were such original documents subsequently tendered as promised by the learned counsel.
He has therefore not explained that the documents fall within the exceptions to the general rule as laid down in the Supreme Court cases earlier cited. I accordingly agree that those documents ought not to have been given any probative value particularly as no authorities were cited which have overruled the decisions earlier cited. I shall therefore resolve this issue (One) in favour of the Appellant.
Assuming I am wrong in so holding, and in view of the settled position of the law that relevant is and should be the determining factor in the admissibility of documents be they public or private (and we cannot run away from the fact that the documents impugned by the Learned Dayo Akinlaja Esq. are all relevant to this appeal see Odedo v. INEC (2008) 17 NWLR (pt.117) 554; Obi v. INEC (2007) 45 WRN1); we shall now proceed to consider the efficacy of those documents as the basis for the grant of some of the declaratory reliefs in favour of the 1st Respondent. This brings us therefore to the resolution of ISSUE NUMBER TWO WHICH IS “WHETHER HAVING REGARD TO THE EVIDENCE AVAILABLE IN THIS CASE THE LEARNED TRIAL JUDGE WAS NOT WRONG IN GRANTING THE RELIEFS GRANTED IN FAVOUR OF THE 1st RESPONDENT?”
Learned counsel on all sides are in tandem that in a claim for declaratory reliefs as in the originating summons before the lower Court, the claimant must succeed on the strength of his case and not on the weakness of the Defendant’s case. This principle is only an extension of the time tested rule of evidence as had been encapsulated in section 135 of the Evidence Act which ordains that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove the existence of those facts. In other words, the burden of proof lies on the Plaintiff/Claimant/1st Respondent to establish the grant of those reliefs by credible evidence for if he shall fail so to do, his claim would have failed assuming no evidence was given on either side. See sections 135(2), 136 and 137 of the Evidence Act and the celebrated cases of Kodilinye v, Odu 2 WACA 336; Oduaran v. Asaralt (1972) ALL NI.R (Pt.2) 137 and Okhuarobo v. Aigbe (2002) FWLR (Pt.116) 869 at 891.
It is trite that court, are not in the habit of making declaratory of rights on either admissions: or default of defence without hearing evidence from the parties and satisfying themselves that the claimant merits the grant of the declaratory reliefs sough, See Motunwase v. Sorungbe (1988) 4 NWLR (Pt.92) 90 and further Melifonwu & ORS v. Charles E. Egbuji (1982) 9 S.C ,45 a, 165 per Bello J.S.C of blessed memory Akinleye v. Afribank Plc (2006) ALL FWLR (Pt.305) 722 at 782 and 734 and Livestock Feeds Plc. v. Funtua (2005) ALL FWLR (Pt.266) 753 at 770-771; cited by the learned counsel for the Appellant.
The learned counsel for the Appellant has submitted that Exhibit 1, 2, 3, 8 and 11 are not admissible in |aw and should no, have been given any probative value by the lower court and that if the court had no, given them the undeserved premium there would have been nothing to sustain the declaratory relief that the 1st Respondent had been appointed, recognized and confirmed the Eletan of Etan by the various administrative panels set up by successive Governments of Kwara State wade into the protracted chieftaincy dispute, In his opinion, me court, below ought to have struck out or dismissed the claim of the 1st Respondent. The Respondents on the other hand argue per contra and place reliance on the avalanche of documentary evidence tendered which the court below believed as sufficiently establishing the claim of the 1st Respondent as the rightful and legitimate Eletan of Etan as against the Appellant.
Let us assume that the documents marked Exhibits 1, 2, 3, 8 and 11 and indeed 4, 5, 6, 7, 9, 10, 12, 13, 14, 16 and 19 attached to the originating summons are admissible in evidence and are worth due considerate in order to determine whether the learned trial Judge was no. wrong or was right in granting some of the reliefs sough, by the 1st Respondent. I have already set down the contents of Exhibits 1, 2, 3, 8 and 11 which were all correspondence from:-
1. Ekiti Local Government Araromi-Opin on the investigation by the Councilor for social welfare and land on the Ettan Village Head Appointment and the report of the panel dated 21st August, 1995.
2. Letter from Ministry of Local Government and Community Development to Adeyinka Adeoye Esq. the counsel to the Appellant in reply to a petition by the Appellant on the imposition of the 1st Respondent on Eletan Community. The said letter is dated 29th May, 1972.
3. Report of another administrative panel by the secretary of Ekiti Local Government addressed to the Secretary to the State Government Kwara State dated 13th April, 1982.
8. Appointment letter of the 1st Respondent as the Eletan by the Divisional Office, Igbomina Ekiti Division. Omu-Aran to the Administrative Secretary of the Local Government authority Igbomina/Ekiti Division dated 10th April, 1972 and copies to the 1st Respondent.
11. A letter from Government’s Office Ilorin to the Chairman/Irepoun/ Ifelodun Local Government Traditional council in which the Appellant was warned to desist from parading himself as the Eletan of Etan and was stripped of his title as a Chief. Of all these documents beginning with Exhibit I which was written in 1965, all the Administrative panels favoured the 1st Respondent as the rightful successor to his father and recommended him as the popular choice Exhibit 2 went further to confirm that there is only one Ruling House (the Iloyan House) from whence the 1st Respondent hails and that the other House of Iremo where the Appellant comes from and Asaoye have their subchiefs and only produced regents at one time or the other in the life of Elan Community and indeed as Kingmakers cannot become Obas or Kings.
Furthermore, the 1st Respondent had been declared the choice of the people through the Ifa oracle divination which Mr. Ezekiel Ogunleye the Appellant never followed and that the said appellant be asked to resign his appointment as village Head of Eletan and Tax collector or failing which his appointment would be terminated.
12. Exhibit 3 had confirmed the decision of Exhibits 1 and 2 even though majority of the persons interviewed if the course of the investigation by the Ekiti Local Government Council favoured the Appellant. The Report went further to hold that the disputants have gone to the High Court and the Court decided the matter in favour of the 1st Respondent and accordingly the leaders were directed to be told that the court had ruled in favour of the 1st Respondent and Government could not change the decision of the Court.
13. Exhibit 8 chromites the recognition and appointment of the 1st Respondent as the Eletan and village head of Etan since April, 10th, 1972 by the Divisional Office of Igbomina/Ekiti Division.
It has to be noted that throughout the web of this case in the lower court, no documentary evidence whether by way of Administrative Panel Reports or Judicial decisions were tendered by the Appellant. However, it would appear like the 1st Respondent, that the fulcrum of his case is Exhibit 4, the judgment of Mohammed Bello, J; (as he then was and of blessed memory). In that Exhibit (suit No. Z29/1966) decided on the 19th of September, 1967, Rufus Kola Olajide & Mathew Ojoge as Plaintiffs and privies of the 1st Respondent, sought for the following reliefs against Aina 44 Asaoye, Ayantoye Alale; Ogunleye Elemo and Ezekiel Ogunleye (Appellant in this Appeal):-
1. A Declaration that the appoint of Ezekiel Ogunleye as the village Head of Etan or as Eletan is null and void and of no effect whatever.
2. A Declaration that Adebayo Dada the Present Onika and the first Plaintiff the brother of Adebayo Dada together with their male children are the only persons entitled to appoint the village head of Etan or Eletan of Etan/
3. A Declaration that the customary or tradition ruling family in Etan is Iloyan family.
4. A Declaration that the two departures from appointing Male person from Iloyan compound were mere steps taken in emergency.
5. A Declaration that the normal royal line was resume after the death of Aniyeloye by the appointment of Aina Okunbaloye from Iloyan compound and no expediency or emergency nor warrants any departure from the normal traditional line.
6. A declaration that a fresh appointment to fill the vacant stool of Eletan be made by Adebayo Dada, the present Onika the Kingmaker.
At page 2 of the judgment (page 38) of the record of proceedings, the Learned Law Lord observed that Ezekiel Ogunleye was the 4th Defendant and that at the close of the case and addresses of parties the learned counsel for the plaintiffs abandoned the Claim, so far as it related to the appointment of the 4th defendant as the village head of Etan and also reliefs number 4 to 6. Accordingly what was left, for that court to pronounce upon were reliefs number 2 and 3. Curiously however, the learned Jurist of blessed memory remarked at page 2 lines 10 to 13 that:-
“What remained of the Plaintiffs case is strictly confined to the alleged appointment of the fourth defendant to the traditional title of Eletan of Etan, the traditional head of Etan Village.”
In any case the learned jurist of blessed memory considered the evidence of the Plaintiffs and witnesses which was that by the Ban custom the Onika has the exclusive right to select an Eletan on the recommendation of the Iloyan family and that the incumbent be selected from the Iloyan family who are the sole ruling family in Etan upon performance of certain rituals as par, of the appointment process. It was their further grouse that the 1st, 2nd, 3rd witnesses unlawfully and fraudulently misrepresented themselves to the Emir of Ilorin as persons having the right to select or appoint the Eletan and as belonging to the family to be selected. They also alleged that the Emir of Ilorin installed the 4th defendant as the Eletan when 4th Defendant is not a member of Iloyan family the only ruling family and without having undergone the rituals traditionally performed by the Onika.
In their defence, the defendants did not deny the fact that Onika has as significant part to play in the act of appointment of the Eletan but they denied that Iloyan family is the only Customary Ruling family in Etan stating on the contrary that there are three Ruling famines namely:- the Iremo family of which the 4th Defendant is a member. The Defendants further alleged that the Emir of Ilorin conducted an inquiry at Etan concerning the selection and appointment of Eletan and the Native Authority recognized the 4th Defendant as the Eletan.
After carefully analyzing the evidence of the witnesses and ascribing probative value to the testimonies of some of the witnesses whom he believed had spoken the truth, the eminent jurist of blessed memory observed at page 4 (40) lines 1-6 of the Judgment/Record of Appeal thus:-
“From the outset I may say that there is no positive evidence that 4th defendant has been appointed as the Eletan by any person or authority and that except in paragraph four of the Defence which alleges that the Ilorin N.A. has recognized him as, Eletan, there is no evidence that he has held out himself as the Eletan.”
In lines 20 to 33, His Lordship made the pronouncement which the plaintiff/1st Respondent now capitalizes upon to insinuate that he had been pronounced the Eletan by both judicial; decisions and Administrative panel reports and recommendations, inter alia:- “I accept the evidence of DW2 the councilor for finance, who of all the witnesses of this issue I find more impressive and know what he is talking about. The witness says that the Ilorin N.A appointed 4th Defendant as the village Head of Etan responsible ‘for tax collection and also as a member of the district council fourth Defendant did not give evidence he has not claimed to be the Eletan, nor has he claimed to perform the Onika rituals. I find, therefore that the 4th defendant was not appointment as Eletan by any person or authority and I find no evidence that the held out himself to be so appointed. As he, 4th Defendant, has not been appointed or purportedly appointed as the Eietan, I cannot grant the declaration sought for, for there is no appointment regarding which a declaration may be made.”
On the claim for a declaration that Adebayo Dada, the then Onika and 1st Plaintiff together with their male children are the only persons entitled to appoint the Eletan of Etan, the Learned judge (as he then was) alluded to the statement of claim of the plaintiff where it was averred that the 1st plaintiffs family is the only rightful kingmaker responsible for the appointment of the Village Head of Etan. This averment he noted, related to the office of the Village Head only and the claim was not amended to cover the title of the Eletan. He found the only averments in the statement of claim which bore some relation with this relief to be contained in paragraph 2 thereof. Eventually at page 5 (41) of the Record of proceedings lines 18-21 his Lordship stated thus:- .
“I find that the Onika has no exclusive right of selecting the Eletan as pleaded in paragraph 2 of statement of claim the evidence adduced is at variance with the with the pleadings which has not been amended;and at page 6(42) line 1 of the Records concluded that; “for this reasons I cannot grant the declaration sought for.” |
In respect of the claim by the plaintiffs that the customary or traditional ruling family in Etan is Iloyan family, the learned judge found that the evidence adduced by plaintiffs and their witnesses shows that the Iloyans are the only Ruling House or family in Etan but the Defendants however established that there are three families the Iloyans, the Iremos and the Esaoyes who rule rotationally.” See page 6(4) of the Records.
The learned judge of blessed memory reiterate that he was impressed by the evidence of the DW2 and DW5 and that the picture that emerged from their evidence which traced the genealogy of the Eletan stool was that the title of the Eletan originally belonged to a family called Ipetu. During intertribal wars all the male children of that family were killed. Only one woman, Arika survived. As a woman could not succeed this title by tradition, the title passed to the three families nearest to her namely:- Iloyans, Iremos and the Asaoyes to share rotationally. He attached great weight to the Report of investigation conducted by the Emir (Exhibit B) which report he appreciated as being hearsay just like evidence of all the parties and their witnesses on this issue as they all testified on what they remembered of their history as told them by their forefathers.
He quoted paragraph 13 of the statement of claim which averred that by the reign of Okinbaloye the normal customary and traditional line was resumed and no expediency or emergency then warranted any appointment of a regent or departure from the normal traditional line. The evidence of the 1st plaintiff under cross-examination that one Ariyeloye was acting Eletan before appointment of Okunbaloye and that Aiyeloye, never wore a crown but was ruling as a regent and that when pressed he remembered the latter (Aiyeloye) was made a regent at the death of the 13th ruler, was carefully analyzed. Also considered was the testimony of the PW4 which was to the effect that there were two regents after the death of the 13th Ruler of fifth son of Ajayi who was the daughter of the 13th ruler and ruled for four years and then Ariyeloye who ruled for a long time. It was also noted that all the parties agreed that Ariyeloye was a member of Asaoye family.
In the final analysis, His Lordship then made these crucial findings from lines 38 (page 42 of the Records) to lines 1-10 of the page 43 inter alia:-
“Having considered the totality of the evidence I am inclined to believe that not that the Iloyas have not always been ruling family in Etan Paragraph 13 of the Statement of Claim speaks for itself. It clearly infers that for expediency or emergency, regents have been appointed from that traditional line, which the plaintiffs (sic) to be Iloyans only, have been departed. This averments supports the defence that the Iloyan are not the only traditional ruling family, accept the evidence of the DW2 and DW5 that there are three ruling families. I find the number to be so.
For these reasons I am unable to grant the declaration under items 3 the result is therefore that all and each of the declarations sought for are and is refused and I have to enter judgment for the defendant. ”
Pray, how then did this clear and unambiguous judgment which was in favour of the Defendants including the present Appellant confer any right on the 1st Respondent whose privies lost on all fronts the legitimate title of the Eletan or right to succeed his father after the latter’s demise, when His Lordship expressly held that the tradition of appointing regents from the Iloya family only in times of emergency and expediency has been departed. Again, the judgment made it clear that the Iloyans are not the only traditional ruling family (assuming they were hitherto the only ruling family) which is not conceded, in view of the historical antecedents of the stool which is traceable to the Ipetu family.
Accordingly, all the skewed interpretations ascribed to the judgment of Mohammed Bello, J; (as he then was), by the 1st, 3rd and 4th Respondents and indeed the court below in order to shore up the case of the 1st Respondent and indeed every other documentary Exhibit tendered which tended to depart from this judgment is worthless for the reasons I shall advance here under.
1. Although Exhibit 1 made on the 21st August, 1965 recommended that the 1st Respondent,, the, son of the late Eletan should succeed his father this recommendation has been overtaken by Exhibit 4; –
2. Although Exhibit 2 made on the 29th of May, 1972, held that Mr. Joshua Aina is the rightful Eletan of Etan and hence should be recognized as the Eletan and the village Head and that investigation revealed that there is only one ruling family in Etan which is the Iloyan from where Joshua Aina descends and further that the other two houses of Iremo and Isaoye only produce Regents, this assertion or, findings of the purported investigation Panel have come to nothing same having been overtaken by the said Exhibit 4.
3. Exhibit 3 and the findings therein have also been rendered otiose since it was an investigation panel report made on the 13th of April, 1982 twenty-one years after the subsisting judgment in Exhibit 4.
4. Exhibit 5 the judgment of Adesiyun J. of 7/7/71 was merely struck out for want of jurisdiction in view of provisions of the Chiefs Law Cap, 20 and the Constitution of Kwara State which ousted the jurisdiction, of the Courts in Chieftaincy matters. That case was not determined on its merit and did not confer the Eletan title on the 1st Respondent.
5. In Exhibit 6, the Appellant as Plaintiff sought amongst others a declaration that he was the lawful Eletan of Etan having been customarily appointed but unlawfully removed against the native law and custom of Etan people. He also sought for a declaration that the first Defendant whom the 2nd, 3rd, 4th and 5th Defendants (Governor of Kwara State; Permanent Secretary Ministry of Local Government Ekiti Local Government and Irepodun/Ifelodun Traditional Council respectively) had recognized as the Eletan of Etan, was not the Eletan as he (the 1st Defendant) was never appointed in accordance with native law and custom.
At pages 12-14 (60-62) of the Records the learned trial judge Olabanji Orilonise J. after reproducing in extenso the judgment of Mohammed Bello, J. (as then was in suit Z29/1966) (Exhibit 4) in this appeal) and in particular, the portion where the learned Law Lord held that the 4th Defendant (now appellant) was not appointed as Eletan by any person or authority and that he found no evidence that the said 4th defendant (now Appellant) held out himself to be so appointed, took the view that since the 4th Defendant (Ezekiel Ogunleye (now Appellant) did not appeal against that judgment, the Court was incompetent to review the decision then in Exhibit 19 (now Exhibit 4) since the decision was still subsisting and binding on the Appellant. The case was again struck out for want of jurisdiction.
6. Exhibit 7 is the appeal against the judgment of Orilonise, J. to the Court of Appeal Kaduna Division where J. D. Ogundare, J.C.A; (as he then was), also dismissed the Appeal for want of jurisdiction after considering the provisions of section 161(3) of the 1963 Federal Constitution, Section 78(6) of the 1963 Constitution of Northern Nigeria and Section 11 (a) of the Chiefs (appointment and deposition) Law, Cap 20 Laws of Northern Nigeria on the ground that the cause of action arose in 1970. That judgment was delivered on the 18th day of June, 1991. Let me observe that the two previous judgments and the decision of the Appellate court did not confer title to the Eletan on the 1st Respondent although it is conceded that the Appellant did not proceed to the Supreme Court on appeal against the judgment of Ogundare, J.C.A (as then was).
7. Exhibit 8 is the letter of the purported appointment of the 1st Respondent inspite of the decision in Exhibit- 4 which categorically held that there are three Ruling Houses in Etan and since the last: Eletan was the father of the 1st Respondent common sense and equity would have dictated to the Divisional office that by the rotational nature of the Eletan stool which is borne out of historical antecedents as found in Exhibit 4, the next family to ascend the throne should have been the Iremo family from where the Appellant originated. In any case, any such, appointment which negated the decision of Exhibit 4 against which the 1st Respondent and his, privies did no, appeal, smacks of contempt of court and is null and void and of no effect.
Therefore, even the judgments of both the High Courts and Court of Appeal being touted by the 1st Respondent and indeed his selection, appointment, recognition and confirmation either by the Government of Kwara State or the Igbomina/Ekiti Division and Ifelodun/Irepodun Local Government lack the necessary foundation and infact are based on faulty and sandy pedestals. This is because the next Eletan of Etan ought to have been appointed from the next chieftaincy family in the lien of which is the Appellant (the Iremo) family. Curiously none of the judgments of their Lordship of the High Courts and the Court of Appeal reflected on this issue of the rotational nature of the Eletan stool and that having been so decided, in the Exhibit 4 the claim of the 1st Respondent was also res juidicata and ought to be struck out more particularly as the claimant/1st Respondent had pleaded in paragraphs of the Affidavit of facts in support of the Originating Summons thus:-
“2. That I was nominated by the Iloyan family of Etan – The only Royal Ruling House/family in Etan as the Eletan-elect after the death of my father Oba Aina Okinbaloye, as the 18th Eletan of Etan in 1964 and was so approved by the entire Etan Community.
3. That I ascended the throne of my father on 5th January, 1970, having been appointed and installed in accordance with native law and custom of Etan Community after performing the Onika rites.
4. That I know as a fact that in suit No.: Z29/1966, the High Court of Northern Region of Nigeria sitting at Ilorin presided over by Honourable Justice Mohammed Bello (as he then was and now of blessed memory) held the 5th defendant (now Appellant) was never at any time appointed to the position of Eletan of Etan. A copy of the judgment is hereto attached and marked as Exhibit 4:
He forget to mention that the suit was dismissed against his privies and that the said judgment has also held that his Iloyan family is not the only Ruling family in Etan. Contrary to his pleading in paragraph 2 of the supporting affidavit the Appellant in paragraphs 6 – 13 of his counter-affidavit against the originating summons particularly in paragraph 6 – 9 averred inter alia:-
“6. That there are three ruling houses of Etan and his position has been judicially affirmed as far back as 1967 in the judgment of Bello J. attached to the originating summons as Exhibit 4.
“7. That the appointment of the Eletan of Etan Chieftaincy is by tradition rotated among the three houses of Iloyan, Iremo and Isaoye in that order.
“8. That the immediate past Eletan was the father of the Claimant and on his demise in 1964, it became the turn of the Iremo Ruling House form where I hail to fill the stool of the Eletan.
9. That sequel to that development, I was presented by my Iremo Ruling House and I was installed by Etan Kingmakers as the Eletan with effect from 19/4/1966 after performing the requisite rites.
“9a. That in my capacity as the appointed Eletan, I was recognized by the defunct Ilorin Native Authority as the village Head and Tax Collector for Etan.
“10. That in recognition of my appointment some privies of the claimant instituted this action that culminated in the judgment in Exhibit 4 in this case claiming inter alia, that my appointment as village Head or Eletan of Etan was null and void and that the customary or traditional ruling house at Etan was Iloyan family.
“11. That I am aware that all the declaratory reliefs sought in that 1966 action were refused and judgment entered in favour of the defendants therein of whom I was one.
“12. That I am also aware that there was no appeal against the judgment in that 1966 case and till date no court of law has pronounced that the claimant herein is the valid or legitimate Eletan of Etan.
“13. That I equally know as a fact that till date there has been no official gazette or White Paper from Kwara State Government recognizing the claimant as the Eletan”.
Then in paragraph 18 he deposed to the salient and irrefutable fact that the judgment in Exhibit 4 did not say that he (Appellant) was not eligible to be appointed the Eletan neither did it say that the claimant was the elected Eletan.
It is pertinent to note that Ajomale Esq.,the learned counsel for the 1st Defendant had raised the plea of issue estoppel and res judicata in that Exhibits 4, 5, 6 and 7 have decided the questions in controversy just as the 4th defendant/Appellant had pleaded in some of the paragraphs of the counter-Affidavit highlighted. In his judgment, the learned trial judge at page 347(17) of the Record of proceedings rightly held in my humble view that for the defence of estoppel, per rem judicatam to operate, it must be shown that parties, issues and subject matter were the same in the previous case as those in the action in which the plea of res judicata is raised. Ihenacho Nwaneri & Ors. v. Nnadikwe Orinwa (1959) 4 F.S.C 132.
Section 54 of the Evidence Act is clear on this doctrine that every judgment is conclusive proof, as against parties and their privies, of facts directly in issue in the case, actually decided by the court, and appearing from the judgment itself to be the ground on which it was biased; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved see Oyelekan Balogun v. Adeosu Adejobi & Anor. (1995) 2 NWLR 131 S.C.
Thus, by this rule, each of these parties is precluded from denying against each other the fact that the issue of the rotatory nature of the Eletan stool amongst the three Royal families had earlier been determined in favour of the Defendant/Appellant by Mohammed Bello, J. which suit was instituted by the 1st Respondent’s privies. The lower Court was therefore wrong when it held at page 347 of the Records line 1-21 that:- “The parties in Exhibit 4 are not the same as in the instant case. Besides, rather than relitigating the Etan chieftaincy dispute, the claimant is only by this suit asking the court, to hold that the suspension from membership of Ekiti Traditional Council as Eletan of Etan by the 1st, 2nd and 3rd Defendants with no just cause is illegal, ultra vires, null and void. I hold therefore that there is nothing in the claimant’s case that ousts the jurisdiction of the Court.”
With the greatest respect the pleadings of the parties particularly the claimant that his family Ilojan is the only Ruling family in Etan is an issue that had long been settled and which was the fulcrum of his recognition. If it was not his turn to ascend the throne of the Eletan after the demise of his father as can be inferred from the judgment of Mohammed Bello, J, in Exhibit 4, then at all material times before and after that judgment he hid no business being appointed and crowned the Eletan which is now the turn of the Iremos the family of the Appellant to produce a successor. No member of the Appellant’s family has come out to challenge the Appellants as not being eligible to ascend the throne or that he has not been so appointed and recognized.
The attempt by the privies of the 1st Respondent (which by the definition of parties by judicial authorities includes the 1st Respondent) in Exhibit 4, to half heartedly seek declarations that the Appellant was not the Eletan was roundly dismissed even though the learned Mohammed Bello J; held that there was no evidence that the Appellant has been appointed the Eletan by any person or authority.
In fact the case of Okwuo Ejiofor v. Eze Onyekwe & Ors. (1972) 12 S.C 71, 185 cited at page 387 para. 22. 16 of the “Law and Practice Relating to Evidence in Nigeria” by T. Akinola Aguda of blessed memory, 1998 Edition, M. I. J. Professional Publisher Ltd; buttresses the commentary by the learned author on this vexed issue of Estoppel that:-
“In so far as an order of dismissal of an action by a plaintiff is concerned the Supreme Court had held that such order bars the losing party for all times from re-litigating the same subject matter.”
As far back as 1960 in the celebrated case of Nzekwe v. NWAKOBI (1960) 4 ENLR 59; where a dispute was between two family as in this case and the suit was conducted and fought by two or more individuals, it was held that this will not prevent the raising of an estoppel provided it was dispute between the two families and financed by them. See further Ojiako v. Ogueze (1962) 1 All NLR 58 Ojelade v. Bada & Ors (1951) 20 NLR 28. On the meaning of parties so as ground the plea of estoppel per rem judicatam, the West African Court of Appeal in Santos Okosi Industries & Anor. (1942) 8 WACA 29, so succinctly put it beyond conjecture that:-
“For the purpose of estoppel per rem judicata party means not only a person named as such but also one who being cognizant of the proceedings and of the fact that a party thereto is professing to act in his interest, allows his battle to be fought by that party intending to take the benefit of the championship in the success.”
In this case no matter what the court below purported to hold in its judgment, the 1st Respondent was and is still a party and could have been beneficiary of the judgment in Exhibit 4 which he lost but now capitalizes on the holding that the Appellant was not appointed Eletan, to claim that stool which in law he is not entitled to, for now, following the holding of Mohammed Bello J; that there are three Ruling families in Etan. See Okwosa Odua & Ors. v. Nwanze (1934) 2 W.A.C.A. 98; Ibero & Anor v. Umeohana (1993) 2 NWLR 510 and Sosan & Ors. v. Ademiyuwa (1986) 7 NWLR 241 at 251.
I am of the view that the learned trial judge ought to have dismissed the claim the 1st Defendant if he properly appreciated the case before it.
Now assuimg that the claim of the 1st Respondent was merely a challenge to his suspension by the 1st, 2nd and the 3rd Defendants from the Traditional Council, the question is at whose instance was he suspended? It would be recalled that by Exhibit 15 to the Originating Summons the Ekiti Local Government Traditional Council wrote to His Royal Highness the Eletan of Etan suspending him from the Council on the ground that the Eletan of Etan stool has been the subject of dispute and that a panel of inquiry had been set up to look into the issue, a white paper thereon which was yet to be released. The letter referenced EKLG/TRC/S/vol.1/3/? Is captioned-” RE-GRADING AND MEMBER OF EKITI LOCAL GOVERNMENT COUNCIL, KWARA STATE, is dated 25th April, 2007 and was sequel to a directive from the Ministry of Local Government and Chieftaincy Affairs, Ilorin vide letter Ref.No.: MLGCA/CHI/51/S.4/64 dated 10th April, 2007. The suspension according to Exhibit 15 was to last till the final decision of the Government on the issue.
Dissatisfied with the suspension, the 1st Respondent’s Counsel Adebayo Adelodun SAN, by a letter dated 30th April, 2007 and addressed to the Chairman Ekiti Local Government Traditional Council, Osi, making references to Exhibits 4, 5, 6 and 7 the Courts decision which according to him, settled that his client the 1st Respondent was the Eletan while the Defendant/Appellant was found not to have been appointed by any person or authority in suit No.229/1966. He also informed the Chairman that there had been no dispute since 1990 when the last suit was decided.
Accordingly, Learned Senior Counsel demanded for a retraction of the said letter and suspension of his client otherwise they were to take legal action. That letter is Exhibit 16 in support of the Originating Summons.
By Exhibit 17 referenced NO.MLGCA/CHI/51/S.41/72 dated 17th May, 2007, Mr. S. O. Sanni on behalf of the Commissioner wrote to the 1st Respondent in a letter titled “RE-SUSPENSION FROM EKITI LOCAL GOVERNEMNT COUNCIL”, inviting the Respondent for a short discussion with Honourable Commissioner Ministry of Local Government and Chieftaincy Affairs on Friday 18th May, 2007 at 3.00pm
In Exhibit 18, another letter dated 18th May, 2007 from the Ekiti Local Government Council and addressed to the 1st Respondent, the 1st Respondent was informed that the intention of the Ministry as it affects the Eletan of Etan stool is that pending the outcome of the pronouncement of the Committee of Enquiry set up on the chieftaincy matter, the two pending parties AINA and OGUNLEYE’s, attendance of Ekiti Traditional Council activities was put on hold and would be restored to the appropriate party as soon as the panel’s report was released by the Government. The letter directed that the feuding parties be informed that the Ministry of Local Government and Chieftaincy Affairs Ilorin, was not talking of suspending anyone from office since the Panel’s Report shall do appropriate justice on the matter.
It has to be noted that Exhibit 12 appointed the 1st Respondent the member of Kwara Ekiti Traditional Council and by Exhibit 13 dated 25th November, 2005, the Respondent was appointed and graded as a Third Class Chief by His Excellency the Governor of Kwara State with effect from 15th October, 2005. In accordance with this upgrading, the Kwara State printed a commemorative Diary to mark the Kwara State 40th anniversary.
In a letter dated 18th September , 2007 and marked Exhibit 20 to the further affidavit to the Originating Summons which letter was addressed to H.R.H OBA JOSHUA OYEBANJI AINA THE ELETAN OF ETAN, captioned ” RE-ETAN’. CHIEFTAINCY PROBLEM: SITUATION REPORT- FORWARDING OF ORIGINAL APPROVAL” With reference NO EKLG/TRC/S/vol.1/3/65″; the Ekiti Local Government Traditional Council was directed by the Ministry of Local Government and Chieftaincy Affairs vide letter REF MLGCA/CAI/51/S/4/I/4 dated 13th September 2007 to inform the 1st Respondent that the State Government White Paper on the Report and Recommendation of the Committee set up to look into the Chieftaincy, issue in ETAN had been released by His Excellency Governor Bukola Saraki.
The letter further informed the 1st Respondent that:-
1. He had been approved and recognized as the Eletan of Etan and hence should attend all activities of the council; “.
2. The Ekiti Local Government Traditional Council now recognizes His Royal Highness as the rightful Eletan as well as member of Ekiti Local Government Traditional Council; ,
3. That all the entitlements and allowances due him as member of the traditional council shall be worked out and paid in full to His Royal Highness.
The letter was signed by Prince Adeyemi T. Oyewole for the Chairman Ekiti Local Government Traditional Council. However, in a twist of events, the said Prince Adeyemi in another letter (Exhibit 21) dated 21st November 2007 annexed to the Further Affidavit in Support of the Originating Summons, 1st Respondent was directed to the Traditional Council by the Ministry of Local Government and Chieftaincy Affairs to stay action on the issues related to the Chieftaincy problem in Etan. According the said letter; the directive was sequel to a directive by the Ministry from the Office of Secretary to State Government vide letter Ref. No. S/POL/38A/ 111/239 dated 8th October, 2007.
It is pertinent to note that the 3rd and 4th Respondents in their Counter Affidavit to Originating Summons averred that the Kwara State Government has the Constitutional as well as Statutory powers to set up the said panel of inquiry into the Eletan Chieftaincy disputes at anytime to inquire into such disputes or any matters connected there to. The Governor according to them also has the statutory duty to make consultations with stakeholders before exercising discretion to recognize any party as a Chief and that consequently; the Governor sought and received advice on the Report of the Panel of Inquiry into the said Eletan chieftaincy dispute and the existing judgments of the various courts; in this respect the 2nd Defendant herein received an approved memo from the Office of the Deputy Governor on the Eletan of Etan Chieftaincy matter directing it to comply with the instructions contained therein. A copy of the said memo is annexed to the Counter-Affidavit and marked Exhibits MOJIA and MOJIB respectively.
Furthermore, because of the pending of the suit, the 2nd Defendant received a letter from the Office of the Secretary to the State Government asking it to stay action on all issues concerning the Eletan Chieftaincy matter. The letter is annexed to the counter affidavit and marked Exhibit MOJ 2. The document also averred that the State Government had received advice from: the 3rd Defendant on the Eletan of Etan Chieftaincy matter which advice is annexed and marked Exhibit MOJ 3 and that the 2nd and 3rd Defendants have not refused to be bound by the decisions of the Courts nor have they ignored such decisions and any Panel’s Report including the decision of the Court of Appeal. Finally the document disclosed that the Government is law abiding and rule of law compliant and will never do anything against Justice but for justice, good governance and for the development of the State and that in furtherance of the above objectives the State Government upgraded the classes of Chiefs in the State, the Eletan of Etan inclusive; and that the 2nd and 3rd Defendants have not removed the claimant as the Eletan of Etan. See paragraph 6(a) to (h) of the 3rd and 4th Respondents’ Counter Affidavit.
Now, Exhibit MOJI A from the office of the Deputy Governor to the Honourable Commissioner for Local Government and Chieftaincy Affairs dated 10th September, 2007 is captioned. “Re: ETAN CHIEFTAINCY PROBLEM: SITUATION REPORT FORWARDING OF ORIGINAL APPROVAL” and signed by A. M. Odutokun, Principal Private Secretary to the Deputy Governor States:-
“I am directed by His Excellency, the Deputy Governor of Kwara State Chief J. A. Ogundeji: to forward the attached original approval by His Excellency, the Executiye Governor of Kwara State, Dr. Abubakar Bukola Saraki on the above Chieftaincy issue for your attention and implementation accordingly please.” See page 24,4 of the Records ;
At page 245 of the Records the memo from the Office of the Deputy Governor which was forwarded by Exhibit MOJ1A is titled: “ETAN CHIEFTAINCY PROBLEM: SITUATION REPORT” and the contents thereof are hereby reproduced verbatim:
“1. A committee was set up by the State Government to look into the above Chieftaincy problem. The Committee has since completed its assignment and a Draft Government White Paper on the Report/Recommendations of the Committee has equally been produced and forwarded to the state Government for attention and further necessary action;
“2. FACTS/OBSERVATIONS
(i) That there are three recognized Ruling Houses in Etan- i.e. lloyan. Iremo and Isaoye; ,
(ii) That the problems started about 42 years ago;
(iii) That from available records, it is obvious that tradition has been perverted from the time Joshua Oyebanji Aina was installed as the Eletan of Elan. This is because in 1967 Court ruling in favour of Ezekiel Ogunleye and subsequent advice of the sole Administrator, Igbomina, Ekiti Division of December 31st 1969 that Joshua Oyebanji should not be installed; for the stool of Eletan was not vacant, has been followed by Oba Joshua Oyebanji Aina, there wouldn’t have been this problem;
(iv) That from available records; no Ruling House succeeds itself. Oba Aina’s succession (of his father) is seen as an aberration.
(v) That Igbomina/Ekiti Traditional Council recognized Joshua Oyebanji Aina as the Eletan of Etan;
(vi) That the Ekiti Local Government letter of 13th February, 2003 recognized Oba Joshua Oyebanji Aina as the Eletan of Etan.
(vii) That based on subsisting Court ruling the Ministry of Justice recognized Oyabanji as the rightful Eletan of Etan.
(viii) That to avoid contempt of the Court, Oba Joshua Oyebanji Aina is the rightful Eletan of Etan.
“3. The foregoing is submitted for Your Excellency’s attention and further directive, please.”
The above recommendation was made on the 31st July, 2007 but on the 8th day of October, 2007, the Officer of the Secretary to the State Government in a letter addressed to the Honourable Commissioner for Local Government and Chieftaincy Affairs informed the said Commissioner to stay action on the Eletan Chieftaincy Problem in Etan communities Ekiti Local Government.
It would be recalled that on the 22nd day of may, 2007, in Exhibit MOJ2, Alhaji Saka Isau SAN, the then learned Attorney-General of Kwara State had advised the Secretary to the State Government in a letter captioned “RE: SUSPENSION FROM EKITI LOCAL GOVERNMENT TRADITIONAL COUNCIL,” that having gone through the contents of the letter written by Adebayo Adelodun SAN & CO. as well as the 3 judgments delivered in respect thereof, it was discerned that the first judgment declared the Appellant a mere village Head of Etan responsible for tax collection and not holding himself out as Eletan, the second judgment of justice Banji Orilonishe struck out the suit of the Appellant for want of jurisdiction and the 3rd judgment which was an appeal to the Court of Appeal was also dismissed and N450 costs awarded against him.
Flowing from the foregoing the learned Attorney-General noted that Chief Ezekiel Ogunleye was never at any point appointed and installed as Eletan of Etan and that Joshua A. Jegede was the only recognized Eletan duly appointed in accordance with native law and custom of Etan people. It was also noted that the findings of the 3 man Panel set up by the State Government further confirmed the said Mr. Joshua Aina Jegede as the rightful Eletan hence should be accorded recognition.
On the ground that a decision of a court of competent jurisdiction not appealed against subsists for ever between the parties and the consequence of those judgments which is that in law and fact the said Mr. Joshua Aina Jegede was the rightful title holder of the Eletan of Etan, his suspension as a member of the Ekiti Local Government Traditional Council was declared null and void by the learned Attorney-General. In order therefore to save the state Government from embarrassment and contempt proceedings, he advised the suspension of Mr. Aina to be withdrawn. He finally advised that suspension order against Mr. Joshua Aina Jegede be withdrawn and the said judgment in his favour obeyed in their entirety, and as actions contrary to same be stopped with immediacy.
As I had said earlier the various findings of the Panels of Inquiry except the finding in Exhibit MOJ I A at page 245 paragraph 2 (i) – (iv) jettisoned truth and proceeded from the false premises that the judgment of Mohammed Bello, J. was in favlur of the 1st Respondent. The Legal Advice of the learned Attorney-General was also not spared the falsity of the claim of the 1st Respondent that any of the judgments beginning from Z29/1996 to that of the Court of Appeal ever declared him as the rightful person to ascend the throne of the Eletan. What is clear from the judgment of 1967 which is the basis of the claim and counter-claim is that as was rightly found in Exhibit MOJ 1A:-
1. There are three recognized Ruling Houses in Etan – i.e. Iloyan, Iremo and Isaoye;
2. That the tradition has been perverted right from when the 1st Respondent was installed the Eletan of Etan in utter contempt of the judgment of Mohammed Bello J and the subsequent advice of the Sole Administrator of Igbomina/Ekiti Division, which was not heeded to by successive governments culminating in the recent one of 2007 which ought to have righted the wrongs of past administrations, but the Government through the advice of the learned Attorney-General allowed itself to be bamboozled and cowed by the letter from Adelodun SAN, Learned counsel for the Appellant.
The lower Court on the other hand, did not help matters when it also proceeded from the established false premises to hold at page 352 of the Records following the submissions on Exhibit 4 by Counsel for the respective parties. Indeed the submissions by Dayo Akinlaja which to my mind is the correct position of things that the clear import of Exhibit 4 is that the claimant/1st Respondent is/was not entitled to vie for the stool, was quickly dismissed in favour of the submissions of A.O. Mohammed Esq. and Mrs. Funsho Lawal. Hear His Lordship:-
“I am in complete agreement with the contention of Mr. A. O. Lawal learned Claimant’s Counsel to which Mrs. Funsho Lawal conceded that Exh. 4 that’s being flaunted by the 4th Defendant as having entitled him to the throne of Eletan of Etan did not in any way suggest this line of reasoning”
With the greatest respect,- Exhibit 4 at page 43 categorically stated the obvious which the Court decided to pay blind eyes to that; “I accept the evidence of Dw2 and Dw5 that there are three ruling families. I find the number to be so “. The implication of this finding is that since the 1st Respondent whose father hailed from the Iloyan family and had as the last but one Oba joined his ancestors, by the rotational nature of the stool the next line or family to mount the throne should be Iremo where the Appellant hails from.
The learned trial Judge had quoted only the portion of the judgment of Mohammed Bello J of blessed memory that suited the case of the Plaintiff/1st Respondent while refusing to reproduce the foundation of any claim for now to the Eletan stool. Indeed if there is anybody who ought to have appealed against that judgment, it was the 1st Respondent whose privies claims were dismissed in their entirety to the extent that the basis of their claim that they were the only Ruling family in Etan was also roundly dismissed. His Lordship has alluded and quoted a portion of the; judgment extracted from pages 42 to 43 of the Records and went to wrongly posit again that there was nothing in that portion of Exhibit 4 to suggest as done by Mr. Akinlaja that the Claimant is not entitled to vie for-or lay claim to Eletan stool until the stool has rotated round the remaining two ruling houses after the demise of the claimant’s father.
Hear him again: “What exactly is that portion of the judgment in Exhibit 4 saying? That court accepts that it is more probable that the, Iloyans have always been the ruling family in Etan. But that from the Plaintiffs statement of claim and the evidence of the Dw2 and Dw5 it is clear that in emergency situations, regents have been appointed from other Ruling Houses as well. The issue here is whether the claimant is the lawful subsisting Eletan of Etan and not whether he ought not to have been appointed being the son of the last reigning Eletan.”
With the greatest respect, again the learned Mohammed Bello, J. did not use “the” to qualify “ruling family”: What His Lordship was saying is that Iloyan was not the only Ruling family in Etan and even if they were, and during expediency and emergency situations regents have been appointed from their lien only as they claim, there has been a departure from this practice. In other words, the fact that Regents have been appointed from other lineages supports the defence case that the Iloyan are not theory ruling family.
On the learned trial Judge’s holding that the claimant was the lawful subsisting Eletan of Etan and not whether he ought not to have been appointed being the son of the last reigning Eletan. With due respect again, since Exhibit 4 had held that the ascension to the throne is rotational and the 1st Respondent’s family had been adjudged not to be the only Ruling house, the logical conclusion is that no member of Iloyan not to talk of the son of the last Eletan shall succeed the late Eletan. Accordingly, to determine whether the Claimant is/was the lawful subsisting Eletan, he ought to come from the Ruling family! whose turn is to rule after the demise of the Eletan who hailed from Iloyan. Any appointment, recognition, confirmation and upgrading of the Eletan that violates this established custom is an aberration and to say the least a perversion of the; custom and tradition of the Etan people and ought to be declared null and void and of no effect.
In this case, since the judgment of Mohammed Bello J. has established that there are three Ruling, Houses and the 1st Respondent claimed that there is only one Ruling House (his Iloyan House) which claim had been dismissed, his suspension and indeed his outright removal ought to be effected forthwith and his claim dismissed with the ignominy it deserves. As I had, said earlier, all the purported judgments did not declare him as the Eletan. It was rather the various Panels of Enquiry who sat on appeal against the decision of Mohammed Bello, J; and declared him as such. As for the Appellant, even though Exhibit 4 held that he was not so appointed the Eletan and that he was a mere tax collector, that judgment and indeed subsequent ones culminating in the judgment of the Court of Appeal, merely struck out his claim for want of jurisdiction. None of those judgments held that there was-only one Ruling House in Etan and that the Appellant was not eligible to be crowned the Eletan. Accordingly, if Government is running away from contempt proceedings, it is already in contempt of the judgment of Mohammed Bello, J. by according the 1st Respondent the recognition as the Eletan whereas it is not his turn to be so crowned.
I agree therefore with the submission of Mr. Akinlaja on the authorities of Edokpolo & CO; Ltd v. Ohenhen (1994) 7 NWLR (Pt.358) 511 at 529; and High Grade Maritime services Ltd. v. First Bank of Nigeria Ltd v.(1991) 1 NWLR (pt.167) 290 at 308 that the Court below and indeed this Court ought to have drawn the reasonable inference that by the judgment in Exhibit 4, the 1st Respondent was not entitled to vie for the Eletan Stool and therefore he is not the lawful Subsisting Eletan under the custom and tradition of the Etan people. Again on the authorities of Rossek v. A.C.B. (1993) 10 SCNJ 20 at 41 & 42 and Babatunde v. Olatunji (2000) 2 SCNJ 26 of 33 and.34, the judgment of Mohammed Bello, J. in Exhibit 4 against which the 1st Respondent did not appeal is valid and subsisting as far as the issue of Ruling Houses which is the foundation of the respective claim and counter-claim of the parties, is concerned. In fact, the eases of Oshejevwedje v. Echanokpe (1987) 3 SCR. 5, a, 57; Akinfolarin v. Akinola (supra) and Onamade v. ACB (1997) 1 SCNJ 65 at 83; all cited by the 1st Respondent’s counsel, and the learned Attorney-General, for the 3rd and 4th Respondents all rather support the case of the Appellant.
There is no doubt as contended by the Respondent’s counsel that appellate courts are loathe to interfering with findings of a court of first instance which had the singular opportunity of watching and hearing witnesses in the course of trial. See Alhassan Maiyaki v. State (supra); IBWA Ltd. v. PAVEK Inter. Co. Ltd (supra); Kraus Thompson Org. Ltd. v. UNICAL (supra); ably cited by the learned counsel for the Respondents. But where as in this appeal, the case was fought by the Originating Summons process, which deals only with affidavit and documentary evidence this court is in as good a position to interfere particularly, where as in this case, the findings of the lower court are tainted with perversity and have occasioned serious miscarriage of justice against the Appellant. See Uzoechi v. Onyenwe (1999) 1 SCNJ 34 at 40 Adegbite v. Oguntaolu (1990) 4 NWLR (p.146) 578; ACME Builders Ltd. v. Kaduna State Water Board (1999) 2 SCNJ 25 at 50 and 57; Adimora v. Ajufo (1989) 3 NWLR (pt.80) at 1 and Okafor v. Idigo (1986) 1 S.C.1.
I agree also with the submissions of the learned counsel for the Respondents that evaluation of evidence is within the exclusive domain of the trial court but an appellate Court in this special circumstance can draw the necessary inferences from proved facts particularly from the documentary-evidence tendered by the 1st Respondent.
I have looked at all the documentary Exhibits tendered by the respective Respondents and I am of the view that-Exhibit 4 knocks off the bottom of the Respondent’s case so also are Exhibit MOJIA and MOJIB tendered by the 3rd and 4th Respondents.
Accordingly, Reliefs 1, 2 and 4 as, granted by the Court below to the 1st Respondent/Claimant as well as the order of perpetual injunction restraining the 1st – 4th Defendants, their Servants from appointing and recognizing the 4lh Defendant or any other person to the stool of Eletan of Etan and the 4th Defendant/Appellant from presenting acting or parading himself as the Eletan of Etan, is hereby set aside.
ISSUE 2 of the Appellant’s issues is resolved in favour of the Appellant and the question posed therein is answered in the affirmative.
ISSUE NUMBER 3: “WHETHER THE LEARNED TRIAL JUDGE WAS NOT WRONG IN DISMISSING THE COUNTER CLAIM OF THE APPELLANT? ”
In resolving this issue, it is only fit and proper to resort to the Reliefs sought in the Appellant’s counter-claim which are as follows:-
“1 A DECLARATION that there is no judgment of Court that has ever pronounced the claimant as the Eletan of Etan and there is no judicial basis for his recognition as such.
“2 A DECLARATION that on the fooling of the judgment of the High Court of Justice of Northern Nigeria in Suit No. Z29/1966 delivered on the 19 of 1st September, 1967 by Mohammed Bella. J; the claimant was/is ineligible to vie for the Chieftaincy Stool of Eletan of Etan immediately after the demise of his father, the stool being rotational between the three ruling houses of Iloyan, Iremo and Isaoye.
“3 A DELCARATION that the purported reports of the various Panels of Enquiry recognizing, the claimant as the Eletan of Etan and all governmental or administrative recognitions of the claimant as such are null, void and of no effect being in flagrant disregard and contravention of the decision in Suit No: Z29/1966 delivered on 19th September, 1967 by Mohammed Bello. J. as well as the native law and custom of Etan.
“4 A DELCARATION that the 4th Defendant/Counter-claimant being from the next ruling house after the demise of the Claimant’s father is entitled to be recognized at the expense of the claimant by the Kwara State Government as the rightful Eletan of Etan.
“5 AN ORDER restraining the Claimant from further parading himself as the Eletan of Etan or holding himself out as eligible for that office until the stool had gone through the other two ruling houses of Iremo and Isaoye.
“6. AN ORDER directing the Kwara State Government to present the staff of office of the Elelan of Etan to the 5th Defendant. ”
It would appear that from the extensive manner I had analyzed the documents tendered in proof of the claim of the 1st Respondent and my earlier holding that Exhibits 4 and MOJA1 had knocked off the bottom from the case of the 1st Respondent which, ought to have been dismissed by the lower court as I had1 done, Reliefs 1, 2 and 3 should automatically be granted just for the asking. I adopt my earlier position on Issue Number 2 in respect of Reliefs 1, 2 and 3 of the 5th Defendant/Counter-Claimant/Appellant and hereby declare as had earlier been done that:-
1. There is no judgment of any Courts that has ever pronounced the claimant as the Eletan of Etan and there, is no judicial basis for his recognition as such.
2. On the footing of the judgment of the High Court of Justice of Northern Nigeria in Suit No. Z29/1966 delivered on the’19th September, 1967 by Mohammed Bello, J. the Claimant/1st Respondent was/is, ineligible to vie for the Chieftaincy Stool of Eletan of Etan immediately after the demise of his father, the stool being rotational between the three ruling houses of Iloyan, Iremo and Isaoye. |
3. The purported reports of the various Panels of Enquiry recognizing the Claimant as the Eletan Except part of Exhibit MOJIA where it found that the Appellant was the authentic candidate who ought to be recognized as the Eletan by virtue of the judgment in Exhibit 4 which held that there are three Ruling families and that the 1st Respondent perverted the custom and tradition of the Etan people when he allowed himself to be crowned ‘-and subsequently recognized by successive Government of Kwara State; and indeed, all governmental or administrative recognitions of the Claimant/1st Respondent as such are null, void and of no effect whatsoever’ they being-in flagrant disregard and contravention of the decision in Suit No.Z29/1966 delivered on 19th September, 1967, by Mohamed Bello, J; as well as the native law and custom of Etan.
As for Reliefs 4 to 6, there is no doubt that as at 1966 and 1967 when Suit No.Z29/1966 was filed, heard and determined; the Appellant had been crowned by the Emir of Ilorin and recognized as the Eletan and Village Head in charge of tax collection. The learned Mohammed Bello, J. in his wisdom held that the Appellant was only appointed by the Emir find not in accordance with the custom of the Etan people. However, the learned eminent jurist of blessed memory did not rule out the possibility of the Appellant who hails from the next line of succession being crowned an Eletan, by his said judgment. In fact the Appellant had deposed in paragraphs 4, 5 and 9 and 9a that he is the legitimate Eletan of Etan and the one so recognized by a teaming majority of Etan Community and its citizens home and abroad while the Claimant has never been so appointed.
According to the Appellant, after the demise of the 1st Respondent’s father, it was the turn of the Iremo from “where he hails, to fill the stool and consequently he was presented by the Iremo Ruling House and subsequently installed by the Etan Kingmakers as the Eletan in accordance: with the tradition, custom and native law of Etan with effect from 19/4/1966 after performing the necessary rites. It was in that capacity that he was elected and recognized by the defunct Ilorin Native Authority as the Village Head and Tax Collector and sequel to this development the privies of the 1st Respondent tool: the Appellant, and some of his privies before Mohammed Bello, J. (as he then was) culminating in the judgment which held that he was not the Eletan he having not been appointed by any person or authority and that the Appellant who did not give evidence in (that case also did not hold himself out as such.
1. Accordingly, if the Court in 196” had held the Appellant not to be the Eletan, their except after 1967 he underwent a second coronation, his claim that on the 19th April, 1966, he was installed as such hat; been voided by the judgment in Exhibit 4. It seems to me also that by the doctrine of estoppel, that “interest rei pbulicae ut sit finis litium” he should not re-litigate that issuer again.”
However, this is not to say that his Iremo family cannot represent him for subsequent installation, however, they do it, for by virtue of Exhibit 4, it is the turn of the Iremo family to succeed to the throne of the Eletan.
I therefore agree with, the reasoning of the learned trial Judge that the Appellant did not appeal against the portion of the judgment of Mohammed Bello, J. which declared him as not having been appointed as the Eletan. I am also in tandem with the learned trial Judge that that portion of the judgment is subsisting and valid but it does not confer title of the Eletan automatically, on the 1st Respondent in view of the finding that there are three Ruling families in Etan and his father from his Iloyan family was the last but one Eletan.
I do not subscribe to the argument of the learned Dayo Akinlaja Esq and the authorities cited Me Ajiboye, v. Isola (2006) All FWLR (pt. 331) 1209 at 1222 – 1223; Obasi Ibenye v. Abraham Agwu (1998) 9 SCNJ at 14 and Balogun v. Afolayan (2002) FWLR (pt. 85) S31 at 345; which may have been decided on their peculiar facts and circumstances), that the issues in Suit Number Z29/1966 and the present suit are not the same as far as who was appointed or who has better title to the Eletan stool is concerned.
If the court below had held that the Appellant was appointed the Eletan by native law and custom then he would have had better title in this case.
From the totality of the facts of this case, it is clear that the last has not been heard of the Eletan Stool and both the 1st Respondent and the Appellant for now cannot clap to be the Eletan since the 1st Respondent in the first place is disqualified by the judgment of Mohammed Bello, J. from vying for the Eletan Stool and the same judgment had declared that the Appellant was not appointed Eletan by anybody or authority.
It follows therefore that the Eletan Stool is still vacant and 1st Respondent and Appellant are mere pretenders to the throne. I do not subscribe to the submissions of the 1st Respondent that the Court below was right in dismissing the counter-claim in its entirety. The if three reliefs of the counter-claim are well founded in that as we have held earlier, Exhibit 4 and indeed 5, 6, 7 did not confer title to the throne of Eletan on the pIaimant/1st Respondent. The claim of the Appellant in these respects were as he had rightly submitted through his counsel, the corollary of the Declaratory Reliefs sought by the Claimant particularly Reliefs 1, 2, 3, 4, 8 and 9.
The question of statute of limitation does not arise and in this case where the 1st Respondent revised the issue: of the Iloyan family as the only ruling house which had been determined since 1967, the Defendant/Counter-Claimant could not have folded his hands and waited helplessly without proffering any defence or counter-claim. In any case; this is a case of who by custom is entitled to the stool of the Eletan and where the claimant claimed that judgment in Exhibits 4, 5, 6 and 7 declared him Eletan which is not the case, the Appellant has a right to counter-claim the contrary.
Talking about validity and subsistence of judgments and the authorities of E.E.N.C. Co. v. A.G. Kaduna-State (supra and Akinfolami v. Akinmola (supra) cited by the learned counsel for the 1st Respondent just as the Appellant is bound by the portion of Exhibit 4 on his not being appointed Efetan, so is the 1st Respondent bound by those portions that declared that there are three Ruling families such that if he reopens the case the Appellant is bound to counter-claim. See the dictum of Uwaifo JSC. In Aremo II v. Adekanye at page 236 – 2:17 since the Respondents claim that the claim of the 1st Respondent was merely challenging the suspension of the 1st Respondent.
The justifiability vel non of the suspension of the Claimant/1st Respondent/Cross Respondent cannot be decided without going into the antecedents of the Eletan Chieftaincy dispute particularly as it relates to Exhibit 4 and the so called judgments and the various Parties of Inquiry-Reports which purportedly settled the matter of the Eletan to finality. If the Appellant had lost the cause of action 34 years ago, the 1st Respondent who in the first place has no locus standi to file this action since his Iloyan family is not supposed to ascend the throne, has thrown up a new cause, of action to warrant the Appellant to counter-claim. Relief Number 4 of the Counter-Claim shall therefore fail only on the basis that the Appellant claimed that he was entitled to be recognized as the rightful Eletan since Exhibit 4 has ruled that he was not so appointed.
As for Relief Number 6, having failed to establish the fact that he was the rightful Eletan, Exhibit 4-having held that he was not so appointed, it shall also fail. This is because the staff of office cannot be presented to any person who has not been appointed Eletan by the Kingmakers or any authority.
I am however inclined to granting and hereby grant Relief Number 5 which prays for an order restraining the Claimant/1st Respondent from further parading himself as the Eletan of Etan or holding himself out as eligible for that office until the stool had gone through the other Ruling Houses; for that in the purport of the judgment in Exhibit 4 which declared that Iloyan is not the only Ruling House in Etan Community but that there are other two – Iremo and Isaoye Ruling Houses.
The Appeal of the Appellant/Counter-Claimant therefore partly succeeds. The counter-claim is rot entirely incompetent as was held by the learned trial Judge and I will therefore answer the questions that called for determination in the Originating Summons as follows:-
Question 1:- In the negative in so far as the Panel’s were set up and came up with findings which were a flagrant disregard and contravention of the judgment in Suit No.Z29/1966.
Question 2::- In the negative but neither the judgment of the High Court nor the Court of Appeal conferred the Claimant/1st Respondent with the right to ascend the throne of the Eletan. If anything it is the Appellant who ought to be the Eletan by virtue of the decision in Exhibit 4 that there are three Ruling House which houses rule in rotation and the Appellant’s Iremo Ruling House is the next to produce the Eletan since the Claimant’s father hailed from Iloyan and it has been established that the children of Eletan do not succeed their fathers.
Question 3:-In the affirmative on the ground that since the 1st to 4th Defendants have the constitutional and statutory powers to upgrade and accord recognition they also have the power to downgrade, withdraw such recognition or suspend the Claimant and set up a Panel to lock into disputes on Chieftaincy matters and in particular the Eletan Stool occupant. :
Question 4:- there was no finality in the decisions of the High Court and Court of Appeal on the Eletan Stool which was in favour of the 1st Respondent and even if the 1st Respondent had occupied the Stool for donkey years, where such occupation has been found to be in flagrant contempt pf the decision of a Court of competent jurisdiction like Exhibit 4, such occupation is null and void and the Government can suspend or remove out rightly such an impostor like: the Claimant and this will be justifiable. My answer is therefore in the affirmative.
Question 5:- The answer is in the affirmative.
Question 6:-;. The answer is in the, negative but where they discover that the Claimant is occupying the stool fraudulently and not in accordance with native law and custom, the claimant as was rightly done here can be suspended and indeed should be removed and this will not tantamount to refusal to be bound, ignoring, side tracking, reviewing or setting aside a decision of the Court of Appeal on the Stool of Eletan. From the foregoing, Reliefs 1, 2, 3, 4, 5, (a) – (c). 6-7, 8, 9, 10 and 11 are hereby refused and if any was granted by the court below it is hereby set aside. This Appeal I reiterate shall succeed in part and the claim of the Plaintiff is hereby dismissed in its entirety and I make nr order as to costs.
CLAIMANT/1ST RESPONDENT/CROSS-APPELLANT’S CROSS APPEAL
Having so pronounced above as done, the Cross-Appeal becomes academic but in the interest of Justice however, we shall consider same for whatever it is worth. It would be recalled that the two Grounds of the grouse of the Cross-Appellant are predicated on the refusal of the Court below to grant reliefs 3, 5, 6 and 10 of the Claimant’s claims? and accordingly, he had formulated a sole issue for determination in the following terms:-
WHETHER THE .LEARNED TRIAL JUDGE WAS RIGHT IN REFUSING TO GRANT RELIEFS 3, 5, 6 AND 10?
Arguing the Issue, the learned counsel for the Cross Appellant submitted that reliefs 3, 5, 6 and 10 of the reliefs claimed would have been granted if the Court had properly evaluated the evidence placed before it particularly Exhibit 21 attached to the Further Affidavit Citing The Military Governor Ondo State v. Kolawole (2008) All FWLR (pt.446) 1085 at 18201- 1821 and Agbabiaka v. Saibu (1998) 7 SCNJ 305 and Ogunbiyi v. Ishola (1996) 6 NWLR (pt.452) 12, he contended that it is the fundamental duty of the trial Court to evaluate evidence and ascribe probative value thereto. He referred to the decision of the learned trial judge at page 360 where it was held that:-
“The issue for determination i.e the suspension of the Claimant from office has already beef over taken] by event following the lifting of the suspension order on the Claimant, by the 1st Defendant. Therefore, I cannot grant reliefs 3, 5, 6, and 10 bought by the Claimant.”
It was further contended that at page 188 of the Record, the Further Affidavit to which Exhibit 21 was attached deposed that the said document was issued after Exhibit 20 and stayed all actions on the issues that involved Exhibit 20. Learned Counsel; further cited Chukwuma v. Anyakora (2006) All FWLR (pt. 302) 121 at 141 and Ojukwu v. Kaine (1997) 9 NWLR (pt.521) 613 to assert that where the trial court failed to evaluate the evidence the Court of Appeal can do that which the trial court failed to do as documents are not tendered for fun but are tendered with the expectation by the party that the court would consider, same to come up with meaningful determination for the purpose it was tendered.
He further argued that by Exhibits -12. 14, 16 and 19 attached to the originating summons it was clear that the defendants Or anybody at all could not re-open or purport to suspend issues relating to the Eletan Chieftaincy stool because the issue was finally settled by the Court of Appeal. Thus, Exhibit 21 which suspended the issues according to him was an affront on the Judiciary under section 6 of the 1999 Constitution which is that the Executive has no power to upturn or revisit a decision of a court. He took a further view that Exhibit 21 is a nullity in view of the administrative panels and Court of Appeal and High Court decisions on the Eletan stool and the implication of same is that the Court below having granted reliefs 1, 2, and 4, had invariably granted reliefs 3, 5, 6 and co.
Thus, according to him, because the court having held the Cross Appellant is the lawful and legal Eletan of Etan and should be so recognized by the Defendants and that the Defendants cannot refuse or ignore, side track review and/or set aside the decision of the High Court and the Court of Appeal on the Eletan stool the implication is that any act by the Defendants purporting to suspend or put on hold the exercise of the Cross Appellant’s office as in relief 5 and all actions done in pursuance of the letters in reliefs 5 as well as in reliefs 6 becomes null and void as one cannot put something on nothing Ladoja v. INEC (2007) ALL FWLR (pt. 377) f 34 refers. He finally urged us to hold that the trial judge was not right in refusing to grant reliefs 3, 5, 6, and 10 on the ground that the suspension of the Cross-Appellant had been lifted through Exhibit 20.
In his reply to the submissions of learned counsel for the 1st Respondent/Cross Appellant, Mr. Akinlaja for the Appellant/Cross-Respondent conceded that the learned trial judge was wrong to have held that the suspension of the Cross-Appellant had been lifted having regard to Exhibit 21. He however countered that the submission in the Cross-Appellant’s Brief that the issue of Eletan Chieftaincy has already been finally settled is fallacious in the extreme reiterating that there is no Judgment of any court that has pronounced the Cross-Appellant as the lawful Eletan. Administratively, he maintained, by the Cross-Appellant’s unequivocal admission in his brief, Exhibit 21 in this case has the effect of putting on hold a final decision on all issues, relating to that Chieftaincy and that the issue of Eletan Chieftaincy can only be said to have been settled as far as the decision in Exhibit 4, which is the only judgment that has decided the issue of the Eletan op its merit, is concerned. The learned counsel for the Appellant/Cross-Respondent also pointed to the admission by the learned, counsel for the Cross-Appellant that the executive arm of government has no constitutional power to upturn or revisit a decision of court submitting that this being the case the Cross-Appellant has been caught in the web of his own argument as the implication is that all the faovurable reports of panel of inquiry and governmental recognitions allegedly given to the Cross-Appellant as Eletan pale into insignificance as they cannot dislodge the decision in Exhibit 4. He recalled that exhibit 4 decided that Eletan chieftaincy rotates amongst tee Ruling Rouses and therefore the Cross-Appellant cannot rightly lay Cain, to the chieftaincy immediately after the demise of his father without allowing, two other ruling houses the benefit of having their turns.
Accordingly, it was contended by the learned counsel for the Appellant that the learned trial judge should not have declared the Cross-Appellant as the lawful Eletan and reliefs 1,2, and 4 ought not to have been granted and ipso facto there can be no basis for the grant of his reliefs 3,5,6, and 10 as well. He urged us to hold that in the light of the above all reliefs claimed by the Cross-Appellant, ought to have been dismissed. Finally, the learned counsel for the Appellant also urged us to dismiss the prayer in the Notice of Appeal more particularly as the Grounds touching on prayers 7 and 8 of the Cross-Appellant’s claim were abandoned.
As usual, the learned Attorney-General on behalf of the 3rd and 4th Respondent conceded to the Cross-Appeal that the learned trial judge was wrong to have concluded .hat the suspension of Cross-Appellant had been lifted if the cons of Exhibit 20 and 21 are juxtaposed as it would reveal that Exhibit 21 stayed and superseded all actions on all issues that involved Exhibit 20.
The learned senior counsel agreed with the Cross-Appellant’s contention that if the court below had evaluated all the evidence properly placed before it, the effect of the Exhibit 21 on all the judgments of the courts of competent jurisdiction, especially Exhibit 4, the court would have held that Exhibit 21 is an affront, on their jurisdictions and declared same as null and void and of no, effect whatsoever as far as the stool of Eletan was concerned.
Citing Mogaji v. Odofin (1978) 4 S.C. 91 at 93 and Osuji v. Ekocha (2009) Vol. 7 M. J.S.C. (Pt.11) 74 at 108 – 109 paras. G-A, he reiterated the submissions of the learned counsel; for the Cross-Appellant on the duty of the court below to evaluate all evidence before it and ascribe probative value to each. He also adopted all their submissions on issue number one of the Appellant. The learned Attorney-General also took the view that where the trial court shut its eyes to Exhibit 4 and the effect it has on Exhibit 21, its decision as perverse. Osuji v. Ekeocha (supra) at page 110 paras D-G and Uzuda & 2 Ors. v. Ebigah & 2 Ors (2009) 7 MJSC (pt.II 48 at 59-60 paras B-D were again referred to in submitting that the Court of Appeal has a duty to interfere with the findings of |he trial court in respect of the Cross-Appeal.
Finally the learned Attorney-General relied still on Osuji v. Ekeocha Supra at page 115 paras G-C to submit that once the trial court concluded that the claim of the Cross-Appellant succeeded then all the reliefs proved especially reliefs 3, 5, 6, and 10 thereof, ought to be granted. He therefore urged us to allow the Cross-Appeal in terms of his prayers.
There is no doubt and the law is settled on a plethora of authorities too numerous to mention and all the Respondent/Cross Appellant and 3rd and 4th Respondents/Cross-Respondents submissions are well grounded that it is within the province of a trial Court; to evaluate dispassionately all evidence elicited by parties to a case in order to do justice and arrive at an efficacious judgment: In so doing, the celebrated cases of Mogaji v. Odofin (1978) 4 S.C 91 at 93 and Osuji v. Okeocha (supra) cited by the learned Attorney-General and Military Governor Ondo State v. Kolawole (2008) ALL FWLR (Pt. 446) 1805] at 1820-182, Agbabiaka. v. Saibu (1998) 7 SCNJ 305 and Ogunbiyi v. Ishola (1996) 6 NWLR (Pt. 452) 12 cited by the Learned counsel for the Cross- Appellant are very instructive. The authorities all gravitate to the settled principle that it is the duty of a trial court to evaluate the totality of the evidence placed before it in order to come to a just determination of the case of the parties. In Military Governor of Ondo State v. Kolawole (2008) 35 NSCQR 506 at, 530-31 Mohammed JSC; who delivered the lead judgment of the Supreme Court posited on this principle that:-
“It is trite that when it comes to evaluation and ascription of probative value to evidence placed before a trial court, that court has the fundamental duty to do so. Rarely do appeal courts interfere except special circumstances exist.”
As was held per Oputa J.S.C in Odofin v. Ayoola (1984) 11 S.C 72 at 120-121, where there is evidence in support of a particular fact or conclusion of the trial court, an appellate court which should have come to a different conclusion on the same evidence should respect the conclusion of the trial court that saw and heard the parties. However, the situation is different where the sole question is the inference or deduction from agreed or proved and uncontested facts. The Appellate court is in as good a position as the trial court: to draw any inference logically arising from accepted facts. This is because the role of appellate courts is not to try cases but to review what transpired at the court of first instance in order to find out whether on the facts, the issues the findings and the applicable law, the trial court reached a right decision.
Now the contention of the learned counsel for the Appellant and the basis for his calling on us to re-evaluate the content of Exhibit 21 to his Further Affidavit is that the learned trial Judge did not evaluate same arid that if he did, he would not have held that the content of the said letter has been overtaken by events since his suspension had been lifted by Exhibit 20. I harbour no doubt that the learned trial judge was oblivious of the content of the said Exhibit, which content, I had already reproduced. But even at the risk of repetition and for purposes of putting the record straight, it is necessary to reproduce the pleadings of the Cross-Appellant in this respect. In paragraphs 4,5,6,7 and 8 of the Claimant/1st Respondent/Cross-Appellant’s Further Affidavit in Support of the Originating Summons the said Cross-Appellant averred inter alia:-
“4. That I know as a fact that in the course and during the pendency of this action, another, letter dated 18th September, 2007 was served on me by the same 1st Defendant. A copy of the letter is hereby attached and marked as Exhibit 20.
“5. That 1 know as a fact that the summary of the contents of the said letter is that my position as the rightful Eletan of Etan has further been re-affirmed by the present Government.
“6. That pursuant to the said letter above, 1 started attending the meetings of the 1st Defendant and was paid all my salaries and allowances earlier withheld as a result of Exhibit 15.
“7. That sometime in November, 2007 1 received another letter dated 1st of November, 2007 from the 1st Defendant to the effect that “a stay of action on all issues”, has been directed by the Secretary to the Kwara State Government. A copy of the letter is hereto attached and marked as Exhibit 21.
“8. That it was when I was about to instruct my counsel to withdraw this action pursuant to Exhibit 20 that I received Exhibit 21; and from the foregoing averments he came to the conclusion in paragraph 9 of the further-affidavit that someone is meddling and playing politics with the traditional institution of Etan people.”
It has to be noted that the reliefs the refusal to grant which has necessitated the Cross-Appeal against the judgment of the trial Court are set out in page 14 of the Records, and as the learned counsel have rightly observed, the learned trial Judge wasactually in error to have glossed over the effect of Exhibit 21 which suspended or in the exact words of the author “informed the 1st Respondent/Cross-Appellant of a stay of action on all issues relating to the above subject-matter (RE-CHIEFTAINCY PROBLEM IN ETAN COMMUNITY IN EKITI LOCAL GOVERNMENT AREA), ” inspite of Exhibit 20 which had earlier reinstated the 1st Respondent/Cross-Appellant.
Turning to the Reliefs in question they are couched as follows:-
“3. A DECLARATION that the Defendants whether acting jointing or severally cannot suspend the claimant or put on hold the exercise of the functions of his office as the Eletan for no just cause.
“5. AN ORDER setting aside as null and void the following letters:-
(a) Letter reference No. EKLG/TRC/S/Vol.11/3/51 dated 25th April, 2007 and captioned “Re-Grading and Member of Ekiti Local Government Traditional Council, Kwara State.
(b) Letter reference No: MLGCA/CHI/51/S.41/72 dated 17th May, 2007 and captioned “Re-suspension from Ekiti Local Government Traditional Council. ” And
(c) Letter reference No.EKLG/TRC/S/03/Vol.I/7, dated 18th May, 2007, captioned “Re Salient Point for consideration in respect of H.R.H Eletan of Etan and Onikerin of Ikerin-Opin.
“6. An Order setting aside any action or thing done pursuant to the said letters by the Defendants.”
“10. AN ORDER directing the 1st to 4th Defendants to pay the Claimant’s withheld salaries, all allowances and all perquisites of his office and position as the Eletan of Etan with effect from April, 2007.”
The letters and documents which the Cross-Appellant sought to be set aside are Exhibits 15, 17, and 18 annexed to the Affidavit in Support and as noted earlier, Exhibit 15 informed tie Eletan (then the Cross-Appellant) of the disputed stool which had been the subject of subsequent Panels of Inquiry by the State Government which latest Panel was yet to release its report. In view of that development, the 1st Respondent/Cross-Appellant was informed of his suspension from Ekiti Local Government Traditional Council pending the final decision of the State Government on the issue.
Sequel to the above letter dated 25th April, 2009, Adebayo Adelodun (SAN) & Co., his Solicitors, wrote to the Chairman of the Ekiti Local Government Council, Osi which letter is dated 30th April,.2007 and copied the Honourable Commissioner for Justice and Attorney-General, and the Honourable Commissioner for Local Government and Chieftaincy-Affairs creating the false impression that suit NO.Z/29/1966 and all other subsequent decisions of the High Courts and Court of Appeal recognized his client (the Cross- Appellant) as the legitimate Eletan and that there was no dispute to the stool. In the words pf the learned SAN which have been replicated in their argument herein, the directive to suspend the Cross- Appellant was according to him bereft of any legal foundation and cannot stand as it was a direct slap on the face of a Court of competent jurisdiction whose decisions they then pretended to review contemptuously. He reminded them that neither the Ministry of Local Government and Chieftaincy Affairs, nor any other authority for that matter has the power, to override a Court decision, let alone donate such powers to the authorities aforesaid.
Accordingly, he demanded for a withdrawal of the said letter of suspension and restoration of the Cross-Appellant’s membership of the Ekiti Local Government Traditional Council, within 7 days failing which they filed the suit which has culminated in this Cross-Appeal.
Happily, the Honourable Commissioner for Local Government and Chieftaincy Affairs took ‘the right decision in sticking to the guns of the authorities by writing Exhibit 18 suspending the two rivals Aina and Ogunleye from attending the Ekiti Traditional Council activities with a promise to restoring same to the appropriate party as soon as the Panel’s report was out or released by the Government. Even then, the authorities through that letter were still magnanimous in not suspending him from his office as the purported Eletan inspite of the illegal manner and the faulty foundation upon which his ascension to the throne was built in view of the judgment in Exhibit 4.
I had earlier while considering Issue Number 2 held the view that by setting up the last commission of inquiry the Kwara State Government, under the able leadership of the present Governor, ought to have righted the wrongs of the past, especially where the last Panel found out in the memo accompanying Exhibit MOJIA at page 245 of the Records in paragraph 2 (i), (ii), (iii) and (iv) thereof that:-
(1) There are three recognized ruling houses;
(2) The problems started about 42 years ago;
(3) From available records, it was obvious that the tradition of the Eletan people had been perverted from the time Joshua Oyebanji Aina was installed as Eletan of Etan. This is because in the 1967 judgment which has been touted by the Cross-Appellant as conferring on him the right to the Eletan stool, was in favour of Ezekiel Ogunleye and subsequent advice by the sole Administrator, Igbomina Ekiti Division of December 31sl 1969 that Joshua Oyebanji Aina should not be installed,for the stool of Eletan was not vacant; fell on deaf ears as the said Aina and successive governments flouted the decision of the said 1967 decision which has bred the protracted Chieftaincy dispute;
(4) From available records, no Ruling House succeeds itself and Oba Aina’s succession of his father was seen as an aberration.
Rather than implement these findings and give to Ceasar what belongs to him, the Learned Attorney-General (then Alhaji Saka Isau) pandered to the whims and caprices of the Cross-Appellant and proceeded in my humble view and” with the greatest respect, to misadvise the Government to lift the suspension on the Cross-Appellant on the false premises that the judgment of Mohammed Bello, J..(as he then was), Banji Orilonishe, J, of the Kwara State High Court, and the Court of Appeal were never appealed by Ezekiel Ogunleye and therefore binds him in perpetuity as far as the Eletan was concerned.
Accordingly, he recommended in his legal advice that Joshua A. Jegede was the only recognized Eletan of Etan duly appointed in accordance with custom and that the findings of the three man Panel which Report is not made available to us, found out or further confirmed that the Cross- Appellant is/was the rightful Eletan of Etan who should be accorded recognition. Consequent upon the above recommendation, he submitted as the Cross-Appellant has done, herein, that the law is that a decision of a Court of competent jurisdiction not appealed against or which appealed against has not been set aside; subsists forever between the parties. It therefore according to him, follows that Joshua Aina Jegede had been conferred by the above decisions of the courts in law and in fact, with the title and indeed was the rightful holder of the title of Eletan of Etan and his suspension was ordered to be illegal, null and void. In order to save the State Government from embarrassment and contempt proceedings, the suspension was directed or ordered to be withdrawn forthwith as his candid advise was that the Court judgment delivered in favour of Joshua Aina Jegede be obeyed in its entirety and all actions contrary thereto be stopped immediately.
Pursuant to this legal advice, the Ekiti Local Government Traditional Council proceeded to write Exhibit 20 purporting that the State Government’s White Paper on the Report and Recommendations of the Committee set up to look into the Chieftaincy issue in Etan had been released by His Excellency, the Governor and accordingly the Council was directed to approve and recognize the Cross-Appellant as the rightful Eletan of Etah and Council restored his attendance to all Traditional Council activities that was put on hold, recognized him as the rightful Eletan of Etan as well as member of the Council and restored all his entitlements and allowances due him as member during the period of his absence from Council.
However, since truth is not measured by majority votes nor can be buried no matter how one tries, the open wounds in the consciences of well meaning persons within the Government circles seared for justice, thus necessitating the last correspondence between the Local Government Traditional Council and the Cross-Appellant dated 21st November, 2007 to the effect that action on all issues relating to the Chieftaincy problem in Etan Community be stayed and that further development on the issue shall be communicated to him. The directive rightly in my view, came from a letter from the Office of the Secretary to the State Government vide letter Ref. No. S/Pol/38A/111/239 dated 8th October, 2007. See also Exhibit MOJIB to the Counter-Affidavit of the 3rd and 4th Respondents dated October 8, 2007.
As rightly posited by the Learned Counsel for the Cross-Appellant, that letter superseded every other letter earlier written to the Cross-Appellant and indeed the false premised Legal Advise of the Learned Attorney-General. The learned trial Judge was therefore wrong to have relied on the contents of Exhibit 20 which had been superseded or overtaken by Exhibit 21 to hold at page 359 as he did that:-
“From the above, I am tempted to think that there is no reason why I should again waste my precious time in determining the issue which to me has become mere academic. It is not the practice of the Court to engage in academic or futile exercise or to act in vain…” At page 360 lines 12-15 he concluded:- “The issue for consideration i.e suspension of claimant from office has already been taken over by event following the lifting of the suspension order on the claimant by the 1st Defendant. Therefore, I cannot grant reliefs 3, 5, 6, and 10, sought for by the claimant. ”
There is no doubt that on the authorities of Dr. Adebusuyi v. Hon. Babatunde Adeoye & 2 Ors. (2004) INWLR 406; Dantata v. Consolidated Resources Ltd. (2005) ALL FWLR (pt. 280) 1474 and 1489; the question of suspension of the claimant would have been over taken by events since Exhibit 20 was written during the pendency of this suit at the High Court and Council had taken steps to restore the Claimant back to his position as member, besides paying him all arrears of his entitlements.
However, with the reception of Exhibit 21, the lifting of the suspension was put on hold. I agree with the submission of the, learned counsel for the Cross-Appellant that under normal circumstances by virtue of Sections 6 and 287 of the Constitution of the Federal Republic of Nigeria 1999, no authority, be it executive or legislative can review the judgment of a court of competent jurisdiction. As I said in Accord Party (AP) & 4 Ors. v. the Governor of Kwara State & 2 Ors. The judgment of this Honourable Court in Appeal No. CA/IL/15/2008; court delivered on the 8th day of June, 2009; in a constitutional j order like ours, the judiciary is an independent pillar of the State constitutionally imbued with the mandate to exercise judicial authority of the State fearlessly and impartially and under the doctrine of Separation of Powers which we practice in this country, that organ or arm of Government stands shoulder to shoulder with the executive and Legislative pillars of State. Notwithstanding that in political, financial and military strength, it is the weakest of all the three, yet its manifest independence I and authority are essential and accordingly, there is the growing need especially in our polity today, to insulate the integrity, dignity and sacrosanct of judicial decisions and the Rule of Law against Governmental erosion. This is the essence of the emphatic provisions of sections 6(6)(a) and (b), .272(1) and 287 of the Constitution of the Federal Republic of Nigeria which by the protection and powers conferred on the Court command peculiar resonance.
As have been rightly noted by the learned counsel for the Cross-Appellant and the Attorney-General in their respective correspondences and briefs in this case, law courts have always deprecated the erosion of their powers and may visit such flagrant disobedience as have been demonstrated by the Cross-Appellant nay successive Governments of Kwara State and the Local Government Traditional Council in going ahead to recognize, confirm and upgrade an Oba whose family is not supposed to ascend the throne of the Eletan of Etan, after Mohammed Bello, J. of blessed memory had held that there are three Ruling families in Etan as against the claim of the Cross-Appellant’s privies in 1966/1967 and now in 2007; that their Iloyan Royal family is the only Ruling House. See Vaswani v. Savalakh (1977) ANLR (Reprint) at 922; Military Governor Lagos State & Ors. v. Chief Emeka Ojukwu (1986) ANLR (Reprint) 233; The Registered Trustees of Apostolic Church v. Owolemi (1990) 6 NWLR (Pt.159) 514 and Bazil O. Ezeagbu & 1 Or. v. First Africa Trust Bank Ltd. & 1 Or. (1992) 1 NWLR (Pt.220) 699; per Tobi JCA (as he then was).
In the appeal at hand, it is rather the Cross-Appellant and his Cohorts in government who have refused to abide by the judgment of Mohammed Bello, J. which is the fundamental basis of his ascension to the throne and eventual recognition and confirmation by successive governments. I repeat and in total agreement wit the learned counsel for the Appellant, even at the risk repetition for the umpteenth time, that none of the judgments in Exhibits 4, 5, 6, and 7 ever conferred or had held the Cross-Appellant as the lawful Eletan of Etan and even if all the administrative Panels had recognized him as the lawful Eletan, such recognitions were inconsequential and mere figments of their imaginations and consequently null and void and of no effect whatsoever, as I had earlier held.
In the same vein, any Panel of Enquiry which accorded or accords with the judgment of the High Court of North Nigeria by Mohammed Bello, J. as in paragraph 2(i-iv) of the Memo attached to exhibit MOJA1, will simply be implementing the right decision of the court which is that there are three Ruling families in Etan and if the Appellant had or will put his house in order he even has better title to the Eletan for now, be being a descendent the Iremo Ruling House which has been recognized from records and decision of a Court of competent jurisdiction, to be next in the line of succession to the father of the Cross-Appellant the last but one Eletan who had joined his ancestors in 1964.
The implication of this development is that Exhibits 15, 17, 18 and MOJIA and MOJIB, all correspondence culminating in Exhibit 21 which suspended the Cross-Appellant and put on hold his attempted restoration and recognition, were justifiable and in tandem with the provisions of Sections 6(6)(a), 272 and 287 (3) of the 1999 Constitution. Indeed, section 287(3) which is of direct relevance to us here, stipulates in unequivocal terms that: – “287(3) The decisions of the Federal High Court, a High Court and all other courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons, and by other courts of law with sub-ordinate jurisdiction to that of the Federal High Court, a High Court, and those other Courts, respectively.”
In the Ezeagbu v. First Africa Trust Batik case (supra) at pages 736-737; paras. B-D; Kalgo, J.C.A, (as he then was) in his contribution on the vexed issue of flagrant erosion of judicial powers, bluntly and succinctly admonished Courts confronted with such scenario in these words:-
“What then is the remedy of the Court where it finds itself in this situation? I have earlier said that any court found in the same situation would frown against it. I also add that the Court must in addition take positive mandatory act in order to instill judicial discipline on the erring party and in order to maintain, restore and preserve the dignity of the Court. This includes the undoing of all that has been done by the erring party irrespective of what the Court will decide on the merits when the matter is properly heard.”
I shall add that this admonition is not applicable only to the courts but to every person and authority who by section 287(3) of the 1999 Constitution, is enjoined mandatorily to enforce the judgments/decisions of a High Court anywhere in this country. By undertaking to undo what has been wrongly done for the past forty-two years, the Government of Kwara State and the Local Government Traditional Council through the instrumentality of the Secretary to the State Government and the Honourable Commissioner for Local Government and Chieftaincy Affairs are merely implementing these Constitutional provisions for purposes of peace, tranquility, good governance and development of not only the Etan Community but the State in general. They cannot therefore be contemptuous of the judgments of the various courts as purported by the learned counsel for the Cross-Appellant in both their correspondence and arguments in the respective Briefs filed by them in this court since none of those judgments even accorded the Cross-Appellant the rightful title to the Eletan or disqualified the Appellant from the stool which in any case is the turn of his family to ascend.
It would therefore tantamount to the Cross-Appellant, violating the law serially and then turning round to accuse an innocent person. He should therefore not be allowed to continue to benefit from his iniquitous and illegal breach of the judgment in Exhibit 4 to his Originating Summons. The authorities of Ladoja v. INEC (2007) All FWLR (Pt.377) 6 and others cited in the course of his arguments on this appeal and Cross-Appeal, should rather work against him. It must be emphasized as was held by the Supreme Court, that evaluation of evidence involves reviewing and criticizing the evidence elicited and estimating them as any decision arrived at without proper evaluation cannot stand. Evaluation of evidence has also been held not to stop at assessment of credibility of witnesses but as in this case fought through the Originating Summons, it also entails a consideration of the totality of the evidence including documents tendered by parties. In Basil v. Fajebe (2001) 4 S.C.NJ. 257 at 268 S.C. at page 279 lines 20 -25. The learned Justices of apex Court emphasized on the need for trial courts to act on evidence adduced rather than ignore same when they posited:-
“It must be said that public confidence, in the judicial process will be severely eroded if trial courts ignore or show scant regard to vital evidence which is unanswerable and proceed to make findings and give judgment that fly in the face of obvious facts.”
In the appeal at hand, if the trial judge had taken into consideration the contents of Exhibits 4, MOJAI (paragraph 2(i) – (iv) of the Findings and Recommendations thereof Exhibits MOJIB and 21 to the Affidavits of the parties, judgment ought not to have been given in favour of the Claimant/Cross-Appellant and in particular reliefs 1, 2, and 4 as well as the order or perpetual injunction to restrain the 1st – 4th Defendants.
The Supreme Court had held in Military-Governor v. Kolawole (supra) at 531; per Muhammad, J.S.C, that it is the law that wrongful admission of evidence or wrongful exclusion of evidence does not result in the reversal of a decision when it has not affected the decision of the trial court such that it would have been different if the error had not been committed (if at all). However, in this case even though the Cross-Appellant complains that the learned trial Judge did not evaluate Exhibit 21 in which case that Exhibit was wrongfully excluded, even if it was included or evaluated, the result would have been to the detriment of the Cross-Appellant as the bottom of his case had been knocked off by a combination of Exhibits 4, MOJAI and the said Exhibit 21. The learned trial judge therefore did the right thing in a wrong way and the result of the case would not have been different.
From the foregoing, I hold the view that the learned trial judge was right in not granting reliefs 3,5,6, and 10 even though on the false premises that the suspension of the Cross-Appellant had been lifted which is not the case in view of the contents of Exhibit 21 which put on hold every action relating to the disputed Chieftaincy.
On the whole, the Cross-Appeal is unmeritorious and is accordingly dismissed in its entirety. The Cross-Appellant is not the rightful Eletan of Etan and in the interest of justice, if he was so declared and recognized, his suspension should be converted to outright removal to pave way for the Iremo Royal Family to install the rightful Eletan, be he the Appellant or any other member of the family in view of the fact that none of the judgments (not even the judgment of Mohammed Bello, J. of blessed memory), pronounced the Cross-Appellant the rightful Eletan or precluded the Appellant from being eligible to ascend the throne of the Eletan of Etan. That judgment only found that as at 1967, the Appellant was not installed or appointed the Eletan by any person or authority or in: accordance with the custom of Eletan people. Accordingly, all the hue and cry and basking in the euphoria of being the legal and rightful Eletan by the Cross-Appellant, are exercises in futility and mere wishful thinking. I also make no order as to costs in respect of the dismissed Cross-Appeal.
DALHATU ADAMU (OFR), J.C.A.: I have read before now the lead judgment of my learned brother AGUBE J.C.A. in this appeal. I agree with his reasons and the conclusion he arrived at in the said lead judgment which I hereby adopt as mine. I also agree with my learned brother on the award of costs.
CHIMA CENTUS NWEZE, J.C.A: My Lord, Agube JCA, has, admirably, dealt with all the issues which the parties canvassed in this appeal. His resolution of the issues is masterly!
I shall, however, in this contribution, make a few comments to buttress my Lord’s position that photocopies of certified true copies of public documents are inadmissible in evidence. As His Lordship observed in the leading judgment, various Divisions of this Court had given conflicting decisions on this point. On the one hand, some of our colleagues had taken the view that a photocopy of a certified true copy of a public document needs no further certification, see, DTN v. Williams (1986) 4 NWLR (pt 36) 525, 536; 1MB Nig Ltd v Dabiri (1998) 1 NWLR (pt.533) 284; Kabo Air Ltd v. INCO Ber Ltd (2003) 6 NWLR (pt 816) 323, 339; Iheonu v. Obiukwu (1994) 1 NWLR (pt 322) 594; ACB Plc v Nwodika (1996) 4 NWLR (Pt 443) 470; Daniel Taylor pans Ent Ltd v Busari (2001) 1 NWLR (pt 695) 482, 489; Kerri v. Ezunaka Bros Ltd (2003) 25 WRN 54, 63.
On the other hand, this court in SPDC Nig Ltd v. Nwolu (1991) 3 NWLR (pt.180) 496/504 espoused the view that a photocopy of a certified true copy of a public document is inadmissible in evidence. Like the leading judgment in this appeal, I, too, would lean in favour of the position that a photocopy of a certified true copy of a public document is inadmissible in evidence.
There are, at least, two clear reasons for departing from the position that a photocopy of a certified true copy of a public document needs no further certification. The first reason is hinged on the provisions of the Evidence Act. Sections 97 (1) (e), (f) and 97 (2) (c) are germane. Section 97 (1) (e) and (f) of the Act provide inter alia:
Secondary evidence may be given of the existence, condition or contents of a document in the; following cases:
(e) When the original is a public document within the meaning of section 109 of the Act;
(f) When the original is a document of which a certified copy is permitted by this Act or by any other law in force in Nigeria to be given in evidence.
Now, these provisions must be read against the background of the impregnable and finite clause in section 97 (2) (c ) of the same Act which, in unmistakeable terms, canalises the admissibility of the secondary evidence of a public document to “a certified copy of the document, but no other kind of secondary evidence”.
Section 97 (2) (c) (supra), which deals with the admissibility of secondary evidence of public documents, must not be confused with the; provisions of section 97 (2) (a) which deals with the admissibility of secondary copies of private documents. For their bearing on this point, we set out section 97 (2) (a):
97 (2) The secondary evidence admissible in respect of original documents referred to in the several paragraphs of subsection (1) of this section is as follows:
(a) In paragraphs (a), (c) and (d) any secondary evidence of the contents of the document is admissible.
The Supreme Court had the opportunity of explaining the nuances of these sections in Araka v. Egbue (2003) 33 WRN 1. Tobi JSC explained that section 97 (2) (c) (supra):
is clearly in contradistinction to the provision of section 97 (2) (a) of the Act which admits any secondary evidence of the contents of the document…section 97 (2) (a) anticipates private documents within the very vague meaning of section 110 of the Act. In other words, while section 97 (2) (c) provides for public documents; section 97 (2) (a) provides for private documents, which section 110 simply defines as all other documents which are not public documents [page 15] .
The second reason stems from the inviolable doctrine of stare decisis. Seventeen years before the decision of Ademola JCA in DTN v Williams (supra) the Supreme Court had ruled out the admissibility of photocopies of certified copies of public documents. In Minister of Lands W. N. v Azikiwe (1968) 1 All NLR 49 at pages 58-59, Coker JSC first observed thus:
…Exhibit 2 is a Photostat copy of what is ostensibly a certified true copy of a public document in the custody of the High Court, Lagos. The certified copy in the custody of the High Court…had been subpoenaed…; apparently it was’ in fact produced before the court but, wrongly in our view, the official who produced it refused to tender it… and so it was withdrawn by the court official who had brought it and a Photostat of it was, undoubtedly with the consent of all concerned, left with the court and marked exhibit 2…
We have already pointed out that the original of the document exhibit 2 is a public document and it is indeed within the meaning of section 109 of the Evidence Act. Section 96 (2) [now, 97 (2)] of the Evidence Act prescribes the type of secondary evidence which may be given in the several cases therein set out…
The distinguished jurist (now of the blessed memory), then, made this oracular declaration:
The combined effect of the subsection [now section 97 (2) (c) is that In the case of public documents the only type of secondary evidence permissible is a certified true copy of the document and none other. The document now marked exhibit 2 is not a certified true copy but a Photostat copy and is therefore inadmissible as secondary evidence of a public document which it purports to be.
[Italics supplied]
In effect, before the decision in DTN (supra) the apex court had settled the question of the inadmissibility of photocopies of certified true copies of public documents. Unarguably, therefore, any subsequent contrary decision on that point may, justifiably, be treated as one reached per incuriam.
In all, therefore, the only categories of public documents that are admissible in evidence are either the original documents themselves, Onubruchere and Anor v. Esegine (1986) 1 NSCC 343 at 350; Iteogu v LPDC (2009) 17 NWLR (pt 1171) 614, 634 or, in the absence of such original copies, their certified copies and no other, Minister of Lands W. N. v Azikiwe (supra); Onubruchere and Anor v. Esegine (supra); Araka v Egbue (2003) 33 WRN 1; SPDC v Aswani ile Industries Ltd (1991) 3 NWLR (pt.180) 496, 505; Ojibah v. Ojibah (1991) 5 NWLR (pt.191) 296, 312; Nzekwu v. Nzekwu (1989) 2 NWLR (pt 104) 373.
In Onubruchere and Anor v. Esegine (1986) 1 NSCC 343 at 350, Oputa JSC (as he then was) interpreted section 96 (2) ( c) [now section 97 (2) (c )] of the Evidence Act. One of the documents in that case was a public document. It was neither the original nor a certified copy. According to the distinguished jurist:
The court below did not admit Exhibit E as an original document….Even if [the said document] were admissible under section 96 (2) (c ) [now section 97 (2) (c )] it should be a certified copy of the ‘original in court record book’….Failing to produce the primary evidence, a party relying on [the documents] will at least tender admissible secondary evidence of [these documents]. Such secondary evidence will necessarily be certified true copies- [These exhibits] do not purport to be certified true copies. They were, therefore, wrongly admitted
(Italics page 350)
Why, then, it may be asked, should a photocopy of a certified true copy of a public document be re-certified? The answer is tha in this age of sophisticated technology, photo tricks are the order of the day and secondary evidence produced in the con of section 97(2) (a) could be tutored and therefore not authentic. Photo tricks could be applied in the process of copying the original document with the result that the copy, which is secondary evidence, does not completely and totally reflect the original and therefore not a carbon copy of the original. The court has not eyes of an eagle to detect such tricks.
[see, per Tobi JSC in Araka v. Egbue (2003) 33 WRN 1, 15-17]
It is for these, and the fuller reasons advanced in the leading judgment of my Lord Agube JCA that I, too, shall allow this appeal in part. I abide by all the consequential orders in the leading judgment.
Appearances
Dayo Akinlajh Esq., with E. O. Ogunwiyi (Miss), G. A. Olorunfemi (Miss.); O. O. Abifarin Esq., and Abiodun Bello Esq.For Appellant
AND
Ayorinde Isola Esq with Lanre Badmus Esq., I. B Inyang-Ito (Miss.) and Afusat Jimoh (Mrs.)
Olukayode Akande Esq., with Gimba Ezekiel Esq.,
Mrs. Funsho Lawal (D.C.L) Ministry of Justice Kwara State with her Mrs. M. A. Samah (S.S.C)For Respondent
