H. O. ADENIYI & ANOR V. ABDULRAMONU AJIBOYE & ORS
(2011)LCN/4462(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 13th day of April, 2011
CA/IL/77/2008
RATIO
GROUND OF APPEAL: EFFECT OF AN INCOMPETENT GROUND OF APPEAL
In CCB v. Ekperi (2007) 1 – 3 NSCQLR (Vol. 29) 175, the Supreme Court per Niki Tobi, JSC; at page 194 paras. F – H had this to say on incompetent Ground of Appeal:- “Where no Ground of Appeal is filed on a matter, the Court will come to the conclusion that the Appellant is satisfied with the particular matter. However, where there is no competent ground on a matter, the court will come to the conclusion that there is no competent ground matter. In the second situation, the Appellant may have a complaint but the complaint has not been competently articulated in the Ground of Appeal. In both situations, an appellate Court will not go into the hearing of the appeal.” Although, the above dictum of the learned and eminent judicial icon is apt on the effect of an incompetent of Ground of appeal filed by a party, I have also had a careful perusal of the decision in Nwankwo v. EDCS (2007) 1- 3 NSCQLR (Vol. 29) 73; which to the best of my assessment the ratio thereof is on the substantiality and relationship of the Grounds of Appeal and the Issues formulated there from to the ratio or decision but not directed at the obiter dictum of the Court or in the judgment. See per Onnoghen and Ogbuagu, JJSC; at pages 97 98 and 106 of the Report. PER IGNATIUS IGWE AGUBE, J.C.A.
GROUND OF APPEAL: WHETHER ANY GROUND WHICH IS VAGUE OR GENERAL IN TERMS OR WHICH DISCLOSES NO REASONABLE GROUND OF APPEAL CAN NOT BE PERMITTED UNDER THE RULE
Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and a ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent. PER IGNATIUS IGWE AGUBE, J.C.A.
PERVERSE: THE MEANING OF THE WORD “PERVERSE”
Perverse’ in its simple grammatical term has been defined by chambers 21st century Dictionary, Revised Edition, 2006, by Mairi Robinson and George Davidson; to mean: “I Deliberately departing from what is normal and reasonable; 2. Unreasonable, Awkward; stubborn or willful”‘ Legally, Black’s Law Dictionary, Eighth Edition by Bryan A. Garner (Editor-in-Chief), also defines the term ‘perverse verdict, as: “A jury verdict so contrary to the evidence that justifies the granting of a new trial.” PER IGNATIUS IGWE AGUBE, J.C.A.
GROUND OF APPEAL: POSITION OF THE LAW ON THE NATURE OF GROUNDS OF APPEAL
…going by Rule 2(3) of Order 6 of the Court of Appeal Rules, 2007, grounds of appeal are expected to be concise, precise and under distinct heads without being unnecessarily argumentative, lengthy, elaborate and/or narrative and must deal with the real complaint upon which the ground is predicated. See Arade v. Afenuroke (1988) 1 NWLR 207 and B.P. (West Africa) Ltd. v. Allen (1962) 1 ALL NLR 645 at 649. PER IGNATIUS IGWE AGUBE, J.C.A.
JUSTICES:
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
Between
1. H. O. ADENIYI
2. ABDULKARIMU AJETUNMOBI – Appellant(s)
AND
1. ABDULRAMONU AJIBOYE
2. ALHAJI AHMADU AWUNI (The Elese of Igbaja)
3. ALHAJI ABDULRAMONU OMOWARE
(The Chairman of Irepodun/Iferodun Traditional Council)
4. EKITI/IFELODUN/IREPODUN Traditional Council – Respondent(s)
IGNATIUS IGWE AGUBE, J.C.A.(Delivering the Leading Judgment): On the 15th day of August, 2002, at the Ilorin Division of the Kwara state High court of Justice in suit Number Kws/53/02, the plaintiffs took out a writ of summons and in their statement of claim dated and filed on the 31st October, 2002, sought for the following Reliefs:- A DECLARATION THAT
i. By the agreement dated 1st November, 1998 between Oke Ofa and Ile-Arin Royal Ruling Houses there are only 2 ruling Houses in Ofarese.
ii. Hezekiah Adeniyi is from Oke Ofa Royal House of Ofarese and is entitled to be appointed as the Olofa of Ofarese having been selected and presented in accordance with the native law and custom.
iii. AbdulRamonu Ajiboye the 1st Defendant is from Ile-Arin and a descendant of Olofa Aseje Akoloshe of Ile-Arin Ofarese and is not entitled to be appointed the Olofa as it is not the turn of Ile-Arin.
iv. The Elese of Igbaja can only recognize any person properly appointed by the Ofarese kingmakers in accordance with the native law and custom of Ofarese.
v. The Ifelodun/Irepodun Traditional Council or any Traditional Council has no statutory power to appoint an Olofa of Ofarese.
Pleadings were exchanged by the parties and at the hearing of the case the Plaintiffs called five witnesses and tendered some documentary Exhibits. The 1st and 2nd Defendants on their part called three and two witnesses respectively and also tendered documentary Exhibits in support of their case, while the 3rd and 4th Defendants did not adduce any evidence in their defence. At the conclusion of hearing, the respective parties through their counsel exchanged written Addresses which were adopted and in a reserved judgment delivered on the 1st day of February, 2007, the learned trial judge made findings which culminated in his holding as follows:-
“I hold that it was the selection and appointment of the 1st Defendant by the kingmakers, his eventual presentation by Chief Ada to the Kingmakers and the final presentation to the Elese of Igbaja by Chief Ada, accompanied by the Kingmakers that is proper and in accordance with the native law and custom of the Offarese.
I believe the evidence of DW1 that the Kingmakers performed all traditional rites usually performed by them to appoint any Olofa on the 1st Defendant and that none of such rites was performed by them on the 1st claimant whose presentation to the Elese by Chief Ada was not supported by their Kingmakers.
For the above reasons I find no merit in the claimant’s case. They are not entitled to any of the declarations sought and all the declarations sought by them are refused. Their case is therefore dismissed.”
Piqued by the judgment of the court below, the Claimants hereinafter to be referred to as Appellants filed their Notice of Appeal with seven Grounds. Following the transmission of the Record of proceedings to this Court, briefs were ordered to be exchanged in accordance with our Rules. Chief P.A O. Olorunnisola, SAN, in the Brief settled on behalf of the Appellants distilled six issues for determination from the Appellants’ seven Grounds of Appeal. Learned counsel for the 1st Respondent Mr. Akinmade Y. Abolarin, on his part, after raising objection to all the Grounds of Appeal as couched, adopted the issues formulated by the learned Senior Advocate on behalf of the Appellants in the alternative. The then Honourable Attorney General of Kwara state, Alhaji saka Isau, SAN; who settled the brief of the 2nd Respondent, also adopted the six issues formulated by the learned Chief/senior Advocate on behalf of the Appellants.
The issues- are reproduced hereunder as follows:-
1. Whether Exhibit 1 is at variance with paragraph 2 of the Rapt to Statement of Defence and whether the Kingmakers can choose anybody from the princes to appoint as Olofa without the participation of the Princes and Princess? (Grounds 2 & 3).
2. Whether the 1st Defendant is from Oke Ofa Ile-Arin? (Ground 4).
3. Is the court justified in refusing the first leg of the Claimants’ prayer that there are 2 ruling Houses in Ofarese? (Ground 5)
4. Can the trial Court properly hold that the 1st Defendant was properly appointed accordance with the Native Law and Custom of Ofarese after he has held that the claim was not before the Court and in view of the contradictory evidence before it?
5. Is the Court justified by deciding the case on the issue of Petu whiich was not pleaded while the same judge had expunged the Plaintiffs’ evidence in respect of settlement upon none pleading? (Ground 7).
6. Whether the judgment is not perverse? (Ground 1).
The case for the Appellant as pleaded in their statement of claim is that the 1st Plaintiff (now Appellant) is a contestant to the stool of Olofa of Offarese in Igbaja District of Ifelodun Local Government Area of Kwara state. He was the secretary to Offarese community for a long time including the 1990’s until when he had to contest for the Olofa stool having been in charge of the community’s documents and correspondences’ He hails from Oke Ofa Royal Family/Ruling House and had been selected and nominated to the stool of Olofa of Offarese and presented to the 2nd Plaintiff/Appellant who is the chief Ada or Head of Kingmakers in the community.
The 1st Defendant, on the other hand, hails from Ile-Arin in Ofarese and is a descendant of Olofa Aseje Alokoloshe of Offarese and one of whose sons, Ganiyu R. Ajiboye has been an active member of Aseje Alokoloshe Royal Family and has written letters on behalf of Alokoloshe family before, particularly, in respect of the chieftaincy stool in dispute.
The 2nd Appellant before calling for nomination from Oke Ofa ignorantly accepted the nomination of the 1st Defendant and without the consent or knowledge of the other kingmakers in Offarese but in collaboration with Chief J. K. Balogun (a politician and honorary title holder of Offarese) forged nomination paper and presented the 1st Defendant/Respondent as the candidate to the Olofa of Offarese to the 2nd Defendant, the Elese of Igbaja.
Upon hearing of the above development, the other Kingmakers of Ofarese called the Ada to order and the Ada informed the Elese of his withdrawal of the 1st Defendant as the Olofa nominee and instead presented the 1st Plaintiff who is the popular choice of the Ofarese Kingmakers, cross-section of the Community and Ofarese clubs and social organizations but the 2nd Defendant/Respondent refused the change of the nomination by the Ada.
A petition to that effect was sent to the Ifelodun/Irepodun Traditional Council by the majority of the seven kingmakers of the community who supported the nomination of the 1st Appellant. Another letter of the Offarese Community Development Association to the Chairman of Ifelodun Local Government was also written to that effect culminating in the intervention of the Ifelodun Local Government by setting up a commission of inquiry. The panel of inquiry was said to have completed its assignment and submitted its-report recommending the 1st Plaintiff/Appellant as the new Olofa of Offarese. However, because there was no democratically elected Local Government Council at Ifelodun and any of the Kwara State Local Governments from 29th May, 2002 nobody was appointed to the stool of Olofa of Offarese which is a non-classified or recognized chieftaincy.
Indeed, the Elese of Igbaja who was the Prescribed Authority to recognize the choice of the majority of the Kingmakers of Offarese and the Traditional Council of the Ifelodun/Irepodun/Ekiti people, failed to agree on what to do. Moreover, the Elese of Igbaga has overtly supported the 1st Defendant based on religious prejudice by proclaiming that he would not support the 1st Appellant who is a Christian- a position which many of his Co-members of the Traditional counsel had shown inclination to support from their utterances at the various times the 1st Appellant appeared before the Council in the course of the dispute.
In early August, 2002, the Kwara State Government, in exercise of her powers under the Chieftaincy Law, announced the abolition of the Ifelodun/Irepodun/Ekiti Traditional Council based on Local Governments. Thus the 2nd Respondent, who is the Elese of Igbaja- and the most senior of the Traditional Chiefs in Ifedapo in the newly created Traditional Council, became the chairman and as such the Appellants had no hope of receiving justice from such Traditional Council, hence their claim in the High Court which has necessitated this appeal.
On the part of the 1st Defendant (now Respondent), he denied the claim of the Plaintiffs/Appellants and claimed that both the 1st Appellant and himself are indigenes of Oke Offa Ruling Houses and that there is no Ruling house called Aseje Alokoloshe in Offarese. According to him, there are two Royal families in Oke-Offa-Oloffa which are Ogunlola Alokoloshe and Olofa Molade Royal families both descendants of Olofa Arresa Ogbo Oloja and that while the 1st Appellant hails from the latter, he the 1st Respondent hails from the former. He traced his genealogy to their above named progenitor and contended that by origin and location of his families, he belongs to Oke Offa group of families.
As regards the dispute in question he pleaded that he was duly nominated by the Offarese kingmakers and presented to Chief Ada (2nd Plaintiff/Appellant) who in turn presented him to the Elese of Igbaja (2nd Respondent). After his nomination by the Kingmakers and before presentation to the 2nd Respondent, certain traditional rites were performed by the Kingmakers having been satisfied by his choice and their demands. It is also his case that, after his nomination and selection by the 2nd Appellant he was eventually presented to the 2nd Respondent who accepted him into the Erese’s Council as representative of Offarese. He insisted that all the rituals connected with the appointment and installation of an Oloffa were completed in 1999 and he had since assumed the office of the Oloffa with Council meetings taking place in his house and with him presiding as Oba.
As for the 2nd Appellant, the 1st Respondent asserted that he played the role as dictated by their tradition and custom up to the time he was presented to the 2nd defendant and for sometime thereafter. It was after one year that he changed his mind and posture and started his efforts to replace him (the 1st Respondent) with the 1st Appellant another Prince of Oke Offa.
The 1st Respondent denied that there was any error in his nomination, appointment and installation and stated that it is not within the tradition/custom of the people of Offerese to depose or dethrone any Olofa unless he has committed abominable Offence(s) against the peoples’ custom and tradition. He denied coming from Ile Arin not to talk of representing that family in any chieftaincy dispute. He denied also that Mr. Kadiri is a member of Aseje Alokoloshe family as there is no such family amongst the Ruling Houses.
On the claim that Omoshokos selected a prospective Oloffa, the 1st Respondent claimed that only king makers participate in the selection and installation of an Oloffa under Offarese tradition and custom, and any other body or bodies have no say on the issue, but participation of wrong persons does not necessarily nullity the exercise. On the role of Ifelodun Local Government, the 1st Respondent pleaded that the Local Government has no role to play in the the court below obliged.
ARGUMENTS OF COUNSEL
appointment of an Oloffa but that after the advent of Western Civilization, the Local Government became relevant in the issuance of Official letters to any Oloffa installed by the Kingmakers. Accordingly, the Report of the Panel set up by the Local Government is irrelevant to the case on appeal.
Finally, he pleaded that the 2nd Respondent had already given recognition to him and the said 2nd Respondent has no powers to withdraw same under Offarese custom.
He therefore prayed the Court to dismiss the Appellants’ claim which prayer ISSUE NUMBER 1: WHETHER EXHIBIT 1 IS AT VARIANCE WITH PARAGRAPH 2 OF THE REPLY TO THE STATEMENT OF DEFENCE AND WHETHER THE KING MAKERS CAN CHOOSE ANYBODY FROM THE PRINCES TO APPOINTMENT AS OLOFFA WITHOUT THE PARTICIPATION OF THE PRINCES AND PRINCESSES. (GROUNDS 2 & 3)
In his argument on this issue the learned senior advocate pointed out that Exhibit 1 states the reason why it was entered into which is the avoidance of rancour in the nomination of successors to the vacant stool and that the agreement seeks to provide for rotational succession between the two Royal House who should meet together for the selection and vetting of any appointee before presentation to the appointing authority. Particular reference was made to clause 5 which stipulates that the Royal House whose turn it is to present a candidate to the stool shall select and appoint and present the candidate to the two Royal Houses who will then present the candidate to the appointing authority.
He maintained that the Agreement foresees that there is an appointing authority outside the Royal Houses and that whenever such an authority rejects the appointee the Royal House(s) should resist it unless for good cause in which case the same Royal House should provide another candidate. Thus, it is logical that the two Royal Houses who approved a candidate will not reject the same candidate and will not be resisting its exercise.
Turning to paragraph 2 of the Reply to the statement of Defence of the 1st Respondent which the Court below held was at variance with Exhibit 1, the learned Senior counsel submitted further that the paragraph of the Reply was in response to paragraph 5 of the 1st Respondent’s statement of Defence where the said Respondent pleaded and set out the procedure for his selection and appointment. The learned senior Advocate contended that paragraph 2 of the Reply stated that the Omo Oshoko who are the Princes and Princess as used freely by parties at pages 106, 109, 123 and 127 of the Records, were responsible for the nomination of a candidate to the stool before presentation to the Kingmakers. It was further contended that it is not correct as held by the court that Exhibit 1 did not give the Kingmakers any role but that on the contrary the said Exhibit 1 refers to the appointing authority that may accept or reject the name from the Royal Houses. In any case, he added, Exhibit 1 is clearly an understanding within the Families and does not spell out in detail the procedure pleaded in paragraph 2 of the Appellant’s Reply to the 1st Respondent’s statement of Defence Accordingly, Exhibit 1 is not at variance with the paragraph of the Reply in question, he further noted.
It was the learned senior counsel submission still on the said Exhibit and the finding of the court, that the Court below misunderstood the purports of Exhibit 1 vis-a-vis the said paragraph 2 of the Reply to the statement of claim that warranted the learned trial Judge to hold that the Kingmakers could go on to appoint by themselves any Prince without such a Prince being nominated to them by the concerned Royal Family. He therefore urged us to take Judicial Notice of the fact that there is no kingship in Nigeria where Traditional chiefs can be appointed by Kingmakers without the input of the princes.
On the holding by the Court that Kingmakers can appoint the Olofa from amongst the Princes, the learned Senior Advocate submitted that it begs the question as none of the parties pleaded or testified that Kingmakers appointed Olofas outside the Princes but that their (Appellants’) contention is that the Kingmakers have no traditional ower to take the initiative and select their own choice of a Prince but the choice of the rince selected and screened by the Royal House whereas the 1st Defendant/ Respondent’s case is that he was selected and nominated by the Kingmakers. He made references to paragraphs 5, 6 and 17 of the 1st Defendant’s Statement of Defence, the evidence of DW1- DW2 and particularly DW3 at page 132 lines 9 – 27 on how the 1st Defendant was appointed by the Kingmakers without inputs from the Royal Houses – the Princes and Princesses and without notice that such exercise was being undertaken; to further buttress his contention.
On the above score, the learned Senior Counsel to the Appellants drew our attention to the decision of the said Judge in an earlier case (Suit No. KWS/OM/2/86 delivered on 2/6/87 at the same Omu-Aran High Court), which for inexplicable reason he ignored in his judgment now on appeal, even though the learned Senior Counsel cited same at page 80 of the Record of Proceedings. Learned Senior Counsel also noted that the learned trial Judge also ignored the affidavit of DW3, Exhibit 5 at paragraph 12 which admitted/admits the involvement of Royal families in the selection and nomination of Olofa, the evidence of DW3 disagreeing with DW1 and DW2 who had earlier stated that only Kingmakers nominate and appoint an Olofa which contradictory testimonies left the Court below with multiple options which he ought to reconcile, yet the Court chose to accept the un-reconciled evidence of the 1st Defendant/Respondent’s witnesses to that of the plaintiff’s witnesses.
The Court below, he further observed, failed to look at the address of the learned Counsel for the 1st Defendant at page 48 lines 11-13 which submission supports the Claimant’s view of the custom and at the same page in lines 15 -17 changed gear to submit in confusion that the nomination of an Oba in Offarese is done by Kingmakers thus eliminating the free competition earlier on submitted.
On a final note on this issue, the learned Chief cited Amuda v. Adetodun (1997) 5 SCNJ 266; where the Supreme Court nullified the Governor’s appointment where the Traditional Council made an appointment of a Chief without affording the appointers the opportunity to re-advise it after rejecting the first nomination. He submitted on this score that it is trite that the Defendant’s evidence which supports the Plaintiff’s case should be taken as supportive of the Plaintiff’s case, as the evidence of DW3 support the Traditional stand point of the Plaintiffs that the Princes (Omoshokos) have significant roles to play in selecting and appointing an Olofa of Ofarese. He then urged us to callow the Appeal on the Grounds upon which the issue is based.
ISSUE NUMBER TWO (2): WHETHER THE 1ST DEFENDANT IS FROM OKE OFA OR ILE ARIN? (GROUND 4).
On this issue, it was contended by the learned Senior Counsel to the Appellant that the lower Court laid emphasis on acquisition of land by the 1st Defendant’s family in its judgment at page 161 of the Records but Defendant/Respondent built his house which is not deferent of the evidence of other witnesses that the house was built at Ile Aroko (short form for Arokwasile) which is not far from the said PW3’s house at Oke-Offa page 108 lines 19 – 20, 101 lines 6 – B (the evidence of the pW4, pW2) were referred to in submitting that Exhibit 2 shows that PW3’s description is correct. The cases of Adeyemo v. Popoola (1987) 4 NWLR (pt. 66) 578 and Oloride v. Oyebi (1984) 5 S.C. 1 at 17 – 18; were further referred to in submitting that the trial Court relied on the evidence of witnesses for the 1st Respondent to hold that the said Defendant is from Oke Offa whereas the Plaintiffs and their witnesses testified that even if the Defendants family lives in (settled) at Oke Offa, they do not belong to the place biologically; and that it is trite that where there are two versions of evidence of tradition the one supported by reference to facts in recent times is to be accorded credence.
Still on the above point, learned Senior Counsel pointed out that the learned trial Judge relied on tax payment which is only revenue collected from residents but did not review the current acts and events which could have assisted him inspite of their submissions at pages 79 – 80 of the Records and the evidence of PW4, PW5 who tendered Exhibits 2 and 2A a letter written by G.A. Ajiboye on behalf Olofa Aseje Alokoloshe Chieftaincy family of Offarese which writer now deceased was the son of the 1st Respondent as testified by PW1 at page 100 lines 20 – 21; PW2 at page 101 lines 4 – 5; PW4 at page 109 lines 20 – 21., PW5; DW1 at 124 lines 26 – 27 and DW2 at 129 lines 3 – 12 of the Records, all which show or showed that the 1st Defendant belonged to Ile Aseje Alokoloshe family.
Further references were made to the reply to Cross-examination of the DW2, the introduction of DW3 Karimi Arokowasile Kadiri of himself as belonging to Arokowasile a member Alokoloshe family of Oke Offa, Of arase; and the call by the learned Senior Counsel to the Appellants on the Court to evaluate the signature in Exhibit 3 which he would have found as belonging to the said DW3 as the author, but which the learned trial Court refused to pronounce on; (page 82) line 7 of the Records refers.
The learned Chief also alluded to the evidence of the DW3 under Cross-examination in respect of this said Exhibit 3 which authorship he disclaimed but admitted that the letter was written by their youths who did not know as at 1991 that his true family name was not Olofa Aseje Alokoloshe and that although he knew of this fact in 1987, he did not disclose it to the youths. However, the learned Senior Advocate continued, DW3 wrote Exhibit 64 in 1998 and Exhibit 6D in 2000 with the title of Alokoloshe after the purported discovery that his family name had changed.
The learned Chief then observed that the Claimants/Appellants asserted in paragraph 3 of their Statement of Claim that the 1st Defendant/Respondent is from Ile- Arin of Ofarese and descendant of Olofa Aseje Olokoloshe which facts were denied by the 1st Respondent in paragraph 3 of his Statement of Defence as according to the Respondent no Ruling family or House bearing such name exists in Ofarese inspite of Exhibits 2 and 3 which shows that 1st Respondent’s denial is wrong and dishonest.
It was therefore reasserted that if the learned trial Judge had appreciated the recent activities of the Defendants by the correspondences earlier highlighted he would have come to the conclusion that the 1st Defendant belongs to Aseje family who produced the Olofa Aleshinloye from the Ile-Arin family and the case would have been decided in favour of the Appellants. Thus it was wrong for the Court to use evidence of house location as a determinant of blood relationship where evidence clearly shows the cultural practice of living permanently in other areas outside where the person is related by blood as exemplified by Exhibit 68 dated 17/6/99 written by Ile-Arin on woman inheritance which according to Senior counsel, by Yoruba custom is matrilineal. Pages 84 para.17 and 89 of the Records were referred, to urge us to allow the Appeal.
ISSUE NUMBER THREE (3): WHETHER THE TRIAL COURT WAS JUSTIFIED IN REFUNDING THE FIRST LEG OF THE CLAIMANTS PRAYER THAT THERE ARE 2 RULING HOUSES IN OFARESE? (GROUND 5).
In arguing this issue, the learned SAN alluded Judge at page 165 of the Records and page 14 of were not entitled to any of the declarations sought.
He drew our attention to the 1st Declaration which was to the affect that there are two Ruling Houses in Offarese-Oke ofa and Ile-Arin which both parties and their witnesses admit but the court bent on undoing the Appellants went on to go beyond the claim of the Appellants. It was contended that no issue was joined upon what makes up the Ruling Houses and the learned trial Judge went beyond his jurisdiction when he made the order in a suit which neither of the parties refuted the existence of the two Ruling Houses nor did the Respondents counter-claim. Accordingly, he urged this Honourable court to allow the Appeal and the issue formulated.
ISSUE NUMBER FOUR (4): WHETHER THE TRIAL COURT CAN PROPERLY HOLD THAT THE 1ST DEFENDANT WAS PROPERLY APPOINTED IN ACCORDANCE WITH THE NATIVE LAW AND CUSTOM OF OFFARESE AFTER HE HAS HELD THAT THE CLAIM WAS NOT BEFORE THE COURT AND IN VIEW OF THE CONTRADICTORY EVIDENCE BEFORE? (GROUND 6).
Arguing this issue, the learned chief referred to the holding of the learned trial Judge at page 158 fast paragraph of the Records that question of the 1st Respondent’s nomination and appointment by the Kingmakers was not in issue and submitted that prayer 4 of the Appellants’ prayer at paragraph 29 of the claim puts the nomination and appointment in issue. Furthermore, paragraph 5 also rendered the issue of nomination relevant, more so, as the 1st Respondent joined issue in paragraph 5 of his Statement of Defence that he was duly nominated by the Kingmakers and presented to Chief Ada (2nd Respondent/who in turn presented him to the Elese of Igbaja).
He therefore submitted that once the Defendant averred that he was duly nominated, the issue of whether he was duly nominated and by whom became an issue to be resolved. From the foregoing, he noted that it is a universal practice that Kingmakers must do not just go to a Ruling House to pick any prince to be installed but that candidate must first be nominated by Princes for the Kingmakers to examine and screen. It was argued that evidence abound by Exhibit 1 on how to select and screen a candidate which evidence was not denied under Cross-examination and on the authority of Gaji v. Paye (2003) FWLR (pt. 163) 1; this Court should accept same as the custom.
Learned senior Counsel also quarreled with the use of Exhibit 1 to measure the standard for the 1st Appellant and declared that he did not comply with same whereas he did not use same for the 1st Respondent’s appointment. For this he reiterated that the court below in believing the 1st Respondent’s witnesses as according with custom on the appointment of the 1st Respondent, did not take into consideration the contradictory statement of DW3 who disagreed with paragraph 4 written by DW3 which is to the effect that it is the family of the house to ascend the stool that should present the nominee of the Kingmakers still harping on the effect of contradictory evidence, the learned counsel for the Appellants placed reliance on the case of Akanmu v. Adigun (1993) 7 NWLR (pt. 304) 218 at 235 para. H; the evidence of the said DW2 at page 50 lines 5 – 6 on the fact that he was a signatory to Exhibit 1 and the decision of the self same Orilonise, J. at the Omu-Aran High court in suit No. KWS/OM/2/86 in respect of the same community which declared the Princes of the community Ruling Houses, Present the candidates to the Kingmakers.
The learned SAN maintained that there is no evidence as at when the custom changed so as to justify the non application of the custom. For this submission, he relied on the case of Abai v. Okagbie (1991) 7 NWLR (pt. 204)391, 427 para. C; to finally reiterate that the testimonies of Defendants’ witnesses are contradictory and it was wrong for the trial Court to decide in favour of the party that adduced such evidence.
Anchoring the submission on the authority of Agoo v. The state (2006) ALL FWLR (pt. 309) 1380, he urged us to hold that the decision of the trial court is wrong, and allow the appeal.
ISSUE NUMBER FIVE (5): WHETHER THE TRIAL COURT CAN USE THE EVIDENCE ON ISSUE OF PETU WHICH WAS NOT PLEADED WHILE THE SAME JUDGE HAD EXPUNGED THE PLAINTIFFS’ EVIDENCE IN RESPECT OF SETTLEMEN UPON NON-PLEADING? (GROUND 7).
The learned Senior Counsel on this Issue referred us to page 11 of the Record of Judgment (page 162 lines 1 – 32 of the Records) where the trial court accepted the evidence of PW5 that by tradition, native law and custom of Ofarese, the Olofa and chief Petu cannot come from the same family and concluded that the 1st Appellant cannot now deny the 1st Respondent the right to ascend the stool of Olafa from Okeoffa when to their knowledge, he had been Petu from Oke-Offa before now. He submitted that there is no iota of pleading in respect of the chieftaincy title of Petu and that just as the learned trial Judge expunged the Appellants’ evidence on the 1st Respondent’s family resettlement at page 161 lines 28 – 35 of the Records; he ought to have also expunged that of the Respondents on petu. Citing again Akanmu v. Adigun (1993) 1 NWLR (pt.314) 218 and Owolabi & ors. v. Omitola & ors. (1988) 5 SCNJ 1 at 11; he asserted that evidence on un-pleaded fact goes to no issue.
Finally on this issue he urged us to allow the appeal and hold that the 1st Respondent is not from Oke-Offa since the Petu chieftaincy is the strongest pillar of the trial Court’s finding.
ISSUE NUMBER SIX (6): WHETHER THE JUDGMENT OF THE LOWER COURT IS NOT PERVERSE? (GROUND 7).
On this ground, the learned senior Advocate argued that from the Record of Proceedings, the learned trial Judge did not properly evaluate the evidence of the parties’ He recalled his earlier submissions on the holding of the trial court at page 161 lines 8 – 14 on the propriety of and the preference of the evidence of the DW1 and DW2 the witnesses for the 1st Respondent on his nomination and appoint, even though the Court had earlier held that such nomination was not in issue. See further page 161 lines 8 – 10 of the Records.
He recalled the answer to the Cross-examination of the DW1 to the effect that he participated in the appointment of two Olofas – Aleshinloye and Olatunji and that Olofa Olatunji instituted an action in court after which he was enthroned, contrary to their evidence that no Olofa has ever been removed from the stool. Learned senior counsel referred again to Ishola v. Mallam Abduilahi Olatunji was delivered on 2/6/87 (unreported) which he cited and referred to the court to show that the custom retied upon by the 1st Respondent was (is) contrary to the one earlier accepted by the same High Court presided by the same Judge.
He was of the further view that the lower court was wrong in allowing the unpleaded title of Petu and to hold as he did at page 11 of the judgment (page 161 lines 26 – 30 of the Records); (2) to hold that the 1st Respondent had lived in Oke-Offa from time immemorial and his family house was there when there is no such evidence of immemorial period of time. (Archibong v. Ita (2004) 1 SCNJ 141 at 170 at 170; on the meaning of immemorial); there was evidence by the Appellants that the 1st Respondent’s ancestors migrated to Oke Ofa which was supported by the evidence of DW1 at pages 124 lines 15 – 25 of the Records and lines 14 – 25 thereof. He also cited Iheanacho v. Chigere (2004) ALL FWLR (pt. 226) 204 at 227 paras. C – G; on evidence extracted from cross-examination or facts which were not pleaded and contended further that the trial court ignored the plea in the statement of Defence of the 1st Respondent that he does not have any Ruling House like Aseje Alokolashe which plea was demolished by the Respondent’s star witness, the DW1 under cross-examination by P.A. O. Olorunnisola, SAN, at pages 136 – 137 of the Records, particularly, at page 136 lines 21 – 25.
The learned chief further referred to the evidence of DW2 at page 126 of the Records which the trial court wrongly ignored; and the evidence of the PW1 to pw4 linking the 1st Respondent with AbdulRahammanu Omo Olofa Aseje of Ile-Arin as buttressed by Exhibit 3 which was also unjustifiably not reviewed or commented on in order to arrive at a perverse judgment. He pointed again to the holding of the court below on Exhibit 1 being a departure from facts pleaded in paragraph 2 of the Appellants’ Reply to the Defendants’ statement of Defence which he restated was wrong as Omo-Oshokos are same with Princes which fact the court deliberately ignored more so as the witnesses on both sides admitted this fact.
The learned Chief also drew our attention to the evidence of origin of 1st Respondent which is Ile Aroko or Ile-Arin at Oke Offa on of Arokowasile) which evidence is supported by those of the DW2 at page 101, PW4 at page 108, Exhibit 3 at page 116 and the evidence of the DW3 at pages 131 -138, submitting that it was perverse for the court below to disbelieve evidence which is supported by other witnesses and documents while at the same time disbeliving other witnesses to the contrary.
Other findings which the learned senior counsel opined are perverse include:-
(1) The holding of the court at page 10 of the Judgment that pw3 said that the 1st Respondent’s house is in Ile-Arin (page 161 of the Records) whereas the pW3 said no such thing.
(2) Accepting contradictory evidence of witnesses to support the appointment of the 1st Respondent as being solely by the Kingmakers as exemplified in the 1st Respondent’s pleadings and the evidence of the DW1 and DW2 at pages 123 lines 10 – 14, 127 lines 27 – page 128 and the contradiction at page 136 lines 10 – 11 to the effect that nomination cannot take place without the involvement of the Princes (Exhibit 5) also refer. (3) The holding of the trial Judge that there cannot be two Olofas at the same time as nobody testified that there are two Olofas at the time- the evidence of the DW4 being that none of the 1st plaintiff/Appellant and 1st Defendant/Respondent, has been appointed. Page 140 lines 12- 16 and page 110 line 7 of for the Records the evidence of the pw3 referred. (4) The trial court ignored Exhibits 2, 3, 5, 64, 6D on which the Appellants anchored their address at pages 81 line (4); 82 and page 89 of the Records the Additional authority sent to the trial court.
It was therefore submitted in conclusion that if the learned trial Judge had considered all these, he would have found that the progenitors of the 1st Respondent are by blood from Ile Arin and that is why a widow could be inherited by a man whose physical house is at Oke Offa, Ofarese but the Court preferred the issue of tax payment to support its perverse findings when it is clear that tax is a revenue matter which cannot confer nativity or ownership of land.
On the whole he urged us to allow the Appeal and hold that the 1st Respondent was not qualified for appointment and not properly appointed to the stool of Olofa of Offarese.
1ST RESPONDENTS BRIEF
As was earlier noted, the learned counsel for the 1st Respondent Akande Y. Abolarin, Esq’, raised a preliminary objection on points of law which objection is predicated on incompetent Grounds of Appeal. We shall consider this objection at the resolution of the issues so formulated. Suffice it to say that as an alternative and in the event of the Preliminary objection not succeeding, learned counsel for the 1st Respondent then argued the issues formulated by the learned senior Counsel to the Appellant, seriatim as done by the Appellants.
ISSUE NUMBER ONE (1)
Responding to the above arguments of the learned senior Advocate on behalf of the Appellants on this Issue, the learned counsel for the 1st Respondent submitted that the content of the Exhibit 1 and paragraph 2 of the Reply to the 1st Defendant/Respondent’s Statement of Defence are at variance with each other on their general purport as no mention was made of Omo Oshoko or even prince or princes, in which case no role was given to any of them in the said exhibit; where as in paragraph 2 of the said Reply, the Omoshokos were mentioned with the Kingmakers. According to him, to worsen everything, the pleadings in paragraphs 5, 6, 13, 14, 15, 21 and 29 (iv) of the Statement of claim are also at variance with paragraph 2 of the Reply and the content of Exhibit 1 which completely excludes the Kingmakers in the whole exercise of nominating, appointing, or installation of the Orofa of Offarese.
The learned counsel maintained that the general understanding of the claim is that the Kingmakers of Offarese have a prominent role to play in the selection and installation of an Olofa whereas the Reply to the Statement of Defence and Exhibit 1 gave no role to the same Kingmakers. In the circumstances, he submitted that parties are bound by their pleadings and where pleadings contradict themselves, the court must refuse both versions and the evidence led on such contradictory pleadings must be expunged if already admitted.
He was of the view therefore that the court below was right to have disbelieved the heavily contradicted case of the Appellants and accepted the pleading and evidence of the 1st Respondent on the role of Kingmakers in Offarese and that they select/appoint Olofa from among the Princes of the Ruling House whose turn it is to ascend the throne, which evidence according to learned counsel, were consistent and unchallenged by cross-examination. He then urged us to hold that the Kingmakers in Offarese can choose anybody from the Princes without the participation of the princes or Princesses.
As for the judgment of the learned trial Judge in Suit No. KWS/OM/2/86, which he refused to follow when his attention was drawn to it by the Appellants, the learned counsel for the 1st Respondent contended that the judge is not bound by his findings in any previous case he handled as his judgment must be based on the particular facts of the case.
On the submission of the learned Senior Advocate on behalf of the Appellants that there were material contradictions between paragraph 12 of Exhibit 5 and the evidence of the DW3, he maintained that a detailed a perusal of the facts would show that there are no such material contradictions as would negative the case of Respondents.
On the reference of the learned Senior Advocate to paragraph 5.14 at page 5 of the Records on the issue of free competition in the custom of picking an Oloffa of Offarese, and the role of the Kingmakers, he insisted that there is no contradiction in the address of the 1st Respondent’s counsel as the free competition as argued on page 48 lines 11 – 13 of the Records is in line with the customary selection by Kingmakers and free competition does not eliminate the role of Kingmakers but leads to the selection by the Kingmakers.
In the final analysis he asserted that throughout the length and breadth of the trial, there was no where the evidence from the defence supported the case of the Appellants and urged us to resolve Issue Number One (1) in favour of the Respondents. Issue NUMBER TWO (2): on whether the 1st Defendant is from Oke-Offa or Ile- Arin in Offarese; the learned counsel for the 1st Respondent argued that the learned trial Judge considered a number of issues before arriving at the conclusion that the 1st Respondent is from Oke-Offa and as such it was wrong for the Appellants to allege that the Honourable Judge did not consider recent acts which would have assisted him in resolving the issue. He pointed to the position of Chief Petu in relation to the location of Oloffa of Offarese which was considered in detail before the learned trial Judge came to the irresistible conclusion that when last Oloffa of Offarese was at Ile-Arin the present Oloffa was the Petu and that as soon as the 1st Respondent was appointed Oloffa of offarese, the stool of Petu moved to Ile-Arin.
It was then submitted that the fact of the location of Chief Petu during the reign of the last Oloffa removes all doubts as to whether the 1st Defendant was from Oke Offa or Ile-Arin. The last Oloffa was from Ile-Arin while Petu was at Oke Offa (1st Respondent) he further insisted. For the avoidance of doubt, he quoted paragraph 4(f) of the 2nd Respondent’s Statement of Defence submitting that the evidence of the PW5, DW2 and DW3 corroborated the above pleaded facts adding that there would have been no need for the learned trial Judge to consider other recent acts before reaching a conclusion as suggested by the Learned Senior Counsel for the Appellant. He then urged us to resolve the issue against the Appellants.
On Exhibit 6B, Learned Counsel to the 1st Respondent submitted that it has no probative value since it was tendered by a custodian and not the maker or receiver of the document (which was conceded by the learned senior Advocate in paragraph 21 of his address at page 84 of the Records). As such, no cross examination of the DW5 on the document’s content was necessary as same was tendered only to prove that it was received and kept by DW5 and not as a defence for the 1st Defendant.
It was finally submitted that the learned trial Judge needed not to refer to content of the Exhibit 5 and the reference and reliance on the said document by Learned Senior Advocate is misconstrued and may mislead this Court. On ISSUE NUMBER 3 which is whether the Court below was right in holding that the Appellants were not entitled to any of the declarations sought; Learned Counsel alluded to the pleadings of the parties that there are two Ruling Houses in Offarese and that the two Houses are sub-divided into Ruling Families respectively some of the families which were mentioned and the trial Court found exactly as pleaded from the evidence and documents.
According to the Learned Counsel, for the Court below to hold that there are two Ruling Houses in Offarese would have been contrary to the pleadings and evidence before the Court and the Court would have omitted the clear evidence on oath that subfamilies or sub-divisions exist. In any case, Learned Counsel posited, whether there are two Ruling Houses or not was not of particular importance to the suit. He rounded up his submissions on this issue with the assertion that the trial Judge did not go beyond the issues joined and urged the Court to resolve the issue against the Appellant as the grant or refusal of the prayer by the trial Court is of no material effect and consequences on the case.
As for ISSUE NUMBER 4 which questions whether the 1st Defendant/Respondent was properly appointed; the Learned Counsel for the 1st Respondent insisted that the original pleadings of the Appellants and their reply to the statement of defence of the 1st Respondent were clearly contradictory. He recalled that the case of the Appellants was that the 2nd Appellant forged along with one other person nomination papers without consulting other Kingmakers of Offarese and pointed out that Learned Counsel to the Appellants did not quote the learned trial Court rightly in Appellants Issue Number 4, paragraph 8.02 at page 8 of their Brief. Learned Counsel for the 1st Respondent then reproduced what the learned trial Judge said in that respect at page 158 of the Record of proceedings (or page 7 of the Judgment) and submitted that the above quotation means that the Appellants admit in their pleadings that the King makers are the ones who nominate and appoint the Olofa.
According to Learned Counsel and with references to pages 160, 161, 162, 163 and 164 of the Records, despite the above quoted portion of the judgment, the Court went ahead and painstakingly considered and resolved the issue of nomination and appointment of the 1st Respondent by Kingmakers.
He restated the findings of the lower Court that the Reply to the statement of defence contradicted Exhibit 1 submitting further that the said paragraph 2 also contradicted Exhibit 2 and his statement of claim generally by in one breath stating that the Kingmakers were responsible for appointment of Olofa whereas, in Exhibit 1 no role is given to the Kingmakers; more so, as the Appellants’ witnesses denied the role of Kingmakers.
He then quoted the evidence of the 2nd Appellant who testified as PW4 and his admission under cross-examination that appointment of an Olofa is done through selection by Kingmakers.
This contradiction according to Learned Counsel warranted the Court to correctly disbelieve the witnesses for the Appellants but believed the un-contradicted evidence of the Respondents and their witnesses. In view of the above submissions he urged the Court to resolve ISSUE 4 again in favour of the Respondents.
ISSUE NUMBER 5 (FIVE) which is whether the Court below could make use of evidence on Petu to decide the case as it did, he answered the question in the affirmative as according to him facts on Petu title were pleaded. Thus, he submitted the Learned Senior Counsel to the Appellants wrongly submitted that facts on Petu title were not pleaded. References was made to paragraph 4(f) of the 2nd Respondent’s statement of Defence and paragraph 6(1) of 1st Respondent’s Statement of Defence at page 28D of the Records that he was the Petu as at the time he was nominated by the Kingmakers which facts were supported by the evidence on record by PW5 at page 116 and DW1 at page 125 of the Records.
The trial Judge, he therefore urged, was right to have relied on such evidence which was based on pleaded facts and therefore admissible. We were again prayed to answer ISSUE 5 in the affirmative.
ON ISSUE NUMBER 6 which questions whether the judgment of the lower Court was perverse the Learned Counsel for the 1st Respondent submitted that the judgment is well reasoned and not perverse but founded on the evidence before the Court. It was his further submission that the points raised on pages 12 to 15 of the Appellants Brief were irrelevant or had been adequately addressed by the earlier Submissions of the Respondent in his Brief.
On the question of inheritance as raised by the Learned Senior Counsel for the Appellants, the Learned counsel for the 1st Respondent urged that the information was fished out from Exhibit B which has no probative value because it was tendered only by its custodian and not its maker or somebody concerned with the content.
Secondly, merely inheriting a wife does not show fraternity as claimed by the Appellants’ counsel as a wife can be inherited on the maternal side under Yoruba custom or even by neighbours depending on the circumstances. He added that there is no evidence to link the 1st Respondent with the person who inherited the woman; and to worsen the situation for the Appellants, the issue of an inherited woman was not pleaded anywhere. Accordingly, he asserted on the authorities of Saura v. Adegoke & Odetunde (30 NSCQR 269, 287; G.N.I.C. Ltd. v. Ladgroup Ltd (1986) 4 NWLR (pt. 33) 72 at 77 that the documents and contents are not admissible if not so pleaded.
Finally it was contended that even if wrongly admitted, the court of Appeal has the duty to expunge it from the Records. He urged us to hold that the judgment is not perverse and to uphold the said judgment and dismiss the appeal.
ARGUMENTS OF THE LEARNED ATTORNEY-GENERAL ON BEHALF OF THE 2ND RESPONDENT.
ISSUE NUMBER ONE (1):
on whether Exhibit 1 is at variance with paragraph 2 of the Reply to the statement of Defence and whether the Kingmakers can choose anybody from the Princes to appoint as Olofa without the participation of the princes and princesses, the learned Attorney General submitted that the contents of Exhibit 1 speak for themselves and it is quite clear that it is the Ruling House that selects, nominates and appoints a candidate for the appointing authority whereas paragraph 2 of the Reply to the statement of Defence is to the effect that it is the princes and princesses that make a nomination to be presented to the 2nd Claimant/Appellant who further presents him to the Kingmakers and thereafter to the 2nd Respondent.
Accordingly, the learned Attorney posited that the Court below rightly held that there is a contradiction between the mode of nomination and appointment of an Olofa of Offarese as contained in Exhibit 1 and as stated in paragraph 2 of the Reply to the Statement of Defence and as such, the Court rightly dispensed with the two contradictory procedures provided by the Claimants and accepted the reliable evidence of DW1 and DW2 at pages 121-130 of the Records as regards the mode of nomination and appointment of a new Olofa of Offarese.
The learned Chief Law Officer urged this Court to note that the DW1 and DW2 are Kingmakers in Ofarese who are conversant with the mode of appointment of which by their evidence they had participated in appointing Olofa prior to the appointment of the 1st Appellant, thus, their evidence was therefore accurate on the native law and custom in this regard.
He maintained that native law and custom, being a matter of evidence to be proved and decided on the facts of each particular case therefore entitles the trial Court to find on the most credible consistent and reliable evidence before it and to hold rightly same accordingly. Anchoring the above submission on Fadiora v. Abonde (1992) 6 NWLR (Pt. 246.221; he urged us to resolve the issue in favour of the Respondents.
ISSUE NUMBER TWO (2) on whether the 1st Defendant/Respondent is from Oke-Offa or Ile-Arin? Here the learned Senior Advocate submitted that by the evidence before the trial Court, the 1st Respondent is from Oke-Offa and not Ile-Arin because the PW1, PW2, PW4 and PW5 all stated that the 1st Defendant/ Respondent’s house is located at Oke-Ofa and under cross-examination all the said witnesses including the PW3 who was over 90 years could not give details as to when the 1st Respondent’s house was built or acquired. Furthermore, the 1st Respondent being the immediate past Chief Petu of Ofarese during the reign of Olofa Abdulramonu Aleshinloye who was from Ile-Arin cannot by the evidence and findings of fact of the Court below, come from Ile-Arin more so, where there is ample evidence led on the pleadings that Oke-Ofa is not made up of just the Royal Family of the 1st Appellant (Paragraph 3(a) of the 1st Respondent’s Statement of Defence and evidence of DW3 on pages 131 to 137 of the Records) refers.
Again, the learned Senior Advocate added, Exhibit 4 is evidence of performance of the 1st Respondent’s civil duty at his family house submitting on the authority of Fadallah v. Arewa Textiles Ltd. ( 1997) 7 SCNJ 202; Dakat v. Dashe (1997) 12 SCNJ 90 and Ehidimheu v. Musa (2000) 4 SCNJ 325 at 350; that he who asserts must prove. He urged us to hold that the Appellants have not been able to prove that 1st Respondent is not from Oke Ofa.
As for ISSUE NUMBER THREE (3), on whether the court below was right to have denied the Appellants the declaration sought as to whether there are only two Ruling Houses in the learned Attorney-General took the view that the court was right in so doing based on its findings at page 762 of the Records (last paragraph), having taken judicial notice of the two ruling houses, and its sub-divisions into families. It was therefore argued that making the declaration does not assist the case of the Appellants since the law does not impose on a court the style or mode of writing a judgment and accordingly, the court was right in not making the declaration sought.
For this submission, he cited the case of Adamu v. The state (1991) 6 SCNJ 33 at 40; submitting further that evidence was led at the trial court as to the emergence of the two Ruling Houses and accordingly the court did not go beyond its jurisdiction in making findings contrary to the contention of the learned senior Counsel for the Appellants.
The learned Attorney quoted the findings of the lower court at page 162 of the Record and reiterated that from the foregoing, it can be easily concluded that the trial Court properly reviewed/evaluated the evidence before it and acted within its jurisdictional competence to hold that the Appellants were not entitled to the declaration sought’ we were then urged to allow the Ground of Appeal and the issue formulated there upon which should be resolved against the Appellant.
On ISSUE NUMBER FOUR (4), which touches on the propriety of the 1st Respondent’s appointment, the learned senior counsel submitted that the Appellants were evasive in the presentation of the holding of the trial Court at page 158 of the Records. The learned Attorney reproduced the holding of the court below in the page in question submitting that by the evidence before the Court, it is clear that the 1st Respondent was – nominated and appointed through presentation to the 2nd Defendant/Respondent by the 2nd Appellant as paramount Kingmakers in line with Native Law and Custom who in turn presented the 1st Respondent to the 2nd Respondent.
According to him, the issue of nomination did not arise but that the germane issue was where the 1st Respondent comes from and the Court below had considered Exhibit 1 and other evidence before concluding that it was the selection of the 1st Respondent by the Kingmakers and his eventual presentation to the chief Ada to the Kingmakers and final presentation to the Elese of Igbaja that was proper and in accordance with Native Law and custom of Offarese. He urged us to so hold.
The learned Attorney-General further pointed to the findings of at page 160 to contend that contrary to the submission of the Appellant’s Senior Counsel that the evidence elicited by the witnesses for the 1st Respondent’s are not contradictory but rather it is those of the Appellant’s witnesses that were contradictory and at variance with their pleadings. He noted that the Court below put the totality of the evidence on the imaginary scale of justice and property weighed them before dismissing the case of the Appellant. For this submission, he placed reliance on the cases of Ndulue v. Ojiakor (2001) 14 NWLR (pt. 734) 742 and Ajiburu v. Ajayi (2004) 11 NWLR (pt. 885) 458; to urge us to resolve the issue in favour of the Respondents by holding that the 1st Respondent was properly appointed.
ISSUE NUMBER FIVE (5), on this issue which is whether the trial court can use evidence on Petu to decide the case as it did, the learned Attorney-General answered the poser in the affirmative urging on us to so hold. He then submitted that the chieftaincy title of Petu was pleaded in paragraph 6(i) of the 1st Respondent’s statement of Defence at page 28D of the Records which he reproduced and alluded to the findings of the lower court that the evidence of pw5 on Petu was corroborated by those of DW1 and DW3 that once an Olofa is appointed from Oke-Ofa, it becomes the duty and turn of Ile-Arin to nominate and appoint a chief Petu as the Olofa and Chief Petu cannot come from the same compound.
Citing Okukuje v. Akwido (2o01) 1 S.C.; on the function of pleading, he argued that each party must give his opponent sufficient outline of his case and that every allegation of fact not denied specifically or by necessary implication shall be taken as established at the hearing Thus, paragraph 6(1) of the 1st Respondent’s statement Defence at page 28D is sufficient to sustain evidence relied upon in arriving at the findings’ The authorities relied upon by the learned Senior counsel for the Appellant are said to be inapposite because they were based on facts pleaded by parties and evidence elicited by them. He then urged us once more not to disturb the findings of the trial Court but instead dismiss the appeal.
Finally on ISSUE NUMBER SIX (6) which questions whether the judgment of the court below is perverse; it was submitted by the learned Attorney General and he was of the considered view that the learned trial Judge did evaluate the evidence of the parties properly and was not in error to have held that the 1st Respondent’s nomination and appointment is not an issue because both parties agreed that he was appointed and presented to the 2nd Respondent but that the only point of disagreement is where the 1st Respondent comes from.
Flowing from the above, he continued, the court eventually came to the conclusion that the 1st Respondent was properly nominated by the Kingmakers in accordance with the Offarese Native Law and custom and he urged us to so hold. on the nature of the decision appealed against, he sought anchorage on the case of Irewole Local Government v. Oyeyemi (1993) 1 SCNJ 127 at 138; to further assert that it is trite that every decision of a court of Justice should not only flow logically from the conclusions of fact and law made by the court but must be seen to be a logical result of that exercise. In the case at hand, it was his submission that the findings of the court revealed the logical result of an exercise and rightly allowed the tile of Petu which formed part of the pleadings to guide it.
He insisted that the findings on time immemorial as canvassed by the learned SAN on behalf of Appellants is of no moment when compared with the interpretation given to it by the learned trial Judge and as such this Court should not disturb the findings. The learned Senior Law Officer submitted also contrary to the position taken by the learned Senior Counsel for the Appellants on the judgment in the suit earlier decided by the learned trial Judge on the Olofa Stool that the learned trial Judge did consider all available evidence before it in arriving at its final conclusion by dismissing the case in its entirety. We were then urged to dismiss the appeal and affirm the decision of the lower Court.
APPELLANTS’ REPLY BRIEFS: It would be recalled that the learned Senior Counsel to the Appellants filed Reply Briefs to the Briefs of the 1st and 2nd Respondents. In the Reply to the 1st Respondent’s Brief, the Senior Advocate on behalf of the Appellants submitted on the contention of the learned Counsel for the 1st Respondent that Ground 1 is vague and without particulars or explanation, that the said Ground like a ground alleging that the judgment is against the weight of evidence and particulars there for cannot be given as it would amount to arguing the appeal under the particulars which is prohibited by order 6 Rule 2(3) of the Court of Appeal Rules.
Relying on the case of Avop Plc. v. Attorney General Enugu state (2000) FWLR (pt. 2) 251 at 270; he further submitted that a perverse decision is that which is persistent in error as where a trial court took account matters which ought not to have taken into account or where the Judge shut his eyes to the obvious. As for the Ground in question he maintained that it is not vague and in any case the learned counsel for the Respondent had responded to the said Ground and Issue Number six (6) which is formulated from it and has not shown any indication that he has not understood same except that he cannot defend the perverse judgment adequately.
On Grounds 2 – 7, the learned Senior Counsel argued that they have supplied sufficient particulars although those particulars need not tally with the Respondent’s own thinking. The 1st Respondent, he again contended, understood the ground and responded to the issues raised there from. He referred to the dicta of Ogundare, JSC; in Imoniyame Holdings Ltd v. Soneb Ent. Ltd. (2002) FWLR (pt.90) 1445 at 145 and Ayoola, JSC; in Aderounmu v. Olowu (2oo1) FWLR (pt. 652) 253; where the Supreme court mitigated its view on technicalities in the drafting of Grounds of Appeal; to finally urge us to overrule the objection on the grounds that: (1) the objection to Ground 7 in particular appears to him (learned Counsel to the Appellants) argument on the Ground; (2) the correctness of the statement complained about has not gone to the merit of the Appeal’ since the Respondent’s counsel has argued the Ground of Appeal and discussed the issue.
On the arguments of the learned Counsel to the 1st Respondent on the six issues formulated, the learned Senior Counsel also replied to all of them submitting in respect of Issues Numbers 1-4 that the Respondent has not destroyed their submissions.
Specifically, on Issue Number Two (2), the learned Senior Counsel was of the view that their Respondent’s argument rather supports their (Appellants’) submission that the Court did not take into consideration all the evidence before it as it is the court’s duty to consider all the issues including all the evidence led and state its reasons for rejecting or non consideration and not to overlook certain admitted evidence.
On Issue Number Three (3), learned Senior Advocate asserted that the 1st Respondent has no valid ground to justify the refusal of the court below to grant the declaration sought as it is the claim of the Plaintiff that determines the jurisdiction of the trial Court.
On Issue Number Five (5), it was submitted that the mere fact of pleading in paragraph 4(f) of the Statement of Defence of the 1st Respondent that Petu and Olofa cannot be in the House at the same time cannot support the episodic use of Petu to justify the finding of the Court as no issues were joined on the facts used by the court.
On Issue Number Six (6), the learned Senior Counsel again insisted that the Respondent’s have not assailed their submission as it was the Respondents who brought the Exhibits to support their case and they cannot resile from it because they now find it against them. On Exhibit 68 which the Respondents purported that the learned Senior Counsel conceded to, he also maintained that he only made an observation that the person who tendered it could not be cross-examined but that the evidence remains as it is and since none of the parties demonstrated that the document was worthless, the Court had to use it but rather closed its eyes when even the 2nd Respondent relied on it at pages 68 – 69 of the Records.
On the contention by the Respondents that the 2nd Respondents tendered the Exhibit as a custodian, it was submitted by the learned Senior Advocate that the 2nd Defendant procured it as one of the evidence to support the nomination and appointment of the Respondent as vividly demonstrated it page 144 of the Records (the evidence of DW5) that the 1st Respondent hairs from Oke-Ofa.
Relying on Fagunwa v. Adibi (2004) ALL FWLR (pt.226) 340 at 358 E – H and G.T.B. Plc. v. FADCO Industries Ltd (2005) All FWLR (pt. 287) 913 at 934 935; he finally submitted that the court cannot ignore documentary evidence and rely on oral evidence alone thereby denying the Appellants justice. Secondly, where a trial court fails to examine exhibits thoroughly the Appeal court is entitled and enjoined to do so and make a finding on it. We were urged still to allow the Appeal.
In respect of the Reply to the 2nd Respondent’s Brief, the learned Senior Counsel to the Appellants on Issue Number one (1) urged us to disregard the Respondents, submission as contained in paragraph 4.1,0 of their Brief and hold that there is no conflict as it is common knowledge that a Royal House consists of princes and princesses who are described as Omo Oshokos as they have already demonstrated. On Issue Number Two (2) and the learned Attorney’s submission in paragraph 4.12(iv) of the1st Respondent’s Brief, the learned senior counsel stated that the paragraph rather supports their Appellants contention that Oke-Ofa consists of diverse people who are not necessarily of Oke-Ofa Royal blood and who came there to settle for one reason or the other as they have demonstrated in their Brief and the facts in the Exhibits which the learned trial Judge ignored.
on Issue Number Three (3), the learned SAN also was of the view that the court below was not entitled to reframe the claim of the Appellants and the 2nd Respondent’s contention that the Court was entitled to its style of judgment writing is irrelevant so is their contention that the Claimant/Appellant is not assisted by the court making declaration on the number of Ruling Houses as no issues were joined on the number of families that form the Ruling Houses.
According to the learned counsel for the Appellant, the court did not answer the question when it found out that there are two Ruling Houses and then concluded in its judgment that the Appellant s claim that there are two Ruling Houses in Offarese is not made out and accordingly, they are not entitled to such declaration.
On Issue Number Two (2), the Appellant simply adopted their main Brief.
On Issue NUMBER FIVE (5): Here the learned senior Counsel contended that the 2nd Respondent’s argument in respect of the pleading on Petu, particularly, in paragraph 6(1) of the statement of Defence of the 1st Respondent and quoted paragraph 4.53 of 2nd Respondent’s Brief, merely described the 1st Respondent as a title holder and there is nowhere in the pleadings any of the parties mentioned that once an Olofa is appointed the title of Petu moves to another House.
He maintained that the Law is that every party must plead any material fact relevant to his case and that evidence elicited from cross-examination is not admissible unless the pleadings are amended to accommodate such evidence. It was finally submitted in this respect once more that the fact that 1st Respondent is described as Petu and not denied will not upgrade such description to accommodate how he became Petu or the implication of his being Petu to amount to proper pleading if such crucial fact as the title of Petu was not in dispute. The 2nd Respondent’s argument on the issue, he urged, does not hold water and should be rejected forthwith.
On ISSUE NUMBER SIX (6): The learned senior Counsel reiterated that their argument thereon has not been refuted by the 2nd Respondent’s Brief and accordingly, this court should discountenance same and allow the Appear.
DETERMINATION OF THE PRELIMINARY OBJECTION.
Before delving into the resolution of the six issues and the arguments canvassed by learned counsel in the respective Briefs of the parties, I shall first deal with the Preliminary objection of the learned Counsel for the 1st Respondent as contained in paragraphs 2.0 to 2.5 of the 1st Respondent’s Brief.
Beginning- from GROUND 1 of the Appellants’ Notice of Appeal which complains that: “The decision of the trial Court is perverse”, the grouse of the learned counsel for the 1st Respondent is that no particulars or explanations were given as to the perversity of the said Ground and accordingly, it is vague and ambiguous leaving this court to speculate on the meaning and purport of the ground. On the part of the Appellants, the learned Senior Advocate on their behalf has submitted that a Ground alleging perverse judgment is a general ground like one alleging that the judgment is against the weight of evidence and as such, particulars cannot be given for it as this would tantamount to arguing the appeal under the particulars, a procedure which is prohibited by Order 6 Rule 2(3) of the Court of Appeal Rules.
Now, in attempting to rule on this objection, it is necessary and appropriate to examine the judicial authorities together with the Rules of Court upon which the respective learned counsel predicated their submissions and to buttress their respective and disparate positions.
In CCB v. Ekperi (2007) 1 – 3 NSCQLR (Vol. 29) 175, the Supreme Court per Niki Tobi, JSC; at page 194 paras. F – H had this to say on incompetent Ground of Appeal:-
“Where no Ground of Appeal is filed on a matter, the Court will come to the conclusion that the Appellant is satisfied with the particular matter. However, where there is no competent ground on a matter, the court will come to the conclusion that there is no competent ground matter. In the second situation, the Appellant may have a complaint but the complaint has not been competently articulated in the Ground of Appeal. In both situations, an appellate Court will not go into the hearing of the appeal.”
Although, the above dictum of the learned and eminent judicial icon is apt on the effect of an incompetent of Ground of appeal filed by a party, I have also had a careful perusal of the decision in Nwankwo v. EDCS (2007) 1- 3 NSCQLR (Vol. 29) 73; which to the best of my assessment the ratio thereof is on the substantiality and relationship of the Grounds of Appeal and the Issues formulated there from to the ratio or decision but not directed at the obiter dictum of the Court or in the judgment. See per Onnoghen and Ogbuagu, JJSC; at pages 97 98 and 106 of the Report. With due respect to learned counsel to the 1st Respondent, the authorities above cited do not seem to be apposite to the point or his grouse as stressed in his objection to Ground 1 of the Appellants’ Grounds of Appeal.
For the avoidance doubt, order 6 Rule 2(3) of the court of Appeal Rules, 2007, which was ably cited by the learned Chief Olorunnisola, SAN, stipulates thus:-
“(3) The Noticed of Appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.”
However, by Rule 3 thereof: “Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and a ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.”
In the case at hand, the learned senior Advocate on behalf of the Appellants has cited and relied on the case of Avop Plc. v. Attorney General Enugu state (2000) FWLR (pt. 2) 251 at 280 paras. E – F; where Olagunju, JCA; in concurring with the lead judgment of his learned brother Ubaezonu, JCA, then of the court of Appeal, Enugu Division; posited on what translates into a perverse Judgment thus:-
“If in the face of these wanton acts of interference the learned trial judge came to the conclusion that the Respondent did not interfere with the affairs of the Appellant such a conclusion must be perverse within the meaning of that expression in Atoragbe v. Shorun (1985) 76 NSC, (pt. 7) 472, 482, 485 (1985) 1 NWLR (pt. 2) 360 and Adimora v. Ajufo (1988) 3 NWLR (pt. 80) 1, 16 as persistent in error such as where the trial judge took into account matters which it ought not to have taken into account or where the Judge shut his eye to the obvious. On the facts of this case, to decide in the face of overwhelming evidence before the trial court that there was no interference with the Appellant with the Respondent is to turn, a blind eye to the Respondent’s excess.”
Apart from the dicta of their Lordships in the cases above cited, ‘perverse’ in its simple grammatical term has been defined by chambers 21st century Dictionary, Revised Edition, 2006, by Mairi Robinson and George Davidson; to mean: “I Deliberately departing from what is normal and reasonable; 2. Unreasonable, Awkward; stubborn or willful”‘ Legally, Black’s Law Dictionary, Eighth Edition by Bryan A. Garner (Editor-in-Chief), also defines the term ‘perverse verdict, as: “A jury verdict so contrary to the evidence that justifies the granting of a new trial”.
From the foregoing definitions, it is clear that the learned senior Advocate was on sound ground when he argued that the Ground of Appeal as couched but which has been so pilloried by the learned counsel for the 1st Respondent, is akin to an omnibus ground of appeal as donated or approved by Order 6 Rule 3 of the Court of Appeal.
Rules, 2007, which is to the effect that no vague ground or a ground general in terms or which discloses no reasonable ground of appeal shall be allowed except a general ground that the judgment is against the weight of evidence. where, as in this case, the term ‘perverse’ as used by the Appellants in their ground to question the judgment of the lower court has been variously defined as “deliberately departing from the normal and reasonable, un-reasonable, awkward”; and a perverse judgment is tantamount to a judgment which is against the weight of evidence to the extent that there is justification for its being set aside or for an order of retrial; the ground of appeal has not transgressed any of the Rules of this Court on the framing of grounds of appeal.
Again, going by Rule 2(3) of Order 6 of the Court of Appeal Rules, 2007, grounds of appeal are expected to be concise, precise and under distinct heads without being unnecessarily argumentative, lengthy, elaborate and/or narrative and must deal with the real complaint upon which the ground is predicated. See Arade v. Afenuroke (1988) 1 NWLR 207 and B.P. (West Africa) Ltd. v. Allen (1962) 1 ALL NLR 645 at 649. After all, the intents and purposes of precision and conciseness of a ground of appeal are to furnish the Respondent with the case to be met and narrow down the issues or issue on the appeal such that at the hearing, the Appellant’s arguments are circumscribed by what the Respondent should fairly expect and to avoid the elements of surprise. See B.P. (West Africa) Ltd. v. Allen (supra); National Investment and properties Ltd. v. Thompson Organization (1969) NMLR 99. see generally, the text practice & procedure of the supreme court, court of Appeal and High courts of Nigeria; 2nd Edition, 1995, by T. Akinola paragraphs 62.27 – 62.29 at 837 – 832 and civil Procedure in Nigeria 2nd Edition, 2000, bay Fidelis Nwadialo SAN at 807-808.
This is what the learned senior Counsel has done in this appeal by the concise and precise nature of the questioned ground. A careful perusal of the learned Senior Advocate’s argument on Issue Number six (6) would reveal that it encompasses the complaint of non or improper evaluation of the totality of the evidence by the Court below; the un-reasonability of its findings and the turning of blind eyes to very patent and strong evidence in favour of the Plaintiff, thus necessitating the allegation that the judgment of the lower court is perverse. On the other hand, the learned counsel to the 1st Respondent on Issue Number 6 prefaced his argument with the contention that the judgment of the Honourable trial Court is not perverse as it is “well reasoned and profoundly founded on the evidence before the Court”.
This position of the learned counsel for the 1st Respondent presupposes that he understood the ground in question as contending that the judgment of the learned trial judge was unreasonable and unsupportable when the totality of the evidence elicited by the Appellants and the Respondents are placed side by side and weighed on the proverbial imaginary scale of justice, which translates into alleging that the judgment in favour of the Respondents is against the weight of the evidence elicited by the Plaintiff.
Put differently, that ground (Ground 1) which is the subject of the learned counsel for 1st Respondent’s objection, presupposes that the evidence elicited by the Defendants/Respondents in the lower Court as against that of the Claimants/ Appellants could not have supported the judgment of the lower court in favour of the Defendants/Respondents, if properly evaluated. See Ajibona v. Kotawote (1971) 1 ALL NLR 74 at 86; Nta & Ors. v. Anigbo & ors. (1972) 1 All NLR (pt. 2) 74 at Bo; Mogaji & Ors. v. Odofin & Ors. (1978) 4 SC 91 at 93; Finnih v. Imade (1992) 1 NWLR 511 at 542 – 543 and Sha v. Kwan (2000) 5 SCNJ 101 at 116.
True to the submissions of the learned Senior Advocate therefore, the 1st Respondent’s counsel has not complained of his being misled by the so called vague ground of appeal, more so, he has copiously responded to the arguments proffered by the learned counsel to the Appellants on the purported incompetent ground and the issue formulated there from. I hold therefore that Ground One of the Appellants’ Grounds of Appeal is competent even though it may not have been elegantly drafted in the exact words of Order 6 Rule 3 of the Court of Appeal Rules, 2007.
GROUNDS 2 – 7:
I have looked at grounds 2-7 of the Grounds of Appeal and the arguments proffered by each of the contending learned Counsel to the respective parties and for the avoidance of doubt the questioned Grounds are hereunder reproduced as follows:-
“GROUNDS OF APPEAL”
“2. The trial Court misdirected itself when it held that the content of Exhibit 1 (agreement between 2 ruling houses) and paragraph 2 of the Claimants (now Appellants) variance with each other. The misdirection has occasioned miscarriage of justice.
PARTICULARS
i Royal Houses are made up of Prince and princesses.
ii. Omo Oshokos are prince and princesses.
iii. Exhibit 1 deal with nomination and selection within the Royal Houses.
iv. The trial Court ignored the evidence of PWs at cross-examination that Exhibit 1 does not change their custom.
“3. The trial Court misdirected itself and this has occasioned miscarriage of justice when it held; “I find by native law and custom of Ofarese the Kingmakers appoint the Olofa of Ofarese from among the princes in the Ruling House whose turn it is to present a candidate for the vacant stool of Olofa.”
PARTICULARS
i. There is evidence before the court that the Kingmakers unilaterally chose a prince they liked to be the Olofa.
ii. There is evidence before the court that the nomination and selection of an Olofa is the prerogative of the Ruling House.
iii. The court ignored its own decision in KWS/OM/2/86 delivered by this judge on 2/6/87 on this point.
“4. The trial court misdirected itself and this has occasioned miscarriage of justice when it ignored the oral and documentary evidence that the 1st Defendant (now 1st Respondent) is from Ile Arin while dwelling laboriously and unnecessarily on time of settlement of 1st Defendant at Oke Ofa.
PARTICULARS
i. The Court made no reference to the evidence of DW5 and Exhibits 2 and 2A.
ii. The Court ignored the submission of the Appellants’ Counsel in respect of evidence of DW, Exhibits 2, 24 and 3.
iii. The Appellants are not disputing title to land with the 1st Defendant.
“5. The Trial court misdirected itself when it held;
“For the above reasons I find no merit in the Claimant’s case. They are not entitled to any of the declarations sought and all the declaration sought by then) are refused.
PARNCULARS
i. One of the claims was that there are 2 Ruling Houses in Ofarese
ii. The court stated in its judgment that the 1st Defendant admitted only 2 Ruling that Houses-existed as in paragraph l0 of statement of claim.
iii. No issues were joined about the constitution of the 2 Ruling Horses.
iv. The Court reframed the case of the 1st Defendant.
“6. The trial court erred in holding that the 1st Defendant (1st Respondent) is appointed in accordance with the native law and custom of Ofarese. This has occasioned miscarriage of Justice.
PARTICULARS
i. The fact that 1st Claimant’s case fails does not justify the holding that the 1st Defendant is properly appointed.
ii. The court ignored the contradiction between the pleadings and evidence of the Defendants and the contradiction between the evidence of the Defendants witnesses.
“7. The trial Court erred in law when it applied inadmissible evidence to decide the case and this has occasioned miscarriage of Justice.
PARTICULARS
i. There is no pleaded fact about Petu.
ii. No issues were joined by the parties in respect of the stool of Petu.
iii. The issue of Petu dominated the decision of the trial Court.”
The grouse of the learned counsel for the 1st Respondent is that all the grounds as reproduced above are vague without correct particulars as to whether they are on misdirection of law or facts whereas a careful examination shows that they are of mixed law and facts in which case the particulars of both law and facts must be shown separately and that those particulars having not been so shown, they are incompetent and should be struck out.
There is no doubt that grounds of appeal are categorized into two namely:
Grounds which solely raise questions of law i.e. grounds of law and those which raise either questions of mixed law and facts or facts alone. A cardinal difference between the two categories of grounds of appeal is that in the case of grounds of law, appeals on them are as of right whereas appeals on grounds of mixed law and facts or facts alone can only lie upon leave granted either by the court from whence the appeal emanated or from the court to which the appeal lies.
This distinction came out in bold relief in the expository judgment of one of our most distinguished legal luminary and judicial guru, Karibi-Whyte, JSC; in the celebrated case of metal construction v. Migliore (1990) 2 SCNJ 2o at 26; where he intoned inter alia that:-
“Generally considered, the term ‘question of law is capable of three different meaning. First, it could mean a question the court is bound to answer in accordance with a rule of law….concisely stated a question of law in this sense is one predetermined and authoritatively answered by the laws’ The second meaning is as to what the law is. In this sense an appeal for a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter….. A question of the construction of statutory provision fails within this meaning. The third meaning is in respect of those questions which are committed to and answered by the laws. The second meaning is also what the law is. In this sense an appeal on a question of law which normally answers question on law only. Thus, any question which is within the province of the page instead of the jury is called a question of law, even though in actual sense it is a question or fact. The cases which readily come to mind are the interpretation of documents, often a question of fact, but is within the province of a judge. Also is the determination of reasonable and probable cause for a prosecution in the Tort of malicious prosecution, which is one of fact, but is a matter of law to be decided by the Judge”.
Turning to what amounts to a question of fact, the learned emeritus judicial icon continued thus:-
“The first meaning is that a question of fact is any question which is not determined by a rule of law. Secondly, it is any question except a question as to what the law is.
Thirdly, any question that is to be answered by the jury instead of by the judge is a question of fact.” See also Anoghalu v. Oraelosi (1999) 10 SCNJ 1 at 12 – 13 and Obatoyinbo v. Oshatoba (1996) 5 SCNJ 1.
If the above dictum of Karibi-Whyte, JSC; is not clear enough to the learned counsel for the 1st Respondent, in the recent case of FBN v. Abraham (2008) 36 NSCQLR 1058 at 1072; another retired and erudite Justice of the apex Court, P.O. Aderemi, JSC; threw more light into this vexed issue as to what constitutes a ground of law or of mixed law and facts or facts alone when he posited thus:-
“The important consideration in the determination of the nature of a ground of appeal is not the form of the ground rather it is the question it raises. Indeed, a ground of appeal questioning the exercise of discretion by a lower court is a ground not of law, but, at best, of mixed law and fact………..therefore, where as in the instant case, the grounds of appeal reveal a misunderstanding by the court below or a misapplication of the law to the settled and  admitted factual contents of the claim such grounds are pure grounds of law.” See (1) Ogbechie v. Onochie (7986) 2 NWLR (pt. 23 484, (2) Metal Construction (W.A.) Ltd v. Migliore (1990) 7 NWLR (pt. 126) 299 and (3) P.N. Udon Trading Company Ltd v. Sunday Abere (2001) 77 NWLR (pt. 723) 114.
Again, in Chief N.P. Ugboaja v. Sowemimo & 3 Ors. (2008) 35 NSCQR 382, Onnoghen, JSC, identified the criteria for determining whether a ground of appeal is of law or fact alone or mixed law and facts as follows:-
“In determining whether a ground of appeal is of law or fact or mixed law and fact, the court is to be guided by the following principles.-
a. Where the court is being invited to investigate the existence or otherwise of certain facts upon which the award of damages to the Respondent was based, such a ground is of mixed law and fact;
b. A ground which challenges the findings of fact made by the trial court or involves issues of law and fact can only be argued with the leave of the Appellant court;
c. Where the evaluation of facts established by the trial court before the law in respect thereof is applied is under attack or questioned, the ground of appeal is one of mixed law and fact,
d. Where the evaluation of evidence tendered at the trial is exclusively questioned, it is a ground of fact.”
Going by the dicta of their Lordships in the above cited cases and others aforementioned, I have undertaken a careful scrutiny of the grounds of appeal and their particulars and beginning from Ground 2 which complains of misdirection on the lower court’s holding .that Exhibit 1 (the Agreement between the two Ruling Houses) and Paragraph 2 of the Claimants/Appellants Reply are at variance with each other and that such misdirection has occasioned a miscarriage of justice; it is crystal clear and beyond any iota of doubt that the learned Senior Advocate has sufficiently furnished particulars as can be gleaned in the Notice of Appeal at pages 166 – 167.
In Chidiak v. Laguda (1964) 1 ALL NLR 160, it was held by the Supreme Court that misdirection occurs where the court misconceives the issues or summarizes the evidence inadequately or incorrectly or makes a mistake of law. Again, misdirection has also been held to connote a failure to submit issues of facts or the applicable law fairly and adequately for consideration of the tribunal or jury in cases of trial by jury. See per Oputa, JSC, in Veronica Graham & Ors. v. Lawrence Isamade & Ors. (1984) 11 SC 123 at 143.
Essentially, the law requires that the particulars and nature of the error of misdirection alleged in respect of a ground of appeal should be on the specific reasoning, findings or observations in the judgment in question relating to the error complained of and should be enumerated from the judgment. See Amuda v. Adetodun (1994) 9 SCNJ 59 at 65 and Globe Fishing Industries v. Coker (1990) 7 NWLR 265. The requirements as to particulars of misdirection should be stated in separate paragraphs and headings as rightly contended by the learned counsel for the 1st Respondent. See Atuyeye & Ors. v. Ashamu (1987) 1 NWLR 267 at 282 – 283 and D. Stephens Industries v. B.C.C.I (1999) 7 SCNJ 238 at 243. However, where the particulars are incorporated in the grounds in question by stating not only that errors of law and facts have been committed but go further to say why the allegations of the errors have been made, there would be no need for particularization of the errors in separate paragraphs. See Lauwers Import-Export v. Jozebson Industry Ltd. (1988) 3 NWLR 429 at 443.
It is trite that the particulars required from the grounds complaining of misdirection and errors in law are elucidations and amplifications of the complaint that arose in the ground and are not independent complaints or submissions as they tend to highlight in brief why and how the errors occurred. See Anyaoke v. Adi (1986) 2 NWLR 731; Adeniji & Anor. v. Disu (1958) 3 FSC 104; Bala v. Bankole (1986) 3 NWLR 141 and Mba v. Agu (1999) 9 SCNJ 84 AT 94.
In the appeal at hand, the learned Senior Advocate for the Appellants has particularized the errors or misdirection in all the grounds of appeal sought to be impugned by the 1st Respondent, and under various and separate headings respectively. Where he complains of misdirection as in grounds 2, 3, 4, 5; the particulars have been adequately furnished as required by law and judicial authorities. As for grounds 6 and 7 which complain of error in law, the particulars have also been adequately furnished as can be gleaned from pages 169 – 170 of the Records. I am not oblivious of the fact that some of the grounds are solely of law and some of mixed law and facts as contended by the learned counsel for the 1st Respondent. Where for instance, the errors or misdirection complained of were on facts, law or mixed law and facts, the particulars were appropriately provided. The learned counsel for the 1st Respondent is not complaining that leave of the court has not been sought by the Appellants to file and argue the grounds of appeal on mixed law and facts as required by the provisions of Section 233(3) of the 1999 Constitution, which would have rendered those grounds incompetent, thereby depriving this court of the jurisdiction to entertain the appeal. See Odutota v. Kayode (1994) 2 NWLR (pt. 3)24; per Olatawura JSC, of blessed memory.
Even then, the learned Senior Advocate has rightly argued that the strictures and technicalities attributed to the dictum of Nnaemeka Agu, JSC, in Nwadike v. Ibekwe (supra) on the drafting of grounds of appeal have often been misinterpreted by this Court and indeed legal practitioners alike. The current jurisprudential posture is that of liberalism and substantial justice with less emphasis on slavish cleavage to technical and mechanistic rules of procedure as had been settled beyond peradventure by Ayoola, JSC, while concurring with the lead judgment of Ogundare, JSC; in Imoniyame Holdings Ltd v. Soneb Ent. Ltd (2002) FWLR (pt. 90) 1445 at 1451 at 1470 that:
“It is now clearly settled by this case that what makes a ground of appeal incompetent is not whether it is framed as an error and misdirection but whether by so stating it, the other side is left in doubt and without adequate information as to what the complaint of the appellant actually is…….” See Aderounmu v. Olowu (2001) FWLR (pt. 52) 2068 or (2000) 4 NWLR (pt. 652) 253. I reiterate that the learned counsel to 1st Respondent was not misled as he has voluptuously argued all the pilloried grounds of appeal particularly Ground 7 even in the course of his preliminary objection and should have no cause to complain now. He sufficiently and thoroughly understood the purport of all the grounds he sought to impugn and accordingly the preliminary objection by the Learned Counsel on behalf of the 1st Respondent lacks merit and same is accordingly overruled and dismissed in its entirety.
RESOLUTION OF ISSUES
This brings us to the substantive issues in contention as argued by the respective learned counsel.
ISSUE NUMBER ONE (1)
The Issue which is whether Exhibit 1 is at variance with paragraph 2 of the Appellants’ Reply to the Statement of Defence of the 1st Respondent and whether the Kingmakers can chose anybody from the Princes to appoint as Olofa without the participation of the Princes and Princesses, is couched from Grounds 2 and 3 of the Notice of Appeal which complain of misdirection by the learned trial Judge which misdirection allegedly occasioned a miscarriage of justice when the learned trial Judge held that Exhibit 1 is a variance with paragraph 2 of the Appellants’ Reply to the Statement of Defence of the 1st Respondent.
The particulars of Ground 2 and the argument in support thereof are that:-
i. Royal Houses are made up of princes and princesses.
ii. Omo Oshokos are princes and princesses.
iii. Exhibit 1 deals with the nomination and selection within the
iv. The trial court ignored the evidence that Exhibit 1 does not change their custom.
The Appellants’ grouse in Ground 3 is also that the court below misdirected itself and had occasioned a miscarriage of justice when it held that it found that by native law and custom of Ofarese the Kingmakers appoint the Olofa of Offarese from among the Princes in the Ruling House whose turn it is the present a candidate for the vacant stool.
The particulars of the Ground which were also incorporated in the Learned senior counsel to the Appellants’ argument are that:-
1. There is evidence before the court that the Kingmakers unilaterally chose a Prince they liked to be the Olofa.
2. There is evidence before the court that the nomination and selection of an Olofa is the prerogative of the Ruling House and
3. The Court ignored its own decision in KWS/OM/2/86 delivered by the same Judge on the 2nd of June, 1987 on the same point.
The Respondents on the other hand have submitted on the contrary in their respective briefs that the findings of the learned trial Judge are borne out of the evidence. More particularly, the learned counsel for the Respondents have pointed out that in Exhibit 1, no mention was made of Omo Oshokos or even Princes or Princesses and Kingmakers in which case no role was given to those Princes and Princesses and the Kingmakers in the said Exhibit whereas in paragraph 2 of the Reply Omo Oshokos were mentioned along with Kingmakers. The learned counsel to the 1st Respondent went further to highlight paragraphs 5, 6, 13, 14, 15, 21 and 29(iv) of the Appellants’ Statement of claim which are also at variance with paragraph 2 of the Reply and content and purport of Exhibit 1 which according to him, worsened the Appellants’ case.
He has submitted that parties are bound by their pleadings and where pleadings contradict themselves, the court would refuse both versions, and that evidence led on such contradictory pleadings must be discountenanced. In the appeal at hand the learned counsel to the 1st Respondent has posited that the court below accepted the pleading of the 1st Respondent and the evidence led in this respect while he disbelieved that of the Appellants for being contradictory.
As for the judgment in KWS/OM/2/56 delivered on the 2nd of June, 1987 on the same point, it was contended that the judge is not bound by his previous findings in a previous case as his judgment must be based on the facts of a particular case.
To buttress the position taken by the learned counsel for the 1st Respondent, the learned Attorney-General, Alhaji Saka Isau, SAN, added that the court rightly dispensed with the two contradictory procedures provided by the Claimants/Appellants but accepted the reliable evidence of the DW1 and DW2 at pages 120 – 130 of the Records as regards the mode of nomination and appointment of the Olofa of Offarese. We were urged to note that the said DW1 and DW2 are Kingmakers who are conversant with the mode of appointment of which they had participated prior to the appointment of the 1st Appellant. The learned Attorney-General has cited and relied on the case of Fadiora v. Abonde (1992) 6 NWLR (pt.246) 221; to submit finally on this issue that the evidence of the DW1 and DW2 were accurate on the native law and custom in that regard and since native law and custom is a matter of evidence to be proved and decided on the facts of each particular case, it entitled the trial court to find on the most credible, consistent and reliable evidence before it and to hold rightly on same accordingly. We were then urged to resolve the issue in favour of the Respondents.
There is considerable substance and the learned counsel for the 1st Respondent has rightly observed that it is now trite that parties are bound by their pleadings and it is not open to them to depart from same or set up a case or elicit evidence outside their pleadings in the course of hearing. See Ambrosini v. Tinko (1929) 9 NLR 8; Domingo Paul v. George (1959) 4 FSC 198; Ajoke v. Yesufu Oba & Anor. (1962) 1 All NLR 73 (FSC); Alhaji D.S. Adegbenro v. The Attorney-General of the Federation (1962) 1 All NLR 431 (FSC) and North Brewery Ltd. v. Mohammed (1972) NNLR 133. See also Buhari and Obasanjo (2005) 13 NWLR (pt.941) 1 and Eneoli v. Oraekwe (2o06) 1 NWLR (pt. 961) 342 CA.
In the same vein, a court of trial is bound by the pleadings of the parties and it is not open to it to violate the pleadings or base its judgment on an interpretation of a transaction between the parties which neither of them pleaded nor elicited evidence in support thereof, nor can the court make a case for any of the parties contrary to their pleadings. See Ogiamien & Anor. v. Ogiamien (1967) NMLR 245; Adeleke v. Iyanda (2001) 13 NWLR (pt.729) 1 Sc; Adeniran v. Alao (2001) 18 NWLR (pt. 745) 361 sc and Ngige v. Obi (2006) 14 NWLR (pt. 999) 1.
The rationale behind this principle which is of antiquated origin stems from the fact that the primary objective of pleadings is to define the issues and narrow down the scope of controversy between the parties and thus prevent the springing up of surprises on either party. This principle of law was given judicial accentuation and assent in the recent case of Abubakar v. Joseph (2008) 34 NSCQR (pt. II) 1195 at 1243 – 1244; where I.F. Ogbuagu, JSC; in concurrence with the lead judgment of Oguntade, JSC; quoted with approval the humorous dictum of Tobi JCA (as he then was) in the case of Dr. Ochin & 15 Ors. v. Prof. Ekpechi (2002) 5 NWLR (pt.656) 225 at 240 CA, inter alia:-
“It is elementary law that parties are bound by their pleadings. This means that they must follow their pleadings bindly in the same way the blind follows his leader or lead man…Pleadings not admitted are as good as dead unless proved in court … Since pleadings have neither brain nor mouth to think or talk, it is the duty of the party to lead evidence on hrs pleadings…, See also the case of Lawson v. Afani Continental Co. Nig. Ltd. & Anor. (2002) 2 NWLR (pt. 252) 585 at 625 C.A.” In the light of the authorities above considered, the pertinent questions which call for answers are whether from the pleadings and the totality of the evidence elicited by the parties in the lower court, Exhibit 1 is at variance with Paragraph 2 of the Reply to the 1st Respondent’s Statement of Defence and whether the learned trial Judge was right to have held that he believed the evidence of the Respondents as against that of the Appellants and their respective witnesses on the mode of selection, nomination, appointment and presentation of a new Olofa of Offarese. To answer these questions, it is only necessary to have recourse to the contents of Exhibit 1, the averments in the said Paragraph 2 of the Appellants’ Reply to the Statement of Defence of the 1st Respondent; Paragraph 5 of the 1st Respondent’s Statement Of Defence and the evidence elicited in support of their respective averments/pleadings I this respect vis-a-vis the findings of the learned trial judge, on the point in issue.
Before we answer these pertinent questions however, it is necessary to correct the impression created by the Respondents that the fact of participation of the Omo Oshokos and the Kingmakers in the nomination, selection and presentation of the Olofa was not pleaded in paragraphs 5,6, 13, 14, 15, 21 and 29(iv) of the Appellant’s Brief of Argument which paragraphs, according to them are also at variance with Paragraph 2 of the Reply to the Statement of Defence of the 1st Respondent. A careful perusal of some of the paragraphs of the Statement of Claim belies this contention of the Respondents. In paragraph 2, it was pleaded that the Plaintiff was selected and nominated to the stool of Olofa of Ofarese and presented to the 2nd Plaintiff who is the Chief Ada, the Head of Kingmakers in Ofarese. Again, paragraphs 5 and 6 aver that the 2nd Plaintiff before calling for the nomination accepted the 1st Defendant ignorantly and without the consent and knowledge of other Kingmakers, and when the other Kingmakers heard, the Ada was called to order and the Ada informed the Elese of his withdrawal of the 1st Defendant’s nomination.
All these averments presuppose that there are other persons or body of persons responsible for the selection and nomination of the Olofa elect before presentation to the Chief Ada and other Kingmakers. There is therefore no conflict between paragraph 2 of the Reply to the Statement of Defence and the paragraphs of the Statement of Claim earlier highlighted. The specific mention of the Omo Oshokos came as a result of the averments of the 1st Defendant in paragraph 5 of his Statement of Defence that he was nominated by the Kingmakers and presented to the Chief Ada.
This averment on Omo Oshokos by the Appellants in the Reply to the statement of Defence, is in line with the rules of pleadings and the function of a Reply to Statement of Defence which was a necessity at that juncture to debunk the new issue of fact of selection and nomination exclusively by the kingmakers as purported by the 1st Respondent which fact did not arise from the statement of claim; for, if the assertion of the Respondent was neither challenged nor avoided, then it would have been deemed admitted. See Obot v. CBN (1993) 9 SCNJ 268 at 284; Spasco v. Alraine (1995) 9 SCNJ 288 at 3os and Ishola v. S.G. Bank (1997) 2 SCNJ 7 at -16. See further Hall v. Eve (1876) 2 Ch. D. 347 at 345; Adeniji v. Fetuga (1990) 5 NWLR 375 at 391; Bakare v. Ibrahim (1973) 6 S.C. 205 and Akeredolu v. Akinremi (1959)3 NWLR 164 at 172.
Now, a look at the recital to Exhibit 1 (the Agreement) made on the 1st November, 1998 would reveal that it was between:-
“(1) Alhaii Momodu Adigun (2) Alhaii Olorunnibe Sanni (3) Offa Royal Family (hereinafter referred-to as Oke Offa Family) of the one part and (1) Alhaji Kareem Sule Ishola (2) Alhaji Aminu Arewa (3) chief Joshua Aliyu (hereinafter ca1ed the Ile-Arin Royal Family of Offarese) of the other part, and that:-
WHEREAS:
1. The two Royal Families of Oke-Ofa and Ile Arin of Offarese town in Ifelodun Local Government Kwara state are the two Royal Houses that have been ascending the stool of Olofa of Offarese.
2. The ascension to the stool hitherto has been by struggle and unhealthy rivalry between the two Ruling Houses.
3. The rivalry between the two Royal Houses has created hatred among the families and has caused great disaffection and has affected the development of the Offarese town adversely.
4. The Royal Houses have now reasoned together and agreed henceforth on rotation of the stool between the two Royal Houses.”
The terms of the Agreement are as follows:-
(1) The ascension to the stool of Olofa of Offarese shall be by rotation between Oke-Offa and Ile-Arin in Offarese in Ifelodun Local Government of Kwara State.
(2) The rotation shall commence front Oke-Offa Royal House.
(3) Oke-Offa Royal House shall fill the present vacant stool of Olofa of Offarese.
(4) Ile-Arin shall provide the candidate to fill the stool after Oke Offa Royal House has vacated the stool.
(5) The Royal House whose turn it is to ascend the stool shall select. Appoint and present her candidate to the two Royal Houses for approval for the stool whenever the stool becomes vacant.
(6) Whenever the Royal Houses whose turn it is to appoint candidate is unable to agree on a candidate the matter shall be resolved by the intervention of the other Ruling House wha shall act as a peace maker.
(7) The nomination, selection and appointment of an Olofa shall be the exclusive preserve of the Royal House whose turn it is to fill the stool.
(8) Whenever a candidate to fill the stool is rejected by the appointing authority for good cause the same Royal House whose candidate is rejected shall present another candidate.
(9) The candidate sponsored by the Royal House shall not be rejected by the appointing authority except on the ground of the candidate being a declared bankrupt, medically declared imbecile or of unsound mind or being a notorious criminal.
(10) The two Royal Houses shall present a common front to resist inferences and or obstruction from external persons and or undue obstruction or frustrations from any appointing authority so as to maintain the integrity and solidarity of the two Royal Houses.
On the other hand, Paragraph 2 of Reply to Statement of Defence avers thus:-
“(2) The Plaintiffs aver with particular reference to Paragraph 5 of the Statement of Defence that it is the responsibility of Omo Oshokos i.e. Princes and Princesses of Olofa whose turn it is to ascend the stool to nominate a candidate for the stool and to present the candidate to the joint Omo Oshokos of the other Ruling Houses and thereafter to Ada who in turn will present the candidate to the Kingmakers and if accepted then the candidate would be presented to the Elese of Igbala as a matter of course. ”
It would be recalled that the above averment was in response to Paragraph 5 of the 1st Respondent’s Statement of Defence wherein he averred that:-
“5. The 1st Defendant says that the averment in paragraph 5 of the claim is incorrect. That he was duly nominated by the Offarese Kingmakers and presented to Chief Ada, (2nd Plaintiff) who in turn presented him to the Elese of Igbala (2nd Defendant). The 2nr/ Defendant accepted him into the Elese’s Council.”
From my perusal of Exhibit I particularly the underlined paragraphs, I find no conflict between the- averments of the Appellants in Paragraph 2 of the Reply to the Statement of Defence. If the terms of the agreement are anything to go by, Paragraph 5 thereof is very clear that it is the Royal House whose turn it is to ascend the throne that shall select, appoint and present her candidate to the two Royal Houses for the stool whenever the stool becomes vacant. By clause 6 of the agreement, where there is a disagreement within the Royal House whose turn it is to appoint a candidate, the matter shall be resolved by the intervention of the other Ruling House which shall peace maker act as Perhaps’ the clause that has been misinterpreted by both learned counsel for the Respondents and the learned trial Judge in holding that no roles have been provided for the Princes or princesses and the Kingmakers in the appointment of the Olofa, is clause 7 which provides that: “the nomination, selection and appointment of an Olofa shall be the exclusive preserve of the Royal House whose turn it is to fill the stool.”
For an undiscerning mind, this clause could be misinterpreted to mean that there is no role for Princes and Princesses and Kingmakers in the nomination, selection, and appointment of an Olofa since these personages have not been specifically mentioned in the agreement’ However, it is common knowledge that a Royal House is made up of Princes and Princesses. The DW1 at page 123 0f the Records admitted the fact of the existence of Omo Oshokos in Offarese when he stated in his evidence-in-chief thus: “I know of Omo-Shoko in Offa Irese. The people from Oke Offa in Offa Irese are those called Omo-Oshoko- His only bone of contention like all the Respondents is that “The Omo-Oshoko do not play any role in the nomination and installation of an Oloffa of Offa Irese”, and that “It is the duty of the Kingmakers to nominate a candidate for the stool whenever there is a vacancy'” In fact, he even went further to state in the same page of the Record that “the 1st Defendant is one of the Omo-Oshoko in Offa Irese”.
Even the DW2 testified in-chief at page 127 of the Records that: In the princes and princesses are known as Omo-Oshoko” although he also supported the evidence of Dw1 that the Omo-Oshoko have no role to pray in the appointment of the Olofa of Offarase but that it is the duty of the kingmakers to deliberate and appoint the rightful candidate.
To debunk the contention of the Respondents nay the learned trial Judge that Exhibit 1 is at variance with the pleading in Paragraph 2 of the Reply, paragraphs 8, 9 and 10 of the said Exhibit recognize the fact that there is an appointing authority in the persons of the seven Kingmakers headed by the Ada (now the 2nd Appellant). To lay to rest, the contention of the 1st Respondent and indeed the court below, Exhibit 1 was witnessed and signed by the Chief Ada, Alhaji Abdulkarimu Ajetunmobi; Jimoh Oyeleke (the Chief Alaboto of Ofarese) another Kingmaker and Alhaji Jimoh Aileru, the Head of the two Royal Families of Offarese. If the Kingmakers and Princes and princesses (Omo- Oshokos) had no role to play in the nomination, selection and appointment of the Otofa, they couldn’t have entered into Exhibit 1.
Apart from the foregoing, the Appellants in order to establish the fact that the Omo-Oshokos have a significant role to play testified through the PW4 at page 109 thus:-
“The Omo-Oshoko in Offarese is made up of all the members of the Oloffa Offarese family Under the native was and custom of Offarese the Omo-Oshoko are the people to nominate and present a candidate to me for the post of Olofa of Offarese. It was the Omo Oshoko in Offarese who presented H.O. Adeniyi to me. Before I presented Ramonu Ajiboye to the Elese of Igbaja, it was only one of the Omo-Oshoko who presented hint to me. He was Idrisu Olorunniontola Omo- Olaffa Aseje from Ile-Arin. He is now clear. He is from the family of Olofa Aseje Alokolose in Ile- Arin. Oloffa Aseje Alokolose was the first Olofa of Offarese front Ile-Arin.”
Under cross-examination by Chief Abolarin, he admitted thus: “I also agree that the appointment of an Olofa of Offarese is done through selection by the Kingmakers.
As the Chief Ada of Offarese. I am the head of the Kingmakers in the town.” This piece of evidence appears to have contradicted his earlier statement that the Omo-Oshokos are the people to nominate and present a candidate to him for the post of Oofa of Offarese and indeed that they presented H.O. Adeniyi (1st Appellant) to him.
However, on further cross-examination by Mrs. Funsho Lawal at page 112 of the Records, he replied as follows: “My main duty is to present any prince presented to me by the Omo-Oshoko as an Oloffa of Offarese elect to the Elese of Igbala. “To buttress the evidence of the PW4, PW5 (1st Appellant) also testified to this fact that: “I know the Oomo-Oshoko in Offa Irese they are the relations of the Olofa of Offa Irese. They are the Princes and Princesses of the Olofa of Offa Irese. The selection of any Olofa elect is usually done by the Onto-Oshoko who must then present the choice candidate to Chief Ada. “Under cross-examination by Mrs. Lawal, he reiterated that… “the Omo-Oshoko have family heads who represent each branch of Prince and princesses whenever a decision was to be taken on the selection of an Olofa elect.”
Under further cross-examination by Mr. Kuranga the witness replied that: “there are different Omo-Oshoko for Oke-Offa and Arin sectlons of Offa lrese but when it comes to choosing an Olofa elect the two sections come together to make the selection. The candidate so selected is then presented to the Kingmakers. ”
To finally seal the doom of the contention of the Respondents and the holding of the learned trial Judge that the Omo-Oshokos play no role in the selection, nomination of an Olofa, the DW3 at page 136 of the Records testified in one breath that: “The people of Offarese through the kingmakers nominate whoever shall ascend the stool of Oloffa from among the Ruling House whose turn it is to present a candidate for the stool. “But under cross-examination, he turned summersault, reprobated and approbated thus:-
“all princes and princesses in Offaresse are referred to as Omo Osoko. The Omo Oshoko have no role to paly in the nomination and selection of a candidate to ascend the stool. This is because there is always confusion among the Omo-Oshoko so the Ruling family whose turn it is to ascend the stool nominates from among its members. There are Omo-Oshoko in each ruling house. The members of each of that ruling to present a candisate for the stool of Oloffa.”
Sight should not be lost of the true purport of Exhibit 1 which is an internal agreement between the two Ruling Houses on the mechanism for the nomination, selection and eventual appointment and installation of a new Oloffa of Offarese in the event of any vacancy in the Stool. Just like the election into political offices of the President, Senators, Members of the House of Representatives, and Governors and Members of the various State Legislative Houses of the Federation; which commences from selection or nomination by members’ respective Political parties before submission of the candidates’ name to the Electoral Commission for screening and clearance; the occupation of the Stool of every Community in this Country if not universally, carries with it certain incidents or processes which begin with the selection or nomination of the candidate by the Ruling Family/House for appointment by the King makers who present the candidate to the Community and then to the Prescribed authority for installation and eventual recognition by the Traditional Council and Government. See Arowolo v. Akapo (2006) 18 NWLR (pt. 1010) 94 SC.
This process is not different from what the Appellants have pleaded in their Statement of Claim, Paragraph 2 of the Reply to the 1st Respondent’s Statement of Defence and as evidenced in Exhibit I (the said Agreement). Indeed and of truth, Exhibit  has not changed the custom of the Offarese People as far as the selection, nomination, appointment and installation of the Oloffa is concerned, as pleaded by the Plaintiffs/Appellants and ably argued by the learned Senior Counsel to the Appellants.
From the foregoing analyses of the submissions of learned counsel, the pleadings in Paragraphs 5, 6 and 17 of the 1st Respondent’s Statement of Claim and the evidence of the DW1, Dw2, and Dw3, nay the holding of the Court below that the King makers have the exclusive powers to nominate, select and appoint an Oloffa without any input from Princes and Princesses or the Omo-Oshoko of the Ruling Houses/Royal Families can never be the correct position of the tradition, native law and custom of the Offarese people.
Still on this issue, the learned senior advocate on behalf of the Appellants had drawn our attention to the decision of the selfsame Hon. Justice B. Orilonise in the unreported case of Alhaji Ramonu Ishola v. Ifebdun Local Government & Mallam Abdullahi Olatunji (suit No’ KWsloMl2/86 delivered on the 2nd day of June, 1987), a case which facts are the same with the one in hand and touched on the modalities for the selection, nomination and appointment of the Olofa of Offarese, under Native Law and Custom of the Offarese people.
The judgment of the learned trial judge was brought to his attention at page 80 of the Record of proceedings where in his address, the learned senior Advocate for the Appellants submitted thus:-
“In this regard we crave the court’s indulgence to refer to an unreported case of Alhaji Ramonu Ishola v. Ifelodun Local Government and Mallam Abdullahi Olatunji Suit No. KWS/OM/2/86 delivered on 2/6/87 by Omu Aran High Court presided over by His Lordship Hon. Justice B. Orilonise. This is a chieftaincy case involving the stool of Olofa of Ofarese, the same stool now in dispute. The court in treating the question as to who is entitled to nominate a candidate to fill the vacant stool of Olofa of Ofarese stated at page 6 lines 1-8 as follows.
Now, a look at the Certified True Copy of the unreported judgment of the learned trial Judge which was cited and carefully parried away by the court below in the consideration of the vexed issue of the modalities for the selection of candidates to fill the vacant stool of the Olofa, patently bears out the sanctity of the submission of learned Senior Counsel in this regard. For instance, at page 4 lines 30-37 and page 5 lines 1-11 of the judgment, the learned trial judge had found as follows:-
“I find as a fact that the kingmakers for Offarese are Chiefs Ada, Esa, Ojomu and Olofa and that after his selection by his ruling house the 2nd defendant was presented to the Chied Ada as head of the king makers for the town who in turn summoned a meeting both of the other chiefs and the Offarese community and presented the 2nd defendant to them as the Olofa alect. I also acceptas evidence of ………..both DW1 and DW4 that it was part of the native law and custom of Offarese that for the appointment of an Olofa elect. I also accept as evidence of……….both DW1 and DW4 that it was part of the native law and custom of Offarese that for the appointment of an Olofa elect to be proper after nomination by his ruling house he must be presented by the chief Ada to the Ires land kingmakers headed by the Elerin of Adanla from where the candidate would be recommended to the Elese of Igbaja for his approval and turbaning in consultation with the council of Irese Chiefs.”
Indeed, at page 5lines 28-39 of the same Judgment, the learned trial Judge posed some very pertinent questions pertaining to the crux of this matter as to:-
1. who is entitled to nominate a candidate to fill the vacant stool of Olofa of Offarese?
2. who is entitled in Offarese to make a final selection?
3. whether a final selection must be unanimous?
4. whether the candidate chosen by the body entitled to make the selection could be overruled by the Elese of Igbaja?
These questions he went on to answer at page 6 lines 1-8 inter alia:-
“I would hasten to add that the answers to those questions -depend on the proper ascertainment of and native law and custom of the people of Offarese relating to the selection, appointment, and installation of an Olofa.”
He then added the clincher to the present Appellants’ case when he held thus:-
“I find from the evidence adduced by the parties which I believe that the ruling family whose turn it is to present a candidate for the stool when ever vacancy exists normally nominates a candidate for the stool.
I accept the evidence of the defence that Chief Ada, Esa Ojomu and Olora all Offarese are the kingmakers for the town, that they are entitled to make the final selection of the candidate to ascend the throne and that once a candidate is presented by the kingmakers through chief Ada to the Irese land kingmakers headed by the Elerin of Adanla, that body shall in turn present the candidate to the Elese of Igbala for approval and turbaning and that the Elese cannot overrule the selection or appointment of such a candidate. The Erese of Igbala is in this wise not the traditional kingmaker or appointer of the Olofa of Offarese since his role is only to approve and turban an already selected screened and appointed candidate. See Taiwo v. Sarumi (1913) 2 NLR 703.”
No reasonable excuse has been advanced by the Respondents or the court below for departing from this already established and in the words of His Lordship “properly ascertained tradition of the selection, nomination and appointment of Olofa-elect as found by the learned trial Judge in his earlier judgment. Furthermore, even though the learned counsel for the 1s Respondent has argued that the court was not bound by its previous decision, Ehere was no evidence which took away the facts of this case from those of KWS/OM/2/86, particularly, where they relate to the same Chieftaincy stool and the self-same Judge had decided on similar facts and circumstances, that is, whether it was in” exclusive duty or power of the kingmakers to appoint an Olofa in case there is vacancy in the stool.
By the common law doctrine of judicial precedent expressed in the Latin phrase “Stare decisis” which translated into English connotes “follow what has been decided”, it is a cardinal principle of the administration of justice that like cases should be decided alike. See Ogbu v. Urum (1981) 4 SC. 7 and Johnson v. Lawanson (1971) I ALL NLR 56. Although, the learned counsel for the 1” Respondent has submitted that the facts of this case on appeal are different from those of Suit No. KWS/OM/2/2006, in truth, there can hardly be any two cases where the facts are exactly the same, but the doctrine of stare decisis does not say that the facts must be exactly the same before its application.The doctrine admits of inarticulate and subtle differences that will not necessarily hinder its application. A major determinant factor in the application of the doctrine of the judicial precedent or stare decisis is that the facts of the previous case are major, substantial, and material to the facts of the current case which calls for the application of the previous case. See Adetoun Oladeji Nig.) Ltd. v. N.B. Plc. (2007) 5 NWLR (pt. 1027) 475 SC.
In Eperokun v University of Lagos (1986) 4 NWLR (pt. 34) 162 sc; the apex court posited on the rationale behind this doctrine as follows:-
“Standing by a previous decision which has not been proved to be perverse, or to have been decided per incuriam or proved to be faulty legally or procedurally has a lot fosters stability and enhances the development of a consistent and coherent body of law.  In addition, it preserves continuality and manifest respect for the past it also assures equality of treatment for litigants similarly situated. It likewise spares the Judges the task of re-examining rules of law or principles, with each succeeding case, and also, it affords the law a desirable measure of predictability. It also helps to maintain some legal order within the judicial system.” see also Global Trans. Oceanico S.A. v. Free Ent. Nig. Ltd (2001) FWLR (pt.40) 1706.
what emerges from the above cited authorities is that in the by the Court below that its previous judgment on similar facts tendered and relied upon by the Appellants, was either perverse one of theirs. The candidate is then presented to the kingmakers) who in turn presents the candidate to the entire proved to be faulty legally or procedurally or that the custom and Tradition had subsequently changed either by Legislation or an intervening event after the previous judgment; the holding of the trial Judge in the case earlier decided and which findings thereof could have guided his decision in the present appeal, is that the nomination, selection and appointment of a candidate to the vacant stool of the Olofa begins from the Royal family or Ruling House whose turn it is to present a new Olofa, by the princes and Princesses otherwise known as Omo-Oshokos who must first select or nominate one of their. The candidate is then presented to the Chief Ada (the Head of kingmakers) who in turn presents the candidate to the entire community through the body of kingmakers of Ireseland headed by the Elerin of Adanla and subsequently that body recommends the candidate to the Elese of Igbaja for coronation or turbaning as the case may be.
The learned trial Judge also ignored the deposition in paragraph 12 of Exhibit 5 (the affidavit deposed to by the DW3 Alhaji Karimu Kadir), to the effect:-
“That following the custom and tradition of Offarese, the Oke-Offa ruling house nominated the 2nd Defendant and presented him to chief Ada (2nd plaintiff) and the 2nd plaintiff in accordance with tradition presented the 2nd defendant to the kingmakers. The kingmakers approved and appointed the said 2nd defendant as Olofa of Offarese; even through under cross-examination, he shamelessly somersaulted and denied the truth of his solemn oath.
This averment further goes to buttress the submission of the learned senior counsel for the Appellants that in the face of this clear evidence, the learned trial Judge preferred the contradictory evidence of the Respondents and relied on it to give judgment in favour of the Respondents.
Finally on this issue, even if the pleadings in paragraph 2 of the reply to the statement of defence and Exhibit 1 are in conflict as to the mode of nomination and appointment of the Olofa as contended by the Respondents (which is not the case as has been seen earlier on), the established custom as found by the learned trial Judge earlier on in suit No. KWS/OM/2/86 ought to be judicially noticed as supporting the exclusive responsibility or right of the Royal family members to select a candidate from the Ruling House whose turn it is to produce a new Olofa as has been buttressed by Exhibit 5 the affidavit deposed to by the DW3 which is at variance with the Respondents’ pleadings and evidence that the kingmakers select a candidate exclusively without any inpute; the members of the Royal family.
The learned Attorney General had in the Brief of the 2nd Respondent cited the case of Fadiora v. Abonde (1992) 6 NWLR (pt.246) 227 to buttress his submission that the evidence of the DW1 and DW2 who are kingmakers in Offarese and conversant with the mode of appointment and had participated in prior appointments before that of the 1st Appellant was accurate on the native law and custom in this regard and that native law and custom being a matter of fact peculiar to a particular case, the court was entitled therefore to find on the most reliable evidence.
Without any doubt, the position of the law as stated by the learned Attorney-General is unassailable In Fadiora v. Abonde (supra) cited by the learned chief Law officer at page 230 paras, F – G; Per Akanbi JCA (as he then was), while delivering lead judgment of Ibadan Division of this Honourable court, quoted with approval the decisions in Larinde v. Afiko 6 WACA 108; Abiodun v. Erinmolokun (1961) ALL NLR 294 at 296; (1961) 7 SCNLR 377 and Olagbemiro v. Ajagungbade III (1990) NWLR (pt. 136) 37 at 59 that:-
“It is well established principle of law that Native Law and custom is a matter of evidence to be decided on the facts presented before the court in each particular case unless it is of such notoriety and been frequently followed by Courts that Judicial notice would be taken or it without evidence required in proof.”
The learned emeritus Justice and president of The Court of Appeal further cited the Queen Exparte chief Ekpenga v. chief Ozoguta II (1962) 1 ALL NLR 265 at 268 (1962) 1 SCNLR 423; where Ademola C.J.F. posited that:-
“It is of the greatest importance that Native law and Custom is not proved by the number of witnesses called, but it is enough that one who asserts the custom should be the only witness.”
In the appeal at hand, apart from the contradictory evidence of the Defence witnesses who have approbated and reprobated on the mode of selection of the Olofa which evidence ought not to be relied upon in upholding their version of the native law and custom, the Plaintiffs witnesses’ testimonies were supported by the evidence of the DW3 who admitted both under Cross-examination and paragraph 12 of Exhibit 5 that there are Omoshokos in each Ruling House and that they as members of that Ruling House select from amongst its members a candidate for the stool of the Olofa wherever it is their turn to so present a candidate to fill the vacant stool. The above facts were in tandem with the judgment in suit No. KWS/OM/2/s6which was decided by the same Judge and by the doctrine of judicial precedent or stare decisis and the notoriety this established custom had acquired from the learned trial Judge’s earlier judgment; he ought to have followed same in finding in favour of the Appellants, but for reasons best known to him, he failed refused and/or neglected to take judicial notice of his judgment even where it was not shown that since the determination of suit No. KW5/OM/2/86, the native law and custom had changed.
Against this background, I am tempted or inclined to hold that Exhibit 1 is not at variance with paragraph 2 of the Appellants’ Reply to 1st Respondent’s statement of Defence Furthermore, I am also of the considered view that from the totality of the evidence on record, the kingmakers cannot choose any person from the princes to appoint as an Oloffa unless and until the princes and princesses otherwise known as Omo-Oshoko have participated first in the selection/nomination of one their princes for presentation to the Chief Ada, who in turn would present the candidate to the community through the Ireseland kingmakers headed by the Elerin of Adanla from where the candidate would be recommended to the Elese of Igbaja for his approval and turbaning/coronation as the case may be. Issue Number One (1) shall therefore be resolved in favour of the Appellants. ISSUE NUMBER TWO (2) WHETHER THE 1ST DEFENDANT/RESPONDENT IS FROM OKE OFA OR ILE-ARIN?
In the resolution of this issue it is necessary to resort to the pleadings of the respective parties in this respect; the evidence elicited by the parties in support thereof and the holding of the learned trial Judge on the issue. It would be recalled that the Plaintiffs/ Appellants pleaded in paragraphs 2, 3, 4, 9, 10, 11 and 12 as follows:-
“2. The 1st Plaintiff belongs to Oke Ofa Royal Ruling House and has been nominated to the stool of Olafa of Ofarese and has been presented to the 2nd plaintiff who is chief Ada, the head of the Kingmakers in Ofarese.
“3. The 1st Defendant is from Ile-Arin of Ofarese and descendant of Olofa Asele Alokoloshe of Ofarese, and one of his sons, Ganiyu R. Ajiboye has been an active member of Aseie Aloko/oshe Royal Family and has written letters on behalf of Alokoshe family before particularly in respect of Chieftaincy stool of Olofa of Ofarese.
“4. The 1st Defendant’s family moved physically to build their house at Oke Ofa but they do not form the biological part of Oke Ofa.
“9. Before 1998 the Aseje Alokoloshe Chieftaincy family had advocated for 5 Ruling Houses in Ofarese for rotational/ purposes. The letter frorn the family in 1991 shall be tendered at the hearing.
“10. The 2 Royal Houses in Ofarese are Oke Ofa and Ile Arin Ruling Houses, and the 2 families have entered into a written agreement in 1998 as to the rotation of ascendancy of the ruling Houses to the stool of Olofa. The agreement shall be tendered at the hearing,
“11. At the time when the last Olofa of Ofarese Alhali AbdulRaman Aleshinloye was contesting for the stool of Olofa of Ofarese with his predecessor, Olofa Olatunji the 1st Defendant was a leading sustporter of and represented I/e Arin Royal house at various places and before various authorities to fight the cause of AbdulRaman Aleshinloye and Ile Arin Ruling House; and
“12. Mr. Akadiri is a member of Olofa Aseje Alokoloshe Royal family of Ofarese who has written letters on behalf of Aseje Alokoloshe family in respect of Olofa Chieftaincy stool before.”
The 1st Defendant/Respondent in reaction to the above averments of the Appellants pleaded on the contrary in paragraphs 3(a), (b), (c) and (d), and 4 of his Statement of Defence inter alia:-
“3. The 1st Defendant denies paragraph 3 of the statement of claim and adds that both 1st Plaintiff and the 1st Defendant are indigenes of Oke Offa Ruling Houses and that there is no Ruling House in Offarese called Alele Alokoloshe.
The secretary of Ile-Arin from 1976 to date is Aliyu Arikewu of Ile Arin and not Ganiyu Ajiboye. Aliyu Arikewu writes letters for Ile-Arin.
(a) In Oke Offa there are Olofa Ogunlola Alokoloshe Royal family and Oloffa Molade royal family; both families descended from Olofa Arresa Ogbo Oloja. While the 1st Defendant is from Olofa Ogunlola Alokoloshe Royal family, the 1st plaintiff is from Oloffa Molade Royal family.(b) Aresa Ogbo Oloja was a hunter so are the Oke Ofa people and the Chief hunter of Offarese (Olu-ode) is always from Oke Offa Ogunjobi (an Olu-Ode) was the grandson of Aresa Ogbo Oloja and the father of Joshua Aliyu the present Olora (a kingmaker) and who is in our own Royal lineage.
(c) Oloffa Alokoloshe (our great grand father) derived the name from the Ose trees under which he farmed in his-time. The Ose tree is survived by a new generation of Ose tree till now. The land front the Ose tree to the boundary between Irepodun and Isin L.G.A. belong to Alokoloshe Ruling House. This boundary is at Oyi River
(d) As further proof that 1st Defendant is from Oke Offa, evidence will be led to show that all the dead ones of Olokoloshu family are buried in Oke-Offa and not Ile-Arin. And in Offarese, Egungun festival belongs to Ile-Arin exclusively as hunters professions belong to Oke-Offa. The 1st Defendant’s line does not participate in Egungun festival but are hunters like other Oke Offa families.
“4. The 1st Defendant says with respect to paragraph 4 of the statement of claim, that by origin and location of their family he belongs to Oke-Offa and pleads all documents to this effect.”
It is now trite that the general burden of proof in civil proceedings lies squarely on the party who would lose the case if on completion of pleadings no evidence is led in support of his case. The erudite retired supreme Court Judicial oracle Aniagolu, JSC; while pronouncing on this time-honoured principle of the law of evidence, in the celebrated case of Imana v. Robinson (1874) 6 S.C.83, adopted the position taken by the learned authors of “Phipson on Evidence” 10th Edition at page 93 paragraph 92 that:-
“The burden of proof, in this sense, rests upon the party, whether plaintiff or Defendant, who substantially asserts the affirmative of the issue. It is fixed at the beginning of the trial by the state of the pleadings, and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it, and never shifting in any circumstances whatever. If when all the evidence, by whomsoever introduce is it the party who has this burden has not discharged it, the decision must be against him.” see Seldon v. Davidson (1968) 1 W.L.R.-1083; Elemo & Ors. v. Omolade & Ors. (1968) NMLR 359; Olugunleko v. Ikuemora (1993) 2 NWLR 17; Dawodu v. Solanke (1959) L.L.R. 1 and Saura Yusuf v. Adegoje (2007) 30 NSCQLR 269.
As was rightly submitted by the learned Attorney-General, citing and relying on the cases of Fadallah v. Arewa Textiles Mills Ltd. (1997) 7 SCNJ 202; Dakat v. Dashe (1997) 12 SCNJ 90 and Ehidimhen v. Musa (2000) 4 SCNJ J2s at 350, the burden rests on the party who substantially asserts the affirmative before evidence is elicited and thereafter on the party who would lose if no further evidence is led. More particularly as far as this
case is concerned, where the Plaintiff sought for declaratory reliefs one of which was that Abdul Ramonu Ajiboye (the 1st Respondent) is from Ife-Arin and a descendant Olofa Aseje Ofokolose of Ife-Arin and that he is not entitled to be appointed the Olofoaf since it is not Ile-Arin turn to ascend the throne of the Olofa of Offarese; he must establish from the preponderance of evidence that he was/is entitled to the relief claimed.
Like every other declaratory relief, he must rely on the strength of his case and not on the weakness of the case of the Defendant. See per Karibi-Whyte, JSC; in Abaye v. Ofili & Anor. (1996) 1 S.C. 231 at pp. 320 – 322; Safami v. Gbodoru & Ors. (1997) 4 SCNJ 196; Olubodun v. Lawal (2008) 35 NSCQR 570 and Emezi v. Osuagwu (2005) 12 NWLR (pt. 939) 340. In A.G. Ekiti State v. Daramola (2003) 10 NWLR (pt. 827) 104 SC; the supreme court held that where in a chieftaincy matter, the main question is whether the family a party claims to belong to is a member of a ruling house or not, then once the crucial finding is made that, that family is not a member of the appropriate ruling house, that settles the question. The number of stocks making up the ruling house becomes a non- issue.
To prove the facts above pleaded the plaintiffs/Appellants called five witnesses.
The PW1 (Alhaji Aminu Arewa) testified in respect of the origins of the Chieftaincy stool and 1st Appellant and 1st Respondent as follows:-
“The 1st plaintiff, H.O. Adeniyi is from Oke Offa in Offa-Irese town. Ramonu Ajiboye is from Ile-Arin in Offa-Irese.
I know of the chieftaincy title called Olofa of Offa-Irese. I also know that there is an agreement between Ile-Arin and Oke Offa compound in Offa Irese on ascension to the stool of Olofa of Offa- Irese.
I took part in the agreement as a member of Ile Arin in Offa Irese and I signed the agreement. This is my signature or the said agreement.
This is the agreement which I signed.” The said Agreement was admitted and marked as Exhibit 1.
The witness continued:-
“According to Exhibit f it is the turn of Adeniyi (1st plaintiff) to be the Olofa of Offa Irese.
Ramonu Ajiboye in Offa-Irese. He is the son of AbdulRaham Ajiboye also known as Ramonu Ajiboye (1st Defendant). I have never heard of the name Olofa Aseje Olokolose. There is also no family known as Olofa Aseje Alokolose in Offa-Irese.”
Under Cross-examination by Mr. Abolarin, he stated that he has been paying his income and community taxes at Ile-Arin in Offa Irese but not at Oke Offa. On further cross-examination, he admitted that Ramonu Ajiboye (1st Defendant/Respondent) has his house at Oke Offa but would not know the grandfather of the said 1st Respondent since he was not born when the house of 1st Respondent in Oke Offa was built. See pages 99 – 100 of the Records.
The PW2 (Mustafa Aliyu), at page 101 lines 115, in his evidence-in-chief confirmed that AbdulRaman Ajiboye (1st Defendant) hails from Ile-Arin in Offa Irese while the 1st Appellant H.O. Adeniyi hails from Oke Offa. He also knew one Ganiyu Ajiboye from Ile-Arin the son of the 1st Respondent and also where the house of the 1st Respondent is located at Oke Offa Area. He confirmed the evidence of the PW1 that the 1st Respondent is not from Oke Offa but only built his house thereat. It was his further evidence that the last Olofa of Offa Irese was from Ile-Arin and that the family of Olofa Aseje Alokolose is from Ile-Arin which family is related to the 1st Defendant/Respondent, AbdulRahaman Ajiboye.
The witness stated further that after the demise of the last Olofa of Offa Irese, it was the turn of Oke Offa where the 1st Plaintiff Adeniyi H.O. hails from to present the next Olofa. He admitted knowing Alhaji Jimoh Ailero who died after Exhibit 1 was made in 1998, as the most Senior Prince in both Oke Offa and Ile-Arin.
Under cross-examination by Chief Abolarin, he replied that he had never read about the name Aseje Alokolose in a document relating to Offa-Irese but only read about that name in the court proceedings when this issue was being discussed and also that he heard of the name from stories told him by his father. See lines 17 – 19 of page 101 of the Records.
The evidence of the PW3, Maliki Alabi at pages 104 – 105 of the Records, was not different from those of the PW1 and PW2 except that he added that AbdulRamonu Ajiboye (lst Respondent) is from Petu compound, Ile Aroko around Ile-Arin in Offa Irese, According-to him, Ile Olofa Aseje and Ile Arokowasile are the same in Offa Irese and that the 1st Respondent who hails from Ile-Arin and is the Chief of the compound owns a house in Offa Irese at Ile Aroko otherwise known as Ile Arokowasile. The witness gave example of one Aminu Arewa from Ile-Arin of the same family with the 1st Respondent (Petu) who owns a house at Isale Ada and not being a descendant of Ada cannot ascend the stool of Alada of Ada as he merely bought the land on which he built his house at Isale Ada but he is from Ile-Arin in Offa Irese.
He stated finaly in his evidence-in-chief thus:-
“It is not proper for the 1st Defendant, AbdulRamonu Ajiboye from Ile-Arin to contest the stool of Olofa of Offa Irese with the people of Oke Offa because the late Olofa of Offa Irese came from Ile-Arin. There is a written agreement Oke Offa and Ile Arin on how to alternate the stool.”
Under cross-examination by both Chief Abolarin and Mr. Lawal, he replied thus:-
“I agree that when I was born 90 years ago there was no writing………
The 1st Defendant’s family house has been in existence from time immemorial and efore I was born there are some people still alive and who know when the family compound of the 1st Defendant came to being. The house of Petu is now occupied by great grand children.”
Testifying in the same vein, the PW4 and (the chief Ada), at pages 108 – 112, in both his evidence-in-chief and under cross-examination, confirmed that the 1st Respondent is from Ile Arokowasile compound in Oke Offa and is not entitled to become the Olofa of Offarese from Oke Offa compound but he can become from Ire- Arin in Offarese. He confirmed that the 1st Respondent has his house close to the family of the 1st Appellant in Oke Offa but that he is a prince from Ife-Arin and he (the PW4) did not know the difference until when the princes from Oke Offa questioned him as to why he presented a prince from Ife-Arin instead of Oke-Offa for installation as Ofofa of Offarese by the Elese.
He continued in his evidence-in-chief as follows:-
“Before I presented Ramonu Ajiboye to the Ejese Igbaja, it was only one of the Omo-Oshoko who presented him to me. He was Idirisu Oloruniomola Omo-Oloffa Aseje from Ile-Arin. He is now dead. He is from the family of Olofa Aseje Alolose in Ile-Arin. Olofa Aseje Akolose was the first Olofa of Offarese from Ile-Arin. Arokowasile is only an alias name for Olofa Aseje Alokolose from Ile-Arin in Offarese. It is an Appellant.
I have ever heard the name of Ganiyu Ajiboye in Offarese. Ganiyu Ajiboye is the son of the 1st Defendant. I have also heard of AKadiri who is of the same descent as the family of Arokowasile. It is not true that because the 1st Defendant (AbdulRamonu Ajiboye) built his house in Oke-Offa in Offares and attends meetings in Oke-Offa where he pays his taxes he is entitled to become a member of Oke-Offa family and can vie for the Oloffa stool in Oke-Offa. Oke Offa and Ile-Arin in Offarese are different Chieftaincy families to the Oloffa stool.
A stranger cannot share in the family title of a family in Offarese.
The 1st Defendant is the Petu of Offarese and he is second in command to me. He is a junior chief to me among the kingmakers and as the Petu of Offarese he cannot ascend the stool of Olofa of Offarese while he is still the Chief Petu.
I know Alhaji Aminu Arewa. He is from Olofa Aseje family in Ile-Arin in Offarese. I am aware that he signed Exhibit 1. I also signed Exhibit 1 shown to me.
Going by the agreement between the two families in Exhibit 1, it is the turn of Oke Offa to present the next Oloffa of Offarese.”
Under cross-examination by chief Abolarin, he replied that:-
“I agree that Exhibit 1 was made between the two ruling families in Offarese in order to ensure that the stool was rotated between both families. It was meant to put a stop to competition for the stool between both Oke-Offa and Ile-Arin.
Before Exhibit 1 the stool was always competed for by the both fami1es. I know a little of the history of Offarese. I have never heard of the name Aresa Ogbo-Oloja in Offarese. I have also never hearri of Malade ruling family in Offarese. I do not know Malade Royal family in Offarese.
I agree that by tradition and custom of Offarese the Oke Offa people are hunters. The Egungun Festival in Offarese is always celebrated by the family of Oloffa Aseje from Ile-Arin of Offarese. The Egungun festival is celebrated within Ile-Arin by the Oloffa Aseje family.
Upon further cross-examination by Mrs. Lawal, he averred thus:
“I thought AbdulRamonu Ajiboye (1st Defendant) was from Oke Offa Royal family because he built his house in Oke-Offa Area. It was later I got to know that he was not related to Oke-Offa Royal family; I grew up to find that he was living in Oke-Offa I did not know when he built his house there. It is his family house.
I did not know the difference between the prince in Oke-Offa and Ile-Arin until I was told during the selection exercise. I had thought that the 1st Defendant was a prince from Oke-Offa since I grew up to know that Exhibit 1 was aimed at putting in place a rotational system of ascension to the stool of Olofa of Offarese. The last Olofa of Offarese was from Ile-Arin
I have my own copy of Exhibit 1. I was aware of Exhibit 1 when I went and presented the 1st Defendant to the Elese of Igbaia as the Oloffa offarese but I thought he (1st Defendant) was a Prince from Oke-Offa Royal family because he lived among members of that family. He built his house in Oke Offa but he is from Ile-Arin.”
The last witness Hezekiah Omotosho Adeniyi (the pw5 and 1st Appellant), at pages 114 – 119, also buttressed the evidence of the PW1 – PW4 that he is from Oke Offa and that AbdulRahaman Ajiboye (1st Respondent) whom he had known for over 40 years is from Ile-Arin but his house is in Oke Offa in Offarese. According to him, the settlement known as Offa Irese is in three parts, namely: Oke-Offa, Arin and Isafe-Ada.
He traced the settlement of the Arin people on Oke Offa land to a chieftaincy dispute which occurred before he was born and which necessitated the threatened movement of the Arin people from Offa Irese but the then Olofa of Offa Irese pleaded with them not to leave the village.
The Olofa then gave the Arin a part of Oke Offa as their new settlement in order to forestall a previous experience whereby the people of Offa Irese went and settled in Odo-Eku as a protest in a Chieftaincy dispute. Consequent upon the love the Olofa had for his people and in order to promote the growth of the town, the Oke Offa people agreed to live in harmony with these people from Arin and started doing things in order to promote communal togetherness which the Arin people have now misconstrued as though they are originally from Oke Offa He testified further that the 1st Respondent is the current Petu and 3rd in command to the Olofa of Offa Irese and that the said 1st Respondent is very closely related to the names of Arokowasile, Aseje and Alokolose. Aseje, he further explained, is the family name of the people of Arin of Offa Irese and Alokolose is one of the branches of Aseje family while Arokowasile is the portion of Oke Offa land which was allotted to the Arin people to settle in.
It was his further evidence-in-chief that he has been secretary of Offa Irese Community Development Association since 1989 till the date the parties were in court and he received’many correspondences pertaining to the village and the title of Olofa of Offa Irese from different families in Offa lrese. He identified Exhibits 2, 2A and 3 from Aseje Alokolose family and Exhibit 1 which was signed by Alhaji Aminu Arewa and Chief Joshua Aliyu who are both from Olofa Aseje family of Ile-Arin in Offa Irese.
Under cross-examination by Chief Abolarin, he stated thus:
“Exhibit 1 was not produced in order to change the tradition of Offa-Irese in the installation and nomination of an Olofa of Offa Irese. It was aimed at assisting the community in making a peaceful succession to the Olofa stool. Prior to making of Exhibit 1, a candidate for the stool of Olofa has to compete with other candidates. There were a lot of ups and downs during the time candidates were chosen through competition.
I have heard the name Aresa Ogbo Oloja in Offa Irese but not in relation to the Olofa not know whether he was the founder of Oke-Offa. It is correct to say he was a hunter. I now say I do not know whether he was a hunter. It is not correct to say that I do not know much about the history of Offa Irese”
On further cross-examination by Mrs. Lawal, he maintained as follows:-
“I am 67 years old. As an indigene of Offa Irese and one of all the consultations that were made before Exhibit 1 was executed. I do not know when Offa-Irese was founded or settled. I also do not know when the people of Arin were settled in Oke- Offa.
Ever before Exhibit 1 was made there was the understanding between the Arin people settled in Oke Offa that they cannot compete with the people of Oke Offa for the stool of Olofa of offa Irese. This is because the Arin people were settlers in Oke Offa and when it comes to Chieftaincy issues by tradition and custom they cannot compete with the original settlers of Oke Offa.
The people of Oke Offa were the first settlers in Offa Irese and this is why they are the on the part of 1st Defendant/Respondent, the DW1 Lawani Ayanda one of the Kingmakers in Offarese testified that the name of the founder of Oke Offa is Aresa who was a hunter and that the Olofa family in Oke Offa is the Ruling House in Offa Irese. He testified further that there is no mistake by the Kingmakers in the choice of AbdulRamonu Ajiboye as the Oloffa elect as he is Prince in Offa Irese and is entitled to ascend the stool of Oloffa of Offa Irese, he being not from Ile-Arin but from Oke Offa in Offa Irese.
According to him, he grew up to know that the 1st Respondent was born in Oke Offa, his descendants were from Oke Offa and not Ile-Arin and that his great grandfather was born in Oke Offa. Under cross-examination by chief Olorunnisola, SAN, he averred that from his house in Ojomu compound if one is going to Oke-Offa, the first house close to the church belongs to same people from Oke-Offa who migrated to erect their houses on that spot and the spot is called Emilaga house not far away from Arokowasife compound.
Furthermore, his Ojomu compound and Oloffa Alesinloye compound are both in Ile-Arin and are quite separate from Oke Offa. He stated further that he is not a prince but part of Ile Arin. He admitted knowing Aminu Arewa from Ile Oloffa Alesinloye which is in Ile-Arin who has now migrated to Isale Ada where his father called Sanni Olorin built his house very many years ago. By tradition and custom of Offa Irese, he continued, any indigene of the community is allowed to migrate from one part of the town to another and continue to live there permanently. On further cross-examination, he confirmed knowing the late son of the 1st Respondent called Ganiyu died recently but denied ever hearing of the name ofofa Aseje Alokolose page 122 liness and 9, page 124 lines 14 – 27 of the Records.
The Dw2 (Aliyu Aremu Joshua) of Ile Aroko also known as Ile Arokowasite Oke Offa Offarese one of the Kingmakers aged 82 at pages 126 – 127 lines 1 – 3, pagien 128 lines 17 – 27 to 129 lines 1 – 7 of the Records, also in his evidence-in-chief and under cross- examination, testified that the 1st Respondent is the oloja of offarese. According to him, he had heard of Aresa Ogbo-Oloja and founder of offarese who was hunter by profegsion. He claimed to hail from oke offa adding that the Ruling Houses in oke offa are lle Arokowasile and the famities of Momodu and Labiri who are also entitfed to the Oloja stoot in Offarese.
Under cross-examination by Mr. Kuranga, he stated that he was very conversant with the tradition of offarese and had ever heard of Molade famify in oke Offa which is also a Ruling family. Under cross-examination by Chief Olorunnisofa, the witness answered that he is from Arokowasile family in oke Offa and his famiry house is located thereat. The house’ he further stated is distanfly located from ojomu compound in oke offa and not within an ear shot but close to ofofa Latunji,s house within ear shot. His said house is afso close to that of AbdulRamonu Ajiboye (1st Respondent’s house) but that while Ojomu’s compound is in Ife-Arin, the 1st Respondent’s and his DW2’s houses are in Oke Offa.
On further cross-examination, he admitted thus:
“I am a prince I Oke Offa from Arokowasile ruling family. I know Ganiyu Ajiboye the son of the 1st Defendant. I know Alhaji Kadoiri. He is a member of Arokowasile family and a prince of Aseje Alokolose. I can remember that Alhaji Kadiri once wrote a letter to the kingmakersin Offarese on chieftaincy matters.”
The Dw3 Karimu Arokowasile Kadiri, also testified at pages 131 lines 21 – 27; 132 lines 1 and 2; 136 lines 13 – 77, 20 -26 and pase 137 lines 3 – 19 of the Records, that he lives in Arokowasile compound Oke Offa in Offarese and the 1st Respondent Abduf Ramonu Ajiboye who is his senior brother and a Prince of Oloffa of Offa in Offarese. It was his further evidence in-chief that Arese Ogbo-Oloja, a hunter, was his progenitor and the Oloffa who founde their Ruling family. According to him, Alokolose was the father of Arokowasile and there are two Ruling Houses for the stool of Oloffa of Offarese in Oke Offa which are Malade and Ogunola Alokolose. The 1st Defendant/Respondent is the present of Oloffa of Offarese from Ogunola Alokolose Ruling House. He denied that the 1st Defendant/Respondent and himself are from Ile-Arin and not Oke Offa of Offarese.
He was shown Exhibit 1 which he denied knowledge of but identified Exhibits 4 and 4A which are income tax receipts issued to him and the 1st Respondent as indigenes of Oke Offa by the authorities.
When questioned by chief olorunnisola, he replied thus:
“I agree that I deposed to a counter affidavit in this case on 23rd September, counter-affrdavit. I can identify the counter affidavit and my signature if I were to see it. This is the counter-affidavit and my signature.
Admitted without objection as Exhibit 5, taken as read. What I deposed to in paragraph 12 of Exhibit 5 is not true
I have seen Exhibit 3. I did not slgn it. It was the youths in my fantily who wrote it and signed it on my behalf. There is no fami/y known as Olofa Asele Alokolose in offarese. The mistake of the youths was corrected by a certain docurnent from the ruational Archrves in Kaduna.
It is not true that after Exhibit 3 my famiy still used the name olofa Aseje Alokolose in other documents the family wrote and which I signed. My signature is not on the document shown to me. ”
On further cross-examination by the learned SAN, he maintained inter alia:-
“Chief Petu of offarese in Oke Offa at the time AbdulRamonu Alesinloye was Oloffa of Offarese was the 1st Defendant (Ramonu Ajiboye). One Baba saka Omo-Owo was the petu when oloffa Abdullahi olatunli was on the throne. He died before Oloffa Abdullahi Olatunji. He had died for about two years before Oloffa olatunli died. After the death of Baba saka Omo-Owo who was Chief Petu during the reign of Olatunli no other Chief Petu was appointed by Oloffa Olatunji.
It was when AbdulRamontr Alesinloye ascenrled the stool of oloffa that the tst Defendant was made Chief Petu at Oke Offa.
There is presently no Chief Pettr ln offarese. I am not aware that the Chiefs have nominated or selected anybody as Chief Petu.
I am not aware of any written agreement between Ile Arin and Oke Offa on the selection of candidates to ascend the stool of Oloffa.
I am not aware of any agreernent made on 1st November, 1998 on the rotation of the stool of Oloffa between Ile Arin and Oke Offa.
My family became aware through the National Archives of the error in the family name in 1987. I told some members of my family then that our name was not Oloffa Asele Alokolose but Oloffa Alokolose.”
Having listened to the evidence of the respective parties in this respect, the learned trial Judge held at page 161 lines 20 -38 as follows:-
“From the evidence of the Claimants’ witnesses the lst Defendant is from lle Arin but has his family house at Oke Offa where he has lived from time immentorial. PW1, PW2, PW4 and PW5 all agree that the 1st Defendant’s house is at Oke Ofa. None of the Claimant’s witnesses could say when the 1st Defendants house at Oke Ofa was built. For instance did lte buy the piece of land on which his house at Oke ofa was built from any indigene of Oke Ofa or was the piece of land a gift from anybody fromOke Ofa?
The evidence of PW5 on how the 1st Defendant family was re-settled on the piece past Olofa of Ofarese was not pleaded and that piece of evidence went to no issue. I expunge it from the record. see Akanmu v. Adigun (1993) 7 NWLR (pt. 314) 278 and Owolabi & Ors v. Omitola & ors (1988) 5 SCNJ 1 at page 11 for the propositton that matters not pleaded go to no lssue and evidence of such rnatters ought not to be admitted but if inadvertently admltted the trial Court has a duty to expunge such evidence from the record. Almost all the Clarmants witnesses admitted that the 1st Defendants house is at oke ofa. It was only PW3 who said the 1st Defendant’s house is in Ile Arin in Ofarese. I find that pW3 is not a witness of truth. I disbelieve his evidence that the 1st Defendant’s house called Ile olofa Asele, Ile Arin, Ile Aroko, Ile Petu and or Ile Arokowasike is in Ile Arin.
I must state here with the greatest respect to the learned trial Judge, that his remark above that the evidence of PW5 on how the 1st Defendant’s family was resettled on the-piece of land by a past olofa of ofarese was not pleaded and that that piece of evidence went to no issue and was therefore expunged, is not supported by any law or rule of pleadings notwithstanding the authorities cited which may have been decided on their pecurrar facts and sound principles.
The basic position of the law and cardinal rules of pleadings and their formal requirements are as contained in order 24 Rule 4(1) and (2) of the Kwara state High court (civil Procedure) Rules cap. 68, Vol. 2, Laws of Kwara state, 1994, now replicated in order 27 Rule 2(1) and (2) of Kwara state High court (civil procedure) Rules, 2005. For the purposes of clarity, the 1994 Rule provides thus:-
“2(1) Every pleading shall contain a statement in a suntmary form of the material facts on which the party pleading relies for hls clairn or tlefence, as the case may be, but not the evidence by which they are to be proved, and shall be divided into paragraphs, numbered consecutively, and dates sums and numbers shall be expressed in figures………….
“(2) The facts shall be alleged positively, precisely and drstinctly, and as briefly as is consistent with a clear statement.”
The provisions of this rule are as clear as crystal and need no resort to interpretational guidelines to unravel judicial authorities have pronounced learned author of its intendment. Legal pundits and texts writers nay on the purport of the above rule, For instance, the “Civil Procedure in Nigeriau 2nd Edition, Fidelis Nwadialo, SAN; at page commenting on the provisions of Orders 17 Rule 4 of the Lagos State High Court (Civil Procedure) Rules and 25 Rule 4(1) of then Uniform (Civil procedure) Rules, which were in pari materia with the Rule above cited, enumerated the constituent elements of pleadings as follows:-
“(a) Every pleading shall contain material facts only.
(b) Every pleadlng shall contain material facts not law and
(c) Pleading shall not contain evidence by which the material facts alleged in it are to be proved.”
See Attorney-General, Anambra State v. Onuselogu Ent. Ltd (1987) 4 NWLR 547; North Eastern salt co. Ltd v. Electrolytic Atlantic Co. Ltd. (1913) 3 KB 422 at 425 and Okagbue v. Romaine (1982) 5 SC. 133 at 163.
From thg cbnstituent elements of pleadings as above highlighted, and in particular the third rule which concerns us here, pleadings should state material facts only and not the evidence by which these facts will be proved. Furthermore, the existence of the material facts alleged by each party must be established by evidence as it is the relevant facts only which establish the material facts that would constitute the evidence. Evidence is therefore the facts from which the existence or non-existence of material may be rationally inferred. In actual practice the distinction between what is fact and evidence is very subtle such that one can be confused for the other except on exercise of due care and diligence in the drafting technique of pleadings.
Thus, in the case of Okagbue v. Romaine (Supra), the Supreme Court undertook the difficult task of distinguishing between facts and evidence in pleadings and adopted the dictum of Lord Denman CJ; in Williams v. wilcox (1938) 112 ER 859 at 863; where it was posited inter alia that:-
“It is elementary rule of pleading that when a state of fact is relied on; it is enough to allege it simply without setting out the subordinate facts which are the means of producing it, on the evidence sustaining the allegation. Thus in a case very familar, and almost identical with the present, if a trespass be justified by a plea of highway, and if the plaintiff case is that the locus in quo, by an order justices, award of closure commissioners, Local Act of Parliament or any other lawful maens had ceased highways at that time, without alleging the particular mode by which he intends to show, in proof, that it had before then ceased to be such.”
Part of the issue which called for determination in the Supreme Court, thus warranting the adoption of the above dictum, was that the land in dispute was formerly held by the Royal Niger company.The apex court, in line with the above stetted principle, rejected the contention of the Appellant that the Respondent should have pleaded how the said company came to possess the land, how and when it surrendered it and how the present landlord came to own the land so surrendered. It was therefore held that these facts were unnecessary, apparentfy because they were evidence to prove the main issue.
In our present appeal, the court below fell into the same error of the Appellant in okagbue vs Romaine’s case by insisting that the PW5 would have pleaded the evidence of how the 1st Defendant’s family was resettled by a past olofa of offarese. Such was the relevant fact necessary to prove the material fact of the migration and settlement of the 1st Respondent from Ile-Arin to oke-ofa. There is even ample evidence from the PW5 and his witnesses that the 1st Respondent’s settlement of Ile-Aroko, or Ife Arokowasile or: Ile olofa Aseje all refer to the same persons who migrated from Ile-Arin because of chieftaincy disputes. Indeed, the PW5 was never cross-examined on this assertion that the 1st Respondent’s family members migrated from Ile Arin some years beyond memory as a result of Chieftaincy dispute and were settled on Oke-Offa land to prevent the Arin people from migrating to Ode- Eku as they were wont to do in the past during such disputes’ Having been integrated, the 1st Appellant insists that the 1st Respondent’s family seems to have lost memory of their settler status and now claim common origin and ancestry with the 1st Appellant’s Royal Family.
It was therefore unnecessary if not immaterial whether none of the witnesses for the Plaintiff testified as to whether the land was bought from any indigene of Oke Ofa or whether the fand was a gift, as it has been established from the preponderance of the evidence of the witnesses for the Appellants that the land was given to the 1st Respondent’s family by a past olofa, to prevent the 1st Respondents, progenitors from migrating to Odo-Eku as protest against chieftaincy dispute.
Besides, there is also sample evidence of the custom of indigenes migrating from one part of ofarese to settle in another part. See the evidence of the DW1 at page 124 where he admitted that from his house in ojomu compound, Ife-Arin, the first house close to the church belongs to the same people from Oke-Offa who migrated to erect their houses on that spot. That settlement is called Emilaga not far from Arokowasile compound.
Also Aminu Arewa a descendant of Ile Ollofa-Alesinloye which is in Ile-Arin has now migrated and settled at Isale Ada where he built his house. In the words of DW1:
“By tradition and custom of Offa Irese it is allowed for any indigene of Offa lrese to migrate from one part of the town to another and continue to live there permanently.”
Apart from the evidence of the witnesses for the Plaintiffs/Appellants and the 1st Defendant/Respondent, the 1st Defendant/Respondent had joined issues with the 1st Appellant when he pleaded in paragraphs 3 – 5 of his Statement of Defence that he denied paragraph 3 of the Statement of Claim wherein the fact of his not being originally from Oke-Offa Royal family or House was pleaded by the Appellants and went further to deny the existence of the Aseje Alokoloshe Royal family; the fact that his son did not write any letter in that behalf; and then traced the genealogy of Oke-Offa to Arese Ogbo Oloja, their common progenitor.
What the learned trial Judge ought to do in the face the disputed glottochronology of the genealogical pedigree of the Olofa-Chieftaincy and the origin of 1st Respondent is, as the learned Senior Counsel for the Appellants has rightly submitted, to subject the conflicting traditional evidence adverted to him, to the test laid down in Kojo II v. Bonsie & Anor. (1957) 1W.L.R. L223; where Lord Denning (as he then was) enunciated the appropriate principle in the circumstance such as the learned trial Judge found himself, inter alia:-
“Witnesses of the utmost veracrty may speak honestly but erroneously as to what took place a hundred or more years ago. Where there ls a conflict of traditional history, one side or the other must be mistaken, yet both may be right in their belief. In such a case demeanour is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is the more probable.”
See the Nigerian case of Oloriode & Ors. v. Oyebi & ors. (1984) 5 S.C. 1 at 17; where this principle was applied to set aside the judgnrent of a court of first instance which refused to apply the above principle. See further the dictum of Nnaemeka-Agu, JCA (as he then was) in Adeyemo v. Poopola (1987) 4 NWLR (pt. 66) 578 at 590 – 595.
The learned Senior Counsel for the Appellants has pointed out that the trial Judge relied on Exhibits 4 and 44 the Tax Receipts from the 1st Respondent and the DW3, whereas, he refused to review acts and events which could have assisted the Appellants’case as can be gleaned from Exhibits 2 and 2A the letter written by G.A. Ajiboye, the son to the 1st Respondent and Exhibits 3 and 6A and 6D written by the DW3 tendered by the PW5 to show that the 1st Respondent belongs to Aseje Alokoloshe family. He also referred us to page 82 lines 15 of the Record of Proceedings where in his address, he called on the learned trial Judge to compare the signature in Exhibits 3 with those in Exhibits 5,6A and 6D which he failed to do in order to determine whether the DW3 was the writer and that his family is Olofa Aseje Alokoloshe Chieftaincy family.
Now, a look at exhibit (2A) which is the English version of a letter dated 17th January, I991, (translated from Exhibit 2 written in Yoruba), would reveal that it is captioned “OLOFA ASEJE ALOKOLOSHE CHIEFTAINCY FAMILY OFARESE”; the home address given as “Ile Arokowasile, Offarese, Igbaja District, Ifeodun L.G.A., Kwara State”; while the Lagos address is “54 Obale Street, Badia, Ijora, Lagos.” Some excerpts of that letter read as follows:-
Tlte imtportance of our message to you is that you consider our message so that you can arrange succession to Olofa stool one after the other. Our family, Alokoloshe wants to be separately recognrzed rn the new succession order that we are pleading that the Community should make and we also want the chrefs ln Ofarese to so treat our family.
In this new succession order which we are praying for we want five families to be recognized so that there will be no domlnation of one family on the other, there will be no warring between the families and the town itself will have rest of mind on chieftaincy matter completely. Our arrangement goes as follows;-
1. Abdul-Rahamonu Ishola Aleshinloye
2. Family of Olofa Alokoloshe (who reigned last 158 years ago in Ofarese town)
3. The Aresinkeye family.
4. The Ewedumoye famrly – Labimpe/Labinri.
5. The family of Ojolamba who was the late Olofa.
We also think that you will consider our plea and you will make us happy about our plea before you, therefore we the descendants of Alokoloshe want to be separately recognized from the five families whlch we have put forward to you, the Community. In addition to our words our families want the Community to arrange the successlon order before the installation of the chlef.
We want this to be done wlthout any delay as this is what can enable us perform the installation happily together.
We are yours,
Olofa Aseje Alokoloshe (Chieftaincy Family Ofarese)
G. A. Aliboye
SIGNED FOR THE FAMILY”
Exhibit 3 also headed OLOFA ASEJE ALOKOLOSHE Chieftaincy Family Offarese with the same home and Lagos addresses is dated 11th May, 1991 and is a reminder to the earlier letter Exhibit 2 (2A) dated 17th January, 1991 on the Chieftaincy family’s stand on the rotational arrangement of the Ruling Houses which the community promised and assured them of working towards. They appealed to the community to speed up work in order to finish in time and to enable it face future projects. The family prayed for the progress of the community and for the Almighty God to be on their side and for long life Jor offarese people. The said letter quoted the order of rotation as embodied in their memo of 17/1/91 written in Yoruba and believed that such rotation would bring an end to future Chieftaincy mrsunderstanding and glory to the community and generations yet unborn. The letter was signed by an unnamed signatory. It is the signature in Exhibit 3 that the learned Senior Counsel on behalf of the Appellant called on the court betow to compare with those in Exhibits 5 and 64.
I have looked at Exhibit 3 which the DW3 denied that he wrote and it is clear that the signature in that Exhibit is the same with those in Exhibits 5 the affidavit which he swore to in the proceedings and 64 dated 3rd day of April, 1998, a letter addressed to Alhaji Karimu Ajetunmobi (the Chief Ada) on behalf of olofa Alokolose Chieftaincy Council. It is pertinent to note that the DW2 when cross-examined by Chief Olorunnisola, SAN admitted thus:-
“I am a Prince in Oke Offa from Arokowasile rullng 1st Defendant I know Alhajii Kadiri. He is a member of Arokowasile family and a prince of Aseje Akoloshe. I can remember that Alhaii Kadiri once wrote a letter to tlte Kingmakers in Offarese on chieftaincy matters.”
The above admission by the DW2 belies the denial of the DW3 of the existence of Aseje Alokotoshe family and the fact that he wrote Exhibit 3. Moreover, whereas he purported that he did not sign the letter and that it was the youths of his family who signed on his behalf and that the mistake of the youths in the name of Olofa Aseje Alokoloshe was corrected by a certain document from National Archives in Kaduna, no such document was tendered. The witness also purported that his family became aware through the National Archives of the error in the family name in 1987 and that he told some members of’his family then that their name was not Oloffa Aseje Alokolose but Oloffa Alokolose.
Inspite of his evidence that he discovered the error in 1987, Exhibit 2 written in 1991, bore the title Olofa Aseje Alokoloshe. Even the evidence of the DW2 who is from the same family further goes to buttress the fact that there is no difference between Aseje Alokoloshe and Ile Arokowasile. Assuming but not conceding that it is not true that after Exhibit 3 his family did not use the name Olofa Aseje Alokolose in other documents written by the said family and which he signed, it means that before Exhibits 64 and 6D which were written in 1998 and 2000, respectively; their Chieftaincy family name was Olofa Aseie Alokoloshe.
In any case, DW3 who under cross-examination stated shamelessly that: “what I deposed to in paragraph 12 of Exhibit 5 is not true”, ought not to be given any iota of credibility by the learned trial Judge, yet he gave so much probative value to his evidence. In the final analysis, since the documents tendered as Exhibits 2, 2A and 3 have shown that the 1st Respondent’s son G.A. Ajiboye was fighting the cause of Ramonu Ishola Aleshinloye who was from Ile Arin and it has been shown that Ile Arokowasile or lle olofa Alokoloshe migrated from Ile Arin to settle at Oke Offa; the learned trial Judge should have found that the 1st Respondent hailed from Ile Arin even though his family has been resident in Oke Offa from time immemorial and he has been paying his tax thereat. In the same vein, if he was accorded the status of petu on the canopy of Oke-Offa it must have been done under the mistaken belief that he hailed originally from Oke-Offa-Royal Family whereas he actually has his root in Ile Arin as has been demonstrated by the documents earlier analyzed.
Furthermore, where there was conflicting traditional evidence from the parties, the court ought to have sought for facts of occurrences in recent years from the Appellant just as he did by relying on Exhibits 4 and 44 which necessarily do not confer the 1st Respondent with a succession right as a member of oke offa Royal family; and the fact that the 1st Appellant was the Petu when Olofa Aleshinloye from Ile-Arin was the ofofa of offarese. This is because any stranger can pay his tax wherever he resides but that does not confer him with a right to succeed to the throne of such a community unless he is a member of the Royal family by blood.
On the whole, the admission by the DW2 that the DW3 wrote letters in respect of Chieftaincy matters concerning Olofa Aleshinloye and in particular Exhibit 3 which shows that Abdulrahamanu Aseje Aleshinloye hails from the Aseje Alokoloshe family of Ile Arin; the contents of Exhibits 2 and  2A (a letter written on behalf of Aseje Alokoloshe chieftaincy Family in respect and support of the said Olofa ), including the totality of the evidence elicited by all the witnesses for the parties; all go  to buttress the averments of the Appellants in paragraphs 3, 9, and 12 of their Statement of Claim.
I agree thereiore with the position taken by the learned senior Advocate on behalf of the Appellants that the court below ought to have acceded to the request of the learned senior counsel for the Appellants to compare the signatures in the documents tendered as facts of recent years to determine whether the 1st Respondent actually hails from oke-ofa or Ile-Arin. Not having done so the learned trial Judge erred in faw which error occasioned a serious miscarriage of justice against the Appellants.
Accordingly, this issue shall also be resolved in favour of the Appellant.
ISSUE NUMBER 3 (THREE): WHETHER THE TRIAL COURT WAS JUSTIFIED IN REFUSING THE FIRST LEG OF THE CLAIMANTS’ PRAYER THAT THERE ARE 2 (Two) RULING HOUSES IN OFFARESE (GROUND 5).
In our attempt at resolving this issue, it has to be noted that the claimants/Appellants in paragraph 29(i) of their statement of claim had prayed that it be declared that:
(1) By the agreernent dated 1st Noventber 1998 between Oke Ofa and Ile Arin Royal Ruling Houses there are only two Ruling Houses in Ofarese”
The pleadings in this respect as can be gleaned from paragraphs 2, 3, 10 and 11 of the statement of claim of the Appellants are that the 1st plaintiff Appellant befongs to Oke Ofa Royal Ruling House while the 1st Defendant/Respondent is from Ife-Arin and a descendant of the olofa Aseje Alokoloshe of offarese; the fact that the 2 Royal Houses in ofarese are oke ofa and Ile-Arin Houses, and that the 2 families have entered into a. written agreement in 1998 as to the rotation of ascendancy of the Ruling Houses to the stool of olofa; had earlier been reproduced in respect of Issue Number 2 above. I had also reproduced the averments of the 1st Defendant/Respondent in his Statement of Defence denying the lst Appellant’s assertions and thesaid Respondent’s contention in paragraph 3 thereof that both 1st plaintiff and the 1st Defendant/Respondent are indigenes of oke-offa Ruling House in offarese called Aseje Alokoloshe. I also reproduced sub-paragraphs (a), (b), (c), and (d) of paragraph 3 of the said statement of defence, wherein he pleaded the common origin and pedigree beginning from their common progenitor Olofa Aresa Ogbo Oloja. The evidence elicited by the respective parties in support of their respective pleadings have also been earlier reproduced in our consideration of the Issue Number 2, so has the contents of the agreement tendered at the hearing and marked Exhibit 1.
Against the above background, the court below in its findings in this respect held at page 11 lines 26-28 to page 12 lines 1-5 of the judgment (page 162-163 of the Records), inter alia:
“I hold that the claintants cannot now deny the 1st Defendant olofa front oke Ofa when to their knowledge, he had been Chief Petu from Oke Ofa before now. From the evidence of PW1, PW2, PW4 AND PW5 the 1st defendant has been living in oke ofa from time immemorial and had his family house there. None of the claimant’s witness’s could say when the family house was built. The house had been bullt before the witnesses were born. He pays his tax in Oke Ofa. See Exhiblt 4. I therefore hold and flnci that the 1st defendant is from Oke Ofa. I disbelieve the evidence of the claimants witnesses to the contrary.
I find that apart from the generalization of offarese ruling houses into Oke Ofa and Ile-Arin as contained in Exhibit 1, and as per the clairnants’the evidence before me there are ruling familes into which the two main ruling houses are sub-divided. These include Olofa Ogunlola Alokoloshg Olofa Molade in Oke Ofa as “pleaded in paragraph 3 (a) of the 1st Defendant’s statement of defence as well as the evidence of DW3 see also Exhibi; 2 and 2A, 3 and 6E where such ruling families as Ewedunntoye Labimpe/Labinri Aresinkeye an ojolamba were also mentioned. I am satisfied that the 1st defendant is a Prince from Olofa Ogunola Alokoloshe ruling family in oke ofa which is a different llneagle front the 1st claimants rulng family in Oke Ofa.”
From totality of evidence by the parties and the findings of the Court betow as above highlighted, the existence of two major Ruling Houses of Ofa-Oke and Ile-Arin in offarese or branches within the major Ruling Houses is not in doubt. What is in controversy in this case is whether the 1st Respondent and 1st Appellant are from OkeOofa so that the 1st Respondent can be appointed as an olofa from that royal house.
The learned trial Judge having found out that apart from the generalization of offarese Rufing Houses into oke ofa and Ile-Arin as contained in Exhibit 1, and as per the claimants’ evidence before him, there are Rufing Families into which the two main Ruling Houses are sub-divided; the court should have made the declaration sought by the Appellants in the first leg of their relief for whatever it is worth. Unfortunatety, the learned trial Judge held at page 14 the last paragraph of his judgment that:-
“They are not entitled to any of the declarations sought and all the declarations sought them are justified.”
I therefore agree with the contention of the learned senior advocate on behalf of the Appellants that the court below misdirected itself by failing to make the declaration sought in the first leg of the Appellants’ relief though I will hesitate to hold that the court went beyond its jurisdiction in its comment as to the number of Ruling Families in Oke-Ofa and Ile-Arin since there is ample evidence both oral and documentary to buttress the learned trial Judge’s observation. Nevertheless, this issue (Number 3) is again resolved in favour of the Appellants.
ISSUE NUMBER FOUR (4) WHETHER THE 1ST DEFENDANT WAS PROPERLY APPOINTED IN ACCORDANCE WITH THE NATIVE LAW AND CUSTOM OF OFFARESE AFTER HE HAS HELD THAT THE CLAIM WAS NOT BEFORE THE COURT AND IN VIEW OF THE CONTRADICTORY EVIDENCE BEFORE IT.
It would appear to me that this issue has been sufficienuy dealt with in my consideration of Issue Number one (1). For purposes of emphasis, it would be recalled that the Plaintiffs/Appellants had pleaded in paragraphs 5 – 8 of their Joint statement of Claim that:-
“5′ The 2nd Plaintiff before calling for nomination front oke ofa ignorantly accepted the nominatiort of the 1st Defeidant and witltout the consent or knowledge of the other Kingmakers in Ofarese but in collsboration with Chief J.K. Balogun (a politician and an honorary title holder or Ofarese forged nomination paper and presented the 1st Defendants as the candiclate to the Olofa of ofarese to the 2nd Defendant, the Elese of Igbaja.
“6. when the other Kingmakers of Ofarese heard the Ada was called to order and the Ada informed the E/ese of his withdrawal of the it defendant as the Olofa nominee and instead presented the 1st Plaintiff who is the popular choice of the Ofarese Kingmakers, closs-section of Ofarese Community and Ofarese clubs and social organizations.
“7. The 2nd Defendant refused the Ada’s change of nontrnation.
“8. The 1st Plaintiff had written to the Elese and so have some of the Ofarese Kingmakers written to the 2nd Defendant of the nomination of the 1st plaintiff.”
In paragraph 29 (iv) the Appellant sought for the appropriate Relief in this respect in the following terms:-
“(iv) The Elese of Igbaja can only recognize any person properly appolnted by the Ofarese Kingmakers in accordance with the native law and custom of Ofarese.”
Reacting to the above averments, the 1st Respondent pleaded in paragraphs 5 – 8 of his Statement of Defence as follows:-
“5. The 1st Defenriant says that the averrnent in paragraph 5 of the Claim is incorrect. That he was duly nominated by the Offarese Kingrnakers and presented to Chief Ada (2nd Plaintiff) who in turn presented him to the Elese of Igbaja (2nd Defendant). The 2nd Defendant accepted him into the Elese’s council.
“6. The 1st Defendant says that after he was nominated by the Kingmakers but before he was presented to the 2nd Defendant certain traditional rites were performed by the Kingmakers thus:-
i. During the selection meeting of the Kingmakers held in the house of 2nd plaintiff, the 1st Defendant (then the Chief Petu) was asked to go out and he did. After the selection he was invited back into the meeting.
ii. On knocking the door and entry back into the meeting all the kingmakers remained itanding. The kingmakers then pronounced him “Kabiyesi Oloffa” meaning your Royal Majesty Oloffa.
iii. They gave him a seat whrle all the kingmakers remained standing and three times they prostrated before 1st Defendant and repeated the probnouncement “Kabiyesi Oloffa” meanng your Royal Majesty Olofa.
iv. The Krngmakers clemanded for one Kolanut (Abata) and N100.00 called (Owo esebi).
v. The new Oloffa (1st Defendant) presenterl the cola and the sum of N100.00 to them and the Kola was shared along with the money. They all ate the Kolanut and swore not choose any other Olofa during the life of the 1st Defendant.
vi. The money (N100.00) was shared as follows:-
(a) Chief Ada (2nd plaintiff)Â Â Â Â N20.00
(b) Chlef Laboto        N10.00
(c) Chief Ojontu        N10.00
(d) Chtef Olora      N10.00
  (e) Cltlef Olukotun        N10.00
(f) Chief Osholo        N10.00
(g) Chief Odopo      N10.00
N10.00 each was also sent to Chief Elemosho and Chief Esso through they were not addition to the above” (Elemosh and Esoo are messengers of Olofa and Ada respectively).
vii. That in addition rites collected from the 1st Defendant are kerosene, palm-oil and later N1000.00.
viii. The kerosene was used to light lanterns which each of the Kingmakers carried and they led the new oloffa to his house with Chief Odopo (the most senior of them) in front and the new Oloffa at the back of them all. The lighted lanterns signified an enlightened reign for the new Oloffa.
ix. By the custom and tradrtion of Offarese, it is after the performance of all these rituals and payments of the rites that the 1st Defendant became the Oloffa of Offarese.
“7. The 1st Defendant says that after his nontrnation and the offarese rituals, he was presented to the 2nd Defendant by the Chiefs of Offarese led by Chief Ada (2nd plaintiff) to the lst Defendant who accepted him lnto Elese’s council as representative of Offarese in Elese’s council.
“8. The 1st Defendant says that all rituals and steps connected with the appointment and installation of an Oloffa were completed in 1999 and he had slnce becomte the Oloffa of Offarese with all Oloffa council meetings taking place in his house and with him presiding as Oba.”
In response to the averments of the 1st Respondent that he was duly nominated by the Kingmakers and had under gone all the rituals consequent upon which he became the Oloffa and had been presented to the Elese, the Appellants in their Reply to the Statement of Defence pleaded in paragraphs 2 and 3 thereof that it is the responsibility of the Omo Oshokos i.e the Princes and Princesses of Olofa whose turn it is to ascend the throne to nominate a candidate for the stool and present him to the joint omoshokos of the other Ruling Houses and thereafter to the Ada who in turn will present the candidate the Kingmakers and if accepted then the candidate would be presented to the Elese of Igbaja as a matter of course.
The Appellants further contended that the procedure allegedly adopted by the Defendants as stated in paragraph 6 of their Statement of Defence is not known to ofarese native law and custom for according to them, it is novel and amounts to cultism, and so on and so forth.
I had reproduced the evidence elicited in proof of the respective averments of the parties above highlighted earlier in respect of Issue Number one (1) and I need not repeat them here again. Suffice it to say that after weighing the totality of the evidence of the parties, the learned trial Judge came up with the finding at the last paragraph of page 158 of the Records (page 7 of the Judgment of the lower Court) thus:-
“From the pleadings filed by the Claimants in this suit, the question of the jst nomrnatron and appointment by the Kingmakers was not in issue. They admitted that the 1st Defendant was appointed as Olofa by the Kingmakers but claimed that he is from Ile Arin and not Oke Ofa. I will quote paragraphs 2, 3, 4, 5 6, a 10, 13 and 29 (iv) of the Statentent of Claim as well as paragraph 2 of the Claimants) reply to the lst Defendant’s statement of Defence to illustrate issues in dispute.”
Then at pages 160 paragraph 3 to 161 paragraphs 1 and 2, the learned trial Judge concluded thus:-
“Assuming but not conceding that what was pleacled in paragraph 2 of the claimants, reply to the 1st Defendants statement of Defence is the native law and custom of ofarese for the nomination, selection and appointment of the Olofa of Ofarese, I find from the totality of the evidence adduced by the claimants witness that the claimant did not satisfactorily prove that the procedure laid down by native law and custom was followed in the purported nomination, selection and presentation of the 1st claimant as the Olofa elect by the 2nd claimant to the Elese of Igbaja. Even if I accept that the 1st clalmant was nominated as Olofa by the Omo-Oshoko from Oke Ofa, there is no evldence that he was presented to the joint Omo-Oshoko of the other Ruling Houses before he was presented to Chief Ada. There is similarly no evidence from any of the claimant’s witnesses that Chief Ada presented the 1st claimant to the other Kingmakers and or that he was accepted by the Kingmakers as the Olofa elect before Chief Ada preiented the Elese of Igbaja. Since the native law and custom for the nomination, selection and appointment of Olofa of Ofarese as pleaded in paragraph 2 of the Claimant’s reply to the 1st Defendants’ Statement of claim is at variance with the procedure laid down in Exhlbit 1 for the same purpose, I therefore do not believe elther of them is the correct native law and custom law of Ofarese for selecting and appolntlng an Olofa of Ofarese. Native law and custom is a matter of evidence to be decided on the facts presented before the court in each particular case,, See Liadi Giwa Abiodun v. Erin Milokun (1961) 1 SCNLR 377; Ologbemiro v. Ajagungbade III (1990) 7 NWLR (pt. 136) 37 at 59and Fadiora v. Abonde (1992) 6 NWLR (pt.246) 227.
I prefer the evidence of the 1st Defendant’s witnesses to that of the Claimants, witnesses and find that DW1 and DW2 who are kingntakers in ofarese and who had participated in the apporntments of at least two past Olofa of ofarese told the trutlr when tltey said the same procedure followed in appointing the 1st Defendant was followed in the previous appointments. I find that by native law and custom of offarese the kingmakers appoint the olofa of offarese from among the Princes in the ruling house whose turn if is b present a candidate for the vacant stool of Olofa. ”
Now, the law is settled that it is the primary function of a Court of trial to make findings of facts and once such findings are not perverse, an Appellate Court should be wary to interfere or substitute its findings for that of the trial court. It also trite that the evaluation of evidence and ascription of probative value is the duty of the trial Court which had the singular opportunity of seeing and watching the demeanour of the parties and their witnesses as against an Appellate Court which is seised only of the bare record oF proceedings. However, where the trial court, in the exercise of its undoubted power or duty to evaluate and ascribe probative value or make findings of facts failed to take advantage of such opportunity or shut its eyes from established facts or made improper use of the opportuned advantage of hearing and seeing the witnesses by coming to a wrong conclusion or misapplied the law to proved facts, then an appellate court is in as good a position as the court of first instance to evaluate the evidence on record. See Amasa v. Kososi (1986) 4 NWLR (pt. 133) 57 at 69; Abubakar v. Joseph (2008) 34 NSCQLR 1195 at 1244 – 1245, per ogbuagu, JSC, and Dumez v. Nwakhoba (2008) 36 NSCQLR 885 at 906, per Mohammed, JSC; who held inter alia on this principle that:-
“The law is trite that the evaluation of evidence and the ascrrption of probatrve value to such evidence are the primary functions of a court of trial which saw, heare and assessed the witnesses. See Akinloye v. Eyiyola (1968) NMLR 92; woluchem v. Gudi (1981) 5 S.C. 297 and Amadi v. Nwosu (1992) 5 NWLR (pt. 241) 273. Although, where the issue in controversy between the parties is simply a matter of inference to be drawn from established facts on record not resttng on the credibility of witnesses as a result of their demeanour ln court or impressron of them by trial court, an appellate court is in a good a position as trial court to evaluate evidence on record. See Okafor v. Idigo III (1984) 7 SCNLR 481.”
Karibi-Whyte, J.S.C, speaking in the same vein had this to say on the function of an Appellate Court:-
“The function of an appeal court in such cases has been clearly laid down in Ukejianya v. Uchendu 73 WACA 43 at p.45; Zaria v. Maituwo (1966) NWLR 59 at 67; oroka v. Edet (1964) NWLR 118 at page 779; Egri v. uperi (7974) NWLR 22 at p. 26, Ogundiku & Ors. v. Phillips & Ors. (1973) 2 SC. 71 and many others. It is that where a Court of trial which saw and heard witnesses has come to specific findings of facts on the evidence in issues before it, an appellate court which had no similar opportunity should refrain from coming to a different finding, until it can show that the conclusions of the trial Court was perverse, or that the conclusions could not follow from the evidence before it. (See Lucy Onowan & 4 ors. v. Iserin (1976) 1 NWLR 263; Commissioner of Works and Housing v. Lababedi & 15 Ors. (1877) 11- 12 S.C. 15
After a discreet consideration of the submissions of the respective learned counsel in their Briefs and the findings made by the lower court, I am of the respectful view that his findings are not only illogical but perverse. In first place, the trial Judge cannot seriously take the view that from the pleadings filed by the claimants, the question of 1st Defendants nomination and appointment by the Kingmakers was not in issue With due respect, the crux of the Appellants’case which is buttressed by the evidence of his witnesses is that the 1st Defendant was not nominated or selected by the Omo-Oshokos or Princes and Princesses of the Ruling Families/Houses as contemplated by Exhibit 1, before presentation to the Ada and subsequengy the Elese.
The Respondents, from their pleadings, joined issues and in their evidence (which the learned trial Judge believed inspite of his earlier judgment in Suit Number KWS/OM/2/56 delivered on the 2nd day of June, 1987, purported that the Omooshokos or Princes and Princesses, had no role to play in the selection, nomination and appointment of the olofa as this power is exclusively with the Kingmakers who nominated and appointed him.
It is therefore, the height mischief and injustice to accede to the position taken by the Respondents when there is no evidence from any of the witnesses that the native law and custom of the offarese people had changed since the judgment in the above cited suit.
I agree with the learned Senior Advocate, Chief Olorunnisola, that once the 1st Defendant averred that he was duly nominated, the question of due nomination and by whom, is put in issue. I agree totally again with the learned chief and I had so held that it is now universally accepted at least amongst Nigerians that Kingmakers do not just jump into a Ruling House to pick a candidate of their choice without such candidate being first nominated by the Princes and Princesses of that Royal family and presented to the Kingmakers.
There is abundance of evidence in Exhibit 1 on the mode of setection of an Olofa which evidence was not contradicted. Indeed, the evidence of the DW3 in court and his averment in paragraph 12 of Exhibit 5 (an affidavit he deposed to in this case), went a long way in buttressing the case of the Appellants not to talk of the learned trial Judge’s decision in an earlier case on the same chieftaincy stool.
On the universality of the mode of appointment or election of a King or Oba amongst the tgrybgs as in the Olofa of Offarese Chieftaincy, onnoghen, JSC, brilliantly and succinctly stated the position of the law when he in the recent case of Arowolo v. Akapo (2006) 18 NWLR (pt. 1010) 94 S.C; held thus:
“Again, before a person is selected or elected by the kingmakers to be a holder of or entitlred to chieftaincy title, for example, an Oba, he must first amd foremost be presented by his family or the Ruling House or Houses concerned to represent it or them in the contest for the stool. Though he enters the contest as an individual, he is in effect representing the family that puts him up because it is his membership of that family that qualifies him to contest for the Chieftaincy or stool in the first place.”
I adopt my earlier reasoning and conclusions on Issue Number one (1) and hold that the evidence of the DW2 contradicted those of the DW1 and Dw3. Indeed, where the evidence of the witnesses for the Defendants have been so discredited the court ought not to have given any credit to such evidence to dismiss the case of the Appellants. See Akanmu v. Adigun (1993) 7 NWLR (pt.3oa) 218 at 235 at para. H.
Where as in this case, the Plaintiffs/Appellants showed by the earlier Judgment of the self-same Orilonishe, J. that it is rather the Omo-Oshokos or princes and Princesses or members of the Ruling House who nominate or select an olofa elect before presenting him to the Ada for onward presentation to the Elese for coronation and recognition there would have been no need for the court below to require Appellant to prove the said custom but to take judicial notice of same.
In Agbai v. Okogbue (1991) 7 NWLR (pt- 204) 391 at 427; Karibi-Whyte, JSc, in his concurring judgment accepted the proposition of the law that by section 14 of the Evidence Act, customary law is a question of fact to be proved by evidence, hence a party who alleges the existence of a particular custom must adduce sufficient evidence in support to establish its existence to the satisfaction of the court. Inyang v. Ita (1929) 9 NLR 84, referred.
He however, went on to posit that:-
“But there comes a time when by frequent litigation in the courts a points of customary law has been sufficiently ruled upon, the courts will no longer require proof, and would be prepared to take judiucial notice of it. See Ango v. Attah, P.C. (1874-1928) at 43: Buraimo v. Gbamigboye (1940) 15 NLR 139; Giwa v. Erimolokun (1961) 1 ALL NLR 294, (1961) 1 SCNLR 337. The burden is on the Defendants to establish the custom they rely upon for their sufficiently cogent and authoritative would be sufficient.- Larinde v. Afriko (1940) 6 WACA 108, but see Cole v. Akinleye (1960) SCNLR 192; Folami & Ors. v. Cole & Ors. (1990) 2 NWLR (pt.133) 445.”
Accordingly, the holding of the learned trial Judge at page 160 that: 1. he did not concede that what was pleaded in paragraph 2 of the Appellants Reply to the 1st Defendant’s Statement of Defence is the native law and custom of Offarese for the nomination, selection and appointment of olofa of Offarese; 2. that from the totality of the evidence adduced by the Claimants and witnesses, the claimant did not prove that the procedure for his nomination was foilowed; and 3. that he was not presented before the Omo-Oshokos of other ruling Houses before he was presented to Chief Ada or that he was acepted by the kingmakers as the Olofa elect before chief Ada presented him to Elese of Igbaja; with greatest respect is also not borne out of the evidence.
In his evidence-in-chief, the PW4 and chief Ada testified at pages 108 fines 22 – 27 and 109 lines 1- 18 of the Record that after the presentation of the 1st Respondent to the Efese for Installation out of ignorance, he was questioned by the oke offa family or Ruling House as to why he should present a prince from Ile Arin instead of Oke Offa for installation as Olofa. Furthermore, the princes from Oke Offa protested to him and the Ada family and also requested that he should rectify the wrong by presenting a Prince from Oke Offa for installation as the Olofa of Offarese. According to him:-
“The 1st Plaintiff H.O. Adeniyi was then presented to the Elese of Igbaja as the rightful Oloffa of Offarese. I know the Omo-Oshoko in Offarese. When H.O. Adeniyi was nominated and presented to me by the Oke-Offa Prices, I presented him to the Elese of Igaja. The Offarese community also wrote up the Elese of Igbaja that H.O. Adeniyi was thetr preferred candiciate for the stool of Oloffa of Offarese.
The Elese told me that I had made a mistake to bring the 1st Plaintiff to him because he (1st Plaintiff) is a Christian who would not be controllable by both myself and himself, He said AbdulRamonu Ajiboye should be the Oloffa of Offarese.
The Omo-Oshoko in Offarese is made up of all the members of the Oloffa of Offarese family.
Under the native law and custom of Offarese the Omo-Oshoko are the people to nominate and present a candidate to me for the post of Olofa of Offarese. It was the Omo Oshoko in Offarese who presented F.O Adeniyi to me.
Before I presented Ramonu Ajiboye to the Head of Igbaja, it was only one of the Omo Oshoko who presented him to me. He was Idrisu Olorunlomola Omo Oloffa Aseje from the Ile Arin. He is now dead. He is from the family of Olota Aseje Alokolose in the Ile Arin. Olota Aseje Alokolose was the fist Olofa Offarese from Ile Arin. Arowokosile is only an alias name for Oloffa Aseje Alokolose from Ilea rain in Offarese. It is an appellation.”
The above assertion by the Chief Ada was neither challenged nor controverted either under cross-examination by counsel for the Respondents or by any of the witnesses for the Respondents. That evidence is deemed to have been admitted by the Respondents. To buttress the fact that the 1st Appellant was selected by the Omo-Oshokos of his Oke Offa Chieftaincy family Exhibit 6E was tendered, admitted, and so marked. On the other hand, to demonstrate actually that the 1st Respondent was single handedly selected, appointed and confirmed by the Kingmakers and that he actually hails from Ile Arin, Exhibit 6c his letter of appointment was written and signed by the Kingmakers; whereas, Exhibits 2, 2A and 3 were written and signed by the chieftaincy family of Olofa Aseje Alokoloshe or Arowokosile which the PW4 has rightly described as only an alias name for Oloffa Aseje Alokolose from Ile Arin in Offarese and that “it is an appellation.”
Again, Exhibits 6B and 6F dated 17th June, 1999 and 27th April, 2000 and addressed to His Royal Highness oba Alhaji Hamadu or Hamodu Awuni Babalola the Arepo II Elese of Igbaja are headed: “OMO ILE ARIN CHIEFTAINCY FAMILY IFFARESE IFELODUN L.G.A. KWARA STATE.”These documents support the appointment of the 1st Respondent and the positiotr taken by them that it is the exclusive responsibility of the Kingmakers to select, nominate, and appoint the offarese. See particularly, Exhibit 6F which expressly states thus:-
“Sir, we learnt that the Kingmakers of Offarese unanimously presented Prince Ramonu Ajiboye as Olofa-Elect to you sir.
On our part we agreed with the Kingmakers decision.
Since the King-makers are the rightful to appoint Olofa, there is no group or any other person to intervene on the issue.
It is the authority of the Kingmakers to appoint the Olofa duty, there is nothing more.
Yours faithfully,
For the family.”
To further belie the holding of the court below, that there is no evidence as to his compliance with the custom as pleaded by him. See pages 111 and 112 of the Records and also the evidence of the PW5/1st Appellant at page 116 and in particular page 117 lines 5 -11, where he testified that he was presented to the chief Ada as the olofa elect by the Omo-Oshoko in Offarese and Chief Ada accepted his candidature and presented him to the Elese of Igbaja the 2nd Defendant as the Olofa elect. He further testified that any olofa elect must be presented to the chief Ada by the Omooshoko and it is after such presentation that the candidate would be presented to the 2nd Defendant.
This is the essence of his relief in paragraph 29(iv) of the statement of claim for a declaration that the Elese of Igbaja can only recognize any person who is properly appointed by the offarese Kingmakers in accordance with Native Law and Custom. Any person like the 1st Respondent who was single handedly selected, nominated and appointed and presented to the Elese without any input by all or majority of the Omo Oshokos has therefore not been properly appointed by the Kingmakers in accordance with the Native Law arrd custom of the Offarese people.
From the foregoing, I aqree completely with the submission of learned senior Advocate on behalf of the Appellants and the authorities cited, that the learned trial Judge erred in law when he hcld that the 1st Respondent was properly appointed having regard to the evidence elicited by his witnesses and thereby dismissing the case of the Appeffants. I agree that this error has occasioned substantial miscarriage of justice which woufd warrant this court to interfere and set aside the judgment of lower court. Issue Number Four (4) shall therefore be resolved again in favour of the Appellants.
ISSUE NUMBER FIVE (5): WHETHER THE TRIAL COURT CAN USE THE EVIDENCE ON ISSUE OF PETU WHICH WAS NOT PLEADED WHILE THE SAME JUDGE HAD EXPUNGED THE PLAINTIFFS’ EVIDENCE IN RESPECT OF SETTLEMENT UPON NON-PLEADINGS?
In our consideration of Issue Number Two (2), I had held that if the 1st Respondent was accorded the status of Petu under the canopy of Oke-Offa when olofa Aleshinloye was the olofa, it must have been done under the mistaken belief that he hailed originally from Oke-Offa Royal Family whereas he actually has his root in Ife Arin as has been demonstrated by the documents earlier analyzed There is no doubt as the learned counsel for the 1st Respondent has argued, that the 1st Respondent pleaded in paragraph 6 (i) of his statement of Defence that he was the petu as at the time he was nominated by the Kingmakers and the PW5 and DW1 support this evidence, at pages 116 and 125 of the Records.
Furthermore, the 2nd Respondent also pleaded in paragraph 4(f) of his statement Defence that in accordance with native law and custom of offarese, a person holding the title of Petu can ascend the throne as an olofa and that the only precaution is that it is always ensured that the titles of both olofa and petu do not reside in the same Ruling House at the same time.
The above notwithstanding, the evidence of the Chief Ada and all the witnesses for the Appellant have buttressed the fact that even though the 1st Respondent resides in oke offa, he takes his root from Ile Arin and can aspire for the olofaship of offarese, only under Ile Arin’ From the partisanship demonstrated by his son to support the last Olofa and the same partisanship demonstrated by the Ile Arin chieftaincy family in their various letters, it can be inferred that they (Ile Arin/Aseje Alokoloshe) manipulated the system to bring into fruition their agitations in Exhibits 2A and 3 for five separate Ruling Houses one of which is Aseje Alokoloshe, to which the 1st Respondent belongs.
This development is against native law and custom as has righily been observed by the PW4 that as the Petu of offarese, he cannot ascend the throne of olofa while he is still the Chief Petu and PW5 that it is against the tradition of offa Irese to ascend the throne of Olofa as the Chief Petu and then relinquish the title of the petu to another member of his family. Against this background, I am of the view that the learned trial Judge did not appreciate or properly evaluate the evidence rendered by the Appellants and as a result came to a wrong conclusion at page 11 of the judgment.
If the learned trial Judge had appreciated the fact that from the totality of the evidence, the 1st Respondent originated from Ile Arin, he could not have held as he did that the Claimants cannot now deny the 1st Defendant the right to ascend the stool of Olofa from oke Offa when to their knowledge, he had been Chief petu before now and because he has his house in Oke Offa from time immemorial and has been paying his taxes thereat. On the whole, I answer the question in the negative and resolve this issue against the Respondent. Although, I disagree with the learned Senior Counsel that the issue of Petu was not pleaded.
On the last ISSUE, (NUMBER SIX (6): WHETHER THE JUDGMENT OF THE LOWER COURT IS NOT PERVERSE? (GROUND 7).
On this issue, I adopt all that I have said on the definition of the term ‘perverse’ and rely on the authorities of AVOP Plc. v. Attorney General Enugu state (200) FWLR (pt. 2) 251 at 280 paras. E – F; per Olagunju, JCA; Atotagbe v. Shorun (1985) 16 NSC (pt. 1) 422, 482, 485, (1985) 7 NWLR (pt. 2) 360 and ndimora v. Ajufo (1988) 3 NWLR (pt. 80) 1, 16;
earlier cited in my consideration of the preliminary objection to hold that where as in this case, there were persistent errors and the learned trial Judge took into account matters which it ought not to have taken into account while he shut his eyes to obvious matters like his previous judgment on the mode of selection of an Olofa, Exhibits 2A, 3, 6 and others which would have supported the case of the plaintiff, his judgment is obviously perverse and against the weight of evidence and should not stand. This Issue is again resolved in favour of the Appellants.
Accordingly, I hold that this appeal is meritorious and it is hereby allowed in its entirety. The judgment of Orilonise, J. of the Kwara State High Court of justice, IlorinJudicial Division, delivered on the 1st day of February, 2007, is hereby set aside. In its stead, I enter judgment in favour of the Claimants/Appellants as prayed in paragraph 29 of their statement of claim and hereby grant all the declarations sought in the following terms:-
i. By the agreement dated 1st November, 1998 between oke Houses there are only 2 Ruling Houses there are only 2 Ruling Houses in Ofarese.
ii. Hezekiah Adeniyi is from Oke Ofa Royal House of ofarese and is entitled to be appointed as the Olofa of ofarese having been seiected and presented in accordance with the native law and custom.
iii. AbdulRamonu Aiiboye the 1st Defendant, is from Ile Arin and a descendant of olofa Aseje Alokoloshe of lle Arin ofarese and is not entitled to be appointed the olofa as it is not the turn to Ile Arin.
iv. The Elese of Igbala can only recognized any person properly appointed by the Ofarese Kingntakus in accordance with the native law and custom of Ofarese.
v. The Ifelodun/Irepodun Traditional council or any Traditional council has no statutory power to appoint an Olofa of Ofarese.
I award N50, 000.00 costs in favour of the Appellants.
TIJJANI ABDULLLAHI, J.C.A.: I have had the advantage of reading in draft the lead judgment of my learned brother, Agube JCA, just delivered. His Lordship characteristically dealt in extenso all the live issues that call for determination in this appeal. He has extensively and exhaustively set out the facts and rightly in my view resolved all the issues in favour of the Appellants.
For emphasis and support I add a few words. Exhibit 1, as can be gleaned from its contents, was entered into for the purpose of avoiding rancour when nomination is to hold for filling the stool. It seeks to provide that the stool should be rotational between two Royal Houses for selection. The two Royal Houses should act together to vet before presenting such nomination to the appointing authority.
Clause 5 of the agreement particularly states that the royal House whose turn is to present the candidates to the stool shall select, appoint and present the candidate to the two Royal Houses who will then present the candidate to the appointing authority. The importance of this clause in the light of the circumstance of this case cannot be over emphasized. This agreement foresees a possibility of rejection of candidate that may be put forward to an appointing authority. This is acknowledged that there is an appointing authority outside the Royal House. Whenever such rejection by the authority occurs, the Royal House(s) should resist it unless for good cause in which case the same Royal House should provide another candidate.
I am of the considered view that it is because of lack of understanding of Exhibit 1 and paragraph 2 of the reply to statement of defence that made the trial judge hold that the Kingmakers could go and appoint by themselves any prince without such prince being nominated to them by the concerned Royal family.
For these reasons and the fuller ones contained in the lead judgment of my learned brother, brilliantly marshaled out, I too allow the appeal and abide by the order as to costs contained therein.
CHIMA CENTUS NWEZE, J.C.A.: My noble Lord, Agube JCA, obliged me with the draft of the leading judgment which he just delivered now.
I am in agreement with His Lordship that this appeal is meritorious.
I, too, shall enter an order allowing it. I abide by the order as to costs in the said leading judgment.
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Appearances
P. A. Olorunisola SAN with Olu Oyeyiola Esq.,For Appellant
AND
Akinmade Y. Abolarin, Esq., with A.O. Akinpelu (Mrs.) (SG, PS) KWS MOJ with S. K. Grillo (Mrs.) C.S.C.; Imam Fulani Esq., (PSC) and R. A. Shittu (Mrs.) S.S.C.;For Respondent
