JOSEPH OYEBODE & ANOR v. ELDER SIMON AWE & ORS
(2011)LCN/4558(CA)
In The Court of Appeal of Nigeria
On Friday, the 20th day of May, 2011
CA/AE/54/10
RATIO
FINDINGS OF FACT: CIRCUMSTANCE UNDER WHICH AN APPELLATE COURT WILL DISTURB THE FINDINGS AND CONCLUSIONS OF FACT OF A TRIAL COURT
It is true that an appellate court will not disturb the findings and conclusions of fact of a trial court unless same are perverse and this court cannot substitute its views for those of the trial court. See CHIMA V. NKAMA (SUPRA). PER CHIDI NWAOMA UWA, J.C.A.
BURDEN OF PROOF: WHETHER IT IS THE DUTY OF THE DEFENDANTS TO PROVE THE ASSERTIONS OF THE PLAINTIFFS
It is never the duty of the defendants to prove the assertions of the plaintiffs; their duty is always to defend. PER CHIDI NWAOMA UWA, J.C.A.
DECLARATORY RELIEF: WHETHER A PARTLY SEEKING A DECLARATORY RELIEF MUST ADDUCE COGENT AND CREDIBLE EVIDENCE WHICH WILL ENTITLE HIM TO THE RELIEF SOUGHT
In agreement with the learned counsel to the respondents, a partly seeking a declaratory relief must adduce cogent and credible evidence which will entitle him to the relief sought. In this case, the plaintiffs ought to satisfy the court under all circumstances of this case that they are entitled to the declaratory relief sought. The evidence of the plaintiffs must be satisfactory to the court for it to grant such relief. PER CHIDI NWAOMA UWA, J.C.A.
CHIEFTAINCY DECLARATION: WHETHER A HIGH COURT CAN SET ASIDE A CHIEFTAINCY DECLARATION WHERE FOUND TO HAVE DEVIATED FROM THE CHIEFS LAW
There is nothing special about a chieftaincy declaration that can tie the hands of a trial court from setting it aside if it is found to have deviated from the Chiefs Law. See, the case of MAFIMISEBI VS. EHUWA (SUPRA). I therefore hold that in a chieftaincy matter, a High Court has the jurisdiction to set aside a declaration that is made out of the contemplation of either the Chiefs Law or the 1999 Constitution of the Federal Republic of Nigeria. PER CHIDI NWAOMA UWA, J.C.A.
CROSS-EXAMINATION: EFFECT OF THE FAILURE OF A PARTY TO CROSS EXAMINE A WITNESS OF THE OTHER PARTY ON MATERIAL FACTS HE DID NOT ACCEPT AS TRUE
It is trite, that the appellants if they did not accept as true the evidence of the DW3, ought to have cross examined him on the disputed facts of the history of the Imore being the first settlers and how Irode came about being entitled to the chieftaincy to show that they do not accept the evidence as true, failure of which the court would deem such evidence as accepted or undisputed. AMADI V. NWOSU (1992) (supra). I agree with the learned counsel to the respondents that the appellants failed to cross examine the DW3 on these material facts, and failed to deny the averments in the 7th respondent’s pleadings. PER CHIDI NWAOMA UWA, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
1. JOSEPH OYEBODE
2. DAUDA ADEGBOYEGA
(For themselves and other members of Irode Ruling House to the Olojebu of Oke – Ijebu – Ekiti) Appellant(s)
AND
1. ELDER SIMON AWE
2. IDOWU AWE
(For themselves and other members of Imore Family of Oke – Ijebu – Ekiti)
3. CHIEF ELIJAH ILORI OLOYE OBA’EMU
(For himself and other putative Kingmakers to Olojebu of Oke – Ijebu Ekiti title)
4. THE SECRETARY, IKOLE LOCAL GOVERNMENT
5. HIS ROYAL MA’ESTY OBA ADELEYE, THE ELEKOLE OF IKOLE EKITI
(For himself and other members of the Traditional Council of Ikole Local Govt)
6. THE ATTORNEY GENERAL OF EKITI STATE
7. ABEL OMOJOLA (For himself and other members of Ilofi Family Oke – Ijebu Ekiti) (Joined by court order) Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the High Court of Ekiti State, Ikole Ekiti Judicial division delivered by D. O. Jegede, J on 26th September, 2008.
The claim of the appellants as plaintiffs in the trial court, in their writ of summons and statement of claim dated the 26th day of November, 2003 and 21st day of November, 2003 respectively as subsequently amended claimed the following reliefs:
(a) “a declaration that IRODE is the only Ruling House to the Olojebu of Oke Ijebu Ekiti by the history, tradition and custom of Oke – Ijebu Ekiti, which only house should hence be dealt with in appointing a new Olojebu of Oke – Ijebu – Ekiti.
(b) a declaration that there is no Imore Ruling House to the Olojebu of Oke – Ijebu – Ekiti chieftaincy,
(c) a declaration that the Olojebu of Oke Ijebu chieftaincy declaration just made is against the tradition, custom and history of Oke – Ijebu – Ekiti and hence wrongful, illegal, unconstitutional, null and void,
(d) an order nullifying and setting aside the said declaration,
(e) A declaration that there are at present no substantive kingmakers who can validly appoint a new Olojebu Oke-Ijebu-Ekiti,
(f) an order restraining first and second defendant’s Imore family from taking any steps whatsoever towards the filling of the vacant Olojebu of Oke – Ijebu chieftaincy title,
(g) an order restraining the third, fourth and fifth defendants from dealing with the family of first and second defendants in appointing and installing a new Olojebu of Oke – Ijebu – Ekiti”.
The 7th respondent who was joined by the order of the trial court filed a counter-claim against the appellants and claimed the following relief:
“A declaration that by the native law and custom of Oke – Ijebu – Ekiti the seventh defendant is the head of all the Kingmakers to the Olojebu of Oke – Ijebu – Ekiti”.
The background facts are that the appellants made out that by the history, custom and tradition of Oke – Ijebu, it is only Irode Ruling House that has been producing candidates for the stool of Olojebu at Oke – Ijebu. In their case before the trial court as plaintiffs, they named seven Olojebus and four regents that reigned since the founding of Oke – Ijebu and insisted that none came from Imore. They gave evidence of founding and history of the chieftaincy and a background history of events to the effect that between 1957-2003, there were different committees and commissions set up by the government as a result of consistent agitations. The commissions stated that there were two ruling houses irrespective of the history of the chieftaincy. On several occasions, the Ekiti State Government asked the 5th Respondent and his council to look into the declaration. The council on each occasion found that, history, tradition and custom show that only Irode Ruling House of the appellants’ exists in Oke – Ijebu.
Thereafter, the Government proceeded to register a declaration in 2003 on Olojebu title recognizing two ruling houses. The appellants contended that there were material averments in their statement of claim which were not denied, one of which is that all the regents, that reigned in the history of the town are daughters of deceased Olojebu from Irode, was not contradicted by the then defendants.
The 1st and 2nd respondents who are members of Imore Ruling House on their part maintained that there are two ruling houses to the Olojebu of Oke – Ijebu chieftaincy stool, Irode and Imore ruling houses.
The last occupant of the said chieftaincy stool was said to have been produced by the Irode ruling house and that it is the turn of Imore ruling house to fill the vacant chieftaincy stool. In proof of their assertion, the 1st and 2nd respondents relied on three registered chieftaincy declarations on the Olojebu of Oke – Ijebu – Ekiti, recognizing two ruling houses namely: Irode and Imore ruling houses. The Registered chieftaincy declarations were given as follows:
i) EXHIBIT ‘A’- Registered Declaration in respect of Olojebu of Oke Ijebu Chieftaincy of 23rd September, 1960.
ii) EXHIBIT ‘B’ – Ondo State Government, white paper 1982.
iii) EXHIBIT ‘C’- Ekiti State Official Gazette on Olojebu of Oke – Ijebu chieftaincy.
The 5th respondent who was said to have signed Exhibits ‘A’ and ‘C’ in his evidence before the trial court testified that there was only one ruling house, i.e. Irode ruling house.
The 7th respondent the supposed head of the kingmakers to the aforesaid chieftaincy stool relied on traditional evidence in proof of his claim.
At the close of the hearing, the learned trial judge dismissed all the claims of the appellants and ruled that there were two ruling houses, also that the 7th respondent is the head of the kingmakers and presides over all the meetings of the Iwarafas.
Dissatisfied with the decision, the appellants appealed to this court vide their original Notice of Appeal dated 6th October, 2008 and later amended and deemed filed on 22nd February, 2010 (dated 29/9/09) containing five (5) grounds of appeal from which five issues were raised for determination by this court. They are:
(a) “Whether with the State of pleadings and evidence before the trial court, the appellants did controvert paragraph 11 of the 1st and 2nd defendants – respondents Statement of Defence.
(b) Whether the appellants successfully proved any of the conditions for which a court could set aside a chieftaincy declaration.
(c) Whether the trial court was right in holding that it had no competence to set aside the registered Olojebu Chieftaincy declaration when it did.
(d) Whether the trial court was right in granting the counter-claim of the 7th defendant when the 7th defendant failed to prove his case and when the trial court failed to review or properly review evidence relating to the counter-claim.
(e) Whether the trial court properly evaluated the evidence before it”
On their part, the 1st, 2nd and 7th respondents formulated three (3) issues for determination. They are:
i. “Whether from the state of pleadings and evidence before the trial court the appellants controverted paragraph 11 of the 1st and 2nd Respondents’ Statement of Defence.
ii. Whether the trial court was right in holding that Exhibit ‘C’ which is the Registered declaration of the Olojebu of Oke – Ijebu chieftaincy lawfully made and in accordance with the provisions of the relevant laws could not be set aside,
iii. Whether from the state of pleadings and evidence before the lower court the 7th respondent was not entitled to the declaratory relief awarded in his favour by the trial court”.
The appellants’ brief of argument dated 30/9/09 was filed on 2/10/09; there was also a reply brief to the 1st, 2nd and 7th respondents’ brief of argument dated 17/12/09 filed on the same day.
The 1st, 2nd and 7th Respondents’ brief dated 23rd November, 2009 was filed on 25th November, 2009. The 6th respondent’s brief of argument dated 17th February, 2010 was filed on 22nd February, 2010, he adopted the issues as formulated by the 1st, 2nd and 7th respondents. On the 5th of October,2010 this court granted an order that the appeal be heard and determined based on the briefs of argument filed by the appellants, 1st, 2nd , 6th and 7th respondents only, the 3rd, 4th, and 5th respondents having failed to file their respective briefs.
When this appeal was argued, the learned appellants’ counsel Olabanjo Ayenakin Esq. adopted and relied on his brief of argument and his reply brief.
In the said briefs, in arguing his issue (a) argued under issue one, it was submitted that by paragraphs 7, 8, 9, and 11 of the further amended statement of claim dated 28th September, 2007 averred that from time immemorial and by the history, custom and tradition of Oke – Ijebu – Ekiti, their Irode family was the only Ruling House to the Olojebu of Oke – Ijebu title. Also, that the Olojebus that reigned in the past came from Irode Ruling House, and that their names were pleaded, with their years of reign. The appellants contended that no Olojebu has ever come from Imore family. Reference was made to the evidence of PW1 and PW2 as consistent with the pleadings. Whereas, in paragraph 11 of the 1st and 2nd respondents’ amended statement of defence they pleaded the names of all the Olojebus their Imore family had produced, by this that issues were joined. It was argued that there was nothing in the said paragraph 11 to support the trial court’s judgment that the 1st and 2nd respondents’ assertion that they had, had members of the Imore Ruling family enthroned as Olojebus was not controverted. It was the argument of the learned counsel that the trial court somersaulted in its findings when it held that the appellants as plaintiffs failed to deny paragraph 11 of the 1st and 2nd defendants’ statement of defence but, on the contrary that the appellants’ averments effectively denied that of the 1st – 2nd respondents in paragraph 11. It was submitted that the trial court’s judgment on this issue was not borne out of the pleadings and evidence before the court. Reliance was placed on the case of ODEKILEKUN V. HASSAN (1997) 12 NWLR (PART 531,) 56, to the effect that a trial court cannot rightly make a finding of fact in favour of a party that had neither pleaded nor led evidential proof of the particular fact. It was the submission of the learned counsel that the trial court relied on the pleadings and evidence of the 7th defendant (now respondent) not that of 1st – 2nd defendants on how Irode came about to be producing Olojebus. The findings made in this respect were said not to be supported by their averments to the effect that the two families have been producing candidates for the chieftaincy from the inception of the town. It was urged that facts not related to pleadings should be disregarded, in this case the pleadings of the 7th respondent of how the Irode came to be producing Olojebus. The following cases were cited in support, F.I.D.C. NIG. LIMITED V. E.A.S. Ltd (2006) (PART 975) 2, MWARAMTA V EGBOKA (2006) ALL FWLR (PART 338) 768,771, YUSUF V. ADEGOKE (2007) ALL FWLR (PART 385) 384 @ 387 and OGUNYANDE V OSHUNKEYE (2007) ALL FWLR (PART 389) 1179, 1181, to the effect that parties are bound by their pleadings, evidence cannot sustain facts not pleaded and where evidence is contrary to pleadings it will go to no issue.
It was the submission of learned counsel that it was wrong for the trial court and against the principles of pleadings for the trial court to have used the averment in the pleadings of the 7th defendant to help the case of the 1st and 2nd defendants when they had different pleadings and different cases, in that the 7th defendant was joined on application solely for the purpose of his counter claim, a different case to which he put forward evidence in support of.
In alternative argument, assuming the pleadings of the 7th defendant could be utilized to assist 1st and 2nd defendants, the averments were denied in paragraphs 7,8,9, and 11 of the plaintiffs’ further amended statement of claim, and that having joined issues on this fact, filing a reply was unnecessary. See EIGBE V. N.U.T. (2006) 16 NWLR (PART 1005) 244, 258 – 259, AKEREDOLU V. AKTNREMI 3 NWLR (PART 108) 164, 166. It was argued that the trial court’s finding that the said paragraph 11 of the 1st and 2nd Defendants’ Statement of defence was unchallenged has occasioned a miscarriage of justice.
The appellants’ issues (b) and (c) argued under issues two and three, were argued together, these touch on reliefs (c) and (d) sought before the trial court. These issues were argued with issue (d), issue five in the brief. The appellants’ contention is that by history, tradition and the custom of Oke – Ijebu – Ekiti, Irode family constitutes the single ruling house that produces candidates for the chieftaincy stool and that by paragraphs 8, 9, 10, and 11 of their further amended statement of claim the 1st and 2nd defendants never ascended the throne of Olojebu and do not have a ruling house, The history of their town was traced from 1680 – 1977, while past Olojebus that reigned were named, all were said to have come from Irode. It was submitted that their pleading that all the regents in Oke – Ijebu were daughters of Obas from Irode Ruling House and that Imore never produced any, was said not to have been contradicted by any of the defendants and is deemed admitted, therefore, issues having been joined, there is no burden on the appellants to prove facts pleaded which were admitted by the respondents. See the cases of Apo IBRAHIM & CO LTD V ELDEISTAIN NIG. LTD (2002) 1 NWLR (PART 747) 57 also OGUNYANDE V. OSHUNKEYE (2007) (SUPRA) and KOTUN V. OLASEWERE ALL FWLR (PART 477) 41, 46.
It was submitted that the admission by the defendants that the plaintiffs produced two reigning Kings consecutively, that is, Mamupin and Oba Adalumo was fatal to the case of 1st and 2nd defendants.
The appellants contended that, what was sought before the trial court was not an amendment of a registered chieftaincy declaration but a setting aside, not the decision of the commission contrary to the view of the 1st and 2nd respondents which was the basis of the trial court’s conclusion that a plaintiff must through evidence establish the history, tradition and custom and prove that the findings of a commission was perverse in asking that it be set aside.
It was the submission of the learned appellants’ counsel that the 2003 declaration as it relates to the recognition of two ruling houses was not akin with the history of Oke – Ijebu. He argued that the appellants proved the founding and custom of Oke – Ijebu which he argued the 1st and 2nd defendants failed to do.
Further, that it was the 7th defendant who pleaded the history of the town out of all the defendants, which learned counsel argued was for his counter-claim. On reliance upon the case of MAFIMISEBI V. EHUWA (2007) (PART 1018) 385, 394 it was submitted that the trial court has the competence to set aside a registered declaration and to declare the same null and void. He argued that the appellants’ case as plaintiff was competent, and that the learned trial court ought to have considered the two versions of the evidence before the court, determine which is correct and sustainable, and then reconcile same with the registered declaration by determining whether the declaration reflects the custom, history and tradition of Oke – Ijebu. Further, that the original jurisdiction of a trial court can be invoked in setting aside a registered declaration, the court would then enquire as to what the customary law is and decide whether the registered chieftaincy declaration is compatible with same.
It was submitted by counsel that the appellants having shown in the trial court that the 2003 declaration on Olojebu chieftaincy is contrary to the custom and history of the title, it was a good ground for the court to set aside the Olojebu chieftaincy declaration.
On their issue (d), argued under five in the brief, it was submitted that the decision of the trial court is perverse as same was not borne out of the evidence before the trial court.
It was argued that the trial court erred when it held that the appellants never denied that Imore ever produced Olojebu when the same was pleaded and supported by evidence. Further, that the trial court reviewed, the evidence led by the appellants as to the founding of the town and still wrongly held that it was the 7th defendant who pleaded, without opposition and proved the history of the founding of the town, reference was made to the appellants’ amended reply to the statement of Defence of 1st, 2nd and 7th defendants’ which learned counsel alleged the trial court over looked.
The evidence of the 7th defendant under cross examination was reviewed to the effect that both Irode and Imore have been producing or installing Olojebu since the founding of the town, when he earlier asserted that the title came to Imore at a point when Irode had no male child for the chieftaincy.
It was submitted that contrary to the court’s holding, the 1st and 2nd respondents did not plead that they got to Oke -Ijebu before the appellants. Also, that the evidence attributed to the PW2 was not evidence led by him, concerning the letter received from the Ekiti State House of Assembly creating two ruling houses. It was alleged that the finding of the trial court was against the weight of evidence; we were urged to intervene and do a proper evaluation of same, see TOLANI VS KWARA STATE JUDICIAL SERVICE COMMISSION (2009) ALL FWLR (PART 481) 880, 884, FALEYE & ORS V. OTAPO & ORS (1995) 3 NWLR (PART 381) 1, INAKOJU VS. ADELEKE (2007) ALL FWLR (PART 381) 1 and DAPIANLONG & ORS v. DARIYE (No. 1) (2007) ALL FWLR (PART 373) 1.
In issue (e) (argued under four in the appellants’ brief) as formulated by the appellants, it was admitted that the 7th defendant counter claimant gave the history of the founding of the town, which is relevant to his counter claim, also admitted is that a counter claim is a cross action which must be proved on the preponderance of evidence or the balance of probability as provided in section 136 and 137 of the Evidence Act, reliance was place on the case of USMAN V. GARKE (2003) 110 LRCN, 1552, to the effect that a counter claim does not automatically succeed but must be proved on the balance of probability. Also, see the case of COMMUNITY BANK LTD V. IBETO LTD (2007) ALL FWLR (PART 350) 1409, 1414.
It was argued that apart from the averments that he is the head of the kingmakers who places leaves on a new Olojebu, that the 7th respondent did not say more that could have warranted the trial court granting his counter claim. Further, that by Exhibit ‘G’ the 3rd defendant led the kingmakers to the House of Assembly Committee on Chieftaincy Affairs and that no kingmaker testified in favour of the 7th defendant to corroborate the evidence of the 1st and 2nd defendant. It was argued that from the contradictions in the evidence of the 7th defendant and the pleadings the trial court ought to have dismissed the counter claim. It was alleged that the evidence in support of the counter claim was not properly evaluated. We were urged to review the evidence placed before the court, invoke S. 16 of the court of Appeal Act and dismiss the counter claim, and resolve this issue in favour of the appellants.
In response and in arguing their issues, in issue (i) the learned counsel to the 1st, 2nd and 7th, Emmanuel Bamidele Omotoso Esq, reviewed paragraph 11(a) – (e) of the 1st and 2nd respondents’ Further Amended statement of Defence of 14th August, 2007, pages 204 – 208 of the record and the general denial of same in the appellants reply to the statement of defence of 1st and 2nd respondents, at page 1.
It was submitted that the appellants failed to deny the 7th respondent’s averment in paragraphs 7 and 8 of his Statement of Defence and Counterclaim in their defence to the counter claim of the 7th respondent, the above paragraphs were argued to be deemed admitted by the appellants. It was argued that no proper traverse was raised by the appellants in reply to those paragraphs. Reliance was placed on the case of ASAFA FOODS FACTORY v. ALRAINE NIG. LTD (2002) 12 NWLR (PART 781) 353 at page 379, paragraphs D – G.
It was argued that the finding of the learned trial judge is unassailable when he held that the appellants as plaintiffs ignored paragraph 11 of the statement of defence of the 1st and 2nd defendants.
It was argued that, contrary to the view of the appellants’ counsel that the finding of the trial judge, that the two ruling houses have been producing Olojebu of Oke – Ijebu, was not supported by the 1st and 2nd respondent’s pleadings, learned counsel reviewed the averments in paragraph 2(a) of the 2nd Amended Statement of Defence of 1st and 2nd defendants and paragraphs 2, 3, and 4 of the 7th Defendant’s Reply to the defence to the counterclaim, page 173 of the records. The evidence of the DW1 was reviewed to the effect that there are two ruling houses, Irode and Imore in Oke – Ijebu.
In response to the appellants’ counsel’s submission that it was wrong for the trial court to have used the averment in the pleadings of the 7th respondent to assist the case of the 1st and 2nd respondents, learned counsel to the respondents submitted that the 7th respondent was a party to the appellants’ suit, further, that the appellants failed to cross examine the 7th respondent when he testified to the effect that there are two ruling houses to Olojebu, in support of his averment and how the Irode ruling house came about producing Olojebu.
Learned counsel to the respondents refuted the argument that the 7th respondent applied to be joined to the suit, to fight his counter claim and nothing else. It was argued that the trial court’s findings and conclusions were supported by the pleadings and evidence on record. We were urged to resolve this issue in favour of the 1st, 2nd and 7th respondents.
In arguing their second issue, (ii) the learned counsel to the 1st, 2nd and 7th respondents submitted that an appellate court will not disturb the findings and conclusions of fact, of a trial the court, unless such findings and conclusions are perverse, See, CHIMA V. NKAMA (2001) 11 NWLR (PT 724) 449 at pages 460 – 461, paragraphs H-A. It was submitted that the appellants who sought declaratory reliefs before the trial court ought to have adduced cogent, credible and sufficient evidence which will entitle them to the reliefs sought, reliance was placed on the case of MAJA V. SAMOURIS (2002) 7 NWLR (PT 765) 78 at pages 100 -101 paragraphs H – C. It was the view of the learned counsel that the learned trial judge was right to have found and concluded that the appellants did not adduce credible evidence that the registered declaration deviated from the Chiefs Law. The evidence of the PW1 (2nd appellant) was reviewed, as well as the contents of Exhibits ‘A’, ‘B’ and ‘C’ tendered through him. Under cross examination he admitted that the 5th respondent who testified for the appellants as PW4 was a signatory to Exhibits ‘A’ and ‘C’, the 1960 and 2003 chieftaincy declarations respectively on Olojebu of Okejebu Ekiti. He admitted that his family appeared before the Oluwole Commission of Inquiry in 1982 which confirmed the 1960 chieftaincy declaration on Olojebu which recognized two ruling houses.
It was the argument of the learned counsel that the evidence of the 7th respondent as DW3 was not denied by the appellants, that is to the effect that before Irode came about producing Olojebus, it had been the exclusive right of the Imore ruling house, who were also the first to settle at Oke – Ijebu. He gave account of how Irode came about producing Olojebus. It was argued that the evidence of the DW3 (7th respondent) in this respect was not countered, disputed or challenged by the appellants, thus same was deemed accepted, reliance was placed on the case of AMADI VS. NWOSU (1992) 2 NSCC (PT 1) 94 at page 103, Finally, on this issue, that the case made out by the 1st, 2nd, and 7th respondents was stronger than that of the appellants and the trial judge’s holding that the appellants failed to prove that the declarations sought to be set aside ignored the evidence of tradition and custom of Oke – Ijebu before the Oluwole Chieftaincy Commission is unassailable.
We were urged to resolve this issue in favour of the 1st, 2nd and 7th respondents.
On their third and last issue, (iii), the learned counsel to the 1st, 2nd and 7th respondents submitted that on application, the 7th respondent was joined as a co-defendant for himself, other members of Ilofi family, Okejebu Ekiti, therefore that the 7th respondent fought the counter-claim in a representative capacity. Reference was made to paragraph 4 of his statement of defence and counterclaim where it was averred that the Olojebu chieftaincy title belongs exclusively to the Ilofi family of the Oke-Ijebu Ekiti which the appellants did not deny in their defence to the counter claim.
Learned counsel refuted the appellants’ counsel’s submission that the 7th respondent under cross examination admitted that the 3rd respondent who defended the action on behalf of the putative kingmakers is the 2nd in rank to Olojebu, the submission was argued not to have been supported by evidence, we were urged to discountenance same. On the other hand, the learned counsel submitted that the appellant’s witnesses virtually admitted the averments in paragraph 9 of the 7th respondent’s pleading to the effect that the 7th respondent is one of the kingmakers from Ilofi family. Further that the functions of the Olokoju were highlighted by the witnesses, PW1 and PW2 in line with the pleadings of the 7th respondent who claims to be the head of the kingmakers. We were urged not to disturb the findings of the trial court as same were borne out of the pleadings and evidence before the trial court and hold that the 7th respondent proved his counterclaim. We were urged to resolve this issue in favour of the 7th respondent and dismiss the appeal. In the 6th respondent’s brief of argument filed by Gboyega Oyewole Esq, the 6th respondent’s learned counsel in his brief, adopted the arguments, and submissions on the issues raised, as contained and argued in the 1st, 2nd and 7th respondents’ brief of argument. We were urged to dismiss the appeal and affirm the judgment of the trial court. In the appellant’s reply brief to the 1st, 2nd and 7th respondents’ brief of argument Mr Ayenakin submitted that a reply to paragraph 11 of the 1st and 2nd respondents’ Further Amended Statement of Defence would be a surplusage and unnecessary, the essence would be to deny allegations in the Statement of Defence. The averments in paragraphs 7, 8 and 9 of the Appellants Statement of Claim were reviewed, reliance was placed on the cases of EIGBE V. N.U.T. (SUPRA) KWARA HOTELS V, ISHOLA (2002) 9 NWLR PART 773, 604, 614 and AKEREDOLU VS. AKINREMI (SUPRA). In AKEREDOLU’S CASE, it was held that where there is no counter claim, a reply is unnecessary, if the aim is to deny allegations contained in the Statement of Defence.
It was argued that pleadings are holistically read together, once parties have joined issues on the history, custom and founding of the town, there is no need to file a reply thereto. It was submitted that the appellants filed a joint reply to the Statement of Defence of 1st, 2nd and 7th respondents’, contrary to the submissions of the learned counsel to the respondents.
It was argued further that the learned trial judge did not properly apply the case of MAFIMISEBI V. EHUWA (SUPRA). In respect of paragraph 4 of the statement of defence and counter claim which the respondents alleged was uncontroverted, learned counsel to the appellants submitted that there was no evidence in its support before the court, and therefore deemed abandoned. We were urged to discard all the submissions of counsel to the 1st, 2nd and 7th respondents as they are not supported by evidence.
A look at the issues raised by the parties, the appellants’ issue (a) is similar to the 1st, 2nd, 6th and 7th respondents’ issue (i), issues (b) and (c) are summed up in and similar to issue (ii) of the respondents’, issue (d) is similar to issue (iii) and issue (e) to be resolved with (b) and (c) encompasses the resolution of issues (i), (ii), and (iii) raised by the respondents which is on the evaluation of the entire evidence before the trial court. With the appellants’ issue (a), paragraph 11 of the 1st and 2nd respondents’ Further Amended Statement of Defence dated 14th August, 2007 in their pleadings averred thus:-
11. “The Imore Ruling
Olojebus namely:
(a) Abatelewobatara
(b) Ajagbusi
(c) Adetuntunbiowo
(d) Osegirita
(e) Otoyo”
House produced the following
The appellants argued that the above averment was denied in their Reply to the Statement of Defence of 1st and 2nd respondents, particularly at page 1 thereof, pages 132 – 134 of the records, which reads thus:
1. “Plaintiff deny paragraphs 2a, 2b, 2c, 2d, 3a, 3b, 3c, 3e, 3f, 9, 11, 13 and 14 of the Statement of Defence of first and second defendants”.
In the 7th respondent’s Statement of Defence and Counter Claim paragraphs 7 and B averred thus:
7 “By the native law and custom of Oke – Ijebu Ekiti the Isabo family of Oke – Ijebu Ekiti producer (sic) Arinjale to the exclusion of other families in Oke Ijebu Ekiti.
Seventh defendant denies paragraph 7 of the Amended Statement of Claim and says that there are two ruling houses to the Olojebu of Oke – Ijebu Ekiti title. The ruling houses are:-
Irode Ruling House and Imore Ruling House.
8 Seventh defendant denies paragraph 8 of the Statement of Claim and says that the aforementioned ruling houses have been producing the Olojebu from time immemorial. However there was a time when the Imore Ruling House could not produce an Olojebu, the Irode Ruling House produced two consecutive Olojebus with the consent of the Imore Ruling House”.
In the appellants’ reply to the further amended statement of defence of 1st and 2nd respondents and the 7th respondent’s counter claim, the appellant failed to deny expressly the above averments. The 1s and 2nd respondents pleaded names of members of Imore ruling house who had occupied the throne of the Olojebu of Oke – Ijebu Ekiti in the past, the 7th respondent in his counter claim pleaded how the appellants’ family (Irode family) came about producing Olojebus.
In respect of paragraph 11 above, there was a general denial (i.e. of the 1st and 2nd respondents’ further amended statement of defence and counter claim of 7th defendant/respondents); The law is trite that the appellants as plaintiffs ought to raise a proper traverse in reply to those paragraphs of the respondents’ pleadings if they do not admit; these ought to have been expressly denied. In the present case the denial was a general one.
The learned trial judge after examining the pleadings found that the appellants as plaintiffs ignored paragraph 11 of the statement of defence of the 1st and 2nd respondents at page 368 of the printed records held thus:-
“Taking a careful examination of the pleadings, the plaintiffs have completely ignored paragraph 11 of the statement of defence of the 1st and 2nd defendants”,
The appellants throughout their case before the trial court made out that they, the Irode people have always produced the Olojebus and from their history, custom and tradition of Oke – Ijebu Ekiti, Irode has been the only Ruling House to the Olojebu of Oke – Ijebu title, the names of their past Olojebu were listed and they insisted that the Olojebu has never come from Imore family, but in the 1st and 2nd respondents’ defence, they specifically mentioned the Olojebus that their Imore family had produced in the past, and named them in paragraph 11 of their further amended statement, of defence.
With due respect, it was erroneous for the learned counsel to the appellants to have held the view that the averment of the respondents which is contrary to theirs is effective denial, parties having joined issues on same. The 1st and 2nd respondents have made an allegation that the Imore family has also been producing Olojebus and went ahead and named them. It is trite that the appellants ought to have specifically denied this, failure of which the undenied allegation would be deemed as proved, it is immaterial that evidence is led in course of trial to that effect, not having been pleaded, such evidence would serve no useful purpose.
I am in agreement with the learned counsel to the 1st, 2nd and 7th respondents’ that the 1st and 2nd respondents pleaded to the effect that the two ruling houses have been producing olojebu of oke – Ijebu contrary to the argument of the learned appellants’ counsel that the findings of the trial court was unsupported by 1st and 2nd respondents’ pleadings. In paragraph 2(a) of the 2nd Amended Statement of Defence of the 1st and 2nd defendants, it was clear in the pleadings that Imore Ruling House was the only Ruling House to Olojebu of Oke – Ijebu Chieftaincy title until 1957 when Irode Ruling House was included by the Chieftaincy Review Commission. The 7th respondents’ paragraph 2, 3 and 4 of his reply to Defence to counter-claim also supports the view that there are two Ruling Houses to the Olojebu. The pleadings were supported by evidence before the trial court, contrary to the argument of learned counsel to the appellants that the trial court’s finding was neither supported by pleadings nor evidence on the part of the 1st and 2nd respondents, the evidence of the DW1 was to the effect that there are two Ruling houses in Oke – Ijebu.
The learned appellants’ counsel had argued that the trial court used the pleadings of the 7th defendant to assist the 1s and 2nd defendants (respondents). It is on record and undisputed that the 7th respondent was joined as a defendant to the appellants’ suit; he therefore became a party to the suit. In effect, the presence of the 7th defendant is necessary for effectual adjudication of the matter, the plaintiffs’ claim against the existing defendants also affect him and/or that his interest is the same as or identical to that of the existing defendants, in this case the interest of the 7th defendant is the same as that of the existing defendants before he was joined. The claim of the appellants is therefore against all the defendants and the interest of all the defendants are identical. It is immaterial that the plaintiffs applied that the 7th defendant be joined or he applied to be joined as defendant. See, the case of PLATEAU STATE VS. A.G. FEDERATION (2006) 1 S.C (PART 1) 1, see also, ATID NAVIGATION V. FAIRPLAY TOWAGE and SHIPPING COMPANY (1955), ALL E.R. PAGE 699 and OGONA II V. AWULOR (1997) 9 NWLR (PART 522) 668 AT 689, where it was held that “the basis of the whole jurisdiction to add defendants is that there is a cause of action by the plaintiff against not only existing defendant, but the person who would be joined” (in this case a person who has been joined).
In the present case, it is clear therefore that the 7th respondent when joined as a defendant became part and parcel of the existing defendants against whom the plaintiffs have instituted the action. The 7th respondent was not joined as an independent party to defend the action of the appellants as plaintiffs. With respect, the learned counsel to the appellants was therefore wrong to have argued that the trial court ought not to have utilized the pleadings of the 7th respondent to assist the case of the 1st and 2nd respondents, the case of the 1st and 2nd respondents was not different from that of the 7th respondent’s.
The 7th respondent averred that there are two ruling houses to Olojebu and gave account of how the Irode ruling house came about producing olojebu. He pleaded as follows: in paragraphs 2, 3, and 4 in his reply to defence to the counter claim:
2. “Imore family was the only ruling house producing the Olojebus before Irode family migrated from Irode Quarters Ikole because of Chieftaincy tussle and settled with the Imore family.
3. Irode family had opportunity to produce an Oba as a result of war coupled with the fact that the said family had no qualified male child to become an Oba.
4. Based on paragraph 3 above the Irode family was given the cognomen “Afibimugbagboye” The above pleadings were supported or backed up by the evidence of the 7th respondent’s as DW3 before the trial court, to the effect that according to the history as told to him by his father, Imore and Irode are entitled to the chieftaincy of Otojebu. I am in agreement with the learned counsel to the respondents that there was no cross examination of the witness on this piece of evidence to negate same.
The learned appellants’ counsel had argued that the 7th respondent was joined as a defendant solely to fight his counter-claim. In my humble opinion the 7th respondent was not only a counter-claimant; he was first and foremost a defendant. The appellants in their pleadings and testimonies before the trial court did not deny these facts, that is, that the Imore Ruling House had the exclusive preserve of producing the Olojebus before the Irode came to be producing Olojebus, and that the Imore were the first to settle at Oke – Ijebu.
I am at one with the trial court’s finding and conclusion that the appellants as plaintiffs did not disprove or counter the fact that the Imore were the first to settle at Oke – Ijebu and had the exclusive preserve of producing the Olojebus before the Irode started producing Olojebus. The trial court’s finding on this, at pages 369 – 370 cannot be faulted, as same is supported by the pleadings and evidence before the trial court.
The appellants’ issue (a) is therefore resolved in favour of the 1st, 2nd, 6th, and 7th respondents against the Appellants. The appellants’ issues (b), (c) and (e) (argued under issues two, three and five in the brief) were argued together and covers issue (ii) raised by 1st, 2nd and 7th respondents, adopted by 6th respondent. These issues put together are challenging the findings and conclusions of the learned trial judge.
It is true that an appellate court will not disturb the findings and conclusions of fact of a trial court unless same are perverse and this court cannot substitute its views for those of the trial court. See CHIMA V. NKAMA (SUPRA).
It is noteworthy that, part of the appellants’ prayers in the trial court (relief (c)) was for a declaration that the Olojebu of Oke Ijebu chieftaincy declaration is against the tradition, custom, and history of Oke – Ijebu Ekiti and therefore wrongful, illegal, unconstitutional, null and void. In agreement with the learned counsel to the respondents, a partly seeking a declaratory relief must adduce cogent and credible evidence which will entitle him to the relief sought. In this case, the plaintiffs ought to satisfy the court under all circumstances of this case that they are entitled to the declaratory relief sought. The evidence of the plaintiffs must be satisfactory to the court for it to grant such relief.
The trial court, in the present case held that the High Court has the power to set aside a chieftaincy declaration if it has deviated from the Chiefs Law and relied on the case of MAFIMISEBI V. EHUWA (SUPRA), contrary to the view of the learned appellants’ counsel that the trial court held otherwise, that is, that it had no such power. The summary of the learned trial judge’s findings and conclusion is that the appellants did not adduce enough and / or credible evidence that the registered declaration in question deviated from the Chiefs Law and therefore could not set the registered declaration aside. At pages 375 – 376 the court held thus:
“Yes indeed this court accepts the fact that it is now a settled principle of law that a High Court has the power to set aside a chieftaincy declaration. It is beyond dispute that a chieftaincy declaration or any declaration is a subsidiary legislation which derives its source from a parent statute, e.g. the Chiefs Law as in this case. That is why a declaration must comply, when made, with the provisions of the Chiefs Law.See, the cases of DIN VS. A.G. FEDERATTON (1988) 4, NWLR (PART 87) 147; GOVERNOR OF OYO STATE vs. AFOLAYAN (1995) 8 NWLR (PART 413) 298.
There is nothing special about a chieftaincy declaration that can tie the hands of a trial court from setting it aside if it is found to have deviated from the Chiefs Law. See, the case of MAFIMISEBI VS. EHUWA (SUPRA). I therefore hold that in a chieftaincy matter, a High Court has the jurisdiction to set aside a declaration that is made out of the contemplation of either the Chiefs Law or the 1999 Constitution of the Federal Republic of Nigeria. However, as I have already pointed out, I cannot find any form of violation of the Chiefs Law nor of the Constitution of the Federal Republic of Nigeria….
I have found no basis for setting aside Exhibits ‘B’ and ‘C’ as they were made in accordance with law. I therefore, hold the said Exhibits ‘B’ and ‘C’ valid and subsisting, I refuse to set them aside”.
(Underlined mine for emphasis).
The summary of the above finding and conclusion is that the appellants not having proved any deviation or violation of the Chiefs Law, or the constitution the trial court refused to and could not set aside the chieftaincy declaration, as there was no basis to do so but, did say that it had the power to set aside a declaration.
It is on record that Exhibits ‘A’, ‘B’ and ‘C’ were tendered without objection through the 2nd appellant as PW1. The PW1 admitted that the 5th respondent who testified as PW4 was a signatory to Exhibits ‘A’ and ‘C’ that is the 1960 and 2003 respectively, Chieftaincy declarations on Olojebu of Okejebu Ekiti. The 2nd appellant as PW1 also confirmed that his family participated in the Oluwole Commission which later affirmed that there are two ruling houses in Okejebu contrary to the contention of the appellants in their pleadings that there was only one Ruling House (Irode) to the Olojebu.
The contents of Exhibits ‘A’ and ‘C’ show clearly that there are two Ruling Houses, in line with the pleadings and evidence of the respondents, even though PW4 (5th respondent) who gave evidence for the appellants testified that there was only one Ruling House to the Olojebu, that is Irode despite the fact that he was signatory to Exhibits ‘A’ and ‘C’, which stated the contrary, his denial and/or evidence is unsupported by the averments in the pleadings of the appellants in their statement of claim and PW1’s evidence, adduced before the trial court. The trial court obviously saw through the evidence of the PW4 (5th respondent) and right in holding that it was too late for the PW4 to deny the contents of the declarations he was signatory to, page 371 of the printed records.
The case of the 1st, 2nd, 6th and 7th respondents before the trial court was consistent, that is, that there are two Ruling Houses to the Olojebu of Oke – Ijebu chieftaincy, the evidence of the 7th respondent as DW3 has been reviewed earlier in this judgment along with the pleadings to which the evidence is hinged on.
It is trite, that the appellants if they did not accept as true the evidence of the DW3, ought to have cross examined him on the disputed facts of the history of the Imore being the first settlers and how Irode came about being entitled to the chieftaincy to show that they do not accept the evidence as true, failure of which the court would deem such evidence as accepted or undisputed. AMADI V. NWOSU (1992) (supra).
I agree with the learned counsel to the respondents that the appellants failed to cross examine the DW3 on these material facts, and failed to deny the averments in the 7th respondent’s pleadings. I therefore hold that the learned trial judge’s finding that the appellants’ statement of claim and reply to the 7th respondent’s statement of defence and in their oral testimonies, failed to deny the material facts in which the respondents have made out and proved their stand, that the Imore settled at Oke – Ijebu first, and had the exclusive preserve of producing the Olojebus and gave the circumstances under which the Irode started producing Olojebus, through Imore daughters married in Irode. This finding is unassailable.
The burden was on the appellants as plaintiffs to prove that the declarations sought to be set aside ignored or is contrary to the tradition, custom and history of the Oke – Ijebu before the Oluwole Chieftaincy Commission which is the crux of the appeal. The appellants needed to have proved the history, custom and tradition of Oke – Ijebu in the first place, and that the Chiefs Law violated same, which they failed to do. It is never the duty of the defendants to prove the assertions of the plaintiffs; their duty is always to defend.
From the evidence before the court, the case of the 1st, 2nd, 6th, and 7th respondents was stronger and more acceptable than that of the appellants. The appellants’ issues (b), (c) and (e) are therefore resolved against them.
The appellants’ issue (d) partly resolved under (b), (c) and (e) was argued under issue five in the appellant’s brief, covered by the 1st, 2nd and 7th respondents’ issue (iii), adopted by the 6th respondent. It is not in dispute that the 7th respondent, on application, was joined as a co-defendant for himself and other members of Ilofi family, Okejebu, Ekiti, therefore the counter claim was also fought in a representative capacity by the 7th respondent.
The learned counsel to the 7th respondent who had refuted the submission of learned counsel to the appellants that the 3rd respondent who defended the action on behalf of the putative kingmakers is 2nd in rank to Olojebu, the submission was said not to be supported by any evidence on record, and instead highlighted the 7th respondent’s paragraph 9 of his statement of defence and counterclaim which outlined the role or traditional functions of the Olokoju, which was admitted by the appellants’ witnesses, PW1, PW2 and PW5 who testified in line with the averments in the pleadings of the 7th respondent as to the traditional functions and duties of the Olokoju. This was not countered by the appellants. The 7th respondent proved that Olokoju is the head of the kingmakers and presides over the meetings. The learned trial judge was therefore right to have found that Olokoju is one of the six kingmakers in Oke – Ijebu and in their meetings as their leader would preside.
The learned trial judge reasoned and concluded that the 7th respondent could not be declared Olokoju for now, relying on his evidence to the effect that an Olojebu has not yet been enthroned, but could only be a putative Olokoju, his evidence on this not having been disputed. The learned trial judge’s reasoning and conclusion is unassailable in dismissing the plaintiffs’ claims and the order partly granting the counter claim in which the 7th respondent remains the putative kingmaker.
In the final analysis, I find no merit in the appeal, same is hereby dismissed. I affirm the judgment of the learned trial judge, D. O. Jegede, J of the Ekiti State High Court sitting at Ikole Ekiti, delivered on 26th September, 2008.
I award costs of N40, 000.00 (Forty Thousand Naira) to the 1st, 2nd and 7th Respondents.
UWANI MUSA ABBA AJI, J.C.A.: I agree.
HARUNA M. TSAMMANI, J.C.A.: I had the privilege of reading the judgment just delivered by my learned brother, Chidi Nwaoma Uwa, J.C.A.
My learned brother comprehensively dealt with all the issues arising from this appeal and adequately resolved same. I have no hesitation in agreeing with the reasoning and conclusion arrived at. In that event, I also hold that this appeal has no merit and is accordingly dismissed. The judgment of the lower court is therefore affirmed. I abide by the order as to cost.
Appearances
O. Ayenakin, O. Oke and O. AdewumiFor Appellant
AND
Bamidele Omotoso for 1st, 2nd and 7th Respondents.
Gbemiga Adaramola, Deputy Director Civil Litigation, Ministry of Justice, Ekiti State, for 6th Respondent.
3rd, 4th, and 5th Respondents served with hearing notice but absent.For Respondent
