OBA OLUWADARE ADEPOJU ADESINA & ANOR. V. JOSEPH OLU OJO & ORS.
(2012)LCN/5210(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 6th day of March, 2012
CA/B/129/2005
RATIO
DETERMINATION OF THE MEANING OF THE PHRASE ‘CAUSE OF ACTION’
It is necessary therefore to determine the meaning of the phrase ’cause of action’ as that would assist in determining when the cause of action arose in this appeal. The phrase has been defined in many cases. In the case of Omomeii v. Kolawole (2008) 14 NWLR (Pt. 1106) 180 @ 204 – 205 G-C. Tabai JSC examined some cases where the phrase was defined. His words: “To start with, let me ascertain the meaning of the phrase ’cause of action’. In the English case of Board of Trade v. Cayzer Irvine and Company Ltd. (1927) AC 610 at 617 the House of Lords speaking of the meaning ” cause of action” said: “Cause of action …..means that which makes action possible, and in the present case that is the award of the arbitrators, for until it ,s in being no action is possible. ” In Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt.102) I22 at 169, this court, per Karibi-Whyte, JSC spoke of the phrase thus: “Cause of action has been held to mean every fact which is material to be proved to entitle a plaintiff to succeed, or all those things necessary to give a right to relief in law or equity.” And in Amodu v. Amode (1990) 5 NWLR (Pt. 150) 356 at 367 this court quoted with approval its definition in Hernaman v. Smith (1855) 10 Exch. 659 at 666 thus: “The term “cause of action” means all those things necessary to give a right of action whether they are to be done by the plaintiff or a third party.” It is clear from the above definitions, which I adopt, that it is the totality of the factual situation in a case which entitles the plaintiff to a relief or reliefs that constitutes the phrase “cause of action” Thus ’cause of action’ will not exist where nothing has happened to entitle a plaintiff to some relief or to sue someone. PER. CHINWE E. IYIZOBA, J.C.A.
LAW OF EVIDENCE: THE POSITION OF THE LAW ON THE EVALUATION OF EVIDENCE
I shall start the resolution of this second issue by first considering the contention of the appellants that no evaluation of any material evidence oral or documentary was undertaken by the trial judge. What exactly is meant by ‘evaluation of evidence?’ The meaning of the phrase was fully discussed by Oputa JSC in the case of Onwuka v. Ediala (1989) 1 NWLR (Pt. 96) 187 @ 208-209. His Lordship observed:
“…….What does evaluation of evidence consist of? What is the meaning of the expression evaluation? To evaluate simply means to give value to, to ascertain the amount, to find numerical expression for etc…………. Now talking of scale naturally leads one to the famous dictum of Fatayi-Williams, JSC (as he then was) in A.R. Mogaji & Ors v Madam Rabiatu Odofin & Ors (1978) 4 S.C. 91 @ 93:- “When an appellant complains that a case is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which has been given to the totality of the evidence before him, (the trial judge)…..Therefore in deciding whether A certain set of facts given in evidence by one party in a civil case before a court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial judge after a summary of all the facts, must put the two sets of facts in an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it… …..” The scale though imaginary is still the scale of justice, and the scale of truth. Such a scale will automatically repel and expel any and all false evidence. What ought to go into that imaginary scale should therefore be no other than credible evidence.. ..even in Mogaji’s case… . this court held at p.94:-
“Therefore in determining which is heavier, the judge will naturally have regard to the following:-
(a) Whether the evidence is admissible;
(b) Whether it is relevant;
(c) Whether it is credible;
(d) Whether it is conclusive; and
(e) Whether it is more probable than that given by the other party.” PER. CHINWE E. IYIZOBA, J.C.A.
COURT: THE DUTY OF THE COURT TO PRONOUNCE ON ALL MATERIAL ISSUES RAISED BEFORE IT
No doubt a court has a duty to pronounce on all material issues raised before it but failure to do so is not necessarily fatal to a judgment if such failure did not occasion a miscarriage of justice. A court is not bound to pronounce on an issue which has been subsumed in another issue that has been determined. Okonii v. Niokanma (1991) 7 NWLR (Pt.202) 131 @ 146. There is nothing strange in a judge adopting the issues as formulated by any of the parties to a dispute if the judge is satisfied that the said issues capture the essence of the dispute. PER. CHINWE E. IYIZOBA, J.C.A.
THE LEGAL EFFECT OF AN AGGRIEVED PERSON COMING TO THE HIGH COURT FOR A DECLARATION WITHOUT CHALLENGING THE VALIDITY OF THE DECISION OF THE PRESCRIBED AUTHORITY THROUGH THE LAID DOWN CHANNELS
The Chiefs Edict of 1984 gave the Government of Ondo State through its executive council the statutory authority to deal with chieftaincy matters. A decision has been taken by the appropriate authority in the form of Exhibits Q and V, a declaratory action is not the proper remedy for challenging the decision already taken by the authority under the circumstances. See Sarumoh v. Asanike (1996) 7 NWLR (Pt. 460) 370 @ 377 – 378,Para G. Per Okunola JCA: “The poser raised in this appeal is what is the legal effect of an aggrieved person coming to the High Court for a declaration, as in the instant case, without challenging the validity of the decision of the prescribed authority through the laid down channels. This poser had come for consideration and resolution by the Supreme Court to the effect that where the respondent has not challenged the validity of the prescribed authority either by appeal to the Executive Council for review or by certiorari removing it to the High Court to be quashed, it is inappropriate to do so by a declaration. The decision of the prescribed authority therefore remains valid and effective. Thus in Eguamwense v. Amaghizemwen (1993) 9 NWLR (Pt. 315) 1 p.25 where the facts are on all fours with the case under review the Supreme Court held per Karibi-Whyte thus: “In the circumstances the High Court should have in the exercise of its jurisdiction in the declaratory relief borne in mind the fact that there was a valid and subsisting decision of an inferior tribunal. The High Court would therefore be exercising its discretion in respect of a legal position of the chieftaincy title of Amaghizemwen of Benin in respect of which the declaration was being sought was at the time of the suit been determined by the ‘prescribed authority’. The High Court went outside its jurisdiction in granting the declaration sought. ” PER. CHINWE E. IYIZOBA, J.C.A.
JUSTICES:
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1. OBA OLUWADARE ADEPOJU ADESINA (OSUPA III) DEJI OF AKURE)
2. HIGH CHIEF FOLORUNSO DAVID (THE LISA OF AKURE) – Appellant(s)
AND
1. JOSEPH OLU OJO (THE IRALEPO OF ISINKAN, AKURE)
2. J. OLUKAYODE OLUWATUYI (THE OSOLO OF ISOLO, AKURE)
3. GOVERNOR OF ONDO STATE
4. ATTORNEY-GENERAL & COMMISSIONER FOR JUSTICE, ONDO STATE – Respondent(s)
CHINWE E. IYIZOBA, J.C.A, (Delivering the Leading Judgment): This is an appeal from the judgment of the High Court of Ondo State Akure judicial division (Akinwalere J) in the consolidated suits AK/371/96 and AK/372/96, delivered on the 16th day of December, 2004. The appellants herein were the 3rd and 4th defendants while the 1st and 2nd respondents were the 1st and 2nd plaintiffs respectively in the said suits. The plaintiffs instituted their separate actions originally against the Military Governor of Ondo State and the Hon. Attorney General and Commissioner of Justice, Ondo State as the 1st and 2nd defendants respectively. The 3rd and 4th defendants, the appellants herein on their own application were joined as co-defendants by the Court. The Plaintiffs in their amended statement of claim sought the following reliefs:
1. (a) Declaration that they are the traditional Obas and paramount rulers of their respective communities in Akure and that they are entitled to be admitted to Part 1 of the Chief s Edict 1984 of Ondo State as recognized chiefs.
(b) That the plaintiffs be accorded the right to wear paraphernalia of office as traditional Obas and paramount rulers of their respective communities.
2.(a) An order setting aside as null, void and of no effect the 1st and 2nd defendants letters to the plaintiffs ref. No. CD/C. 147/Vol. 11/422 and No. CD/C. 147/Vol. 11/424 dated 6th November, 1996 by which the 1st and 2nd defendants relegated the plaintiffs in status by making them Akure Chiefs under the Deji.
(b) An order setting aside as null and void and of no effect whatsoever any purported steps taken or anything done by the 3rd and 4th defendants pursuant to the letter Ref. No. CD/C. 147/Vol. 11/422 and No. CD/C/147/Vol. 11/424, dated 6th November, 1996.
3. An order of perpetual injunction restraining the 1st, 2nd, 3rd, and 4th defendants their servants, agents or privies from relegating the plaintiffs in status by making them Akure chiefs under the Deji.
The facts which led to the institution of this case are as follows: The 1st and 2nd plaintiffs are the Iralepo of Isinkan, Akure; and the Osolo of Isolo, Akure respectively. They claim to have been installed as traditional and paramount rulers by the princes and the Kingmakers of their respective communities without any input whatsoever by the Deji of Akure. They claim that notwithstanding the contiguity of their communities to Akure, they have some festivals and characteristics which distinguish them from Akure. They are therefore not within the Chieftaincy structure of Akure and do not rank within their hierarchy. They claim to have been “Oba de facto” of their respective communities and what they are now seeking by this suit is government recognition of their positions as Obas and paramount rulers of their respective communities and to be admitted to Part 1 of the Chiefs Edict of 1984 of Ondo State as recognized chiefs. They claim to have always conceded traditional supremacy to the Deji as the 1st class Oba in Akure and its environ. The defendants in their amended statement of defence denied the plaintiffs’ claims. They averred that the plaintiffs’ communities of Isinkan and Isolo are merely quarters within Akure; their traditional rulers cannot therefore be accorded the status of Oba as the Deji has for centuries reigned as the paramount traditional Oba of Akure land to the exclusion of any other paramount traditional ruler. The defendants alleged that following incessant agitations by the plaintiffs since their installation for recognition, the Ondo State Government, 1st and 2nd defendants reacted by issuing exhibits Q and V which sought to align the plaintiffs with Akure Chiefs. The plaintiffs rejected the government decision and sought by this suit the nullification of the decision. The defendants alleged that the status of the plaintiffs as Iralepo and Osolo have always been that of minor chiefs of their quarters in Akure town since their voluntary merger with Akure over a century ago. Their ancestors had accepted their position within Akure Chieftaincy system without qualms. There was consequently no basis for the claim of the plaintiffs for recognition as paramount rulers under part 1 of Ondo State Chiefs Edict 1984. Issues were then joined and the case proceeded to trial. The plaintiffs called 9 witnesses and tendered documents in support of their claims. The defendants called 5 witnesses and also tendered documents to buttress their defence. In a reserved judgment, the learned trial judge gave judgment in favour of the plaintiffs granting all the reliefs they sought. Dissatisfied with the Judgment, the 3rd and 4th Defendants/Appellants have now appealed to this court. The 1st and 2nd defendants in the lower court (Governor of Ondo State and His Attorney-General) did not appeal and became nominal respondents in this appeal as 3rd and 4th respondents. The parties, except the 3rd and 4th respondents filed and exchanged briefs of argument which were duly adopted and relied upon at the hearing of the appeal.
Mr. Falowo learned counsel for the appellants in his brief of argument identified the following issues as arising for determination in this appeal. They are:
ISSUE 1
Whether the trial court had jurisdiction to entertain the suits of the respondents having regard to the cause of action disclosed in their amended writ of summons and statement of claim and the time the cause of action arose.
ISSUE 2
Whether the declaration of the trial court that 1st and 2nd respondents are traditional paramount chiefs under Part 1 of the Ondo State Chiefs law 1984 within Akure town known to have a long reigning paramount Oba is a proper exercise of judicial discretion.
ISSUE 3
Whether the trial court evaluated the material evidence placed before it on the various issues in controversy as to produce a judgment based on proper findings of fact.
ISSUE 4
Whether the orders of the trial court nullifying exhibits ‘Q’ & ‘V’ and of perpetual injunction made thereto were proper in the light of the disputed issues in the pleadings and evidence of the parties.
ISSUE 5
Whether the trial court examined and resolved the conflicts in the evidence of traditional histories placed before it when each of the histories was probable and evidence of recent events was copiously made available to that court.
The 1st and 2nd respondents in their brief of argument adopted the issues as formulated by the appellants.
I am of the view that issues 2 – 5 overlap and can conveniently be combined and discussed under one issue which reads thus: “Whether the trial judge properly evaluated the oral and documentary evidence adduced in the case as to justify the declarations and orders made.” I shall consequently determine this appeal on the following two issues:
1. Whether the trial judge had the jurisdiction to entertain the suit
2. Whether the trial judge properly evaluated the oral and documentary evidence adduced in the case as to justify the declarations and orders made.
ISSUE 1 (JURISDICTION)
After examining in detail with relevant authorities the law pertaining to jurisdiction of a court to entertain a suit, learned counsel for the appellants submitted that the trial court lacked jurisdiction to entertain the consolidated suits in that the suits were chieftaincy matters and that at the time the cause of action arose in the two cases, the applicable law was the Nigerian Constitution of 1963 which by its ouster provision in chieftaincy matters in Section 161(3) ousted the jurisdiction of the court to entertain the suit. Counsel argued that the cause of action in respect of the 1st respondent arose upon his installation as the Oba Iralepo on 31/7/78 whilst the 2nd respondent’s cause of action arose upon his installation as the Oba Osolo on 31/1/79. Counsel submitted relying on Mosojo v. Oyetayo & Ors (2003) 5 SCNJ 199 @ 204 lines 15-20 that the date of installation of a chief, whether or not he brings a court action is the date his cause of action arose.
Learned Counsel for the 1st and 2nd respondents in their brief of argument set out the claims of the respondents and submitted that the causes of action arose on receipt of the letters, Exhibits Q and V from 3rd and 4th respondents (the Ondo State Government) in 1996 which letters, they claimed relegated the 1st and 2nd respondents in status by integrating them into Iwara Mejo and thus making them chiefs under the Deji. Learned Counsel relied on the cases of Aremo II v. Adekanye (2004) 7 SCNJ 218 @ 221 ratio 5: Olaniyi v. Aroyehun (1991) 5 NWLR (Pt. 194) 652 @ 655 ratio 1.
It is trite law that it is the plaintiff’s claim as endorsed on the writ of summons and the Statement of claim that determine whether or not the trial court has jurisdiction to entertain a suit. See Aremo II v. Adekanye (supra). It is not in dispute that the claims of the plaintiffs/respondents relate to chieftaincy matters as their claim is for official recognition under Part 1 of the Chief s Edict 1984. Under the 1963 Constitution the courts had no jurisdiction to entertain chieftaincy matters. The 1979 Constitution and subsequent constitutions restored the jurisdiction. Thus if the cause of action in these consolidated suits arose before 1979, then the court would have no jurisdiction to entertain the suits. It is necessary therefore to determine the meaning of the phrase ’cause of action’ as that would assist in determining when the cause of action arose in this appeal. The phrase has been defined in many cases. In the case of Omomeii v. Kolawole (2008) 14 NWLR (Pt. 1106) 180 @ 204 – 205 G-C. Tabai JSC examined some cases where the phrase was defined. His words:
“To start with, let me ascertain the meaning of the phrase ’cause of action’. In the English case of Board of Trade v. Cayzer Irvine and Company Ltd. (1927) AC 610 at 617 the House of Lords speaking of the meaning ” cause of action” said:
“Cause of action …..means that which makes action possible, and in the present case that is the award of the arbitrators, for until it ,s in being no action is possible. ”
In Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt.102) I22 at 169, this court, per Karibi-Whyte, JSC spoke of the phrase thus:
“Cause of action has been held to mean every fact which is material to be proved to entitle a plaintiff to succeed, or all those things necessary to give a right to relief in law or equity.”
And in Amodu v. Amode (1990) 5 NWLR (Pt. 150) 356 at 367 this court quoted with approval its definition in Hernaman v. Smith (1855) 10 Exch. 659 at 666 thus:
“The term “cause of action” means all those things necessary to give a right of action whether they are to be done by the plaintiff or a third party.”
It is clear from the above definitions, which I adopt, that it is the totality of the factual situation in a case which entitles the plaintiff to a relief or reliefs that constitutes the phrase “cause of action”
Thus ’cause of action’ will not exist where nothing has happened to entitle a plaintiff to some relief or to sue someone.
Mr. Falowo’s contention is that the cause of action here arose upon the installation of the appellants as the Oba of Iralepo on 31/7/1978 and the Oba of Osolo on 31/1/79 respectively. But at those points in time, nothing had happened to entitle the 1st and 2nd respondents to sue any one for any relief. They were duly installed as they claimed as paramount traditional Obas of their respective communities by the Princes and Kingmakers and they performed all the traditional rites associated with the titles. No one challenged their installation or their right to perform the traditional rites. It is true that they sought official recognition. But until an event occurs which will entitle them to claim relief from someone, there is no cause of action. That event occurred when instead of granting them the desired recognition, exhibits Q and V were written to them by the 3rd and 4th respondents ‘relegating’ them (as they claimed) to the position of High Chiefs in Akure. The exhibits were written on 6/11/96. To all intents and purposes and in view of the widely accepted definition of the phrase “cause of action”, the 1st and 2nd respondents’ cause of action arose in November 1996 when the Government finally took action on their request for recognition. The factual situation had then arisen which entitled them to seek relief against the Government. They instituted the actions in 1996 when the 1963 Constitution had long been overtaken by the 1979 Constitution which restored the jurisdiction of High court in chieftaincy matters. In Olaniyi v. Aroyehun (supra), the Supreme Court held that the law applicable to a matter is that in force at the time the cause of action arose. Mr. Falowo with respect is wrong in his contention that the cause of action arose when the respondents were installed. The case of Mosojo v. Oyetayo (supra) on which he placed reliance does not support his contention. The case is certainly not authority for a general proposition that the date of installation of a chief, whether or not he brings a court action is the date his cause of action arose. On the contrary the case re-affirmed the proposition that ’cause of action’ means the facts which, when proved, will entitle a plaintiff to a remedy against the defendant. It was the installation of the 1st respondent in Mosojo v. Oyetayo (supra) as the Obasinkin of Ila-Orangun that entitled the appellant to a remedy against him, thus giving rise to the cause of action in that case. The case is certainly not an authority that in chieftaincy matters, cause of action arises when the chief is installed. Such a general proposition cannot arise and cannot be correct given the accepted definition of ’cause of action’ as the totality of the factual situation which will entitle a plaintiff to a relief or reliefs in court.
A careful scrutiny of the reliefs claimed in the writ and statement of claim will reveal that all the rights claimed resulted from the refusal of the 3rd and 4th respondents to accord recognition under Part 1 of the Chiefs Law to the 1st and 2nd respondents and instead by exhibits Q and V placed them as High Chiefs under the Deji of Akure. The cause of action clearly arose when Exhibits Q and V were written in 1996 and not when the 1st and 2nd respondents were allegedly installed as paramount Obas in I 978 and 1979 respectively. The court consequently had jurisdiction to entertain the suits. This issue is resolved against the appellants and in favour of the 1st and 2nd respondents.
ISSUE 2:
Whether the trial judge properly evaluated the oral and documentary evidence led in the case as to justify the declarations and orders made.
Learned Counsel in his brief submitted that the lower court failed woefully to evaluate the material evidence, oral and documentary presented before the court with the inevitable consequence of gross inadequacy of proper findings of fact to support the judgment. Counsel argued that the learned trial judge merely reviewed the evidence led in the case in his lengthy judgment instead of evaluating the evidence. Counsel further submitted that the 1st and 2nd respondents in their statement of claim sought declarations that they are paramount Obas in their respective communities within Akure town and that in a claim for declaration of title, be it of land or a chieftaincy, the onus is on the claimant to establish the claim by proving his root of title. Counsel relying on the case of Madubuonwu v. Nnalue (1992) 8 NWLR (Pt. 260) 440 @ 449 G-H and two other cases submitted that the claimant must lead evidence to establish how the title descended to the successive descendants over the years until it came down to the claimant and he must rely on the strength of his own case alone. Counsel submitted further that neither the 1st nor 2nd respondent led credible evidence to establish a lineage with Oduduwa the legendary ancestor of the Yorubas whom they pleaded was the traditional source of the paramount chieftaincy title they claimed in the action. On the contrary, Counsel contended that their evidence of traditional history contradicted each other, such that the learned trial judge ought to have applied the principle laid down in Kojo II v. Bonsie (1957) W.L.R. 1223. @ 1226 in resolving the conflict. Counsel further submitted that the trial judge ignored and failed to evaluate the copious oral and documentary evidence admitted at the hearing. Counsel referred in particular to the evidence of DW.5 which the learned trial judge totally ignored and made no reference to in the judgment.
Learned counsel on the above grounds improper evaluation of the evidence submitted that the trial judge’s exercise of discretion to grant the declarations was not made judicially and judiciously. It is further counsel’s contention that the claims of the 1st and 2nd respondents were founded on illegal acts – appointing and parading themselves as paramount Obas without the state Governor’s approval. The lower court was consequently wrong in granting the declarations. On the grant of the orders nullifying exhibits Q and V (Governor’s letter appointing the 1st and 2nd respondents High chiefs under the Deji), Counsel submitted that it is wrong in law for the orders of the State Government to be challenged by an action for declaration instead of by an order of certiorari. Counsel contended that it is the exclusive statutory function of the State Government to deal with chieftaincy matters by administrative fiat and not the function of the courts to take over the statutory authority conferred upon the State Government. Counsel further contended that the obvious consequence of the trial court’s declaration was to leave its decision to co-exist with the decision of the Ondo State Executive Council regarding exhibits Q and V, not having first quashed the Government decision by an order of certiorari. Counsel submitted that Denning L.J in Healy v. Minister of Health (1955) 1 OB 221 described such a situation as most undesirable. On all of the above grounds, counsel urged us to uphold the appeal and to set aside the judgment of the trial court.
In response, learned counsel for the 1st and 2nd respondents submitted that all the material evidence before the court was evaluated by the learned trial judge. Counsel conceded that the evidence of DW5 was inadvertently omitted by the learned trial judge in the summing up and evaluation of the evidence of all the witnesses in the case but that the omission did not cause any miscarriage of justice sufficient to vitiate the judgment of the trial court. Counsel submitted that the overwhelming evidence before the trial court was that the 1st respondent was selected and installed as an Oba by Isinkan community over which he reigned. The installation ceremonies all took place at Isinkan to the exclusion of the Deji. Those who attempted to deny the installation story by contending that it took place in the palace of the Deji confessed that they did not personally witness the event taking place in the Deji’s palace. Learned counsel submitted that the declarations made by the lower court were not declarations of facts as the trial court found as a fact that the chieftaincy titles of Iralepo and Osolo are not of recent coin age but are titles that have been in existence from time immemorial. The finding, counsel argued is supported by Exhibit A which states that both titles have been on the same status as minor Obas (traditional monarchs) of their people. Counsel submitted that the declaratory orders sought by the respondents that they are paramount rulers of Isinkan and Isolo communities in Akure are the legal cloak i.e. “de jure” recognition of existing rights and not declarations of facts. Counsel further submitted that the respondents were Oba de facto of their respective communities which installed them as such; and that it is not illegal for a community to install their Oba or ruler under customary law and then seek Government approval for the recognition of the title. Counsel submitted that the respondents are not claiming the 1st class paramount Obaship status of the Deji of Akure land as there is only one Deji of Akureland, a first class Oba. All they are asking for is recognition of their minor Obaship and paramount traditional rulership status in respect of their respective communities of Isinkan and Isolo in Akure under the umbrella of the Deji. Counsel submitted that there is no proliferation of paramount chieftaincies in Akure by reason of the recognition of their Obaship status. Their claim counsel argued is supported by the facts on the ground as found by the trial judge. He referred to Exhibit ‘C’ tendered by PW1 at page 49 of the record of appeal (letter by Secretary Akure Local Government dated 7/7/82 applying for the recognition of the Osolo of Isolo and the Iralepo of Isinkan under Part 11 of the Chiefs Law). Learned Counsel submitted that exhibits Q and V are not acts of a prescribed authority backed by any customary traditions or the decision of a Tribunal. They could not be accorded any legitimacy because the ‘Iwarafa Mejo’ coined in the exhibits are unknown to Yoruba culture and tradition. Counsel submitted that the exhibits are the decision of the State Executive Council which can be challenged and cured by a declaratory remedy. He called in aid the cases of A.C. FB v. P.O. Ewarami (1978) ANLR 114 @ 122: Chief R.A. Okoya & Ors v. Santili & Sons (1990) ANLR 250 @ 253 R 2, 3 & 4. Counsel further submitted that the declaration of the trial judge setting aside as null and void Exhibits Q and V which infringe certain right and personal status vested in the respondents by customary law extinguished the executive decision. Fawehinmi v. IGP (2000) 7 NWLR (Pt. 665) 481 @ 511 R.19. The Executive accepted the court verdict and complied with its orders. There were consequently no two inconsistent decisions as the decision of the State Executive ceased to exist having been nullified by the judgment of the trial court.
Counsel submitted that a declaratory action is a discretionary remedy which can be granted by the court subject to well defined conditions. Egbunike & Anor v. Mounweoku (1961) NSCC 40. Counsel further submitted that the grant of the declaratory relief in the instant case did no harm to anybody rather it has guaranteed peace, cultural harmony and continuity of age long traditions and institutions of the affected communities. The decision of the lower court placed the respondents in an intermediate position between the Deji and his Iwarafa or Quarter Chiefs. With regard to the alleged conflict in traditional histories, counsel submitted that there was no conflict and that each of the respondents traced their ancestry from the legendary Oduduwa by reason of which they became the head of their respective communities as oba and traditional rulers. Counsel submitted that the identities of the two communities were recognized and respected by past successive Deji of Akure land as revealed in exhibit ‘J’. Counsel also referred to exhibit A, a letter written by the Secretary Akure Local Government to the Secretary Ondo State Government applying for the recognition of the two chieftaincies under Part II of the Chief’s law, and submitted that Government is free to accept or reject a panel’s decision or recommendation; but that it remains the constitutional duty of the Court when invited to do so to ensure that acts of the Executive are kept within its statutory powers. Counsel referred to the case of Odumeswu Ojukwu v. Governor Lagos State (1985) 2 NWLR (Pt.10) 806 R 14. Learned Counsel urged us to resolve all the issues canvassed by the appellants in favour of the respondents and to dismiss the appellants’ appeal.
I shall start the resolution of this second issue by first considering the contention of the appellants that no evaluation of any material evidence oral or documentary was undertaken by the trial judge. What exactly is meant by ‘evaluation of evidence?’ The meaning of the phrase was fully discussed by Oputa JSC in the case of Onwuka v. Ediala (1989) 1 NWLR (Pt. 96) 187 @ 208-209. His Lordship observed:
“…….What does evaluation of evidence consist of? What is the meaning of the expression evaluation? To evaluate simply means to give value to, to ascertain the amount, to find numerical expression for etc………….
Now talking of scale naturally leads one to the famous dictum of Fatayi-Williams, JSC (as he then was) in A.R. Mogaji & Ors v Madam Rabiatu Odofin & Ors (1978) 4 S.C. 91 @ 93:-
“When an appellant complains that a case is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which has been given to the totality of the evidence before him, (the trial judge)…..Therefore in deciding whether A certain set of facts given in evidence by one party in a civil case before a court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial judge after a summary of all the facts, must put the two sets of facts in an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it… …..”
The scale though imaginary is still the scale of justice, and the scale of truth. Such a scale will automatically repel and expel any and all false evidence. What ought to go into that imaginary scale should therefore be no other than credible evidence.. ..even in Mogaji’s case… . this court held at p.94:-
“Therefore in determining which is heavier, the judge will naturally have regard to the following:-
(a) Whether the evidence is admissible;
(b) Whether it is relevant;
(c) Whether it is credible;
(d) Whether it is conclusive; and
(e) Whether it is more probable than that given by the other party.”
In the light of the above, I shall now examine the judgment to see whether the learned trial judge did evaluate the oral and plethora of documentary evidence presented before him by the parties. The judgment started at page I23 of the record of appeal with the learned judge setting out the claims of the respondents in their writ of summons and statement of claim. From pages 125-197 (a total of about 73 pages), the learned judge reproduced literally verbatim the evidence of the witnesses and the addresses of counsel. Then at pages 197 -201 (barely five pages) his Lordship adopting the issues formulated by the appellants in their written address in his own words ‘highlighted’ some of the evidence in the case. The appellants were not happy that the learned judge in his judgment adopted the issues formulated by their counsel. At page 29 of their brief of argument, appellants’ counsel observed:-
“It is pertinent to point out here the strange procedure adopted by the learned trial judge in his task of evaluation of evidence and findings of fact arising from the pleaded issues. Rather than go directly to the pleadings of the parties for the issues therein raised, the learned trial judge merely settled for the issues propounded by the defence counsel in her final address, when it is obvious that it is the issues pleaded by the parties and proved by evidence that have to be examined to arrive at proper findings of fact.”
By this observation, the appellants are in my view indirectly impugning their own written address at the lower court. The expectation is that counsel in formulating issues for their written address will distill the relevant issues from the pleadings. No doubt a court has a duty to pronounce on all material issues raised before it but failure to do so is not necessarily fatal to a judgment if such failure did not occasion a miscarriage of justice. A court is not bound to pronounce on an issue which has been subsumed in another issue that has been determined. Okonii v. Niokanma (1991) 7 NWLR (Pt.202) 131 @ 146. There is nothing strange in a judge adopting the issues as formulated by any of the parties to a dispute if the judge is satisfied that the said issues capture the essence of the dispute.
I am of the view that the issues are quite adequate to deal with the real substance of the dispute. The issues not dealt with are peripheral to the real substance of the dispute. The respondents claimed that they are the traditional Obas and paramount rulers of Isinkan and Isolo communities and were duly so installed by their respective communities without the Deji playing any role in the appointment and installation; and that after the installation; they sought recognition by the Government under Part 1of the Chiefs law. Instead of granting the recognition sought government wrote letters demoting them to High Chiefs under the Deji of Akure. The issue therefore is whether they are indeed the Obas and paramount traditional rulers of their communities without any input by the Deji; and whether they are thereby automatically entitled to recognition under Part 1 of the Chiefs Law. To prove this fact, it is not necessary in my view that the respondents prove as argued by the appellants their root of title as there is no dispute over their stools. The contention of the appellants that the respondents must not only prove their root of title but must also lead evidence to establish how the title descended to the successive descendants over the years until it came down to them and that they must rely on the strength of their own case only apply where the titles of the respondents are in dispute. There is no dispute here as to the title of the respondents before their merger with Akure. What is important here is whether they can claim to be Oba and paramount traditional rulers of their communities in Akure. For the same reason that there is no dispute over the title of the respondents to the stools in question, the appellants contention that they failed to prove their linkage to Oduduwa is with respect misconceived. What the respondents sought in the lower court were declaratory judgments; to that extent it is right to say that they must rely on the strength of their own case and not the weakness of the opponent’s case.
At this point I think it is appropriate to set out the relevant portion of the judgment in other to determine whether the learned trial judge did adequately evaluate the oral and documentary evidence adduced in the case. The learned judge at page 198 of the record said:-
“In exhibit A written by one R.O. Adegboye the then Secretary to Akure Local Government he had this to say:
“Application for the Iralepo of Isinkan and Osolo Chieftaincies to part II of the Chiefs Law. The said letter was dated March 1979. “The Deji of Akure land has given close and objective examination to the 2 Chieftaincies in Akure and confirmed that they are traditional rulers in their own right and has accordingly recommended their upgrading to part II of the Chiefs Law. The memorandum went further to state the status of the plaintiffs in the body of the memorandum. Since this Exhibit is in evidence I shall not quote more from it. Also in full support of the status of the plaintiffs on this issue is the evidence of the 1st plaintiff as well as the 2nd plaintiff who were PW4 and PW8 respectively; See also exhibit J particularly paragraph (II) thereof See also page 17 and 35 of Exhibit K.
In closing I shall refer to the evidence of DW2 Chief Aminu Balogun under cross-examination “I am aware of Oyemekun Festival in Akure and in our programme brochure we publish the names of Akure Chiefs in Exhibit N and N1. I agree that the names of the plaintiffs are not contained in the brochure also in 1995 in Exhibit N2 the names were not there but we corrected it by imposing a new page containing the names of the plaintiffs.”
This witness identified Exhibit D and confirmed that of all the Chiefs in the Eghare group of Chiefs in Akure only the 2 plaintiffs are the ones whose names are not contained in the list of Kingmakers in Akure further from Exhibit G spotlighting major towns in Akure series No. 1 page 2 paragraph 5 shows that Isinkan and later Isolo Communities settled on their present sites before the leaders of Akure come on the scene. The identity of the two communities were recognized and respected by past successive Deji of Akure. In Exhibit ‘J’ page 1 paragraph B, Page 2 Paragraph 3 (3) and Page 3 where it was stated that “Chief Iralepo has been ruling the land before the arrival Asodeboyede (and Asodeboyede it should be noted is the ancestor of the Dejis). In Exhibit K Page 17 Paragraph 35 it was stated that “On the other hand the position of the Iralepo of Isinkan and Osolo of Isolo is such that they can be regarded as independent of the Deji in the method of their appointment and at page 28 of the same exhibit Isinkan and Isolo were classified as separate villages. These are some of the highlights of the evidence of the plaintiffs and their witnesses in respect of the issue under consideration.
I shall now consider a few of the highlights of the defence witnesses’ evidence. The defence tendered Exhibits AB, AC-AC1 and Exhibits Z and called 4 witnesses. Exhibit Z stated in specific terms the mode of appointment of a new Osolo of Isolo and I quote “the procedure to be followed now is for the Lisa of Isolo to summon a meeting of the Kingmakers of Isolo to elect a candidate for the vacant stool, the candidate so selected will be presented to you for your approval. “This shows that the Osolo is a King with his own Kingmakers and that the Deji at best is a consenting authority to his appointment. Exhibits AB, AC-AC1 is also at best suggesting that the Deji is a consenting authority to the appointment of these Obas. I have earlier on highlighted the evidence of DW2. In the case of DW1 he in his own handwriting in Exhibit AH addressed the Iralepo as Kabiyesi and it is common knowledge in Yoruba land that only Obas are addressed as Kabiyesi. DW3 one Akinleye Omolafe also in Exhibit Y addressed the Iralepo of Isinknn as His Highness O. Ojo. The 4th DW under cross-examination said “I confirm that I said in my evidence in chief that the plaintiffs are upgraded they will be senior to me in rank.” “I performed Arapon for 7 days but I know that each of the Plaintiffs perform Arapon for 9 days ” The DW4 it must be noted is second in rank to the Deji of Akure.
In the light of the evidence as reviewed above I find that the Plaintiffs are traditional Oba and rulers of Isinkan and Isolo communities and I so declare. ”
In view of the above, can it be said that there was proper evaluation of the oral and documentary evidence adduced by both sides in the case. In Lagga v. Sarhuna (2008) 16 IIWLR (Pt. 1114) 427 @ 460 F-G. the Supreme Court per Muhammad JSC observed:
“Now in evaluating any piece of evidence placed before it by parties, a court of law is duty bound to consider the totality of the evidence led by each of the parties. It shall then place it on an imaginary scale of justice to see which of the two sides weighs more creditably than the other. Thus evaluation of evidence entails the assessment of same so as to give value or quality to it. Evaluation of evidence by a trial court should necessarily involve a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. ”
What the learned judge did here after setting out the evidence of the parties and the issues, was to again ‘highlight’ (as he put it) the evidence he apparently preferred from both sides without placing all of the relevant evidence both oral and documentary on an imaginary scale, weighing one against the other before deciding upon the preponderance of credible evidence which weighs more and then accepting it in preference to the other. The learned trial judge did not make any reference in his judgment to the documentary evidence tendered by the appellants which supported their stand in the matter but focused only on the evidence he felt supported the respondents’ case. This does not accord with the accepted standard of evaluation of evidence. It is not in doubt that a trial court is in the best position to assess the credibility of witnesses, having seen and watched the demeanour of the witnesses, but evaluation of evidence does not stop with assessing the credibility of the witnesses. It extends to a consideration of the totality of the evidence adduced on an issue to determine whether the totality of the evidence supports a particular finding of fact. Where the finding of facts is challenged in the appeal court and the court comes to the conclusion that the evaluation by the trial court was defective, the appeal court does have the power to undertake the necessary evaluation. As stated by Ayoola JSC in Basil v. Fajebe (2001) 11 NWLR (Pt.725) 592 @ 609. “to do so is not a usurpation of the province of the trial Judge. To fail to do so is an abdication of responsibility”
I shall now consider the evidence led by the appellants which as I said earlier the learned trial judge did not consider in his judgment to see whether it would have made a difference to the conclusions arrived at. The learned trial judge as conceded by respondents’ counsel omitted the evidence of DW5 both in his summation of the evidence of the parties and in the consideration thereof. The appellants in their brief had contended that DW5 was one of their most serious witnesses. I have read through carefully the 90 lines oral testimony by DW5 (pages 93-95 of the record of appeal). His evidence in essence is that the respondents are not Obas but Quarter Chiefs; that virtually all festivals in Akure are quarter festivals with the exception of a few and that the festivals do not make the entities different from Akure; that every quarter Chief has his own hierarchy of Chiefs under him. DW5 after conceding under cross examination that Obas in Yoruba land are addressed as Kabiyesi admitted writing Exhibit AH to the 1st respondent wherein he addressed him as Kabiyesi. DW4, the Lisa of Akure at page 92 of the record also confirmed that Obas are referred to as Kabiyesi in Yoruba land. Given the stature of DW5 as a retired Principal of a Secondary School, the fact that he referred to the 1st respondent as Kabiyesi will appear to support the contention of the respondents that they were installed Obas by their community giving rise to their being recognized as such by people. The issue could also be looked at from this point of view. If I, for example choose to address myself as Professor Iyizoba, people will not bother to verify whether I was properly conferred with the title of a professor. They would simply comply and address me as a Professor because they know I prefer to be addressed as a professor. DW4 testified that he performed arapon for 7 days; but that only the Deji should perform the arapon for nine days because he is a paramount ruler and that he knew that each of the respondents performed arapon for nine days. Again this evidence may appear to support the contention of the respondents that they were appointed paramount rulers of their respective communities; but that could also be a self serving devise to create the enabling environment for the claims being made. DW1, Mrs. Olayemi Amodeni a civil servant in the Ministry of Local Government and Chieftaincy Affairs, Akure in her evidence in chief testified that the respondents were not Obas because she knew the procedure to follow in order to be recognized under Part II of the Chieftaincy Law but under cross-examination by counsel for the respondents she now said:
“I think Chiefs are referred to as Highnesses. I now say the plaintiffs are minor Obas of their people. The issue in court is that the plaintiffs want to be recognized. I do not agree that the plaintiffs have been recognized. I do not know whether or not the plaintiffs ought to be recognized. ”
This evidence no doubt is not surprising coming from a Local Government staff in view of Exhibit A in which the then Deji recommended the respondents for recognition under Part II and referred to them as paramount rulers in their respective domains.
DW2 also at page 83 of the record of appeal identified and confirmed exhibit T, the photograph of 1st respondent and his daughter at his installation as the Iralepo of Isinkan. He confirmed that the 1st respondent wore a crown with “ere okin” and that it is Obas that wear crowns with ‘ere okin’ in Yoruba land. This evidence was extracted from DW2 during cross-examination contrary to his evidence in examination in chief that the respondents wore coronets not crown just like other Akure Chiefs – Odopetu and Sao who wear coronet for celebration once in a year.
The appellants tendered many exhibits in support of their contention that the respondents were not Obas in their communities and ought not to have been recognized under Part 1 of the Chieftaincy Law as there is only one paramount Oba in Akure land. The exhibits are Y, Z, AB, AC, AC1, AD, AE, AF, AG and AH. Exhibit y is the letter written by DW3 Chief J. A. Akomolafe to the 1st respondent in which he referred to him as “His Highness O. Ojo the Iralepo of Isinkan. Exhibit Z is a letter from Secretary Akure Local Government to the Deji confirming that the Osolo of Isolo chieftaincy is a minor one within the context of the Chiefs Law and that as the prescribed authority for the stool, the candidate selected by the Isolo Kingmakers must be presented to him for approval. Exhibit AB is a letter from Isolo Chiefs to the Deii humbly and respectfully presenting to His Highness the name of Mr. Kayode Oluwatuyi as the candidate to fill the vacant stool of Osolo of Isolo. Exhibit AC is a letter from Abibiri family to the Deji that they are yet to submit the name of their candidate for the vacant stool of Osolo and to discountenance any letter written to His Highness claiming that a candidate has been selected. Exhibit AC 1 is another letter from Osolo Abibiri family to the Deji stating “According to the old Western State Chieftaincy Law and the family’s Traditional right, it is the binding duty of the family to hold meetings and present a candidate of their choice, via the usual Traditional findings, to Isolo Chiefs and also to His Highness the Deji of Akure for approval…..”.. Exhibit AF is a letter from Oba Adesida III, Deji of Akureland to the Secretary Akure Local Government Council informing him of the appointment of the new Iralapo of Isinkan and confirming that the appointment was in accordance with the traditions and customs of Akure and hoping that the council will start to pay his dues from August 1978. Exhibit AG is also a letter from Oba Adesida III to the Military Governor of Ondo State informing His Excellency of his consent to the selection and appointment of Mr. Oluwafunmilayo Ojo a senior employee of the Akure Local Government Council as the new Iralepo elect of Isinkan. These exhibits are clearly contrary to the claim of the respondents that the Deji has nothing to do with their selection and installation. He obviously has an important role to play as the prescribed authority and confirms that the respondents were appointed as minor chiefs of Akure with the Deji as the prescribed authority. Exhibit AD, Intelligence Report on Akure District confirm that Isolo and Isinkan were originally situated 2 or 3 miles away from Akure but left their former sites and came to the town Akure (Page 11). It also confirmed at page 17, that the method of appointment of Chiefs of Isinkan and Isolo may be regarded as independent of the Deji but that the Deji is the consenting and approving authority for their chieftaincies. Exhibit AE is the report of the Contact Committee set up by Oba Adesida IV the Deji of Akure-land on Iralapo and Osolo Chieftaincy Matters. The Committee recommended, which recommendation was apparently accepted by the Deji that the respondents should not be recognized as Obas in Akure as there cannot be more than one Oba in Akure town. Part of their recommendation was the upgrading of the two chiefs to rank after Iwarafa mefa which was the decision of the Ondo State Government as contained in Exhibits Q and V.
From the oral and documentary evidence thus far examined, it will appear that the respondents may have been appointed minor Obas by their community and were in fact so regarded by some people in the community possibly as a way of creating the enabling environment for their claims. The respondents did not lead any evidence that their ancestors since they moved into Akure were similarly appointed. On the contrary the case of the appellants is that the statuses of the respondents as Iralepo and Osolo have always been that of minor chiefs of their quarters in Akure town since their voluntary merger with Akure over a century ago and that their ancestors had accepted their position within Akure Chieftaincy system without qualms. The point is that irrespective of what may have been the position before integration with Akure, after settlement in Akure, their position is bound to be different. Contrary to the claim of the respondents that “Chief Iralepo has been ruling the land before the arrival Asodeboyede (and Asodeboyede it should be noted is the ancestor of the Dejis)”, the true position as shown in the exhibits tendered is that the respondents sought refuge in Akure to avoid annihilation during the Bini war. They got assimilated into Akure and share the same dialect and customs. In fact the respondents refer to themselves as quarters in Akure. See Exhibit R-R1 where the 1st respondent referred to Isinkan as a Quarter in Akure. The traditions of the respondents before the relocation to Akure land are bound to be affected by the relocation. Isinkan and Isolo people cannot merge with Akure and expect to be autonomous communities within Akure town. Even if such would happen, it must be by discussion, agreement and consensus between the two sides; certainly, not by imposition by the court. The facts on the ground are that the stools of the respondents are registered under the Chiefs Law as minor chieftaincies with the 1st appellant as the prescribed authority. The respondents did not adduce any evidence that any of their predecessors since the migration into Akure town irrespective of whatever may have happened within their respective domains was recognized as anything other than a minor chief in Akure. Exhibit AE the report of the contact committee shows that the predecessors of the respondents were quite happy to be under the umbrella of the Deji and never clamored or claimed to be Obas. The claim, they asserted started with the 1st and 2nd respondents. Indeed many of the chiefs of Isinkan and Isolo were members of the Owose group of chiefs in Akure land and participated fully in their activities. The respondents said repeatedly that they accept the position of the Deji as the unchallenged paramount Oba in Akure land and accepted to be under his umbrella as the 1st class Oba of Akure. This by implication means that they cannot be accorded registration under part 1 of the Chiefs Law without the support of the Deji. Clearly, there was no proper evaluation of evidence by the learned trial judge. Of greater importance however is the propriety of the lower court’s exercise of its judicial discretion in granting the reliefs sought. Can a court rightly grant by way of declaration recognition of a chieftaincy under Part 1 of the Chiefs Law? In the case of Nwamara v. Okeahialam (1999) 1 NWLR (Pt. 588) 590 @ 602 Uwaifo JCA (as he then was) said:
” … … …where a functionary is conferred with the duty or authority to make an order or a declaration or to give recognition to a person in a chieftaincy title, the duty cannot be performed or the authority exercised by the court by way of a declaration or otherwise where that person failed to do so I properly. What he did con only be set aside by the court in an appropriate case in its supervisory jurisdiction. The decision to be made under that duty or authority must finally be his; the court cannot take it over. ”
Learned counsel for the appellants is right that a proper declaratory judgment is one which is merely a judicial statement confirming or denying a legal right of a party. It is a procedural device for ascertaining and determining the rights of parties or for the determination of a point of law. It merely declares and goes no further in providing a consequential relief to the applicant. The learned trial judge consequently exercised his discretion wrongly in ordering the defendants to accord the 1st and 2nd plaintiffs the right to wear the paraphernalia of their offices as traditional Obas in Akure town. Do the facts on the ground support the claim of the respondents that they are the traditional Obas and paramount rulers of their respective communities and are consequently entitled to recognition under Part 1 of the Chief s law? The facts on the ground are that the stools of the respondents are registered under the Chiefs Law as minor chieftaincies with the 1st appellant as the prescribed authority. There is consequently no hard evidence other than pieces of evidence possibly contrived to back up their claim that they are the traditional Obas and paramount rulers of their respective communities in Akure entitling them to recognition under Part 1 of the Chiefs Edict 1984 of Ondo State. The learned trial judge exercised his discretion wrongly. Furthermore, whether or not to actually recognize the respondents in Part 1 of the Chiefs Law is clearly a function of the 3rd respondent. The 3rd respondent acted by issuing exhibits V and Q to the Deji directing the Deji as the prescribed authority to re-organize the chieftaincy hierarchy under him and to upgrade the 1st and 2nd respondents into the existing system. If the respondents are dissatisfied with the decision of the 3rd respondent, the proper step they should have taken is to revert back to the Executive Council of the 3rd respondent for a review of the decision or to challenge the validity of the action of the 3rd respondent by certiorari removing it to the High court to be quashed; and not by a declaratory action. Before arriving at its decision, the 3rd respondent must have taken into consideration the views of the Deji as the prescribed authority based on the traditions and customs of Akure land. This is what has made all the difference. The fact is that the current Deji whom the respondents accept as the paramount overall boss in the domain did not support their case like the Deji before him. The submission of learned counsel for the respondents that exhibits Q and V are not the acts of a prescribed authority backed by any customary traditions or the decision of any Tribunal and cannot be accorded any legitimacy is misconceived. The decision is a valid decision of the Government of Ondo State acting under the powers conferred by a Statute, the Ondo State Chiefs Law. What I see in exhibits Q and V is “Iwarafe-mefa” and not “Iwerafemejo” as alleged by the respondents. The fact that the Government has already complied with the order of the lower court shows that the government is a law abiding Government and obeys court orders. It does not detract from the true position of the law. The Chiefs Edict of 1984 gave the Government of Ondo State through its executive council the statutory authority to deal with chieftaincy matters. A decision has been taken by the appropriate authority in the form of Exhibits Q and V, a declaratory action is not the proper remedy for challenging the decision already taken by the authority under the circumstances. See Sarumoh v. Asanike (1996) 7 NWLR (Pt. 460) 370 @ 377 – 378,Para G. Per Okunola JCA:
“The poser raised in this appeal is what is the legal effect of an aggrieved person coming to the High Court for a declaration, as in the instant case, without challenging the validity of the decision of the prescribed authority through the laid down channels. This poser had come for consideration and resolution by the Supreme Court to the effect that where the respondent has not challenged the validity of the prescribed authority either by appeal to the Executive Council for review or by certiorari removing it to the High Court to be quashed, it is inappropriate to do so by a declaration. The decision of the prescribed authority therefore remains valid and effective. Thus in Eguamwense v. Amaghizemwen (1993) 9 NWLR (Pt. 315) 1 p.25 where the facts are on all fours with the case under review the Supreme Court held per Karibi-Whyte thus:
“In the circumstances the High Court should have in the exercise of its jurisdiction in the declaratory relief borne in mind the fact that there was a valid and subsisting decision of an inferior tribunal. The High Court would therefore be exercising its discretion in respect of a legal position of the chieftaincy title of Amaghizemwen of Benin in respect of which the declaration was being sought was at the time of the suit been determined by the ‘prescribed authority’. The High Court went outside its jurisdiction in granting the declaration sought. ”
Applying the above principle to this appeal, at the time the respondents brought this action at the High court, a decision had been taken by the 3rd respondent in exercise of its jurisdiction under the Chiefs Law; the decision was then pending. Without appealing for the review of the decision and without taking out certiorari proceedings to set it aside, the court went ahead to grant the declarations sought. Although a declaratory action is a discretionary remedy which can be granted by the court, the exercise of the discretion is subject to well defined conditions and must be exercised sparingly and with a proper sense of responsibility. See Egbunike & Anor v. Muonweokwu (1961) 1 SCNLR 97: Ibeneweka v. Egbunna (1964) a NLR 219.
There is no doubt that the learned trial judge very wrongly exercised his discretion in granting the declaratory reliefs. See Okoya & Ors v. Santili & Ors (1990) 2 NWLR (Pt. 131) 176: Adigun v. A.G. of Oyo State (1987) 1 NWLR (Pt 53) 678
The agitation for recognition under Part II and later part I of the Chiefs law from all available evidence started with the respondents after their installation. See Exhibit A. Naturally, because the Deji of Akure is the paramount ruler of Akure land of which Isinkan and Isolo are part of the ruling Deji at the time championed the cause for the upgrading of the chieftaincies. All the applications for upgrading were by the Local Government backed with appropriate recommendation by the Deji. If subsequently new Deji came on board and did not accept or support the recognition of the respondents under Part 1 of the Chiefs Law, can it rightly be imposed on him or the Akure community by the Court. In so far as Isinkan and Isolo remain part of Akure land that would be invitation to anarchy. From recognition as paramount rulers and Obas in their communities without the consent of the Deji, the respondents would in time want and fight for recognition as autonomous communities independent of Akure while on Akure land. That scenario ought not to be encouraged. The point is that the only way to ensure lasting peace is that recognition of the respondents under Part 1 of the Chiefs Law must be as a result of discussion, negotiation and agreement between the Deji and the respondents based on mutual understanding of the limits of the powers of the respondents. It is noteworthy that in Exhibit A it was asserted that the respondents would not wear crowns to the Deji’s Palace. With the open ended order of the trial judge, it was as if the respondents were given carte blanche to wear the paraphernalia of office as paramount rulers of their communities within Akure land. Can there be more than one paramount ruler in a town? While in one breath the respondents state that they are not claiming the 1st class paramount Obaship status of the Deji of Akure land; that there is only one Deji of Akure land, a first class Oba, in another breath, they said all they claim is recognition of their Obaship and paramount traditional rulership in respect of their respective communities of Isinkan and Isolo in Akure under the umbrella of the Deji. Isikan and Isolo are in Akure. Granting them Obaship without the sanction of the Deji is clearly undermining the authority of the Deji as the paramount ruler of the town. It certainly does not create an enabling environment for peace in the community. The second issue for determination is resolved in favour of the appellants.
This appeal succeeds and it is hereby allowed. The judgment of the High court of Akure Ondo State in the consolidated suits AK/371/96 and AK/372/96, delivered on the 16th day of December, 2004 is hereby set aside. The claims in the said consolidated suits are accordingly dismissed. The appellants are entitled to the cost of this appeal which I assess at N100,000. 00.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A: I have had a preview of the judgment of my learned brother C. E. IYIZOBA JCA just delivered. I agree entirely with his reasoning and conclusions which I adopt as mine. I agree that the appeal is meritorious and ought to be allowed. For the reasons ably advanced in the lead judgment, I also allow the appeal. I abide by the consequential orders contained in the lead judgment including the order for costs.
MOORE A. A. ADUMEIN, J.C.A: I had the privilege of reading before now the judgment just delivered by my learned brother, Iyizoba, JCA. I agree with the reasons and conclusion that this appeal has merit and I also allow it.
I abide by all the orders in the leading judgment.
Appearances
G. O. Falowo, Esq.,
M.A. Owoyemi For Appellant
AND
Tunde Olofinsawo Esq.
Steve Adebowale DDPP,
Bode Ayekusi SLO Chief E.K. Ashiekaa -for the 6th Appellant
Amuwa Olatunde -for the Respondent For Respondent
