H.R.H. OBA SAMUEL ADEBAYO-ADEGBOLA & ORS. V. MR. JAMES OLATUNDE IDOWU & ORS.
(2013)LCN/6413(CA)
In The Court of Appeal of Nigeria
On Monday, the 15th day of July, 2013
CA/I/128/2011
RATIO
WHETHER A DECLARATION MADE AND REGISTERED IN RESPECT OF CHIEFTAINCY BECOMES ENFORCEABLE TO THE EXCLUSION OF ALL OTHER CUSTOMS OR USAGE
The position of the Law is that once a Declaration is made and registered in respect of a chieftaincy, it (THE DECLARATION) becomes operative, binding and enforceable to the exclusion of all other custom or usage (earlier in place and replaced by the Declaration). See: Imunikhe v. A.G. Bendel State (1992) 6 NWLR (Pt.248) 396 @ 415 (C D). PER M.B. DONGBAN-MENSEM, J.C.A.
JUSTICES:
M.B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
1. H.R.H. OBA SAMUEL ADEBAYO-ADEGBOLA (ELERUWA)
2. CHIEF JACOB SALAKO ADEWUSI (THE ODOFIN ERUWA) DECEASED)
3. CHIEF FEMI ATANDA-JAGUN OF ERUWA
4. CHIEF I.O. OLABODE-OLUKOTUN OF ERUWA
5. CHIEF IDOWU OKEOWO-ASIPA OF ERUWA
6. CHIEF E. OJEBISI-BAALE OF AGBE OF ERUWA
7. MR. KASALI SANGOTIKUN – Appellant(s)
AND
1. MR. JAMES OLATUNDE IDOWU (FOR HIMSELF AND ON BEHALF OF LARIBIKUSI RULING HOUSE EXCEPTING LASUBU FAMILY OR SECTION OF LARIBIKUSI RULING HOUSE/QUARTERS)
2. ALHAJI RASHEED OYEDEPO AJAO
3. THE GOVERNOR OF OYO STATE
4. THE ATTORNEY GENERAL OF OYO STATE
5. IBARAPA EAST LOCAL GOVERNMENT – Respondent(s)
M.B. DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): The Judgment of Hon. Justice M. L. Abimbola of the Oyo State High Court, holden at Eruwa Judicial Division, delivered on the 20th day of January, 2011 was against the 1st – 7th Appellants and 3rd – 5th Respondents as Defendants and in favour of the 1st and 2nd Respondents as Plaintiffs. In this judgment the parties will simply be referred to as Appellants and Respondents as reflected in the names of the parties in this appeal.
It is necessary to state that the 5th Respondent filed no brief though dully served with the processes and notices of hearing.
This appeal is therefore determined on the brief of the Appellants, the 1st and 2nd, and the 3rd and 4th Respondents’ briefs respectively.
The facts of this appeal are rooted in the suit of the 1st and 2nd Respondents as the Plaintiffs taken out at the High Court as noted above. The Respondents sought eight reliefs, the details of which were eventually conveyed in a Consequential Further Amendment Statement of Claim. The reliefs are:
i. Declaration that under the Custom and Chieftaincy Declaration of Eruwa, meeting for nomination of candidates by Ruling Quarters can only be summoned by the eldest member of the Ruling Quarters whose turn it is to provide candidates and that any meeting not so summoned is invalid and void.
ii. Declaration that the 2nd Plaintiff and Prince Lamidi Olaoye Okunlola and Prince Abiodun Ojelade are the person duly and validly nominated by the Laribikusi Ruling Quarters.
iii. Declaration that the purported meeting summoned by the 7th Defendant where the 1st Defendant was nominated not being meeting of Laribikusi Ruling Quarters and not having being summoned or attended by the eldest member of Laribikusi Ruling Quarters was improperly constituted, ultra vires, null, void and of no effect.
iv. Declaration that following the death of Oba Bolanle Olaniyan from the Akalako Ruling Quarters, is the turn of Laribikusi Ruling Quarters to present the new Eleruwa and the 1st Defendant being a member of the same Akalako Ruling Quarters with late Oba Bolanle Olaniyan is not qualified to contest or ascend the throne.
v. Declaration that selection and approval of the 1st Defendant by the kingmakers is ultra vires in excess of their powers, null and void, since the kingmakers are entitled to select from the list submitted by the Ruling Quarters and the 1st Defendant’s name is not part of the nomination of Laribikusi Ruling Quarters.
vi. An Order setting aside the purported nomination, selection and approval of the 1st Defendant as the new Eleruwa of Eruwa.
vii. An Order restraining the 2nd -10th Defendants from recognizing or continue to recognize the 1st Defendant as Eleruwa of Eruwa.
viii. An Order directing the 2nd -10th Defendants and the Ikolaba of Eruwa if any to reconsider the nomination made by Laribikusi Ruling Quarters and select a candidate to the stool of Eruwa for approval of the 9th Defendant.
In a considered judgment delivered by the learned trial judge, all the reliefs of the 1st and 2nd Respondents were granted. The trial Court however went a step further and ordered the inclusion of the candidate of Lasubu section of the Laribikusi Ruling Quarters along with the other three candidates of the other sections for consideration by the kingmakers.
Dissatisfied by this judgment the Appellants filed a notice of appeal which was later amended and filed along with their brief of argument dated and filed on 24th February, 2012 but deemed filed on the 6th March, 2012. The Appellants’ further amended its brief of argument and filed Appellants’ further amended brief of argument dated 27th June, 2012 and filed 28th June, 2012. Appellant’s Reply brief dated 15th April, 2013 was filed on the same date. The Respondents’ argument is contained in the 1st and 2nd Respondents’ consequential amended brief of argument dated 13th November, 2012 but filed 15th November, 2012.
The 3rd and 4th Respondents brief dated the 8th April, 2013 but was filed on the 12th April, 2013 was deemed filed on the 18th April, 2013.
The learned Silk for the 1st-7th Appellants R. A. Ogunwole SAN, raised the following five issues for resolution in this appeal:-
1. Whether or not the lower court has jurisdiction to entertain the 1st and 2nd Respondents’ action as the action is incompetent.
2. Whether or not the 1st Appellant is a member of Ajao Alapinni Royal family.
3. Whether or not Sanusi Alao was the eldest member of Olaribikusi Quarters of Eleruwa of Eruwa Chieftaincy.
4. Whether or not the meeting summoned by the 7th Appellant to elect the 1st Appellant as one of the candidates for Eleruwa of Eruwa Chieftaincy from Ajao Alapinni Royal family was not properly constituted.
5. Whether the court has jurisdiction to award to the Plaintiffs/Respondents what they did not claim.
The learned Counsel for the 1st and 2nd Respondent Tona Akande Esq. also raised four issues for determination as follows:-
1. Whether the 1st and 2nd Respondents’ action was properly brought or initiated before the trial court and the said court thereby clothed with the requisite jurisdiction to entertain same.
2. Whether the learned trial judge, on the evidence before him was right in holding that the 1st Appellant’s claim to membership of Aiao Ruling family, from the maternal lineage, was not satisfactorily proved.
3. Whether on the totality of the evidence before the learned trial judge Pa Sanusi Alao was the eldest member of the Laribikusi Ruling quarters (Laribikusi) to nominate candidate to fill the Eleruwa of Eruwa stool and not the 7th Appellant, Mr. Kasali Sangotikun.
4. Whether the Order of the learned trial judge directing the inclusion of the candidate of the Lasubu section of the Laribikusi Ruling Quarters as one of the proposed candidates for consideration by the kingmakers substantially affects the merits of the judgment as a whole.
The 1st and 2nd Respondents also filed a Respondents, Notice of contention to vary the decision of the trial court under the provision of Order 9 Rule 1 of the Court of Appeal Rules, 2011. The said notice dated the 29th day of March, 2012 was filed on the 30th day of March, 2012.
The grounds for the Respondents notice are as follows:-
1. The 1st and 2nd Respondents action at trial court was fought, respectively by the 1st and 2nd Respondents, for and on behalf of the Laribikusi Ruling house “excepting Lasubu family or section” and personally to protect the interest of the named sections and candidate (2nd Respondent).
2. The error/mistake has not in any way affected substantially the merits of the case.
3. The error/mistake made by the trial court could be corrected by this Honourable court on appeal in the interest of justice.
For the 3rd and 4th Respondents, the Hon. Attorney-General of Oyo State Mutalubi Ojo Adebayo Esq. raised a sole issue for determination:-
Whether or not the Judgment of the lower court should be disturbed.
This appeal shall be determined by the issues put forward by the Appellants which are similar to those of the Respondents.
On issue one
The learned senior Counsel for the Appellants R. A. Ogunwole SAN, refers this court to the Respondents writ of summons, the statement of claim, reply to statement of defence, amended reply to statement of defence, and the amended statement of claim at pages 1-3, 84 – 88, 118 – 121, 130 – 133, 134 – 139 of the records to the effect that the originating process was issued and signed by Lasun Sanusi & Co. That the trial court had no jurisdiction to entertain the 1st and 2nd Respondents action.
The learned senior Counsel submits that jurisdiction is a threshold issue, the life wire of proceedings and it is fundamental in nature and can be raised at any stage of proceedings. Learned silk placed reliance on the following cases Ukaegbu v. Ugorji (1991) 7 SC (Pt.11) 82 @ page 96, Eze v. A-G Rivers State (2001) 12 SC (Pt.II) 21 @ 30, Drexei Energy & 2 Ors. v. Trans Int. Bank Ltd. & 2 Ors. (2008) 12 SC (Pt.II) 240 @ 272.
Learned senior Counsel also reproduced section 2 and 24 of the Legal Practitioners Act Cap. 207 LFN (1990) and its interpretation by the Apex court in the case of Nweke v. Okafor (2007) 3 SC (Pt.II) 55 @ 62-64. (Refers also to Oketade v. Akinwumi (2010) 4 SCM 1 @ Page 7, SLB Consortium Ltd. v. NNPC (2011) 4 SC (Pt.1) @ 97, FBN Plc. v. Alhaji Salwanu Maiwada & Ors. (2013) 5 NWLR (Pt.1348) 444 and submits that in light of the above authorities, all the originating processes signed by Lasun Sanusi & Co. are incurably bad and robed the trial court of jurisdiction to entertain the action.
Senior learned Counsel further submits that the 1st and 2nd Respondents made an attempt to correct the error in their Amended Reply to Statement of Defence of 1st -7th Appellants and their Amended Statement of Claim. That you cannot put something on nothing and expect it to stand. (Refers S.C.C (Nig.) Ltd & Anor. v. Levi Ekenwa (2009) 27 WRN 6th July, 2009 page 70 @ 94)
The learned Counsel for the Respondents O.O. Olutalayo Esq. refers this court to paragraphs 4:01-4:02 of the Appellant’s further amended brief of argument and submits that the Appellant failed, refused and neglected to state the whole truth that the originating process in this suit was actually initiated and signed by Lasun Sanusi Esq, Lasun Sanusi & Co. (Iman Chambers) in compliance with and as envisaged by the provisions of sections 2 & 24 of the Legal Practitioners Act and the case of Nweke v. Okafor (2007) 3 SC (Pt.11) 55 @ 62. (Refer pages 147 -1153 and 186-191 of the records)
Counsel submits that the statement of claim of the 1st and 2nd Respondents and reply to the statement of defence were the only process signed by Lasun Sanusi & Co and that they were not the originating process and cannot render the said process incompetent to deprive the court the jurisdiction conferred on it under the law and the valid originating process. (Refer pages 130 – 139 of the records).
Counsel also submits that contrary to the contention of the Appellants otherwise, an amendment of court process dates back to the date of the originating process thereby amended, though the earlier process still forms part of the record of the court. (Refer Yahaya v. Chukwura (2000) 3 NWLR (Pt.753) 1). It is pertinent to state straight away here that an amendment does not cure an invalid process, if found to be invalid.
Counsel further submits that all the cases cited in support of the Appellants position are distinguishable on their facts from the present suit and they are not on all fours with this suit. That in the cases of Oketade
v. Adewumi (2010) 4 SCML @ 7, SLB Consortium Ltd. v. NNPC (2011) 4 SC (Pt.1) 97, First Bank of Nigeria Plc. & Anor. v. Salwanu Maiwada SC/204/2002 (Unreported) delivered on 25th day of May, 2012 and others are situations where the signatures on the originating process are ascribed to legal firm or companies.
Counsel again submits that they complied with the test and/or condition set out by the Supreme Court per Rhodes-Vivour JSC in the case of SLB Consortium Ltd v. NNPPC (supra) as follows:-
“What then is so important about the way Counsel chooses to sign processes. Once it cannot be said who sign a process it is incurably bad, and rules of court that seems to provide a remedy are of no use as a rule cannot override the law (i.e Legal Practitioner Act). All processes filed in court are to be signed as follows:
First, the signature of counsel, which may be by any contraption, Secondly, the name of the counsel clearly written. Thirdly, who counsel represents. Fourthly, name and address of the legal firm.”
Counsel then refers this court to the case of Reg. Trustees Apostolic Church v. Akindele (1967) N.S.C.C. (VoL.5) 117 where the Notice of Appeal stated the Legal Practitioner’s name as “J.A. Cole & Co. and the said court process was signed thus: J.A. Cole for J.A. Cole & Co” the Apex court held that it was in order.
The learned senior Counsel to the Appellants has asked this court to strike out the writ of summons which initiated the suit which led to this appeal.
The learned silk also challenges the competence of the statement of claim also as an originating process.
The ground for this application is that the suit was signed by a law firm. Cited in support are the traditional cases of Nweke v. Okafor (2007) 3 SC (Pt.11) 55 @ 62. SLB Consortium Ltd v. NNPC (2011) 4 SC (Pt.1) 97 First Bank of Nigeria Plc & Anor v. Salwanu Maiwada & Ors (2013) 5 NWLR (Pt.1348) 444.
The learned Counsel to the 1st and 2nd Respondents debunked the intimation that the writ of summons was signed by a law firm. It is the contention of the 1st and 2nd Respondents that the writ was signed by “Lasun Sanusi” followed by Lasun Sanusi & co. of “Iman Chambers”. This format of signing a process complies with the requirement of the law, maintains the learned Counsel.
The pages put in contention by the learned senior Counsel for the Appellants and the Counsel of the Respondents are pages 1-3, pages 84 – 88; 147 – 153, 186 – 191 of the records for this appeal. Unlike the usual I argument of the firm signing instead of a legal practitioner, the Appellants also contend that two different signatures were appended on the same writ on pages 1 and 3.
This, argues the learned senior Counsel vitiates the processes which are both the writ and the statement of claim being the originating summons in the suit. (Refers Ekpemupolo & Ors v. Edremoda & Ors. (2009) 8 NWLR (Pt.1142) page 166 @ 186, Amodu v. The Commandant, P.C. Maiduguri (2009) 15 NWLR (Pt.1163) page 75 @ 80)
The 1st and 2nd Respondents challenges this importation of incompetence of the originating processes by reference to its consequential amended brief of argument filed at page 145-153 of the records by which inference Counsel submits is reflective of the competence of the writ.
The instant appeal is clearly distinguishable from the cases cited and relied on by the learned senior Counsel. In Nweke v. Okafor (supra) what was in issue was whether JHC Okolo, SAN and Co. is a legal practitioner. The learned senior Counsel rightly reproduced the focal point of that decision which is as follows
“I had earlier stated that the law does not say that what should be in the roll should be the signature of the legal practitioner but his name, that apart, it is very clear that by looking at the documents, the signature which learned Senior Advocate claims to be his really belongs to J.H.C. Okolo, SAN & Co. or was appended on its behalf since it was signed on top of that name since both counsel agree that J.H.C. Okolo, SAN & Co. is not a legal practitioner recognized by the law, it follows that the said J.H.C. Okolo, SAN & Co. cannot legally sign and/or file any process in the courts and as such the Motion on Notice filed on 19th December, 2005, Notice of Cross Appeal and Applicants’ Brief of Argument in support of the said motion all signed and issued by the firm known and called J.H.C Okolo, SAN & Co. is not a registered legal practitioner”.
The case of Oketade v. Akinwumi (2010) 4 SCM 1 @ 7 also presents a different situation incomparable with the instant appeal. Niki Tobi JSC found as follows:-
“it does not appear that Counsel for the Appellant has an answer for the objection. There is a big legal difference between the name of a firm of legal practitioner and the name of a legal practitioner simpliciter. While the name of Olujimi and Akeredolu is a firm with some corporate existence, the name of the legal practitioner is a name qua solicitors and Advocate of the supreme court of Nigeria which has a corporate connotation. As both carry different legal entities on our jurisprudence of parties, one cannot be a substitute for the other because they are not synonymous. It is clear that Olujimi and Akeredolu is not a name of a legal practitioner in Nigeria.
I say this because there is no such name in the roll of Legal Practitioner and the definition of the Legal Practitioner in section 24 of the Act does not include Olujimi and Akerodolu. This, to me, is not a mere technicality that can be brushed aside. It is fundamental to the judicial process as it directly affects the legal processes that brought this case on appeal”
Onnoghen JSC, dealt with yet a completely different situation in the case of SLB Consortium Ltd v. NNPC (2011) 4 SC (Pt.1) @ 07. My lord held as follows:
“so, a Legal Practitioner contemplated by Order 26 Rule 4(3) supra is the one defined above, is Adewale Adesokan & Co.” a legal Practitioner within the context of Order 26 Rule 4(3) supra?  Learned Counsel for the Appellant contend that it is, being a law firm of a sole proprietor while the objection is to the contrary”
The rationale for this seeming hard judicial line was explained in the case of First Bank of Nigeria Plc & Anor v. Salwanu Maiwada & Ors (supra). The Apex court per my lord Fabiyi JSC held as follows:-
“There is also the view of some counsel that the decision in Okafor v. Nweke had to do with technical justice. I agree that the age of technical justice is gone. The current vogue is substantial justice. See Dada v. Dosumu (2006) 12 PNJSC 115. But substantial justice can only be attained not by bending the law but by applying it as it is; not as it ought to be. There is nothing technical in applying the provisions of section 2(1) and 24 of the Legal practitioners Act as it is drafted by legislature. The law should not be bend to suit the whims and caprices of the parties/counsel. One should not talk of technicality when a substantive provision of the law is rightly invoked.”
As earlier intimated, the facts of this appeal are different. The learned senior counsel has premised his argument for the Appellant and against the 1st and 2nd Respondents on the writ of summons and the statement of claim. Could this be an attempt to extend/over stretch the requirement of the law?
There exist rules for the filling of claims before the High Court. When an action is commenced by a writ of summons, the Rules provide for how it shall be issued and what it must contain before it is issued. In this appeal, the suit was guided by the High Court Civil Procedure Rule.
Order 5 Rule 10 of the High Court (Civil Procedure) Rules, Edict 1988 (as then applicable to Oyo State) provides as follows:-
“10. Before a writ is issued it shall be endorsed-
(a) With a statement of claim or, if the statement of claim is not endorsed on the writ, with a concise statement of the nature of the claim made or the relief or remedy required in the action begun thereby;
(b) where the claim made by the plaintiff is for a debt or a liquidated demand only, with the statement of the amount claimed in respect of the debt or demand, and for costs. ”
In compliance with this rule, the writ was dully endorsed with a concised statement of the nature of the claim.
Since the writ has been endorsed with a concise statement of the claim, subsequent statement is a mere amplification. It follows therefore that if the writ dully endorsed with a concised statement of the claim is dully signed and executed, a subsequent process cannot render the writ, as the originating process, incompetent.
I have closely and dispassionately perused the pages put in issue by both parties. Page 1 bears neither a name nor signature of a legal practitioner. The process is signed by the Registrar of the court. Page two however bears the signature, name of Counsel, name of Counsel and Co. and the chambers. At pages 145-153 of the records cited by the learned Counsel for the 1st and 2nd Respondents the same format is repeated. I must say that the signature and name on page 2 is not clear, having been defaced by time. (the writ is dated 29th July, 1998, was filed 15 years ago). Nonetheless, it is possible to decipher therefrom the sequence of signature, name, name of firm and chambers clearly reminiscent of what is obtained at page 145-153. There is no evidence to support the suggestion by the learned silk that there was an attempt to amend the said process with a view to correcting the format of authentication. The format on pages 2 and 153 are as stated by my lord Rhodes Vivour JSC in the case of SLB Consortium Ltd v. NNPC (2011) 4 SC (Pt.1) 97 the situation in this appeal is not one of the law firm signing the process. By the clear replica of the process at page 153 it is discernible, indeed, it is distinct that the originating process was dully signed by a legal practitioner whose name, firm name, were separately stated and the process dully signed.
As cited by the learned senior Counsel (Reply brief @ paragraph 1.03) the word signature is defined (Black Law Dictionary 7th edition at page 1378) as:-
‘A person’s name or mark written by the person or at the persons direction. Any name, mark or writing used with the intention of authenticating a document.”
The mere assertion of the differing signatures on the originating process is beyond the province of this court to determine. Not being handwriting experts, this court cannot determine the alleged difference in signatures without the guidance of a hand writing expert. This is an issue that should have been raised and determined by the learned trial Judge.
I fail to comprehend the relevance of the case of Braithwaite v. Skye Bank Plc (2013) 5 NWLR (Pt.1346) P.1 @ 16, cited by the learned senior Counsel, As stated earlier the name of the legal practitioner is stated below a mark which I believe is the signature of the said legal practitioner. There is no telling from the said mark (as signature) the name, firm name and chambers, that the process was signed by an inanimate personality. It would be an incredulous requirement for the court to also determine whether a signature appended to a name is infact done so by an animate or inanimate personality. In this appeal, I am satisfied that the originating process complies with the requirement of section 2(1) and 24 of the Legal Practitioners’ Act as judicially explained in the case of Okafor v. Nweke (supra) and Maiwada v. FBN (supra), among several other cases.
I do not believe that the Appellants are on a fishing expedition to find some fault with the processes filed before the court in order to do away with the suit of the Respondents.
In the circumstance, I am inclined to deem as dully done, that which seems to have been properly done. I hold that the trial court was clotted with the requisite jurisdiction to entertain the suit.
This appeal is competently before this court
Issue two
The grouse of the Appellants is that contrary to the detailed materials provided by the Appellants in paragraphs 5-6 of the Appellants’ Further Amended Statement of Defence of the 1st – 7th Appellants, Appellants witnesses at pages 182 B lines 15, 182C lines 9-11, 182D, D.W. 2 @ 182 E, D.W.3 @ pages 191A lines 21, 191B lines 1 & 2, D.W.4 @ page 238 I-J, the learned trial Judge failed to give credence to the Appellants’ position. Also irritating to the Appellants is the assertion of the Respondents that Adeyinka (Grandmother of the 1st Appellant) was not a family member of the Ajao Ruling quarters but a brides-maid brought into the royal household by Ogunyemi who wedded into the royal family. That the said Adeyinka was therefore an in-law and could not be the root to found a royal lineage.
Ogunwole (SAN) of learned senior Counsel to the Appellants submits that the learned trial Judge wrongly evaluated the evidence of the Appellants concerning the 1st Appellant’s connection with Ajao/Alapinni/Ogunsebu Royal Family. (Refers D.W.2 @ page 631). That the evidence by D.W.2 relates to paragraph 4c of the Further Amended Statement of Defence of the 1st -7th Appellants to show that one can become Oba (Eleruwa) through the female line. That the Akindete that was mentioned in the said paragraph is different from the Akindele who was senior brother to Ajao and an uncle to the 1st Appellant’s father. I wonder, how is a Judge to determine which Akindele is the royal one and which the commoner? Just by the declaration of the learned silk who was infact not a witness?
The learned silk explains that Alapinni Ogunsoba is the compound name, whereas Ajao became Oba in the said compound. That the descendants of Akindele can also become an Oba either through the male line or the female line and like the 1st Appellant through the female line because Adeyinka the grandmother of the 1st Appellant was a princess through the mother Ogunyemi and that the Chieftaincy is a “woman dynasty” and had infact been bestowed on the daughter of Alaafin.
Had the trial court evaluated evidence in accordance with the pleadings, it would have easily come to the conclusion that the 1st Appellant is a member of the Ajao Alapinni/Ogunsobu and cannot be excluded simply because his father is from Akalakoyi Royal Family. The learned silk maintains that Registered Chieftaincy Declaration does not exclude the 1st Appellant from contesting from the mother’s side.
Submits that the 2nd Respondent have tried all means through a disclaimer to exclude the 1st Appellant when he was not disqualified by any court and to bar him from attending the meeting where he was nominated as a candidate and that if the 1st Appellant were an outsider he would have not been nominated as a candidate to contest.
That at the administrative panel of enquiry, attempts were made at excluding the 1st Appellant again but he was permitted to give evidence before the panel.
The learned senior Counsel also refers this court to the testimonies of 7th Appellant who signed his nomination paper as the eldest member of Ajao Alapinni Royal family who refers to the 1st Appellant as “his son” and that the 2nd Respondent himself is from the female line of the Ajao Alapinni family.
The case of the 1st and 2nd Respondents on this issue is that the requisite circumstances do not exist to justify the assent of the 1st Appellant from a female royal root.
The learned Counsel for the 1st and 2nd Respondents’ agrees that the law regulating Chieftaincy affairs in Eleruwa is the Chieftaincy Declaration (Codified Customs of Eleruwa Chieftaincy) which was registered in 1958 and also admitted as Exhibit C and does not prohibit assent to the throne through a female root but under some conditions.
The 3rd and 4th Respondents, represented by the Attorney-General, Mr. Mutalubi Ojo Adebayo argues in the same terms as 1st and 2nd Respondents.
Counsel refers this court to Appellant’s statement of defence filed on the 4th May, 2005 paragraph 10 where the Appellants admit that the 2nd Respondent is from the male line while the 1st Appellant is from a female line, which averment was altered by amendment but is still part of the pleadings and the court is entitled to look into, refer to and rely on its record. (Refers Yahaya v. Chukwura (2002) 3 NWLR (Pt.753) 1 @ 30, Nwanosike v. Udosen (1993) 4 NWLR (Pt.290) 684 @ 693.
Counsel submits that in view of the facts that there were nominees/candidates from the male line, the purported nomination of the 1st Appellant became irregular, null and void and of no effect whatsoever as female line are allowed only as provided in the proviso to clause (iii) (c) Exhibit C. On the meaning of proviso, Counsel refers this court to Black’s Law Dictionary, 8th Edition @ page 1262 and the cases of GTB (Nig.) Ltd v. Ukpabia (2000) 8 NWLR (Pt.670) 580 @ 5784, Irukwu v. T.M.I.B. (1997) 12 NWLR (Pt.531) 113, 136)
Counsel also submits that the claim to popularity by the 1st Appellant has no basis as it was debunked by the evidence of PW4, 5 & 7, particularly that of PW4 where he demonstrated to the trial court that selection to the throne of Eleruwa is not by popularity but by qualification in accordance with the Custom and the Chieftaincy Declaration of Eleruwa (Exhibit C).
Counsel also refers this court to Exhibit C clause (iii) where “shall” is used for the male line and “may” used for the female line.
Counsel further submits that with reference to paragraphs 1.28-4.32 of the further amended brief of argument, that the submissions be discountenanced as the law is that once a declaration is made and registered in respect of a chieftaincy, it becomes operative, binding and enforceable to the exclusion of all other customs or usage earlier in place and replaced by the Declaration. (Refer Imunike v. A-G Bendel State (1992) 6 NWLR (Pt.248) 396 @ 415).
Counsel submits that the trial court dealt with all the issues by a consideration and evaluation of evidence before it and urges this court not to temper with it. That the appellate court can only temper with the finding of facts of the trial court when such findings of facts is shown to be perverse. (Refer page 361 of the records & Mogaji v. Odofin (1978) 45 C. 91, Gemanam v. Nyoughur (1998) 2 NWLR (Pt.536) 14 @ 149, Ideozu v. Ochoma (2006) 4 NWLR (Pt.970) 364 @ 395)
In reference to the disclaimer in paragraph 4:33 of the Appellants further amended brief of argument, Counsel submits that the contention should be discountenanced by this court as the disclaimer issued against the 1st Appellant was collectively made by the entire ruling house/quarters and that the evidence of the 7th Appellant sought to be relied on was the evidence which was roundly rejected as being unreliable by the learned trial Judge.
The contention of the 1st and 2nd Respondents was that having regard to the applicable custom and the Chieftaincy Declaration, Eleruwa of Eruwa Chieftaincy Declaration, 1957 1st Appellant was not qualified to ascend the throne as he did, claiming his right from the female line when there are candidates from the male line. Also by the principle of rotation that his male ruling line had just vacated the stool by death.
The said Chieftaincy Declaration (codified customs of Eleruwa Chieftaincy) which was registered in 1958 was tendered and admitted as Exhibit C in the trial court and is hereby reproduced:-
“DECLARATION MADE UNDER SECTION 4(2) OF THE CHIEFS LAW, 1957 OF THE CUSTOMARY LAW REGULATING THE SELECTION TO THE ELERUWA OF ERUWA CHIEFTAINCY.
i. There are two ruling quarters and the identity of each such ruling quarters is 1. Akalako 2. Laribikusi
ii. The order of rotation in which the respective ruling quarters are entitled to provide candidates to fill successive vacancies in the chieftaincy shall be 1. Laribikusi 2. Akalako (present ruling house)
iii. The person who may be proposed as candidates by a ruling quarter entitled to a fill a vacancy in the chieftaincy shall be:
a. Male adults
b. Members of the ruling house.
c. Of the male line, provided that succession may devolve on the female line where there is no qualified candidate of the male line or where such candidate has the support of the family and is popular with the people.
iv. There are six (6) kingmakers as under:
1. Chief Odofin (chairman) of Eruwa Quarters
2. Chief Jagun of Eruwa Quarters
3. Chief Ikolaba of Eruwa Quarters
4. Chief Olukotun of Eruwa Quarters
5. Chief Balogun of Eruwa Quarters
6. Chief Ashipa of Eruwa Quarters
v. The method of nomination by each ruling quarters is as follows:
The eldest member of the ruling quarter whose turn it is to produce a candidate shall summon a meeting of all adult male and female members of the family to consider applications for nomination.
The decision of this meeting shall be conveyed by the eldest member of the kingmakers.
MADE by the chieftaincy Committee of the Ibarapa District Council which has been designated as the competent Council by Western Region Legal Notice 61 of 1955, and signed by the Chairman and Secretary of the committee this 4th day of October, 1957.
Chairman, Chieftaincy Committee, Ibarapa District Council
Secretary, Chieftaincy Committee, Ibarapa District Council
The above declaration has been transmitted to the Council at a meeting at Igboora on 4th October, 1957 and the Council has no comments to make.
Chairman
secretary
APPROVED this 25th day of November, 1958.
Minister of Local Government
REGISTERED this 28th day of November, 1958
“For Permanent Secretary, Ministry of Local Government.”
From the provisions of the Chieftaincy Declaration (Exh C) the stool is rotated between the two Ruling houses or quarters of Akalako and Laribikusi Ruling Quarters.
s. (iii) of the Declaration provides for the persons who may be proposed as candidates by a ruling quarters. The persons who may be proposed as candidates are
“a. Male adults
b. Members of the ruling house.
c. Of the male line, provided……….”
It is clear from the foregoing provisions that Exhibit C allows for nomination from female line only if there is no qualified candidates from male line.
The Appellants by their statement of Defence filed on the 4th of May, 2005 in paragraph 10 aver that the 2nd Respondent is from the male line. The paragraph provides:
“10 both the plaintiff and 1st Defendant have been nominated by different factions of Ajao family to fill the vacant stool. Whilst the 2nd Plaintiff is from the male lineage, the 1st Defendant is from the female lineage. Despite the numbers of candidates that are forwarded to the Kingmakers, the Kingmakers have the final say to choose only a candidate that is popular with the people. This is in accordance with the Chieftaincy Declaration.”
The Appellants, though altered their above quoted averments by an amendment of the said pleadings, yet the fact remains that the earlier process still forms part of the Record of the Court; see Yahaya v. Chukwura (2002) 3 NWLR (PT.753) 1 at 360
“‘……….The pleading only becomes irrelevant when it is expressly withdrawn and accordingly struck out. But even where a statement of claim or Defence is amended with leave of court, it does not ipso facto cease to exist. It still forms part of the proceedings and the court cannot shut its eyes against it.”
In addition, the court is entitled to look into, refer to and rely on its record, see: Nwanosike v. Udosen (1993) 4 NWLR (Pt. 290) 684 @ 693
The Respondents maintain that in view of the fact that there were nominees/candidates from the male line, the purported nomination of the 1st Appellant became irregular, null and void and of no effect whatsoever; it is only when there are no candidates from the male line that the proviso comes into consideration.
Female line is brought in top consideration by the proviso to clause (iii)(c) Exhibit C. and proviso according to Black’s Law Dictionary, 8th edition at page 1262 is:
1. A limitation, condition, or stipulation upon whose compliance a legal or formal document’s validity or application may depend.
2. In drafting, a proviso that begins with the words provided that and supplies a condition, exception or addition.
– What is the function/meaning of a “proviso” in law?
In the case of Cadogan Estates Ltd. v. Mematon (2001) RPLR 17, the court held that:-
“A proviso simply creates a conditional right in favour of the donee- ”
(See N.A.B. Kotoye v. Mrs F.M. Saraki (1994) 7 NWLR (Pt.357) P.414
See also GTB (NIG) Ltd v. Ukpabia (2000) 8 NWLR (PT.670) 580 @ 5784 where a proviso is said to be “a clause of exception or qualification in an Act, excepting something out of, or qualifying something in which for the proviso, would be within it.” (See also Irukwu v. T.M.I.B. (1997) 12 NWLR (PT. 531) p.113 @ 136).
By the clear terms of Exhibit C, nomination from the female lineage is conditional on the non-availability of a contestant from the male lineage.
In addition, the use of the word “shall” for male and “may” for female in sec. (iii) of Exhibit C with a proviso that candidate from female line may be proposed if there is no qualified candidate from male line gives priority to candidates from the male line. It follows that it subordinates the right of candidates from female line to a condition of non-availability of candidates from male line. This fact, in addition to the principle of rotation adopted between the Ruling families constitute obstacles in the path of the 1st Appellant.
The position of the Law is that once a Declaration is made and registered in respect of a chieftaincy, it (THE DECLARATION) becomes operative, binding and enforceable to the exclusion of all other custom or usage (earlier in place and replaced by the Declaration). See: Imunikhe v. A.G. Bendel State (1992) 6 NWLR (Pt.248) 396 @ 415 (C D). Thus, I agree with the submission of the Respondents that the issue of the reign of Oba Fasina, who reigned before the coming into force of the declaration, tracing his lineage through the maternal lineage becomes irrelevant now after the registration of the Declaration (Exhibit C).
The trial Court after a careful evaluation of the evidence led before it held at page 361 of the Record of appeal as follows:
“The Plaintiffs evidence is consistent: namely pw4 Fatai Sangotiku whose evidence I prefer above that of DW7 Idowu Eso Sangotiku who did not impress me as a witness of truth; pw6 Lamidi Ojetunde Ojulape, the secretary and the 2nd Plaintiff pw7 the evidence was straight forward and not self-contradictory and when juxtaposed with defendant evidence which is contradictory, the Plaintiff evidence is credible and probable.
There is fundamental contradiction in the evidence of the defence. I have highlighted those areas above.”
We find that the trial Court carefully and fully carried out its duty of consideration and evaluation of the evidence led before reaching its findings and conclusion.
The attitude of the Appellate Court to findings of fact by trial court based on credibility of witness who testified before it is that such findings are not disturbed unless the decision of the court is shown to be perverse. In the case of BFI Group Corporation v. Bureau of Public Enterprises (2012) 18 NWLR (Pt.1332) p.209 @ 236 the Apex court per Vivour JSC held that
“An appellate court will not interfere with findings of fact except where wrongly applied to the circumstance of the case or vital documents tendered were jettisoned or the conclusion arrived at was patently perverse or wrong.” (Nwosu v. Board of Customs & Excise (1988) 5 NWLR (Pt. 93) 225; Nneji v. Chukwu (1996) 10 NWLR (Pt. 478) 265 referred to.) (p. 236.) (See also (i) MOGAJI V. ODOFIN (1978) 45. C.9L (ii) GEMANAM V. NYOUGHUR (1998) 2 NWLR (PT. 536) 14 @ 149)
In the case of Ideozu v. Ochoma (2006) 4 NWLR (Pt.970) 364 @ 395 the Supreme Court stated the reason for the restraint to interfere:
“Setting aside finding of fact of a trial court is a very serious appellate function which an appellate court cannot exercise for the fun of it, but rather for valid legal reasons. An Appellate court cannot fault the finding of fact of a trial court when the appellate court does not find or see any fault.”Contrary to the submission of the Appellants’ Counsel in the Further Amended Brief of Argument, the trial court properly evaluated the evidence in accordance with the pleadings before arriving at the decision that the 1st Appellant has not satisfactorily proved his claim to membership of the Ajao royal family from the female line.
The DW1, 2 & 3 gave similar evidence to the effect that the 1st defendant’s mother was not of the royal stock. The learned trial Judge admirably captured and effectively evaluated the evidence of the respective parties- from pages 356-362.
I find part of the judgment worthy of an extensive reproduction in this judgment (page 359) as follows:-
The pleadings of the defendant support this contention. Paragraph 5 of the defendants pleading states that the 1st defendant mother Olalonpe Adegbola is from both Jagun Adasonlas compound her father’s house. The defendants witnesses DW1 agrees that Adasonlas compound is not related to the royal stock DW2 Okeowo Fasina also agreed in his evidence that Akindele is not in anyway related to a royal family. Also DW3 states Akindele and Ajao were of the same mother but Ajao was from Alapinni but Olalonpe Adegbola 1st defendant mother was from Jagun Adesonlas compound which the other defence witness agrees is not of royal stock side. In effect I find as a fact that the defendant mother trace her ascendance in the father line to Adasonlas compound which is not of the royal stock. The case of the defence clearly supports the plaintiff’s case. However, it does not end there. The mother of the 1st defendant Lalonpe traced her relationship to Ajao royal house through her mother Adeyinka however there is evidence before me by the plaintiff supported by DW3 which I accept as true that Akindele had two wives, Ibidaola and Ogunyemi the DW3 states that Adeyinka is a daughter of Oba Ajao, whereas the 1st defendant states Adeyinka was the daughter of Prince Akindele senior brother of Oba Ajao. These contradictions are very material and thus reduced the credibility and probative value of defence case on this issue whereas the plaintiff evidence is straight forward and consistent.”
The crux of the argument of the Respondents is that the 1st Appellant is not a male ascendant of Ajao Ruling family at all, his mother not being of the Royal stock (per pw5, pw6 etc)
It is further the contention of the Respondents that even if the 1st Appellant were of the Ajao Ruling house by the root of his mother the condition for his ascension to the throne does not exist per the proviso to the 1957 declaration which is codified for the selection of an Eleruwa. The learned trial Judge upheld the position of the Respondents and held that by the evidence adduced that the 1st Appellant is not of the Ajao royal tree even by maternal assent. We find no compelling reason to interfer with the finding of fact made by the learned trial Judge on this issue. The determination of this issue actually settles the contention in this entire appeal.
Issues three & four of the Appellants & issue three of the Respondents
Learned senior Counsel for the Appellant cites paragraph 23 of the Respondents Consequential Amended Statement of Claim, to buttress their position that under the Registered Chieftaincy Declaration the meeting to consider Applications for nominations shall be summoned by the eldest member of each Ruling Quarters. That the Laribikusi Ruling Quarters comprises of four Ruling families and also refers us to Exh, F which has not been appealed against and which is binding on all parties, the learned silk states that the evidence on record shows disregard of the judgment of the court on the live issue.
That the Respondents in their evidence did not show how they arrived at the conclusion that Sanusi Alao was the eldest member of the Laribikusi Ruling Quarters and that the Respondents did not discharge the onus of proof as to how they were able to identify the eldest member of the Laribikusi Ruling Quarters even though their respective ages were not known. The senior Counsel added that identifying the eldest member of the Royal family is not by election and urges this court to hold as in the earlier Judgment that the eldest member of Laribikusi Ruling Quarters has not been identified. (pages 159 D of the records).
The learned senior Counsel submits that the evidence on record does not support the averment in paragraph 11 & 24 of the Appellants’ case. Also submits that all the cases relied upon by the trial Judge relate to headship of the family which is different from the eldest member of the family.
It is equally the case of the Appellant that by part of the testimonies of P.W.4, P.W.5 (pages 159 D, 159 E-F of the records), that candidates were not nominated at the meeting of Laribikusi Ruling Quarters and that the meeting called by the Ajao family cannot be the meeting of Ajao family because the 7th Appellant had called another meeting to select the 1st Appellant.
The learned silk described as perverse the trial court’s findings at pages 369-370 of the records and submits that the findings cannot be supported having regard to the evidence before the court. That the meeting which the 7th Appellant called cannot be described as factional having regard to the attitude of some members of the Ajao Alapinni who did not want to allow the 1st Appellant to participate in their meeting even though he is a qualified candidate from the female side.
Antipodal the position of the Appellants, the learned Counsel for the 1st and 2nd Respondents’ submits that the contention of the Appellants that Pa Sanusi Alao was not proved to be the eldest member of the Laribikusi Ruling House before the trial court is not tenable, and urges us to hold that the trial court considered evidence carefully before coming to its decision. (Refers pages 347, 365, 368 & 371 of the records and the case of Ideozu v. Ochoma (2006) 4 NWLR (Pt.970) 363 @ 395/(2006) 4 MJSC 91.
Counsel also submits that the trial Judge made use of the advantage of seeing and listening to the testimonies of witnesses of the parties in arriving at its decision. (Refer this court to pages 366 lines 4-28 & 367 lines 6-26). Urges this court not to disturb the findings of the lower court. That the fact that the witnesses could not give the specific age of the eldest member of the family is not excuse for the submission that the issue was not satisfactorily proved considering a largely illiterate society where records of birth are not kept.
Maintains that the trial court rightly rejected the claim of the 7th Appellant as the eldest member of the Ajao family and not to talk of Laribikusi quarters which is the appropriate next ruling house entitled to Eleruwa of Eruwa stool under Exhibit C.
That the nomination carried out under the supervision of the 7th Appellant being that of a faction of the Ajao family is null and void and of no effect as factional meeting is not provided for under Exhibit C.
Counsel further submits that section 14(1)(a) & (b) of Cap, 21 Laws of Oyo State, 1978 which is the relevant law as at the time the cause of action arose provides a condition precedent that ought to be satisfied for there to be a valid nomination and in the instant case the Appellant failed to meet those conditions. That one cannot put something on nothing and expect it to stand. (Refer Macfoy v. U.A.C (1962) AC. 152 @ 160)
Both parties dwell on the procedure or modality for the nomination of candidate by the Ruling House. It appears the procedure is dully codified in the Eleruwa Chieftaincy Declaration (Exhibit C). Therefore the scope of contention is considerably narrowed down.
The Appellants contend that Pa Sanusi Alao was not proved to be the eldest member of the Laribikusi Ruling house or quarters before the trial Court.
The Judgment of the trial court displays an industrious evaluation of the evidence placed before the court. See pages 347 – 373 of the records for this appeal. At page 367, his lordship found that:-
“There is evidence before me that few members or faction of Ajao Alapinni Ogunsobu family led by the 7th defendant held a meeting where the 1st defendant was produced unanimously. This is evidenced by Exhibit J & S. this meeting was held on the 24th of June, 1998. There is evidence before me that another meeting was held as summoned by Pa Sanusi Alao who was appointed or elected by Olaribikusi ruling house as eldest member. This meeting comprises of three families namely Ajao Alapinni Ogunsobu, Sabi, and Omoni and from the meeting there were candidates each proposed and nominated from the three ruling families namely Prince Rasheed Oyedepo Ajao as a candidate of Ajao Alapinni Ogunsobu royal family, Prince Lamidi Olaoye Okunlola from Omoni ruling family and Abiodun Ojelade from the Sabi. There is evidence that the Lasubu ruling family did not participate.”
The learned trial Judge made use of the advantage of personal perception of the witnesses as they testified in arriving at his decision. This is a privilege an appellate court does not have. The fact that the witnesses could not give the specific age of the eldest member of the family is not a good reason to hold that the issue was not established. The Court can take judicial notice of the fact that written records were not common features, at the time some of these elders were brought, one of the witness claimed to be 100 years old (page 152). The witnesses knew who the eldest was, living and interacting within the community enables people to assume their respective right places and age groups.
Pa Sanusi Alao presided over a meeting comprising of three families from which nominations were made from three ruling families as found by the learned trial Judge is an indication of acceptance by a majority of the Ruling Royal families. The 7th Appellant’s meeting produced only the 1st Appellant as a contestant and which process was rejected and challenged in court.
The trial Court rightly rejected the claim of the 7th Appellant as the eldest member of Ajao Family.
This issue is resolved in favour of the 1st and 2nd Respondents and against the Appellants.
Issue five
The senior learned Counsel for the Appellant submits that the trial court had no jurisdiction to award to the Respondent what they did not ask for. That the said Lasubu family had applied to join the suit but the learned trial court found no merit in it and that it is improper to re-open and or revisit the issue again.
The learned Counsel for the Respondent submits that this issue touches on the question as to whether every error/mistake in the judgment of the trial court will warrant/necessitate a reversal of the judgment on appeal.
The learned Counsel posits that an irregularity in the exercise of jurisdiction should not be confused with a total lack of jurisdiction. (Refer Odessa v. FRN (2006) 27 WRN 86 @ 104 Ayantuyi v. Governor Ondo State (2005) 14 WRN 67 @ P.104)
Counsel also submits that the order for the inclusion of the candidate of the Lasubu section could be regarded as an incidental order granted in error by the trial court in respect of appropriate reliefs of 1st and 2nd Respondents. That the judgment cannot be faulted on the said order of inclusion of Lasubu candidate and the appellate court is required in the instant case to be concerned with whether the judgment appealed against in its entirety or as a whole right. (Refer Nkado v. Obiano (1997) 8 NWLR (Pt.503) 38 @ 40 Salako v. Dosumu (1997) 8 NWLR (Pt.517) 371 @ 375, Balogun v. Adejobi (1995) 2 NWLR (Pt.376) 131 @ 157, Odukwe v. Ogunbiyi (1998) 8 NWLR 339 @ 350 etc).
Counsel further submits that this court is vested with the general powers to “to make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal”, under section 15 of the Court of Appeal Act. And in line with the general powers, the court of appeal “…..shall have full jurisdiction over the whole proceedings as if the proceeding had been instituted in the Court of Appeal as a court of first instant …..” (Refer Edjekpo v. Osia (1998) 7 NWLR (Pt.556) 82 @ 91/2, Okeke v. A-G- Anambra State (1997) 9 NWLR (Pt.579) 123 @ 145).
Counsel also contends that the trial court judgment should be varied in an event to exclude the order directing the inclusion of the nominee of, the Lasubu section as one of the candidates of the Laribikusi quarters as provide for by the Rules of this Court for the best interest of justice. Order 9 Rule 1 of the Court of Appeal Rules, 2011 invoked.
It is pertinent to ask if the Respondent actually should be penalized for an error of the trial court? However as an established rule of practice, the Respondent has the duty to defend the decision of the trial court.
In the submissions of the Appellants in paragraphs 4:60-4:65 that an irregularity in exercise of jurisdiction should not be confused with a total lack of jurisdiction. See: Odessa.v. F.R.N. (2006) 27 WRN 86 AT page 104. Can the trial court in truth be said to have had no jurisdiction to entertain the entire suit?
In Ayantuyi v. Governor Ondo State (2005) 14 WRN 67 @ p.104 the Court held that:
“A court of competent jurisdiction may err in its application of the law to the facts in a given circumstance. The Court may have given a wrong decision but in my humble view these errors do not necessarily raise the issue of jurisdiction. A court does not act in excess of its jurisdiction simply because it erred in law and or in fact in deciding an issue within its jurisdiction.”
Respondents’ submit that the order for the inclusion of the candidate of the Lasubu section could be regarded as an incidental order granted in error by the learned trial judge in respect of appropriate Relief(s) of the 1st and 2nd Respondents.
In addition to the foregoing, Counsel reasons that the judgment cannot be faulted on the excuse of the inclusion of the order being complained about by the Appellants and that the appellate Court is required in the instant case to be concerned with whether the judgment appealed against in its entirety or as a whole is right (Refers Nkado v. Obiano (1997) 8 NWLR (PT. 503) 38 @ 40 Salako v. Dosumu (1997) 8
NWLR (PT. 517) 371 @ 375, Balogun v. Adejobi (1995) 2 NWLR (PT.376) 131 @ 157).
The Supreme Court in Odukwe v. Ogunbiyi (1998) 8 NWLR 339 @ 350 had this to say on this point.
“In this regard, it ought to be borne in mind that it is not each and every mistake or error in a judgment that necessarily determine an appeal in favour of an appellant or automatically results in the appeal being allowed. It is only when the error is so substantial that it has occasioned a miscarriage of justice that the appellate court is bound to interfere.”
See: Onajobi v. Olanipekun (1985) 4 SC (Pt.2) 155 @ 163; Oje v. Babalola (1991) 4 NWLR (Pt.185) 267 @ 282; Azuetonna Ike v. Ugboaja (1993) 6 NWLR (Pt.301) 539 @ 556; Anyanwu v. Mbara (1992) 5 NWLR (Pt.242) 386 @ 400; in the same vein, what an appeal Court has to decide is whether the decision of the court below was right and not whether his reasons were. Accordingly an established error or misdirection which has not occasioned any injustice must be treated by the appellate court as immaterial going to no point of substance. See Ukejianya v. Uchedu (1950) 13 WACA 45 @ 46, Emmanuel Ayeni & Ors. v. William Sowemimo (1982) 5 SC 60 @ 73 – 75.
No doubt this Court is vested with the general powers “to make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal,” under S.15 (former S.16) of the Court of Appeal Act.
See Edjekpo v. Osia (1998) 7 NWLR (Pt.556) 82 @ 91/2, also in Okeke v. A.G. Anambra State (1997) 9 NWLR (Pt.579) 123 @ 145 the Court of Appeal held that:
“The omnibus powers vested in the court under S.16 of the Court of Appeal Act, 1976 empowers the court to do anything necessary for determining the real issue in controversy in the appeal, be it suo motu or on application by either party.”
There seems to be a consensus of the parties that the gratuitous order of the learned trial Judge expressed in the order to include the candidate of the Lasubu section through the Laribikusi Ruling House/Quarters in the list of nominees for consideration by the kingmakers in the re-run of the selection process is a surplusage which was not an issue placed before the trial court.
Can this be remedied by this court under section 15 of the Court of Appeal Act? The Respondent urges this court not to unsettle the entire judgment of the learned trial Judge but rather exclude that aspect of the judgment which was pronounced without jurisdiction.
This submission is made in the interest of justice. The interest of justice is the hallmark of the existence of the court and the rule of law. Section 15 of the Act empowers this court to step into the shoes of the trial court and do that which the trial court should have done but failed to do. In this situation, the learned trial court did that which it had no power to do. Can this court step into the shoes of the said court then to undo that which the trial court did? The test is in the circumstance, can the trial court reverse itself?
It is evident from the records that both parties had fully argued their case, addressed the court and closed their arguments before the trial court. None of the parties raised the issue of the Lasubu section whose application to join the suit had been denied by the court.
His lordship did not invite the parties back to address the court on the issue of its “extended order” which is beyond the case placed before the court. Further, the beneficiaries of the said extended order were not parties before the trial court. Equally, they did not seek to be joined as interested parties before this court. They therefore have no issue before this court, and are not parties before this court.
The Appellants call on this court to strike down the entire judgment of the trial court, understandably being a decision not in their favour. Conversely, the Respondent seeks to safe the judgment except for this aspect which is an imposition of the learned trial Judge. What the trial Judge did was in the class of a consequential order.
The principle of consequential order is well stated in the case of Akinbobola v. Plisson Fisko Nig. Ltd. &
Ors. (1991) 1 NWLR (Pt.270) P.288, where Nnaemeka JSC defined consequential order as:
“A consequential order is not merely incidental to a decision but one necessarily flowing directly and naturally from and inevitably consequent upon it. It must be giving effect to the judgment already given, not by granting a fresh and unclaimed or unproven relief.”
The requirement is stated in the case of Obayagbona v. Obazee (1972) 5 SC 247 where Sowemimo JSC observed that:-
“…by the very nature of the term consequential” any consequential order must be one giving effect to the judgment…the word consequential means “following as a result, or inference'”
(See also Dr. M.T.A. Liman v. Alh. Shehu Mohammed (1999) 9 NWLR (Pt.617) p.116
A consequential order therefore made subsequent to a Judgment which detracts from the Judgment or contains extraneous matters is not an order made within jurisdiction. A consequential order can only relate to matters adjudicated upon.
In this appeal, the learned trial Judge had found and held that the family of Lasubu had stood by and therefore excluded itself from litigation. At pages 367 of the record:-
There is evidence which I accept that Lasubu stood aloof and failed to participate at the last meeting claiming that only their family Lasubu constitutes the Laribikusi Ruling House. Their absence is a waiver of their right of attendance.”
This finding was not appealed against and is therefore valid and binding on the said Lasubu Ruling House.
In the case of Funduk Engineering Limited v. James Macarther & 4 Ors in re: Yohanna Anteyan Madaki (Rtd). (1990) 4 NWLR (Pt.143) 266 @ 276 the expression Decision was defined as
“any determination of that court and includes” contained in the definition of the word “decision” in section 277 of the 1979 Constitution suggests a wider connotation not restricted by the words following thereafter. The purpose of the use of the expression is to widen the scope of the concepts covered by the term “decision.” It is certainly not to narrow its meaning: (Nafiu Rabiu v. The State (1981) 2 NCLR 293 at 332).
The Respondents as Plaintiff clearly stated that they represented themselves excluding the Lasubu family. The said Lasubu family did not appeal against that finding of the learned trial Judge. In the circumstance, the order of the learned trial Judge was made without a foundation and in excess of the jurisdiction of the court by the facts placed before it. Should the said order then be the ground to vitiate the entire decision of the trial court? I do not think so.
We have congruently found through each of the issues formulated and argued in this appeal, that the Appellants have no case. The learned trial Judge so held and we hereby so affirm the decision of the learned trial Judge to the effect that the 1st Appellant (page 375 of the records):-
“Having not been qualified under section 14 of the Chiefs Law his selection and nomination by the kingmakers is in breach of the Chieftaincy Declaration of Eleruwa of Eruwa Chieftaincy of 1957 and section 15(b) in that the Laribikusi Ruling House did not submit his name as their proposed candidate under the declaration and the Chiefs Law and the voting exercise and the purported approval of nomination by the kingmakers upon a proposal by a faction of Ajao family is null and void.”
By the authority of the case of Adeyemi v. Bamidele (1968) 1 All NLR 31 P.38, this court can excise that part of the decision of the trial court which is not supported by the evidence placed before the court. In this situation, the Lasubu Ruling quarters did not make a case before the trial court. The learned trial Judge therefore had no material evidence upon which to make the orders concerning the Lasubu family.
Accordingly, the gratuitous pronouncement of the learned trial Judge which falls in the line of consequential order is hereby excised and is of no effect in the suit fought by the parties in this appeal.
The candidates dully nominated are
1. Alhaji Rasheed Oyedepo Ajao
2. Prince Lamidi Olaoye Okunlola
3. Prince Abiodun Ojelade
as stated in the relief (ii) of the consequential Further Amended Statement of Claim, These are the candidate from which the kingmakers shall select the Eleruwa.
The entire appeal is hereby dismissed.
It is hereby so ordered.
CHIDI NWAOMA UWA, J.C.A.: I read in advance the judgment delivered by my learned brother M.B. DONGBAN-MENSEM, J.C.A. I agree that the appeal be dismissed. I also dismiss it.
OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my lord M.B Dongban-Mensem J,C.A. I agree with reasoning and conclusions reached.
Appearances
R. A. Ogunwole, SAN, with J. N. Ikezie (Miss), J. C. Ugwu, S. Salaudeen For Appellant
AND
Tona Akande Esq. for the 1st and 2nd Respondents
M. O. Adebayo (Hon. A-G of Oyo State) with Adegboyega Salawu (PSC) for the 3rd and 4th Respondents
Segun Adebayo for the 5th Respondent For Respondent
