EMMANUEL GBADEBO OLUSI & ANOR v. CLEMENT SUNDAY OBANOBI & ORS
(2014)LCN/6793(CA)
In The Court of Appeal of Nigeria
On Friday, the 24th day of January, 2014
CA/B/309/2008
RATIO
WHETHER THE CONSTITUTION MAY RESTRICT OR EXPAND THE OPERATION OF SEPARATION OF POWERS
Indeed, the doctrine of separation of powers would have been thrown into the winds if lawmakers cannot make laws in the pendency of a law suit. This is because, the principle behind the concept of separation of powers is that none of the three arms of government under the constitution should encroach into the powers of the other. The function of the Legislature is primarily to enact laws whilst that of the executive is to implement such laws passed by the legislature. The Judiciary, for its own part interprets and enforces such laws. Where, however, such separation of powers between the executive and the Legislature and the Judiciary is provided for by the constitution, neither organ may encroach upon the province of the other. However, the constitution being an organic law, the ground norm and the Supreme law of the land, may restrict the operation of this principle of separation of powers. Accordingly, the power of each arm may be restricted or expanded by an express provision of the constitution.
See: A-G, Abia State V. A-G, Fed. (2003) 4 NWLR (Pt. 809) 124. Amadi V. NNPC (2000) 6 SC (Pt. 1) 66 at 94 – 95. Per MOJEED ADEKUNLE OWOADE, J.C.A
WHETHER THE OPPOSING PARTY MAY RAISE A SUBSEQUENT COMPLAINT WHERE HE OR SHE RAISED NO PRIOR OBJECTION TO A DOCUMENT ADMITTED AND ACTED UPON
In any event, even where evidence including documentary evidence which is admissible upon certain conditions has, either through in advertence or otherwise, been admitted without those conditions precedent being fulfilled, if such evidence as in the instant case, was admitted by consent of the parties or without objection then the trial Judge can properly make use of it in arriving at a decision in the case.
See Abolade Alade V. Salawu Olukade (1976) 6 S.C. 183. Thus, where no objection is raised when a document is offered in evidence, the document will be admitted and acted upon and the opposing party cannot later complain on its admissibility unless the document is inadmissible by law. Omega Bank Plc. V. O.B.C. Ltd. (2006) 4 W.R.N. 1 at 37. Per MOJEED ADEKUNLE OWOADE, J.C.A
JUSTICES
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
1. EMMANUEL GBADEBO OLUSI
2. TITUS OLUWATAYO BAALE
(for themselves and on behalf of the Other Members of Ayindu Ruling House Family of Olukakumo of Ikakumo Chieftaincy) Appellant(s)
AND
1. CLEMENT SUNDAY OBANOBI
(for himself and other members of Ayanwa Ruling House Family of Olukakumo of Ikakumo Chieftaincy)
2. SIMEON AJAYI OLUNLOYO
(for himself and other members of Arepin Ruling House Family of Olukakumi of Ikakumo Chieftaincy)
3. JULIUS OLAITAN OBANIYI
(for himself and other members of Parisu Ruling House Family of Olukakumo of Ikakumo Chieftaincy)
4. THE GOVERNOR, ONDO STATE
5. THE ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, ONDO STATE.
6. THE SECRETARY OF AKOKO NORTH EAST LOCAL GOVERNMENT Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal and cross-appeal from the judgment of P.I. Oduwo, J, delivered at the Ikare Akoko Judicial Division of the High Court of Justice, Ondo State on 18 – 6 – 2007.
The Appellants Emmanuel Gbadebo Olusi and Titus Oluwatayo Baale were respectively the 1st and 2nd Defendants in the suit instituted by the 1st – 3rd Respondents, that is Clement Sunday Obanobi, Simeon Ajayi Oluloyo and Julius Olaitan Obaniyi as Plaintiffs respectively representing the Ayanwa, Arepen and Parisu Ruling Houses of Olukakumo of Ikakumo against the 1st and 2nd Defendants/Appellants representing the Ayindu Ruling House of Olukakumo of Ikakumo, while the 3rd, 4th and 5th Defendants (now Respondents) Cross-Appellants) were the Governor of Ondo State. The Attorney-General of Ondo State and the Secretary of Akoko North – East Local Government.
The 1st to 3rd respondents as Plaintiffs in the Court below took out a writ of summons against the Defendants on 16/2/88 and claimed declaration that the customary law dealing with Olukakumo of Ikakumo provide for four (4) Ruling Houses in rotation to the title of Olukakumo. It sought a declaration that the recommendation of the Ondo State Chieftaincy Review Commission (otherwise called the Morgan Chieftaincy Review Commission) and the subsequent “White paper” based on it are null, and void and contrary to the customary law regulating appointment to the said Chieftaincy. And, also that the procedure adopted by the Military Governor and the Government of Ondo State in approving a new Chieftaincy Declaration for the Olukakumo of Ikakumo Chieftaincy is illegal, null and void.
Pleadings were filed, exchanged and amended several times. In the course of trial, the Ondo State Government caused to be registered a new Declaration of the Olukakumo of Ikakumo Chieftaincy in March 1988.
The relevant pleadings in the court below turned out to be:
(a) Fourth further Amended statement of claim filed by the Plaintiffs on 24/1/2006.
(b) Further 4th amended Statement of Defence filed by the 1st and 2nd defendants on 16/11/2006 and
(c) Third Amended statement of Defence of the 3rd, 4th & 5th defendants filed on 18/10/2005.
The claims of the 1st to 3rd respondents as Plaintiffs as contained at pages 300 – 301 of the record of appeal are as follows:
(i) A declaration that according to the Customary Law dealing with the Olukakumo of Ikakumo Chieftaincy in the Akoko North East Local Government, Ondo State the following four ruling Houses have the right to provide candidates in relation for the Olukakumo of Ikakumo Chieftaincy. Namely (1) Ayanwa Ruling House (2) Aparisu Ruling House (3) Arepin Ruling House and (4) Ayindu Ruling House respectively.
(ii) A declaration that the recommendation of the Ondo State Chieftaincy review commission otherwise called the “Morgan Chieftaincy Review Commission” (set up by the Ondo State Government) on the Chieftaincy declaration of Olukakumo of Ikakumo Chieftaincy in the Akoko North East Local Government of Ondo State contained in the report of the Commission to the effect that only the Ayindu Ruling House has the right to provide candidates for the Olukakumo of Kakumo chieftaincy is null and void contrary to natural justice, oppressive, unjust illegal and of no effect whatsoever in that the said recommendation is contrary to customary law regulating the selection and/or appointment of a candidate for that Chieftaincy.
(iii) A declaration that the decision of the Ondo State Government contained in the white paper issued by the Ondo State Government on the Olukakumo of Ikakumo Chieftaincy in the Akoko North East Local Government sometimes in 1987 to the effect that only the Ayindu Ruling House has the right to provide candidates for the Olukakumo of Ikakumo Chieftaincy are null and void and of no effect whatsoever as they are based on the recommendation of the Chieftaincy Review Commission (i.e. the Morgan Chieftaincy Review Commission) and contrary to the customary law regulating the appointment to the said Chieftaincy.
(iv) A declaration that the procedure adopted by the Military Governor and the Government of Ondo State in approving and/or registering a new Chieftaincy declaration for the Olukakumo of Ikakumo Chieftaincy is illegal, null and void and of no effect in that it is contrary to the native law and custom and the provision of the Chiefs edict 1984 of Ondo State and that the said Registered Chieftaincy Declaration is null and void.
(v) A declaration that the Registered Declaration of the Olukakumo of Ikakumo Chieftaincy of 1988 is null and void in that it was made contrary to the rules of natural justice and that it is contrary to the applicable procedure and does not represent the correct native law and custom.
(vi) A declaration that the 1960 Declaration in respect of the Olukakumo of Ikakumo Chieftaincy still subsists being the only Customary Law governing the appointment of a candidate to fill any vacancy in the Olukakumo of Ikakumo Chieftaincy.
(vii) A declaration that the Parisu or Aparisu Ruling House is the next ruling House to provide a candidate/candidates for the new vacant stool of Olukakumo of Ikakumo Chieftaincy in accordance with the provisions of the 1960 Registered Declaration of Olukakumo of Ikakumo Chieftaincy.
(viii) An Injunction restraining all the Defendants their servants and/or the Agents from acting on, executing and/or giving effects to the Chieftaincy Declaration for the Olukakumo Chieftaincy registered sometimes in 1988 by the Third Defendant and the Ondo State Government white paper published on the basis of the said report on the appointment and approval of candidate to fill the said vacant stool.
Put succinctly, the case of the Plaintiffs is that under the Native Law and Custom of Ikakumo, there are four ruling houses in connection with the Olukakumo of Ikakumo Chieftaincy. The ruling houses are Ayanwa, Aparisu, Arenpen and Ayindu ruling houses. These ruling houses are shown in the 1960 Chieftaincy Declaration of the Olukakumo of Ikakumo Chieftaincy (Exhibit A). The Plaintiffs further contended that the White Paper on the Morgan Chieftaincy Review Commission (Exhibit ‘C’) and the resultant 1988 Chieftaincy Declaration i.e. Exhibit D which approved one Ruling House i.e. Ayindu ruling house is contrary to the Native Law and Custom of Ikakumo people.
The defendants on the other hand claimed that there is only one Ruling House which is Ayindu Ruling House in connection with the Olukakumo of Ikakumo Chieftaincy under the Native Law and Custom of Ikakumo people. That Exhibit D reflects the correct native law and custom of Ikakumo and that Exhibit A is not the true position of the Native Law and custom of Ikakumo people with regards to the Olukakumo Chieftaincy. Two witnesses gave evidence on behalf of the Plaintiffs in this case while the defendants called three witnesses.
In a considered judgment, contained from pages 401 – 429 of the records, the learned trial Judge held sundrily as follows:
First, at page 416 that:
“The third question is whether or not the subsequent amendment of the Plaintiff’s statement of claim which brought in the 1988 Declaration for nullification by the Court is wrong in law or constitutes a misnomer. As said earlier, the Defendants made the 1988 Chieftaincy Declaration i.e. Exhibit D in this case after this suit was filed and served on them. If from the conclusion of the Court, the making of the 1988 Declaration was made an issue in the original statement of claim and the Defendants went on to make the 1988 Declaration without waiting for the decision of the Court on whether it could be made or not, I hold the view that the Plaintiffs can amend their pleadings to incorporate a relief or reliefs to nullify the 1988 Declaration or to render same as null and void and of no effect. This in my view is what the Plaintiffs did in this case.”
Second, at page 423, that:
“From the evidence before the Court and the findings of the Court in his judgment, I hold that the case of the Plaintiffs is more consistent with the truth, more probable and more reliable. I therefore hold that the Native Law and Custom regulating the appointment to the throne of Olukakumo of Ikakumo Chieftaincy is that there are four ruling houses viz. Arenpen Ruling House, Ayindu Ruling House, Aparisu ruling House and Ayanwa Ruling House as stated in Exhibit A i.e. the 1960 Chieftaincy Declaration of Olukakumo Chieftaincy. I also hold that the 1988 Chieftaincy Declaration of Olukakumo of Ikakumo Chieftaincy i.e. Exhibit D is not made in accordance with the Native Law and Custom of Ikakumo people because it provided for only one Ruling House and makes Shaba and Dawodu as kingmakers. It is null and void and of no effect.”
Thirdly, still at page 423 that:
“The third main issue in this case is the implication of the act of the defendants by registering Exhibit A when this suit is pending with an injunctive remedy. I have no hesitation in holding that this act amounts to an affront to the authority of the Courts of the land and an executive excesses. For this reason also, the 1988 Chieftaincy Declaration i.e. Exhibit D should be set aside and same is hereby set aside.”
Finally, and in conclusion, the Learned Trial Judge held at page 424 thus.
“…I hold that the case of the Plaintiffs in this case succeeds and they are entitled to all reliefs sought except relief 44 (iv) in the fourth further Amended Statement of Claim.
The judgment of the Court is as follows:
(i) It is hereby declared that according to the Customary Law dealing with the Olukakumo of Ikakumo Chieftaincy in Akoko North East Local Government of Ondo State, four Ruling Houses namely Ayanwa Ruling House, Aparisu Ruling House, Arenpen Ruling House and Ayindu Ruling House have the right to provide candidates in relation to the Olukakumo of Ikakumo Chieftaincy.
(2) It is hereby declared that the recommendation of the Ondo State Chieftaincy Review Commission on the Chieftaincy Declaration of the Olukakumo of Ikakumo contained in the Commission’s Report to the effect that there is only one ruling House i.e. Ayindu Ruling House for the Olukakumo Chieftaincy is null and void, the said recommendation being contrary to the customary law regulating the selection of a candidate for the Chieftaincy.
(3) It is declared that the decision of the Ondo State Government contained in the White Paper issued on the Olukakumo of Ikakumo Chieftaincy i.e. Exhibit C in this case to the effect that only Ayindu Ruling House that has the right to produce candidates for the Okukakumo of Ikakumo Chieftaincy is null and void, the decision being contrary to the customary law regulating appointments to the said Chieftaincy.
(4) It is declared that the Registered Declaration of the Olukakumo of Ikakumo chieftaincy of 1988 is null and void in that it was made contrary to the Native Law and Custom of Ikakumo.
(5) It is declared that the 1960 Registered Declaration in respect of the Olukakumo of Ikakumo Chieftaincy still subsists being the only customary law governing the appointment of a candidate to fill any vacancy in the Olukakumo of Ikakumo Chieftaincy.
(6) It is declared that the Parisu or Aparisu ruling House is the next Ruling House to provide a candidate/candidates for the vacant stool of Olukakumo of Ikakumo Chieftaincy in accordance with the provisions of the 1960 Registered Declaration of Olukakumo of Ikakumo Chieftaincy.
(7) The defendants in this case, their servants, and/or agents are hereby restrained from acting on executing and/or giving effect to the Chieftaincy Declaration for the Olukakumo of Ikakumo Chieftaincy registered in 1988 by the 3rd Defendant and the Ondo State Government based on the Report of the Chieftaincy Review Commission and the Ondo State Government White Paper Published on the basis of the said Report on the appointment and approval of candidates to fill the vacant stool.
Dissatisfied with this Judgment the 1st and 2nd defendants at first filed a Notice of appeal (containing three grounds of appeal) before this Honourable Court on 23rd July 2007.
However, by an Amended Notice of appeal filed on 17/4/13, the Appellants (1st and 2nd defendants) added three (3) new grounds of appeal making their grounds of appeal to be six (6) in total.
I will first deal with the main appeal before I consider the cross-appeal of the 3rd to 5th Defendants, Respondents Cross-appellants in this case.
The relevant briefs for the main appeal are:
(a) 1st to 2nd Appellants brief of argument dated 28/5/2012 settled by G.O. Bodunde Esq.
(b) 1st to 3rd Respondents brief dated 9/11/2012 and filed on 14/11/12 settled by Mallam Gani Asiru.
The 4th – 6th Respondents in the main appeal did not file any brief of argument but they are in support of the appeal of the Appellants. Learned Counsel for the appellants nominated six (6) issues for determination, they are:
1. Whether the Learned Trial Judge was right in admitting and relying on exhibit “B” and in holding that Exhibit ‘B’ corroborated the evidence of PW1 and PW2.
2. Whether the Learned Trial Judge was right when he nullified Exhibit “D” in this suit on the ground that the Governor of Ondo State was wrong in promulgating it, whereas Exhibit “D” which was promulgated under an Edict was not in existence when this suit was instituted in the Court.
3. Whether the judgment of the lower Court was against the weight of evidence.
4. Whether the Learned Trial Judge was right to have received evidence from PW2 in Yoruba Language translated interpreted and recorded the same suo motu in English Language without the aid of an interpreter.
5. Whether the Learned Trial Judge was right when he held that the native law and custom regulating the appointment to the throne of the Olukakumo of Ikakumo Chieftaincy is that there are four (4) ruling Houses.
6. Whether the Learned Trial Judge was right to have given judgment jointly against the 5th Defendant (now 6th Respondent) a non-juristic person and the other Appellants/Respondents, and the Respondents/Respondents – juristic persons.
Learned counsel for the 1st to 3rd Respondents on the other hand formulated there (3) issues for determination. They are:
(i) Whether the learned Trial Judge was right to have nullified exhibit ‘D’ the 1988 registered Declaration of Olukakumo of Ikakumo Chieftaincy.
(ii) Whether there is evidence to sustain the decision of the Learned Trial Judge to the effect that there are four ruling houses for Olukakumo of Ikakumo Chieftaincy.
(iii) Whether the joinder of the 5th defendant (now 6th respondent) is so fatal as to warrant the reversal of the judgment of the trial Court.
This appeal shall be decided on the issues nominated by the appellants. On Issue No. 1, Learned Counsel for the Appellants submitted that the Learned Trial Judge erred and was wrong to have received and admitted Exhibit “B” and to have consequently found Exhibit “B” as corroborating the evidence of PW1 and PW2. He based his submissions on the issue on the following grounds:
(a) Exhibit “B” which is mainly on the 1973 Nigeria census and the list of historical events in Nigeria, compiled by professor J.F. Ade Ajayi and Ademola A. Igun who are living authors, was wrongly admitted and relied upon by the Learned Trial Judge in his judgment without either of the authors or the two authors being called as witness/witnesses at the trial of the action without any explanation for such laps and/or omission. Yet, there was no evidence that the respected authors were dead or could not be found or that any of them had become incapable of giving evidence or cannot be called as witness without an amount of delay or expense which the Court would consider or regard as unreasonable.
(b) In the case of Idundun V. Okumagba (1976) NMLR page 200 at 201 Ratio 3, the Honourable Court held that the trial Judge was right in not attaching any weight to the views expressed in the books cited in support of the traditional evidence since (a) no evidence was advanced to show that any of the books is generally acknowledged in Nigeria or elsewhere as a standard work or as appropriate authority on the relevant traditional history so as to enable the Court to resort with justification to its aid and (b) none of the authors of these books testified in support of the views stated therein and no explanation was given for this omission.
(c) In Idundun V. Okumagba (supra) the statement of Lionel Brett J.S.C. (as he then was) in a learned address given by him at the University of Lagos was referred to thus “Courts are not to be hypnotized by the authority of point. The crucial fact is that a book cannot be cross-examined either as to opinion expressed, or as to the claims of the author to have special knowledge. If the author is living, there is no reason why he should not be tendered as an expert witness, when this difficulty would vanish.”
(d) On this same issue we humbly further rely on Section 126 (d) of the Evidence Act 2011. The proviso to Section 126 (d) Evidence Act, 2011 states thus:
“The opinion of expert expressed in any treatise commonly offered for sale and the grounds on which such opinion are held may be proved by the production of such treatise if the author is dead or cannot be found, or has become incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the Court regard as unreasonable”
Still on Exhibit “B”, Learned Counsel for the Appellants further submitted that Exhibit ‘B’ did not pass any of the tests it was supposed to pass as recommended for it in the case of Idundun V. Okumagba (Supra); That, in the first instance, there was no evidence adduced by the 1st – 3rd Respondents to show that Exhibit ‘B’ is generally accepted in Nigeria or elsewhere. Secondly, despite the fact that the two authors of Exhibit B were alive, hale and hearty and were capable of giving evidence when the Exhibit was tendered in Court, none of them appeared before the Court and thus were precluded from being cross-examined since their treatise could not be cross-examined. Despite these lapses, said counsel, the Learned Trial Judge wrongly admitted Exhibit B, attach very heavy weight to it and relied upon it, to the extent of using it to determine the Native Law and Custom of Ikakumo people in respect of the Olukakumo Chieftaincy.
Further to the above paragraphs, the treatise by Professor Ade Ajayi and Professor Ademola A. Igun bore no facts on the custom of Ikakumo people. The treatise was mainly on the census of Nigeria in 1973 and a list of historical events in some towns and villages mostly in old Ondo State.
According to counsel, a brief look at Exhibit “B” would reveal that few events that relate to Ikakumo in the Exhibit are events Nos. 4, 6, 26, 27, 121, 171 and 259. These, he said were mere names of Obas who according to the treatise died or were installed at Ikakumo. That, contrary to the view of the Learned Trial Judge on page 421 of the record, the issue of the Ruling House to which each of the Obas mentioned in Exhibit B belonged was not mentioned. That, on page 421 the Learned Trial Judge wrongly relied on Exhibit B by holding that “the events stated in Exhibit ‘B’ about Ikakumo as stated above constitute a confirming or corroborative evidence in support of the evidence of the Plaintiffs that there is not only one Ruling House in Ikakumo in respect of Olukakumo of Ikakumo Chieftaincy” Counsel opined that this view of the Learned Trial Judge is wrong and perverse, since Exhibit “B” does not contain such evidence. Appellants Counsel submitted further that since conditions under which Exhibit “B” could be admitted were not satisfied before its admissibility by the Learned Trial Judge, the Learned Trial Judge was wrong when he admitted Exhibit B and relied on the events stated in the said Exhibit ‘B’ for his judgment and was consequently in breach of the fundamental principles of law enunciated in the case of Idundun V. Okumagba (Supra) and section 126 (d) (i) Evidence Act 2011 in arriving at his judgment. He submitted that this error by the Learned Trial Judge is fatal to his judgment and urged us to expunge Exhibit B and set aside the judgment of the trial court and resolve the issue in favour of the Appellants.
The reply to Appellants Issue No.1 is contained in the treatment of Issue 2 by the learned counsel for the 1st to 3rd Respondent.
Learned counsel for the Respondents submitted that Exhibit ‘B’ was a document obtained from the National Archives. That, it was duly certified in line with the provision of Section 111 (1) of the Evidence Act Cap. 112 LFN 1990 (which was then in force). It was duly pleaded in the statement of claim. The use, according to counsel is to show that certain members of the Plaintiffs (1st to 3rd respondents) at one time or the other ruled as Olukakumos. And, there was nothing on Exhibit “B” which prima facie show that it was inadmissible.
Learned counsel for the Respondents submitted further that when exhibit ‘B’ was tendered, the Appellants did not object to its admissibility. That, throughout the trial, the Appellants did not challenge the authenticity of exhibit ‘B’ either by cross-examination or to lead evidence against it even when he has unhindered opportunity to do so. That is to say, that the Appellants approved of and admitted the contents of exhibit ‘B’. Counsel submitted that facts admitted need no further proof and uncontradicted and unchallenged evidence should be accepted by the Court.
Learned counsel for the respondents submitted further that contrary to the assertion of the appellants, the learned trial Judge did not use ‘exhibit’ ‘B’ as evidence of the Native Law and Custom of Ikakumo on the appointment of succession to the stool of Olukakumo as an historical book from which facts could be inferred. That, what the learned trial Judge did was to look into exhibit ‘B’ and see whether the assertion that members of the 1st to 3rd respondents family had at anytime be the Olukakumo. That, the Learned Trial Judge inspected the names given by the 1st to 3rd respondents as some of their members who at one time or the other reigned as Olukakumo. Both parties in the suit joined issues on this. The Appellants, he said only accepted Adeyanju Obayori and Noah Obanobi to have reigned as Olukakumos, but the Respondents named others. The names of some of those others and the dates of their appointments were contained in Exhibit ‘B’. Exhibit ‘B’ as rightly accepted by the appellants is list of historical events, there is no need to call the authors, more so as it was used in evidence and not merely cited as authority as the case in Idundu V. Okumagba (Supra).
Learned counsel submitted that the appellants had not shown either before the trial Court or before this Court that the two authors were interested in the subject matter of the suit or that the suit was anticipated at the time of compiling their work. In other words, the work was done bona fide.
I do not agree with the Learned Counsel for the Appellants that Exhibit ‘B’ was not admissible or was wrongly admitted neither do I agree with counsel that the Learned Trial Judge used Exhibit B to establish the Native Law and Custom of Ikakumo on the succession to the throne of Olukakumo of Ikakumo. In the first place, Exhibit B does not belong to the category of documents that is made inadmissible by law under any circumstances. Exhibit B belongs to the category of documents which is admissible upon fulfillment of certain conditions. Exhibit B is a duly certified copy of a document retrieved from the National Achieves, thus it basically fulfilled the conditions of admissibility. In any event, even where evidence including documentary evidence which is admissible upon certain conditions has, either through in advertence or otherwise, been admitted without those conditions precedent being fulfilled, if such evidence as in the instant case, was admitted by consent of the parties or without objection then the trial Judge can properly make use of it in arriving at a decision in the case.
See Abolade Alade V. Salawu Olukade (1976) 6 S.C. 183. Thus, where no objection is raised when a document is offered in evidence, the document will be admitted and acted upon and the opposing party cannot later complain on its admissibility unless the document is inadmissible by law. Omega Bank Plc. V. O.B.C. Ltd. (2006) 4 W.R.N. 1 at 37.
The second misconception of the learned counsel for the Appellants in relation to Exhibit “B” is his view that Exhibit ‘B’ is a ‘treatise’ which admissibility is governed by the provision of the proviso to section 126 (d) of the Evidence Act. By way of correction, Exhibit ‘B’ is not a ‘treatise’ and its admissibility is not governed by the proviso to Section 126 (d) of the Evidence Act 2011.
The 7th Edition of the Oxford Advanced Learner’s Dictionary at page 1576 defines ‘Treatise’ as a long and serious piece of writing on a particular subject”
Exhibit ‘B’ is not a treatise. Exhibit B titled Population Census of Nigeria 1973 List of Historical Events (for determination of individual ages) is a compilation of historical events in the old Western State dating back to the 19th Century. The document was compiled by Professor J.F. Ade Ajayi and Professor Ademola A. Igun and Published by the National Census Office, Western State of Nigeria.
In the instant case, the learned counsel for the Respondent was right that there was no need to further call for the opinion of those who compiled this document containing historical events. This is because Exhibit ‘B’ a document was used as hanger on for the production, facilitation admissibility and consequently corroboration of oral evidence to show that some Olukakumos have reigned outside of the Ayindu Ruling House.
The genesis of Exhibit ‘B’ in the course of the trial and the purpose for which it was utilized is apparent from the evidence of PW2 at pages 342 – 343 of the record.
“… I am interested in becoming the next Olukakumo of Ikakumo – Akoko. The Olukakumo is a recognized chieftaincy. There are four Ruling Houses of the Olukakumo Chieftaincy. There were people who had reigned as Olukakumo in my ruling House. Those who had reigned were Oba Olushua and Oba Olubopa. I know Oba Obanobi the immediate past Olukakumo of Ikakumo. He was from Ayanwa Ruling House. Oba Obayori was from Arapin Ruling House. I know of the compilation of Prof. Ade-Ajayi and Prof. Ademola A. Igun. I have a copy of the compilation. I obtained the copy from the National archive in Ibadan. I can identify the copy of the compilation. This is the copy. Counsel seeks to tender the compilation in evidence. Prince R.A. Olagunju says that he is not opposing.
Court: The compilation of Prof. J.F. Ade-Ajayi and Prof. Ademola A. Igun on the population census of Nigeria (1973) (List of Historical Events) is admitted in evidence without objection and marked as Exh. ‘B’.”
PW2 continued at page 343 of the record.
“Oba Olujinyan indicated as No.6 in the list complied was from Arepin Ruling House of Ikakumo. Olukakumo Olugba indicated as No. 27 was from Arepin ruling House of Ikakumo Olukakumo – Ireji mentioned in No, 62 was from Ayindun Ruling House of Ikakumo. Oba Oludetin mention (sic) in No, 171 was from Aiyedun Ruling House of Ikakumo while Oba Obayori also mentioned in No. 171 was from Arepin Ruling House of Ikakumo…”
The admissibility and use of Exhibit ‘B’ which was indeed admitted without objection is justified under the provision of Section 70 of the Evidence Act 2011 (S.59 Cap. 112 LFN 1990) which says:
“In deciding questions of customary law and custom, the opinions of traditional rulers, Chiefs or other persons having special knowledge of the customary law and custom and any book or manuscript recognized as legal authority by people indigenous to the locality in which such law or custom applies, are admissible.”
A significant difference between the provision of Section 70 and that of the proviso to Section 126 (d) of the Evidence Act 2011 is that the former provides for the admissibility of opinions of experts on customary law and custom including those contained in recognized books and manuscripts by people Indigenous to the locality as it is the case with Exhibit ‘B’. The latter (Section 126 (d) (i)) on the other hand provides for an exception to the Hearsay Rule contained in opinions of experts expressed in a treatise. This is precisely the reason why the conditions of admissibility under the proviso to Section 126 (d) of the Evidence Act 2011 includes “…if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable”
For this same reason, the case of Idundun V. Okumagba (Supra) relied on by the learned counsel for the Appellants is distinguishable from the facts and circumstances of this case and it is not applicable to this case.
The learned trial Judge was thus right to have received and admitted Exhibit ‘B’ and to have consequently found Exhibit ‘B’ as corroborating the evidence of PW1 and PW2.
Issue No.1 is resolved against the Appellants.
On Issue No. 2, learned counsel for the Appellants submitted that the learned trial Judge had no basis in law in considering a nonexistent 1960 Chieftaincy Declaration, in respect of the Olukakumo of Ikakumo, that is Exhibit ‘A’ being dead, null and void, as the Olukakumo Chieftaincy stool was vacant when it was promulgated and (in any event) it was not registered under the Ondo State Chiefs Edict, 1984. The learned trial Judge ought not to have considered it (Exhibit A) in his judgment.
Learned counsel submitted that the said Exhibit ‘A’ weighted heavily in the mind of the learned trial Judge when giving his judgment most especially on the issue of customary law on succession to the throne of Olukakumo of Ikakumo and thus led to perverse findings/judgment. Learned counsel submitted that Exhibit D the 1988 Olukakumo of Ikakumo Chieftaincy Declaration which is the extant Chieftaincy Declaration in respect of Olukakumo of Ikakumo Chieftaincy was not and could not have been one of the issues canvassed in the 1st – 3rd Respondents original statement of claim as the said Exhibit was not in existence when the 1st – 3rd Respondents commenced the action.
The Plaintiffs (now 1st – 3rd Respondents he said, instituted their action at the Ikare Division of the Ondo State High Court on 16/2/88. Exhibit D was registered on 7/3/88. In other words, the said Exhibit D came into existence after the Suit was commenced in the Ondo State High Court Ikare. The learned trial judge, said counsel, thereby wrongly came to the conclusion that he could ignore Exhibit “D” or nullify it and rely on the dead, obsolete and non-existent Exhibit ‘A’ to determine the native law and custom of Ikakumo people as regards the succession to the throne of the Olukakumo of Ikakumo. Further, that, instead of nullifying Exhibit ‘A’ which was obviously dead and non-extant, the learned trial judge made a heavy weather of the injunctive relief sought by the 1st – 3rd Respondents to enable him pronounce negatively on exhibit ‘D’.
Learned counsel submitted that injunctive relief sought originally was against the white paper exhibit C. However, that in the final amended statement of claim of the Plaintiffs at page 301 paragraph viii, injunctive relief was sought against the 1988 Chieftaincy Declaration, Exhibit D by way of amendment dated 23/1/2006 and filed on 24/1/2006. He submitted that Exhibit D did not constitute a competent cause of action in favour of the 1st – 3rd Respondents as at the time the case was filed on 16/2/88, therefore the Honourable Court did not have jurisdiction over it. Learned counsel also submitted that the injunctive relief sought in respect of Exhibit D – 1988 Olukakumo Chieftaincy declaration was wrong and could not constitute a competent and reasonable cause of action because the injunctive prayer came about consequent upon the 4th amendments to the plaintiffs (1st – 3rd Respondents) statement of claim, which amendment was wrongly granted because Exhibit D came into being after the Plaintiffs filed their action in the first instance. Counsel submitted further that an amendment must relate to the time the case was initiated. An amendment relates back to the date of the original pleading. Consequently, where an amendment is sought as in the instant case, to incorporate a cause of action which arose after the statement of Defence had been filed but which at the time the statement of Defence was filed did not exist, such an amendment generally should not be allowed. Therefore, said counsel, the incorporation of Exhibit B in the 4th amended statement of claim of the 1st – 3rd respondents was wrongly admitted by the learned trial judge and should not constitute a cause of action for him to adjudicate upon. Also, said counsel, the Learned Trial Judge misapplied the case of Anthony Ehidimbien V. Amadu Musa & 1 Or. (2000) 8 NWLR (Pt. 669) 540 at 566. The learned trial judge played down page 567 paragraph E of the judgment to suit his own purpose. After referring also to the case of Gowon V. Ike Okongwu (2003) 6 NWLR (Pt. 815) 38 at 49, Learned counsel submitted that the writ of the 1st – 3rd respondents as amended the 4th time became the origin of the action and the claim endorsed thereon replaced the claim originally filed. That, the amendment of the 1st to 3rd respondents as contained in their 4th amended statement of claim which incorporated Exhibit D is retrospectively regarded and deemed to have been made at the date the original pleadings to be proceeded upon and that cannot be right since the cause of action did not exist at that time.
Learned counsel referred to the case of Unipetrol (Nig) Plc. V. Buraimoh (2004) 15 NWLR (Pt. 897) 641 at 655 for the proposition that “an amendment of Court process relates back to the original date Court process was filed”
He then submitted that contrary to the view held by the learned trial judge that Exhibit ‘D’ was made an issue in the original statement of claim, the said Exhibit “D” was not in existence when the original statement of claim was filed by the 1st – 3rd Respondents. Such finding by the learned trial judge, said counsel was obviously perverse and gratuitous. Learned counsel submitted that the learned trial judge erred when he assumed jurisdiction in respect of Exhibit “D” and adjudicated upon it, thereby rendering the judgment a nullity. On this, counsel referred to the cases of Unijos V. Carlen (Supra) pp. 363 – 364.
Obasanjo V. Yusuff (2004) 9 NWLR (Pt. 877) page 144 at page 199.
He further submitted that the making of Exhibit “D” was an act done pursuant to an Edict and consequently cannot be challenged in Court. The act was performed by the Military Governor of Ondo State at that time. That, under a Military regime, a Decree takes is seat at the apex of hierarchy of legislation, followed by the modified and unsuspended provisions of the constitution previous acts of parliament rank next, followed by an edict ranking last are state laws previously enacted by a state Legislature.
He referred to the cases of Obada V. Military Governor of Kwara State (1990) 6 NWLR (Pt. 157) page 492 at 496. Learned counsel also submitted that since the Plaintiffs (1st – 3rd) respondents did not prove the claim contained in Para. 44 (iv) of the 4th Amended Statement of claim, i.e. “The Declaration that the Procedure adopted by the Ondo State Government in registering a new Declaration was wrong they are estopped from challenging the validity of the 1988 Olukakumo Chieftaincy Declaration – Exhibit ‘D’ the learned trial judge therefore erred when he declared Exhibit D null and void and that it was made contrary to the native law and custom of Ikakumo people.
The Court, said counsel, cannot question the validity of the Chief Law (Edict No.11) of 1984 under which Exhibit D was made. On this learned counsel referred to the cases of Governor of Ondo State V. Adewunmi (1985) 3 NWLR (Pt. 13) 493, Adamolekun V. Council of University of Ibadan (1968) NMLR 253. Sanumi V. Governor of Ondo State (1998) 1 NWLR (Pt. 543) page 365 at page 371 and Obada V. Military Governor of Kwara State (supra) pages 497 to 498 where the Court held on competence of Court to question validity of an Edict or Decree thus “No court of Law has the competence to entertain any question as to the validity of any Edict or Decree, that is no Court has jurisdiction to entertain a question as to the legislative capacity of a Governor to make an edict or of President to enact a Decree. Further, by virtue of Decree No. 13 of 1984, anything done under an Edict or Decree is not subject to the jurisdiction of any Court of Law.”
Learned counsel argued that the learned trial judge in wrongly assuming jurisdiction at page 418 of the record disagreed with the position of the 1st and 2nd Appellants on the grounds that, that was no longer the position of the law, citing the cases of Abu V. Odugbo (2001) FWLR (Pt. 69) 1260 at 1291 – 1292, and Osagie II V. Offor (1998) to justify his position. Learned counsel submitted that the subject matter before the trial judge in the instant case was not a Chieftaincy dispute between two contesting parties which is justifiable under Section 236 (1) of the 1979 Constitution but a challenge to the action of the Military Governor pursuant to Section 26 (1) of the Ondo State Chiefs Law (Edict No. 11) of the 1984, which was not justifiable under Section 1 (b) (i) and (ii) of the Federal Military Government (Supremacy of Enforcement of Powers) Decree No. 13 of 1984.
Learned counsel also submitted on this issue that the learned trial judge exceeded his jurisdiction in nullifying Exhibit “D” the Exhibit being a registered declaration, and that rendered the judgment a nullity. For instance, that, the Ondo State Executive Council had caused an enquiry to be held in respect of the Onikakumo of Ikakumo Chieftaincy by the Morgan Chieftaincy Commission of Enquiry in 1979. That, it is the recommendation of the commission that crystallized into Exhibit C, a white paper on the recommendation of the said Chieftaincy Commission. That, it is the said Exhibit C that culminated into the making of Exhibit D, the extant Onikakumo of Ikakumo Chieftaincy Declaration of 1988, which was duly registered in accordance with the 1984 Chiefs Law of Ondo State (as amended)
Learned Counsel submitted that the Supreme Court gave approval to the effect of registration of a Chieftaincy declaration in the cases of Imonike and Ors. V. Attorney General Bendel State & Ors. (1992) 7 SCNJ (Pt. 1) 197 at 210, thus: “It follows that when such a declaration is duly made and registered it becomes the Constitution and embodiment of the entire custom and the town with respect to Chieftaincy matters to the exclusion of any other customary rule or usage (per Nnemeka-Agu JSC). He submitted that Exhibit D therefore is the embodiment of the entire custom of Ikakumo town with respect to the Onikakumo Chieftaincy to the exclusion of any other customary rule or usage. On this same point, learned counsel further referred to the cases of Oyefolu V. Durosinmi (2001) FWLR (Pt. 69) page 1422 at 1432, Alomaja V. Adewale (2004) 15 NWLR (Pt. 897) page 564 at 586 and urged that issue No. 2 be resolved in favour of the Appellants.
Learned counsel for the Respondent on the other hand sought first to justify the nullification of Exhibit ‘D’ on the ground that it was made Pendete Lite that is in the pendency of a suit.
He argued that the law is clear that wherever an issue is submitted to the jurisdiction of the Court, the hands of the parties are tied until the determination of the suit, none of them is expected to take steps in altering the res, in this case the applicable native law and custom regulating the appointment of succession to Olukakumo of Ikakumo Chieftaincy. On this, he referred to the cases of Amechi V. INEC (2008) All FWLR (Pt. 407) 1 at 199, Bello v. A-G Lagos State (2006) All FWLR (Pt. 324) page 1954 at 1984.
Combined Trade Ltd. v. ASTB Ltd. (1995) 6 NWLR (pt. 404) 709 at 716, 717.
OBI V. INEC Vol., 3 App. Land Mark cases 750 at 796. AGBAKOBA v. INEC (2008) 12 SCM (pt. 2) 159 Governor Lagos State vs. Ojukwu & 1 or. (2001) 39 W.R.N. 155 at 173 – 175.
Learned counsel submitted that the Appellants could not have in any event use Exhibit “D” as such use would be contrary to the provision of Section 91 (3) of the Evidence Act Cap. 112 (now Section 83 (3) Evidence Act 2011) in that Exhibit D was made during the pendency of a suit or in anticipation of a suit.
He referred to the case of Kankia V. Maigemu (2002) 6 NWLR (Pt. 817) 496 at 517. Learned counsel submitted that it is a misconception of the law that the moment an act is said to have been done in pursuant to an edict, the Court should surrender his role of adjudicator as contended by the appellant’s counsel. That, to the contrary, the Court has the jurisdiction and power to examine whether the provision of the edict has been complied with. In this case, there are steps to be taking in making a Chieftaincy declaration as stipulated in the Chiefs Edict of Ondo State, the moment the procedure laid down has not been followed, the door of the court is opened for the aggrieved. And, that the moment the aggrieved has approached the Court, the parties concerned should wait for the outcome notwithstanding the outcome of the case, any party who takes step (s) will have the step (s) reverted. Learned counsel submitted that contrary to the position taken by the appellants counsel that the trial court cannot entertain any claim relating to exhibit ‘D’ because it was not in existence at the time of the institution of the suit, the parties were aware that the plaintiffs respondent were seeking reliefs in respect of Olukakumo of Ikakumo Chieftaincy and that the claims are on the applicable native law and custom regulating the appointment of succession to Olukakumo of Ikakumo. That, it is further contended by the appellants that the said exhibit D having been made pursuant to an Edict, cannot be entertained by the court. This, according to Respondents counsel is wrong. He argued that the Courts have maintained that the provisions of the Chief Law which oust the jurisdiction of the Court is void. He referred to the cases of Kamada V. Governor Kaduna State (1986) 4 NWLR (Pt. 35) 361 Ojukolobo V. Alamu (1987) 3 NWLR (Pt. 61) 377.
Learned counsel also submitted that the appellants placed reliance on the case of Gowon V. Okonowu (2003) 16 W.R.N. 55, (2003) 2 SCM 31 and Obasanjo V. Yusuf (2004) 9 NWLR (Pt. 877) 144 at 199 to contend that the amendment of the pleading to include the relief for the nullification of exhibit ‘D’ is untenable in law. Counsel argued that the amendment was made pursuant to the leave granted on application to the Court. That, then there was no appeal on the interlocutory matter. Secondly, that in the two cases referred to by the learned counsel for the appellants, what the Supreme Court decided was in respect of an amendment of pleading to introduce new matter by way of counter claim such matter being not compatible with the original claim in the writ and the statement of claim.
That in the Gowon’s case (supra), the party whose claim in the counter claim was against was not a party to the original claim of the plaintiff and the counter claim was not in any way related to the Plaintiff. He urged that the issue be resolved in favour of the respondents.
I have no doubt in my mind that the nullification of Exhibit D by the learned trial judge was wrong in law. The most significant point made by the learned counsel for the Appellants in this respect is that Exhibit D, having not been in existence at the time the Respondents writ of summons and statement of claim were filed on or about 16/2/88, Exhibit D, creates a new cause of action and could not have been rightly pronounced upon by the learned trial judge. It is not true as suggested by the learned counsel for the Respondents that the cases of Gowon v. Okongwu (supra) and Obasanjo V. Yusuf (Supra) relied upon by the learned counsel for the Appellants on this point are not applicable to the present case. The Statement of Katsina -Alu JSC., (as he then was) in the case of General Yakubu Gowon v. Mrs. Edith 1. Ike Okongwu & 2 Ors. (2003) 6 NWLR (Pt 815) 38 at 49 is sufficiently clear on the point. He said.
“just as the Plaintiff cannot be allowed to bring into his case an entirely fresh cause of action which arose after the action had been started, a defendant will not be allowed to raise by way of an amendment to the Statement of Defence a counter claim in respect of a cause of action that arose subsequent to the issue of the writ: see Eshelby v. Fed. European Bank (1931) All E.R. Rep. 840. I think it is good sense. To bring in such a fresh cause of action, does not, viewed from any angler constitute an amendment. It means what it is that is, starting a new cause of action, and one which did not accrue, and therefore could not have been sued upon, at the time the action was brought.”
Incidentally, it is also for the above reason that the argument of the learned counsel for the Respondents that the Appellants did not file a separate appeal on the interlocutory order of the Court below for granting the amendment which made the Respondents to incorporate the nullification of Exhibit D cannot be countenanced. The issue here goes beyond the justification or otherwise of the order of amendment but the fact that the Court below lacks the competence, the vires, the jurisdiction to pronounce on the cause of action relating to Exhibit D when such cause of action was not before the Court and was in fact not in existence at the time the originating processes in the suit were filed.
Of course, the granting of an amendment only relates to the cause of action before the Court and an order of amendment of pleadings cannot be valid if used to create a new cause of action.
Still on this, I noticed that the learned trial judge frowned seriously on the capacity of the Defendants/Respondents to make and produce Exhibit D in the course or pendency of the trial. This is borne out at pages 417 and 423 of the record of appeal:
First, that “to hold that the amendment is wrongful in law is to foist a state of helplessness on the Plaintiffs. The Plaintiffs could only file a fresh suit which will be an abuse of Court process. I hold that the 1988 Declaration i.e. Exhibit D having been made an issue in the original statement of claim and the subsequent amendment that brought in the 1988 Declaration for nullification is proper in law, the Court can pronounce on the 1988 Declaration with regard to the Olukakumo of Ikakumo Chieftaincy i.e. Exhibit D in this case. There is a cause of action already against it in the original statement of claim and the amendment was to bring the real issues in controversy before the Court after it was approved and registered. It is for the reasons stated before that I also hold that this suit is competent and that this. Honourable Court has the jurisdiction to entertain it. The 1988 Declaration i.e. Exhibit D was no more a fresh issue at the time the amendment was granted. The amendment was not to operate to the future rather its operation is retrospective according to law i.e. to correct the statement of the pleadings from whether or not the 1988 Declaration should be made to a nullification after it was made without any order of Court” (underlining emphasis supplied) Second, at page 423, the Court added:
“The third main issue in this case is the implication of the act of the defendants by registering Exhibit A (sic) D when this suit is pending with an injunctive remedy. I have no hesitation in holding that this act amounts to an affront to the authority of the Court of the land and an executive excesses. For this reason also, the 1988 Chieftaincy Declaration i.e. Exhibit D should be set aside and same is hereby set aside” (underlining emphasis supplied).
The above reasoning by the learned trial Judge regarding the nullification of Exhibit D was later developed in the brief of argument of the learned counsel to the Respondents in this appeal, precisely, to justify the nullification of Exhibit D. He argued inter alia citing several authorities that the making of Exhibit D while the suit was pending, that is pendente lite or in the cause of Lis Pendens pendent thereby rendering the action or orders of the court a fait accompli.
With great respect to the learned trial judge and the learned counsel for the Respondent I do not share this view, in the circumstances of this case.
The latin words pendente lite or lite pendente merely means “while the action is pending” during the proceeding or litigation; or in a manner contingent on the outcome of litigation”
Similarly, a lis pendens is simply a pending law suit. However, the doctrine of lis pendens relates to the jurisdiction, power or control acquired by a court over property while a legal action is pending. Thus, the 8th Edition of the Black’s Law Dictionary explains Lis pendens at page 950 as:
“1. A pending law suit 2. The jurisdiction, power or control acquired by a Court over property while a legal action is pending. 3. A notice, recorded in the chain of title to real property required or permitted in some jurisdiction to warn all persons that certain property is the subject of litigation, and that any interests acquired during the pendency of the suit are subject to its outcome – Also termed (in sense 3) notice of pendens, notice of pendency…”
The other side of the argument or perhaps the connotation of the learned counsel for the Respondents, if I understand same properly is that Exhibit D is caught by the pronouncements of our Courts in cases such as Governor of Lagos State V. Ojukwu (Supra) to the effect that it is an affront on the Rule of Law for the litigant to take step (s) affecting the res in the pendency of the outcome of litigation.
Let me first say that the pronouncement of the Courts in cases such as Governor of Lagos State V. Ojukwu (Supra) is a recapitulation of the ramifications of the concept of the Rule of Law and it is somewhat separate and distinguishable from the doctrine of Lis pendens. The implication of the decision of the Supreme Court in the case of Governor of Lagos State V. Ojukwu (Supra) and those line of cases is that it is an affront to the Rule of law to disobey or render nugatory an order of Court whether real or anticipatory. Furthermore the case of Governor of Lagos State V. Ojukwu (Supra) in particular equally teaches us that parties who have submitted themselves to the equitable jurisdiction of Courts must act within the dictates of equity. Thus, in that case, the Lagos State Government was held to be wrong to have ordered caterpillars into the land in dispute that is the property of Chief Odumegwu Ojukwu at No. 29 Queens drive Ikoyi, Lagos while the parties were waiting for the outcome of an injunctive remedy on which they had invited the Court to adjudicate. In other words, “He who comes to equity must do equity.”
In the instant case, it seems to me that neither the exposition of the doctrine of the Rule of law as enunciated in the case of Governor of Lagos State V. Ojukwu (Supra) and other cases in that category nor the doctrine of Lis Pendens par se could debar the operation of the appropriate law making organ of Government from the legitimate process of law making even in the pendency of a suit. To hold otherwise, in my view will give a leeway to the law making arm of government to talk of “judicial Recklessness” while those of us in the Judiciary talk of “executive lawlessness” Indeed, the doctrine of separation of powers would have been thrown into the winds if lawmakers cannot make laws in the pendency of a law suit. This is because, the principle behind the concept of separation of powers is that none of the three arms of government under the constitution should encroach into the powers of the other. The function of the Legislature is primarily to enact laws whilst that of the executive is to implement such laws passed by the legislature. The Judiciary, for its own part interprets and enforces such laws. Where, however, such separation of powers between the executive and the Legislature and the Judiciary is provided for by the constitution, neither organ may encroach upon the province of the other. However, the constitution being an organic law, the ground norm and the Supreme law of the land, may restrict the operation of this principle of separation of powers. Accordingly, the power of each arm may be restricted or expanded by an express provision of the constitution.
See: A-G, Abia State V. A-G, Fed. (2003) 4 NWLR (Pt. 809) 124. Amadi V. NNPC (2000) 6 SC (Pt. 1) 66 at 94 – 95.
I believe, that it is the introduction of motive in the judgment of the learned trial judge to the effect that the promulgation and registration of Exhibit D by the 4th Defendant/Appellant in the pendency of the suit or “an injunctive remedy” amounts to an affront to the authority of the Courts of the land and an executive excesses” which prompted the learned counsel for the Respondents to further challenge the nullification of Exhibit ‘D’ on the ground that the making of Exhibit ‘D’ was an act done pursuant to an Edict and consequently cannot be challenged in Court. And, that the act was performed by the military governor of Ondo State at that time.
In the case of Obada V. Military Governor of Kwara State (1990) 6 NWLR (Pt. 157) P.482 at 496, this Honourable Court held on competence of Court to question validity of an Edict or decree thus; “No Court of Law has the competence to entertain any question as to the validity of any Edict or Decree, that is no Court has jurisdiction to entertain a question as to the Legislative capacity of a Governor to make an Edict or of president to enact a Decree. Further, by virtue of Decree No. 13 of 1984, anything done, purported or proposed to be done under an Edict or Decree is not subject to the jurisdiction of any Court of Law”
See also, Adamolekun V. Council of University of Ibadan (Supra) Sanumi V. Governor of Ondo State (Supra).
The position of Decree No. 13 of 1984 was further explained by the Supreme Court in the case of Chief Olori Edjerode and 5 Ors V. Chief Ohwovwiogor Ikime and 3 Ors. (2002) 2 M.J.S.C. 163 at 180.
In that case, the Supreme Court per Ejiwunmi JSC (of blessed memory) while referring to the earlier decision of the Court in the case of Uwaifo V. A-G Bendel State (1982) 7 S.C, 124 explained as follows:
“The decision in Uwaifo’s case prohibits the Courts, even after 1st October 1979 from questioning any Edict or Decree made between 1st January 1966 and 30th September 1979 on the ground that the person or authority which made it had no capacity or power to make it, but did not preclude the Courts from questioning the validity of such laws or any of their provisions that are inconsistent with the provisions of the 1979 Constitution. In other words, Court are precluded from questioning the capacity and power of the authorities in promulgating such laws. They are equally prohibited from questioning the validity of what the authorities did under such laws or interfering with any accrued or subsisting rights by virtue of such actions at the time they were still valid and subsisting. In Uwaifo’s case (Supra) Idigbe JSC succinctly stated the law thus:
“It seems to me that the Constitution empowers the Courts to inquire into the validity of any existing law, it clearly intends that the Courts should not inquire into proceedings which seeks to determine issues or question as to the competence of any authority of person (i.e. legal capacity, power legal qualification or jurisdiction of any authority or person) to make any existing law promulgated between 15th January 1966 and 1st October 1979….”
Whichever way one looks at it, the nullification of Exhibit “D” in this suit by the learned trial judge on the ground that the Governor of Ondo State was wrong in promulgating it, whereas Exhibit “D” which was promulgated under an Edict was not in existence when this suit was institute in the Court below is an unjustifiable error in law.
Issue No.2 is resolved in favour of the Appellant.
On issue No. 3, Learned Counsel for the Appellant submitted that the judgment of the trial Court in this case is against the weight of evidence, in that the judgment of the trial Court cannot be supported by the weight of evidence adduced by the successful party, i.e. the 1st – 3rd Respondents herein. That, the trial Court wrongly accepted evidence from the 1st – 3rd Respondents, consequently, the inference it drew or reached based on the accepted evidence cannot be justified. Further, that the evidence accepted by the trial Court would not support its findings. He referred to the case of Osolu V. Osolu (2003) 11 NWLR (pt. 832) 608 at 643.
Learned counsel submitted that inadmissible evidence had been in advertently or improperly received in evidence by the trial Court in this case even when no objection had been raised, it is the duty of the Court when considering its judgment to expunge such evidence.
He referred to the cases of Kankia v. Ziwin Gina (2003) 6 NWLR (Pt. 817) 496 at 518 and Ojengbede v. Esan (2001) 18 NWLR (pt. 746) 771 at 791, and urged that this Honourable Court should expunge copious evidence wrongfully admitted and used in the proceedings.
Issue No.3 of the learned counsel for the Appellants is vague and hypothetical. It is therefore not surprising that the learned counsel for the Respondent did not furnish any reply to the issue.
As it is the case with evaluation of evidence a party complaining of wrongful admission of evidence must specify the evidence that was wrongfully admitted. It is not open to the Court of Appeal to embark on a voyage of expedition or the speculative task of searching for the appellants which evidence in the course of trial was wrongfully admitted and take a decision on non-existing facts.
The reason for this is an appellate court will concern itself with only the real issues of fact placed before the trial Court and not speculative or fanciful matters. For, it has long been established that this Court will not render an advisory opinion nor will it deal with a matter which is speculative or academic. The Court deals with live issues. See Aderedolu v. Akinremi (1986) 2 NWLR (pt. 25) 710 at 715.
Boye Ind. Ltd. & ors. V. Adisa Sowemimo (200) 10 NWLR (pt. 1048) 136 at 164.
In Eperokun V. University of Lagos (1986) 4 NWLR (Pt. 34) 162 at 177 Obaseki JSC pronounced on the matter thus: –
“This Court has held repeatedly that it is not part of its function to entertain and decide hypothetical questions, that is questions not arising from the facts of the case”
The question was more forcefully put by Obaseki JSC in Chief Ejowhomu V. Edek – Eter Mandilas Ltd. (1986) 5 NWLR (pt. 390) 1 at 30 – 31 thus:
“A trial Court may have committed grave errors in his judgment in a manner which stirs the informed mind of the appeal court judges for correction, but it is settled law that if the parties to the matter are satisfied with the judgment, there is nothing the Justices of the Court of Appeal can do. The Justices can only maintain studied silence or observe that there was no appeal before them on the point. If one of the parties is aggrieved and decides to appeal on grounds which do not raise the grave errors observed as issues to be debated and determined the justices are still powerless and harm strung in tackling the error.
But if the party adversely affected by the errors through careful reading, wisdom and vigilance sports the errors and takes the matter on appeal on grounds complaining of those errors, it is only then and then only that the Court of Appeal under our law can deal with the issue. Generally, appeal Courts without statutory provision have no jurisdiction to disturb settled issues not properly brought as well as those not brought before them.”
In the instant case, ground 3 of the Appellants Amended Grounds of appeal complained that the judgment of the learned trial Judge is against the weight of evidence, learned counsel for the Appellants formulated his Issue No. 3 on that ground and complained that there was “wrongful admission of copious evidence at the trial” without specifying any of the pieces of evidence that was wrongfully admitted.
In these circumstances, Appellants Issues No. 3 is not open to us for a decision. Accordingly, Appellants ground 3 of the Amended Notice of Appeal and the said Issue No. 3 based on that ground are vague and are hereby struck out.
On Issue No. 4, Learned Counsel for the Appellants submitted that there was no basis for the learned trial judge to have received the evidence of P.W.2 in Yoruba language, acted upon the evidence as conceived by him as his own interpreter and his own recorder in English language as shown in the Record of Appeal (Pages 341 – 349). That, since PW2 gave evidence in Yoruba language and identified Exhibit “B” and its contents, the evidence of PW2, Julius Obaniyi Olaitan, being a star witness who was interested in becoming the next Olukakumo of Ikakumo ought to have complied with settled law. And, that, since the entire evidence of PW2 was given in Yoruba language without the aid of an interpreter and against the law, the said evidence should be disregarded and expunged from the Record.
Learned counsel submitted that it is settled law that in any Court proceedings where there is evidence before the Court in a local language or dialect of witness or document is written in another language, translation or interpretation of such evidence/document must be done either by a competent witness or official of the court into English language which is the official language of Court in Nigeria before such evidence is recorded by the Court. He submitted that the learned trial Judge failed to adhere to the above settled law when he received interpreted and recorded the evidence of PW2 without the translation by a competent witness or official of Court, of the evidence into English language, which is the official language of Court in Nigeria.
Learned counsel referred to the cases of Ojemgbede V. Esan (2001) 18 NWLR (Pt. 746) 771 at 790.
Oduwole V. Aina (2001) 17 NWLR (Pt. 741) 1 at 22.
Kankia V. Zwin Gina (2003) 6 NWLR (Pt, 496) 517.
He submitted that the learned trial judge violated the rules of Court by constituting himself into both witness and judge in respect of the evidence of PW2, in the same proceedings. That, he said, rendered the evidence of PW2 inadmissible and the right thing to do is to expunge the evidence from the records. He referred again to the case of Kankia V. Zwin Gina (Supra)
Learned counsel submitted that PW2’s evidence would have been the only corroborative oral evidence of PW1 if the evidence were admissible in law. Since the admission of the evidence of PW2 violates the laid down rules for its admission, it is urged on this Honourable Court that the said evidence should be expunged from the records or disregarded. Counsel further submitted that the evidence of PW2 and Exhibit ‘B’ if expunged as urged on this Honourable Court, the 1st -3rd Respondents case will rest on the solitary evidence of PW1 and a dead/non-existent Exhibit “A”.
Finally, on this, he urged us to resolve the issue in favour of the Appellants.
Learned Counsel for the Respondents first observed on this issue that the Court is presumed to be correct until the person asserting the contrary can put forward evidence to the contrary. That, one Miss Dupe, a clerk of the Court interpreted for the Court during the trial. That, in any event, what the appellants are complaining against here is procedural error if at all it is true that the learned trial judge on his own received the evidence and translated it from Yoruba to English. This, counsel said, the appellants consented to as they did not object at the trial. They, the appellants cross-examined the witness. The law, he said is clear that a party who consents to wrong procedure at the trial cannot be heard to complain on appeal. He referred to the cases of Duke v. Akpabuyo (2006) 13 W.R.N. 1 at 28.
Ariori V. Elemo (2001) 36 W.R.N. 94.
Learned counsel for the Respondents submitted further that there is nowhere in the High Court law of Ondo State of Nigeria or in the Constitution of the Federal Republic of Nigeria that forbids the complaint of the appellants. That Section 61 of the High Court Law of Ondo State 2006 which deals with the taking of the notes of proceedings does not state the language of the reception. And, also that the whole of order 39 of the Ondo State High Court Civil Procedure Rules dealing with taking of evidence is silent on the issue.
Learned counsel submitted that the cases of Ojengbede V. Esan (Supra) and Kankia V. Maigemu (Supra) relied on by the learned counsel for the Appellants on this point are not on all fours with the present case as what was considered by the Courts in those cases was the admissibility of document written in language other than in English. That, even in those cases and many others where the inadmissible evidence were expunged and the Courts still found that there are other evidence that can sustain the decision of the trial Court, the appellate court has refused to set aside the judgment.
He referred to the cases of Okere V. Fasawe (2006) 12 W.R.N. 1 at 26 – 27. Ogbenu V. Niger Construction Ltd. (2006) 38 W.R.N. 1 at 23 – 28. Dere V. Dagaci of Ebwa (2006) 30 W.R.N. 1 at 57 – 58.
Learned counsel submitted that the appellants have not complained of any injustice such reception of evidence in Yoruba language and interpretation into English by the learned trial judge has done to them. The procedural error if at all is by the court. He submitted that it is trite that error committed by court or Court’s official or by counsel will not be visited on the litigants.
I do agree with the learned counsel for the appellants that there was at best an irregularity in either that the learned trial judge did not use an interpreter to translate the evidence of PW2 from Yoruba language to English Language or in doing so without properly recording the use of such an interpreter so that it would be apparent from the record of Court.
On the other hand, I also agree with the learned counsel for the Respondents first that the complaint of the Appellant is a mere procedural irregularity and also that the cases of Ojengbede V. Esan (Supra) and Kankia V. Maigemu (Supra) relied upon by the Learned Counsel for the Appellants are not exactly on all fours with the instant case.
However, there is no shying away from the fact that as a matter of law and practice, English is the official language of the superior Courts in Nigeria. This as much was established in the cases of Ojengbede V. Esan (Supra) and Kankia V. Maigemu (Supra).
In Ojengbede V. Esan (Supra) at page 790, this Honourable Court held thus:
“There can be no doubt that the official language of records in Nigeria is English and that if document written in any language other than English are to be tendered and properly used in evidence they must be duly translated into English either by a competent witness call by the party to the proceeding who needs them to prove his case or by the official interpreter of the court. A judge cannot on his own engage on the translation or interpretation of a document written in a language other than English since he is precluded from performing the role of witness and arbiter at the same time in the same proceedings”
Similarly in Kankia v. Maigemu (2002) 6 NWLR (Pt. 817) 496 at 519, the Supreme Court held that:
“The language of Courts in Nigeria is English language. Consequently, where a document is prepared in any other language, it ought to be translated to English language where it is not so translated it will not be admissible in evidence”
In the instant case, I think the more important point made by the learned counsel for the Respondents is that the law is clear that a party who consents to wrong procedure at the trial cannot be heard to complain on appeal.
The law was adequately stated by the Supreme Court in the case of Duke v. Akpabuyo Local Government (2006) 13 W.R.N. 1 at 32.
In his supporting judgment to the lead judgment of Pats Acholonu JSC (of blessed memory) Ogbuagu JSC stated the law as follows:
First that:
“…in matters of procedural irregularity such as in the instant case… it is settled that such an irregular proceedings, can only be set aside, if the party affected, acted timeously and before taking any or fresh step since discovering the irregularity. It is when a point on procedural irregularity is timeously and properly raised, that it becomes necessary for an Appeal Court and indeed a trial Court to consider its merit”
Secondly that:
“The appropriate time at which a party to a proceeding, should raise an objection based on procedural irregularity, is at the commencement of the proceedings or at the time when the irregularity arises. If the party “sleeps” on that right, and allows the proceedings to continue on the irregularity to finality, (as happened in this case leading to this appeal), then the party cannot be heard to complain at the concluding or concluded stage of the proceedings or on appeal thereafter, that there was procedural irregularity which vitiated the proceedings.”
And finally on the point:
“The only exception to this general rule, is that the party would be allowed to complain on appeal, if it can show that it had suffered a miscarriage of justice by reason of the procedural irregularity so said this Court in Saude V. Abdullahi (Supra)…”
In the instant case, the appellants have not shown that they suffered any miscarriage of justice consequent upon the self interpretation of the evidence of PW2 by the learned trial judge from Yoruba to English Language.
Issue No.4 is resolved against the appellants.
Learned counsel for the Appellants started his submissions on Issue No. 5. When he stated that the learned trial judge was in error for failure to acknowledge or evaluate Exhibit “E, F, G and H” on the issue of whether there was protest against the 1960 Chieftaincy Declaration (Exhibit “A”) by the Appellants. He said, in the face of those letters of protest, it was a wrong conclusion by the learned trial Judge when he held that there was no protest in the face of Exhibits E, F, G and H.
Learned Counsel submitted further that Exhibit “A” not having been validly made and/or extant at the commencement of this action in the High Court of Ondo State, the Learned Trial Judge was on a worthless judicial exercise and voyage when he relied on the said Exhibit “A” in his judgment. He submitted that Exhibit A, the 1960 Declaration in respect of the Olukakumo of Ikakumo Chieftaincy stool became invalid, irrelevant, null and void and of no effect because it was made under the repealed Chiefs Law of Ondo State and it was not registered or re-registered under the 1984 Chief Law of Ondo State (as amended) as required by the law.
He referred to the provision of Section 24 (1) (a) of the 1984 Chiefs Edict (Law) of Ondo State. He also referred to the case of Alomaja V. Adewale (2004) 15 NWLR (Pt. 897) 589. Learned counsel submitted that since Exhibit “A” was not registered under the 1984 Chiefs (Edict) Law of Ondo State, it became dead non extant, null and void and of no effect, and could not constitute a reasonable cause of action. Therefore, said counsel, since the 1st, 2nd and 3rd Respondents predicated their action on it at the trial Court, the trial Court lacked jurisdiction to entertain the case.
He referred to the case of Unijos V. Carlen (Nig) Ltd. (1992) 5 NWLR (Pt. 241) 352 and 363 and submitted that the judgment of the learned trial judge therefore became a nullity and that the said lack of jurisdiction renders the whole proceeding a nullity.
Learned counsel submitted further that the learned trial judge failed to advert his mind to the fact that Exhibit “C” the Government white paper upon which Exhibit “D” was predicated, was a product of both the plaintiffs (Respondents herein) and the 1st and 2nd Defendants (Appellants herein) because when the Morgan Chieftaincy Commission of Enquiry was set up in 1979, the two parties submitted memoranda to the said commission and subsequently gave oral evidence in support to their memoranda. It is therefore wrong, said counsel, for the learned trial judge to hold as the PW2 claimed that they (1st – 3rd Respondents) were not a party to the making of Exhibit “D”. The fact is that the Appellants are not more of a party to the making of Exhibit “D” than the 1st – 3rd Respondents.
Further, said counsel, the 1st – 3rd Respondents failed woefully in their attempt to prove the Native Law and Custom of Ikakumo in respect of ascension to the throne of the Olukakumo Chieftaincy when they relied on Exhibit “B” which as submitted Supra was wrongly admitted. Learned counsel submitted that contrary to the decision of the learned trial Judge, the 1st – 3rd Respondents did not prove 4 Ruling Houses as the Native Law and Custom of Ikakumo people in relation to the Olukakumo Chieftaincy for the following reasons.
(a) The Plaintiffs (1st – 3rd Respondents) pleaded and gave evidence in respect of 17 past Obas that reigned at Ikakumo through PW2 but Exhibit B which the learned trial judge corroborated the evidence stated only 7 past Obas. The so called Olukakumos apart from the eight 8 stated by the Appellants on page 359 of the Record were mere Shabbas and Daodus (kingmakers)
It is submitted that the learned trial judge erred when he stated on page 422 lines 2-5 of the Record that the 1st and 2nd (Defendants) Appellants required a further evidence or corroborative evidence to show that the kingmakers are Shabbas and Daodus. It is submitted that Exhibit D is corroborative enough to the evidence of DW1. Similarly, the statement of the learned trial judge on page 422 lines 19 – 24 of Record that the purported Obas from Ayanwa, Arepin and Aparisu families whom the Defendants referred to as Shabbas and Daodus cannot be true has no basis.
The issue of Shabbas and Daodus did not appear in the 1957 and 1960 Olukakumo Chieftaincy Declaration because they are false and fraudulent documents, not based on the true native law and custom of Ikakumo. Exhibit B did not attach Ruling Houses to the said past Obas. It is the Plaintiffs (1st – 3rd Respondents) that allocated Ruling Houses to them on their own volition.
(b) The said list of 17 purported past Olukakumo’s given by PW1 was faulted by PW2 during cross-examination when he admitted at page 338, line 5 – 10 of Record that Oba Oludofin Ajige from Ayindu family reigned as Olukakumo between 1902 and 1938. That Oba Omogboye also from Ayindu family reigned from 1939 to 1954. Meanwhile, the DW1 had earlier said in evidence that his grandfather Obaude (aka) Ebibiado also from Ayindu family reigned as Olukakumo from 1901 to 1921 (page 359) which evidence was not controverted.
In essence, Ayindu family reigned as Olukakumos consecutively from 1901 to 1954, a period of over half a century. The pertinent question is: where were the so called three other Ruling Houses then? The said evidence of PW1 was also debunked by Exhibit B (if it is anything to go by) which listed only 7 Olukakumos.
This is a clear evidence that Ayindu family is the only Ruling House at Ikakumo.
(c) In the document Exhibit I, headed (IKAKUMO) Kakumo – Iworo, under administration. Obaude the grandfather of DW1 (page 359 of Record) was written as the Olukakumo at that time. (Obaude, was from Ayindu Ruling House) on the same page of Exhibit I at No. (3), under Selection of Village Head (VH), (Olukakumo), it stated. “Chosen, Ayindu family of Ayindu quarters (Qr), present and last holder, and also since Nupe wars from this family” Under No. 4 (1) of Exhibit J, it is Ayindu Quarters that is written on the name of Olukakumo Ajige. Under No. 4 (2) Ayansori Quarters had Olasemo (Odofin) Chieftaincy (a minor chief) written on it. These are compelling pieces of evidence that corroborate the case of the Appellants which the learned trial judge did not advert his mind to. Learned counsel submitted further that the learned trial judge was obviously in error when he relied on a deed Exhibit “A”, Exhibit “B” and PW2’s Evidence to determine the Native Law and Custom of the Ikakumo people, and succession to the stool of the Olukakumo of Ikakumo. Therefore, since Exhibits “A” and “B” and the evidence of PW2 are worthless, he urges us to hold that the 1st – 3rd Respondents herein have failed woefully to strictly prove customary law relating to ascension to the throne of the Olukakumo of Ikakumo Chieftaincy, and hold that it is the appellants the Ayinde Ruling House that is the only Ruling House and that Exhibit “D” is the extant and applicable Chieftaincy Declaration in respect of the Olukakumo of Ikakumo stool.
Learned counsel for the Respondents submitted that the evidence of the parties is oath against oath and having found conflicting traditional evidence the learned trial judge has to resort to evidence of occurrence within living memory in line with the authority of Kojo II V. Bonsie (1957) 1 W.L.R. 1223. That in the process of evaluation, the learned trial judge not only found the exhibits ‘B’ and ‘K’ useful but observed a lot of discrepancies in the evidence of the Appellants.
Learned counsel submitted further that in the case at hand, the learned trial judge had nullified exhibit ‘D’ and held that it was wrongly made, the next thing is to examine the pleadings and the evidence on record to ascertain what the applicable native law and custom is. This he did. Learned counsel conceded that Exhibit ‘A’ has not been re-registered and also that it cannot be enforced. He submitted that it is however in existence, but inchoate. That, it is the applicable declaration in respect of Olukakumo of Ikakumo. That, in any event, based on the evidence on record, the Court without exhibit ‘A’ could still hold that there are four Ruling houses based on the remaining evidence on record.
Having carefully gone through the submissions of counsel and the entire record of appeal in this case, the answer to issue No. 5 is straight forward in spite of the rather boring epilogue by the learned counsel for the Appellants.
Learned counsel for the Respondents has rightly conceded that Exhibit ‘A’ the 1960 Declaration of the Olukakumo of Ikakumo is unregistered and therefore in effective. His concession recapitulates the position of the law that an unregistered Chieftaincy Declaration is as good as nothing.
In the instant case, Section 24 (1) (a) of the 1984 Chiefs Edict (Law) of Ondo State as amended states that:
“Subject to the provisions of this Section every declaration
(a) made under the provisions of Part II of the repealed law, shall have effect as it is had been made or registered, as the case may be, under the provisions of Part I of this Edict”
However, Section 24 (2) of the Edict states thus:
“The following provisions shall apply in relation to declarations made under Part II of the repealed law and in respect of which the date of registration is before the thirty-first day of December 1983.”
(a) “Every such declaration shall be submitted by the secretary to be committee to the commissioner for approval and shall cease to have effect until again registered under the provisions of part I of this Edict.”
In the instant case, the 1960 Olukakumo of Ikakumo Chieftaincy Declaration Exhibit A did not satisfy the provision of Section 24 (2) (a) of the Law not having been submitted to the Commissioner for approval, it ceased to have effect and shall remain ineffective until again registered under the provision of Part I of the Edict (Law).
See: Alomaja v. Adewale 2004) 15 NWLR (Pt. 897) 589. It is trite law that only a declaration that has been validly made in respect of a recognized Chieftaincy and registered which represents the applicable customary law regulating the selection and appointment of a candidate to a vacant Chieftaincy; and the provisions of such a registered declaration should prevail until amended and the amended Declaration is registered. See: Fasade v. Babalola (2003) 11 NWLR (pt. 830) 36 at 45, Ogundare v. Ogunlowo, (1997) 6 NWLR (pt. 509) 360; Adigun v. A-G; Oyo State (1987) 1 NWLR (pt. 53) 678; Oladele v. Aromolaran II (1996) 6 NWLR (pt. 453) 180; Ayoade v. Mil. Gov., Ogun State (1993) 8 NWLR (pt. 309) 111.
The picture in this appeal, more especially as it concerned Issue No. 5 is thus this:
(i) In my treatment of issue No.2, I had earlier ruled that Exhibit “D” did not create a cause of action in the suit filed by the 1st – 3rd Respondents
(ii) There was a Chieftaincy Declaration by the Isowopo Local Council in 1956/1957 which governed the Chieftaincy title of the Olukakumo of Ikakumo.
(iii) The 1956/1957 declaration became repealed when the 1960 Declaration came into existence.
(iv) The 1960 declaration – Exhibit ‘A’ was not re-registered in accordance with the provision of Section 24 (2) (a) of the Chiefs Edict (Law) of Ondo State 1984.
(v) At the time this suit was instituted the native law and custom that governs. The Olukakumo Chieftaincy could not be derived from the 1960 Declaration.
The pertinent question in this portion of the appeal is whether the Respondents established that there are four ruling Houses in Ikakumo under native law and custom outside of the 1957 and 1960 Declarations. The answer to this question is in the negative.
Indeed from the totality of the pronouncements of the learned trial judge in this case, there was no pretence that he relied solely on those ineffective Declarations to find in favour of the 1st to 3rd Respondents that the native law and custom of Ikakumo recognized four Ruling Houses. This is wrong.
Issue No. 5 is resolved in favour of the Appellants.
The gravamen of the submission of the learned counsel for the appellants on issue 6 is that as at 16/2/88 when this suit was instituted, it was the Akoko North Local Government that could be sued under Local Government Law of 1978 and not the Secretary Akoko North Local Government as contained on page 4 of the Records. Thereby, said counsel, the learned trial judge gave judgment severally and jointly against a non-juristic person (6th Respondent) and other defendants who are juristic persons. This according to counsel, rendered the judgment a nullity.
He referred to the cases of Agbonmagbe Bank Ltd V. General Manager G – B Ollivant Ltd. & others (1961) 1 All N.L.R. 16.
The Registered Trustees of Apostolic Church Ilesha Area Nigeria v. A – G of Mid-Western Nigeria and 2 others. (1972) N.S.C.C. 247.
Njoku V. UAC (1999) 12 NWLR (pt, 632) 557 at 560.
Chief J – S Ekpere and 3 Ors. V. Chief Odaka Aforjie and 4 Ors. (1972) 1 All N.L.R (Pt. 1) 220, (1972) 3 SC 352 at pp. 364 – 365.
Learned counsel concluded that the 5th Defendant (now 6th respondent) not being a juristic person ought not to have been sued.
Learned counsel for the Respondent noted in relation to issue No. 6 that the appellants were not representing the 5th defendant (now 6th respondent, they cannot advocate the cause of the 6th respondent in this appeal especially with regard to misjoinder. The 6th respondent did not complain at the trial about his joinder and was duly represented first by a private Legal Practitioner and later by the Attorney-General.
Learned counsel submitted that the 6th respondent is a creation of statute. That, the Chiefs Edict of Ondo State 1984 (Chiefs Law of Ondo State 2006) appointed it as the Secretary of the Chieftaincy committee of the Local Government.
Also, that, it has roles to play in the making of exhibit “D”, in that it is he who will submit the exhibit to the Executive council through the Commissioner for approval and registration. The appellants have not shown what injustice if any, the misjoinder to the 6th respondent has done to them.
Learned counsel added that even if the 6th respondent has been improperly joined in the suit, it cannot lead to the reversal of the judgment, because misjoinder or non joinder cannot defeat the cause of action provided the proper parties are before the Court.
In deciding issue No.6, I agree with the learned counsel for the Respondent that it is a settled principle of law that non-joinder or misjoinder will not be fatal to an action and no proceedings shall be rendered null and void for lack of competence or jurisdiction simply because a plaintiff joins a party who ought not to have been joined.
C.R.S.N. Corp. V. Oni (1995) 1 NWLR (pt. 371) 270.
WR & PC Ltd. V. Onwo (1999) 12 NWLR (pt. 630) 312.
Issue No. 6 is resolved against the Appellants.
In this appeal out of the 6 (six) issues considered, issue No 3 was struck out. Issues Nos. 1, 4 and 6 were decided against the Appellants while Issues Nos. 2 and 5 were decided in favour of the appellants. Consequently, the appeal succeeds in part. However, issues Nos. 2 and 5 that were decided in favour of the appellants are the crux of the appeal and the determinant issues in the appeal. Therefore, for the reason of the success of the appellants on issues Nos. 2 and 5, none of the reliefs, declarations, or orders granted by the learned trial judge could be sustained. Accordingly, the Judgment of P.I. Odunwo, J., in Suit HIK/2/88 is set aside in its entirety.
I make no order as to costs.
The Cross-Appeal.
As was noted in the consideration of the main appeal, the three government functionaries that were sued as 3rd – 5th defendants in the Court below presented a cross-appeal before this Court. Therein, the 1st and 2nd Appellants to the main appeal that is Emmanuel Gbadebo Olusi and Titus Oluwatayo Baale became Appellants/Cross Respondents. The 1st – 3rd Respondents in the main appeal are Respondents/Cross Respondents to the cross-appeal.
The relevant briefs of argument for the cross-appeal are as follows:
(i) 1st – 3rd Cross Appellants joint brief of argument dated 18/3/2010 and filed on 19/3/2010 – settled by F.S. Akinnibosun Esq. (Deputy Director of Litigation, Ondo State).
(ii) 1st to 3rd Cross-Respondents brief of argument dated 9/4/13 and filed on the same day – settled by Mallam Gani Asiru.
Learned counsel for the Cross-Appellants nominated three (3) issues for determination as follows:
(i) Whether the trial Judge was not in error by holding the 1960 Declaration to be valid when it was obvious it was not reregistered in conformity with Section 24 (2) of the Chiefs Edict (as amended) of Ondo State 1984.
(ii) Whether the trial Court was divested of jurisdiction to try the matter.
(iii) Whether the judgment was not against the weight of evidence.
Learned counsel for the Cross-Respondent in turn formulated the following issues for determination.
(i) Whether the learned trial Judge was wrong to have assumed jurisdiction.
(ii) Whether the learned trial judge was right to have declared that there are four ruling houses for Olukakumo of Ikakumo Chieftaincy.
Having carefully gone through the records in this case and in the interest of justice, I will take the liberty to reformulate and rearrange the issues formulated by the parties to this cross-appeal as follows:
(i) Whether the learned trial judge was not divested of jurisdiction to try the matter.
(ii) Whether the trial judge was not in error by holding the 1960 Declaration to be valid when it was obvious it was not reregistered in conformity with Section 24 (2) of the Chiefs Edict (as amended) of Ondo State 1984.
(iii) Whether the learned trial judge was right to have declared that there are four ruling houses for Olukakumo of Ikakumo.
The crux of the argument of the learned counsel for the Cross-Appellants on issue No. 1 is that the subject matter before the trial judge was not a Chieftaincy dispute between two contesting parties which is justifiable under Section 236 of the 1979 Constitution but a challenge to the action of the Military Governor pursuant to Section 26 (1) of the Ondo State Chiefs Edict No. 11 of 1984 which was not justifiable under Section 1 (b) (i) and (ii) of the Federal Military Government (supremacy and enforcement of powers) decree No. 13 of 1984.
They argued that from the totality of the evidence adduced before the trial judge, it was obvious that the crux of the Plaintiffs respondents cross respondents case was the approval and the subsequent registration of the 1988 declaration of Olukakumo of Ikakumo chieftaincy.
In another breadth the Cross-Appellants contradicted the above submission when they said that Exhibit ‘D’ was not registered when the cross Respondents suit was originally instituted and could not have constituted a cause of action.
I think the learned Judge was vested with jurisdiction to hear the case, confusion only set in by the amendment to the Cross Respondents pleadings which purportedly brought in Exhibit ‘D’ as a cause of action in the case and the subsequent improper nullification of the said Exhibit ‘D’ by the learned trial judge. If Exhibit ‘D’ did not create a cause of action in the suit it is only logical to say that outside of Exhibit ‘D’, the learned trial Judge had jurisdiction to try the case
Issue No. 1 is resolved against the Cross-appellants.
I need not to say much any longer on issues Nos. 2 and 3, the learned trial judge was clearly wrong by holding the 1960 Declaration to the valid when it was obvious it was not re-registered in conformity with Section 24 (2) of the Chiefs Edict (as amended) of Ondo State 1984 so is the case that the learned trial Judge was equally in error in relation to issue No. 3, when he relied on the non-extant 1960 Declaration Exhibit “A” to declare that there are four ruling houses for Olukakumo of Ikakumo chieftaincy.
Three issues were considered in this cross-appeal. Issue No. 1 was resolved against the Cross-Appellants while issues Nos. 2 and 3 were resolved in favour of the Cross-Appellants.
The cross-appeal succeeds in part. However since Issues No. 2 and 3 that were resolved in favour of the cross-appellants are the key issues in the cross-appeal, none of the reliefs granted by the learned trial judge could be sustained. Consequently, the Judgment of Odunwo J., in suit No. HIW/2/88 is hereby set aside.
I make no order as to costs.
SOTONYE DENTON WEST, J.C.A.: Having carefully gone through the draft before now of lead judgment of my learned brother Mojeed Adekunle Owoade, JCA, I agree entirely with all the reasoning and conclusions reached therein.
Delicate matters such as these that bother on our collective heritage can easily if not handled with reasonable restraint distill into emotional/passionate ventilation. Having diligently gone through the appeal and cross-appeal, it is not lost that the crux of the issue or rather that the whole case of the plaintiff/respondent rest solely or majorly on the validity of the 1960 declaration, which the trial judge robustly albeit, in error relied upon in arriving at his conclusion.
This position held by the trial judge falls like a pack of cards when taken in light of the obvious, that for the 1960 declaration to be valid, it had to be re-registered in conformity with Section 24(2) of the Chiefs Edict (as amended) of Ondo State 1984.
Failure to do this makes the declaration i.e. Exhibit “A” non-extant to declare that there are four ruling houses for Olukakumo of Ikakumo chieftaincy.
Therefore for the reason of the success of the appellants on Issues No.2 and 5, none of the reliefs, declarations, or orders granted by the learned trial Judge could be sustained.
Moreso, since issues no. 2 and 3 is resolved in favour of the cross-appellants, are the key issues, none of the reliefs granted by the trial Judge can be sustained.
Consequently, I agree with my learned brother, and set aside the judgment of Odunmo, J., in Suit No. HIK/2/88 and make no order as to costs.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege to read in draft the lead judgment just delivered by my learned brother OWOADE, JCA. I agree with the reasoning and conclusions reached in the judgment and I also abide by the consequential orders made therein.
Appearances
Gabriel Oluwadare Bodunde for 1st & 2nd AppellantsFor Appellant
AND
Gani Asiru Esq. for 1st, 2nd & 3rd Respondents.
F.S. Akinnibosun Esq. Ministry of Justice, Ondo State for the 4th, 5th & 6th Cross Appellants/Respondents.For Respondent
