OBA ILUFEMILOYE ADESOLA & ANOR v. OBA OLUDELE FALADE-FATILA & ORS
(2014)LCN/7494(CA)
In The Court of Appeal of Nigeria
On Thursday, the 30th day of October, 2014
CA/AK/67/2011
RATIO
ACTION: CAUSE OF ACTION; HOW TO DETERMINE WHETHER OR NOT A SUIT DISCLOSES A CAUSE OF ACTION
In order to determine whether or not a suit discloses a cause of action, and the relief sought, the courts are required to examine the averments in the pleadings and see if they disclose cause of action. Once the statement of claim raises some issues of law or fact calling for determination by the court, the mere fact that the case is weak and not likely to succeed is not ground for striking it out. Thus, a pleading can only be said to disclose no cause of action where it is such that nobody can understand what claim the defendant is required to meet. Idachaba v Ilona (2007) 6 NWLR (Pt.1030) 277; Nicon Ins. Corp. v. Olowofoyeku (2004) 1 NWLR (pt.853) 142; Alalade Oil Plc v. D.E.N.R. Ltd (2004) 1 NWLR (Pt.792) 81. per. MOJEED ADEKUNLE OWOADE, J.C.A.
EVIDENCE: EVIDENCE OF A WITNESS; WHETHER EVIDENCE OF A WITNESS IN AN EARLIER PROCEEDING IN ANOTHER TRIAL IS IRRELEVANT
As a general rule, evidence of a witness in an earlier proceeding in another trial is irrelevant except if it is to be used only to discredit the said witness under cross examination.
The relevancy of the evidence of a witness in a previous proceeding in a subsequent proceeding in proving the truth of the facts therein stated is provided for in section 34 (1) of the Evidence Act Cap. 112 LFN 1990. After laying the necessary foundation or fulfilling the alternative conditions for the absence of such a witness in the main part of section 34 (1) the proviso to the sub-section provides for three (3) other conjunctive conditions.
(a) that the proceeding was between the same parties or their representative in interest.
(b) that the adverse party in the first proceeding had the right and opportunity to cross-examine; and
(c) that the questions in issue were substantially the same in second proceeding. per. MOJEED ADEKUNLE OWOADE, J.C.A.
COURT: POWER OF THE COURT; WHETHER A COURT HAS NO POWER TO MAKE AN ORDER WHICH HAS NOT BEEN ASKED FOR
It is trite that a court has no power to make an order which has not been asked for and which the person against whom it is made had no opportunity for resisting. See Oladunjoye v. Akinterinwa (2000) 4 SC (pt.1) 19; A.G. Federation v. A.I.C Ltd (2000) 6 SC (pt.1) 175; Dyktrade Ltd v. Omnia Nigeria Ltd (2000) 7 SC (Pt.1) 56; Afrotec Technical Services (Nig) Ltd v. MLA & Sons Ltd (2000) 12 SC (Pt.11) 1; Badmus v. Abegunde (2001) 3 WRN 40; Tubonemi V Dikibo (2006) 5 NWLR (Pt.974) 565. per. MOJEED ADEKUNLE OWOADE, J.C.A.
PRACTICE AND PROCEDURE: ORIGINATING SUMMONS; WHETHER AN ORIGINATING SUMMON WILL NOT AVAIL A PARTY WHERE FACTS ARE IN DISPUTE OR RIOTOUSLY
The simple reason for my above position is that the conclusion of the learned trial judge did not tally with any of the questions and/or reliefs claimed by the Appellants. I would have to repeat here that the Originating Summons procedure was wrongly utilized by the parties in this case to fight their cases of supremacy and superiority over chieftaincies. This is because, where facts are in dispute or riotously so as in the instant case, Originating Summons procedure should not avail the Plaintiff and he must come by way of Writ of Summons. In other words, an Originating Summons would not have lied in the first instance to the Claimants Appellants in this case where the proceedings are hostile in the sense of violent dispute. See. Inakoju v Adeleke (2007) 4 NWLR (Pt.1025) 423; Osunbade v. Oyewunmi (2007) All FWLR (Pt.368) 1004. per. MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES:
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
1. OBA ILUFEMILOYE ADESOLA
(THE ALADA OF ADA-OWODE)
2. SUNDAY OGUNNIRAN
(For themselves and on behalf of Ada-Owode Community) – Appellant(s)
AND
1. OBA OLUDELE FALADE-FATILA
(The Apetu of Ipetu-Ile)
(For himself and on behalf of Ipetu-Ile Community)
2. COMMISSIONER FOR LOCAL GOVERNMENT AND CHIEFTAINCY AND COMMUNITY DEVELOPMENT (OSUN STATE)
3. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE (OSUN STATE) – Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of S. O. Falola J. delivered on the 16th day of February 2011 in Suit No. HOS/M.50/2010 in the High Court of Justice, Osun State, Holden at Osogbo.
By Originating Summons dated 22-4-2010, the Claimants Appellants filed this action against the Respondents and prayed the court to determine the following five (5) questions.
1. Whether as contained in the Ijesa North Traditional Council (Establishment Order, of the Osun State of Nigeria Gazette No.6 Vol. 9 dated 28h day of May 1999 the Alada of Ada Owode is not placed above the Apetu of Apetu-Ile in order of precedence in the Obokun Local Government Area of Osun State.
2. Whether as contained in the schedule to the recognized Chieftaincies (miscellaneous provisions) Order of the 2002 Chiefs Law of Osun State Cap. 25 the Alada of Ada Owode is not placed above the Apetu of Ipetu-ile in order of precedence in the Obokun Local Government Area of Osun State.
3. Whether the recognition given to the Alada of Ada-Owode as a beaded crown Traditional Ruler in the schedule to the Chiefs (wearing of beaded crowns) Order of 2002 Chiefs Law of Osun State Cap. 25 is given to the Apetu of Ipetu-Ile in the categorization of the beaded Crown Traditional Rulers in Osun State.
4. Whether on the combined appraisal of questions 1, 2 and 3 above, the Apetu of Ipetu Ile can be said to be superior to or more recognized than the Alada of Ada-owode in order of precedence of Traditional Rulers in Osun State.
5. On the predication of the totality of the judgment of the then Oyo State High Court in the consolidated suit numbers:- HIL/14/78.
Between:
Michael Ojo Jegede & Ors – Plaintiffs
(On behalf of themselves and the entire family of Odofin Abegunde)
Vs
1. Madam Adeyinka –
2. Sunday Ogunniran – (Defendants)
AND
HIL/15/78
Between:-
Michael Ojo Jegede & Ors – Plaintiffs
(On Behalf of Themselves and the Entire family of Odofin Abegunde)
Vs
1. Samuel Onilu –
2. Adekola Adejumo Omo Oba – Defendants
Whether the Alada of Ada-Owode Community can be said to be tenants to the Apetu of Ipetu-Ile and the Ipetu Ile Community.
And the claimant (Appellants) pray for the following reliefs:
1. A Declaration that by the provision of the Ijesa North Traditional Council (Establishment) Order, of the Osun State Nigeria Gazette No. 6 Vol. 9 dated 28th day of May 1999 the Alada of Ada Owode is placed above the Apetu of Ipetu-Ile in order of precedence in the Obokun Local Government Area of Osun State.
2. A declaration that by the schedule to the recognized Chieftaincies (Miscellaneous Provisions) order of the 2002 Chiefs law of Osun State Cap. 25 the Alada of Ada Owode is placed above the Apetu of Ipetu-Ile in Order of precedence in the Obokun Local Government Area of Osun State.
3. A Declaration that the recognition given to the Alada of Ada Owode as a beaded crown Traditional Ruler in the schedule to the chief (wearing of beaded crowns) order of the 2002 Chiefs Law of Osun State Cap. 25 is not given to the Apetu of Ipetu-Ile in the categorization of the beaded Traditional Rulers in Osun State.
4. A Declaration that the Apetu of Ipetu-Ile is not superior to the Alada of Ada Owode.
5. A Declaration that by virtue of the provisions of the Ijesa North Traditional council (Establishment) order, of the Osun State of Nigeria Gazette No. 6 vol. 9 dated 28th day of May 1999 and Chief Laws of Osun State 2002 Alada of Ada Owode is superior to Apetu of Ipetu-Ile in order of precedence of the traditional Rulers in Osun State.
6. A Declaration that Alada of Ada-Owode and Ada-Owode Community are not tenants of Apetu of Ipetu-Ile and Ipetu-Ile Community.
7. An order of perpetual injunction restraining the Apetu of Ipetu-Ile from claiming superiority over the Alada of Ada-Owode.
8. An order of perpetual injunction restraining the Apetu of Ipetu-Ile and the Ipetu-Ile community from asserting landlordism over the Alada of Ada Owode and the Ada-Owode community.
9. An order of perpetual injunction restraining the 2nd and the 3rd Defendants from recognizing or placing the Apetu of Ipetu-Ile above the Alada of Ada-Owode in order of precedence of Traditional Rulers in the Ijesa North and Osun State.
The Appellants case was that they migrated from Ada-Ile in 1930 and were settled at the present Ada-Owode by Owa Obokun of Ijesaland. Their neighbors in Ipetu-Ile Community headed by the 1st Respondent were equally settled in their present location by the said Owa Obokun of Ijesa land. The Appellants Ada Owode community is not a tenant to the 1st Respondent’s Ipetu-Ile. The Alada of Ada Owode had been a beaded crown Oba since 1978 whereas the Apetu of Ipetu-Ile became a beaded crown Oba in 2005. The Alada of Ada-Owode has always been a senior to the Apetu of Ipetu-Ile in order of precedence of the Obas in both Obokun Local Government and Osun State. While the Alada of Ada Owode is a permanent member of the Ijesa North Traditional Council, the Apetu of Ipetu Ile is a rotational member. Also, which the Alada of Ada Owode is a member of the Osun State Traditional Council, the Apetu of Ipetu-Ile is not a member.
The case of the 1st Respondent is that his Ipetu-Ile community granted the Appellants predecessors the land on which they settled in 1930. The Apetu of Ipetu-Ile was recognized as a part II oba by the old Western Region Government in 1958 and was senior to the Alada of Ada Owode between 1958 and 2003. In 2004, however, the Alada of Ada Owode was listed as Number 7 on above him on the precedence list of traditional rulers as published in the Amendment to the Chiefs Law of June 2004.
The 1st Respondent and Ipetu-Ile community protested consequent upon which the Osun State Government set up a one-man judicial panel of inquiry which heard evidence from the parties in the presence of their Counsel and gave its report wherein it recommended that the 1st Respondent “may be considered for placement above” the 1st Appellant on the order of precedence list in Obokun Local Government Chieftaincy Committee.
The 2nd and 3rd Respondents confirmed the setting up of the Judicial panel referred to by the 1st Respondent and its recommendation that the 1st Respondent “may be considered for placement above” the 1st Appellant which recommendation is copied verbatim in the amendment of the Establishment of Ijesa North Traditional Council’s order 1998 published and gazetted in Osun State of Nigeria Gazette No. 9 Volume 19 of 29th June, 2009.
The Appellants initially filed a 63 paragraphs affidavit in support of their Originating Summons dated 22nd April 2010 and attached Exhibits A, B and C. The 1st Respondent filed a counter- affidavit of 43 paragraphs dated 26h July 2010 and Exhibits OCA, OCBI- 5 OCC, OCD and OCE while the 2nd and 3rd Respondents jointly filed their five (5) paragraphs affidavit dated 1st June 2010 and Exhibit “MOJI”.
In reply to the counter-affidavits of the Respondents, the Appellants later filed a Further and Better Affidavit in support of their Originating Summons dated 29th December 2010 and attached Exhibit D.
The Learned trial Judge struck out the said further and better affidavit on the ground that it was not filed within the time allowed by the rules of court.
Parties adopted their written addresses on the 14h day of January 2011 whip judgment in the suit was delivered on the 16th day of February 2011. In the said judgment, the trial court dismissed the claim of the Appellants.
Dissatisfied with the dismissal of their claim, the Appellants initially appealed to this court via a Notice of Appeal filed on the 11th day of April 2011 but later filed another Notice of Appeal date 11th May 2011, filed on the same day containing twelve (12) grounds of appeal.
Learned Counsel for the Appellants abandoned his Notice of Appeal of 11/4/2011 and relied on his Notice of Appeal of 11/4/2011.
Appellants brief of argument dated 17/10/2011 was filed on 18/10/2011 but deemed filed on 8/2/2012.
1st Respondent’s brief of argument dated and filed on 5/10/2012 was deemed filed on 5/11/2012. The brief of argument of the 2nd and 3rd Respondents dated 8/10/2012, filed on 9/10/2012 was deemed filed on 10/10/2012.
Learned Counsel for the Appellants nominated five (5) issues for determination. They are:
1. Whether there was a breach of the constitutional provision of fair hearing as enshrined in section 36 of the 1999 constitution of the Federal Republic of Nigeria (as amended) in the conduct of the proceedings of the trial court in the instant case to vitiate the said proceedings and render the decision arrived therefrom null and void (Grounds 2, 3, 4, 5 and 6).
2. Whether the Appellants had a reasonable cause of action before the trial court (Ground 11).
3. Whether the learned trial judge was right to have relied on the evidence of one Isreal Ogunwale, a witness in an earlier proceeding to hold that there is clear evidence that the Appellants Ada-owode indigenes were granted land upon which they now settle and farm by the predecessor of the 1st Respondent. (Ground 9)
4. Whether there are pieces of cogent or credible evidence to support the finding and holding of the trial judge that the 1st Respondent is senior or superior to the 1st Appellant in order of precedence list of Traditional Rulers in Obokun Local Government Chieftaincy Committee, (Grounds 7, 8 and 10).
5. Whether the learned trial judge was right in dismissing all the nine reliefs sought by the Appellants in their originating Summons (Grounds 1 and 2).
Learned Counsel for the 1st Respondent adopted the issues nominated by the Appellants for determination.
Learned Counsel for the 2nd and 3rd Respondents did not respond to Appellants issues 1 and 2 but considered that Appellants issues 3, 4 and 5 are the issues germane for the determination of the appeal and accordingly adopted Appellants issues 3, 4 and 5.
In this appeal, the submissions of the Appellants would be considered on one side of the scale and those of the 1st Respondent and the 2nd and 3rd Respondents would be taken together as the submissions of the “Respondents” subject to particular emphasis wherever it is necessary. This is for the reason of the shared common interest between the two sets of Respondent i.e. the 1s Respondent and the 2nd and 3rd Respondents and also for the reason of convenience.
On issue 1, Learned Counsel for the Appellants submitted that the learned trial judge applied the wrong procedure of law in striking out the Further and Better Affidavit of the Appellants (Claimants) and thereby denied them their right of fair hearing as enshrined in section 36 of the 1999 constitution of the Federal Republic of Nigeria (as amended). That the Appellants, in reply to the counter-Affidavits of the Respondents filed a Further and Better Affidavit on the 29th day of December, 2010 to which the 1st Respondent objected arguing that it was filed outside the time allowed by the rules of court. But, that the Appellants Counsel argued that under Order 18 Rule 1 of the Osun State High Court (Amended) Civil Procedure Rules, 2008, the said Further and Better Affidavit was filed within time.
Counsel submitted that Order 39 Rule 4 of the Rules of Osun State High Court on which the learned trial judge based his decision in rejecting the adoption of the Further and Better affidavit of the Appellants is inappropriate in this case as it deals with arbitral award. That, assuming reference was to be made to Order 39 Rule 1 (4) of the said rules, on which the Respondents Counsel tried to make a heavy weather, it is equally not apposite to this case as it deals with “Motions and Applications” as clearly indicated on the heading of Order 39 of the rules under consideration.
Learned Counsel for the Appellants submitted that the learned trial judge rightly stated at page 363 of the record that:
“Further and Better Affidavit was filed by the appellants in support of their Originating Summons and attached to it was an Exhibit D and a six page written address of Appellants Counsel which ‘vigorously attacked’ the two counter-affidavits and written address by Counsel to the two sets of Respondents”.
Also, said Counsel, a careful perusal of the said Further and Better Affidavit of the Appellants will show that the depositions of facts contained therein, particularly in paragraphs 2 to 33, constitute the Appellants reply to the counter-affidavits of the Respondents in a suit commenced by originating Summons and not just an ordinary motion or application governed by Order 39 of the rules.
He submitted that the defence of the Respondents was contained in their counter-affidavits while the reply to their defence was the Further and Better Affidavit of the Appellants which was disallowed from being adopted and was wrongly struck out by the learned trial judge.
He further submitted that being a reply, the appropriate rule of the Osun State High Court that determined the filing of the rejected Further and Better Affidavit of the Appellants is Order 18 Rule 1 which stipulates 14 days. Learned Counsel invited us to take judicial notice of Order 15 Rule 1 (3) of the said Rules which, in tandem with the said Order 18 Rule 1 states that a plaintiff will file his reply to a statement of defence or counterclaim of a defence (if any) within the same 14 days. And, also to Order 18 headed “Reply” coming immediately after Order 17 particularly its Rule 16 which deals with the time the counter-affidavit or defence to an Originating Summons (as in this case) shall be filed.
Furthermore, Counsel directed our attention to the fact that the word “Plaintiff” appears in both Orders 15 Rule 1 (3) and 18 Rule 1 of the Rules rather than the word “Applicant” that appears on order 39 Rule 1 (a) of the said Rules.
He submitted that the word “Plaintiffs” is interchangeable with the word “Claimants” (which the Appellants were at the trial court) since they are one and the same. That the Appellants, having initiated an Originating Summons at the trial court could not have been regarded as applicants, moreso when they did not file any motion or application but rather a Further and Better Affidavit in support of their Originating Summons. In essence, the reliance by the learned trial judge on any rule under Order 39 whether order 39 Rule 1 (4) or order 39 Rule 4 to strike out the Further and Better Affidavit of the Appellants is procedurally wrong and unconstitutional.
He submitted that since Plaintiff and Claimant are one and the same, and since Orders 15 Rule 1 (3) and 18 Rule t have ambiguously stated so, the logic of the learned trial judge that both the Plaintiff to a statement of Defence and Claimant to Originating Summons shall not enjoy the same number of days to reply to statement of defence and counter affidavit respectively with respect has no legal foundation.
He submitted that Order 39 Rule 1(4) is not consistent with Order 17 Rule 16 on the filing and reply or further and better affidavit to counter affidavit as erroneously held by the learned trial judge. But rather Order 18 Rule 1 and 15 Rule 1 (3) are the ones consistent with order 17 Rule 16.
Learned Counsel argued that even assuming without necessarily conceding that the appellants had 7 days under the rules to file their Further and Better Affidavit but failed to do so, the learned trial judge should have had recourse to the proviso in order 5 Rule 1 (2) of the Amended Osun State High Court Rules to treat the failure or negligence as mere irregularity which is curable and allow the Further and Better affidavit of the Appellants in order to do substantial justice. He believes there is nothing wrong in giving the Appellants “an extra kilometer” (using the phrase of His Lordship Niki Tobi JSC in Abubarkar v. Yar’ Adua (2008) All FWLR (Pt.404) 1409 in order to do substantial justice.
Counsel argued that the strict adherence by the learned trial judge to the rules of court to strike out the Further and Better Affidavit of the Appellants which was their reply to the Counter-affidavits of the Respondents amounted to the Appellants been denied substantial justice and their fundamental constitutional right to fair hearing. He referred to the cases of Nissan (Nig.) Ltd V Oganathan (2009) All FWLR (Pt.494) 1588 at 1602; Isaq v. Soniyi (2009) All FWLR (Pt.498) 347 at 371-372 and Chukwu V State (2007) All FWLR (Pt.364) 268 at 284 not just for the view that courts have been admonished not to adhere strictly or too much to the rules of court at the detriment of doing substantial justice but also for the proposition that rules of court are subservient hand maids to justice, that fundamental principles of justice take precedence over them.
Learned Counsel submitted that in the instant case, justice was denied the Appellants by a resort to technical rules of procedure by the trial judge. The trial court shut them out from replying to the counter affidavits of the Respondents by striking out their Further and Better Affidavit with the attached exhibit and Counsel written address on same. That the technical procedure relied on by the learned trial judge in coming to his decision was a negation of fair trial as the Appellants were not given a fair hearing which they are entitled to under Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) Learned Counsel referred to the cases of Farajoye v. Hassan (2007) All FWLR (Pt.368) 1070 at 1101; Tyonex Nig. Ltd v. Pfizer Ltd (2011) All FWLR (Pt.564) 175 at 184; Victino Fixed Odds Limited V Ojo (2010) All FWLR (pt.524) 25 at 34 – 35.
He further submitted that having struck out the said Further and Better Affidavit of the Appellants, the learned trial judge based his decision only on the affidavit in support of the Originating Summons and counter-affidavits of the parties with their attached exhibits.
He finally submitted on issue 1 that no impartial observer who could have watched the trial in this case would say that the trial was balanced or fair and that the learned trial judge breached the rule of fair hearing as enshrined in section 36 of the 1999 constitution (as amended).
Learned Counsel for the 1st Respondent on the other hand submitted that what is necessary in the exercise of the right to fair hearing is the opportunity to be heard. The question usually is where a party to action has been given an opportunity to be heard but failed or neglected or refused to utilize same he cannot later be heard to complain of lack of fair hearing.
He referred to the case of Ezeigwe v. Nwawalu (2010) All FWLR (Pt.518) 794 at 731.
He further submitted that fair hearing means affording the parties reasonable and equal opportunity to be heard on all issues that calls for determination in a matter before a court of law. It is not every failure or omission to afford a party a hearing on an issue that would be fatal to the proceedings such a failure or denial of a hearing would only be fatal where a miscarriage of justice was shown to have been occasioned thereby. He referred to the cases of All Peoples Party v Ogunsola (2002) 5 NWLR (Pt.761) 484; Yusuf v. U.B.N Ltd (1996) 6 NWLR (Pt.475) 632; Sosanya v Onadeko (2005) All FWLR (pt.255) 100; Atoyebi v. Attorney-General Oyo State (1994) 5 NWLR (Pt.344) 290; Ibrahim V JSC Kaduna State (1993) 14 NWLR (Pt.584); Citizen International Bank Ltd v. SCOA (2006) All FWLR (Pt.323) 1680; Otuoke v. Philip (2000) FWLR (Pt.20) 762.
Learned Counsel for the 1st Respondent reiterated the events in the court below as follows:
That, at the trial the Appellants initiated the action by filing an Originating Summons, supporting Affidavit and Attachments. In response thereto, the Respondents filed their Counter Affidavit with Counsel Written Address which was deemed properly filed and served by the order of court made in that material respect on 13th December 2010. The Appellant did not file their response to the said Respondents Counter Affidavit until 29th December 2010. The process filed by the Appellants was headed “Further and Better Affidavit to Originating Summons”.
That Counsel to the 1st Respondent had objected to the use of the Further and Better Affidavit to Originating Summons and its Attachment on the ground that it was not filed within seven (7) days envisaged under Order 39 Rule 1 (4) of the High Court of Osun State Amended (Civil Procedure) Rules 2008 and that Counsel had failed, refused and/or neglected to apply for extension of time under Order 44 Rule 4 of the rules of the Lower Court for the regularization of the said process.
That, in reply Mr. Salihu, Claimants Counsel contended that he had 14 days from 13th December 2010 to react to the Counter Affidavit. Mr. Salihu Learned Counsel for the Claimant added in his own words that what he filed was not a Reply (page 364 of record) But a Further and Better Affidavit and that in view of the Public holidays his 14 days has not expired.
Learned Counsel submitted that going by the admission of Claimants Counsel in the open court that what he had filed on behalf of his clients was not a reply but a “Further and Better Affidavit” then the trial judge was justified to have considered his submission and struck out the referred process under Order 39 Rule 1 (4) of the High Court Rules.
Strangely enough, said Counsel, Appellants have now made a U turn and argued in their brief now before this court that what they filed was a Reply and not a Further and Better Affidavit and as such was covered and consistent with the provision in Order 18 Rule 1 of the High Court Rules of Osun State.
Counsel submitted that the Appellants Counsel missed the point because the rule of court is consistent in distinguishing Reply from Counter Affidavit. That while Order 15 Rule 19 (2) (Proviso thereof) are consistent with order 18 Rule 1 on Reply to statement of Defence, Order 17 Rule 16 is consistent with Order 39 Rule 1 (4) on Further Affidavit.
Counsel submitted that Order 33 of the High Court Rules, Osun State also served a caveat when it provides under Rule 4 that “Where a special time is limited for filing affidavits’ no affidavit filed after that time shall be used, unless by the leave of the judge”.
He argued that assuming but not conceding the Appellants had 14 days and not 7 days as held by the trial court, the Further and better Affidavit filed by them on 29th December 2012, after they acknowledged service of the 1st Respondent’s counter affidavit a period of sixteen (16) days instead of the fourteen (14) days envisaged under Order 18 Rule 1 of the Rules and therefore the process is nevertheless incompetent and liable to be struck out.
Counsel referred to the cases of Solanke v. Somefun (1924) All NLR 526; University of Lagos v Aigoro (1958) 1 NWLR (Pt.1) 143 and F.B.N. Plc v T.S.A Industries Ltd (2010) All FWLR (Pt.517) 665 and submitted that Rules of court must be complied with, observed and obeyed.
Learned Counsel submitted further relying on the cases of Mogaji v. Nigerian Army (2008) All FWLR (pt.420) page 623; Orugbo v Una (2002) 16 NWLR (Pt.792) 175 and Chami V United Bank for African Plc (2010) All FWLR (Pt.520) 1287 at 1304 that the fair hearing constitutional provision is designed for both parties in the litigation in the interest of fair play and justice and where a party decides not to utilize the opportunity so offered, he cannot later be heard to complain of lack of fair hearing.
Finally, on issue 1, he submitted referring to the case of Udemah v. Nigeria Coal Corporation (1991) 3 NWLR that the facts of this case do not support the hearing in favour of the Appellants.
In deciding Issue No. 1, a distinction must clearly be made between the legal position canvassed by the parties and its application on the facts and/or the peculiar circumstances of the case. I do not agree with the learned trial judge as a matter of law that the Further and Better Affidavit of the Claimants/Appellants which to all intents and purposes is in the nature of a Reply is covered by the provision of Order 39 Rule 1 (4) nay Order 39 Rule 4 of the High Court (Civil Procedure) Rules 2008 of Osun State. Neither do I agree with the statement of law as stated by the learned trial judge at page 366 of the record that:
“Therefore if order 15 Rule 1 (2) prescribes 42 days for the Defendant to file a defence and Order 17 Rule 16 prescribes half of that number of days (21 days) for the Respondent to originating Summons to file a Counter Affidavit then it is just logical to note that both the plaintiff to a Claimant to Originating Summons shall not enjoy the same number of days to reply to statement of defence and counter affidavit
respectively—”
The position under the High Court (Civil Procedure) Rules of Osun State as recognized by the Learned Counsel for the Appellants is that Order 39 Rule 1 (4) and other rules under this order are applicable only to Motions and Applications while Order 17 Rule 16 comes under the general hearing of “Defence and counter claim”.
Order 15 Rule (18) generally covers pleadings. Order 15 Rule 18 (3) states that the said rule shall also apply to Originating Summons as if they are pleadings. Order 18 Rule 1, coming immediately after Order 17 Rule 16 which governs defence to Originating Summons does not distinguish between defence to statement of claim or originating summons. And, also, the said Order 18 Rule (1) clearly states that a plaintiff that desires to make a reply shall file same within 14 days from the service of the defence. The 14 days allowed by Order 18 Rule 1 for a Plaintiff to reply to the defence of the Claimant accords with the same 14 days allowed him under Order 15 Rule 1 (3) of the High Court of Osun State Amended (Civil Procedure) Rules 2008.
In the instant case, the learned trial judge was wrong to have held that Order 17 rule 16 is consistent with Order 39 Rule 1 (4) on Further Affidavit. Order 17 Rule 16 can only be consistent with order 18 Rule 1 which immediately follows it.
I will reproduce some of the relevant Orders of the High Court (Civil Procedure) Rules of Osun State (as amended) as follows.
Order 15 Rule 1(2)
“A Defendant shall file his statement of defence, set off or counter claim, if any not less than 42 days after service on him of the plaintiffs originating process and accompanying documents”.
Order 15 Rule 1 (3)
“A Plaintiff shall within 14 days service of the statement of defence and counter claim if any, file his reply, if any to such defence or counter claim”.
Order 15 Rule 18 (3)
“This rule shall, so far as applicable, apply to an originating summons and a petition as if the summons or petition, as the case may be, were a pleading or not”
Order 17 Rule 16
“A Respondent to an Originating Summons shall file a counter Affidavit together with all the exhibits he intends to reply upon and a written address within 21 days after service of the originating summons.”
Order 18 Rule (1)
“Where the Plaintiff desires to make a reply, he shall file it within 14 days from service of the defence”.
Order 39 Rule 1 (4)
“The applicant may be served with the written address of the opposing party file and serve an address in reply on point of law within 7 days of being served. Where a counter Affidavit is served on the applicant, he may file Further Affidavit with his reply”
On a proper interpretation of the provisions of the High Court (Civil Procedure) Rules Osun State 2008, while 7 days is required to file a reply on points of law and perhaps also a further affidavit to motions and applications under Order 39 Rule 1 (4), a period of 14 days is allowed to file a Reply Affidavit or a Further and Better Affidavit in reply to a counter affidavit on an Originating Summons by a combined application of the provisions of Order 15 Rule 1 (3) 15 Rule 18 (3) and Order 18 Rule (1) of the said Rules.
In the instant case however, the Appellants suffered one self inflicted set-back which justified the striking out of the Further and Better Affidavit of 29th December 2010 and which on a sober consideration of the facts of the case would easily make one to conclude that the Appellants could not be heard to say that he was deprived an opportunity to be heard, that there was no fair hearing or even that there was any miscarriage of justice.
The Appellants Further and Better Affidavit was filed on 29th December 2010, in response to the Respondents counter Affidavit of 13th December 2010. Clearly, the Appellants Further and Better Affidavit was filed sixteen (16) days and not 14 days envisaged under Order 18 Rule 1 of the Rules of court. In his oral address on the subject matter on page 349 of the record all the Claimants Counsel was able to say on his failure to comply with the Rules of court was this:
“— He contended that he has 14 days to file his Further and Better affidavit, not 7 days, and that in view of the public holidays, his 14 days did not lapse—“.
The learned trial judge made a passing reference at page 367 of record to the failure of the Claimants Appellants Counsel to call his Lordship’s attention to take judicial notice of particular public holidays as indeed expected under the provision of Section 74(3) of the Evidence Act Cap.112 LFN 1990. His lordship said:
“However the Claimants in this suit have submitted through their Learned Counsel, Mr. Salihu that, they are entitled to 14 days to file their Further and Better Affidavit, and that in view of the public holidays within the period, they were within the period, they were within time. On this point, the Claimant ought to make the Arithmetic computation of time to demonstrate in the open court how the public holiday has affected them. It is not within the competence of the court to engage in the research of computation on behalf of the Claimants after the court has risen for the day—“.
The implication of the above fact is that the Claimants Appellants did in fact not comply with filing their Further and Better Affidavit as required by Order 18 Rule (1) which they much relied upon.
In my view, given the above circumstance, the Appellant could not be heard to complain of a denial of fair hearing because the striking out of the Further and Better Affidavit by the learned trial judge was justified in any event.
I agree with the Learned Counsel for the 1st Respondent that Rules of Court must be complied with, observed and obeyed and that non-compliance attract the sanction of incompetency, striking out or dismissal as the case may be.
Issue No.1 is resolved against the Appellants.
On issue 2, Learned Counsel for the Appellant submitted that the originating Summons was taken to interpret the documents stated therein vis-a-vis the order of precedence of or superiority between the Alada of Ada Owode and the Apetu of Ipetu Ile and the ownership of the land in Ada Owode.
He referred to paragraphs 36 to 50 of the Appellants supporting affidavit and the attached Exhibit C where the Appellants deposed to the alleged wrongful acts of the 1st Respondent which gave the Appellants cause of complaint and right of action.
Learned Counsel submitted that it is settled law that in order to determine whether a Plaintiff Claimant has a reasonable cause of action, a court of law should only confine itself to the examination of the facts in the statement of claim of the plaintiff alleging the wrongful act of the defendant which gives the Plaintiff alleging the wrongful act of the defendant cause of complaint and consequent damage.
He referred to the case of Chevron Nig. Ltd v. Lonestar Drilling Nig. Ltd. (2007) All FWLR (pt.386) 633 at 641-642.
That, the law goes further that every cause of action is a reasonable one and it is constituted by the bundle of aggregate of facts which the law will recognize as giving the Plaintiff a substantive right sought. Any act on the part of the plaintiff, or Claimant in this his cause of complaint is a cause of action. And, that a reasonable cause of action is a cause of action with chance of success.
He referred to the case of Chevron Nig. Ltd v. Lonestar Drilling Nig. Ltd (2007) All FWLR (Pt.386) 633 at 641 – 642.
Counsel submitted that the facts deposed to by the Claimants/Appellants which border on the two issues of ownership/tenancy of Ada Owode land and superiority between the Alada of Ada-Owode land and Apetu of Ipetu-Ile confer a reasonable cause of action on the Appellants.
Learned Counsel for the 1st Respondent on the other hand submitted on issue 2 that for there to be a reasonable cause of action the statement of claim must disclose a dispute with the defendant. He referred to the cases of Yusuf V. Akindipe (2000) 5 SCNJ 128; Attorney General of Abia State V Attorney General of the Federation (2005) 6 SCNJ 1.
Counsel submitted that the Appellants failed, refused and/or neglected to disclose in their Originating Summons and Supporting Affidavit that they and the first Respondent had before the institution of their present suit appeared before a Judicial panel of inquiry, which heard evidence from both parties and written submission from their Counsel on the issue of who should be placed first in the order of precedence list of traditional Rulers in Obokun Chieftaincy Committee as between the 1st Appellant and the 1st Respondent.
That, the Appellants also failed to disclose in their supporting Affidavit to Originating Summons, that the judicial panel of inquiry completed its assignment and issued a report recommending the placement over the 1st Appellant on the precedence list of Traditional Rulers in Obokun Chieftaincy Committee. Also, that the Appellants concealed facts from the trial court when they refused to disclose that the report of the Judicial Panel of Inquiry was not only accepted by Osun State Government but has also since been gazetted.
Learned Counsel submitted further that Appellants also failed to state in the processes filed by them that the Ijesa North Traditional Council (Establishment) order contained in the Osun State of Nigeria Gazette No. 6 Vol. 9 Dated 28th day of May 1999 has been amended by Osun State Government Gazette No 9 Vol. 19 which was published on 25th June 1999 long before the Appellants decided to come to the trial court for resolution of issues that had previously been decided against them by the Judicial panel of inquiry.
He submitted that in determining the question whether a claimant’s suit discloses a reasonable cause of action, the court is justified to look into other processes in the case file and see that the issues and reliefs formulated by them had earlier been decided against them and that the Ijesa North Traditional Council (Establishment) Order of 28th May 1999 on which their claim was predicated had in fact been amended by Osun State Government Gazette No. 9 Vol. 9 of 25th June 2009.
Finally on issue 2, 1st Respondent’s Counsel submitted that it is an abuse of process for a Plaintiff (Appellants herein) to re-litigate an identical issue which had been decided against them by the Judicial Panel of Inquiry. The law, he says is that a party cannot benefit from his own mischief.
He referred to the cases of Olaifa V Chairman Ibadan North East Local Government (2009) All FWLR (Pt.455) 1724 at 1735; Progressive Action Congress V INEC (2009) All FWLR (Pt.479) 260 at 325.
He urged us to resolve Issue 2 against the Appellants.
In order to determine whether or not a suit discloses a cause of action, and the relief sought, the courts are required to examine the averments in the pleadings and see if they disclose cause of action.
Once the statement of claim raises some issues of law or fact calling for determination by the court, the mere fact that the case is weak and not likely to succeed is not ground for striking it out. Thus, a pleading can only be said to disclose no cause of action where it is such that nobody can understand what claim the defendant is required to meet.
Idachaba v Ilona (2007) 6 NWLR (Pt.1030) 277; Nicon Ins. Corp. v. Olowofoyeku (2004) 1 NWLR (pt.853) 142; Alalade Oil Plc v. D.E.N.R. Ltd (2004) 1 NWLR (Pt.792) 81.
A perusal of paragraphs 36 to 55 of the claimants Appellants Affidavit on the one hand and paragraphs 10 to 21 on the other reveals the claim of the Claimants Appellants that his right to precedence as a traditional ruler over the 1st Respondent is being threatened by the 2nd and 3rd Respondents and also the Appellant would want to put a stop to the assertion of the 1st Respondent that the Appellant community is a tenant of the 1st Respondent. It is in consequence of the later claim that the Appellant prayed for Relief (6) to the effect:
“6. A Declaration that Alada of Ada-Owode and Ada-Owode community are not tenants of Apetu of Ipetu-Ile and the Ipetu-Ile Community”.
Given the above circumstance, it would not be right irrespective of the weaknesses of the claimants case to suggest as the 1st Respondent did that the Appellants have no reasonable cause of action. The law is that the court must not take into consideration the weakness of a Plaintiff’s claim before determining whether or not a suit discloses a cause of action. What is important is for the court to examine the averments in the pleadings to see if they disclose some cause of action or raise some questions which are fit to be decided by it.
L’Int, L. Ins. Co. Ltd. v Sola Holdings Ltd (2006) 7 NWLR (pt.980) 470.
In the instant case, it may well be that the Claimants Appellants case is weak in some important respects but it nevertheless contains aggregate of facts or circumstances which gives rise to a right to sue and capable of being claimed against the defendants.
See Asaboro v Pan Ocean Oil Nig. Ltd. (2006) 4 NWLR (Pt.971) 595; Adesokan v Adegorolu (1997) 3 NWLR (Pt.493) 261; Emiator v. Nigerian Army (1999) 5 NWLR (Pt.631) 362; Oduntan v Akibu (2000) 7 SC (Pt.11) 106.
Issue No. 2 is resolved in favour of the Appellants.
On Issue No. 3, Learned Counsel for the Appellants submitted that there were no cogent pieces of evidence to support the finding of the learned trial judge that the 1st Respondent’s predecessors settled the Appellants Ada-Owode indigenes on their present land. That the major evidence on which the learned trial judge based his finding was the evidence of one Chief Isreal Ogunwale of Ada Owode in Suit No. HIL/74/93 between Oba Gabriel Oyekanmi Adeniyi (The Alase of Ase) and the A.G Osun State and 2 Ors, a case involving the Ase and Ipetu-Ile communities.
Counsel submitted that the parties in the said case were completely different from the parties in the present case. That, indeed, the Appellants in this case were never a party to the said suit hence they could not be bound by the decision in the said suit.
The law, said Counsel is very clear that evidence of a witness or witnesses in an earlier case cannot be relied upon in another suit by reference to that evidence led in another judgment wherein the evidence was considered.
He referred to the case of Aribo V CBN (2011) All FWLR (pt. 554) 104 at 120. He said evidence of a witness in an earlier proceeding is not relevant in another trial except if it is to be used only to discredit the said witness under cross-examination. He referred to the case of Oguntayo V Adelaja (2009) All FWLR (Pt.495) 1626 at 1651.
Learned Counsel submitted that in the instant case, the said Chief Ogunwale whose evidence was heavily relied upon in the finding of the trial judge was not a party in the earlier suit neither was the Ada-Owode (the Appellants town) on which he was said to have given evidence also a party. Also, that, the issue in the proceedings in which he (Ogunwale) gave evidence was not substantially the same with the issues in the proceedings at the trial court.
In effect, said Counsel, the learned trial judge, was in error to have based his finding on the evidence of the said Ogunwale in the earlier proceeding contrary to the proviso in section 34 of the Evidence Act particularly those contained in section 34 (1) (a) (b) and (c).
Further, said Counsel, the said Chief Ogunwale was not called to come and testify before the trial court in the instant case. So the issue of his evidence in the earlier suit being used under cross examination to discredit him does not arise. The suit on appeal was initiated by originating Summons.
Counsel urged us to hold that the finding of the trial judge that the Appellants were granted the land now known as Ada-Owode on which they settle and farm is not supported by any cogent evidence. The reliance by the learned trial judge on the evidence of Israel Ogunwale in an earlier proceeding to which the Appellants were not a party to arrive at the finding is erroneous and unacceptable in law.
Learned Counsel for the Respondents on the other hand submitted first, through the 1st Respondent that the decision of the trial court on this issue was based not only on the evidence of Chief Isreal Ogunwale as contained in Exhibit ‘OCB’ before the court but mainly on the affidavit evidence before the court as can be gleaned from paragraphs 7 to 16 of the defendant (now 1st Respondent). He argued that it is noteworthy that the Appellants did not deny or controvert in anyway the averments contained in paragraphs 7 – 16 of the 1st Defendant’s counter Affidavit before the trial court.
He added that the court has a duty to act on such unchallenged and uncontroverted averments without hesitation.
He referred to the cases of Lijadu v. Lijadu (1991) 1 NWLR (pt.169) 627; Globe Fishing Ltd V Coker (1990) 7 NWLR (Pt.162) 165; Ajewole v. Adetimo (1996) 2 NWLR (pt.431) 391; NAB Ltd v Abdullahi (2000) 6 NWLR (Pt.662) 549.
1st Respondent’s Counsel concluded on issue 3, that the learned trial judge was right to have relied on the Affidavit evidence before him to hold that “There is clear evidence that the Claimants Ada-Owode indigenes were granted land upon which they now settle and farm by the predecessors of the 1st Defendant. I accept the piece of evidence.”
The Respondents urge us to resolve issue 3 against the Appellants.
In deciding issue 3, it would seem that the Respondents are not seriously contesting that the learned trial judge could not have relied on the evidence of a witness Chief Isreal Ogunwale of Ada-Owode in suit No. HIL/74/93 to come to that serious conclusion that “—–Ada-Owode indigenes were granted land by the 1st Respondent” when in fact as pointed out by the learned Counsel for the Appellants the conditions under section 34 (1) of the Evidence Act were not fulfilled.
As a general rule, evidence of a witness in an earlier proceeding in another trial is irrelevant except if it is to be used only to discredit the said witness under cross examination.
The relevancy of the evidence of a witness in a previous proceeding in a subsequent proceeding in proving the truth of the facts therein stated is provided for in section 34 (1) of the Evidence Act Cap. 112 LFN 1990. After laying the necessary foundation or fulfilling the alternative conditions for the absence of such a witness in the main part of section 34 (1) the proviso to the sub-section provides for three (3) other conjunctive conditions.
(a) that the proceeding was between the same parties or their representative in interest.
(b) that the adverse party in the first proceeding had the right and opportunity to cross-examine; and
(c) that the questions in issue were substantially the same in second proceeding.
Obviously, none of the above conditions was fulfilled in the instant case before the learned trial judge acted and relied on the evidence of the said Chief Isreal Ogunwale in Suit No. HIL/74/93 to come to the conclusion that the Respondent granted land on which the Appellants settled.
The Respondents however further argued that the conclusion of the learned trial judge was not just based on the evidence of Chief Isreal Ogunwale in Suit No.HIL/74/93 but also on the uncontradicted and unchallenged paragraphs of the counter affidavit of the Respondents.
At this stage, it became clear to me that parties and counsel in the court below do not understand the nature and limitations of the Originating Summons proceedings brought by the Appellants and acceded to without objections by the Respondents. The Claimants Appellants claim is by originating Summons and not by Writ of Summons, the Respondents do not have any counter-claims as against the questions for determination and the reliefs prayed for by the Appellants. The implication of the above is that the jurisdiction of the court on the issue on ground was limited to the question and relief asked and prayed for on the originating summons by the Appellants.
At page 2 of the record, question 5 for determination was for the court to determine:
“On the predication of the totality of the judgment of the then Oyo State High Court in the consolidated Suit numbers HIL/14/78 and HIL/15/78 whether the Alada of Ada-Owode Community can be said to be tenants to the Apetu of Ipetu-Ile and the Apetu Community”.
The above question tallied at page 4 with Claimants Appellants Relief No. 6 to wit:
“6. A Declaration that Alada of Ada-Owode Community are not tenants of Apetu of Apetu-Ile and the Ipetu-Ile Community”.
Going through the record of proceedings, there is no doubt that both the question 5 and the Relief No. 6 claimed under it are rendered hypothetical for the simple reason that neither of the pafties to the instant suit not their representatives in interest were parties to the consolidated suit Nos. HIL/14/78 and HIL/15/78 on which the question was based. In the absence of any form of counter claim by the Respondents, the only possible answer in the circumstance to that question and the Relief claimed under it is that both of them are hypothetical because neither the parties nor the subject matter were the same in the previous suit and the present one and perhaps also that the court does not deal with hypothetical issues or pronounce on academic issues.
See Akinfolarin V Akinola (1994) 3 NWLR (pt.355) 667; Dike V Nzeka (1986) 4 NWLR (pt.34) 144; Ishola v. Ajiboye (1994) 6 NWLR (pt.352) 539.
By the same token, such an answer by a trial court on the question and relief of the Appellants could not have extended to a declaration by the learned trial judge that “there is clear evidence that the Claimants Ada-Owode indigenes were granted land upon which they now settle and farm by the predecessors of the 1st Defendant” not even when the counter affidavit of the Respondents are uncontradicted and unchallenged. The reason for this position of the law is first, that a defendant is not obliged to challenge or contradict a valueless deposition in an affidavit.
See. Odutola v. Paper Sack Nig. Ltd. (2006) 18 NWLR (Pt.1012) 470.
Secondly, in the instant case the Appellants merely asked for the interpretation of the consolidated judgments in suit No. HIL/14/79 and HIL/15/78 and none of the parties asked the court to consider any fresh evidence on the landlord and tenant relationship between the 1s Respondent and the Appellants.
It is trite that a court has no power to make an order which has not been asked for and which the person against whom it is made had no opportunity for resisting.
See Oladunjoye v. Akinterinwa (2000) 4 SC (pt.1) 19; A.G. Federation v. A.I.C Ltd (2000) 6 SC (pt.1) 175; Dyktrade Ltd v. Omnia Nigeria Ltd (2000) 7 SC (Pt.1) 56; Afrotec Technical Services (Nig) Ltd v. MLA & Sons Ltd (2000) 12 SC (Pt.11) 1; Badmus v. Abegunde (2001) 3 WRN 40; Tubonemi V Dikibo (2006) 5 NWLR (Pt.974) 565.
In the absence of a previous suit or a fresh suit dealing with the tenancy relationship of the Appellants and the 1st Respondent the learned trial judge was wrong to have pronounced on their relationship having regard to the limitation imposed by the question for determination and the reliefs sought by the Appellants in the Originating Summons.
Issue No. 3 is resolved in favour of the Appellants.
On issue 4, Learned Counsel for the Appellants contends that there is no cogent evidence reflecting the precedence or superiority of the 1st Respondent over the 1st Appellant in the ranking of Obas in Obokun Local Government of Osun State.
He submitted that the learned trial judge did not carefully consider all the pieces of evidence placed before arriving at his finding that the 1st Respondent is superior to or takes precedence over the 1st Appellant in the ranking of Obas in Obokun Local Government Area of Osun State. He referred to the case of Onisaodu v. Elewuju (2006) All FWLR (Pt.328) 676 and submitted that the learned trial judge only picked and chose the evidence to be assessed.
Counsel submitted that the learned trial judge dwelt so much and based his findings on repealed laws whereas the relevant updated laws particularly (1) The Ijesa North Traditional Council Establishment) Order, Osun State of Nigeria Gazette No. 6 Vol. 9 dated 28th day of May, 1998 (2) Schedule to Recognized Chieftaincies (miscellaneous provision) order of the 2002 Chief Law of Osun State Cap. 25, (3) Schedule to the Chiefs (Wearing of Beaded Crown) Order of the 2002 Chiefs Law of Osun State Cap 25 referred to by the Appellants were not considered at all in his evaluation.
Furthermore, said Counsel, the learned trial judge’s finding on the issue of precedence or superiority between the 1st Appellant and the 1st Respondent Obas did not take into consideration the admission by the 1st Respondent in paragraph 21 of his counter-affidavit on pages 100 of the records that the 1st Appellant “became the Number 7 on the seniority list of Traditional Rulers as published in the Amendment to the Chief Law of June 2004” and the evasive denial/admission by the 2nd and 3rd Defendants of the facts deposed to in paragraphs 1 to 49 and 53 of the Appellants affidavit in support of the Originating Summons which is contained in paragraph 2 of the affidavit of Kareem Adekilekun Tijani on page 66 of the records.
That, even assuming that by the deposition of the 1st Respondent in paragraph 18 of his counter affidavit “that the Chiefs Law for the periods 1958 up to 2003, recognized and confirmed the seniority of Apetu-Ile to the Chieftaincy of Alada of Ada-Owode”, the amendment to the Chiefs Law of June 2004 had put paid to that. In essence the Recognized Chieftaincy in Western Region Chiefs Law 1958 (WRLN) and Chiefs Law Delegation of functions 1959 etc. which stood repealed as at 2004 when the amendment was made still stand repealed. None of them can be said to be superior to the law on wearing of Beaded Crown. Section 32 (a) Chiefs Law Cap. 25 Laws of Osun State cannot come to their aid. The implication therefore, said Counsel is that since 2004 the Alada of Ada-Owode has assumed seniority over the Apetu of Ipetu-Ile. He submitted referring to the cases of Osunbor V Oshiomole (2000) All FWLR (Pt.463) 1366 at 1405; Elgba v. N.U.T (2008) 5 NWLR (Pt.1081) 604 that the presumption is that no man would declare anything against himself unless it was true.
He argued that the Appellants are entitled to rely on this vital admission by the Respondents to sustain the claim of the superiority or seniority of the 1st Appellant to the 1st Respondent.
Furthermore, said Counsel, the learned trial judge should have taken judicial notice of the relevant laws cited by the Counsel to the Appellants and consider their relevance to the case on appeal rather than jettisoning them under the pretext that they were not attached as exhibits to the Originating Summons. All the courts in the land are enjoined by the provisions of section 74 of the Evidence Act cap. 112 (now cap E14) LFN 2004 to take judicial notice of such laws. He referred to the case of Ado Ibrahim & Co. Ltd. V B.C.C. Ltd (2007) All FWLR (Pt.370) 1381 at 140.
Counsel submitted referring to the case of S.P.D.C. Nig. Plc V Dino (2007) All FWLR (Pt.362) 1942 at 1958 that once a particular law, legislation or enactment provides for a fact to be taken judicial notice of, the court is mandated to take judicial notice of that fact in the manner and extent to which the law or legislation or enactment so provides.
It is not even correct said Counsel, as erroneously stated in the judgment of the trial judge that all the statutes referred to by the Appellants were not exhibited. That the Appellants duly attached the Ijesa North Traditional Council (Establishment) Order of Osun State of Nigeria Gazette No. 6 Vol. 9 dated 28h day of May 1999 as Exhibit ‘B’ and referred to same in paragraph 32 of the affidavit in support of Originating Summons but that the said Exhibit ‘B’ was not evaluated by the learned trial judge.
Counsel argued that neither the “Report of the Judicial Panel of Inquiry into the Amendment of the Ijesa North Traditional Council’s Order 1998” submitted to the Osun State Government in June 2008 (Exhibit OCC of the 1st Respondent contained on pp. 165 – 182 of the records) nor the “AMENDMENT OF THE ESTABLISHMENT OF THE NORTH TRADITTONAL COUNCIL’S ORDER, 1998”
Published and gazetted in the Osun State of Nigeria Gazette No. 9 Volume 19 of 29th June 2009 (Exhibit MOJI of the 2nd and 3rd Defendants counter affidavit on pages 68 – 85 of the records) amended the position of seniority of the 1st Appellant over the 1st Respondent.
He submitted that the said amendment has not changed the position of precedence of the 1st Appellant over order of precedence so it is not correct as erroneously found and held by the learned trial judge that the order which the Appellants are seeking to preserve was amended long before they instituted this case. Neither can it be said that the gazette under consideration reflects the precedence of the 1st Appellant.
He argued that the act the Appellants complained of has not been completed hence they are still entitled to both declaratory and injunctive reliefs.
Finally on issue 4, Counsel urged us to hold that all available evidence confirms the superiority or seniority of the 1st Appellant over the 1st Respondent in the order of precedence of traditional rulers in Obokun Local Government Area of Osun State.
Learned Counsel for the Respondents insisted that the learned trial judge properly evaluated the evidence before him in coming to the conclusion that the 1st Respondent takes precedence over the 1st Appellant in the order of seniority of Obas In the Obokun Local Government Area of Osun State.
More especially from the 2nd and 3rd Respondents, it was submitted that it is an undisputed fact that the placement in the list of recognized chieftaincies under part II in the Chiefs Law of all the states, Osun State inclusive, informed the status of precedence to be enjoyed by such Oba over the Obas under the minor status.
That, the fact that the Appellant is a beaded crown wearing Oba without more does not confer any superior status on him especially when it comes to the issue of order of precedence. Further, that the placement of traditional rulers on the order of precedence list as evidenced by section 32 (a) of the Chiefs Law of Osun State 2002 is based on the time of recognition of each chieftaincy and not at all on the time of wearing of crown. The 2nd and 3rd Respondents finally submitted on issue 4 that by the approval of the recommendation of the Judicial Panel of Inquiry and subsequent publication and gazetting of the Amendment of the Ijesa-North Traditional Council’s Order 1998, the earlier position of seniority of the 1st Appellant over the 1st Respondent is automatically amended.
Here again, in all the circumstances of the case, I think it was wrong for the learned trial judge to have held and/or declared that from the available evidence the 1st Respondent is senior or superior to the 1st Appellant in order of precedence list of Traditional Rulers in Obokun Local Government Chieftaincy Committee.
The simple reason for my above position is that the conclusion of the learned trial judge did not tally with any of the questions and/or reliefs claimed by the Appellants. I would have to repeat here that the Originating Summons procedure was wrongly utilized by the parties in this case to fight their cases of supremacy and superiority over chieftaincies. This is because, where facts are in dispute or riotously so as in the instant case, Originating Summons procedure should not avail the Plaintiff and he must come by way of Writ of Summons. In other words, an Originating Summons would not have lied in the first instance to the Claimants Appellants in this case where the proceedings are hostile in the sense of violent dispute.
See. Inakoju v Adeleke (2007) 4 NWLR (Pt.1025) 423; Osunbade v. Oyewunmi (2007) All FWLR (Pt.368) 1004.
Going back to the said issue No. 4, the questions for determination in the Originating Summons of the Appellants which in my opinion led to that perverse conclusion are contained on page 2 of the record as follows:
1. Whether as contained in the Ijesa North Traditional Council (Establishment) Order of the Osun State of Nigeria Gazette No. 6 Vol. 9 dated 28th day of May 1999 the Alada of Ada-Owode is not placed above the Apetu of Ipetu-Ile in order of precedence in the Obokun Local Government Area of Osun State.
2. Whether as contained in the schedule to the recognized Chieftaincies (miscellaneous provisions) order of the 2002 Chiefs Law of Osun State Cap. 25 the Alada of Ada-Owode is not placed above the Apetu of Ipetu-Ile in order of precedence.
3. Whether the recognition given to the Alada of Ada-Owode as a beaded Crown Traditional Ruler in the schedule to the Chiefs (wearing of beaded crowns) order of the 2002 Chiefs law of Osun State Cap.25 is given to the Apetu of Ipetu-Ile in the categorization of the beaded crown Traditional Rulers in Osun State.
4. Whether on the combined appraisal of questions 1, 2 and 3 above, the Apetu of Ipetu-Ile can be said to be superior to or more recognized than the Alada of Ada-Owode in order of precedence of Traditional Rulers in Osun State.
In my humble opinion, from all the facts placed before the learned trial judge in relation to the questions posed for determination by the Claimants Appellants the more appropriate answers to each of the questions are as follows:
1. In terms of question No.1 the Ijesa North Traditional Council (Establishment) order of Osun State of Nigeria Gazette No. 6 Vol. 9 dated 28th day of May 1999 did not mention the words “placed above” or “Order of Precedence” However, the name of the Alada of Ada-owode appears under (g) in the column of permanent members in the Obokun Local Government of the Ijesa North Traditional Council while the name of the Apetu of Ipetu-Ile appears under (b) of the said Rotational members of the council. This is without prejudice to item (iv) in the Amendment of the Establishment of the Ijesa North Traditional Council’s order 1998 published and gazetted in the Osun State of Nigeria Gazette No. 9 volume 19 of 29th June 2009 to the effect “that his Royal Majesty, the Apetu of Ipetu-Ile may be considered for placement above his Royal Majesty, the Alada of Ada-Owode on order of precedence list of Obas in Obokun Local Government Chieftaincy Committee in line with the findings of the panel in paragraph 4.3
and on page 10 of the report”.
2. In terms of question No. 2 that the schedule to the Recognized chieftaincies (miscellaneous provisions) order of the 2002 chiefs Law of Osun State cap, 25 did not mention the words “placed above” or “order of precedence”. However, the name of the Alada of Ada-Owode appears as No, 8 under Obokun Local Government while the name of Apetu of Ipetu-Ile appears as No. 11 on the same list.
3. In terms of question no. 3 the name of the Alade of Ada-Owode appears as no. 17 as a Beaded Crown Traditional Ruler in the schedule to the chiefs (wearing of beaded crowns) order of the 2002 chiefs Law of Osun State Cap. 25. This is without prejudice to the proven status of the Apetu of Ipetu-Ile as a beaded crown traditional ruler.
4. In terms of question No. 4, on a combined appraisal of the answers to questions 1, 2 and 3 above, question No. 4 is hypothetical and academic.
In view of my above answers, the learned trial judge was wrong to have held or declared that the 1st Respondent is senior or superior to the 1st Appellant in order of precedence list of Traditional Rulers in Obokun Local Government Chieftaincy Committee.
Issue No. 4 is resolved in favour of the Appellants.
The question which the parties attended to in Issue No. 5 is whether the learned trial judge was right in dismissing all the nine reliefs sought by the Appellants in their Originating Summons. In tackling the above question, the parties have virtually repeated their submissions on the evaluation of evidence by the learned trial judge which they had already done in the treatment of issues 1 – 4. It is for this reason that I refrain from reproducing the submissions of Counsel on issue No. 5.
However for me to be able to answer the question in Issue No. 5, I need to give an answer to Appellants question No. 5 in the questions for determination in the Originating Summons having regard to my treatment of Issue No. 3 which was decided in favour of the Appellants.
In issue No. 3, the learned trial judge was wrong to have declared that the Appellants Ada-Owode indigenes were granted land by the predecessors of the 1st Respondent. This is again because the question posed by the Appellants does not warrant such an unrelated answer.
The proper answer for Claimants Appellants question No. 5 in his questions for determination on the Originating Summons would be:
5. In terms of question No. 5, it is hypothetical and academic for this court to interpret the judgment in consolidated suits No.HIL/14/78 and HIL/15//78.
Now, having regards to the answers that I have now given to Appellants Questions Nos. 1-4 in the consideration of issue No. 4 and to Appellants Question No. 5 in the consideration of issue No. 5, I have no hesitation to hold that the learned trial judge was indeed right to have dismissed all the Nine Reliefs claimed by the Appellants.
Issue No. 5 is resolved against the Appellants.
In this appeal, Issues Nos. 2, 3 and 4 have been resolved in favour of the Appellants.
Issue Nos. 1 and 5 have been resolved against the Appellants. The appeal is accordingly allowed in part.
In consequence, the portion of the judgment of the learned trial judge at page 373 of the record which resolved all the five questions raised by the Claimants against them is set aside. In substitution, the answers to Appellants Questions Nos. 1 – 4 are as I have provided in my treatment of issue No. 4 and the answer to Appellants Questions No. 5 is as I have provided in my treatment of issue No. 5.
However, all the Nine (9) Reliefs of the Claimants/Appellants remain dismissed.
The parties to this appeal are to bear their respective costs.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: Having been availed the benefit of a preview of the draft Judgment just delivered by My Lord Owoade JCA I am totally in agreement with the said leading Judgment that this appeal should fail.
A perusal of the reliefs sought which are in the main declaratory in character, shows that they stem from an amalgam of a desire to have the relevant chieftaincies (miscellaneous provisions) order of the 2002, Chiefs Law of Osun State, Cap.25 interpreted as it relates to the hierarchical placement on the legislative document i.e. the law and the thought or contention that one of the listed Chiefs was superior to the other in status and order of precedence.
That Question is, without doubt, an academic question and speculative in nature. There was no life issue for determination in affirmation or otherwise of the question before the trial court.
It is trite that cases are not decided outside their factual milleau.
The placement of titles or Chieftaincies in a Legal Document or Legislation does not change that fact or constitute it as an existing or imminent controversy or dispute.
There was, therefore, no imminent, present or clear danger or threat to or infringement of any rights or violation of obligation by any Respondent at the trial court, disclosed.
The dismissal of the suit by the trial court was proper. I concur with My Lord, Mojeed Adekunle Owoade, JCA in dismissing the Appeal as relating the dismissal of all the reliefs claimed at the trial, and with a variation of the answers as made by His Lordship.
JAMES SHEHU ABIRIYI, J.C.A.: I had the privilege of reading in advance the draft of the judgment just delivered by my learned brother MOJEED ADEKUNLE OWOADE, JCA. He has exhaustively and ably dealt with all the issues for determination. I have nothing more to add.
I too allow the appeal in part.
I abide by all the consequential orders made in the lead judgment including the order as to costs.
Appearances
Prince Adesoji Olaoba Efuntayo For Appellant
AND
Osamwonyi Ogbewe Esq. For Respondent
