ALHAJI JIMOH OLAJUWON v. CHIEF MUSTAPHA ADELEYE & ORS
(2019)LCN/13396(CA)
In The Court of Appeal of Nigeria
On Friday, the 31st day of May, 2019
CA/IB/123/2014
RATIO
APPEAL: WHEN THE APPELLATE COURT WILL NOT INTERFERE IN THE DISCRETION OF THE TRIAL COURT
The finding of fact in my view and opinion is not perverse, therefore as an Appellate Court there is no legal basis or justification to disturb the finding of fact which is hereby confirmed by me. See Abusomwan v. Mercantile Bank Ltd (1987) 3 NWLR (pt. 60) 196, Omoregie v. Idugiemwanye (1985) 2 NWLR (pt. 5) 41 and Nwokoro v. Nwosu (1994) 4 NWLR (pt. 337) 172.PER ABUBAKAR MAHMUD TALBA, J.C.A.
PRELIMINARY OBJECTION: IMPORTANCE
Now it is settled law that where there is a preliminary objection against a suit, case or appeal, it is always neater to decide that objection first before delving into the main suit/appeal. See Odiase v. Agho (1972) 1 All NLR (pt. 1) 170, Fadiora v. Gbadebo (1978) 3 SC 219 and Ndigwe v. Nwude (1999) 11 NWLR (pt. 626) 314.PER ABUBAKAR MAHMUD TALBA, J.C.A.
JUSTICES
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria
Between
ALHAJI JIMOH OLAJUWON Appellant(s)
AND
CHIEF MUSTAPHA ADELEYE & ORS. Respondent(s)
ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): The Respondents as Claimants before the lower Court instituted an action vide the Writ of Summons and Statement of Claim dated and filed on the 5th June, 2009. Pursuant to the Order of Court granted on the 17th December, 2010, the amended statement of claim was further amended. Whereof the Claimants/Respondents claim against the Defendants/ Appellants as follows:
(1) DECLARATION that the Anagos who are the descendants of the Original/early settlers of Alari Town are the people entitled to produce the Bale or Oba of Alari in accordance with the native laws and customs and tradition of Alari Town.
(2) DECLARATION that the Eyo Iree represented by the Defendants are not entitled under native laws and customs of Alari to produce Bale or Oba of Alari.
(3) DECLARATION that the 1st Claimant being a descendant of the original settler of Alari and the substantive Bale of Alari is the person entitled to be upgraded and become the oba of Alari in accordance with the native laws, customs and tradition of Alari Town.
(4) Perpetual injunction restraining the
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Defendants and his calm of Eyo Iree from producing or attempting to produce or present himself or themselves or be installed as Oba of Alari.
The Defendant filed his amended statement of defence on the 31st May, 2012. The Claimants filed their further amended reply to the statement of defence on the 17th December, 2010.
At the hearing before the lower Court, the Claimants called two witnesses and the Defendant called three witnesses. Copious Exhibits were tendered and admitted in evidence as Exhibits A, B, B1, to B5, C, D and D1, E, F, G, G1 and G2, H, J, K and L. See pages 79 to 102 of the records.
At the conclusion of all the evidence, oral and documentary, the learned trial Judge after the adoption of addresses of counsel, delivered a considered Judgment on the 15th February, 2013. The learned trial Judge granted the Claimants Reliefs as contained on pages 260 ? 261 of the record. He awarded a cost of N25,000 in favour of the Claimant against the Defendant.
In reaching his Judgment, the learned trial Judge has expressed himself at page 260 ? 261 of the record, inter alia as follows:
It is trite that a Claimant
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for declaration must succeed on the strength of his case and not on the weakness of the Defendant, except where there are averments and evidence of the Defendant which supports his case. See Akinola v. Oluwo & Anor (1962) 1 All NLR 224 and Kodilinye v. Odu 2 WACA 336; in this case, I find the evidence of the Claimant through his witnesses substantially in line with his pleadings credible and amply supported by the DW1 and DW2 both elders in Alari.
On the other hand, the evidence of the Defendants witnesses particularly under cross examination not only materially contradicts the case of the Defendant it exposed the lies in it and make it worthless. Having regard to the totality of the evidence led in this case, I find the Claimant evidence more credible and weightier than the Defendants.
The Claimants Claim succeeds in its entirety and it is ordered as follows:
(a) To (e) ..
The Defendant was not satisfied with the Judgment. Aggrieved with the Judgment, the Defendant filed an appeal to this court vide a notice of appeal filed on 4th April, 2013. See pages 262 ? 268 of the records.
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The notice of appeal contain six grounds of appeal.
At the hearing of this appeal, the Respondents counsel Olawole. O. Orojo informed the Court that he has filed a notice of preliminary objection on 18 January, 2018. And he argued the preliminary objection in the Respondents brief at page 4 paragraph 4.0 to page 10 paragraph 5.49.
The Appellant counsel Mr. Banmeke informed the Court that in Response to the preliminary objection he filed a reply brief on 21st May, 2018. The Appellants counsel adopted his brief filed on 8th December, 2017 and the Reply brief filed on 21st May, 2018. Equally the Respondent counsel adopted his brief filed on 18th January, 2018 and it was deemed properly filed and served on 21st May, 2018.
In the Appellants brief, four (4) issues were distilled for the determination of this appeal, thus:
(1) Considering the fact and circumstances of this case, whether the non ? compliance with the mandatory provisions of Sections 23 and 25 of Chiefs law of Ogun State by the Claimants/Respondents does not deprive the trial Court the pre ? requisite jurisdiction to entertain the suit as not properly initiated and liable
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to be struck out Ground 2 of the grounds of appeal.
(2) Whether or not the Claimants/Respondents case at trial was properly constituted in view of non-joinder of approving authorities in relation to the appointment of Ogiyan of Alari Town and whether the trial Court?s jurisdiction was not wrongly assumed ground 3.
(3) Whether the trial Court rightly found in favour of the Claimants/Respondents against the Appellant in view of the evidence placed before the Court ? Ground 4 & 5.
(4) Whether the trial Court rightly rejected the instrument/letter of appointment of the Appellant as Ogiyan of Alari Town. Ground 6.
In the Respondents brief two issues were formulated for the determination of this appeal thus:
1. Whether the lower Court had jurisdiction to entertain the matter having regard to the pleadings and evidence before the Court.
2. Whether the lower Court was right in entering Judgment for the Respondent having regard to the pleadings and evidence before the Court.
Now it is settled law that where there is a preliminary objection against a suit, case or appeal, it is always neater to decide
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that objection first before delving into the main suit/appeal. See Odiase v. Agho (1972) 1 All NLR (pt. 1) 170, Fadiora v. Gbadebo (1978) 3 SC 219 and Ndigwe v. Nwude (1999) 11 NWLR (pt. 626) 314.
There are six (6) grounds of objection thus;
(1.) Ground one of the Grounds of Appeal is incompetent because it did not arise from the Judgment under appeal.
(2.) Ground two is incompetent because the particulars therein are not accurate and or did not relate to the grounds of appeal.
(3.) Ground three is incompetent because the particulars therein are not accurate and or did not relate to the grounds of appeal.
(4.) Ground four is incompetent because it is a ground of mix law and fact and no leave of Court was obtained to argue same.
(5.) Ground five is incompetent because it is argumentative.
(6.) Ground six is incompetent because it is a ground of mix law and fact and no leave of court was obtained to argue same.
Argument on the preliminary objection
The Respondent counsel while arguing on ground one, he stated that the Appellant having not argued the said ground of appeal in his brief of argument, the
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Appellant is deemed to have abandoned same. It is settled principle of law that Grounds of Appeal from which no issue for determination is distilled are deemed abandoned, and are struck out. See Purification Technique Ltd v. Jubril (2012) 18 NWLR (pt. 1331) 109, Onifade v. Olayiwola (1990) 7 NWLR (pt. 161) 130, Egbe v. Yusuf (1992) 6 NWLR (pt. 245) 1 and Ogbuanyinya v. Okudo (No. 2) (1990) 4 NWLR (pt. 146) 551. Ground one is accordingly struck out.
The Respondents grouse on Ground two and three of the Grounds of Appeal is that the particulars thereunder are not accurate. And there is a misconception of the issues in dispute before the lower Court. And that the second particular supplied under Ground three of the Grounds of Appeal which is on joinder or non-joinder of parties did not flow from the Judgment of the lower Court under appeal.
The Appellants counsel submitted that these grounds of appeal are challenging the jurisdiction of the trial Court to entertain the Respondents suit in view of their non-compliance with the condition precedent as prescribed by the Chiefs law of Ogun State and improperly Constitution of the case for non-joinder of the
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approving authorities. The Appellant counsel submitted that even without their particulars the grounds of appeal are clear and unambiguous as the Respondent cannot pretend not to understand the complaint of the Appellant under these grounds. The learned Counsel referred to the dictum of Peter-Odili JSC in the case of Ameen v. Amao (2013) All FWLR (pt. 682) 1663at 1671. The learned jurist stated thus:
?It needs be said that the argument that there are no particulars would render the ground of appeal void and of no effect cannot fly for what is needed is that the other party knows precisely what is in contest on appeal. Therefore in this case in hand, where the ground earlier quoted had left no room for doubt as to what the dispute is or said differently within the ground are embedded the explanation then the objection cannot hold;UBA Ltd and Anor. V. Achoru (1990) 6 NWLR (pt. 156) 254 (1990) 10 SCNJ 17 at 35 and Shyllon v. Judith Asein (1994) 6 SCNJ (pt. 11) 285 at 295 ..?
It is important to recall that it is well settled principle having regard to the very many decided cases of this Court and the Apex Court that the word
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jurisdiction means the authority which a Court has to decide matters before it or to take cognizance of matter presented before it for its decision. The issue of jurisdiction is fundamental to any proceedings and so it can be raised at any stage of the proceedings on appeal and even for the first time in the Supreme Court. See N.U.R.T.W v. R.T.E.A.N (2012) 10 NWLR 170 (SC) and Usman Danfodio University v. Kraus Thompson Organization Ltd. (2001) 15 NWLR (pt. 736) 305.
It is settled law that a ground of appeal raising the issue of the jurisdiction of the Court cannot be ignored for any reason whatsoever. See Eze v. A.G. Rivers State & Anor. 8 SCNQR 1157.
On this note, I hold that the objection to grounds two and three of the grounds of appeal is overruled.
On ground four the Respondents counsel submitted that it is incompetent because it is a ground of mixed law and fact and no leave was obtained to argue same. He said the fact that ground four of the ground of appeal was christened error of law does not ipso facto make it one. He relied on the case of Nwadike v. Ibekwe (1987) 4 NWLR (pt. 67) 718.
?
Learned counsel submitted further that a
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ground of appeal which challenges the finding of fact made by the trial Judge cannot be ascribed as a ground of law. He relied on the case of Abbey v. Alex (1991) 6 NWLR (pt. 198) 459 and Metal Construction (WA) Ltd v. Migliore (1979) 6 ? 9 SC 163.
Learned counsel submitted that for the Court of Appeal to delve into issues of fact, there is a need for the Appellant to first obtain the leave of the Court. And failure to obtain the leave of Court before filing the appeal is fatal to the ground of appeal as it makes it incompetent in law and liable to be struck out. He relied on the case of Amadasun v. Ume (2007) 13 NWLR (pt. 1051) 219.
On his part, the Appellants counsel submitted that ground four of the ground of appeal is unarguably a ground of law as the position of the law is well settled that where the trial Court finds that a particular event occurred as in the instant case and although there is no admissible evidence before the Court that the event did in fact occur as held by the trial Judge, the ground is that of law. He relied on the case of Njemanze v. Njemanze (2013) All FWLR (pt. 672) 1658 at 1669 (SC) where Galadina JSC held thus:<br< p=””
</br<
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?This Court for quite long has set out some of the criteria for distinguishing a ground of law from that of mixed law and fact. Some of these principles can be summarized in he following manner.
(i) …….
(ii)
(iii)
(iv)
(v) Where the lower Court finds that the particular events occurred although there is no admissible evidence before the Court that the event did in fact occur the ground is that of law.”
Now a careful look at Ground four it reads;
The learned trial Judge erred in law when he held that;
?I believe the evidence of the Claimants and find as a fact that there is a Chieftaincy arrangement agreed to by all the ethic stocks in Alari that the Anago will always produce the Baale of Alari while the other stocks will have their respective Baale to
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oversee their affairs due to cultural differences.
I also accept that the Defendant and his Eyo (Iree) stock have no right to become Baale or Oba of Alari under the tradition and custom of Alari. I therefore hold that the Anago stock are entitled to produce the Oba of Alari.”
Particulars of error
(1) No Chieftaincy arrangement was agreed to by all the ethnic stock that Anago will always produce the Baale of Alari was plead before the trial Court.
(2) Rather there are various documentary evidence placed before the Court to buttress the fact the there was no central Baale in Alari and that 1st Claimant was only appointed as Baale Anago and not central Baale for Alari.
(3) Such an agreement as alluded to by the trial Judge (which is denied) will mean that the Anago stock were not so entitle as of right country to the case of the Claimants.
(4) There was no evidence of custom and tradition regarding the appointment of Oba of Alari as nobody has ever been so appointed.
(5) It was not the defence of the Defendant that no member of the Anago stock can become an Oba.
(6) The Defendant witnesses were never
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Cross ? examined on the procedure that led to the emergence of the Defendant/Appellant as Oba of Alari as contained in paragraphs 38 ? 45 of the amended statement if defence.
Now having gone through the entire gamut of the case before the learned trial Judge, I am inclined to agree with the Appellants counsel that there is no Chieftaincy arrangement that it was agreed to by all the ethnic stocks that Anago will always produce the Baale of Alari. And there was no evidence of custom and tradition regarding the appointment of Oba of Alari as nobody has ever been so appointed. I am in agreement with the Appellants counsel submission that Ground four of the ground of appeal is a ground of law in line with the Supreme Court decision inNjemanze v. Njemanze (Supra). The objection to ground four of the grounds of appeal is overruled.
On Ground five of the Grounds of appeal, the Respondent counsel submitted that Ground five is alleged to be error in law. He said ground five is an appeal against the exercise of judicial discretion of the Court. Ground five is argumentative in nature. And he referred to Order 7 Rule 2 (3) of the Court of Appeal Rules 2016 which provides:
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?The notice of Appeal shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.”
In response to ground five, the Appellants counsel submitted that the Appellant herein challenged the enforceability of the order of the trial Court in view of the fact that at the time of making the pronouncement by the trial Judge on 15th February, 2013 nobody was interested in producing or attempting to produce or be installed as Oba of Alari as the Appellant herein had been installed as Oba of Alari since 4th day of July, 2009 by the constituted authorities namely Ogun State Governor, Commissioner for Local Government and Chieftaincy Affairs, Ipokia Local Government as well as Tewa Traditional Council and these authorities were not made parties to the suit, bearing in mind the fact that a person cannot install himself as an Oba without the approval of the constituted authorities. Therefore it is only these installing authorities who can equally remove the Appellant from the seat if they
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were made parties. As such describing the order as unenforceable as same was made in vacuo generate no argument. The said Ground five is not argumentative in nature as contended by the counsel to the Respondents.
Order 7 Rule 2 (3) of the Court of Appeal Rules 2016 enjoins a ground of appeal not to be argumentative or narrative. Where a ground becomes argumentative it ceases to be a valid ground of appeal but rather an argument whose rightful place is in the brief of argument. In this instant case the issue as to whether the order is enforceable or not is clearly argumentative. I therefore uphold the objection to ground five and same is accordingly struck out.
On ground six, the Respondents counsel submitted that ground six challenges the exercise of the discretion of the learned trial Judge in rejecting the purported Defendant/Appellants instrument/letter of appointment. He said it is a ground of mixed law and fact in that the Court must have considered the facts as given in evidence at the trial before deciding to exercise its discretion to reject same. And for the Court of Appeal to delve into issues of fact, there is the need for the Appellant to
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first obtain the leave of the Court for that purpose. He said failure to obtain the leave of the Court before filling the appeal is fatal to the ground of appeal as it makes it incompetent in law and liable to be struck out.
Responding to this issue the Appellants counsel submitted that ground six is a challenge or complaint on misapplication of the law to the fact already placed before the Court. He said ground six is purely a ground of law as opposed to that of mixed law and fact. He referred to the case of Njemanze v. Njemanze (Supra) where Galadima JSC held thus:
?Where a ground complains of a misunderstanding by the lower Court of the law or disapplication of the law to the facts already proved or admitted, it is a ground of law.”
It is settled principle of law that whenever an Appellate Court will determine the assessment of evidence and application of legal principles, it is a ground of mixed law and fact. In other words, where a ground of appeal raises the question of law as applied to disputed facts it is a ground of mixed law and fact. It is not in doubt that ground six challenges the exercise of the discretion of the trial
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Judge in rejecting the instrument/letter of appointment. In order to determine whether the trial Court exercised its discretion judicially and Judiciously, the Appellate Court has to look at the facts of the case and the law. On this note, I hold that Ground six is a ground of mixed law and fact. I uphold the objection to ground six and same is accordingly struck out.
On the whole, the preliminary objection succeeds in part.
Having struck out grounds one, five and six, it follows therefore that issue No. 4 that was raised by the Appellant from ground six becomes incompetent and liable to be struck out. Accordingly issue No. 4 of the Appellants brief is struck out. However as for issue No. 3 of the Appellants brief that was raised from ground 4 and 5, hence ground 5 has been struck out, it would also be discountenanced, on issue No. 3, thus allowing issue No. 3 to be sustained on ground 4, that would be fair and just. I should also mention that having struck out grounds one, five and six of the grounds of appeal, however grounds two, three and four, sustains the appeal.
?Upon a careful consideration of the notice and grounds of appeal, along with
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the issues raised by both the Appellants and Respondents counsel. I am of the strong view that the issues formulated by the Respondents counsel are precise and apt for the determination of this appeal, and I adopt same.
Argument on Issues
Issue one, thus whether the lower Court had jurisdiction to entertain the matter having regard to the pleadings and evidence before the Court. While arguing on this issue, the Appellants counsel referred to the provisions of Section 23 and 25 of Chiefs law of Ogun State 2006 Cap 20. And he submitted that the said provisions made it mandatory for any aggrieved party, to exhaust the said statutory remedies before resorting to Court action, failing which the trial Court will be deprived of jurisdiction to entertain the case, as these conditions precedent ought and must be complied with. Learned counsel relied on the case of Ojogbede v. Ogundipe (2008) All FWLR (pt. 399) 589 at 599 paras F-G where Fabiyi JCA (as he then was) reinstated the position of the law while quoting Belgore JSC (as he then was) in the case of Eguamwense v. Amaghizemwen (1993) a NWLR (pt. 315) at 25 thus:
?Where a statute prescribes a
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legal line of action for determination of an issue, be that issue an administrative matter, chieftaincy matter or a matter of taxation the aggrieved party must exhaust all the remedies in the law before going to Court?.?
Learned counsel submitted that the Claimants/Respondents had failed to exhaust the local remedies as provided for under the Chiefs law of Ogun State before resorting to court action. Therefore their action deprived the trial Court the requisite jurisdiction to entertain the case. He relied on the case of Olatilu v. Akomolafe (2011) All FWLR (pt. 575) 292 and Aribisala v. Ogunyemi (2005) All FWLR (pt. 257) 451 at 466 where Oguntade JSC stated thus:
?The position of the law therefore is that in a Chieftaincy dispute as this, an aggrieved person who brings a suit must show that he brought his suit only after he had exhausted the remedies provided or followed the procedure prescribed under the applicable law. Why did the Plaintiff in this case not first take their grievance to the prescribed authority and later to the commissioner in charge of chieftaincy matters as laid down in Section 22 (3) and (5) of the Chiefs Law of Ondo State Cap 207
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Learned counsel submitted further that the word ?may? employed by the legislature under the Chiefs law of Ogun State convey a mandatory meaning. He relied on the case of Bamisile v. Osasuyi (2008) All FWLR (pt. 423) 1300 to buttress his argument that, the word ?may? has been interpreted to mean ?shall?.
Learned counsel submitted further that the issue of non-compliance with the provisions of Chiefs law by the Respondents was not canvassed by the Appellant before the trial Court but being a jurisdictional issue time never runs against a party or Court to decide the issue of jurisdiction. He cited the case of kotoye v. Saraki (1994) 7 NWLR (pt. 357) 414 and Petro-Jessica Enterprises Ltd v. Leventis Technical Co. Ltd (1992) 5 NWLR (pt. 244) 675.
Learned counsel submitted that the Respondents case at the trial Court was not initiated by due process of law as the condition precedent as provided for under the Chiefs law of Ogun State was not complied with. He relied on the case of Madukolu v. Nkemdilim (1962) 2 SC NLR 341.
Learned counsel contended that although, it is
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settled law that when a party seeks to file and argue any fresh issue not canvassed in the lower Court, leave to file and argue the issue must be heard and obtained first. But where the point or issue sought to be raised relates to the issue of jurisdiction, it can be filed and argued without the leave of Court even if it is being raised for the first time. He relied on the case of Elugbe v. Omokhafe(2005) All FWLR (pt. 243) 629 (SC) and A-G Kwara State v. Adeyemo (2017).
The Appellants counsel argued and submitted that the Respondents case at the trial Court was not properly constituted as all necessary parties that ought to be made parties were not joined by the Respondents. He said this dispute centered on installation of the Appellant as Oba of Aleri town (Ogiyan of Aleri) in Ipokia Local Government of Ogun State. Learned counsel referred to the amended statement of defence, paragraphs 27 and 48 at pages 110-111 and 113 of the records:
?27. The Defendant denies paragraph 21 of the statement of claim and state that he (the Defendant) was appointed by the Executive counsel of Ogun State, the Commissioner for Chieftaincy matters and with the
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approval of Yewa Traditional Council as the Oba Alari with the approved title of ?Ogiyan? of the Alari town.
48. the letter of appointment of the Defendant as the first coronet Oba with the title Ogiyan of Alari being letter dated 30th June, 2009 will be tendered at the trial of this suit.?
Learned counsel submitted that apart from pleading the circumstances of his appointment as Ogiyan of Alari, the Defendant/Appellant at page 204 of the record equally front loaded the letter/instrument of his appointment by Ogun State Government in conjunction with Ministry of Local Government and Chieftaincy Affairs, Yewa Traditional Council as well as Ipokia Local Government.
Learned counsel submitted that it is expected that the Claimants/Respondents would amend their statement of claim in order to reflect the new turn of events by joining the Executive Governor of Ogun State, Commissioner for local Government and Chieftaincy Affairs, the Secretary Ipokia Local Government as well as Yewa Traditional Council, that installed the Appellant as Oba of Alari. Learned counsel relied on the case of Tanimowo v. Odewoye (2008) All FWLR (pt. 424)1513.
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Learned counsel submitted that the Respondents case at the trial Court was improperly constituted in view of non-joinder of relevant authorities the proper step required of the trial Court after declining jurisdiction is striking out the case. He cited the case ofOjukwu v. Ojukwu (2001) FWLR (pt. 41) 1948; N.F.C.A. v. Laloko (2003) FWLR (pt. 144) 482; I.H.O. v. Wombo (2011) All FWLR (pt. 591) 1514 and Green v. Green (2001) FWLR (pt. 76) 795.
On his part, the Respondent counsel submitted that it is settled law that it is the claim before the Court that has to be looked at or examined to ascertain whether or not a Court is possessed with the jurisdiction to hear and determine a matter before it. He cited the cases of Okulate v. Awosanya (2000) 1 SCNQR 149 and Western Steel Works Ltd. v. Iron & Steel Workers Union of Nigeria (1986) 3 NWLR (pt. 30) 617. Learned counsel referred to the further amended statement of claim dated 17/12/2010, at pages 19-22 of the record. Learned counsel submitted that Section 23 and 25 of the Chiefs law of Ogun State of Nigeria 2006 Cap 20 has no relevance to this matter. Section 23 of the Chiefs Law deals with the
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?Approval? of appointment while Section 25 deals with ?Authority? to approve appointments and to determine, disputes as to minor chiefs. He said the gravamen of this suit has nothing to do with any appointment rather it is as to who is entitled to produce the Baale or Oba of Alari as between ?the Anago who are the descendants of the original/early settlers of Alari town and ?the Eyo Iree represented by the Defendant/Respondent. Learned counsel referred to paragraphs 16,17 and 19 of the further amended statement of claim and he submitted that the claim before the Court is not that the Defendant/Appellant was appointed into the office by those entitled by customary law to so appoint and in accordance with Customary law and approved by the prescribed authority. Therefore Section 25 (3) and (4) of Chiefs Law does not apply.
?
Learned counsel submitted further that the Claimants had no claim against the Ogun State Governor, Commissioner for local Government and Chieftaincy Affairs, Ikpokia Local Government and Yewa Traditional Council, and hence no need to make them parties. And not making them parties did not affect the
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jurisdiction of the Court to hear and determine the matter.
The issue to be considered here is whether there was non-compliance with the provisions of Sections 23 and 25 of Chiefs law of Ogun State by the Claimants/Respondent which deprived the trial Court the jurisdiction to entertain the suit.
And whether the non-joinder of the Governor of Ogun, State the commissioner for Local Government and Chieftaincy Affairs, Ikpokia Local Government and Yewa Traditional Council, affects the jurisdiction of the trial Court. In other words, whether the Claimants/Respondents case at the trial Court was not properly constituted, as to affect the jurisdiction of the trial Court.
It is settled law that it is the Plaintiffs claim that determine the question of the Courts? jurisdiction ? See Aladegbemi v. Fasanmade (1988) 3 NWLR 129; Adeyemi v. Opeyori (1976) 9 ? 10 SC 31; Ege Shipping & Traditional Ind. vs. Tigris International Corp. (1999) 14 NWLR 70 at 89, Warri Refining & Petro-Chemical Co Ltd. & Anor vs Onwo (1999) 12 NWLR 312 at 326. Where pleadings have been filed, the issue of the Court?s jurisdiction is best determined
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from the averments in the Plaintiffs statement of claim.
In the case on hand, pleadings have been filed by the Claimants/Respondents. From the Claimants claim as contained in paragraphs 16, 17 and 19 of the further amended statement of claim dated 17th December, 2010 it reads:
16. To the surprise of the Claimants and the entire Alari Community, the Defendant led his Eyo (Iree) stock to announce himself as being nominated as the Oba of Alari.
17. The Claimants state that the Defendant and his stock who are not the original settlers nor descendant of the original settlers have no right to become the Oba of Alari. The Defendant and his stock have never been appointed Baale of Alari and cannot now usurp the right of the descendants of the founders of the town.
19. The Defendant who was not approved by anybody started preparation to install himself as the Oba of Alari without the consent and approval of the Olu of Ifonyintedo, the prescribed authority and the Yewa Traditional Council and in total disregard for the history, native laws, customs and tradition of Alari town.
?The claim before the trial Court is not that the
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Defendant/Appellant was appointed into the office of Oba of Alari by the Governor of Ogun State, the Commissioner for Local Government and Chieftaincy Affairs, Ikpokia Local Government and Yewa Traditional Counsel. As a matter of fact, the Defendant/Appellant was appointed as the Oba of Alari with the title ?Ogiyan of Alari? with effect from 24th June, 2009. See paragraphs 45 ? 47 of the statement of defence at page 57 of the records, and paragraphs 45 ? 48 of the amended statement of defence at page 113 of the records.
?
While the Writ of Summons and Statement of Claim was filed on 5th June, 2009. In other words, the Defendant/Appellant was appointed as the Oba of Alari during the pendency of the proceedings at the trial Court. Moreso pages 172 ? 175 of the records, is a Ruling delivered by the learned trial Judge on the 6th July, 2009, pursuant to a Motion on Notice dated and filed on 5th June, 2009. In the said Ruling, the learned trial Judge concluded as follows:
?I find merit in the application and it is ordered as prayed. The Defendant shall and is hereby restrained from offering himself to be appointed as the
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Oba or Coronet of Alari and or installing himself or being installed as the Oba of Alari Yewa Ogun State pending the final determination of this suit.?
From the above facts, it is crystal clear that the issue of non-compliance with Sections 23 and 25 of the Chiefs Law of Ogun State does not arise, hence the Defendant/Appellant was not appointed as Oba of Alari as at the time this suit was instituted.
Equally the issue of non-joinder of the Governor, the Commissioner for Local Government and Chieftaincy Affairs, Ipokia Local Government and Yewa Traditional Council does not arise, hence there was no such appointment as at the time the suit was initiated. Consequently issue one is resolved against the Appellant in favour of the Respondent.
On issue two thus whether the lower Court was right in entering Judgment for the Respondents having regard to the pleadings and evidence before the Court.
The Appellants counsel argued and submitted that the findings of the trial Court to the effect that he believed the Claimants evidence that there was a Chieftaincy arrangement agreed to by all ethnic stocks in Alari that the Anago will always
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produce the Baale of Alari while the other stocks will produce their respective Baale when he held at page 260 of the records thus:
?In the circumstance, I believe the evidence of the Defendant and find as a fact that there is a chieftaincy arrangement agreed to by all the ethnic stocks in Alari that Anago will always produce the Baale of Alari while the other stocks will have their respective Baale to oversee their affairs due to differences in culture
I also accept that the Defendant and his Eyo (Iree) stock have no right to become Baale or Oba of Alari under the tradition and custom of Alari.
I therefore hold that the Anago stock are entitled to produce the Oba of Allari.”
The Appellant counsel submitted that the conclusion of the trial Court has no factual or evidential basis in view of the evidence adduced at the trial.
?He said apart from the oral testimony of the parties that there is no central Baale in Alari town but sectional Baale?s namely Baale Anago, Baale Eyo and Baale Egun and that only Balogun is the overall head of the town. He said documentary
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evidence were placed before the trial Court to buttress the oral testimony of parties. He referred to Exhibit I titled ?Installation of a new Baale (Anago) in Alari? written by Olu of Ifonyintedo to buttress the fact that the 1st Claimant/Respondent was installed as Baale (Anago) of Alari contrary to the finding of the trial Court. He said there is no any document or instrument of appointment or installation of the 1st Claimant/Respondent as Baale, placed before the trial Court. Learned counsel submitted further that the trial Judge ought to give the documentary evidence placed before him a pride of place in arriving at his decision/conclusion on the status of 1st Claimant/Respondent as Baale Anago in consonance with the admonition of the Court of Appeal in the case of Aiki v. Idowu (2006) All FWLR (pt. 293) 361 at 374 where Alagoa JCA stated thus:
?Documental when tendered and admitted in Court are like word uttered and do speak for themselves. They are even more reliable and authentic than words from the vocal cord of man because they are neither transient nor subject to distortion and misrepresentation but remain permanent and
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indelible through the ages.”
Learned counsel submitted that Exhibit H dated 16/04/2004 as contained on page 81 of the record was placed before the trial Judge to buttress the fact that the Defendant/Appellant was Balogun of Alari before his installation as Oba of Alari by Ogun State Government. And that the testimony of the Defendant/Appellants witnesses on how the Appellant emerged through various meetings and deliberations by the people of Alari was never challenged by way of cross examination on the part of the Claimants/Respondents. The evidence of the Appellants witness on his emergence as Ogiyan of Alari is deemed admitted in consonance with the principle of law as enunciated in the case of W.A.E.C v. Oshionebo (2007) All FWLR (pt. 370) 1501 at 1509 where Aderemi JCA stated thus:
?Again, the law is static that where a witness is no cross-examined on any issue or fact he has given evidence, the testimony of such a witness is deemed to have been admitted as true.”
Learned counsel submitted further that there was no evidence of custom and tradition regarding the appointment of Oba of Alari placed before the trial Court
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as nobody has ever been appointed as Oba before the installation of the Appellant. He said in spite of absence of cogent and reliable evidence to sustain the Claimant/Respondents evidence at trial, the trial Judge still went ahead to give Judgment in favour of the Claimants/Respondents and held inter-alia that Defendant/Appellant and his Eyo (Iree) stock are hereby perpetually restrained from producing or attempting to produce or present himself or themselves or be installed as Oba of Alari (see page 261 of the record). He said by granting the restraining order against the Appellant, the learned trial Judge thereby assumed the functions of the chieftaincy committee as regards the making of declarations of customary law governing the selection and appointment of Oba of Alari contrary to the admonition of the Apex Court in the case of Ikine v. Edjerode (2002) FWLR (pt. 92) 1775 at 1801 (SC) where Ejiwunmi JSC stated thus:
?It is clear from the Chief?s Law that the Court cannot assume the functions of the Chieftaincy committee as regards the making of declarations of customary law governing the selection and appointment of traditional Chiefs.”
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Learned counsel submitted that the order of perpetual injunction restraining the Defendant/Appellant from producing or attempting to produce or present himself or themselves or be installed as Oba of Alari was made in Vacuo as the Appellant had been installed either rightly or wrongly since 4th day of July, 2009 and there is no order whatsoever directing the Appellant to vacate his seat as Ogiyan of Alari.
Now before I look into the submissions of the Respondent counsel on this issue it is apt to mention that following the installation of the Appellant as the Oba of Alari with the title Ogiyan of Alari on the 4th July, 2009, the learned trial Judge granted an application to set aside the installation of the Defendant/Appellant as Oba of Alari. At page 214 of the record the learned trial Judge held thus:
“I hereby set aside and declare null and void the installation of the Defendant as the Oba of Alari on Saturday the 4th day of July, 2009.
?The Defendant shall and is hereby restrained from parading himself and or being addressed as the Oba of Alari or performing any of the duties and functions of that office traditionally
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or otherwise pending the determination of this case.”
It is important to note that an order of a Court of competent jurisdiction remains valid until it is set aside by the same Court or the Appellate Court.
While submitting on the second issue in the Respondents brief of arguments, the Respondent counsel quoted in extenso the findings of the learned trial Judge at pages 254 ? 255, 256, 257 ? 258 and 259 ? 260 of the record and he submitted that the findings and holding of the lower Court have not been challenged. And that it is trite law that a finding not challenged by an Appellant in any grounds of appeal remains rightly or wrongly the settlement of that issue as between the parties to the appeal. He relied on the case of Zaccheus Abiodun Koya v. Uba Ltd (1997) 1 NWLR (pt. 481) 251.
As Respondents claims on declaratory orders and injunction, the onus placed on the Respondents are set out in Section 135, 136 and 137 Evidence Act, Cap 112, Laws of the Federation of Nigeria, 1990 judicially interpreted that the Plaintiff who seeks declaratory orders and injunction must succeed on the strength of his own case by
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preponderance evidence of probability and not the weakness of the Defendants case. In such a situation, the Plaintiff can rely on that part of the Defendants case that supports Plaintiffs case to establish the Plaintiffs case. SeeElendu v. Ekwoaba (1995) 3 NWLR (pt. 386) 704 (CA): (1998) 12 NWLR (pt. 578) 20 (SC), Josiah Akinola & Anor. V. Fatoyinbo Oluwo & Ors. (1962) 1 SCNLR 353, Itauma v. Akpe ? Ime (2000) 12 NWLR (pt. 680) 156 (SC) and Adeniji v. Onagoruwa (2000) 1 NWLR (pt. 639) 1 (CA).
It is trite law that where the parties call witnesses, before accepting or rejecting the evidence of parties, the trial Judge is enjoined to set up an imaginary judicial scale by putting up the evidence adduced by the Plaintiff on one side of the scale and putting up the evidence adduced by the Defendant on the other side of the imaginary judicial scale and weight both together to attach probative value not by the number of witnesses called by either side but by ascription of probative value to see where the scale of justice tilts. That is what is meant by saying that civil cases are decided on the evidence or balance of probability. See Mogaji v. Odofin
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(1978) 4 SC 91 at 98 and Tinubu v. Khalil & Dibbo Trans Ltd (2000) 11 NWLR (pt. 677) 171 SC. From the printed record the learned trial Judge followed this rule and in assessing, evaluation and ascription of weight to the pieces of evidence that led to reference to pages 254 ? 255 256, 257 ? 258, and 259 ? 260 of the Judgment in the record.
The approach to evaluation of evidence is the rule in Mogaji v. Odofin (Supra). The learned trial Judge applied rightly the said rule in the evaluation in this case.
Evaluation of evidence is primarily the function of the trial Court having regard to the fact that it is the trial Court which had the opportunity of seeing and hearing the testimonies of witnesses and observing their demeanour. It is only when the trial Court fails to evaluate such evidence properly or at all that an Appellate Court can intervene and re-evaluate such evidence itself. Otherwise where the trial Court has satisfactorily performed its primary function of evaluating evidence and correctly ascribing probative value to it, an Appellate Court has no business interfering with its findings on such evidence.
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SeeEbba v. Ogodo (1984) 5 SC 291 at 326, Nwokoro v. Nwosu (1994) 4 NWLR (pt. 337) 172 at 188 (CA), Guda v. Kitta (1999) 12 NWLR (pt. 629) 21 (CA) and Omodede Ashabi Eya & Ors. v. Alhaji Bello Qudus & Anor. (2001) 15 NWLR (pt. 737) 587 at 620.
In evaluating evidence the learned trial Judge found as a fact that Dosumu along with Odunfa, Okun and Obalegbe all of them, Anago founded and first settled at Alari. The other ethnic groups of Egun and Eyo met and were settled in Alari by the Anago. The learned trial Judge also found that the 1st Claimant is Anago and he is the Baale of Alari. There is evidence that when the 4th Baale of Alari Chief Saliu Olorungbeji died the 1st Claimant was installed by the Olu of Ifonyintedo Oba Isaac Adesiyan on 22/2/08.
The learned trial Judge also found as a fact that the Defendant/Appellant is Balogun of Eyo and not Balogun of Alari. And that Adelakun, Jonson Adeniwon, Daniel Siji and Bello Egbinade were all Balogun Eyo and not Balogun of Alari. And that there had been and there is still a central Baale in Alari and that the Claimant/Respondent is the Baale of Alari and as the Baale of Alari; he is the head of
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Alari community.
From the foregoing, it is important to note that the attitude of the Appellate Court towards findings of fact by the trial Court is well settled and trite that a Court of Appeal should be loathe to interfere with or reverse findings of fact made by trial Court unless such findings are perverse.
In the concluding part of his Judgment at page 260 of the record the learned trial Judge stated thus:
?I accept the evidence of the Claimant and find as a fact that by the tradition and custom of Alari it is the Anago that have been producing the Baale of the Town. I also accept that the Defendant and his Eyo (Iree) stock have no right to become Baale or Oba of Alari under the tradition and custom of Alari. I therefore hold that the Anago stock are entitled to produce the Oba of Alari.”…On the other hand, the evidence of the Defendants witnesses particularly under cross-Examination not only materially contradicts the case of the Defendant, it exposed the lies in it and make it worthless. Having regard to the totality of the evidence led in this case, I find the Claimant
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evidence more credible and weightier than the Defendants.”
The finding of fact in my view and opinion is not perverse, therefore as an Appellate Court there is no legal basis or justification to disturb the finding of fact which is hereby confirmed by me. See Abusomwan v. Mercantile Bank Ltd (1987) 3 NWLR (pt. 60) 196, Omoregie v. Idugiemwanye (1985) 2 NWLR (pt. 5) 41 and Nwokoro v. Nwosu (1994) 4 NWLR (pt. 337) 172.
As stated earlier the Respondents sought declaratory reliefs and injunction which are granted or refused at the judicial discretion of the Court. A declaratory Judgment is a remedy for the determination of justifiable controversy where the Plaintiff is in doubt as to his legal rights. Being exercise of judicial discretion the attitude of Appellate Court to exercise of judicial discretion by trial Court is well settled by the case of University of Lagos v. M.I. Aigoro (1985) 1 NWLR (pt. 1) 143. The law is that except upon grounds of law an Appellate Court will not reverse a discretionary order of a trial Court merely because it would have exercised the discretion differently. But if on other grounds, the order will result in
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injustice being done or if the discretion was wrongly exercised in that due weight was not given to relevant considerations the order may be reversed. See Awani v. Erejuwa II (1976) 11 SC 307 and Odusote v. Odusote (1971) 1 All NLR 219.
Applying the above principles in the instant appeal, there is no wrongful exercise of the judicial discretion by the trial Judge as the trial Court granted the declaratory orders and injunction that in the circumstance, the trial Court was satisfied that the Respondents were fully entitled to the exercise of the Courts discretion in their favour.
From the foregoing, issue number two is resolved against the Appellant. The appeal is unmeritorious and it is accordingly dismissed.
The Judgment of Ogun State High Court in Suit No. HCL/16/2009 presided by Hon. Justice O.A. Onofowokan, delivered on the 15th day of February, 2013 is hereby affirmed.
HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, Abubakar Mahmud Talba, JCA, gave the benefit or reading in advance the judgment just delivered.
?My learned brother has adequately considered and resolved the essential issues that arose
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for determination in this appeal. I agree with the reasoning and conclusion of my learned brother that this appeal lacks merit. It is accordingly dismissed.
I abide by the consequential order made in the lead judgment.
NONYEREM OKORONKWO, J.C.A.: In this appeal relating to entitlement to the Baale or Oba of Alari town which the High Court of Ogun State decided by judgment of 15th February, 2013, my learned brother Abubakar Mahmud Talba, JCA has exhaustively reviewed the appeal on the facts and law and found no reason to upset the judgment aforesaid.
I have also reviewed the appeal in the light of the lead judgment aforesaid.
?I also find no reason to upturn the judgment. I therefore agree that the appeal in the circumstance has no merit and is accordingly dismissed.
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Appearances:
S. BanmekeFor Appellant(s)
Olawole. O. OrojoFor Respondent(s)
Appearances
S. BanmekeFor Appellant
AND
Olawole. O. Orojo For Respondent
