ALHAJI T. A. OGBORIEFON V. ISMAILA O. OGBORIEFON & ANOR. (2011)

ALHAJI T. A. OGBORIEFON V. ISMAILA O. OGBORIEFON & ANOR.

(2011)LCN/4347(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 2nd day of March, 2011

CA/I/218/03

RATIO

LANGUAGE OF THE COURT: WHETHER DOCUMENT WRITTEN IN ANY LANGUAGE OTHER THAN ENGLISH ARE TO BE TENDERED AND PROPERLY USED IN EVIDENCE THEY MUST BE DULY TRANSLATED INTO ENGLISH

In the case of Ojengbede v. Esan (supra) the Supreme Court stated as follows:- “——- if document written in any language other than English are to be tendered and properly used in evidence they be duly translated into English either by a competent witness called by the party to the proceedings who needs them to prove his case or by the official interpreter of the court.” The apex court also held in Damina v. State (supra) as follows:- “———-If documents written in any language other than English are to be put in evidence, they are caused by the party in the proceedings who needs to prove his case to be translated into English. Where the party omits to have the documents so translated, the superior Court has a duty to cause the document to be translated by the official interpreter of the court, if any or by the person that is fluent or competent to do so. Document properly tendered for admission in evidence cannot be rejected by the courts merely on the ground that the documents have been written in a language or vernacular other than English. If they are so admitted the courts are expected and indeed obliged to look at them when they come to assess or evaluate the evidence adduced. But they cannot do so unless they have the documents translated into English and translated copies put in evidence in the normal way.” The decision in Akereja v. Oloba (supra) relied upon by the respondent’s counsel was a decision of the Court of Appeal Benin Division. The judgment was delivered by Olatunji Ajose Adeogun, J.C.A’ (as he then was) the court held at page 258 of the report holding as follows:- “English is the language of the courts and only a copy of a document translated into English and duly certified as such can be annexed to an affidavit filed in court.” PER SIDI DAUDA BAGE, J.C.A.

DOCTRINE OF STARE DECISIS: WHAT THE DOCTRINE OF STARE DECISIS ENTAILS

It is trite law that stare decisis is a cardinal principle of our laws. Under the doctrine of stare decisis that an inferior court is bound by a decision of a Supreme Court, however sure it may be that it has been wrongly reached stare decisis means stand by your decisions and the decisions of your predecessors however wiong they are and what ever injustice they inflict.
On this application of the rule of Law See:- Dalhatu v. Turaki (2003)15 NWLR (pt 843) 310; Trentex Trading Corporation v. Central Bank of Nigeria (1997) 1 All ER 887: I.B.W.A. Ltd v. Unakalamba (1998) 9 NWLR (pt. 565) 245 A.C.B. v. Eagle Super Pack (Nig.) Ltd. (7995t2 NWLR (pt. 379) 690; Fred Egbe v. Hon Justice Babatunde Belgore (2004) 8 NWLR (pt.875) 336; Iweka v. Scoa Nig. Ltd (2002) 21 WRN 184. PER SIDI DAUDA BAGE, J.C.A.

NATIVE LAWS AND CUSTOMS: WHETHER ANY BOOK OR MANUSCRIPT RECOGNIZED BY NATIVES AS LEGAL AUTHORITY IN A MATTER MUST BE TENDERED FOR THE BOOK TO BE ADMISSIBLE

Section 59 of the evidence Act “Any book or manuscript recognized by natives as legal authority is relevant”, It is clear from the provision of section 59 of the Evidence Act, and which is what the trial court relied on, that evidence must be laid before the court, that Exhibit ‘A’ sought to be tendered is recognized by the natives as a legal authority laying the evidence is a condition precedent for the admissibility of the book, and not who authored the book. Failing to lay such evidence this court agrees with the trial court that the book under reference Exhibit ‘A’ cannot be thrust on the trial court to be used as a reference book. PER SIDI DAUDA BAGE, J.C.A.

RULE OF INTERPRETATION: POSITION OF THE LAW ON THE CONSTRUCTION OF THE WORDS OF A STATUTE ,WHERE THE WORDS OF THEREOF ARE CLEAR AND UNAMBIGUOUS

The law is already settled where the words of the statute are clear and unambiguous; it must be given its ordinary meaning. See- EL-Rufai v. The House of Representatives (2003) 46 WRN 70; lbrahim v. JSC. (2001) 37 WRN 144: AGF v. ANPP (2003) 15 NWLR (pt. NWLR (pt. 878) 477; Emuze v. V.C. Uniben (2003) 8 MJSC 1; Nig. Engr Works Ltd. v. Denap Ltd. (200l)12 SCNJ 257, Okwonkwo v. INEC (2003) 33 WRN 93: Dangida v. Mobil Producing Nig. On Ltd. (2002) 4 WRN 44. PER SIDI DAUDA BAGE, J.C.A.

ADMITTED FACTS: WHETHER FACTS ADMITTED NEED FURTHER PROOFS
The law is already settled that facts admitted needs no further prove.
See:-Hauwa Wudu v. Bulama Abdul – Razak (2001) 7 NWLR (pt. 713) 669; N.I.D.B. v. Olalomi Industries Ltd. (2002)28 WRN 66; Mohammed Sani Abacha v. The state (2002) 9 MJSC 1. A.G. Fed. v. A.G. Abia State (2002) NSCQR 163. PER SIDI DAUDA BAGE, J.C.A.

INTERPRETATION OF STATUTE: INTERPRETATION OF ORDER 49 RULE 9 (2) OF THE HIGH COURT (CIVIL PROCEDURE) RULES 1988 AS IT RELATES TO THE DUTY PLACED ON THE APPELLANT WHERE HE FAILS TO FILE THE PROCEEDINGS INTENDED TO BE QUASHED BY THE CERTIORARI PROCEEDINGS

Order 49 Rule 9 (2) of the High Court (Civil procedure) Rules 1988, requires that in the event of failure to file the proceedings intended to be quashed by the certiorari proceedings, the appellant is to account for his failure to file the proceedings, to the satisfaction of the court, The Appellant provided no reasons at all in his argument for the failure to file the proceedings, but argued strenuously that the said failure to file the proceedings had amounted to an irregularity and not a nullity. The law has placed the requirement of the proceedings for action to be commenced by way of certiorari compliance by any applicant becomes mandatory, and failure to do so amounts to a complete nullity. The court cannot assume jurisdiction over such an action unless there is compliance by the applicant. See- Madukolu & Ors. v. Nkemdilim (1962) NSCC. 374 at 379- 380, the competency of any court is determined for the following reasons:- (1) It is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or another and (2) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising jurisdiction and (3) The case comes before the court initiated by due process of law and the fulfillment of any of the condition precedent to the exercise of jurisdiction. From the law above, for a proceeding to be quashed by means of certiorari, filing a copy thereof is initiating the action by due process of the law, where there is the failure to so do, advancing reasons for the failure to so file is fulfilling any condition precedent to the exercise of jurisdiction by the court. Let me say, here and now that, any action commenced by way of a writ of certiorari where the proceedings in which it sought to quash, a copy of which is not attached thereto, to an affidavit, and no account is rendered for the failure to do so to the satisfaction of the court, such a proceedings is void, it is like putting something on nothing. See:- the dictum of Lord Denning M.R of blessed memory in the case of U.A.C. v. Mcfoy (1967) 3 All ER. 169 at 172 wherein he stated:- “If an act is void, then, it is in law, a nullity. It is not only bad, but incurably bad —– And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to say there. It will collapse.” PER SIDI DAUDA BAGE, J.C.A.

JUSTICES

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

ALHAJI T.A. OGBORIEFON Appellant(s)

AND

ISMAILA O. OGBORIEFON & ANOR. Respondent(s)

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Oyelaran J. sitting at High Court No. 17, High Court of Justice Ibadan delivered on the 14th day of March, 2002, against the plaintiff/Appellant.
The plaintiff/Appellant filed a motion on notice for an order of certiorari with affidavit in support dated the 18th day of July, 2001. He also filed a further affidavit with Exhibits dated the 27th July, 2011.
The defendants/respondents filed their counter affidavit dated the 29th of October, 2001, they also filed a further counter affidavit with Exhibits dated the 5th of December, 2001.
Briefly put, the facts of this case as could be gathered from the pleadings by the parties is that the 1st Respondent is the Mogaji of Ogboriefon family. The Appellant is also a member of the family. The 2nd Respondent (Olubadan of Ibadan) is the consenting authority for minor chieftaincy to which a Mogaji belong.
After the demise of the last Mogaji of the family, nomination was called for from the next branch of the family that is to present a candidate.
The 1st Respondent who belongs to the Oyewusi branch of the family that is to present the next Mogaji, was nominated by members of his branch, he filled the nomination form, which was accompanied by the names of members of his family that supported his nomination. The application with the names of his sponsors/were submitted to the 2nd Respondent, who invited the family to a meeting in his palace on the 11th January, 1999. At the meeting the 2nd Respondent asked whether there was anybody opposed to the nomination of 1st respondent, when there was no objection, he was accordingly installed the Mogaji of Ogboriefon family.
It was after the appointment and installation of the 1st respondent that the appellant instituted an action at the Oyo State High Court sitting at Ibadan in Suit No. 1/4/01 challenging the installation of the 1st respondent.
The action was struck out; Exhibit E3 is the enrolment of order striking it out.
The applicant/appellant being dissatisfied commenced an action by way of prerogative writ i.e. certiorari. The High Court, Ibadan heard it and the action was dismissed on the 14th March, 2002. It is against this ruling that the Applicant/Appellant has appealed.
The Learned counsel to the appellant filed a Notice of Appeal dated the 3rd of May, 2002. The said notice of appeal contains five (5) grounds of appeal. From the said grounds of appeal the learned counsel distilled the following issues for the determination of this court viz.
(1) Whether the learned trial judge was right in not attaching any weight to Exhibit ‘B’ attached to the affidavit on the ground that it was written in Yoruba Language.
(2) Whether the learned trial judge was right to have held that the proceedings to be quashed was not attached to the application
(3) Whether the learned trial judge was right to have held that the action was premature.
(4) Whether the learned trial judge was right in rejecting Exhibit ‘A’ attached to the Affidavit & exhibit ‘A’ attached to further and better affidavit.
(5) Whether the learned trial judge was right by failing to call for evidence to resolve the conflict in the affidavit of the parties.
The Respondent counsel in his amended respondents brief, formulated one (1) issue for the determination of this court as follows-
“Whether the learned trial judge was right in dismissing the application of the Applicant/Appellant for an order of certiorari.
A close and dispassionate look at the two sets of issues for determination proposed by the learned counsel of the parties made me to be inclined to be guided by those formulated by the appellants counsel in the treatment of this appeal.
In his argument, learned counsel to appellant treated issues one (1) and four (4) together. The learned counsel submitted that the applicant attached Exhibit ‘B’ to the affidavit in support of motion on notice. The Exhibit ‘B’ is the minutes of the meeting held by the family; the said exhibit was written in Yoruba language.
Learned counsel to the appellant submitted further that it is conceded that the language of the court is English Language. The learned trial judge was wrong in not attaching probative value to it on the ground that it was written in Yoruba Language. The learned trial judge ought not to have done so. The learned trial judge had a duty to direct the Appellant to translate into English or order the official interpreter to translate it into English Language in the interest of justice in order to arrive at a just decision. The failure on the part of the learned trial judge to direct the interpretation of the exhibit into English Language had led to a miscarriage of justice. See: – Ojengbede v. Esan & Anor. (200l) 18 NWLR (pt. 746) 771; Damina v. State (1995)8 NWLR (pt.475) 573.
Learned counsel further submitted that notwithstanding the foregoing authorities of the Supreme Court (which even the learned trial judge) cited nevertheless he refused to follow these binding authorities when he did not cause Exhibit ‘B’ to be interpreted into the Language of the Court and when he did not attach any weight there in merely because Exhibit ‘B’ was not in the language of the court.
Learned counsel further submitted that under section 59 of the Evidence Act, three things are (either disjunctively or cumulatively) relevant when deciding question of native law and custom. Any one of the three arms is relevant in deciding questions of native law and custom. Exhibit ‘A’ attached to the Further and Better Affidavit dated 21/11/2001 being the opinion of the Olubadan is for this reason alone without more relevant under Section 59 of the Evidence Act. The opinion, which happens to be expressed in a book, is in itself relevant under Section 59 by virtue of being the opinion of the highest native Chief in Ibadan whether or not the book where in the opinion was expressed is proved to be a legal authority or not. Yet notwithstanding the clear provision of section 59 the learned trial judge discountenanced the statutorily relevant opinion of the Olubadan, the highest native Chief or King.
Learned counsel further submitted that it is trite that native law and custom is a matter of evidence. See: – Giwa v. Erinmilokun (1961) All N.L.R. 294, Had Exhibit ‘A’ been treated as treated as relevant, the learned trial judge would have taken into consideration the opinion of a native chief expressed in page 2 thereof and also page 6.
Learned counsel further submitted that Exhibit ‘A’ attached to the further and better affidavit contains the laid down procedure expected to be followed before the appointment of any Mogaji is made in Ibadan Land. This booklet is written in English Language. The learned trial judge failed to advert his mind to the English translation before deciding not to attach any probative value to the exhibit. If the learned trial judge had carefully gone through the whole exhibit, he would not have come to the same conclusion. It is also wrong for the learned trial judge to hold that the purpose why the exhibit is attached was not stated. The purpose is clearly stated in paragraph 112 of the further and better affidavit, vide page 62 of the record of proceedings. If the learned trial judge had adverted his mind to this paragraph he would not have so held.

The learned counsel to the Respondents, G.A. Sunmonu Esq. submitted that Exhibit ‘B’ which is a purported minutes of the family written in Yoruba Language and not translated into English. The language of the court is English and any document not written in English nor translated to English cannot be relied on. Further the said minutes were not legible. The learned trial judge could not have Suo motu direct an interpreter to translate it as it would amount to descending into the arena of conflict.
See: – Akerefa v. Oloba (1986) 2 NWLR (pt. 22) 257 at 258.
Learned counsel further submitted that no ease was made out for the court to place reliance on Exhibit ‘A’. The book/pamphlet was not shown to be a book recognized as an authority on selection, nomination or installation of minor chiefs in Ibadan in accordance with section 59 of the Evidence Act. The opinion of an individual written in a book/pamphlet cannot be relied on except there is evidence before the court which shows that it has enjoyed wide acceptance amongst the people. The learned trial judge was therefore right in not placing any reliance on Exhibit ‘A’ which is the book/pamphlet.
A careful examination of issue No. 1, argued by both counsel, will show that it has two segments. The issue of Exhibit ‘B’ which was attached to the affidavit for the application of certiorari, rejected by the trial court on the ground that it was written in Yoruba language.
The trial court had on page 92 of the record of appeal lines 29-32 stated as follows:-
“I will not put any weight to Exhibit “B’ which is purported meeting of Ogboriefon family held on 3rd of January 1999 and which is in Yoruba language.”
In response to this, the appellant argued that the trial judge was wrong in not attaching probative value to Exhibit ‘B’ on the ground that it was written in Yoruba language. The court had a duty to direct the appellant to translate into English language, or order the official interpreter to translate it into English language in the interest of justice in order to arrive at a just decision.The failure on the part of the learned trial judge to direct the interpretation of the exhibit into English language had led to a miscarriage of justice counsel sought refuge in the cases on: –
Ojenobede v. Esan & Anon (supra) and Damina v. The State (supra).
In reply the learned counsel to the respondents maintained that the learned trial judge could not have Suo motu directed an interpreter to translate Exhibit ‘B’ as it would amount to descending into the arena of conflict. Learned counsel also sought refuge in the case of Akerefa v. Oloba (supra).

This court had the advantage of reading those two authorities cited by the learned counsel to the appellant, and the single authority cited by the learned counsel to the respondent. A very significant and or distinguishing factor between the two divergent authorities is that while the authorities cited by the appellants counsel were both decisions of the Supreme Court of Nigeria the authority cited by the respondents counsel was a decision of the Court of Appeal.
In the case of Ojengbede v. Esan (supra) the Supreme Court stated as follows:-
“——- if document written in any language other than English are to be tendered and properly used in evidence they be duly translated into English either by a competent witness called by the party to the proceedings who needs them to prove his case or by the official interpreter of the court.”
The apex court also held in Damina v. State (supra) as follows:-
“———-If documents written in any language other than English are to be put in evidence, they are caused by the party in the proceedings who needs to prove his case to be translated into English. Where the party omits to have the documents so translated, the superior Court has a duty to cause the document to be translated by the official interpreter of the court, if any or by the person that is fluent or competent to do so. Document properly tendered for admission in evidence cannot be rejected by the courts merely on the ground that the documents have been written in a language or vernacular other than English. If they are so admitted the courts are expected and indeed obliged to look at them when they come to assess or evaluate the evidence adduced. But they cannot do so unless they have the documents translated into English and translated copies put in evidence in the normal way.”
The decision in Akereja v. Oloba (supra) relied upon by the respondent’s counsel was a decision of the Court of Appeal Benin Division.
The judgment was delivered by Olatunji Ajose Adeogun, J.C.A’ (as he then was) the court held at page 258 of the report holding as follows:-
“English is the language of the courts and only a copy of a document translated into English and duly certified as such can be annexed to an affidavit filed in court.”
The 2 decisions of the Supreme Court cited earlier have over riding effect over this decision of the Court of Appeal, because of the doctrine of stare decisis. The trial court ought to have followed the decision of the Supreme Court cited before it and not that of the Court of Appeal.

On this point the trial court was wrong to have discountenanced Exhibit ‘B’ which was properly, before it, and ought to have acted on it as pronounced by the Supreme Court in the authorities cited earlier.
The 2nd segment of issue 1 is as it relates to the admissibility of Exhibit ‘A’. The learned counsel to the Appellant relied on the provisions of Section 59 of the Evidence Act which provides as follows:-
“In deciding question of native law and custom the opinion of native chiefs or other person having special knowledge of native law and custom and any book or manuscript recognized by natives as legal authority are relevant.”
Learned counsel to the appellant had argued that Exhibit ‘A’ attached to the further and Better Affidavit dated 21/11/2001 being the opinion of the Olubadan is for this reason alone without more relevant under section 59 of the Evidence Act.
The learned counsel to respondents in his reaction to the submission of learned counsel to appellant in relation to exhibit stated that no case was made out for the court to place reliance on Exhibit .A,. The book/pamphlet was not shown to be a book recognized as an authority on selection nomination or installation of minor chiefs in Ibadan in accordance with section 59 of the Evidence Act. The opinion of an individual written in a book/pamphlet cannot be relied on except there is evidence before the court which shows that it has enjoyed wide acceptance amongst the people.
The learned trial judge on this point of Exhibit ‘A’ at pages 94-5 of the records stated:-
I therefore hold Exhibit ‘A’ is the opinion of writer since the Applicant has not disclosed what the book is all about and whether it is an acceptable guideline for such appointment I hold that the book cannot be thrust on the court to be used as a reference book. I will not attach weight to Exhibit ‘A’.”
From the facts before the court, Exhibit ‘A’ was tendered in form of a book or pamphlet according to the appellant authored by the Olubadan, the highest paramount chief in lbadan. To the appellant the position of the author alone was enough to satisfy the requirement of section 59 of the Evidence Act. This court maintains that the position taken by the learned trial in his judgment is the correct position of the law. Section 59 of the evidence Act “Any book or manuscript recognized by natives as legal authority is relevant”, It is clear from the provision of section 59 of the Evidence Act, and which is what the trial court relied on, that evidence must be laid before the court, that Exhibit ‘A’ sought to be tendered is recognized by the natives as a legal authority laying the evidence is a condition precedent for the admissibility of the book, and not who authored the book. Failing to lay such evidence this court agrees with the trial court that the book under reference Exhibit ‘A’ cannot be thrust on the trial court to be used as a reference book.

The trial court was also right when it refused to attach any weight to Exhibit A” which is also agreed by this court. The law is settled that where condition precedent is laid by law or statute, fulfillment of such condition precedent alone will give the court the power to assume jurisdiction on such a process. See:- Madukolu & Ors. v. Nkemdilim (1962) NSCC 374 at 379-380.

On the whole therefore in respect of issue No. 1, on the segment of Exhibit B, the appeal succeeds, while on the segment of Exhibit ‘A’ the appeal fails.
On issue two (2) whether the learned trial judge was right to have held that the proceedings to be quashed was not attached to the application, the learned counsel to the appellant submitted that it is conceded that the proceedings to be quashed must be attached. Failure to do so amounts to irregularity – order 2 Rule (1)1 of the High court (civil Procedure) Rules 1988. The breach of the rule of practice can only render the proceeding an irregularity and not a nullity. The proceeding can only be set aside if the party affected acted timeously and before taking any step. Vide Niger – Benue Transport Co. Ltd. v. Nanumah and Sons Ltd (7986)4 NWLR (pt 33) 117. Where an action is commenced by a procedure which is irregular a defendant who took active part in the proceedings without complaining about the irregularity cannot be heard subsequently to complain of the irregularity.
Learned counsel further submitted that it has consistently been held by the courts in several decided cases that where there is procedural irregularity an objection to such irregularity, to be countenanced, must be taken at commencement of the proceedings where the party raising the irregularity to set aside the action had taken steps in the proceedings, it will be too late and against the interest of justice to raise and rely on the objection. Vide (C.F.A.O. v. The Onitsha Industries Ltd) Johnson v. Aderemi & Ors. 78 WACA 297; Adebayo & Ors. v. Chief Shonowo & Ors, (1969) 1 ANLR 176: Ezomo v. Oyabire (1985) l NWLR (pt 2) 795. The defendant filed counter Affidavit pages 50-52 of the Record of proceedings. Further counter-affidavit pages 71-72 of the record of proceedings. If the learned trial judge had averted his mind to all these, he would not have come to the same conclusion. It would have been held that there was a waiver on the part of the defendant.
Learned counsel further submitted that apart from this, the learned trial judge held that the proceedings sought to be quashed was not attached. The letter of Appointment of the defendant sought to be quashed was tendered as Exhibit ‘R’. Also one of the document contained in exhibit P1 tendered. The learned trial judge is entitled to look into the courts record in his possession and make use of the information therein.
See. Nwanosike v. Udosen (1993) 4 NWLR (pt, 290) 684 at 693 paragraph B – C. If the learned trial judge had gone through the record in his possession, he would have discovered that the said “Letter of Appointment” was before him.
Learned counsel further submitted that a subpoena was issued to compel the secretary Olubadan-in-council to produce the application for chieftaincy title a Mogaji of Ogboriefon, it is manifestly clear that the entire file containing (not just the application but) all other documents and therefore entire proceeding concerning the decision of the Olubadan to appoint the 1st respondent as Mogaji Ogboriefon was before the court.

In reply learned counsel to the respondents submitted that the appellant conceded that the proceedings to be quashed must be attached. This was not done. This is fatal to the case of the Appellant and is not a mere irregularity as canvassed by the appellant. Compliance with Order 43 Rule 9(2) of the High Court (Civil Procedure) Rules, 1988 of Oyo State is Mandatory.
Learned counsel submitted further the fact that the respondent took part in the proceedings by filing counter-affidavits does not amount to a waiver. The authorities cited and relied upon by the appellant’s counsel are not relevant to the present case which is certiorari as distinct from an action commenced by writ of summons. See- R. v. Deputy Governor E.R. Ex-Parte Iloka (1960) IV E.N.L.R 103: Okeke v. Baba (2000)3 NWLR (pt. 650) 664 at 648.
Learned counsel submitted further that the learned trial judge was right in holding that the action of the Appellant was premature. The 1s respondent after he was presented by his family members as the candidate nominated for the post of Mogaji of Ogboriefon was recognized and installed by the 2nd Respondent in accordance with tradition. The appellant protested to the 2nd respondent and after waiting for a while without receiving a response the further appealed to the Honourable Commissioner for chieftaincy affairs. The Appellant did not wait for a response before instituting an action in the High Court in Suit No. 1/4/2001. This action was struck out on the 18th June, 2001. The appellant later commenced the present action for certiorari to quash the decision of the 2nd respondent.
The Appellant did not wait for the decision of the commissioner for chieftaincy affairs. The Appellant issued a subpoena on the Secretary to the Olubadan-in-council asking him to produce the “Application for chieftaincy title as Mogaji Ogboriefon” dated 14s October, 1998, and the attached list of the members of Ogboriefon family allege to have consented and approved the candidature of the 1st respondent. This document was admitted as Exhibit P1.
Learned counsel further submitted that the provisions of the Chiefs Law of Oyo State 1998, is in no way inconsistent with any of the provisions of the 1999 constitution. See: – Adesola v. Abidoye (1999)74 NWLR (pt 637) 28.
On the part of the court, the record shows that the appellant commenced his action at the lower court with a writ of certiorari. Action for certiorari is governed by Order 43 Rule 9(2) of the High Court (Civil Procedure) Rules, 1988 of Oyo State. It provides as follows:-
“Where the relief sought is or includes an order of certiorari to remove any proceedings for the purpose of quashing them, the applicant may not question the validity of any order, warrant, commitment, conviction, inquisition or record unless before the hearing of the motion or summons he has filed a copy thereof verified by affidavit or accounts for his failure to do so to the satisfaction of the court, hearing the summons.”
The law is already settled where the words of the statute are clear and unambiguous; it must be given its ordinary meaning. See- EL-Rufai v. The House of Representatives (2003) 46 WRN 70; lbrahim v. JSC. (2001) 37 WRN 144: AGF v. ANPP (2003) 15 NWLR (pt. NWLR (pt. 878) 477; Emuze v. V.C. Uniben (2003) 8 MJSC 1; Nig. Engr Works Ltd. v. Denap Ltd. (200l)12 SCNJ 257, Okwonkwo v. INEC (2003) 33 WRN 93: Dangida v. Mobil Producing Nig. On Ltd. (2002) 4 WRN 44.

The appeal before this court was brought to a narrow margin, when the appellant in arguing his issue two at page 6 of his brief of argument stated:-
“It is conceded that the proceedings to be quashed must be attached. Failure to do this amounts to irregularity – Order 2 Rule 1(1) of the High Court (Civil Procedure) Rules 1988 —-”
The law is already settled that facts admitted needs no further prove.
See:-Hauwa Wudu v. Bulama Abdul – Razak (2001) 7 NWLR (pt. 713) 669; N.I.D.B. v. Olalomi Industries Ltd. (2002)28 WRN 66; Mohammed Sani Abacha v. The state (2002) 9 MJSC 1. A.G. Fed. v. A.G. Abia State (2002) NSCQR 163.

Order 49 Rule 9 (2) of the High Court (Civil procedure) Rules 1988, requires that in the event of failure to file the proceedings intended to be quashed by the certiorari proceedings, the appellant is to account for his failure to file the proceedings, to the satisfaction of the court, The Appellant provided no reasons at all in his argument for the failure to file the proceedings, but argued strenuously that the said failure to file the proceedings had amounted to an irregularity and not a nullity. The law has placed the requirement of the proceedings for action to be commenced by way of certiorari compliance by any applicant becomes mandatory, and failure to do so amounts to a complete nullity. The court cannot assume jurisdiction over such an action unless there is compliance by the applicant. See- Madukolu & Ors. v. Nkemdilim (1962) NSCC. 374 at 379- 380, the competency of any court is determined for the following reasons:-
(1) It is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or another and
(2) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising jurisdiction and
(3) The case comes before the court initiated by due process of law and the fulfillment of any of the condition precedent to the exercise of jurisdiction.
From the law above, for a proceeding to be quashed by means of certiorari, filing a copy thereof is initiating the action by due process of the law, where there is the failure to so do, advancing reasons for the failure to so file is fulfilling any condition precedent to the exercise of jurisdiction by the court.
Let me say, here and now that, any action commenced by way of a writ of certiorari where the proceedings in which it sought to quash, a copy of which is not attached thereto, to an affidavit, and no account is rendered for the failure to do so to the satisfaction of the court, such a proceedings is void, it is like putting something on nothing. See:- the dictum of Lord Denning M.R of blessed memory in the case of U.A.C. v. Mcfoy (1967) 3 All ER. 169 at 172 wherein he stated:-
“If an act is void, then, it is in law, a nullity. It is not only bad, but incurably bad —– And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to say there. It will collapse.”

The action of the appellant in this appeal is void and in law a nullity, Having reached this conclusion by this court, the remaining issues in the appellants’ brief of argument, issues three (3) and five (5) becomes mere academic exercise and a waste of the precious time of the court.
On the whole therefore this appeal lacks merit and it is hereby dismissed by this court.
The ruling of Oyelaran J. in Suit No. M/263/2001, delivered on the 14th of March, 2002 at Ibadan, in the Ibadan Judicial Division, dismissing the application for lack of merit is hereby affirmed by this court.
Costs is awarded in the sum of thirty thousand Naira (N30, 000:00) in favour of the Respondents.

MODUPE FASANMI, J.C.A: I have the advantage of reading the judgment of my learned brother S. D. Bage J.C.A.
I agree entirely with the reasoning and conclusion reached therein. I also dismiss the appeal and affirm the ruling of the court below,

JOSEPH SHAGBAOR IKYEGH, J.C.A: I had the advantage of reading in draft the meticulous judgment of my learned brother SIDI BAGE, J.C.A., with which I am in complete agreement.
The official language of the court is English. Any document prepared in another language other than English and put in evidence must be translated in English before it can be made use of as a piece of evidence.
If the party tendering the document fails to translate it, the duty to do so becomes that of the court in the same way the court provides an interpreter in ‘respect of oral evidence given by a witness in foreign language, In the instant case, the court below, wrongly, in my view, abdicated its duty to cause the translation of the Yoruba version of the document exhibited in evidence by the appellant into English – See Damina v. The State (1995) 8 NWLR (pt.415) 513 and Ojenqbede v. Esan (2001) 18 NWLR (Pt.746) 771.
Exhibit A, a pamphlet attached to appellant’s affidavit evidence dated 21.11.2001, was attributed to the Olubadan, the prescribed authority on the selection, nomination and installation of minor chiefs in Ibadan, as binding authority on the custom of the area, without any native of Ibadan conversant with the custom deposing in addition to Exhibit A that the pamphlet or book is recognised as legal authority on the native law and custom of the Ibadan people in that regard. Exhibit A standing alone would not satisfy the requirements of proof of the native law and custom it purports to represent under section 59 of the Evidence Act, At least a native of the area in question outside the deponent conversant with the authority on the native and custom governing the disputed chieftaincy post before its validity would be established – see Igbonla v. Alebiosu (1992) 7 SCNJ 187. See also Kobina Angu v. Cudjoe Attah Privy Council Judgments by Olisa Chukura page 117 thus:
“As is the case with all customary law, it has to be proved in the first instance by calling witnesses (or a witness) acquainted with the native customs until the particular customs, have, by frequent proof in the courts, becomes notorious that the courts take judicial notice of them.”
See also Olubodun v. Lawal (2008) 76 SCNJ 269 at 267, and Usiobaifo v. Usiobaifo (2005) 1 SCNJ 227 at 237-238. But that was not the case here.
The appellant was, also, obligated to exhibit or tender in evidence the proceedings of the inferior body that was to be quashed in the certiorari proceedings in the court below. Because the court below cannot quash what it did not see and peruse. In short the spine of certiorari proceedings is the document or proceedings sought to be quashed. In the absence of the said proceedings, the application for a certiorari would stand on nothing or be dangling in the air – see Halsbury’s Laws of England 14th Edition or Lord Hailsham’s Edition) page 107 paragraph 84 thus:
“The meaning of the record for this purpose may be tak6n to include the decision itself, such reasons, if any, as are given for the decision and any other material or instrument identified therein with a sufficient degree of particularity for it to be construed as forming part of the record. The record cannot be supplemented by affidavit or other evidence designed to disclose a latent error of law.”
(my emphasis),
See also Onyekwuluje and Another v. Benue State Government and Others (2005) 8 NWLR (Pt.928) 514 at 640. 648:
“It needs to be emphasized here that before a court having supervisory jurisdiction can make an order of certiorari, it is imperative that the proceedings of the inferior court/tribunal must, as a condition precedent be placed before it. See Lekwot & 6 Ors. v. Judicial Tribunal on Civil & Communal Disturbances in Kaduna State & Anor. (1997) 8 NWLR (Pt.515) 22 at 35. Unless such proceedings that is intended to be quashed, is brought before the superior court there is no-how the latter would appreciate or consider the facts or complaint made against the inferior court/tribunal otherwise it would lead to the superior court acting on mere conjecture or speculations.”
For the above reasons and the fuller reasons given in the judgment of my learned brother, Bage, J.C.A., I too would dismiss the appeal.

Appearances

Segun Fowowe:For Appellant

AND

G.A. Sunmonu:For Respondent