ATTORNEY-GENERAL, KWARA STATE & ANOR v. CHIEF JOSHUA ALAO & ANOR

ATTORNEY-GENERAL, KWARA STATE & ANOR v. CHIEF JOSHUA ALAO & ANOR

(2000)LCN/0734(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 29th day of March, 2000

CA/IL/20/99

JUSTICES:

MURITALA AREMU OKUNOLA Justice of The Court of Appeal of Nigeria

PATRICK IBE AMAIZU Justice of The Court of Appeal of Nigeria

WALTER S. N. ONNOGHEN Justice of The Court of Appeal of Nigeria

Between

ATTORNEY-GENERAL, KWARA STATE
2. ILORIN EMIRATE COUNCIL Appellant(s)

AND

CHIEF JOSHUA ALAO
2. ALFA ISSA AKANO Respondent(s)

RATIO

WHETHER OR NOT EVIDENCE GIVEN ON A FACT NOT PLEADED GOES TO NO ISSUE

It is trite that evidence given on a fact that is not pleaded goes to no issue and should be disregarded. Emegokwue v. Okadigbo (1973) 4 SC p. 113. PER AMAIZU, J.C.A.

THE POSITION OF LAW ON THE METHOD OF PROVING A PUBLIC DOCUMENT

It is trite that the general method of proving a public document is by the production of the certified copy of the document. In the present case, Exhibit D 17 was neither the original nor the certified copy of the original. It is also trite that where a document is made inadmissible by law under any circumstance, it is not within the competence of the court, or the parties in the suit to admit the document by consent. (See Minister of Land, Western Nigerian v. Azikiwe (1969) 1 All NLR 49). PER AMAIZU, J.C.A.

WHETHER OR NOT CUSTOMARY LAW MUST BE PLEADED

Still on facts not pleaded by the 1st respondent, in Nigerian jurisprudence a customary Law is regarded as a fact, therefore it must be specifically pleaded like any other fact. It follows that if it is the custom of Oke-Oyi people that when a Bale dies the title moves to another ruling family, the fact must be pleaded. See Mrs. Ada Onwuchekwa v. Ibe Onwuchekwa & Ors. (1991) 5 NWLR (Pt.194) at 739. PER AMAIZU, J.C.A.

AMAIZU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Gbadeyan J., of the Kwara State High Court, sitting at the Ilorin Division. The judgment was delivered on the 24th day of November, 1985.

Briefly, the facts of the case are as follows:-
There was a long drawn dispute over succession to the vacant stool of Bale of Oke-Oyi in Kwara State. There were series of law suits between Chief Joshua Alao, now, the 1st respondent and, Mallam Gbadamosi Akano. The dispute went to the Supreme Court.

It seems that after the Supreme Court’s decision in the suit, Joshua Alao v. Gbadamosi Akano (1988) 1 NSCC 329; (1988) 1 NWLR (Pt.71) 431, Mallam Gbadamosi Akano was turbaned the Bale of Oke-Oyi. His, however was a very short reign. He died on the 17th of June of that year.

His death re-opened the struggle for the stool of Bale of Oke-Oyi. This time, it was between the 1st respondent and Chief Alfa Issa Akano, the son of Mallam Gbadamosi Akano. He is now the 2nd respondent. Both the 1st and 2nd respondents claimed that they were appointed by the kingmakers of Oke-Oyi.

Following the conflicting claims, the then Government of Kwara State appointed an administrative panel headed by M. F. Oye to look into the claims. The panel took evidence of the parties and their supporters/witnesses and thereafter compiled its report.

His Honour, Prince Ojo Fadumile, the State Deputy Governor, in a letter No.MLG/S/CHI/GEN 320/S.4/340 of 27/9/93, Exhibit 1 addressed both to the Chairman, Ilorin East Local Government, Oke-Oyi and the Secretary Ilorin Emirate Council, Ilorin, stated as follows:-
“Appointment of Oluo (Bale) of Oke Oyi.
…
…
3. Based on the report of the panel and the Government White Paper on the report, the Kwara State Government, after seeking legal advice hereby approves the appointment of Mr. Joshua Alao and not Joshua Akano as the Olu (Bale) of Oke Oyi with effect from 1st September, 1993 with full rights and privileges attached to the stool.
Sgd.Prince Ojo Fadumile
Deputy Governor
Kwara State”.

The letter attracted swift reaction from the Governor’s office. The Secretary to the State Government in a letter No. S/Pool/38A/23 of 15/10/93 denied that the Executive Governor of Kwara State approved the appointment of the 1st respondent as the Bale of Oke-Oyi. The claim of the 1st respondent is predicated on this letter of appointment and, also on his nomination by the Kingmakers. The 2nd respondent, on the other hand claimed that after the death of his father, his family recommended him for appointment as the Bale of Oke-Oyi. Because, there were two claimants to the stool, the Emir of Ilorin appointed a panel to look into their respective claims. The panel, after taking evidence of the parties/supporters, reported back to the Emir-in-Council. He was subsequently recognised and turbanned as the Bale of Oke-Oyi on 20/11/90.

Following the letter of the Secretary to the State Government referred to above, the 1st respondent took action against the 2nd respondent and the Attorney-General, Kwara State and Ilorin Emirate Council now referred to as 1st and 2nd appellants respectively. He claimed against them jointly and severally as follows:-
(i) A declaration that the plaintiff is the Oluo of Oke-Oyi, having been so appointed by the Oke Oyi Kingmakers and approved by the Kwara State Governor under section 3(1) of the Chiefs (Appointment and Deposition) Law;
(ii) A declaration that the 2nd defendant has no power to appoint an Oluo for Oke Oyi in view of Section 78(i)(J) of the Local Government Edict (Law) No.8 of 1976 and section 13 of the Chiefs (Appointment and Deposition) (Amendment) Edict No.8 of 1985;
(iii) A perpetual injunction prohibiting the 1st defendant from parading himself as the Oluo of Oke-Oyi and prohibiting the 2nd defendant from so treating him.
(iv) A declaration that Edict No.3 of 1988 is unconstitutional, null and void and inapplicable in this suit, and
(v) An order to compel the Kwara State Government to refund the N10,000.00 paid by the plaintiff before filing this suit.

Pleadings were filed and exchanged. The 1st respondent filed in addition, ‘a reply to the Statement of Defence’. At the trial, the 1st respondent gave evidence for himself. He called no witness. The 2nd respondent gave evidence and called a witness. The 1st and 2nd appellants called one witness. The trial Judge, after hearing the parties and their witnesses, and considering the written addresses submitted by the learned counsel for the parties gave judgment for the 1st respondent as follows:-
“Because there was no evidence of a withdrawal of authority given to the Deputy Governor or any break down of communication between the Governor and his deputy on this or any issue and because there is no such evidence from the former Governor himself, I am unable to attach any credibility to Exhibit 3, (Exhibit D13) and D9 as negating the approval to the appointment of Joshua Alao in Exhibit 1 which is intra vires the Deputy Governor as the person assigned the portfolio for Chieftaincy affairs and to that extent is valid. Finally in my judgment, I am satisfied that the appointment of the plaintiff as Bale or Oluo took effect from the 1st day of September, 1993 and I so declare. Consequently, the 1st defendant is hereby perpetually prohibited from parading himself as the village Head or Bale or Oluo of Oke Oyi and the 2nd defendant is prohibited from treating him as such.”
The appellants were dissatisfied with the judgment. They have appealed to this Court. The 1st respondent also cross-appealed. Pursuant to the Rules of this Court, the learned counsel for the appellants and the respondents filed and exchanged their briefs of argument.
The learned Counsel for the appellants identified the following issues for determination-
Issue One:-
Whether the trial Court was right to have declared the 1st respondent as the Bale/Oluo of the Oke-Oyi in view of the evidence available before the trial Court?
Issue 2:-
Is the trial court right to have relied heavily on Exhibit D17?
Issue 3:-
Whether the trial Court was right to have refused to give any credibility to Exhibits 3 & D9?.
Issue 4:-
Whether the trial Court was right not to have limited itself to the evidence before it in arriving at its judgment?
Issue 5:-
Whether the trial Court was right with the interpretation given to section 15(3) of Edict No.3 of 1988?
Issue 6:-
Whether the trial Court was right in awarding N12,500.00 as costs to the respondent?
The 1st respondent did not formulate any issue. The 2nd respondent on the other hand formulated nine issues. I am however of the view that the issues formulated by the appellants sufficiently cover all the issues in controversy in this appeal. I intend therefore to consider the appeal on the above issues.
Before us, Ashaolu Esq., the learned Attorney-General, of counsel, adopted his brief of argument for the appellants. He cited the following additional authorities in respect of issue 2. They are:-
Abdul Hamid Ojo v. Primate E. O. Adejobi & Ors. (1978) 3 SC 65 at 74;
Mohammed Ali v. Ambrosini Ltd. 7 WACA 148
Anaeze v. Anyaso (1993) 5 SCNJ 151 at 169; (1993) 5 NWLR (Pt.291) 1
It is the view of the learned Counsel that the trial Court’s reliance on Exhibit D17 inspite of its voidability occasioned a miscarriage of justice. He urged the Court to allow the appeal.
Prince Ijaodola, of Counsel, adopted his brief of argument. He referred to the additional authorities cited by the learned Attorney-General, and submitted that the authorities are not relevant to the present appeal. It is the learned Counsel’s view that the present case is different from the decisions in the cases cited by the learned Attorney- General. The difference, in his view, stems from the fact that in the present case the appellants themselves pleaded and tendered the document which is the subject of this submission. In the cases referred to by the learned Attorney-General, the documents in issue were not tendered by the parties raising the objection. It is also the view of the learned Counsel that the lower Court would have arrived at the same decision without taking into account Exhibit D17. He urged the Court to dismiss the appeal and allow the cross-appeal.
Akintola Esq., of counsel referred to his brief of argument and adopted same. He associated himself with the submissions of the learned Attorney-General. It is his view that the authorities are in line with the provisions of sections 92(i), 109, & 113 of the Evidence Act. He urged the court to allow the appeal and dismiss the cross-appeal.
It does seem to me that it will be more convenient to treat issues 1, 2, 3 & 4 together as they are identical. In dealing with the issues, the learned Attorney-General, Ashaolu Esq., of counsel, referred to the reliefs sought in the lower Court by the 1st respondent. It is his view that the main relief sought by the 1st respondent is for-
“a declaration that the plaintiff is the Oluo of Oke Oyi having been so appointed by Kingmakers and approved by the Kwara State Governor under section 3(i) of Chiefs (Appointment and Deposition) Law.”
He then referred to the judgment of the lower Court in which the learned trial judge not only granted the declaration but back dated it to the 1st day of September, 1993. He contended that as the 1st respondent did not ask for his appointment as the Bale of Oke-Oyi to be back dated to the 1st of September, 1993, the learned trial Judge was in error to have back dated it. He cited the cases of –
State Commissioner for Works & Anor v. Devcon Ltd. (1988) 7 SCNJ 1 at 2; (1988) 3 NWLR (Pt.83) 407
Chief J. O. Edewor v. Chief M. Uwegbu & Ors. (1987) 2 SCNJ 18 at 20; (1987) 1 NWLR (Pt.50) 313

He observed that the 1st respondent did not adduce any evidence in the lower Court to establish the fact that the title of Oluo of Oke-Oyi is the same as the title of Bale of Oke Oyi. He referred to the evidence of the 1st respondent on the procedure for appointing the Bale of Oke Oyi. He observed that the 1st respondent did not call any of the Kingmakers who allegedly appointed him, to give evidence of the appointment.

He submitted that the learned trial judge should not have given judgment in favour of the 1st respondent as there is no evidence from the record that the 1st respondent was appointed in accordance with the native law and custom of Oke-Oyi.
The learned Attorney-General referred to the part of the judgment of the lower Court where the learned trial Judge found that –
“Exhibit ‘D17’ is an important document. It is the White Paper on M. F. Oye Panel’s report. It is one of the 18 documents tendered by the defence.”

He observed that Exhibit D17 is a draft White Paper and, consequently it is a public document. He observed also that it did not bear the signature of any government functionary or an official stamp of the government. He further observed that the document was not certified. The learned Attorney-General then remarked that inspite of the above defects the learned trial judge admitted it in evidence. The learned trial Judge did not stop at that. He also used it as a spring board to justify his acceptance of Exhibit 1. He cited the case of Minister of Land, Western Nigeria v. Azikiwe (1969) NSCC 31; 1 All NLR 49 and submitted that the learned trial judge should not have received Exhibit D 17 in evidence.
The learned Attorney-General referred to the reason given by the learned trial judge for not acting on exhibits 3 and D9. According to the learned Attorney-General, the learned trial judge was of the view that since there was no evidence of a break down of communication between the governor and his deputy, Exhibits 3 & D9 are worthless and of no probative value. In the view of the learned Attorney-General, as the two exhibits emanated from the office of the Secretary to the State Government, the trial judge should have accepted them as representing the official stand of the government of Kwara State on Oke-Oyi Bale Chieftaincy dispute. This is more so, as the Secretary to the State Government is the mouthpiece of that State Government.
The learned Attorney-General referred to section 162 of the 1979 Constitution of the Federal Republic of Nigeria. He submitted that even if the Deputy Governor was charged with the responsibility of Chieftaincy matters in the State, the Governor of the State still had the final say an any Chieftaincy matter. He submitted that the learned trial Judge was in error to have ignored the contents of Exhibits 3 and D9 in arriving at his judgment.
In his reply, Prince Ijaodola, of counsel submitted that the learned trial judge was right in giving judgment in favour of the 1st respondent. In the learned Counsel’s view, the learned trial judge-
“exhibited a lot of research and industry and, meticulously considered both the pleadings and the evidence both oral and documentary placed before him.”
The learned Counsel reminded the Court that Exhibit D17 was pleaded by the appellants and tendered by consent by the 2nd respondent. It is the learned Counsel’s view that exhibits 3 & D9 have no probative value since they do not reflect the law of the State. Finally, the learned Counsel submitted, on this point, that a Governor of a State cannot take a decision which is against the law of that State.
Akintola Esq., of Counsel, made a similar submission as the learned Attorney-General. He referred to the following cases –
Commissioner for Works v. Devcon Ltd. (1988)7 SCNJ 2; (1988) 3 NWLR (Pt.83) 407; Edewor v. Uwegba (1987) 2 SCNJ p. 18; (1987) 1 NWLR (Pt.50) 313
Akinfolarin v. Akinola (1994) 3 NWLR (pt. 335) 659; Nwagbogu v. Abadom (1994) 7 NWLR (Part 356) 346.

The learned Counsel emphasised the fact that Exhibit D17 was never a government White Paper. According to the learned Counsel, it is what it says it is – “A draft White Paper”. He urged the Court to allow the appeal and to dismiss the cross-appeal.
I now deal with the submissions of the learned Counsel on the four issues. Under section 162 of the 1979 Constitution of the Federal Republic of Nigeria, every State of the Federation shall have a Governor. The Governor of the State is the Chief Executive in that State. Section 5 of that Constitution brings out clearly how the executive powers of a Governor of a State are to be exercised. It provides:-
“(2) Subject to the provisions of this Constitution the executive powers of a State-
(a) Shall be vested in the Governor of that State and may, subject as aforesaid and to the provisions of any Law made by a House of Assembly be exercised by him either directly or through the Deputy Governor and Commissioners of the Government of that State or officers in the public service of the State.”
My interpretation of the above provision is that a Governor of a State can either exercise the executive powers vested in him by the Constitution or delegate the powers to his deputy or other government officials. He has also in my considered view, the power to withdraw such powers assigned by him to his deputy or any official at any time.
Such withdrawal may be expressly made or by implication. A withdrawal by implication arises where a Governor acts inconsistent with the continuance of the assignment of such a power to an official. With the above back ground, I now consider exhibits 1, 3 & D9.

I have earlier in this judgment referred to the relevant part of Exhibit 1. It reads –
“Based on the report of the panel and the Government White Paper on the report, the Kwara State Government after seeking legal advice hereby approves the appointment of Me, Joshual Alao and not Joshua Akano as the Oluo (Bale) of Oke-Oyi with effect from 1st September, 1993, with full rights and privileges attached to the stool.”
The Secretary to the State Government on receipt of Exhibit I wrote Exhibit D9. It reads –
“Appointment of The Village Head (Bale) of Oke-Oyi
I am to refer to letters Ref Nos. MLG/S/CHI/GEN/320/S.4/340 of 27/9/93 from the Office of the Deputy Governor of Kwara State and that of the Emirate Council, Ilorin, Ref No. EC/32/311/365 of 22/9/93 respectively, and to inform you that the Executive Governor of Kwara State had earlier taken a decision that the issue of the Bale of Oke-Oyi should be referred to your Emirate Council which is vested with powers to handle such a case in line with the tradition and custom of the area.
2. …
3. Consequently, His Excellency, the Executive Governor of Kwara State has, therefore directed that the contents of this letter from the Office of the Deputy Governor referred to above should be disregarded.
Sgd.
Alhaji Shehu Abdul-Gafar
Secretary To The State Government,
Kwara State.”
Still reacting to Exhibit 1, the Secretary to the State Government in his letter Exhibit 3 addressed to the 1st respondent and copied the Deputy Governor and other functionaries of government stated as follows –
“Mr. Joshua Alao,
u.f.s.
Chairman,
Ilorin East Local Government,
Oke Oyi.
I wish to refer to your letter dated 12th October, 1993, addressed to His Highness the Emir of Ilorin and copied this office, on the above subject-matter, the content of which deserves this office’s reaction which contains as follows –
(i) We wish to reiterate that His Excellency the Executive Governor of Kwara State, Alhaji Mohammed Shaaka Lafiagi never at any time approved your purported appointment as the Oluo (Bale) of Oke-Oyi as mentioned in your letter under reference.
(ii) You may wish to note that the appointing authority for such a stool as Bale of Oke-Oyi rests entirely with the Emirate Council.
2. The above statement therefore is aimed to clear any misinformation or misconception your letter under reference seems to portend.
Sgd.
(Musa Umar)
For: Secretary To The State Government.”

It is my view that the contents of Exhibits 3 and D9 are clear and unambigous. They are to the effect that the letter of the Deputy Governor Exhibit 1 should not be acted upon as the Executive Governor did not approve the appointment of the 1st respondent as the Bale/Oluo of Oke-Oyi. It is my view also that because the executive powers of a state are vested in the Governor of that state and, he does not share it with any body, exhibit I was rendered nugatory by Exhibits 3 & D9. I now deal with Exhibit D17. The learned trial judge stated in his judgment as follows-
“Exhibit D17 is an important document. It is the white paper on M. F. Oye Panel’s report.
It is one of the 18 documents tendered by the defence.”
It is important to mention here that Exhibit D17 was clearly marked “draft White Paper”. One may ask, is Exhibit D17 the “White Paper on M. F. Oye Panel’s report” as claimed by the learned trial judge in his judgment? My answer is No. I answer the question in the negative because the draft of any document means a rough preliminary written version of that document. (See Oxford Advanced Learner’s Dictionary). It goes without argument, in my view, that a preliminary written version of any document may eventually not turn out to be the final version of that document. The point being made is that a draft White Paper is not the same thing as “the White Paper”.
It is trite that the general method of proving a public document is by the production of the certified copy of the document. In the present case, Exhibit D 17 was neither the original nor the certified copy of the original. It is also trite that where a document is made inadmissible by law under any circumstance, it is not within the competence of the court, or the parties in the suit to admit the document by consent. (See Minister of Land, Western Nigerian v. Azikiwe (1969) 1 All NLR 49). It is my view that Exhibit D17 should not have been received in evidence.
I am also of the firm view that this Court should not uphold a judgment that is anchored on a worthless, unsigned, and inadmissible document, notwithstanding the fact that an objection was not taken as to its admissibility. See Abdul Hamid Ojo v. Primate E. O. Adejobi & Ors. (1978) 3 SC 56.
The general rule is that the onus is on a plaintiff in a civil case to prove his case on a preponderance of evidence or on balance of probabilities. In the present case, the 1st respondent did not plead among other facts, the number of ruling houses in Oke-Oyi. I am aware that the 1st respondent gave evidence as to the number of ruling houses in Oke-Oyi. It is trite that evidence given on a fact that is not pleaded goes to no issue and should be disregarded. Emegokwue v. Okadigbo (1973) 4 SC p. 113. Unfortunately the learned trial Judge did not observe this elementary rule. He based his judgment on facts that are not pleaded.
It is my view that if evidence on the facts that are not pleaded are expunged the claim of the 1st respondent to the stool of Bale of Oke-Oyi cannot be established. It is also my view that the position is the same, even if those facts which are not pleaded by the 1st respondent are pleaded by the appellants. In such a case, the 1st respondent is entitled to adduce evidence in rebuttal of those facts as he did not raise them in his pleadings. Michael Nwachukwu & Ors. v. Nnamdi Onuoha & Ors. (1995) 9 NWLR (pt.421)603. The decision of the Supreme Court in Lawrence Onyekaonwu & Ors. v. Ekwubiri & Ors. (1966) NSCC 151 All NLR 49 cited by the learned trial Judge is to be considered in this light.
Still on facts not pleaded by the 1st respondent, in Nigerian jurisprudence a customary Law is regarded as a fact, therefore it must be specifically pleaded like any other fact. It follows that if it is the custom of Oke-Oyi people that when a Bale dies the title moves to another ruling family, the fact must be pleaded. See Mrs. Ada Onwuchekwa v. Ibe Onwuchekwa & Ors. (1991) 5 NWLR (Pt.194) at 739. The 1st respondent should have pleaded therefore that on the death of a Bale the title goes to another ruling family in Oke-Oyi. He did not plead it. Nevertheless, the learned trial judge held that-
“Assuming only for the purpose of argument that Ile Tuntun is a Ruling House in view of the well established rotational arrangement, it might be easier for the camel to pass through the needle’s eye than for Isaa Akana to succeed his father directly.”
In paragraph I of the statement of claim the 1st respondent pleaded as follows –
“The plaintiff was appointed Oluo of Oke Oyi by the Oke Oyi Kingmakers who are the traditional appointors for the office of Oluo.”
The second respondent in his Statement of Defence made a general denial of the averment. In paragraphs 19 & 20 he specifically averred as follows –
“19 The 1st defendant avers that as a result of the vacant stool of Bale of Oke Oyi since 17/6/88 and having been recommended and nominated by the Ile Tuntun family and Kingmakers he applied on 24/10/88 to the Emir of Ilorin, who is the head of the Ilorin Emirate Council for the appointment as the Village Head (Bale) of Oke Oyi.”
20. The 1st defendant states that the 5 Kingmakers in Oke Oyi namely Elemono, Akogun, Jagun, Baba, Gbodu and the Balogun recommended him to the 2nd defendant as the Bale of Oke Oyi.”
From the state of pleadings, the 1st respondent should have called the Kingmakers whom he claimed to have appointed him Bale of Oke-Oyi to give evidence. This is because it is the case of the appellants that the 1st respondent was never at any time appointed by the Kingmakers in line with the native law and custom of Oke Oyi.
I am aware that the law does not prescribe any number of witnesses that a party should call in order to have judgment in his favour or prove a point. Stephen Onowhosa & Ors. v. Peter Odiuzou (1999) 1 NWLR (Pt.586) 173. I am however of the firm view that from the state of the pleadings the part played by the Kingmakers of Oke-Oyi in appointing a Bale for the town is vital. The Kingmakers are therefore vital witnesses who should have given direct evidence of the part they played in the appointment of the 1st respondent as Bale of Oke-Oyi. Framo Nig. Ltd v. Shaibu Daoudu (1993) 3 NWLR (Pt. 281) 372.
It is therefore a very serious omission on the part of the 1st respondent not to have called any of the Kingmakers to give evidence of his appointment.
In sum, the 1st respondent failed to lead evidence to establish his appointment as Bale of Oke-Oyi by the Kingmakers. In that light, the only logical thing for the learned trial judge to have done was to have dismissed the claim of the 1st respondent. Chief Abusi David Green v. Chief E. T Dublin Green (1987) 7 SCNJ 255 at 259; (1987) 3 NWLR (pt.61) 480.
It is trite that the aim of an injunction is to protect an established right. As the 1st respondent has not established his right to the vacant stool of Bale Oluo of Oke-Oyi it was wrong for the learned trial judge to have granted him an injunction against the 2nd respondent and the appellants.
On issue 5, the learned Attorney-General referred to the judgment of the lower Court and contended that the learned trial judge was in error to have held that the Emirate Council has only advisory power on Chieftaincy matters in its domain. He referred to the provisions of section 15 of Chiefs (Appointment & Deposition) Amendment Edict No. 3 of 1988 and contended that sub-section 3 thereof conferred the power to appoint the Bale of Oke-Oyi on Ilorin Emirate Akintola Esq., of Counsel, agreed with the submission.
Prince Ijaodola, of Counsel, in his reply contended that section 15(3) of the Chiefs (Appointment And Deposition) Amendment Edict, No.3 of 1988 is limited to the payment of non-refundable deposit of N10,000.00 by Chieftaincy contestants. In his view, sections 3 and 4 of the Chiefs (Appointment & Deposition) Law regulate the appointment of Chiefs in Kwara State.
I agree entirely with the submission of Prince Ijaodola, of Counsel, that the provision of section 15 of Edict No.3 of 1988 is limited to payment of nonrefundable deposit of N 10,000.00. It does not regulate the appointment of Chiefs in Kwara State.
On issue 6, the learned Attorney-General observed that the learned trial judge awarded N12,500.00 as costs to the 1st respondent. It is his view that the learned trial judge should have specified who amongst the three defendants is to pay the costs. He contended that the order for payment of cost is therefore vague. He submitted that although payments of costs is at the discretion of the trial judge, the learned trial judge should in awarding the costs exercise his discretion judicially and judiciously. He reminded the court that the out of pocket expenses of the 1st respondent was N170. It is his view therefore that the cost is excessive and punitive.
Prince Ijaodola, of Counsel, in his reply reminded the court that the 1st respondent paid a non-refundable deposit of N10,000.00 before he was allowed access to court. He submitted that the award of N12,500.00 as costs to the 1st respondent was reasonable and purely compensatory in the circumstances of the case.
Akintola Esq., of Counsel, in his own reply submitted that the learned trial judge should have given reason for the award of such a huge sum as costs in favour of the 1st respondent. He cited the case of Duru v. Nwosu (1989) 4 NWLR (Pt.113) 24. In his view, an award of costs to a successful party in a suit should be based on recognised principle of law. He cited the cases of:
UBN v. Nwaokolo (1995) 6 NWLR (Pt. 400) 127; Nwaubani v. Golden Guinea Breweries Plc. (1995) 6 NWLR (pt.400) 184.
He urged the Court to set aside the order made by the court as to costs.
It is said that costs follow event. It has to be realised however that the object of an award of costs is not to punish the unsuccessful litigant but to compensate the successful party for the expense he incurred by coming to court.
In the present case, from the records, the out of pocket expenses of the 1st respondent was N 170. The parties made on the whole seven appearances before the trial judge. We have, however, to realise that this is a Chieftaincy matter.
After the bitter action, the next thing is to work for peace in the town. It is because of this that courts generally award nominal costs in chieftaincy disputes as a first step to bringing reconciliation in the town.
By the very nature of a Chieftaincy dispute, parties in the suit should expect to suffer some financial loss. In the light of the above, it is my view that the award of N12,500.00 to the 1st respondent as costs is excessive and cannot be justified. The parties should bear their expenses.
The learned Counsel for the 1st respondent formulated two issues in respect of the cross-appeal. They are –
1. Was it right for the learned trial judge to have made the recommendation or entreaty when neither side sought for it and the Emir was not a party to the proceedings?
2. Should the Emir disregard a chief whose appointment was made by the Kingmakers and approved by the Kwara State Governor?
It is the view of Prince Ijaodola, of counsel, that a court is not competent to give a party what he has not sought for. He cited the following cases –
P. C. Imoloame v. WAEC (1992) 11-12 SCNJ 121; (1992) 9 NWLR (Pt.265) 303
F. A. Akinbobola v. Plisson Fisko Nig. Ltd. (1991) 1 SCNJ 127; (1991) 1 NWLR (Pt.167) 270
Hon. Justice A. Ademola v. Chief H. Sodipo & Ors. (1992) 7 SCNJ 127; (1989) 5 NWLR (Pt 121) 329
The learned Counsel further submitted that an order should not be made against a non-party to a proceeding.
The learned Counsel for the appellants and the 2nd respondent urged the court to dismiss the cross-appeal. I answered the point raised in the above issue when I dealt with issues 1 – 4 in the main appeal. I need not waste time on it again. On issue 2, Prince Ijaodola, of counsel, contended that the Emir has no power to disregard a Bale appointed by the Kwara State Governor.
He urged the court to answer issue 2 in the negative.
In respect of issue 2, I refer to the case of Akeredolu v. Akinremi (1986) 2 NWLR (Pt. 25) 710 at 725 where Nnamani, J.S.C. (as he then was) observed that “It has long been established that this court will not render an advisory opinion nor will it deal with a matter which is speculative and academic. The Court deals with live issues.”
It is my view, that the issue is speculative. I do not intend to say any thing on it in view of the above decision. For avoidance of doubt, the resolution of issue One, in the cross-appeal, has nothing whatsoever to do with the substantive appeal.
In the final result, five of the six issues formulated by the appellants are resolved in their favour. The appeal succeeds. In consequence, the judgment of Gbadayan J, in suit KWS/185/94, delivered on 24th November, 1995 is hereby set aside.
The appeal is allowed. I make no order as to costs.

OKUNOLA, J.C.A.: I have had the privilege of reading in draft the leading judgment of my learned brother Amaizu JCA, just read. My learned brother has succinctly dealt with all the issues raised and canvassed by Counsel to the parties. I agree with the reasoning and conclusion of my learned brother in the leading judgment that the appeal is meritorious and should be allowed.
I also allow the appeal and abide by the consequential orders in the leading judgment including the order as to costs.

ONNOGHEN, J.C.A.: I have had the opportunity of reading in draft the lead judgment just delivered by my learned brother Amaizu, JCA. I agree with his reasoning and conclusion that this appeal be allowed. I however, wish to contribute one or two issues raised in the appeal.
Issue No.2 is whether the trial court was right to have relied so heavily on exhibit D 17. In other words, the issue deals with the weight, if any, to be attached to exhibit D17. The said exhibit D17 is the draft White Paper on M.F. Oye Panel of Enquiry into the dispute between the parties.
Learned counsel for the appellants has submitted that it was wrong for the court to have relied so heavily on the draft White Paper despite its apparent poor probative value. That exhibit D17 is supposed to be a public document. That it does not bear the government seal nor does it bear any signature. That Exhibit D17 is neither the original nor certified true copy. Relying on the authority of Minister of Lands, Western Nigeria v. Azikiwe and Ors. (1969) 1 All NLR 49. Learned Counsel submitted that only a certified true copy of the document and none other was admissible despite the fact that the issue of admissibility may not have been contested at the trial.
In his reaction, learned Counsel for the 2nd respondent Prince Ijaodola submitted that the trial judge is right in relying on exhibit D17 since it was pleaded by the appellants and tendered by consent. Learned counsel further stated as follows and I quote:
“A pleader or a tenderer should not be heard to complain that his evidence, whether oral or documentary, should not be used to decide his case.”
He then urged the court to resolve the issue against the appellants.
In his arguments, learned Counsel for the 1st respondent, Adeniyi Akintola Esq., formulated that issue as No.7 and agreed with the argument of the appellants thereon.
To begin with, Exhibit D17 is a draft White Paper – not the final copy. Black’s Law Dictionary with Pronunciations, 5th Ed. at page 443 defines the word ‘draft’ inter alia, as follows:
“A tentative, provisional or preparatory writing out of any document (as a will, contract, lease etc) for purposes of discussion and correction, which is afterwards to be copied out in its final shape.” That being the case it is my considered opinion that Exhibit D17 does not contain the Kwara State Government’s final views on the report of enquiry it relates to since it is merely a draft copy. That Exhibit D17 therefore has no weight at all since it has no probative value.
Another point of interest is the fact that exhibit D17 is not signed by anybody yet the learned trial Judge relied on it. It has always been the law that an unsigned document is worthless and void. In the instant case Exhibit D17 is not signed, neither was any one called to identify it as the maker, if any. It is therefore obvious that Exhibit D17 is not only inadmissible in evidence it is void – it has no probative value and as such the trial court was wrong in relying on it in arriving at its conclusion – see Ojo v. Adejobi (1978) 3 SC 65 at 74; Anaeze v. Anyaso (1993) 5 SCNJ 151 at 168 – 169; (1993) 5 NWLR (pt.291)1; A-G, Abia State v. Aguaranya (1999) 6 NWLR (pt.607) 362.
There is the sub-issue raised as regards the admissibility of, and weight to be attached to Exhibit D17 – that is not a certified true copy since it is supposed to be a public document.
I do not agree with the learned counsel for the appellants in this regard. When we talk of a certified true copy we presuppose the existence of the original. In other words, you cannot talk of a certified true copy of a document which has no original. In the present case, there is no original of exhibit D17 since Exhibit D17 is a draft copy. It follows therefore that even though it is the law that the secondary evidence of a public document that can be admissible in evidence is a certified true copy, that principle of law does not apply to the instant case as far as Exhibit D17 is concerned.
That apart, if Exhibit D17 had not been a draft copy but a final one approved and signed by the appropriate authority and printed and published by the Kwara State Government printer as required by law it would have been an original copy by virtue of the provisions of section 94(4) of the Evidence Act, 1990 which provides, inter alia as follows and I quote:
“(4) Where a number of documents have all been made by one uniform process, as in the case of printing, lithography, or photography, each shall be primary evidence of the contents of the rest; but where they are all copies of a common original, they shall not be primary evidence of the contents of the original.”
In view of the above stated reasons and the law, it is my view that the issue of Exhibit D17 not being a certified true copy is irrelevant in view of the fact that the said Exhibit D17 is a draft copy, not signed etc and therefore has no original copy from which a certified true copy could have been produced in accordance with the provisions of section 111 (1) of the Evidence Act, 1990.
The other issue 1 wish to comment on is that dealing with award of costs of N12,500.00 i.e. issue No.6.
Learned counsel for the appellants has argued that the award is excessive, punitive and unspecific. That the order did not specify who should pay the cost since there are three sets of defendants in the case.
That the Court did not exercise its discretion judicially and judiciously. In his reaction, learned Counsel for the 2nd respondent submitted that the N10,000.00 non-refundable deposit was recoverable under Order 53 Rule 7 of the High Court (Civil Procedure) Rules, 1989 as a necessary expense that the plaintiff had to incur before he could be granted access to court. That the award was reasonable and purely compensatory in the circumstance of the case.
Learned counsel for 1st respondent submitted that the award is excessive and that no reason was given for it. He urged the Court to set it aside.
It is my considered view that costs are meant to compensate one of the parties, most often the successful party, for expenses he has incurred in the litigation. It is however trite that costs is at the discretion of the court but like every judicial discretion it must be exercised judicially and judiciously.
In the case of Haco Ltd. v. S. M. Daps Brown (1973) 1 NMLR 158 at 161, Irikefe AG, J.S.C. (as he then was) stated that:
“The award of costs involves a judicial discretion which must be exercised on fixed principles, that is according to rules of reason and justice, not according to private opinion.
Similarly, the exercise of this discretion must not be affected by questions of benevolence or sympathy.”

In the present action, Chief Joseph Alao was by law bound to pay N10,000.00 non-refundable deposit before instituting the action at the lower Court. He duly made the deposit but asked for an order refunding same to him which the court refused to make. However, what the court refused to order by way of relief it awarded by way of costs to the said Chief Alao. The award of N12,500.00 by way of cost cannot be said to have been made according to rules of reason and justice. Not only is the cost very excessive, it seems to me that the award is affected by question of benevolence or sympathy which the law does not admit. It must also be borne in mind that costs are awarded to indemnify the successful party not as punishment on the party who pays them nor given as a bonus to the party who receives them – see Rewane v. Okotie-Ebolt (1960) 5 FSC 200 at 206; (1960) SCNLR 461.
That apart, the defendants in this case were represented by two counsel. One set of the defendants relate to the government of Kwara State while the other one is an individual. The learned trial Judge failed to state the amount to be paid by either defendant or whether the costs was to be paid jointly and or severally.
It is my view that, in view of the facts and circumstances of this case, the award of N12,500.00 by way of costs is wrongful and should be set aside. A lower sum ought to have been awarded by this court but due to the fact that plaintiff in the lower Court failed to prove his case as can be seen in the lead judgment.
In conclusion therefore, the judgment of the lower Court is hereby set aside and in its place is entered an order dismissing the plaintiffs case. I abide by the consequential orders made in the lead judgment.
Appeal allowed.

Appearances