CHIEF JAMES MOLEGBEMI & ORS v. CHIEF AMOS AJAYI & ORS
(2011)LCN/4240(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 19th day of January, 2011
CA/IL/33/2009
RATIO
DELAY IN DELIVERY OF JUDGMENT: PROVISIONS OF THE STATUTE AS TO WHETHER A DECISION OF THE COURT DELIVERED LATER THAN NINETY DAYS AFTER THE CONCLUSION OF EVIDENCE AND FINAL ADDRESSES OF COUNSEL, WILL BE SET ASIDE OR TREATED AS A NULLITY
I find it pertinent to point out now that the cases of Gagarau v. Pashiri (supra) and Dibiamaka & 2 Ors v. Osakwe & 2 Ors (supra) cited by learned counsel for the Appellants are cases decided on the 1979 Constitution. The position of the law has now shifted, even under the 1979 Constitution in view of the provision of Section 4 of the constitution (Suspension and Modification) Amendment Decree No.17 of 1985. That Decree Amended section 258(1) of the 1979 Constitution of the Federal Republic of Nigeria. The amendment was to the effect that failure by the courts of law in Nigeria to deliver their judgment within 3 months in contravention of section 258(1) of the constitution aforementioned, would not ipso facto lead to the judgment being set aside or treated as a nullity unless the court exercising Appetlate jurisdiction over the matter is satisfied that the party complaining has suffered a miscarriage of justice. The amendment to Section 258 of the 1979 Constitution was enshrined in the 1999 Constitution of the Federal Republic of Nigeria as Section 294 (5). This Provision stipulates, thus: “The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining suffered a miscarriage of justice by reason thereof.” From the foregoing, I need not mince words in stating that though section 294(1) of the 1999 constitution enshrines that, every court established under the constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses of counsel, I am in agreement with learned counsel for the 1st and 2nd Respondents that, failure of the court to so deliver judgment within the stipulated ninety days does not ipso facto render such judgment(s) automatically null and void. To have such judgment set aside as a nullity, the party complaining has the onus to satisfy the appellate court that failure to deliver judgment within the prescribed period or time, has occasioned a miscarriage of justice. This fact may not be presumed in his favour. My Lord C.N. Uwa, JCA adroitly captured the position of the law when he held in the case of Ayinke Stores Ltd v. Adebogun (supra) at p. 625 paras. F – G as follows: “No doubt from records, the judgment in the trial court was delivered outside the three months period within which the decision of the court ought to have been delivered after final addresses. However, section 294(1) above should not be read, interpreted and applied in isolation. It should be read, with section 294(5) in mind. By the latter provision, the decision of the court is not to be set aside or treated as a nullity on the ground of non-compliance with subsection (1) above, solely on the ground of non-compliance with subsection (1) above.” PER HARUNA MOH’D TSAMMANI, J.C.A.
DELAY IN DELIVERY OF JUDGMENT: WHETHER IN DETERMINING WHETHER A PARTY HAS SUFFERED A MISCARRIAGE OF JUSTICE AS A RESULT OF DELAY IN THE DELIVERY OF JUDGMENT BETWEEN THE CONCLUSION OF TRIAL AND THE DELIVERY OF JUDGMENT, EMPHASIS MUST BE ON THE LENGTH OF TIME
In determining whether a party has suffered a miscarriage of justice as a result of delay in the delivery of judgment between the conclusion of trial and the delivery of judgment, the emphasis is not on the length of time simplicter, but on the effect the delay produced in the mind of the court. Thus, if the court’s evaluation of evidence bears mark of freshness and its findings of fact are supported by credible evidence, its judgment will not be set aside. See Didiamaka & Ors v. Osakwe & Ors (1989) 3 NWLR (pt. 107) p. 101; Egwu v. Egwu (supra) at pp. 505 – 506 and Anyafulu v. Agazie (2006) 5 NWLR (pt. 973) p. 260. PER HARUNA MOH’D TSAMMANI, J.C.A.
EVALUATION OF EVIDENCE: THE DUTY OF EVALUATING AND ASCRIBING PROBATIVE VALUE TO ALL RELEVANT ORAL AND DOCUMENTARY EVIDENCE LIES WITH THE TRIAL JUDGE AND THE APPELLATE COURTS ARE USUALLY RELUCTANT TO INTERFERE WHERE THE TRIAL COURT HAS PROPERLY APPRAISED AND EVALUATED EVIDENCE PRESENTED BEFORE IT
it is trite law that this court has the power to evaluate the evidence on the record and to do what is just in the circumstances. Thus, this court has the power to make any findings which ought to be arrived at by the trial court based on the evidence on the record. The general rule however is that the evaluation of evidence and the ascription of probative value thereto reside within the province of the trial court that sees, hears and assesses the witnesses. In other words, the duty of evaluating and ascribing probative value to all relevant oral and documentary evidence lies with the trial judge who had the advantage of seeing and hearing the witnesses. Accordingly, where the trial judge diligently and justifiably evaluates and appraises the facts, it is not the duty or business of the Appellate court to substitute its own view for that of the trial judge. Thus, appellate courts are usually reluctant and loathe to interfere where the trial court has properly appraised and evaluated evidence presented before it. It is therefore the primary duty of the trial court to evaluate evidence, make findings of facts and apportion probative value thereon. See P.T.F. v. W.P.C. Ltd (2007) 14 NWLR (pt. 1055) p 478; Omaye v. Omagu (208) 7 NWLR (pt.1087) p.461; Gagarau v. Pashiri (2006) 1 NWLR (pt. 962) p.521; Ismail v. State (2008) 15 NWLR (pt. 1111) p. 593 and Ojeleye v. Reght T.O.I.M. & S.C.N (2008) 15 NWLR (pt.1111) P.520. PER HARUNA MOH’D TSAMMANI, J.C.A.
INTERFERENCE WITH THE EVALUATION OF EVIDENCE OF A TRIAL COURT: CIRCUMSTANCES WHERE THE APPELLATE COURT WILL INTERFERE WITH THE EVALUATION OF EVIDENCE OF A TRIAL COURT
It is only where the trial court failed to evaluate or failed to properly evaluate that this court can do what the trial court ought to have done and accordingly set aside the finding made by the trial court. It is the party who complains that the trial court did not evaluate the evidence that has the duty to show how the judgment of the trial court would be found to be wrong if the omission by the court is corrected. The attitude of this court in respect of the evaluation of evidence of a trial court is that in considering whether or not a trial court evaluated or properly evaluated the evidence, the essential consideration should be whether the trial court made proper findings and thus reached the correct judgment upon the facts before it. The method or approach is not a necessary determining factor. In that respect, this court may interfere in the following circumstances: a. Where there is insufficient evidence to sustain the judgment; or b. Where the trial court failed to make proper use of the opportunity of seeing, hearing and observing the witnesses; or c. Where the findings of fact of the trial court cannot be regarded as resulting from the evidence; or d. Where the trial court has drawn wrong conclusion from accepted evidence; or has taken an erroneous view of the evidence adduced before it: or e. The trial court’s findings are perverse in the sense that they do not flow from accepted evidence or are not supported by evidence before it. See Akindipe v. State (2008) 15 NWLR (pt. 111) p.560; Mafimisebi v. Ehuwa (2007) 2 NWLR (pt. 1018) p. 385; P.T.F. v. W.P.C. Ltd (supra) at P. 498 paras. A – E and Anyafulu v. Agazie (2006) 5 NWLR (pt. 973) p. 260. PER HARUNA MOH’D TSAMMANI, J.C.A.
POSITION OF THE LAW WHERE THERE ARE MATERIAL OR GRAVE CONTRADICTIONS IN THE EVIDENCE OF A PARTY AND WHICH CONTRADICTIONS TOUCH ON A VITAL OR MATERIAL POINT IN ISSUE
The law is that, where there are material or grave contradictions in the evidence of a party and which contradictions touch on a vital or material point in issue, such party’s case becomes weakened. The result is that such party’s case is taken with a pinch of salt and therefore regarded as unreliable and therefore of no probative value. See Esika v. Medolu (1997)2 NWLR (pt.485) p.54 at p.69; Okereke vs. The State (1998) 3 NWLR (pt. 540) p. 73 at p. 91; Oluma v. Onyuna (1996) NWLR (pt. 443) p. 449 and Ayinde v. Abiodun (1998) 8 NWLR (pt. 616) p 587. PER HARUNA MOH’D TSAMMANI, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA MOH’D TSAMMANI Justice of The Court of Appeal of Nigeria
Between
1. CHIEF JAMES MOLEGBEMI (For and on behalf of Afata Family of Oke-Ako)
2. SOLOMON ENIOLA OSASONA
3. CHIEF S.K. OLAJIDE (THE EJEMU)
4. CHIEF SAMSON BAMIGBOYE (THE ASAONI Appellant(s)
AND
1. CHIEF AMOS AJAYI (The ObalOkeafin of Oke-Ako for himself And on behalf of Oke-Aofin Family, Oke-Ako)
2. MR. FOLAYAN OLUKOSI
AND
3. CHIBF EMMANUEL OYUN. The Agbana
4. CHIEF DELE OSATUYI, The Olukoju
5. CHIEF ADE AROSANYIN, The Otun
6. CHIEF SEHUN BAMIDBLE, The Ajapona
7. THE EXECUTIVE GOVIRNOR, Ekiti State
8. THE ATTORNEY-GENERAL Ekiti State
9. THE SECRETARY, Ikole Local Government Respondent(s)
HARUNA MOH’D TSAMMANI, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of C.A. Akintayo J. of the Ekiti state High court sitting at Ado-Ekiti delivered on the 31st day of March, 2008 wherein he granted all the reliefs sought by the 1st and 2nd Respondents, who were Plaintiffs at the lower court. The 3rd, 4th, 5th, 6th, 7th, 8th and 9th Respondents in this appeal were the 5th, 6th, 7th, 8th, 9th, 10th and 11th Defendants at the lower court.
From the record of appeal, the claim of the 1st and 2nd plaintiffs (1st and 2nd Respondents) as contained in their statement of claim is as contained in paragraph 50 of the statement of claim. Therein, they claimed as follows:
1. Declaration that under the Customary Law regulating appointment of the Owa of Oke Ako Chieftaincy, there are two Ruling Houses for the chieftaincy the identity of which are Aofin and Okediosan Ruling Houses.
2. Declaration that upon the demise of the late Oba J.O. Ogunbiyi from Okediosan Ruling House in December, 2000, it is the turn of Aofin Ruling House to nominate a candidate or candidates for the vacant stool of Owa of Oke Ako.
3. Declaration that the Aofin Ruling House of Oke Ako is made up of three families namely Oke Aofin, Odo Aofin and Afata and none of these families constitutes a separate or distinct Ruling House.
4. Declaration that under the existing Customary Law regulating appointment of an-Owa of Oke Ako, All adult male member (sic) of Aofin Ruling House from all the three families of Oke Odo Aofin and Afata constituting the Ruling House are eligible for consideration when it is the turn of Aofin Ruling House to ascend the throne.
5. Declaration that upon the demise of Oba J.O. Ogunbiyi from Okediosan Ruling House, the right to present the next Owa of Oke Ako had become vested in the Aofin Ruling House as a unit and no amendment can be made to the Customary Law or declaration to divest the Aofin Ruling House of that right.
6. Declaration that the Recommendations of the Ikole Local Government Traditional Council for the position of Owa of Oke Ako to rotate between Afata and Okediosan Ruling Houses is perverse, unconstitutional, contrary to the rules of natural justice, and at variance with the custom and tradition regulating selection of Owa of Oke Ako.
7. Injunction restraining the Defendants jointly and/or severally from implementing the recommendations of the Ikole Local Government Traditional Council for recognition of Afata and Okediosan as the two Ruling Houses for the Owa of Oke Ako Chieftaincy to the exclusion of the Oke Aofin family.
Injunction restraining the Defendants jointly and/or severally from treating Afata Ruling House as a Ruling House for the Owa of Oke-Ako Chieftaincy or calling upon Afata family to present a candidate to the exclusion of other members of Aofin Ruling House.
The 1st Respondent is the head of the Oke-Aofin family, one of the three families constituting the Aofin Ruling House, while the 2nd Respondent is the member of the Aofin Ruling House interested in contesting the stool of Owa of Oke-Ako. The 1st Appellant is the head of the Afata family while the 2nd Appellant was the candidate nominated to contest for the throne of Owa of Oke-Ako by the Afata family.
Briefly, the 1st and 2nd Respondents’ case at the lower court is that, there are two Ruling Houses in Oke Ako, to wit: Aofin Ruling House and Okediosan Ruling House and that it is the custom in Oke Ako that ascension to the throne of Owa of Ake Ako alternates between the two Ruling Houses.
That this practice was established by the recommendations of Justice Oluwole chieftaincy Review commission and accepted by the Government vide a white Paper. That the last Owa who was from the Okediosan Ruling House died in December, 2000 and thus it became the turn of the Aofin Ruling House to produce the Owa and in accordance with that custom, two members of the Aofin Ruling House showed interest in contesting for the vacant stool; to wit: the 2nd Appellant and the 2nd Respondent. The 2nd Appellant is from the Afata Section of the Ruling House while the 2nd Respondent is from Oke Aofin.
It is also their case that, as custom demands, the 1st Appellant as head of the Ruling House, had the duty to summon a meeting of all the members of the Ruling House to decide on which of the two candidates who had shown interest is to be presented to the Kingmakers, failed to call such meeting, but presented only the name of the 2nd Appellant as the sole candidate for consideration by the Kingmakers. That the Kingmakers comprising the 3rd, 4th, 5th and 6th Respondents, being aware of the interest of the 2nd Respondent insisted that all male members of the Aofin Ruling House are eligible to contest and that the 1st Appellant should forward the names of all persons who had shown interest for consideration. This action of the Kingmakers ignited a series of petitions to the Traditional council of the Ikole Local Government, which set up a 3 man committee headed by Oba J.F. Ala, the Owa of Oke-Aiyedun. That the Committee took memoranda from interested members of the public, heard oral evidence and subsequently recommended that all male members of the Aofin Ruling House, from whichever branch of the House was eligible to contest for the throne of Owa of Oke-Ako. That the Afata family who were not pleased with that recommendation petitioned the Ikole Local Government Traditional council and that the council without hearing any of the parties upturned the Oba J. Ala’s committee Report and decided that only the 1st and 2nd Appellants’ Afata family can produce a candidate for the Owa of Oke Ako stool when it is the turn of the Aofin Ruling House to present a candidate. Dissatisfied, the 1st and 2nd Respondents took up a writ of summons in the High court of Ekiti State and sought the reliefs as earlier reproduced in this Judgment.
The position of the Appellants is that, while they agree that it is the turn of the Aofin Ruling House to produce the next Owa of Oke-Ako, it is only their Afata family of the three families comprising the Aofin Ruling House, that can present a candidate for the Owa of Oke-Ako stool to the exclusion of the other two families of Oke-Aofin and Odo-Aofin. That it has always been the Afata family that produce candidates for the stool, while the other two families have been producing Kingmakers.
At the trial before the lower court, evidence was led on behalf of the parties and several documents tendered and admitted as exhibits. At the close of evidence, the parties filed written Addresses and the matter adjourned for judgment. In a considered judgment delivered on the 31st day of March, 2008, the learned trial judge gave judgment for the plaintiffs and granted all the reliefs sought by them. The 1st, 2nd, 3rd and 4th Defendants (now Appellants) are dissatisfied with the judgment of the lower court and have thus filed this appeal consisting of eight grounds of Appeal vide Notice of Appeal dated 21/15/2008 and filed on the 22/5/2008.
The grounds of Appeal without their particulars, are as follows:
(1) The lower court erred in law when it held thus:
“I declare that under the customary law regulating appointment and (sic) of Oke-Ako, all adult male members of the Aofin Ruling house are eligible for nomination, selection and appointment to the Awo of Oke Ako Chieftaincy stool.”
2. The lower court misdirected itself in law when it held thus:
“As I have held earlier, the position of the government white paper on the Oluwole’s Chieftaincy Review Committee is that there is Aofin ruling house in Oke Ako.
There is no where Afata ruling house was recommended even though all Afata from Aofin Ruling house have come from Afata. There is the evidence that Aofin Ruling House consists of Afata, Odo Aofin and Oke Aofin and that all male members of the entire Aofin ruling house is eligible to be Owa. The evidence of the witness of the 5th- 8th Defendants is very instructive on this. I hold therefore that Aofin ruling house consists of Afata, Oke Aofin and Odo Aofin.”
3. The lower court misdirected itself and came to a perverse decision in holding that:
“There is evidence that families in Oke Ako have hand (sic) occasion to produce both Kingmakers and Owa. All witnesses agree to this. Example was given of Oke Idiosan that Jacob Taiwo Ogiunbiyi the Agbana was a Kingmaker and his son Jackson Omotayo Ogunbiyi was an Owa. It is however, the contention of the 1st Defendant that Afata section of the Aofin has never produced a Kingmaker but Owa while Oke Aofin and Odo Aofin have done so. What is important of (sic) this stage is that the evidence before this court point to the fact that it is possible in Oke Ako for a family to produce a kingmaker and Owa and I so hold.”
4. The lower court erred in law in failing to properly evaluate the evidence as a result of which wrong findings of facts were made and wrong conclusion reached by the lower court when it held thus:
“From the totality of the evidence before me and the consideration of the relevant authorities, I hold that the Plaintiff (sic) have succeeded in probability and preponderance of evidence.”
5. The lower Court erred in law when it wrongly relied on the Marriage Act in holding that:
“l hold the view that the fact that there are one or two instances where Afata (sic) and Oke Aofin do intermarry is not sufficient and necessary fact to conclude that the two families are not related.”
The lower court erred in law when it held thus:
“I hold the view that the Government White Paper on Oluwole Chieftaincy Review Commission as regard Owa of Oke Ako is still valid to the effect that there are two ruling houses in Oke Ako i.e. Oke Idiosan and Aofin ruling houses and that all the male members of Aofin are eligible to be considered for the Owa of Oke Ako regardless of whether such candidates is from Afata, Oke Aofin or Odo Aofin. It has also been established that the last Owa was from Oke Idiosan and that it is the turn of the Aofin ruling house now to produce the next Owa of Oke Ako.”
7. The judgment and decision of the lower court is a nullity, the judgment having been delivered more than three months after addresses.
8. The decision of the lower court is against the weight of evidence.
In compliance with the rules and practice of this court, parties filed and exchanged briefs of argument. The Appellants’ brief of Argument which was settled by Ademola Adeyemi Esq. is dated the 3rd day of June, 2009 and filed the 4/6/2009. The 1st and 2nd Respondents’ brief of Argument is dated the 08/1/2010 and deemed filed the 10/3/2010, while that of the 7th and 8th Respondents is dated 9/3/2010 and deemed filed the 10/3/2010. The 3rd, 4th, 5th, 6th and 9th Respondents did not file any brief of argument in this appeal. The Appellants however filed a Reply Brief to the 1st and 2nd Respondents’ Brief of Argument.
In the Appellants’ Brief settled by Ademola Adeyemi Esq., six issues were raised for determination of the appeal as follows:
1. Whether or not only Afata Section of Aofin is entitled to produce an Owa of Oke Ako in Aofin in the light of evidence of custom and tradition (Grounds 1 and 2).
2. Whether or not the lower court is right in relying on Government White Paper on Oluwole Chieftaincy Review commission when same has no force of law and the declaration thereunder not registered (Grounds 2 and 6).
3. Whether or not the lower court was right in considering Okediosan Ruling House in the light of unassailable evidence on the reason why Afata Section does not produce Kingmaker (Ground 3).
4. Whether or not it was successfully established that Afata and Oke Aofin are not related (Ground 5).
5. Whether or not the decision of the lower court is justified vis-‘a-vis the evidence led before it (Grounds 4 and 8)
6. Whether or not the judgment of the court is a nullity having been delivered more than three months after the counsel addresses.(Ground 7).
The 1st and 2nd Respondents brief was settled by Ayodeji Makanjuola Esan Esq. Therein, the 1st and 2nd Respondents reproduced the issues as formulated by the Appellants and proceeded to adopt same as the issues arising for determination in this appeal. As I pointed out earlier in the course of this judgment, the 3rd, 4th, 5th, 6th and 9th Respondents did not file any brief of argument. The 7th and 8th Respondents simply adopted the issues as formulated by the Appellant and proceeded to adopt the entire submissions of the 1st and 2nd Respondents in their Brief of Argument as that of the 7th and 8th Respondents.
At the hearing of this appeal on the 21/10/2010, respective counsel adopted their briefs of argument. Before I proceed to consider the issues raised in this appeal, it is pertinent to note that, at the hearing of this appeal, Mr. Ademola Adeyemi of learned counsel for the Appellant had contended that the brief of argument filed by the 7th and 8th Respondents be discountenanced as same did not comply with Order 17 R 4 (2) of the Court of Appeal, Rules, 2007.
In response, Mr. Ayodeji Esan of learned counsel for the 1st and 2nd Respondents submitted that the argument of the Appellants in respect of the Brief of Argument of the 7th and 8th Respondents are issues which should be raised in a Reply Brief. Similarly, Mr. G. Adaramola of learned counsel for the 7th and 8th Respondents submitted that the Appellants are estopped from challenging the 7th and 8th Respondents’ Brief of Argument in view of Order 17 Rule 10 of the Court of Appeal Rules, 2007. He accordingly urged us to discountenance the Appellants’ argument along that line as the 7th and 8th Respondents have not breached any Rules of this court by adopting the arguments of the 1st and 2nd Respondents.
Now, Order 17 of the Rules of this Court deal with the Briefs of Argument by parties to an appeal before this court. The argument of the Appellants is that the 7th and 8th Respondents’ Brief breaches order 17 Rule 4(2) of the Rules of this court. The said order 17 Rule 4(2) stipulates as follows:-
“The Respondent’s brief shall answer all material points of substance contained in the Appellants, Brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis mutandis, also conform to Rule 3(1), (2), (3), (4) and (5) of this Order.”
It is instructive to note that, learned counsel for the Appellant did not indicate in what way or manner the 7th and 8th Respondents’ Brief of Argument breached order 17 Rule 4(2) of the Rules of this court. That is so especially when the said Respondents are well within the law to adopt the arguments of a party they agree with. Moreover, the Appellants did not raise the objection to the 7th and 8th Respondents’ brief of Argument in the Reply Brief filed on the 10/3/2010. It is always the law that a counsel who is presented with a defective or incompetent brief, should promptly raise objection to such defective or incompetent brief. Where counsel fails to take such objection timeously, I will agree with Mr. Adaramola of learned counsel for the 7th and 8th Respondents that, the Appellants are estopped at his stage from challenging the said brief. In any case, the attention of this court has not been drawn to any instance of a breach of order 17 Rule 4(2) of the Rules of this court. Accordingly, I would discountenance with the Appellants’ challenge to the 7th and 8th Respondents Brief of Argument. See L.S.D.P.C. v. Banire (1992) 5 NWLR (pt. 243) p. 620.
Now, considering the import and effect issue No. 6 may have on the validity of the entire judgment of the lower court, I propose to take same first. I shall then take issues 1, 2, 3 and 4 together and then issue No. 5 alone. Issue No. 6 is:
Whether or not the judgment of the court is a nullity having been delivered more than three months after the counsel addresses.
This issue is formulated from Ground 7 of the Grounds of Appeal.
Arguing this issue, learned counsel for the Appellant contended that Section 294(1) of the 1999 Constitution made it mandatory for every court established under the Constitution to deliver its decision not later than ninety days after the conclusion of evidence and final addresses. That the DW3 who is the last witness to testify in the case concluded evidence on the 20/2/2007 and counsel addressed the court on the 07/12/2007 after series of adjournments where of the court adjourned to the 18/1/2008 for judgment.
That judgment was however not delivered in the matter till the 31/3/2008 which is a date more than the ninety days required by the Constitution.
Learned counsel then submitted that, by the delay in delivering judgment on time, the trial court has lost the freshness of the facts and evidence from its mind and the effect it produced in the mind of the court led to a perverse decision. That had the trial court delivered judgment within time, it would have had the facts and evidence first on its mind and therefore its decision would not have occasioned a miscarriage of justice. The cases of Ayinke Stores Ltd v. Adeboyin (2008) 10 NWLR (pt. 1096) p.427 at p.625; Gagarau v. Pashiri (2006) I NWLR (Pt.962) P. 521 at pp. 632 – 633 and Dibiamaka & 2 Ors v. Osakwe & 2 Ors. (1989) 3 NWLR (pt. 107) p. 101 at p. 114 were cited in support.
The response of learned counsel for the 1st and 2nd Respondents is that the contention of the Appellants was only relevant under the extant 1979 constitution. That while under the 1979 constitution it was mandatory that the decision of the court be delivered within 90 days after the completion of evidence and final addresses, Section 294(5) of the 1999 constitution has introduced a germane section. Relying on the case of Owoyemi v. Adekoya (2003) 18 NWLR (pt. 852) p. 493 at p. 505, he went on to submit that by virtue of section 294(4) of the 1999 Constitution, the onus is on the Appellants to satisfy the court that failure of the trial court to deliver judgment within 3 months from the date of completion of evidence and final addresses occasioned a miscarriage of justice. The case of Gurfbat v. state (1994) 2 NWLR (pt.327)p. 435 at p.451 was further cited in support.
It is therefore the submission of learned counsel for the 1st and 2nd Respondents that, nowhere in the whole gamut of the Appellant’s Brief is any incident of memory lapse on the part of the trial judge alleged nor has there been pin-pointed any event of consequential miscarriage of justice which has occurred due to the delivery of the judgment later than 3 months after the conclusion of evidence and addresses of counsel. That in the absence of a consequential miscarriage of justice or some indication of some acts or pronouncements reminiscent of memory lapse occasioned by the length of time between the close of addresses of counsel and delivery of judgment of the lower court, an appellate court will not simpliciter declare the judgment of a lower court delivered outside the 3 months mandatory period a nullity. He cited the case of Didiamaka & Ors. v. Osakwe & Ors (supra) per Opura; JSC, Egwu v. Egwu (supru) at pp. 505 – 506 per Akpabio; JCA. Learned counsel cited section 294(5)of the constitution and the dictum of Uwa; JCA in the case of Ayinke Stores Ltd v. Adebogun (2008) 10 NWLR (pt. 1096) p. 612 at pp. 625 – 626, to further submit that, the case cited above does not support the Appellants’ case but supports the case of the 1st and 2nd Respondents to the extent that there has been no identifiable miscarriage of justice or instances of perceived memory lapses occasioned by the judgment of the lower court being delivered a few days after the mandatory 3 months prescribed by the Constitution. He accordingly urged us to resolve this issue against the Appellants and in favour of the 1st and 2nd Respondents.
I have carefully considered the submissions of counsel and the authorities cited by them.
I find it pertinent to point out now that the cases of Gagarau v. Pashiri (supra) and Dibiamaka & 2 Ors v. Osakwe & 2 Ors (supra) cited by learned counsel for the Appellants are cases decided on the 1979 Constitution. The position of the law has now shifted, even under the 1979 Constitution in view of the provision of Section 4 of the constitution (Suspension and Modification) Amendment Decree No.17 of 1985. That Decree Amended section 258(1) of the 1979 Constitution of the Federal Republic of Nigeria. The amendment was to the effect that failure by the courts of law in Nigeria to deliver their judgment within 3 months in contravention of section 258(1) of the constitution aforementioned, would not ipso facto lead to the judgment being set aside or treated as a nullity unless the court exercising Appetlate jurisdiction over the matter is satisfied that the party complaining has suffered a miscarriage of justice. The amendment to Section 258 of the 1979 Constitution was enshrined in the 1999 Constitution of the Federal Republic of Nigeria as Section 294 (5).
This Provision stipulates, thus:
“The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining suffered a miscarriage of justice by reason thereof.”
From the foregoing, I need not mince words in stating that though section 294(1) of the 1999 constitution enshrines that, every court established under the constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses of counsel, I am in agreement with learned counsel for the 1st and 2nd Respondents that, failure of the court to so deliver judgment within the stipulated ninety days does not ipso facto render such judgment(s) automatically null and void. To have such judgment set aside as a nullity, the party complaining has the onus to satisfy the appellate court that failure to deliver judgment within the prescribed period or time, has occasioned a miscarriage of justice. This fact may not be presumed in his favour. My Lord C.N. Uwa, JCA adroitly captured the position of the law when he held in the case of Ayinke Stores Ltd v. Adebogun (supra) at p. 625 paras. F – G as follows:
“No doubt from records, the judgment in the trial court was delivered outside the three months period within which the decision of the court ought to have been delivered after final addresses.
However, section 294(1) above should not be read, interpreted and applied in isolation. It should be read, with section 294(5) in mind. By the latter provision, the decision of the court is not to be set aside or treated as a nullity on the ground of non-compliance with subsection (1) above, solely on the ground of non-compliance with subsection (1) above.”
In the instant case, the record shows clearly that judgment was delivered by the trial judge outside the ninety days stipulated in section 294(1) of the 1999 constitution. There was therefore a clear non-compliance with that constitutional provision by the learned trial judge. However, to have this judgment set aside, the appellants must show that they have suffered a miscarriage of justice as a result of the failure of the lower court to deliver judgment within the constitutionally prescribed period or time. This, they must do by demonstrating from the facts on the record how a miscarriage of justice had thereby occasioned them. In determining whether a party has suffered a miscarriage of justice as a result of delay in the delivery of judgment between the conclusion of trial and the delivery of judgment, the emphasis is not on the length of time simplicter, but on the effect the delay produced in the mind of the court. Thus, if the court’s evaluation of evidence bears mark of freshness and its findings of fact are supported by credible evidence, its judgment will not be set aside. See Didiamaka & Ors v. Osakwe & Ors (1989) 3 NWLR (pt. 107) p. 101; Egwu v. Egwu (supra) at pp. 505 – 506 and Anyafulu v. Agazie (2006) 5 NWLR (pt. 973) p. 260.
In the instant case, apart from stating the obvious that judgment was delivered by the learned trial judge outside the ninety days required by the constitution, no effort was made to show this court how it led to a miscarriage of justice. Learned counsel for the Appellants merely stated in the Appellants brief of argument that, had the trial court delivered judgment within time, it would have had the facts and evidence on its mind and therefore its decision would not have occasioned a miscarriage of justice. Sadly, he did not demonstrate how that would have been so. He could have shown that the facts were not properly remembered, summarized or evaluated in that the learned trial judge suffered from memory lapse as a result of the delay. However, no single fact was brought before this court which shows or tends to show that it was wrongly remembered or evaluated as a result of lapse of time. I therefore do not hesitate in holding that the Appellants have failed to prove that they have suffered any miscarriage of justice as a result of the delay in the delivery of judgment within ninety days as required by Section 294(1) of the 1999 Constitution.
I had earlier indicated that I world treat issues 1, 2, 3 and 4 together.
Those issues had earlier on been reproduced in the course of this judgment.
I would therefore for the sake of brevity avoid reproducing them here.
Now, in arguing the 1st issue, Mr. Adeyemi of learned counsel for the Appellants reviewed the evidence led through the witnesses at the trial court in respect of the custom and tradition of the Oke-Ako people in respect of the stool of the Owa of Oke-Ako. He then concluded that all the witnesses either for the Plaintiff’s or the Defendants testified to the fact that only Afata section from Aofin has been producing Owa of Oke-Ako just like Medale Section of Okeidosan and from the foregoing it can not be said that by custom and tradition all adult male members of the entire Aofin are eligible to the stool of Owa of Oke-Ako. That Oke Aofin did not adduce evidence to show that it had ever produced Owa of Oke-Ako or that it has ever contested the position in time past and has therefore failed to show special interest which must be separate from the fact that they are a section in Aofin.
Further, that Oke Aofin also failed both in their pleadings and evidence to trace its pedigree and genealogy to the progenitor of the Chieftaincy. The case of Ajagingbade III v. Laniyi (1999) l3 NWLR (pt.633) p.92 at p.III paras. D – E and at p. 109 para. A was cited in support.
It is also the contention of the Appellants that in the absence of any registered declaration, the question of who is entitled to a stool is subject to Customary Law and tradition which is a question of fact. The cases of Omaye v. Omagu (2008) 7 NWLR (pt. 1087) p.477 at p. 106 paras. A – D; Mafimisebi v. Ehuwa (2007) 2 NWLR (pt. 1018) 385 AT pp.428 – 429 paras. F – A; Sokwo v. Kpongo (2008) 7 NWLR (pt. 1086) p.342 at p. 368 paras. G – H and Oyediran v. Aleblosu II (1992) 6 NWLR (pt.249) p.550 at p.558 paras. B – C; were further relied on to contend that according to the testimonies of all the witnesses, only Afata by custom and tradition have ever produced Owa of Oke-Ako in Aofin Ruling House. He drew the attention of this court to the testimonies of PW1, PW2, DW1, DW2 and DW3 in that respect and that the testimonies of those witnesses lay credence to the custom and tradition that only Afata section of Aofin Ruling House has been producing Owa of Oke Ako. That the testimonies of the PW1 and PW2 that Oke Aofin has never produced Owa of Oke Ako, but Afata section or family support the case of the Appellants and against the interest of the 1st and 2nd Respondents themselves.
On the issue of the Government White paper on Oluwole Chieftaincy Review Commission, it is the contention of the Appellants that, the Government white Paper has no force of law having not been registered as a chieftaincy declaration. That it is only when a declaration is registered that it has force of law and that it is only then the court regards it as embodying the custom and tradition of a community in relation to the chieftaincy stool.
Learned counsel then submitted that the trial court was wrong in placing reliance on the Government White paper of Oluwole Chieftaincy Review Commission as to the Ruling Houses of Oke-Ako when same has not been registered as a declaration and therefore has no force of law. That any recommendation or White Paper consequent thereon remains a recommendation until registered. The cases of Mafimisebi v. Ehuwa (supra at p. 429 paras. B – F; Military Administrator, Ekiti State v. Aladeyelu (2007) 14 NWLR (pt. 1055) p. 619 at pp. 562 – 653 paras. G – D and Section 4(1) and (2) of the Ondo State Chiefs Edict. 1984 (as amended) were cited in support.
The Appellants also contend that the court relied on the White paper to discountenance the position of Ikole Local Government Traditional council in the Owa of Oke Ako chieftaincy title, whereas the traditional council has the right to determine questions relevant to chieftaincy matters, and Customary land and practice. The case of Amuda v. Adelogun (1997) 5 NWLR (pt. 506) p. 580 at p. 487 paras. 1) – G and Sections 71 and 72 of the Local Government Law (Cap. 63) Laws of Ondo State, 1978 applicable in Ekiti State, to submit that the trial court therefore made an error in law by relying on the Government White paper in respect of the Oluwole Chieftaincy Review Commission.
On the issue whether the lower court was right in considering facts relating to Oke-Idiosan Ruling House in determining the issue of non-appointment of Kingmakers in Afata Section as canvassed in issue No. 3, learned counsel for the Appellants contended that the Appellants’ case at the lower court is that Alata Section or family in Aofin Ruling House does not have Kingmakers because they produce Owa of Oke-Ako from the Aofin Ruling House. That the Appellants’ evidence and case accords with the decision in Ibrahim v. Barde (1996) 6 NWLR (pt. al4) p. 513 at p. 519 paras. B – C. He again referred to the testimonies of the PW1, DW2 and DW3 to the effect that Oke Aofin and Odo Aofin families of Aofin Ruling House have been producing Kingmakers while Afata family does not have Kingmakers but produces Owa of Oke Ako and submitted that the Respondents should have rebutted this fact by leading evidence to show that Afata family produces Kingmakers. That the evidence of what happens in Okeidiosan Ruling House does not necessarily affect the contention of Afata family. That what was admitted by the Respondents is the fact that Afata family produces Owas and not Kingmakers. He therefore submitted that the trial court misunderstood the case of the Appellants in reaching its decision and that such decision is liable to be setaside. Reliance was placed on the cases of Jibril v. Military Administrator Kwara State (supra) at p.383 para. C; and Adejugbe v. Ologunja (2004) 6 NWLR (pt.868) p.46 at p.70 paras. C – H.
On the 4th issue, which is on the relationship of Afata, Oke Aofin and Odo Aofin families of Aofin Ruling House, the Appellants again reviewed the testimonies of the DW1 and PW2 and submitted that the unassailable testimony of those witnesses show that Afata family is distinct and is not related to either Oke-Aofin or Odo Aofin. He contended that the DW1 testified that Afata migrated from Enu Owa in Ile-Ife, stopped briefly at Odo-Ere in Kogi before moving to Irele and finally settled at Oke Ako, while PW2 stated that Odo Aofin and Oke Aofin migrated from Oyo and that Afata was the first family to settle in Oke Ako. That though PWI gave evidence of the origin of Oke Aofin, such w8s not pleaded and therefore amounts to inadmissible evidence. They then relied on the cases of Jibril v. Military Administrator, Kwara State (supra) at p.382 paras. A – B; Kimdexy & Ors v. Governor, Gongola State (1988) 2 NWLR (pt.77) p. 445; Ezewani v. Onwordi (1986) 4 NWLR (pt.33) p.27 and Guda v. Kitta(1999) 12 NWLR (pt.629) p.21 at p.50 para. C to submit that the Respondents failed at the lower court to establish their pedigree or relationship with Afata or the Chieftaincy stool in question.
It is also the case of the Appellants on this issue that, having seen by the evidence that Oke Aofin and Afata are not related, Oke Aofin is therefore not eligible for the stool and thus, the issue of number of sections or stocks making up the Ruling House is of no moment. The cases of A.G. Ekiti State v. Daramola (2003) 10 NWLR (pt. 827) p. 104 at p. 129 paras. A – D and Amuda v. Adelodun (1997) 5 NWLR (pt. 506) p. 480 at p. 487 paras. A – B, were cited in support. That the fact of non-relation of Afata with Oke Aofin and Odo Aofin was further strengthened by the intermarriage between Afata and the other two sections of Aofin. The Appellants then urged this court to resolve all the four issues in favour of the Appellants.
I have also carefully read and reflected on the submissions of learned counsel for the 1st and 2nd Respondents as contained in the 1st and 2nd Respondents’ Brief of Argument. Particularly, I find the submissions of learned counsel for the 1st and 2nd Respondents at paragraphs 4.16 – 4.26 (page 8 – 10) of the 1st and 2nd Respondents’ Brief of Argument as germaine to the understanding and resolution of the issues 1 – 4 as formulated by the Appellants for determination in this appeal. Therein learned counsel for the 1st and 2nd Respondents had posited that, a careful examination of the issues and the arguments canvassed thereon by the Appellants would reveal that the issues are nothing more than an undisguised attempt by the Appellants to call on this court to review findings of fact made by the lower court. That it has long been established in a chain of decided cases that an Appellate Court should be most reluctant to disturb or over rule finding of fact made by a trial court who has had the opportunity of listening to witnesses and watching their demeanour as against the Appellate court where no such opportunity exists. The cases of Echere v. Ezirike (2006) 12 NWLR (pt. 994) p. 386 at pp. 399 – 400; Moses v. The State (2006) 11 NWLR (pt.992) p. 458 at pp. 502 – 503 and Ubani v. State (2003) 18 NWLR (pt. 851) p.224 were cited in support.
Learned counsel conceded that there may be special circumstances where the Appellate Court will interfere with the findings of fact of a trial court and substitute same with its own, but that for such a situation to exist. The Appellant must prove special circumstances which will include a situation where such findings of fact are demonstrated to be perverse. Relying on the case of Unity Bank Plc. v. Bouari (2008) 7 NWLR (pt. 1086) p. 372 at p. 419, learned counsel submitted that, no where throughout the whole gamut of the Appellants’ Brief was it alleged, talkless of being demonstrated that the finding of fact by the lower court was perverse enough to be substituted by this court. That on the contrary, what the Appellants have done is to place their own set of favourable evidence against those of the Respondents urging this court to prefer its own to those of the Respondents which had been believed by the lower court without as little as showing that it was marginally perverse. That the Appellants have also failed to allege, talkless of prove that the trial judge failed to use or palpably misused its advantage of seeing the witnesses. The case of Ojeleye v. Reg. Trustees of Ona Iwa Mimo Cherubim and Seraphim Church of Nigeria (2008) 15 NWLR (pt.111) p. 520 at p. 543; per Augie, JCA was further cited in support. The response of the Appellants in their Reply Brief is that, it is not the law to expressly say that a judgment or finding of fact is perverse but that it can be shown that the decision is speculative and not based on evidence or that the court shut its eyes to the obvious. That, that has been clearly shown and argued in the Appellants’ Brief of Argument. He then cited the case of Osiyi v. Ekocha (2009) 16 NWLR (pt. 1166) p. 81 at p. 117 paras. C – E; to demonstrate circumstances when it may be said that the decision of a court is perverse.
The question now is, when will a ground of appeal be said to question the findings of fact made by a trial court? The determination of whether a ground of appeal is one of law, mixed law and fact, and facts simpliciter is not always an easy one. What is required is for the court determining same to thoroughly examine the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower court of the law or a misapplication of the law to the facts already proved or admitted in which case, it would be a question of law or it is one that would require questioning the evaluation of facts by the lower court before application of the law, in which case it would amount to a question of mixed law and facts. See Iwueke v. I.B.C. (2005) 17 NWLR (pt. 955) p.447; Ogbechie v. Onochie (1986) 2 NWLR (pt. 23) p. 484; Total Int. Ltd. v. Awogboro (1994) 4 NWLR (pt.337) p.147; Lekwot v. Judicial Tribunal (1993) 2 NWLR (pt.276) p.410 and First Fuels Ltd v. N.N.P.C. (2007) 2 NWLR (pt.1018)p.276. Where the ground is an invitation to the Appellate Court to investigate the existence or otherwise of certain facts made by the trial court or where it questions the evaluation of the evidence tendered, then it is a ground of fact or at best a ground of mixed law and fact. In other words where a ground of appeal is a complaint on the findings of the trial court based on evidence led at the trial or the evaluation of the evidence by the trial court, it is purely a ground of fact See Hassan v. Atanyi (2002) 8 NWLR (pt. 770) p. 582. In deciding whether a ground of appeal is one of law alone, mixed law and facts or of facts simpliciter, the court will be required to read the ground of appeal together with the particulars as a whole.
The fact that a ground of appeal has been “tagged” in a particular way does not make it one which it portends to be. See Metal Const. (W.A.) Ltd v. Migliore (1990) 1 NWLR (pt. 126) p. 299; Oba Toyinbo v. Oshatoba (1996) 5 NWLR (pt. 450) p. 531 and Falana v. Bello (1995) 9 NWLR (pt. 418) p. 182 at pp. 189 – 190; per Opene, JCA.
I have carefully considered grounds 1, 2, 3, 4, 5 and 6 of the Notice of Appeal from which issues 1,2,3 and 4 were distilled. No doubt my finding is that those grounds question the evaluation of the evidence by the trial court before application of the law. In that respect, those grounds are grounds of mixed law and facts. Indeed, the particulars of those grounds attest to this. In that respect, I agree with learned counsel for the 1st and 2nd Respondents that the grounds of appeal together with their particulars, the issues distilled therefrom and the arguments canvassed thereon, that the Appellants are questioning the evaluation of the evidence or findings of facts made by the trial court. That is the essence of issues 1, 2, 3, and 4 as formulated by the Appellants.
Now to the arguments of the 1st and 2nd Respondents on issues 1, 2, 3 and 4 as formulated by the Appellants which the 1st and 2nd Respondents adopted. On the 1st issue. Mr. Ayodeji M. Esan of learned counsel for the 1st and 2nd Respondents submitted that, from the facts enumerated both in the record and the brief of argument of the Appellant, the following facts remained uncontroverted and were so found by the trial court. (a) that there are 2 Ruling Houses eligible to the stool of Owa of Oke Ako, to wit: Aofin and Okediosan Ruling Houses, (b) that according to the custom and tradition of the Oke-Ako people, the 2 Ruling Houses alternate the rulership of Oke Ako between themselves; (c) that the last Owa of Oke Ako is from the Okediosan ruling house; (d) that from the documentary and oral evidence led at the trial, there seems to be consensus between the parties that it is the turn of the Aofin Ruling House to produce the next Owa of Oke Ako and (e) that the evidence led seems to establish a consensus of all the parties that there are 3 sections or families in the Aofin ruling house, namely: Oke-Aofin, Odo-Aofin and Afata. That the main contention of the Appellants is that, it is their own i.e Afata family that has the sole right to nominate and produce candidate for the Owa of Oke-Ako stool to the exclusion of the other families in the Aofin ruling house whenever it is the turn of the Aofin ruling house to produce the Owa of Oke-Ako.
Learned counsel for the Appellant contended that there were no issues joined in respect of the fact that only the Afata family has produced Owas of Oke-Ako from the Aofin Ruling House since the founding of Oke-Ako town whenever it was the turn of the Aofin Ruling House to produce the Owa. He then submitted that the main issues in controversy is whether the other families in the Aofin ruling house are equally eligible to produce candidates for the stool of Owa of Oke-Ako whenever the stool becomes vacant and it is the turn of the said ruling house to present a candidate for the stool. That indeed, the learned trial judge had found and held that, it has been overwhelmingly established by evidence from the parties that the Aofin ruling house comprises of Afata, Oke-Aofin and Odo-Aofin, even though only the Afata has been producing the Owa.
It is therefore submitted by learned counsel for the 1st and 2nd Respondents that, from the records of appeal, it has been established that:
1. The government set up the Oluwole Chieftaincy Review Commission which considered the matter and identity of the ruling houses for Owa of Oke-Ako Chieftaincy;
2. The Afata family presented a memorandum to the Commission in which it stated that Aofin and Okeidiosan are the two ruling houses;
3. The Commission rejected the contention that when it is the turn of Aofin to present a candidate, it should come from the Afata family and held that all Aofin sons should be eligible.
4. The government in a White Paper accepted the above findings and recommendation of the Oluwole Commission.
5. The Afata family did not go to court to challenge the above findings and recommendations and the White Paper thereon.
6. The White Paper is indeed a directive to the appropriate Chieftaincy Committee to make a declaration incorporating government decision on the Commission’s recommendation.
7. The Ikole Local Government Traditional Council also set up a Committee to investigate the issues of the number and identity of the ruling houses in Oke-Ako (the Oba J.F. Ala Committee).
8. The Committee invited memoranda from interested parties and heard oral evidence.
9. The Committee also found that there are two ruling houses of Oke-Ako, namely: Aofin and Okeidiosan.
10. The Committee from the evidence presented before it found that the families comprising of Aofin Ruling House had the same origin with the founder of Aofin ruling house who came from Irele,
11. The Ikole Local Government Traditional Council without hearing any of the parties and without faulting the Oba J.F. Ala Committee’s recommendations, decided that only the 1st and 2nd Appellants’ Afata family can nominate a candidate for the Owa of Oke-Ako Stool when it is the turn of the Aofin ruling house to present a candidate for the Owa of Oke-Ako stool.
Learned counsel then submitted that the learned trial judge reviewed the above evidence and came to the conclusion that Aofin ruling house consist of Afata, Oke-Aofin and Odo-Aofin. He then urged us to discountenance the submissions of the Appellants to the effect that the Respondents have not led sufficient, credible, reliable and credible evidence in proof of their case before the lower court. While conceding that a Plaintiff who intends to establish his entitlement to a stool subject to customary law and tradition must lead traditional evidence which is cogent, reliable and cogent, he submitted that the Respondents have so led credible, cogent and reliable evidence to show that all sections of the Aofin ruling house are eligible to produce the Owa of Oke Ako irrespective of the fact that erstwhile Owas from the Aofin ruling house have come from Afata family. He accordingly submitted that in the con of its application in the instant case, the cases of Ajagunbade III v. Laniyi (1999) 13 NWLR (pt.633) p. 92 at p. III; Omaye v. Omagu (2008) 7 NWLR (pt.1087) p.477 and Majimisebi v. Ehuwa (2001) 2 NWLR (pt.1018) p.385 are the correct statements of the law, but are irrelevant to this case as the Respondents proved their case on a preponderance of evidence and on a balance of probabilities to the satisfaction of the trial court as held by the learned trial judge at page 229 of the record.
On the 2nd issue which is on the Government White Paper on the Oluwole chieftaincy Review Commission, it is the contention of the learned counsel for the 1st and 2nd Respondents that, it is on the record that, evidence was led to the effect that the Afata family presented a memorandum before the Commission set up by the Government to review the position of the Owa of Oke Ako Chieftaincy stool. That the 1st Appellant submitted a memorandum before the said commission where it stated that there are two ruling houses in Oke-Ako namely: Aofin and Okeidosan and further contended before the commission that only the Alata section of the Aofin Ruling House should be eligible to nominate candidate to fill the vacancy of the stool of Owa of Oke-Ako. That the commission rejected the contention and recommended that all male members of the Aofin ruling house irrespective of which section are eligible to contest for the Owa of Oke Ako chieftaincy stool and that the government accepted such recommendation as a chieftaincy declaration to be registered by the appropriate authorities.
That the registration of such Chieftaincy declaration are within the exclusive duties of the Local Government Council and that failure to register the declaration can not be used as a sword to vitiate the findings and recommendations contained in the White Paper.
Learned counsel went on to submit that the fact of non-registration of the White Paper does not in anyway make it any less the government position on the subject matter nor does it render the facts or custom contained in the declaration false or inaccurate. That the non-registration of the declaration can only be relevant in the computation of the time within which the declaration can be said to come into force but has no bearing with the correctness or otherwise of the findings contained therein. He then contended that the case of Mil. Governor, Ekiti State v. Aladeyelu (supra) cited by the Appellants where the Supreme Court interpreted section 4(1) and (2) of the Ondo State Chiefs Edict, is distinguishable from the present case in that while the main issue for consideration in that case was a consideration of the Statute Of Limitation vis-a-vis the time of commencement of the action and not the correctness or otherwise of the declaration, the issue at stake in this case is the content of the White Paper vis-a-vis the custom it seeks to affirm and not the timing of its operation for the purpose of computation of time. That a Government White Paper or Chieftaincy Declaration are Governmental Policy Statements in respect of custom and Tradition that has been so repeatedly proved as to assume notoriety as the custom of the people enough to be judicially noticed. The case of Diamond Bank Ltd v. Ugochukwu (2008) 1 NWLR (pt. 1067) p. 1 at p. 30 and Oyewunmi v. Ogunesan (1990) 3 NWI,R (pt. 137) p. 182 at p.215-216 were cited in support.
It is also the contention of the 1st and 2nd Respondents that inspite of the non-registration, the learned trial judge was convinced on the evidence that the Respondents have proved the custom and tradition of Oke Ako people and found in their favour. The case of Otogbolu v. Okeluwa (1981) 6 – 7 SC p, 99 was cited in support. That the learned trial Judge did not purport to base his judgment solely on the White Paper but further placed reliance on other reliable and cogent reasons for his decision as can be seen at p. 229 of the record of appeal. That in any case, the Appellants never challenged the White Paper inspite of the fact that they presented a memorandum at the Oluwole Commission.
The learned counsel for the 1st and 2nd Respondents concluded on this issue that, throughout the proceedings in the lower court, the issue of non registration of the White Paper was never raised. That the Appellants waited until judgment was delivered by the lower court before they started fishing for a possible ground to set aside the judgment oblivious of other pieces of cogent and compelling evidence given by credible witnesses on oath corroborating the findings of the Oluwole Chieftaincy Commission and that of Oba J. Ala Committee.
Responding on the 3rd issue whether or not the lower court was right in considering Okeidiosan ruling house in the right of unassailable evidence on the reason why Afata section does not produce kingmakers, learned counsel for the 1st and 2nd Respondents contended that it is on record that all the parties averred in their respective pleadings that there are two ruling houses in Oke Ako, namely: Aofin and Okediosan and that the Appellants counsel conceded to this fact in his final address. That the 1st, Respondent listed the names of the Owas who had reigned in Oke Ako, including those from both the Okeidiosan and Aofin ruling houses, and to the effect that the Medale family in Okeidiosan ruling house has been producing the Owa of Oke-Ako. That the effect is that the issue of what happened in the Okeidiosan ruling house was made a relevant issue in the proceedings before the lower court, through the pleadings and evidence of the parties and therefore evidence had been led and admitted in proof of what obtains in the Okediosan ruling house to the effect that it is possible in Oke Ako for a family to produce both a kingmaker and an Owa at the same time. It was then contended that, the learned trial Judge was therefore right in making reference to the practice in Okediosan ruling house in determining the custom and tradition of Oke-Ako in respect of ascension to the stool of Owa of Oke-Ako, more so when the parties were ad idem that the 2 ruling houses in Oke-Ako are Aofin and Okediosan. That the Appellants fell into the error of comparing reference to the practice in Okediosan ruling house as evidence of the custom of Oke Ako people with the issue of determination of the issue of appointment of Kingmakers from Afata family, because the Chiefs Law does not recognize the existence of any unit less than a ruling house. That it is a ruling house that is recognized for the purpose of selection of candidates and not units or sections of a ruling house. That having been convinced of the common ancestry of the entire Oke Ako Community, the learned trial Judge made reference to the custom, tradition and practice of the other ruling house in the community. That the case of Ibrahim v. Barde (supra) cited by learned counsel for the Appellants is not relevant and therefore distinguishable from the facts and circumstances of this case, in that the custom and tradition called to question in that case is that of the Suleja people in Niger State in respect of the stool of Emir of Suleja. Furthermore, that the statute which was judicially interpreted was the Chiefs (Appointment and Deposition) Law (Cap. 19), Laws of Niger State. That the custom and tradition of the Suleja people of Niger State is irrelevant, unconnected and inapplicable to the custom and tradition of the Oke-Ako people of Ekiti State and that there is no equivalent of the above sections in the Chiefs Law of Ondo State, applicable in Ekiti State. The case of Mashuwareng v. Abdu (2003) 11 NWLR (pt.831) p.403 at pp.415-416 was cited in support.
Learned counsel then submitted that, evidence has been led to the effect that by the custom and tradition of the Oke-Ako people, it is possible for one and the same family to produce both kingmaker and an Owa at the same time. That there is evidence on record that a previous Owa was the son of a Kingmaker, thus debunking the argument that a family which produces a kingmaker can never produce an Owa.
On the 4th issue which is whether or not it was successfully proved that Afata and Oke Aofin are not related, learned counsel for the 1st and 2nd Respondents contended that, there is evidence on the record given by the Plaintiffs/Respondents to show that the Oke Ako Community regard the Aofin family as one and do not recognize the existence of different families within the Aofin ruling house. He then made reference to the evidence that all members of the Aofin family farm in the same place without internal boundaries and that the Oke Ako community apportions community work to the Aofin ruling house without distinguishing members from Afata, Oke Aofin or Odo Aofin. That the town imposes levies on the Aofin ruling House as a whole. That it is these pieces of evidence that the trial court weighed against the evidence of intermarriages between the different sections and found in favour of the fact that the whole ruling house is one indivisible unit and all members are eligible to be nominated for the stool of Owa of Oke Ako irrespective of which section they come from. That in any case, the learned trial Judge at page228 of the record reviewed the evidence on the issue of intermarriage between members of the Afata section and other members of the Aofin ruling house and held that, they are not a sufficient and necessary fact to conclude that the two families are not related, more so as there was evidence from the 5th – 8th Plaintiffs/Respondents that under Oke Ako custom, it is possible for extended families to intermarry.
As I pointed out earlier in the course of this judgment, the 7th and 8th Respondents adopted and aligned themselves with the submissions of the 1st and 2nd Respondents.
The Appellants filed a Reply Brief to the 1st and 2nd Respondents Brief of Argument. On the issue whether or not issues were joined on the fact that all Owas from the Aofin ruling house have come from Afata section but that the only issue was whether the two other sections are eligible to produce candidates, learned counsel for the Appellants in essence merely reargued this issue by stating that it was averred in paragraphs 12 and 14 of the Appellants’ statement of defence, paragraphs 5 of the 7th and 8th Respondents’ statement of defence and paragraph 4 of the 9th Respondent’s statement of defence that the Afata section by practice and tradition is the only section in Aofin with the right and privilege to fill the stool of Owa. That since those facts were not contradicted or denied by the 1st and 2nd Respondents, makes them admitted facts. Section 75 of the Evidence Act and the case of Joe Golday Co. Ltd v. C.D.B. Plc (2003) 5 NWLR (pt 814) p. 586 at p. 595 paras. D – E was cited in support.
Learned counsel for the Appellants also contended that the cases of Echere v. Ezerike; Moses v. The State and Ubani v. State (supra) cited by the 1st and 2nd Respondents in paragraph 4.18 of the 1st and 2nd Respondents’ Brief of Argument are not relevant to the facts of this case as while the first case involves a land dispute, the other two are criminal cases. He therefore cited the cases of Fawehinmi v. NBA (No. 2) (1939) 2 NWLR (pt. 105) p. 558 at p. 647 para. G. and at p. 650 paras. G – H and Diamond Bank v. P.I.C. Ltd (2009) l8 NWLR (pt. 1172) p.67 at p.96 paras. C – D to submit that counsel is not permitted to cite legal authorities out of con.
On Issue No. 2, learned counsel relied on the case of Aremo II v. Adekanye (2004) 13 NWLR (pt. 891) p. 572 to submit that the Ikole Local Government Traditional Council acted within its exclusive authority in rejecting the decision of the Oba J.P. Ala committee. On that he urged us to discountenance the submissions of the 1st and 2nd Respondents and to allow the appeal.
Now, I had determined in the course of this judgment that the grounds of appeal, the particulars of the grounds of appeal and the arguments of the Appellants show clearly in my view, that the Appellants by this appeal, especially as depicted by grounds 1 – 6 and the issues 1 – 4 formulated therefrom, are questioning the evaluation of the evidence and findings of the trial court. In that respect, it is pertinent at this stage to point out that, it is trite law that this court has the power to evaluate the evidence on the record and to do what is just in the circumstances. Thus, this court has the power to make any findings which ought to be arrived at by the trial court based on the evidence on the record. The general rule however is that the evaluation of evidence and the ascription of probative value thereto reside within the province of the trial court that sees, hears and assesses the witnesses. In other words, the duty of evaluating and ascribing probative value to all relevant oral and documentary evidence lies with the trial judge who had the advantage of seeing and hearing the witnesses. Accordingly, where the trial judge diligently and justifiably evaluates and appraises the facts, it is not the duty or business of the Appellate court to substitute its own view for that of the trial judge. Thus, appellate courts are usually reluctant and loathe to interfere where the trial court has properly appraised and evaluated evidence presented before it. It is therefore the primary duty of the trial court to evaluate evidence, make findings of facts and apportion probative value thereon. See P.T.F. v. W.P.C. Ltd (2007) 14 NWLR (pt. 1055) p 478; Omaye v. Omagu (208) 7 NWLR (pt.1087) p.461; Gagarau v. Pashiri (2006) 1 NWLR (pt. 962) p.521; Ismail v. State (2008) 15 NWLR (pt. 1111) p. 593 and Ojeleye v. Reght T.O.I.M. & S.C.N (2008) 15 NWLR (pt.1111) P.520.
It is only where the trial court failed to evaluate or failed to properly evaluate that this court can do what the trial court ought to have done and accordingly set aside the finding made by the trial court.
It is the party who complains that the trial court did not evaluate the evidence that has the duty to show how the judgment of the trial court would be found to be wrong if the omission by the court is corrected.
The attitude of this court in respect of the evaluation of evidence of a trial court is that in considering whether or not a trial court evaluated or properly evaluated the evidence, the essential consideration should be whether the trial court made proper findings and thus reached the correct judgment upon the facts before it. The method or approach is not a necessary determining factor. In that respect, this court may interfere in the following circumstances:
a. Where there is insufficient evidence to sustain the judgment; or
b. Where the trial court failed to make proper use of the opportunity of seeing, hearing and observing the witnesses; or
c. Where the findings of fact of the trial court cannot be regarded as resulting from the evidence; or
d. Where the trial court has drawn wrong conclusion from accepted evidence; or has taken an erroneous view of the evidence adduced before it: or
e. The trial court’s findings are perverse in the sense that they do not flow from accepted evidence or are not supported by evidence before it. See Akindipe v. State (2008) 15 NWLR (pt. 111) p.560; Mafimisebi v. Ehuwa (2007) 2 NWLR (pt. 1018) p. 385; P.T.F. v. W.P.C. Ltd (supra) at P. 498 paras. A – E and Anyafulu v. Agazie (2006) 5 NWLR (pt. 973) p. 260.
In the instant case, the complain of the Appellants as captured in the grounds of appeal generally is that the trial court erred in law in assessing or appraising the evidence led and therefore made wrong findings and conclusions on the evidence adduced before it. The submissions of counsel on those issues have already been summarized by me. I now proceed to consider the complains therein.
Before I proceed, I find it pertinent at this stage to restate that the 1st and 2nd Respondents as plaintiffs at the lower court based their claim on the customary law regulating the appointment to the throne of Owa of Oke-Ako, Owa is the title of the traditional ruler of Oke-Ako-Ekiti in Ikole Local Government Area of Ekiti State. The law is that where a party bases his claim on customary law, he must lead cogent, credible and convincing evidence in proof of such custom or tradition. The party who claims such customary law has the burden of proving such custom unless such custom has enjoyed frequent proof in the courts sufficient enough for the court to take judicial notice of same though there are times when only a single decision may be sufficient and authoritative that it would suffice. See Agbai v. Okogbue (1991) 7 NWLR (pt.2004) p.427; Giwa v. Erimolokun (1961) 1 All NLR P. 294 AND Folami & Ors v. Cole & Ors (1990) 2 NWLR (pt. 133) p. 445. Generally, the issue of right to a Chieftaincy stool has always been in the nature of customary law and customary law has been settled as being, a question of fact to be proved by evidence. Thus, a party who alleges the existence of a particular custom must adduce cogent and credible evidence in support as to establish its existence to the satisfaction of the court. See Giwa v. Erimolokun (supra) at p. 337; Inyang v. Ita (1929) 9 NWLR p.84 and Ogunlowo v. Ogundare (1993) 7 NWLR (pt.307) p.610 at p.623. See also Section 14 of the evidence Act.
Now, on the 1st issue, the complaint of the Appellants is that the trial Court erred in law when it held that under the customary law regulating the appointment to the throne of Owa of Oke Ako all adult male members of the Aofin ruling house are eligible for nomination, selection and appointment to the Owa of Oke Ako. That the evidence adduced at the trial show that only the Afata family of the Aofin ruling house has been producing the Owa while the other families of Oke Aofin and Odo Aofin have been producing kingmakers. The record of appeal shows that the 1st and 2nd Respondents as plaintiffs at the lower court had pleaded and led evidence through the pw1 and PW2 that there are two ruling houses in Oke Ako the identity of which they named as Aofin and Okediosan. That under the custom of Oke Ako, all adult male members of the Aofin Ruling House are eligible for consideration for appointment as Owa of Oke Ako and not merely candidates from the Afata section of the Aofin Ruling House. They also led evidence to the effect that the Aofin Ruling House comprises of three sections or families, namely: Oke Aofin, Odo Aofin and Afata and that none of these families constitutes a separate or distinct ruling house. The pw1 and pw2 also testified to the effect that all adult males of those three families which constitute the Aofin ruling house are eligible for appointment. The 4th Respondent who was the 6th Defendant at the lower court testified as the DW3; He is a Kingmaker and he also testified that there are two ruling houses in Oke Ako which he also named as Okediosan and Aofin and that succession to the Owa of Oke Ako rotates between those two ruling houses. He further corroborated the testimony of the pw1 and pw2 that all male sons of Aofin ruling house irrespective of whether he is from Afata, Oke Aofin or Odo Aofin are eligible for consideration to succeed to the throne of Owa of Oke Ako. It is also instructive to note that the 1st and 2nd Respondents also relied on the Oluwole chieftaincy commission which confirmed and recommended that there are two ruling houses in Oke Ako, to wit: Okediosan and Aofin, and that all adult males from Aofin and Okediosan ruling houses are eligible to succeed to the throne of Owa of Oke Ako. That this fact was further confirmed by the Oba J. Ala committee set up by the Traditional council of Ikole Local Government Council. It is also instructive to note that all the witnesses are agreed that all previous Owas from the Aofin ruling house have emerged from the Afata section of that ruling house.
The Appellants on the other hand insist that only the Afata family of the Aofin Ruling house are eligible to produce Owa when it comes to the turn of the Aofin ruling house to produce the Owa. I had earlier pointed out that all the witnesses both for the Appellants and the Respondents are ad idem that all previous Owas who had emerged from the Aofin ruling house had been from the Afata section of that family and that Odoaofin Oke Aofin house have not produced any Owa but have produced kingmakers only. It is pertinent to note here that the Appellants in their statement of defence denied that there is an Aofin ruling house. They pleaded at paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 that only Afata is a ruling house and that the Aofins are not members of that ruling house. The PW1 reiterated this fact in this evidence in chief. Under cross-examination by Mr. Faboro and Mr. Adewumi, he insisted that there are two ruling houses in Oke Ako, namely; Afata and Okediosan and maintained his position even under cross-examination by chief Esan SAN of learned counsel for the 1st and 2nd Respondents. However, Mr. Solomon Kayode Olajide, a professor at the University of Ibadan and the Ejemu i.e Chairman of the kingmakers, who testified as the DW2 testified that there are two ruling houses in Oke Ako to wit: Aofin Ruling house and Odediosan Ruling House. DW3 who is also a kingmaker stated that there are two ruling houses in Oke Ako which he named as Aofin and Okediosan. The DW2 further testified that Aofin ruling house consists of Oke Aofin, Odo Aofin and Afata families. He however testified that only Afata family produces the Owa, while the other two families produce Kingmakers. The DW2 and Dw3 therefore contradicted the DW1 that Afata is a ruling house. The law is that, where there are material or grave contradictions in the evidence of a party and which contradictions touch on a vital or material point in issue, such party’s case becomes weakened. The result is that such party’s case is taken with a pinch of salt and therefore regarded as unreliable and therefore of no probative value. See Esika v. Medolu (1997)2 NWLR (pt.485) p.54 at p.69; Okereke vs. The State (1998) 3 NWLR (pt. 540) p. 73 at p. 91; Oluma v. Onyuna (1996) NWLR (pt. 443) p. 449 and Ayinde v. Abiodun (1998) 8 NWLR (pt. 616) p 587.
In that respect, I am of the view that the learned trial judge rightly found that there are two ruling houses in Oke Ako, namely; Okediosan and Aofin. This finding is supported by the White Paper issued by the Ondo State Government on the recommendations of the Oluwole Chieftaincy Review Commission which is in evidence as Exhibits “A” and “B”, and the recommendation of the Oba. J.F. Ala Committee which is also in evidence as exhibit “F”. It is necessary to stress that both exhibits recommended and which recommendation agrees with the assertion of the 1st Respondent that Aofin and Okediosan are the two ruling houses in Oke Ako.
Now, the law is that, once it has been established that a group of people have the same progenitor, they would be equally qualified or entitled to the same rights and subjected to the same constraints. Consequently, if some descendants of such common progenitor cannot occupy a chieftaincy stool, the other children of that person cannot also occupy the stool. See Kuti v. Alashe (2005) 17 NWLR (pt. 955) p. 625 at pp. 651 – 652 per Salami, JCA (as he then was). In other words, where a person has been able to establish by evidence that he belongs to a family and which family is a ruling house or comprise of a ruling house, there is a presumption in his favour that he is eligible to contest for the throne or stool in dispute.
That presumption in my view should enure in favour of the 1st and 2nd Respondents who led evidence showing that their Oke Aofin family is a part of the larger Aofin ruling house. The Applicants in my view had the burden to rebut that presumption. In the instant case the 1st and 2nd Respondents pleaded and led evidence to the effect that they belong to the Oke Aofin family within the Aofin ruling house in Oke Ako town and that all adult males in the said Oke Aofin family have equal right to ascend the throne of Owa of Oke Ako together with adult males of Afata and Odo Aofin families of Aofin ruling house. They further pleaded and led evidence to show that the Oke Ako community migrated from Irele in the 18th century and settled at Oke-Ako. The Oke Aofin is a section or family within the Aofin ruling house and therefore members of that family also entitled to present a candidate for the throne. The Appellants however dispute that fact and contended that it is only their Afata section that is entitled by the custom and tradition of Oke Ako to present a candidate for the now vacant stool of Owa of Oke Ako. It is my view that, the 1st and 2nd Respondents having led evidence showing that Oke Aofin family is also a part of the Aofin ruling house, have shifted the burden on the Appellants who contend the contrary. It is so because, though in civil cases, the burden is on the plaintiff who asserts the affirmative of an issue, once that party has been able to lead evidence establishing that fact, it would be incumbent on the party who asserts the contrary to lead evidence in rebuttal.
That is so because in civil cases, while the burden of proof in the sense of establishing the case initially lies on the Plaintiff the proof of rebuttal of issues which arise in the course of the proceedings may shift from plaintiff to Defendant and vice-versa as the case progresses. The onus of proof in civil cases is therefore not static but shifts from side to side. It is fixed by the pleadings and never shifts. The onus is therefore on a party who would fail if no evidence is led on an issue before the court. See cases of Okene v. Orianwo (1998) 9 NWLR (pt. 566) p. 408 at p. 440; Kate Ent. Ltd v. Daewoo Nig. Ltd (1985) 2 NWLR (pt. 5) p. 116; Mechanic v. Onisesin (1998) 2 NWLR (pt. 538) p. 446 and Nig. Maritime Services Ltd v. Bello Afolabi (1978) SC P.79 at p. 84. See also Sections 136 and 137 (1) and (2) of the Evidence Act.
That being so, where a particular custom is alleged, the onus is on the party who claims the existence of that customary law applicable to the situation he claims, to call evidence to establish the custom. See Adeyemi & Ors. v. Aderibigbe Atanda & Ors. (1995) 5 NWLR (pt. 397) p. 512; Temile v. Awani (2001) 30 WRN P. 1 AT P. 19 AND Gbadamosi v. Gov, Oyo State (2001) 49 WRN P. 186 AT P. 194.
In the instant case, the 1st and 2nd Respondents having proved that the Oke Aofin family is a family within the Aofin Ruling House, and as the Appellants claim that the Oke Aofin family cannot succeed to the throne of Owa of Oke Ako, but only their Afata family, the onus was on them to prove same by calling evidence to rebut the fact that the Oke Aofins are not entitled to succeed the said throne. The evidence they led in that respect is that it is only the Afata family that has been producing the Owa from the Aofin ruling house, while the other families of Oke Aofin and Odo Aofin have only been producers of Kingmakers.
The Respondents countered that fact by leading evidence to the effect that it is not the customary law in Oke Ako that any family which produces kingmakers cannot be Owa. They then led evidence of certain families, though in the Okediosan ruling house, that have produced both the Owa and Kingmakers. The 2nd Respondent who testified as the PW1 agreed that all the Owas from the Aofin ruling house have emerged from the Afata family and that the Afata family has never produced a Kingmaker. He however stated that the rule that says that a family that produces Owa cannot produce a Kingmaker does not apply in Oke Ako and that a family can also produce both a Kingmaker and Owa. He also stated under cross-examination by Mr. Faboro that, there have been instances in Oke Ako when the Okediosan ruling house have produced Kingmaker as well as an Owa. He gave the example of Jacob Taiwo Ogunbiyi who ruled as an Owa between 1976 – 2000, whose father was an Ajapona (a Kingmaker) and that the Oke Akos share custom with the Irele people from where they originated, to the effect that a ruling house can produce both an Oba and a Kingmaker. The PW2 also maintained that in Oke Ako, a ruling house or family can produce both a Kingmaker and an Owa. The DW2 also admitted under cross-examination by Chief Esan, SAN that Jackson Ogunbiyi’s father was Kingmaker but that Ogunbiyi later became on Owa. He also gave the example of one Chief Otun who is now the Arosanyan, whose grand father was an Owa of Oke Ako. The DW3 who is a Kingmaker also stated that the fact that families produce Kingmakers does not exclude them from producing candidates for Obaship. He also gave the example of the present Ajapona who is the son of a previous Owa of Oke Ako. The learned trial judge believed those witnesses and held that it has been established that under the custom in Oke Ako, it is possible for a family to produce both Kingmakers and Owas.
The Appellants contend however that, the learned trial judge erred when he considered the custom or practice in Okediosan Ruling House in reaching a conclusion that it is possible for a family in Aofin ruling house to produce both an Owa and a Kingmaker in the light of unassailable evidence on the reason why Afata section does not produce Kingmakers. It is pertinent to point out that the issue that called for determination is not whether or not all Owas from the Aofin ruling house have emerged from the Afata family. That fact is incontestable as the witnesses, both for the Appellants and the Respondents are agreed on that fact. That fact has therefore been established. The issue in my view is whether it is the custom in Oke Ako that any family in a ruling house that produces Kingmakers cannot present candidates for the throne of Owa of Oke Ako. It should be noted here again that the custom under consideration is that for succession to the throne of the Owa of Oke Ako as a whole. I do not believe that the custom of a community on an issue affecting the community as a whole, can be segmented to apply to a particular section only. In that respect, the custom that affects Okediosan ruling house on the issue of succession to the throne of Oke Ako must also affect the Aofin ruling house. Surely, the Afata section cannot have its own independent custom on the issue of succession to the stool of Owa of Oke Ako and therefore the custom on the issue must apply to both Okediosan and Aofin ruling house. Accordingly, I agree with learned counsel for the 1st and 2nd Respondents that, the learned trial judge was right in making reference to the custom or practice in Okediosan ruling house in determining the practice or custom in Aofin ruling house to which Afata section has been found to be an integral part. In any case, it has been found that Afata is not a ruling house but only a section of a ruling house. After all evidence led at the trial show that the entire Okediosan and Aofin ruling houses of Oke Ako have a common ancestry and the learned trial judge was right to have made reference to the custom, tradition and practice of the Okediosan ruling house in determining the custom, tradition and practice on succession to the Owa of Oke Ako in Aofin ruling, house.
The Appellants tried to support or fortify their claim by pleading and contending at the trial that the Afata family is not related to the Oke Aofin and Odo Aofin families. They pleaded and led evidence to the effect that the Afata family migrated from Ile-Ife to Ere in Kogi state where they went to Irele. That the Odo Aofin and Oke Aofin families later joined them at Irele where each family maintained its separate identity. That the three groups have no blood relationship and that they do intermarry. That the Afatas were the first to move and settle at Oke Ako where they were joined sixty (60) years later by the two Aofins. The 1st and 2nd Respondents pleaded in paragraph 12 of the statement of claim that the Oke-Ako community migrated from Irele during the 18th century to the present site of Oke Ako. They further pleaded at paragraph 7 of the Reply to the statement of defence of the 1st – 4th Defendants that, they (Oke Aofin), the Afata and Odo Aofin people are members of the same Aofin family having common ancestry and sharing common rules. They also pleaded in the same paragraph 7 of the Reply and lead evidence from the pw2 and DW3 that they have the same farmland with no demarcation or separate specified areas. That they have the same cognomen and that when the Oke Ako community is raising funds, they levy the Aofin family as one single unit. There appears to be a conflict in the traditional history in the ancestry of the Oke Aofin with that of the Afata.
The law is that, where there are before the court for the purpose of proving a particular fact in issue, two conflicting traditional histories in the sense that it is difficult or impossible for the court to ascertain which version represents the truth, the trial court can make resort to acts or facts in recent times to ascertain which version is more probable. That where one conflicting version is easily preferable to the other or others, a trial court is bound to make a finding in that respect, and resort to the principles in Kojo II v. Bonsie would be unnecessary, but where there are conflicts in the traditional evidence adduced by one party in proof of his case or assertion, there will be no need to test the party’s traditional evidence with that of the other. See Kenon v. Tekam (2001) 14 NWLR (pt.732) p. 12 and Omaye v. Omagu (208) 7 NWLR (pt. 1087) p.477. The case of Kojo II v. Bonsie(1957) N.L.R. p. 123 decided that where there is conflict on traditional history, one side of the other must be mistaken, yet both may be honest in their belief. That, in such a case demeanour is little guide to the truth and the best way to test the traditional history is by reference to facts in recent years as established by evidence to see which of the two competing histories is more probable. It was held in the case of Ajagungbade v. Laniyi (1999) 12 NWLR (pt. 633) p. 92 at p. 115 that the principle enunciated In Kojo v. Bonsie (supra) is not limited to land cases on which the decision was based, but is applicable generally to situations where the parties rely on traditional history. See also Daramola v. A.G. Ondo State (2000) 7 NWLR (p. 665) p. 440 at p. 447; per Onnoghen, JCA (as he then was). I accordingly hold that this principle is applicable to the instant case, though a chieftaincy matter.
In the instant case, the learned trial judge did not consider the above stated pieces of evidence from the Respondents on the issue of whether or not the Oke Aofin and Odo Aofin families are related to the Afata family.
He based his decision mainly on the issue of marriage relationship between them. This court has the power to review the evidence on the issue as led before the trial court. As pointed out earlier, the 1st and 2nd Respondents led evidence of events in recent times on the relationship between the Aofin ruling house consisting of Afata, Oke Aofin and Odo Aofin families. Even on the issue of intermarriage introduced by the Appellants, the learned trial judge did not find that piece of evidence weighty enough to support the Appellants that the Afata family does not have a common ancestry with the Oke Aofin and Odo Aofin families. He then disbelieved the Appellants that the Afata family has a different ancestry from that of the Oke Aofin and Odo Aofin families. I am of the view that the evidence on the record as led by the parties support the conclusion of the learned trial judge and I find nothing on the record to disturb that finding.
Now, the Appellants also complain about the findings of the lower court on the Oluwole Chieftaincy Review Commission. They contend that the trial court was wrong in placing reliance on the Government White Paper on the Oluwole Chieftaincy Review Commission as to the Ruling Houses in Oke Ako when same has not been registered as a declaration and therefore has no force of law, Learned counsel placed reliance on section 4(1) and (2) of the Ondo state chiefs Edict (Law), 1984 (as amended) and the cases of Mafimisebi v. Ehuwa (supra) a tp.429 and Military Administrator, Ekiti State v. Aladeyelu (supra). One issue which I find germane has been raised by the learned counsel for the 1st and 2nd Respondent. Learned counsel had stated at paragraph 536 in page 15 of the 1st and 2nd Respondents’ Brief of Argument, that throughout the proceedings in the lower court, the issue of non-registration of the White Paper was never raised. Indeed, I consider this a fundamental submission for reasons I shall I give anon.
Now, it is the law that a ground of appeal to be competent, it must arise from the judgment appealed against. In other words, a ground of appeal must arise from the decision of the trial court. Accordingly, an Appellant cannot appeal against what was not decided by the trial court as this will be contrary to section 318(1) of the 1999 Constitution. To do that would be tantamount to raising fresh issue on appeal. See Igbinovia v. U.B.T.H. (2000) 1 NWLR (pt. 667) p. 53; Madueke v. Madueke (2000) 5 NWLR (pt. 655) p. 130; Okpala v. Okafor (1991) 7 NWLR (pt.204) p.510; A.S.T.B. v King Davidson (2000) 12 NWLR (pt. 681) p. 298 and Stirling Civil Eng. Ltd v. Yahaya (2002)2 NWLR (pt.750) p. 1 at p.15. The law therefore is that an Appellant would not be allowed to raise on appeal an issue that was not raised, canvassed or argued at the trial without the leave of the appeal Court. See I.B.W.A. v. Sasegbon (2007) 16 NWLR (pt.1059) p. 219; Omnia (Nig.) Ltd v. Dyktrade Ltd (2007) 15 NWLR (pt.1058) p. 536.
In the instant case, l have traversed the whole gamut of the record of proceedings and I am unable to find where the issue of non-registration of the Chieftaincy declarations in the White Paper was either canvassed by counsel or pronounced upon by the learned trial judge. There is also no where on the record where the Respondents sought for or were granted leave by this court to argue such a new point in this appeal. In that respect, I find that Grounds 2 and 6 of the Grounds of Appeal and Issue No. 2 distilled from the said Grounds do not arise from the decision of the learned trial judge. Those grounds are accordingly struck out.
I however wish to comment ex abundanti cautela on the issue of non-registration of the Chieftaincy declaration contained in the said Government White Paper. For that purpose I shall reproduce section 4(1) and (2) of the Chiefs Law, 1984 of Ondo State applicable to Ekiti State. It stipulates as follows:
“4(1) Every declaration of the committee approved by the Executive Council and every declaration made by the Executive Council shall be registered and kept in safe custody by such officer as the military Governor may direct.
(2) No declaration shall come into effect until it has been Registered.”
By the requirements of Section 4(1) and (2) of the Chiefs Law (supra) therefore, a Chieftaincy declaration is required to be registered and kept in safe custody by an officer designated for that purpose, and where such declaration is not registered, it becomes moribund and therefore ineffective.
It would appear therefore, in my view that the non-registration does not nullify such declaration. It only means that it will not come into operation as such chieftaincy declaration until it is so registered. In other words, once a chieftaincy declaration is registered it will for all intents and purposes be regarded as the native law and custom or customary law with regards to that subject to the exclusion of all other laws and practices. The duty of the court in such instance is to enforce it as such native law and custom on the subject. See Governor Kwara State v. Eyitayo (1991)2 NWLR (pt.485) p.118 at p. 129; Daramola v. A.G. Ondo State (2000) 7 NWLR (pt.665) p.440; Ayoade v. Mil. Governor; Ogun State (1993) 8 NWLR (pt.309) p.111 See also Oladele v. Oba Adekunle Aromolaran II (1996) 6 NWLR (pt.453) p. 180; Ogundipe v. Akinloye (2002) 10 NWLR (pt.775) p.312 and Ajakaiye v. Idehai (1994) 8 NWLR (pt.364) p.504. This point is made clearer by the preceding provision of section 5(1) of the Chiefs Law (supra).
It was however held in the case of Imogiemhe v. Alokwe (1995) 7 NWLR (pt. 409) p.581 at p.584 per Ige, JCA. that an unregistered declaration should be declared null and void and of no effect. See also Mafimisebi v. Ehuwa (supra) at p.429- 430 paras. B-E. It is however my view that such a declaration which is not registered cannot be relied upon as proof of the customary law in dispute. It may however, in my view, along with other evidence, oral or documentary, prove such custom. In other words, it may not lead to the desired potency and efficacy as proof of such Customary Law declared therein as required by Section 5(1) of the Chief Law (supra), but will be a relevant fact in the quest for proof of such Customary Law.
In the instant case, apart from the declaration contained in the white Paper, the learned trial Judge based his decision on other facts proved and accepted in evidence before him. The leaned trial judge held at page 226 of the record of appeal thus:
“There is evidence that the Aofin ruling house consists of Afata, Odo Aofin and Oke Aofin and that all male members of the entire Aofin ruling house is eligible to be Owa. The evidence of the witness of the 5th- 8th Defendants who are kingmakers is very instructive on this. I hold therefore that Aofin ruling house consist of Afata, Oke Aofin and Odo Aofin.”
This finding of the learned trial judge has not been shown by the Appellants to be perverse. On that score therefore, I hereby resolve issues 1, 2,3 and 4 in favour of the Respondents.
One other issue which calls for determination is issue No.5 as formulated by the Appellants. That issue states, thus:
Whether or not the decision of the lower court is justified vis-a-vis the evidence led before it.
It would be seen from the way this issue is couched that, the issue also questions the evaluation of the evidence by the learned trial judge. It is obvious therefore that this issue is one and the same as issues 1, 2, 3 and 4, Those issues as I had earlier found question the evaluation of evidence and findings of fact made by the learned trial judge. The arguments of the Appellants as contained at pages 15 – 16 of the Appellants’ Brief of Argument and the response of learned counsel for the 1st and 2nd Respondents thereto attest to that. It is my view that to delve into that issue now would only lead to a reconsideration of the issues that have been determined in issues 1, 2, 3 and 4. That would only be a waste of valuable judicial time.
On the whole therefore, I find and do hold that this appeal has no merit. It is accordingly dismissed in its entirety. I am of the firm view that the judgment of Hon. Justice C.I. Akintayo on the 31/03/2008 in Suit No. HAD/41/2002 is correct. It is accordingly affirmed by me. I award thirty thousand naira (N30,000,00) as cost against the Appellants and in favour of the 1st – 6th Respondents.
UWANI MUSA ABBA AJI, J.C.A.: I have had a preview of the judgment of my learned brother, H.M. Tsammani, J.C.A, just delivered.
My learned brother painstakingly considered all the issues raised in the appeal and came to the conclusion that the appeal has no merit. I agree entirely with the reasoning and the conclusion reached by my learned brother that the appeal is unmeritorious. I also dismissed the appeal and affirm the judgment of the trial court delivered on the 31st March, 2008. I also endorse the order as to costs.
CHIDI NWAOMA UWA, J.C.A) I had the privilege of reading before now the judgment delivered by my learned brother Haruna M. Tsammani, JCA.
His Lordship painstakingly dealt with the issues raised in the appeal and comprehensively resolved same, I have nothing to add. I agree with his reasoning and conclusions arrived at in dismissing the appeal and affirming the judgment of the trial court. I adopt same as mine and abide by the order made as to costs.
Appearances
Ademola Adeyemi Esq (Mojisola Salami (Miss) with him)For Appellant
AND
Ayodeji Esan Esq. with him Gbemisola Daramola Esq. (S.O. Awoniyi Esq. with him)For Respondent
