CHIEF MOHAMMED SHITTU & ORS V.CHIEF JAMES OLAWUMI & ORS
(2011)LCN/4539(CA)
In The Court of Appeal of Nigeria
On Friday, the 13th day of May, 2011
CA/AE/38/2010
RATIO
DECLARATION OF TITLE: DUTY PLACED ON A PARTY SEEKING FOR DECLARATORY RELIEF OR RIGHT AND WHETHER HE CAN RELY ON THE WEAKNESS OF THE CASE FOR THE DEFENDANT
I had earlier in the course of this judgment reproduced the claims of the Appellants before the trial court. Claims 1 and 2 of the Appellants are for declaratory reliefs. Thus, based on the law on the burden and standard of proof enshrined in Sections 135, 136 and 137 of the Evidence Act, a party seeking for declaratory relief(s) has the burden to lead evidence to show that he is entitled to the declaratory relief sought. In other words, where a party claims for a declaratory relief or right, it behoves on him to satisfy the court by the evidence adduced by him that he is entitled to the declaration, and cannot rely on admission in the pleading of the defendant to sustain his claim. This is because the grant or refusal to grant such a declaratory relief is at the discretion of the court. Thus, where a party seeks a declaratory judgment, the onus is on him to succeed on the strength of his own case and not the weakness of the case for the defendant A defendant who has not counter claimed only has the duty to defend and accordingly, a consideration of the defendant’s case and its weakness does not arise until the plaintiff has led evidence which prima facie show that he is entitled to the declaration sought. The facts in the defendant’s case may support that of the plaintiff, and in that instance, the latter can rely on that aspect of the defendant’s case that support his case to establish and prove his case. See KODILINYE V ODU (1935) 2 W.A.C.A. P.336: ODOFIN Vs. AYOOLA (1984) 11 S.C. P.72: BELLO V EMEKA (1981) 1 S.C. P.101: AKINTOLA V OLUWO (1962) 1 S.C.N.L.R. P. 352: WOLUCHEM V GUDI (1981) 5 S.C. P.291 : ADELAJA Vs. FANOIKI (1990) 2 N.W.L.R (PT.131) P.137: GANKON V. UGOCHUKWU CHEMICAL IND. LTD. (1993) 6 N.W.L.R (PT. 297) P.55 and ALECHENDU V OSHOKE (2002) 9 N.W.L.R (PT.773) P.521 at P.535.. The burden of leading or adducing such evidence is discharged on preponderance of evidence or balance of probabilities. PER HARUNA M. TSAMMANI, J.C.A.
REGISTERED DECLARATION OF CUSTOM: THE PURPOSE OF A REGISTERED DECLARATION OF CUSTOM; EFFECT OF ANY CUSTOM,TRADITION OR USAGE THAT IS ALLEGED TO EXIST BUT IS NOT FOUND IN THE REGISTERED DECLARATION OF CUSTOM
The purpose of a registered declaration is therefore to embody in a legally binding written statement, the customary law of a particular area, setting out clearly and precisely the method regulating the nomination and selection of a candidate to fill a vacancy in the chieftaincy stool of that area. see ABAEKERE V MINISTER OF CHIEFTAINCY AFFAIRS, WESTERN NIGERIA (1963) N.W.L.R P.534: AYOADE V MILITARY GOVERNOR OF OGUN STATE (1993) 8 N.W.L.R (PT.309) P.111 at PP.127 – 128: GOVERNOR. OYO STATE V. FOLAYAN (1995) 8 N.W.L.R (PT. 413) P.292 at P. 321: ODUMESI V OYENOLA (1998) 8 N.W.L.R (PT.563) P.601 at PP.611 – 612. See also MAFIMISEBI V EHUMA (2007) 2 N.W.L.R (PT.1018) P.385 at PP.428 – 429 PARAS F – A. That being so, once a declaration has been duly and validly made, and registered in relation to any native law and custom or customary law with respect to any chieftaincy stool, that declaration becomes the native law and custom or customary law to the exclusion of all other laws and practices thereon. Thus, any custom, tradition or usage that is alleged to exist but is not found in the registered declaration may generally be presumed to have been disregarded or excluded from such custom, tradition or usage required for the selection and appointment of any person to any of the recognized chieftaincies under the chiefs law. See DARAMOLA VS. A.G.: ONDO STATE (SUPRA) PER ONNOGHEN. J.C.A. (as he then was) at P. 472: EDEWOR V UWEGBA (1987) 1 N.W.L.R (PT.50) P.313: IMOGIEMHE V. ALOKWE (1995) 7 N.W.L.R (PT.409) P.581 at P.595: GOVERNOR. KWARA STATE V. EYITAYO (1997) 2 N.W.L.R (PT.485) P.118 at PP.129 – 130: AYOADE V. MILITARY GOVERNOR, OGUN STATE (1993) 5 N.W.L.R (PT 309) P. 111 at P.126. PER HARUNA M. TSAMMANI, J.C.A.
CHIEFTAINCY DECLARATION: WHETHER THE COURT HAS THE POWER TO MAKE CHIEFTAINCY DECLARATION; CIRCUMSTANCE UNDER WHICH THE COURT WILL INTERFERE WITH THE VALIDITY OF A CHIEFTAINCY DECLARATION
The duty of the court once a chieftaincy declaration has been validly made and registered is to apply the provisions of a chieftaincy declaration to the facts of the case as established by evidence since the court has no power to assume the functions of the chieftaincy committee as regards their power to make or amend the customary law governing the selection and appointment of traditional chiefs. The power to make such chieftaincy declarations lies with the executive arm of the State Government by virtue of sections 1(1) and (2) of the chiefs Law (supra) and is usually exercised by a Chieftaincy Committee of a Local Government on behalf of the State Government. See ABAEKERE vs. MINISTER OF CHIEFTAINCY AFFAIRS (SUPRA) and MOMOH vs. OLOTU (1970): 6 N.S.C.C. P.99 at P.103 per Ademola: C.J.N. In the instant case, the Appellants contended that, they are challenging the power of the 3rd Respondent to make a chieftaincy declaration or that a chieftaincy declaration once made is not binding, but that their contention is that, the chieftaincy declaration made in respect of the Olusi of Usi-Ekiti does not truly represent the customary law it professes to restate. That the declaration should therefore be declared null and void. The Supreme Court held in the case of MAFIMISEBI v EHUWA (SUPRA) that, the court cannot promulgate a chieftaincy declaration, but that the courts have the vires to inquire whether a chieftaincy declaration is in conformity with the prevailing customary law, and thereby set same aside where such registered declaration does not correctly declare the tradition and custom of the area concerned relating to that chieftaincy. Furthermore, that where in the process of making the declaration those who ought to be heard were not so heard or where the making of the declaration is in breach of right to fair hearing, the court can interfere, as the administrative body is bound to observe the rules of natural justice. PER HARUNA M. TSAMMANI, J.C.A.
DECLARATORY RELIEF: BURDEN PLACED ON A PARTY SEEKING FOR DECLARATORY RELIEFS
It is trite that a party seeking for declaratory reliefs has the burden to lead evidence to show that he is entitled to the declaratory reliefs sought. He has to satisfy the Court by evidence that he is entitled to the declaration and cannot rely on the admission in the pleading of the Defendant to sustain his claim. The onus is therefore on him to succeed on the strength of his own case, and not on the weakness of the Defendant’s case. See Kodilinye vs Odu (1935) 2 WACA 336; Odofin v. Ayoola (1984) 11 SC 72 Woluchem vs. Gudi (1981) 5 SC 29. PER UWANI M. ABBA AJI, 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 M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
1. CHIEF MOHAMMED SHITTU
2. CHIEF AJEWOLE DADA
3. PRINCE G.D. OMOTOSO (For and on behalf of the Ebi Omo Owa Ruling House of Usi-Ekiti) Appellant(s)
AND
1. CHIEF JAMES OLAWUMI (For and on behalf of Odoba Family of Usi-Ekiti)
2. IDO/OSI LOGAL GOVERNMENT
3. THE GOVERNOR, EKITI STATE
4. THE DEPUTY GOVERNOR, EKITI STATE
5. THE ATTORNEY-GENERAL, EKITI STATE Respondent(s)
HARUNA M. TSAMMANI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Ekiti state High court, Ido-Ekiti Division delivered on the 16th day of April, 2001 wherein the Plaintiffs’ claims before that court were dismissed entirely.
The Appellants were plaintiffs at the lower court, while the Respondents were Defendants.
The circumstances giving rise to the action filed by the Appellants against the Respondents was as a result of the Chieftaincy Declaration of Usi-Ekiti which increased the number of the ruling houses and the kingmakers, so as to correct the imbalance or lopsidedness pertaining to the chieftaincy of that domain. By that declaration, the Odoba family of the 1st Respondent was included as a ruling family in Usi-Ekiti. The Appellants who claimed that their Ebi Omo Owa ruling families have exclusive right of succession to the throne of Olusi (Oba) of Usi-Ekiti were dissatisfied with the declaration of the Odoba family as a ruling family in Usi-Ekiti and the increment of the number of kingmakers from six to ten, took out a writ of summons against the Respondents, wherein they sought the following reliefs: 1. A declaration that by history, native law, custom and tradition of Usi-Ekiti, there are Olusi three ruling houses to chieftaincy viz; Arakara, Amojojoye and Olasogba and there are six (6) kingmakers to Olusi Chieftaincy title.
2. A declaration that the purported amendment to the number of ruling houses and kingmakers to Olusi of Usi-Ekiti approved by the 2nd to 5th defendant on 5th May, 2003 and registered on 6th May, 2003 is illegal, run counter to the native law, custom and tradition of Usi-Ekiti and as such it is null and void.
3. A perpetual injunction restraining the 1st defendant and members of his Odoba family from regarding themselves as one of the ruling houses to Olusi of Usi
Chieftaincy and restraining 2nd, to 5th defendants from acting or making use of the purported declaration approved on 5th May, 2003 and registered on 8th May, 2003 in the filling of Olusi of Usi-Ekiti chieftaincy title when the stool is vacant.
The Respondents upon being served the Appellants’ Statement of claim filed their respective statements of Defence. The 1st Respondent filed their statement of Defence dated 14/7/2003, while that of the 2nd Respondent is dated 18/3/2004. The 3rd to 5th Respondents filed a joint statement of Defence dated the 23/10/2003.
The Respondents by their various Statements of Defence denied the claims and urged that the claims be dismissed.
At the trial before the lower court, evidence was led by and on behalf of the parties and several documents tendered and admitted as exhibits’ At the close of evidence, the parties filed written addresses, and in a considered judgment delivered on the 16th April, 2007, the learned trial judge dismissed the various claims of the Appellants. The Appellants are dissatisfied with the judgment of the lower court and have now filed this appeal. It is pertinent to point out that during the pendency of this appeal, the 1st Respondent, chief James Olawumi died. Consequently, the Respondents by a Motion on Notice dated and fifed the 22nd/10/2009, sought for and were granted leave to substitute his name with that of MR. MICHAEL OLAJIDE FAKEHINDE I have noted however, that the processes in this appeal were not amended to reflect the substitution made in the name of the 1st Respondent.
The Notice of Appeal filed by the Appellants is dated the 4th day of July, 2001 and filed the 5th day of July, 2007. It consists of six (6) Grounds of Appeal. The Grounds of Appeal, but without their particulars are hereunder reproduced as follows.
1. The Lower court erred in law when it stated in its judgment that “evidence which was not challenged abounds that from Usikorode to Oba Orokoyobiagbe, were from about 13 Obas in-between first defendant’s Oloba family”. In other words that Ebi Odoba had produced Olusi of usi in times past”. And this led to a miscarriage of justice.
2. The lower court was in error when it held that the Ekiti state Government can validly include the Odoba family (i.e. the first defendant’s family) as one of the ruling Houses in Usi pursuant to its powers to make a chieftaincy Declaration for Usi. And this led to a miscarriage of justice.
3. The Lower court was in error when it held that Government has the power to increase the kingmakers in Usi from six to ten because there was an imbalance and lopsidedness in the set up of the kingmakers in Usi-Ekiti. And this led to a miscarriage of justice.
4. The Lower court did not properly evaluate the evidence placed before it in arriving at the conclusion that the plaintiffs have failed to prove their case as required by law, i.e. on the balance of probabilities. And this led to a miscarriage of justice.
5. The decision of the trial court that “the plaintiffs and the 1st defendant have so much in common to warrant their being treated equity and therefore they are properly placed together in the rulership scheme of Usi” is unreasonable, unwarranted and cannot be supported having regard to the unwarranted and cannot be supported having regard to the evidence before the court. And this led to a miscarriage of justice.
6. The judgment of the lower court is against the weight of evidence adduced in the proceedings.
As required by the Rules and practice of this court, parties filed and exchanged briefs of Argument. The Appellants, Brief of Argument which is settled by Abdulhamid Rabiu Esq. is dated the 27th day of May, 2009 and filed the 1st day of June, 2009. The 1st Respondent’s Brief of Argument dated the 16th/09/2009 and filed the 07th/09/2009 vide motion on Notice dated 16/9/2009 and filed the 17/9/2009. The Brief of Argument of the 2nd Respondent is dated the 06/10/2009 and filed the 07/10/2009 by a deeming order of this court vide motion on Notice dated the 06/10/2009 and filed the 07/10/09. That of the 3rd to 5th Respondents is dated the 23/11/2009 and filed the 24/11/2009. It was deemed filed on the 10/3/2010 vide motion on Notice filed the 24/11/2009. The Appellants filed a Reply Brief dated and filed the 10/3/2010.
At the hearing of this appeal on the 23/03/2011, counsel adopted their respective briefs of argument.
In the Appellants” Brief of Argument, three (3) issues were formulated from the six (6) Grounds of Appeal set out in the Notice of Appeal. They are as follows:-
1. Whether, judging from the Defendants’ claim of past ascendancy to the throne of Olusi of Usi, was not challenged and whether the learned trial judge make (sic) any or proper findings on the evidence of the plaintiffs’ witnesses.
2. Whether the 3rd defendant has the power to vary the custom and tradition of the people in making a chieftaincy declaration and whether the chieftaincy declaration of Usi-Ekiti made by the 3rd Defendants was validly made.
3. Whether the evidence in this case was properly evaluated and whether the plaintiffs succeeded in proving their case.
All the Respondents adopted the issues raised by the Appellants for the determination of this court in their respective briefs of argument.
I have carefully read and reflected on the issues formulated by the Appellants, which have been adopted by the Respondents as the issues that arise for determination in this appeal. A careful consideration of those issues would show that issues 1 and 3 are substantially similar. Both issues in my view essentially complain about the evaluation of the evidence and findings of fact made by the learned trial judge. In that regard, I shall consider the two issues, i.e. issues 1 and 3 together.
In arguing those issues, learned counsel made for the Appellants copious reference to the testimony of the witnesses for both the Appellants and the Respondents, and the findings of the lower court thereon, to submit that the learned trial judge was grossly in error in his findings’ That the testimonies of the Appellants, witnesses were at cross-roads and therefore it was erroneous for the learned trail judge to hold that, the evidence led by the Respondents, witnesses were not challenged. That were not the learned trial judge failed to put the Appellants, evidence on the other side of the imaginary scale as a result he was misled to make a wrong conclusion . It is his contention that, the learned trial Judge wrongly applied the case of KUTI V ALASHE (2005) 17 NWLR (PT. 955) P. 625 in reaching a conclusion that the Appellant and the 1st Respondent family have the same progenitor. That contrary to the findings of the trial judge, the evidence P.W.1, P.W.2 and P.W.3 repelled that of the Respondents witnesses. To support his contention, learned counsel for the Appellants referred us to portions of the testimonies of p.w.1 and p.w.2 at pages 59 lines 6 – 7, 60 lines 20 – 24, 61 lines 3 – 11 , 66 lines 3 – 5 and 68 lines 17 – 23 of the record of appeal to further contend that, it is clear from the testimonies of the Appellants, witnesses, that the conclusion of the trial judge faired to agree with the evidence. Furthermore, that, the Book written by professor J.A Oluyemi titled, ‘Short History of Usi Ekiti…” show that the forefather of the 1st Respondent’s Odoba family came from Isapa in Kwara state, and that this evidence did not only challenge the 1st Respondent’s family ascendancy to the throne of Olusi, but contested their eligibility to it.
It is also the submission of learned counsel for the Appellants that the learned trial judge failed to consider the contents of the book on the history of Usi- Ekiti which has not been challenged since its publication in 1991 and therefore has persuasive effect. That this is germane in view of the testimony of the D.W.1 at page 104 lines 24 – 25 and that of the P.w.3 at page 83 lines 26 – 29. That, the learned trial judge opted to play mute on the evidence of the Appellants’ witnesses by not making any findings thereon, but elected to adopt the stories told by the 1st Respondent’s family without any evaluation or reason given for doing so. He relied on the case of PROFESSOR AKIN MABOGUNJE & 2 ORS VS.MR.ADEMOLA ADEWUNMI & 13 ORS (2006) 11 N.W.L.R. (PT.991) p.224 AT pp.247 – 248 to submit that, a trial judge has a duty to evaluate all material evidence of parties, ascribe probative value thereto and place same on an imaginary scale of justice. That the learned trial judge failed to exercise the balancing act and therefore tilted the balance in favour of the Respondents.
Learned counsel for the Appellants further contended at pages 17 – 24 of the Appellants’ Brief of Argument that the D.W.1 and D.W.2 made important admissions and contradictions which were not considered by the trial court. That those admissions and contradictions completely supported the case of the Appellants. Here again, learned counsel copiously cited the testimony of the witnesses at pages 59 lines 12 – 15, 114 lines 7 – 9,101 lines 12 – 16, 102 lines 6-22, 61 lines 4-5, 68 lines 17 – 19, 59-61 lines 18 – 22and 1-4, 103 line 15 – 19, 107 lines 8 – 10, 79 lines 16 – 19, 114 lines 9 – 12, 62 lines 20 – 27,79 lines 23 – 26, 94 lines 3 – 7, 105 lines 5 – 8, 83 lines 9 – 11, 62 lines 20 -21,80 lines 9 – 10, 62 lines 13 – 16, 68 lines 19- 24, 78 lines 12- 15, 80 lines 6 – 10, 12 lines 12- 16 and 80 line 9 of the record of appeal, to also contend that, the P.W.1, P.W.2 and P.W.3 were able to establish the fact that of the nine (9) families in Usi, the Omowa family is the number one family, while Odoba of the 1st Respondent is number Seven (7) and that of those families, only the Ebi Omo Owa family of the Appellants can produce the Oba (Olusi) of Usi. That, the D.W.1 admitted that fact, thereby solidifying the Appellants’ claims, and that the testimony of D.W.2 and Exhibit “B” which the learned trial judge did not consider, corroborated and attested to the claims of the Appellants as stated by the P.W.1 and P.W.2.
Learned counsel for the Appellants also contended that, P.W.2 dispelled that insinuation that four (4) out of the six (6) kingmakers are from one family and that such testimony was replenished by that of the D.W.2, while P.W.1 put an end to any doubt on the issue of the kingmakers as stated at page 62 lines 20 – 27 of the record of appeal. He therefore submitted that their submissions on the 3rd issue is an attestation of the fact that the evidence of the witnesses were not properly evaluated by the lower court, otherwise, it would have found the case of the Appellants proven against the Respondents, thereby awarding judgment in favour of the Appellants. That evidence abound that, the Appellants and the 1st Respondents are in-laws, and therefore, it is not unexpected if they share things in common considering the length of time of their relationship. That in any case, the P.W.1 had dispelled the evidence of common practice when he stated at page 62 lines 20 – 21 of the record of appeal, that, the new Olusi does not perform any rite at Ita Odoba.
It is therefore the submission of learned counsel for the Appellants that, a feature of customary law preponderates the entire evidence adduced at the trial that there is domestication of ruler ship in a ruling house within an extended family, thereby excising other members of the extended family. That the testimonies of the P.W.1, P.W.2 and D.W.1 are instructive in that respect. He then submitted that, it is crystal that the learned trial judge glossed over the evidence without proper evaluation otherwise, he would have found the Appellants’ claims proved against the Respondents. He therefore urged us to resolve those two issues, i.e. issues 1 and 3 in favour of the Appellants and to allow the appeal.
The response of learned counsel for the 1st Respondent on these issues as contained on pages 4 – 5 and 9 – 13 of their Brief of Argument dated the 16/9/2009 and deemed filed the7/10/2009, is that the Appellants’ and the 1st Respondent’s families laid claim to the same origin and ancestral lineage through one Usikorode who led them from Ile-Ife to the present site of Usi-Ekiti. That both of them laid claim to same Obas who featured prominently in their respective histories from Usikorode to Adeorokun, the 11th Oba, when they presented before the Ido-Osi Chieftaincy Committee as shown by Exhibits E and E1. That it would appeal from their history that they are one and the same from one single family (Odoba) till a point when Oba Aina Arole and Oba Orokoyobiagbe (both brothers) founded Ona
Omi-Osun and Idiagbon ruling houses. That what brought about the separation of those ruling houses was not explained by the Appellants, but only the D.W.1 who threw some light to the circumstances that led to it among the three brothers, i.e. Ogodo, Aina Arole and Orokoyobiagbe who were all children of Oba Adeorokun and that the Appellants did not tell the court which ruling house was ruling before the emergence of both Idiagbon and Ona Omi-Osun ruling houses, but the D.W.1 explained to the court that before the emergence of those two ruling houses, the Odoba family was the premier ruling house out of which the Appellants’ ruling houses emerged and that Ebi Omo Owa is not the name of any family, but an appellation given to princes and princesses which came into usage during the reign of Oba Orokoyobiagbe, the 13th Olusi of Usi-Ekiti. Learned counsel then submitted that all those facts were never controverted or contradicted in any way by the Appellants and are therefore deemed admitted. The case of ADO IBRAHIM & CO LTD VS. ELDESTEIN (NIG) LTD (2002) 1 N.W.L.R (PT.747) P.50 AT P.71 PARAS. F – G was cited in support.
It is also the submission of learned counsel for the 1st Respondent that, by virtue of Sections 135, 136 and 137 (1) of the Evidence Act, the plaintiff in a civil case has the onus of proving his case on the balance of probability or preponderance of evidence, but the Appellants failed to prove their case as required by law, their evidence being full of distortions and contradictions. That the Appellants claims before the lower court are for declarations and injunction. He then submitted that, a party seeking for a declaratory relief must rely on the strength of his own case and not on the weakness of the defence. That such a party must place before the court, materials sufficient enough for the court to find in his favour. The case of ROSEN INVESTMENT LTD V. N.D.I.C. (2007) ALL F.W.L.R (PT.384) P.858 was cited in support. That the Appellants tendered exhibit “A” at P.225 to prove that they are the only Omo Owa but the same exhibit at pages 45- 46 lines 1, 8 and 10 show that the 1st Respondent’s family are also Omo Owa and also migrated from Ile-Ife to Usi. That P.W.2 also admitted under cross-examination that, there is no other Ebi or family that bears “Omo Owa” in its Oriki (cognomen) apart from the Appellants and 1st Respondent’s family, which shows that, there is a link between the two families.
It is also the contention of the learned counsel for the 1st Respondents that the Appellants tendered exhibit “B” to prove that the 1st Respondent’s family are not from Ile-Ife, but that the said exhibit refer only to Eisikin, a lineage of Odoba family as coming from Isapa in Kwara State. That the said exhibit ‘B’ similarly show that Fakuade a branch of Ebi “Omo Owa” came from Aaye-Otun as shown on page 19 paragraph 1 of the same exhibit. It is the further contention of the 1st Respondent that, by paragraph 11 and 26 of the Statement of Claim, the Appellants averred that three ruling houses have been ruling from time immemorial, but from paragraph 6 of the history of the Appellants’ family, out of the 17 Olusis, it was during the reign of the 8th Olusi (Oba Ogan Okeoro) from Idiagbon ruling house that the grouping of ruling houses began.
Learned counsel then contended that the Appellants did not explain which ruling houses the 1st to 7th Olusis came from. That the memorandum submitted by the Appellants to the Morgan Chieftaincy Review Commission of 1978 was fraught with fabrications, inadequacies, lies and errors, because the three names presented to the commission as the three ruling houses by the Appellants, were only names of Obas that reigned in succession who are all from one single ruling house (Ona Omi Osun) and that the other ruling houses of Idiagbon, Olasogba and Idoba were side- tracked. That those inconsistencies in the royal history given by the Appellants show that they have no knowledge of it and therefore, the government did not act on it or register same.
Learned counsel for the 1st Respondent went on to submit that the Appellant’s witnesses are not reliable as shown by the testimonies of P.W.1 at page 61 lines 3 – 4 and P.W.2. He then contended that the obvious exclusion of Odoba by Oba Olajide in his memorandum presented to the Ido/Osi Chieftaincy Committee was a carry-over of what the same Oba did in 1978 before the Morgan Commission. Learned counsel urged us to be swayed by the authority of INEC V RAY (2004) 14 N.W.L.R (PT.892) P.104 and to hold that the testimony of the Appellants’ witnesses is not credible. We were further urged to hold that the learned trial judge to a great extent properly evaluated the evidence of the parties before it.
A careful reading and consideration of the 2nd Respondent’s brief of Argument has revealed that the submissions of counsel therein are a total and wholesale replica or copy of the 1st Respondent’s Brief of Argument, word for word. It is therefore a complete adoption of the 1st Respondent’s Brief of Argument. Nothing new outside the 1st Respondent’s Brief of Argument has been argued or urged on us by the 2nd Respondent.
The 3rd-5th Respondents’ Brief of Argument settled by Gboyega Oyewole Esq. of learned Attorney General for Ekiti State is dated the 23/11/2009 and deemed filed the 10/3/2010. Therein learned Attorney-General contended in respect of the 1st and 3rd issues formulated for determination that, the arguments of the Appellants in their Brief of Argument is not in accord with the evidence on record and should be discountenanced. That since the Appellants contend that the 1st Respondent’s Odoba family is not part of their family and so have no right to present a candidate to fill the stool of Olusi whenever the Stool is vacant, and that no member of Odoba family, has ever been made Olusi of Usi-Ekiti was founded, but that the only three ruling houses that have been ruling are from the Ebi Omo Owa family, they have the burden of proving those assertions. He cited in support the case of UNIVERSITY PRESS LTD V I.K. MARTINS LTD (2000) 4 N.W.L.R (PT.654) P.584. That, it is trite law that for a plaintiff asking for a declaration to succeed, he must rely on the strength of his own case and not on the weakness of the defence.
The cases of ADENIRAN V. ALAO (2001) 18 N.W.L.R (Pt.745) P. 361 and ONWUANA V. EZEOKOLI (2002) 5 N.W.L.R (PT.760) P.353 were cited and relied on, Learned counsel then contended that, the totality of the evidence led by the Appellants was not reliable and convincing to prove or establish their claims, whereas that of the Respondents was credible, convincing and left no one in doubt regarding the fact that the 1st Respondent’s Odoba family is a royal family which had produced some Olusis of Usi-Ekiti a long time ago and that it was the Appellants’ family that manipulated the process of selecting the Olusi thereby preventing the 1st Respondent’s family from presenting candidates for the Olusi chieftaincy stool.
The 3rd – 5th Respondents’ learned counsel further submitted that as the Appellants failed to substantiate their claim that the 1st Respondents’ family had never produced Olusi from the inception of Usi-Ekiti, the trial court made correct and proper finding on the evidence of both the Appellants and the Respondents and came to the conclusion that the Appellants did not prove their case and dismissed same as shown on page 205 of the record of appeal. He then urged us not to disturb the findings and decision of the trial court as same is in accord with the evidence led and not perverse. He further relied on the cases of GBAFE V. GBAFE (1996) 6 N.W.L.R (PT. 455) P.417 at P.436 and MAKINDE V. AKINWALE (2000) 7 N.W.L.R (PT.645) P.435 at 447.
It is also the submission of learned counsel for the 3rd – 5th Respondents that there is no admission or contradiction in the evidence of the Respondents’ witnesses and so all submissions by the Appellants in their Brief of Argument concerning any purported admission should be discountenanced. He then submitted that for the Appellants to succeed in getting the declarations and injunction sought, the law enjoins them to establish their assertions on the strength of their case before the court, but that they woefully failed to prove their case. That the trial court after properly evaluating the evidence including the exhibits tendered, came to the conclusion that the Appellants failed to prove their case. He referred to the entire evidence of the Appellants’ witnesses on pages 59 – 94 of the record and submitted that the Appellants could not have succeeded because when the evidence on both sides is juxtaposed, it is obvious that the testimonies of the Respondents’ witnesses is more accurate, straight to the point, convincing and preferable. That the trial court considered all the evidence before it as well as the demeanor of the witnesses before giving its decision, and therefore the trial court’s decision is not perverse, so we were urged not to disturb it.
Learned counsel for the 3rd – 5th Respondents further contended that, all the submissions and quotations by the Appellants in their Brief of Argument, apart from being confusing, do not in any way show that the trial court did not properly evaluate the evidence led or that the Appellants succeeded in proving their case. Relying on the case of LAWAL V. MOROHUNFOLA (1998) 1 N.W.L.R (PT.532) P.111 and BADEJO V. MINISTER OF EDUCATION (1996) 9 – 10 S.C.N.J ,P.51, learned counsel submitted first of all that, all the arguments by the Appellants on the issue of Morgan Chieftaincy Commission relating to Olusi Chieftaincy has been over taken by events and therefore become academic, because, the Morgan Commission was in 1982 and that at that time, Ekiti State was part of the then Ondo State. That the then Ondo State Government did not act on the white paper on the report of the Morgan Commission relating to the Olusi Chieftaincy Stool, and therefore on the setting up of Ido/Osi Local Government Chieftaincy Committee by Ekiti State Government in 1998 and the subsequent registration of a new declaration in respect of the Olusi Chieftaincy Stool, everything about the Morgan Commission concerning Olusi Chieftaincy became spent and therefore any submission on it is an academic issue. He then submitted that the Respondents’ evidence on record concerning their right to be entitled to the Olusi throne far out-weighs that of the Appellants and as the findings of the trial court therein is not perverse but based on genuine and credible evidence, we were urged not to disturb the decision of the trial court. The case of MAKINDE V AKINWALE (2000) 2 N.W.L.R (PT.645) P.435 at P. 447 was cited in support.
The Appellants filed a Reply Brief to the Respondents’ Brief of Argument. It is dated the 10th day of March, 2010 and filed the same day. The said Reply Brief covers 26 pages. Having perused the said Reply Brief, I have not been able to see anything substantial in it which has not been adequately covered by the Appellants’ Brief. Similarly, I am unable to see any new substantial points that have been introduced by the Respondents’ Brief as to warrant or justify such extensive Reply Brief by the Appellants. I point this out considering the fact that; the purpose of a Reply Brief is to deal with all new points arising from the Respondents’ Brief. It is not meant to expatiate on or re-argue issues which had already been argued or canvassed in the Appellant’s Brief of Argument. A Reply Brief is therefore only desirable and effective when the respondent has raised new issues in his brief and which issues had not been addressed by the Appellant in his brief. Thus a reply brief made up mainly of re-argument or rejoinders on issues already canvassed in an appellant’s brief serves no useful purpose and may be disregarded by the court. See order 17 rule 5 of the Court of Appeal Rules, 2007 and the cases of OKPALA V IBEME (1989) 2 N.W.L.R (PT.102) P. 208 at p.220: NWALI V THE STATE (1991) 3 N.W.L.R (PT.182) P.663: SHUAIBU V MAIHODU (1993) 3 N.W.L.R (PT. 284) P.748: UMEJI v A.G..IMO STATE (1995) 4 N.W.L.R (PT. 391) P. 552 at P.593: ONYEKWULUNNE V. NDULUE (1997) 7 N.W.L.R (PT.512) P.250 at P.279 and AGUSIOBO V OKAGBUE (2001) 15 N.W.L.R (PT.737) P.502 at P.527.
A reading of the Appellants’ Reply Brief would show that counsel made rejoinder to virtually all the arguments made by the Respondents in respect of all the issues for determination in this appeal. That is not the aim of a Reply Brief as it serves no useful purpose.
Now, it is pertinent to point out at this stage that from the grounds of appeal, particularly grounds 1, 4, 5, and 6, the issues formulated therein i.e. issues 1 and 3 and the arguments of counsel, the Appellants are questioning the evaluation of the evidence led and the findings of the trial court thereon. Indeed, this court has the power to evaluate the evidence on the record and do what is just in the circumstances. This court therefore has the power to make any findings which ought to be arrived at by the trial court based on the evidence on the record. However, the general rule 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. Thus, where the trial judge had diligently and justifiably evaluated and appraised the facts, it is not the business or duty of the appellate court to substitute its own view for that of the trial judge. Appellate Courts are therefore usually reluctant to interfere where the trial court has properly appraised and evaluated the evidence presented before it as it is 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 N.W.L.R (PT.1055) P.478: OMAYE V OMAGU (2008) 7 N.W.L.R (PT.1087) P.461: ISMAIL V STATE (2008) 15 N.W.L.R (PT.1111) P.593: OJELEYE V RGT. T.O.I.M.C & S.C.N (2008) 15 N.W.L.R (PT.1111) P.520 and GAGARAU V PASHIRI (2006) 1 N.W.L.R (PT.962) P.521.
Where the trial court failed to evaluate or properly evaluate the evidence led before it, this court can do what the trial court ought to have done and accordingly set aside the findings made by the trial court. The general attitude of this 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 based on the facts before it. The method or approach adopted by the trial court is not a necessary determining factor. This court may therefore interfere with the findings of a trial court in any of 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 the evidence before it.
It is the party who complains that the trial court did not evaluate the evidence that has the duty to show or demonstrate how the judgment of the trial court would be found to be wrong if the omission or failure by the trial court is corrected. See AKINDIPE v STATE (2008) 15 N.W.L.R (PT.1111) P.560: P.T.F V. W.P.G. LTD (SUPRA) at P.498 PARAS A – E: MAFIMISEBI V. EHUWA (2007) 2 N.W.L.R
(PT.1018) P. 385 and ANYAFULU V. AGAZIE (2006) 5 N.W.L.R (PT.973) P.260.
Before I proceed, I wish to restate at this stage that the Appellant’s claim at the lower court were for certain declaratory reliefs and injunction pertaining to the customary law regulating the appointment to the throne of Olusi of Usi-Ekiti in Ido/Osi Local Government Area of Ekiti State. The law is that where a party basis his claim on customary law, he must lead cogent, credible and convincing evidence in proof of such custom or tradition, 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 one single decision may be sufficient and authoritative that it would suffice. See GIWA V ERIMOLOKUN (1961) 1 ALL N.L.R. P. 294: FOLAMI & ORS V. COLE & ORS (1990) 2 N.W.L.R (PT.133) P. 445 and AGBAI V OKAGBUE (1991) 7 N.W.L.R (PT.204) P. 427Generally, the right to a Chieftaincy Stool, as claimed in the instant case, has always been in the nature of a 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 concrete, cogent and credible evidence as to establish its existence to the satisfaction of the court. See GIWA V ERIMOLOKUN (SUPRA) at P.337: INYANG v ITA (1929) 9 N.L.R. P.84 and OGUNLOWO V. OGUNDARE (1993) 7 N.W.L.R (PT.307) P.610 at P.623. See also Section 14 of the Evidence Act.
I had earlier in the course of this judgment reproduced the claims of the Appellants before the trial court. Claims 1 and 2 of the Appellants are for declaratory reliefs. Thus, based on the law on the burden and standard of proof enshrined in Sections 135, 136 and 137 of the Evidence Act, a party seeking for declaratory relief(s) has the burden to lead evidence to show that he is entitled to the declaratory relief sought. In other words, where a party claims for a declaratory relief or right, it behoves on him to satisfy the court by the evidence adduced by him that he is entitled to the declaration, and cannot rely on admission in the pleading of the defendant to sustain his claim. This is because the grant or refusal to grant such a declaratory relief is at the discretion of the court. Thus, where a party seeks a declaratory judgment, the onus is on him to succeed on the strength of his own case and not the weakness of the case for the defendant
A defendant who has not counter claimed only has the duty to defend and accordingly, a consideration of the defendant’s case and its weakness does not arise until the plaintiff has led evidence which prima facie show that he is entitled to the declaration sought. The facts in the defendant’s case may support that of the plaintiff, and in that instance, the latter can rely on that aspect of the defendant’s case that support his case to establish and prove his case. See KODILINYE V ODU (1935) 2 W.A.C.A. P.336: ODOFIN Vs. AYOOLA (1984) 11 S.C. P.72: BELLO V EMEKA (1981) 1 S.C. P.101: AKINTOLA V OLUWO (1962) 1 S.C.N.L.R. P. 352: WOLUCHEM V GUDI (1981) 5 S.C. P.291 : ADELAJA Vs. FANOIKI (1990) 2 N.W.L.R (PT.131) P.137: GANKON V. UGOCHUKWU CHEMICAL IND. LTD. (1993) 6 N.W.L.R (PT. 297) P.55 and ALECHENDU V OSHOKE (2002) 9 N.W.L.R (PT.773) P.521 at P.535..
The burden of leading or adducing such evidence is discharged on preponderance of evidence or balance of probabilities.
In the instant case, the Appellants pleaded and led evidence to the effect that the Stool of Olusi of Usi-Ekiti was founded by Usikorode, one of the sons of Lafogido, the Oni of Ife and that the said Usikorode begat all members of Ebi Omo Owa from which three ruling houses to wit: Alakara, Amojojoye and Olasogba, who have been rotating the Olusi of Usi-Ekiti among them from time immemorial. That since Usi-Ekiti was founded by Usikorode, no family from Usi-Ekiti has ever laid claim to the Olusi Stool besides the three ruling houses from Ebi Omo Owa. That even when the Ondo state Government set up the Morgan Chieftaincy Review Commission in 1978, it was established that there are three (3) ruling houses and six (6) kingmakers to Olusi of Usi-Ekiti which the government accepted in a white paper published in 1982. They further contended that, to their surprise, the Odoba family (1st Respondent) which is a separate and distinct family from the Appellants in Usi-Ekiti started agitating that they are part and parcel of Ebi Omo Owa family and therefore also entitled to ascend the throne of Olusi of Usi-Ekiti. The Appellants denied any blood relationship with the Odoba family and contended that, the Odoba family migrated from Isapa in Kwara state to settle at Usi-Ekiti, and that the only link the Odoba family has with them is that some members of the Odoba family married from their family. It was therefore the Appellants’ case that, the Odoba family is not part of their family and thus has no right to present candidate to fill the Stool of Olusi of Usi-Ekiti whenever the Stool is vacant. That in any case, no member of Odoba family has been made Olusi of Usi-Ekiti or has ever contested for the Stool since Usi-Ekiti was founded.
The Respondents and particularly the 1st Respondents challenged the Appellants’ claim and contended in their statement of defence and led evidence to the effect that they are also descendants of Usikorode the founder of Olusi of Usi-Ekiti. That they are also bonafide descendants of Oba Usikorode one of the sons of Lafogido, the twenty-first Oni of Ile-Ife. That, at the time of the reign of Oba Usikorode, the founder of Usi-Ekiti, there were eight families but the present Omo Owa family was not in existence. That Ebi Omo Owa family of the Appellants only came into existence during the reign of Oba Orokoyobiagbe, also known as Alakara, the 13th Olusi when he broke away from the Odoba family and that since then his family (Appellants’ family) have totally usurped the Olusi Stool, thus shutting out the 1st Respondent’s Odoba family. They also contended that, 1st Respondent’s family shares the same Oriki (cognomen) with the Appellants’ family. That it was Oba Adeorokun the 11th Olusi who hailed from the Odoba family that led his people from Ipole to the present Usi-Ekiti. That when Adeorokun died, Aina Orole succeeded him but moved to Ona Omi Osun where he founded another ruling house and upon his death, he was succeeded by his brother Orokoyobiagbe who also founded the Idiagbon Ruling House.
Based on the evidence led by the parties at the trial, the learned trial judge disbelieved the Appellants and consequently dismissed their claims. My duty is to consider the decision of the learned trial judge so as to determine whether his decision is supported by the evidence led before him. In other words, I am to determine whether the learned trial judge properly evaluated the evidence led, and supported his findings by the evidence on the record.
Now, from the pleadings and evidence adduced by the parties at the trial, both the Appellants’ and the 1st Respondent’s family claim that Usikorode, one of the sons to Lafogido, the 21st Oni of Ile-Ife who founded the Olusi throne of Usi-Ekiti is their progenitor. However, the Appellants contended that the 1st Respondent’s family migrated from Isapa in Kwara State and settled at Usi-Ekiti and therefore not descendants of Usikorode. They tendered Exhibit “B”, a book titled ‘A Short History of Usi-Ekiti’ by J.A. oluyemi to support that contention. However, as rightly pointed out by learned counsel for the 1st Respondent, it is only a lineage of Odoba family called Eisikin is said to have migrated from Isapa in Kwara State. Thus the contention of the Appellants that the entire Idoba (1st Respondent’s) family migrated from Isapa in Kwara State is not supported by the evidence.
Further more, the 1st Respondent pleaded and led evidence through D.w.1 and D.w.2 that they share the same cognomen of “Omo Owa” with the Appellants’ family. The Appellants did not file any Reply to the pleading of the 1st Respondents in that regard. However, the P.W.1 stated under cross-examination that their Oriki or cognomen is “Omo Owa, Ekun laofin” and therefore different from that of the 1st Respondent’s family which is “Omo Owa, Omo ekun”. The P.W.2 translated “Omo Owa” to mean “Princes and Princesses” which give credence to the cognomen of the 1st Respondent’s family at page 45 line 1 of Exhibit ‘A’ to show that the Idoba family are also princes and princesses. He further interpreted the 10th line of page 46 in the cognomen (Oriki) of Ebi Idoba in exhibit “A” to mean “the lucky child, that wears the crown”, thus further establishing royalty of the Idoba family of the 1st Respondent, and that no other family bears this cognomen (Oriki). A perusal of Exhibit A will show that only Ebi Omo Owa and Ebi Idoba bear “Omo Owa, Omo Ekun” in their cognomen.
The only difference is the “la-ofin” added to the cognomen of Ebi Omo Owa. The D.W.1 explained that the Idoba family Oriki (cognomen) does not have ‘laofin’ because they were not the reigning Oba at that time. This then supports the case of the Ebi Idoba family that they share cognomen with the Appellants. The P.W.3 who is the Odofin and one of the kingmakers stated that his mother is from the Appellants’ family. He further stated that he does not know whether Ebi Idoba belongs to Ebi Omo Owa and that he does not know the origin of Ebi Idoba. He however admitted both Ebi Omo Owa and Ebi Idoba claim to come from Ife and that they share some things in common, such as farmlands, Ereju Festival and the Ita Odoba. That Ebi Omo Owa and Ebi Idoba went to Ife together to recover the lost beaded crown.
On the assertion of the Appellants that they have no blood relationship with the Idoba family, because some members of the 1st Respondent married from the Appellants’, the D.W.1 stated that Ebi Idoba and Ebi Omo Owa are blood relations and gave example of his mother who hails from Ebi Omo Owa. That in Usi-Ekiti, blood relations can intermarry and that since 1877 when Ebi Idoba and Ebi Omo Owa separated, they have been considered as distinct and separate families. He stated then under re-examination that before the separation there was no inter-marriage between Ebi Idoba and Ebi Omo Owa. The D.W.1 further stated that even within the present Ebi Omo Owa, there has been inter-marriage and proceeded to give the example of Pa Reuben Ibitola from Fakehinde clan of Ebi Omo Owa who married Eyesarin Ikelaye of Iwo clan also in Omo Owa. All these facts were never challenged nor contradicted by the Appellants.
The Appellants also pleaded that no member of Idoba family has been made Olusi of Usi-Ekiti or has ever contested for the Stool since Usi-Ekiti was founded. They also led evidence through P.W.1 to show that, from history, 17 Obas have reigned in Usi and that none of them came from Ebi Idoba and therefore the Ebi Idoba are strangers in Usi and to the Olusi throne. That the 17 Olusis that reined all came from Ebi Omo Owa between the ruling houses of Alakara (Idiagbon), Amojojoye (Ona-Omi Osun) and Olasogba. However, D.W.1 stated that there had been 13 Obas from Idoba ruling house. He then explained that, their ancestor, Usikorode came from Ile-Ife and settled at Ipole, where about 10 Obas ruled after him. That owing to the frequent wars, the 11th Oba, Oba Adeorokun moved his people to a more secure site, which is the present Usi-Ekiti, where he died and he was to be succeeded by his son Ogodo, but due to the ill-health of Ogodo, his younger brother called Aina Orole, succeeded their father Adeorokun. That Aina-Orole moved out of his father’s compound and founded Ona-Omi Osun ruling house and after his death, he was succeeded by his brother Orokoyobiagbe who also moved out and found Idiagbon ruling house adjacent to Ona-Omi Osun. That this resulted in the creation of Ebi Omo Owa after the death of Orokoyobiagbe, so the next person to succeed to the throne from Idoba family was interrupted, and since then the Ebi Idoba family has been prevented from presenting candidates for the throne, which culminated in the agitation by the Ebi Idoba family to be allowed to present candidates for the throne of Olusi of Usi-Ekiti. The D.W.1 also stated that as a result of their agitation, Oba Adebayo, the 2nd educated Oba and the 1sth Olusi treated the Ebi Omo Owa and Ebi Idoba as one.
The learned trial judge preferred this testimony of the 1st Respondents and disbelieved the testimony of the Appellants. He therefore found that the Appellants and the 1st Respondents’ family have the same progenitor, Usikorode, a son to Lafogido, the 21st Ooni of Ife and that if the evidence offered by the Appellants and the Respondents is put on the imaginary scale, that offered by the Respondents clearly out-weigh that of the Appellants. It is also the finding of the learned trial judge that on the evidence led before him, the Appellants and the 1st Respondents having been proved to have a common progenitor, the Idoba family of the 1st Respondent are equally entitled to the same rights and be subjected to the same constraints in relation to the ascension to the Olusi of Usi-Ekiti throne. I see no reason to fault this finding of the learned trial judge as the testimony of the Respondents thereon was direct, positive and never contradicted. I am therefore of the view that the evidence on the record as led by the parties support the findings of the learned trial judge and I find nothing on the record to disturb those findings. Issues 1 and 3 are therefore resolved in favour of the Respondents.
On the 2nd issue, it is the submission of learned counsel for the Appellants that, for a Chieftaincy Declaration to be valid, it must truly represent the custom it professes to restate. In other words, it must conform to the prevailing customary law. The case of OBA ADEBANJO MAFIMISEBI & OR V. PRINCES MACAULAY EHUWA & 8 ORS (2007) 2 N.W.L.R (PT.1018) P.385 AT PP.412
AND 432 – 433 was cited in support. That in making the Chieftaincy Declaration, the Government has no power to make, increase, amend, alter or add thereto, as it is not a process where the Government can legislate for the people but an affirmation of the custom and usages of the people. That, the testimony of D.W.1 at page 101 lines 17 -21 of the record of appeal is an admission of the fact that an increase was made to the number of Ruling Houses and Kingmakers of Usi-Ekiti and therefore an evasion and alteration of the existing custom of the people. That the alteration or increase made by the 3rd Respondent was a result of individual agitation. Learned counsel then made extensive quotations from the testimony of the witnesses relating to the customary law relating to the ascendancy to the throne of Olusi of Usi-Ekiti prior to the Chieftaincy declaration as can be seen at pages 9 – 15 of the Appellants Brief of Argument. It should be pointed out at this stage that, those issues of fact as relied on by the Appellants in arguing this issue are not Germaine to the determination of this issue i.e. issue 2, as the issue is whether the 3rd Respondent had the power to make the Chieftaincy Declaration and whether the Declaration so made was validly made. As can be seen resolution on issues of fact pertaining to the custom and tradition of ascension to the throne of Olusi of Usi-Ekiti had been made when considering issues 1 and 3. Reference to facts as gleaned from the testimony of the witnesses at this stage is therefore not helpful in the resolution of issue 2 as formulated by the Appellants and adopted by the Respondents. Based on those facts, I had found that the finding of the trial court that the Ebi Idoba family is eligible to the throne of Olusi of Usi-Ekiti is well founded and therefore not perverse. As earlier stated, what arises for the determination is whether the 3rd Respondent had the power to make the Chieftaincy Declaration and whether the Declaration was validly made?
The argument of the Appellants which I find germaine to the resolution of this issue is the submission of the Appellants’ learned counsel at page 14 of their Brief of Argument that, Customary Law is an evolution of set of rules from practices and usages of a people or community, which is applied to govern their affairs in the matter to which it relates. That it is therefore not amenable to repealing or amendment by legislation or otherwise and thus, any alteration or amendment thereto has to be by the same process of evolution and usages, and not at the instance of an individual or aggrieved family. He relied on the case of DANMOLE v DAWODU (1959) 3 F.S.C. P.96. Learned counsel then further submitted that the addition made to the number of kingmakers was an invasion of the custom of the people, as such a change could only arise by popular demand, usages and practice. That there was no agitation or demand before the increase in the number of the kingmakers was made, and therefore the learned trial judge was wrong when he held that the exercise of increasing the numbers of kingmakers from six to ten was as a result of protest from Usi people. It is therefore his submission that the good intention of the authority on the issue of increase in the number of kingmakers cannot justify the increase made. That the prevalent custom having been admitted by D.W.4, the increase made was therefore an imposition. The cases of AGBAI V OKOGBUE (1991) 7 N.WL.R (PT.391) P.417 and DANMOLE V DAWODU (Supra) was cited in support.
Learned counsel for the Appellants went on to submit that the learned trial judge applied the Supreme Court decision in the case of MAFIMISEBI & 1 OR VS. EHUMA & 8 ORS (SUPRA) out of con. That the Appellants are challenging the validity of the Chieftaincy Declaration and therefore, the applicable principle is as stated by the Supreme Court at pages 431 – 433 in the MAFIMISEBI VS. EHUWA (SUPRA). It is therefore the submission of learned counsel that, based on that decision, the Court has the power to set aside or annul a Chieftaincy Declaration which does not truly represent the Customary law it professes to restate. He then submitted that, the 3rd Respondent has no power to vary or alter the custom and tradition of the people not shown to offend the repugnancy concept or any law for the time being in force, and therefore the Chieftaincy Declaration made by the 3rd Respondent is null and void.
The arguments of the 1st Respondents on this issue are at pages 6 – 9 of the 1st Respondent’s Brief of Argument. Therein, learned counsel for the 1st Respondent contended that, by virtue of sections 3 and 16 of the chiefs Law of Ondo state, 1gg4 (as amended) in 1991, applicable to Ekiti state, the state Government has the power to enquire into any Chieftaincy Declaration and amend same and to make Chieftaincy Declaration where none exists by virtue of sections 1(2) of the said chiefs Law, 1984. That the evidence led in this case show that there was no such declaration before and it is upon that guise that the Ekiti State Government asked Ido-Osi Local Government to set up a Chieftaincy Committee to look into the grievances of the 1st Respondents in respect of the Olusi Stool. That the Committee invited memoranda from all the concerned families and the kingmakers, who all defended their memoranda and that there was no complaint of any party not being represented or of lack of fair hearing or irregularities in the proceedings of the committee. That the committee came up with their findings and recommendations which Government accepted and a declaration was made and registered. Learned counsel then submitted that, what the 3rd Respondent did in Usi-Ekiti was in line with the Law that empowers it to make Chieftaincy Declaration where there is no existing declaration. That the steps taken toward that declaration were regular and that such presumption was never rebutted by evidence before the trial Court. He relied on Section 150 of the Evidence Act and the case of MAFIMISEBI VS. EHUWA (SUPRA) AT PP.429 – 430, PARAS H-A.
It is also submitted by the 1st Respondent that before the declaration, there was a dominance of the Stool of Olusi by one single ruling house which does not accord with the custom and tradition of the people, such that the Late Oba Adebayo, the predecessor of the last Olusi had wished that the anomalies in the custom be corrected. That what the Appellants called custom had long been broken by a group of selfish members of the royal family. That the P.W.3 and D.W.2 who are kingmakers agreed in their joint memorandum before the Committee (Exhibit “H”), that there were anomalies in the Usi Custom regarding the Olusi of Usi-Ekiti, and welcomed the increase in the number of kingmakers, but will oppose the removal of any of the existing kingmakers. It is therefore the contention of the 1st
Respondents that what the 3rd Respondent did by accepting the committee’s report and making a registered declaration was to set out clearly what the custom is, regarding the ascension to the throne of Olusi of Usi-Ekiti so as to avoid uncertainty in the Customary Law of Usi-Ekiti. The cases of IBRAHIM V. BARDE & ORS (1996) 9 N.W.L.R (PT. 474) P. 513 at P. 565 and JOKANOLA V. MILITARY GOVERNOR. OYO STATE (1996) 5 N.W.L.R (PT. 446) P.1 at P.14 PARAS A – B were cited in support.
The 1st Respondent further contended that, upon registration, the Olusi Chieftaincy Declaration became valid and a true Statement of the Customary Law regulating the Olusi of Usi-Ekiti Chieftaincy. The case of FASADE V. BABALOLA (2003) 11 N.W.L.R (PT.830) P.26 at P.45 was relied on. That it is now settled law that the court has no power to assume the functions of the Chieftaincy Committee as regards the making of Customary Law, as the business of the Court is to make a finding of what the Customary Law is and apply same for the purposes of the claims for declaration, and that what the law is can only be found in the chieftaincy Declaration. That though the court has the power to declare registered chieftaincy Declaration null and void, it has not been proved or established that the Olusi chieftaincy Declaration is unconstitutional or contrary to the provision of any Act or Law including the Chieftaincy Law under which it was made.
As I stated earlier, the Brief of Argument of the 2nd Respondent is a total copy of that of the 1st Respondent word for word. There is therefore no use summarizing same here.
The 3rd – 5th Respondents argued that the Chieftaincy Declaration of Usi-Ekiti made and registered on 8th May, 2003 was validly made. That the power to make a Chieftaincy Declaration where there is no existing one is derived from Section 1(2) of the Chiefs Edict (Law) No.11 , 1984 of Ondo State applicable to Ekiti State (as amended). Section 4(2), (a), (b), (c) and (d) of the Chiefs Law (Supra) was further cited to submit that the 3rd Respondent has the Statutory powers to make the Chieftaincy Declaration and that as shown in the evidence led by the parties, the necessary steps were taken before the Chieftaincy Declaration was made. That on receipt of the petition of the 1st Respondent’s family, the State Government directed the Ido/Osi Chieftaincy Committee to investigate the complaints and to make recommendations, and the committee did carry out its assignment. The Appellants’ and 1st Respondent’s families submitted written memoranda and also gave oral evidence before the committee which comprised all the traditional rulers (Obas) in the Local Government Area who are the custodians of the customs and traditions of the people in the Local Government Area. That the Committee found the complaints of the 1st Respondent’s family to be valid and genuine and made proper recommendations to the State Government, and the State Government accepted those recommendations and directed the Ido/Osi Local Government to make a Chieftaincy Declaration in respect of the Olusi Chieftaincy Stool. Learned counsel for the 3rd – 5th Respondents then submitted that, the government was not bound to accept and act on the findings and recommendations of such inquiry. He cited in support, the case of OLAGUNYI V OYENIRAN (1996) 6 N.W.L.R (PT.453) P.127 at P.143 PARAS. D – F and at P.143. PARAS. C – D. That the complaint of the Appellants in this case is not against the conduct of the Ido/Osi Chieftaincy Committee but against the government decision on it. It was then contended that on the decision in the cases of OLAGUNYI V OYENIRAN (SUPRA) At P.144 PARAS A – E: WILSON V OSHIN (2000) 9 N.W.L.R (PT. 673) P. 442 at PP. 463 – 464 PARAS F – A and MAFIMISEBI V EHUWA (SUPRA) at PP. 429 – 430 PARAS H – A, the Government has the power to even amend or make a new Chieftaincy Declaration. See also KUTSE VS. A.G: PLATEAU STATE (1999) 4 N.W.L.R (PT.597) P.1 at PP. 6 – 7 PARAS G – B per Belgore. J.S.G (as he then was).
It is further submitted by learned counsel for the 3rd – 5th Respondents that, the Olusi Chieftaincy Declaration made pursuant to the findings and recommendations of the Ido/Osi Chieftaincy Committee was validly made. That there is no allegation by the Appellants of any fraud or non-observance of the rules of natural justice in the conduct of the Chieftaincy Committee, rather, as shown in the evidence on the record of appeal, both the Appellants and the 1st Respondents are of the same progenitor and founder of Usi-Ekiti – Oba Usikorode, the son of Oba Lafogido, the 21st Ooni of Ife. That as shown by the evidence, there was obvious imbalance, lopsidedness and discrimination which are repugnant to natural justice, equity and good conscience in the former unwritten system of selection of candidates for the Olusi Stool.
The 3rd – 5th Respondents went on to submit that, a Chieftaincy Declaration once validly made and duly registered becomes the customary law regulating the selection and appointment of candidates to the Chieftaincy it relates. The cases of SECRETARY, IWO LOCAL GOVERNMENT V. ADIO (2000) 8 N.W.L.R (PT. 667) P.115 at P.131 PARA E; OYEFOLU V. DUROSINMI (2001) 7 S.C. (PT.1) PP.26 – 27: OLADELE V. AROMOLARAN II (1996) 6 N.W.L.R (PT.453) P.180: AYOADE V. MILITARY GOVERNOR. OGUN STATE (1993) 8 N.W.L.R (PT. 309) P.111 at PP.127 – 128 PARAS H – A and ODUMESI v OYENOLA (1998) 8 N.W.L.R (PT.563) P. 601 at pp.611 – 612 were cited in support. It was then submitted that, the Olusi Chieftaincy Declaration is now the Customary Law regulating the selection and appointment of candidates to the Olusi of Usi-Ekiti Chieftaincy Stool. That any other custom or tradition not embodied in the declaration is deemed to have been abandoned, disregarded and excluded from it. That the Appellants having fully, adequately and effectively participated in the process leading to the making and registration of the Declaration can no longer challenge the said declaration in court, as the court cannot make a declaration of customary law relating to the selection of a Chief or Oba. The case of DARAMOLA V. A.G: ONDO STATE (2000) 7 N.W.L.R (PT.665) P.440 was cited in support. We were then urged to resolve this issue in favour of the Respondents.
The only argument which I find useful in the Reply of the Appellants in their Reply Brief is as stated at paragraph 0.5 on page 12 of the Appellants’ Reply Brief. All other arguments in the Appellants’ Reply Brief are rejoinders to the submissions of the Respondent. The Appellants contended therein that, it is not their case that the 3rd Respondent has no power to make a Chieftaincy Declaration or that such a declaration once made is not binding, rather it is their case that the Chieftaincy Declaration made does not truly represent the customary law it professes to restate, and therefore should be declared null and void. That the issue of repugnancy raised by the Respondents was neither pleaded nor raised at the trial court, and cannot thus be entertained at this stage without the leave of the court first obtained. The cases of IKEANY V. A.B.B. LTD. & 1 OR (1997) 2 S.C.N.J. P. 93 at PP.101 105 and HIS HIGHNESS EREJUMA II, THE OLU OF WARRI & 3 ORS V. EGHAR EGBEYIMA O. KPEREGBEYI & 2 ORS (1994} 4 S.C.N.J (PT.11) P.241 at P.263 were cited and relied on.
As stated earlier in the course of this judgment customary law is a matter of fact to be determined by evidence. Thus, the issue as to who is qualified to ascend to any traditional Chieftaincy Stool is subject to customary law and traditions of the particular community concerned, which is therefore a question of fact to be proved or established by calling evidence, except where there has been frequent proof of that particular custom in relation to the ascendancy to the throne, so as to be judicially noticed. The former Western Region of Nigeria therefore attempted to codify the relevant customary laws and traditions of the people relating to particular recognised Chieftaincies so as to avoid or at least minimize the prevalent problem of calling witnesses or evidence each time the need to establish a particular native law and custom in relation to recognised chieftaincies arise. The government of that region then embarked on making chieftaincy declarations. Those declarations were aimed at embodying in legally binding written statements of fact, the customary law of the area concerned the method regulating the nomination and selection of a candidate to fill any vacancy in the chieftaincy stool in question. The purpose of a registered declaration is therefore to embody in a legally binding written statement, the customary law of a particular area, setting out clearly and precisely the method regulating the nomination and selection of a candidate to fill a vacancy in the chieftaincy stool of that area. see ABAEKERE V MINISTER OF CHIEFTAINCY AFFAIRS, WESTERN NIGERIA (1963) N.W.L.R P.534: AYOADE V MILITARY GOVERNOR OF OGUN STATE (1993) 8 N.W.L.R (PT.309) P.111 at PP.127 – 128: GOVERNOR. OYO STATE V. FOLAYAN (1995) 8 N.W.L.R (PT. 413) P.292 at P. 321: ODUMESI V OYENOLA (1998) 8 N.W.L.R (PT.563) P.601 at PP.611 – 612. See also MAFIMISEBI V EHUMA (2007) 2 N.W.L.R (PT.1018) P.385 at PP.428 – 429 PARAS F – A.
That being so, once a declaration has been duly and validly made, and registered in relation to any native law and custom or customary law with respect to any chieftaincy stool, that declaration becomes the native law and custom or customary law to the exclusion of all other laws and practices thereon. Thus, any custom, tradition or usage that is alleged to exist but is not found in the registered declaration may generally be presumed to have been disregarded or excluded from such custom, tradition or usage required for the selection and appointment of any person to any of the recognized chieftaincies under the chiefs law. See DARAMOLA VS. A.G.: ONDO STATE (SUPRA) PER ONNOGHEN. J.C.A. (as he then was) at P. 472: EDEWOR V UWEGBA (1987) 1 N.W.L.R (PT.50) P.313: IMOGIEMHE V. ALOKWE (1995) 7 N.W.L.R (PT.409) P.581 at P.595: GOVERNOR. KWARA STATE V. EYITAYO (1997) 2 N.W.L.R (PT.485) P.118 at PP.129 – 130: AYOADE V. MILITARY GOVERNOR, OGUN STATE (1993) 5 N.W.L.R (PT 309) P. 111 at P.126.
By virtue of section 5(1) of the Ondo state Chiefs Law No.11 of 1984, applicable to Ekiti state, a chieftaincy Declaration may be regarded as a statement declaratory of the customary law regulating the selection of a person to be a holder of a recognised chieftaincy and therefore a subsidiary legislation in that it is made under the authority of the chiefs law. See ADIO V. A.G; OYO STATE (2000) 3 W.R.N.P. 80 at p.97.
The duty of the court once a chieftaincy declaration has been validly made and registered is to apply the provisions of a chieftaincy declaration to the facts of the case as established by evidence since the court has no power to assume the functions of the chieftaincy committee as regards their power to make or amend the customary law governing the selection and appointment of traditional chiefs. The power to make such chieftaincy declarations lies with the executive arm of the State Government by virtue of sections 1(1) and (2) of the chiefs Law (supra) and is usually exercised by a Chieftaincy Committee of a Local Government on behalf of the State Government. See ABAEKERE vs. MINISTER OF CHIEFTAINCY AFFAIRS (SUPRA) and MOMOH vs. OLOTU (1970): 6 N.S.C.C. P.99 at P.103 per Ademola: C.J.N.
In the instant case, the Appellants contended that, they are challenging the power of the 3rd Respondent to make a chieftaincy declaration or that a chieftaincy declaration once made is not binding, but that their contention is that, the chieftaincy declaration made in respect of the Olusi of Usi-Ekiti does not truly represent the customary law it professes to restate. That the declaration should therefore be declared null and void. The Supreme Court held in the case of MAFIMISEBI v EHUWA (SUPRA) that, the court cannot promulgate a chieftaincy declaration, but that the courts have the vires to inquire whether a chieftaincy declaration is in conformity with the prevailing customary law, and thereby set same aside where such registered declaration does not correctly declare the tradition and custom of the area concerned relating to that chieftaincy.
Furthermore, that where in the process of making the declaration those who ought to be heard were not so heard or where the making of the declaration is in breach of right to fair hearing, the court can interfere, as the administrative body is bound to observe the rules of natural justice.
As stated above, the Appellants seek that the Olusi of Usi-Ekiti Chieftaincy Declaration tendered in evidence at the trial as Exhibit ‘D’ be declared null and void in that it does not truly represent the prevailing custom and tradition of Usi people for the Olusi Stool. They do not allege that they were not afforded a hearing by the relevant authorities before the declaration was made. I had earlier resolved when considering issues 1 and 3 formulated for determination in this appeal that the learned trial judge correctly found from the evidence adduced at the trial that the Chieftaincy Declaration for the Olusi of Usi-Ekiti contain a true statement of the customary law regulating the selection of a person for the throne of Olusi of Usi-Ekiti. In other words, that the evidence adduced at the trial support the declaration made on exhibit “D” as to the Customary Law and tradition or usage of the Usi-Ekiti people regulating the selection of a person for the throne or stool of Olusi of Usi-Ekiti. The learned trial judge held at page 172 lines 5 – 12 as follows:-
‘On whether or not the findings of Ido/Osi Local Government Chieftaincy were correctly and legally arrived at. Again I have stated in this Judgment that Ido/osi Local Government chieftaincy committee, when it received the petition remitted to it by the Ido/Osi Local Government (2nd Respondent) called for memorandum (sic) from each of the parties concerned. Each of the parties submitted their memorandum that body also invited each of the parties concerned to offer evidence in support of its memorandum which each did before Ido/Osi Local Government arrived at its conclusion and in my view it has adopted the correct procedure and arrived at the correct conclusion’.
The learned trial judge in concluding on this issue went further to state as follows:-
‘…That the plaintiff and the 1st Defendant have so much in common to warrant been (sic) treated equally. They for example are both from the same Isikorode the founder of Usi-Ekiti. They have the same god (Ereju) which they celebrate together annually. They farm together; they bear the same Oriki (cognomen) (sic) Omo, Owa, Omoekun, all these are based on evidence before me.
I therefore hold that the Declaration by the 2nd Defendant is valid.’
On my part, I had resolved that the findings and conclusion of the learned trial judge is supported by the evidence on the record, and therefore not perverse. The Appellants have the duty to demonstrate by this appeal from the evidence on the record that the evidence led at the trial do not support the findings of the learned trial judge, and this they failed to do. The only conclusion I have arrived at is that, the Chieftaincy Declaration of the Olusi of Usi-Ekiti represents a true statement of the native law, and custom of the Usi-Ekiti people regarding the ascension to the throne of Olusi. Thus issue 2 as formulated should be and is hereby resolved in favour of the Respondents.
Having resolved all the issues against the Appellants and in favour of the Respondents, I hereby find and do hold that this appeal has no merit. It is accordingly dismissed in its entirety. I therefore affirm the judgment of M.A. Agbelusi, J of the Ekiti state High court delivered on the 16th day of April, 2007. I award thirty Thousand Naira (N30, 000:00) as cost against the Appellants in favour of the 1st Respondent.
UWANI M. ABBA AJI, J.C.A.: I was privileged to read in draft the lead judgment just delivered by my learned brother, H.M. Tsammani, JCA.
My learned brother painstakingly considered the issues for determination and resolved them accordingly. I entirely agree with the reasoning and conclusion that the appeal is devoid of any merit.
Even though the facts of the case given rise to the present appeal are well stated in the lead judgment of my learned brother, which is a declaratory and injunctive reliefs being claimed by the Appellants against the Respondents concerning the Customary Law regulating the appointment to the throne of Olusi of Usi-Ekiti in Ido/Osi Local Government of Ekiti State.
It is trite that a party seeking for declaratory reliefs has the burden to lead evidence to show that he is entitled to the declaratory reliefs sought. He has to satisfy the Court by evidence that he is entitled to the declaration and cannot rely on the admission in the pleading of the Defendant to sustain his claim. The onus is therefore on him to succeed on the strength of his own case, and not on the weakness of the Defendant’s case. See Kodilinye vs Odu (1935) 2 WACA 336; Odofin v. Ayoola (1984) 11 SC 72 Woluchem vs. Gudi (1981) 5 SC 29.
In the instant case, the Appellants pleaded and led evidence that the stool of Olusi of Usi-Ekiti was founded by Usikorode, one of the sons of Lafogido, the Oni of Ife and that the said Usikorode begat all members of Ebi Omo Owa from which three ruling houses, Alakara, Amojojoye and Olasogba who have been rotating the Olusi of Usi-Ekiti amongst them from time immemorial. The Appellants denied any blood relationship with Adoba family and contended that Oduba family migrated from Isapa in Kwara State to settle at Usi-Ekiti, and that the only link the Odoba family has with them is that some members of the Odoba family married from the family.
The Respondents, particularly the 1st Respondent challenged the Appellants’ claim and contended that they are also descendants of Usikorode the founder of Olusi of Usi-Ekiti. That they are also bonifide descendants of Oba Usikorode, one of the sons of Lafogido, the twenty first Oni of Ile-Ife.
The learned trial Judge believed the evidence of the Respondents and found that the Appellants have not proved their case. One of the contentions of the Appellants in the appeal is that the learned trial Judge did not properly evaluate the evidence adduced by the Appellants.
An Appellate Court has no business in the evaluation of evidence because of its limitations of not seeing and hearing witnesses and would not therefore ordinarily interfere with the findings and conclusion of a trial Court. But where the trial Court has failed in its duty of properly evaluating the evidence before it, resulting in findings not supported by evidence, such findings are perverse and the Appellate Court then has a duty to interfere by evaluating the evidence so as to make its own findings and draw its conclusions. See Woluchem vs. Gudi (1981) 5 SC 291; Odofin vs. Ayoola (1984) 11 SC 72: Ogunlaye vs. Oni (1990) 2 NWLR (Pt. 135) 745.
In the instant appeal, from the evidence on record, there is no reason to fault the finding of the learned trial Judge as the evidence of the Respondents was direct, positive and never contradicted. The evidence on record supports the finding of the learned trial Judge. There is therefore no basis to disturb these findings. I also dismiss the appeal as it is unmeritorious. I endorse the consequential order as to costs.
CHIDI NWAOMA UWA, J.C.A.: I have read the judgment delivered by my learned brother HARUNA M. TSAMMANI, J.C.A., I agree with his reasoning and conclusions in holding that the appeal has no merit. I also dismiss same and affirm the judgment of the trial court. I abide by the order made as to costs.
Appearances
Abdulhamid Rabiu Esq. (Tunde Laaro, Appellants. Esq. with him)For Appellant
AND
1. Bola Aruleba, Esq. (J.O. Olajide, Esq. Abayomi Akanke, Esq. and Taiwo AkOmorafe, Esq. with him)
2. A.E. Akpan, Esq. (Director Legal Drafting, Ministry of Justice, Ekiti State)For Respondent
