PRINCE OLUWOLE AKINBONI & ORS v. PRINCE JOHN AKINTOPE & ORS
(2016)LCN/8307(CA)
In The Court of Appeal of Nigeria
On Thursday, the 17th day of March, 2016
CA/AK/107/2014
RATIO
CUSTOMARY LAW: CHIEFTAINCY MATTERS; THE CAUSE OF ACTION FOR AN AGGRIVED PARTY IN A MINOR CHAIEFTAINCY DISPUTE
The position in chieftaincy matters whether recognized or minor is that administrative remedies provided in the relevant laws must be exhausted by an aggrieved party before going to Court.
An aggrieved party in a minor chieftaincy dispute must explore all domestic remedies before going to Court. See Ajibi v. Okewe (2003) 8 NWLR (pt 822) 237, Ayeni & 2 ORS v. Obasa & Anor (2010) LPELR -3829, Amaka v. A. G. Ondo State & Ors (2012) LPELR – 8478 and Section 16 (3) and (4) of the Chiefs’ Law Cap 27 Laws of Ondo State 2006 which provides thus: “16 (3) Where there is a dispute whether a person has been appointed in accordance with customary law to a minor chieftaincy the prescribed authority may determine the dispute and the person concerned shall be notified of the decision
(4) Any person who is not satisfied with the decision of the prescribed authority may within twenty-one days from the receipt of the notification, make representations to the Commissioner to whom responsibility for chieftaincy affairs is assigned that the decision be set aside and the Commissioner may, after considering the representations confirm or set aside the decision.” per. JAMES SHEHU ABIRIYI, J.C.A
DECLARATORY REFIEFS; WHEN DECLARATORY RELIEFS ARE GRANTED
Declaratory reliefs are not granted as a matter of course and on a platter of gold. They are only granted when credible evidence has been led by the plaintiff or person seeking the declaratory relief. See Col. Nicholas Anyaru (Rtd) v. Mandilas Ltd (2007) 4 SCNJ 388 (2007) 10 NWLR (Pt 1045) 463 at 477-478. per. JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
1. PRINCE OLUWOLE AKINBONI
2. HIGH CHIEF LISA AKINDILENI
3. HIGH CHIEF JOMU JOSIAH ADEGOKE
4. HIGH CHIEF ODUNWO AKINFOLARIN
5. HIGH CHIEF SASERE IJINIYI
6. HIGH CHIEF ADAJA OLURIMISI
(ORUNJA-IN-COUNCIL ODIGBO) Appellant(s)
AND
1. PRINCE JOHN AKINTOPE
2. PRINCE TITUS ADEMOYE
(SUING FOR THEMSELVES AND ON BEHALF OF MEMBERS OF THE AKINTOPE FAMLLY OF ODIGBO/OUT) Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment):? This is an appeal against the judgment delivered on the 29th November, 2013 in the High Court of Ondo State, Ore Judicial Division holden at Ondo wherein the Respondents were the plaintiffs and the Appellants were the Defendants.
The claim of the Respondents at the lower Court was for the following:?
1. Court declaration that the purported appointment and\or approval of appointment of the 1st defendant by the 2nd defendant as the next Oloja of Otu-Costain, a minor Chieftaincy in Odigbo Local Government Area of Ondo State of Nigeria is wrongful, unlawful and runs contrary to the age long custom of the Akintope family in selecting a Baale now elevated to an Oloja in respect of the Otu-Costain minor chieftaincy and same should be set aside and declared null and void.?
2. Court declaration that by the age long custom of the Akintope family, it is the exclusive preserve of? the family to meet and select or elect a candidate amongst the three male stocks of the family i.e AKINTANTE, ADEMOYE OR KUMUYI to occupy the stool of Oloja of Otu-Costain anytime a vacancy
occurs in respect of the minor chieftaincy.
3. Court declaration that the Akintiope(sic) family having not met to select or elect the 1st defendant as the next Oloja of Otu-Costain in line with the age tong custom of the Akintope family, the 1st defendant is not eligible to be made or install (sic) the next Oloja of Otu-Costain by the 2nd defendant and the 2nd – 7th defendants cannot impose the 1st defendant as such on the plaintiffs.
4. Court declaration that any purported meeting held by the 1st defendant with any other person or persons appointing him as the next Oloja of Otu-Costain without the knowledge of the plaintiffs as the representatives of the Akintope family is wrongful, unlawful and runs contrary to the agelong custom of the family aforesaid and same should be set aside and declared null and void.
5. Court declaration that the 1st defendant as a civil servant on the payroll of the Ondo State Local Government Service Commission of Ondo State serving at the Odigbo Local Government Secretariat, Ore having not resigned his appointment as such at the time of his purported appointment and/or approval of appointment is not eligible to
con (sic) as the next Oloja of Otu-Costain which position also attracts payment of salaries from government.
6. Court declaration that the plaintiffs having met on 25th February 2011 and selected the 1st plaintiff as the next Oloja of Otu-Costain which decision was conveyed to the 2nd defendant for his approval vide the minutes of family meeting and covering letter dated 25th February and 26th February, 2011 respectively, the 1st plaintiff is the proper person to be made the Oloja of Otu-Costain in line with the age long custom of the Akintope family.
7. An order of Court on the 2nd defendant to approve the appointment of the 1st plaintiff and be instalted as the next Oloja of Otu-Costain as the prescribed authority over the minor chieftaincy aforesaid after presentation to Otu-Costain Community.
8. An order of perpetual injunction restraining the 2nd – 7th defendants, whether by themselves, their servants, agents and\or privies from installing the 1st defendant as the next Oloja of Otu-Costain.
9. An order of perpetual injunction restraining the 1st defendant from parading himself or performing
the functions of the Oloja of
Otu-Costain aforesaid.
10. An order of perpetual injunction restraining the 8th defendant whether by herself, her servants, agents and/or privies from treating and/or recognizing the 1st defendant in any manner whatsoever as the next Oloja of Otu-Costain.
The case of the Respondents briefly as contained in the evidence of the 1st Respondent (Pw2) is as follows: On 25th January, 2011, the family of Akintope held a meeting to discuss the burial of the late Oloja of Otu-Costain and select a new one. The 2nd Respondent was the Chairman of the meeting. At the meeting the PW4 nominated the 1st Respondent as the Oloja of Otu Costain. Members of three stocks of the Akintope family were present at the meeting. The 1st Appellant did not attend the meeting even though he was invited. All members of the Akintope family who attended the meeting wrote down their names and signed. After the meeting, minutes of the meeting Exhibit A1 were sent to the 2nd Appellant. The 2nd Appellant told them to come back on the 28th May 2011 to identify by show of hands the person the family selected as Oloja. On the 24 May 2011 when they went to discuss a Land matter, the 2nd
Appellant said he would install the 1st Appellant Oloja of Otu Costain on the 28th May 2011.
On 25th May 2011, the Akintope family wrote a letter of protest Exhibit A2 to the Commissioner for chieftaincy Affairs about the decision of the 2nd appellant to install the 1st appellant as Oloja of Otu Costain.
According to the Pw2, it is not true that the 1st Appellant has been installed as Oloja of Otu Costain. It is not true that members of the Akintope family met at anytime to select the 1st Appellant as Oloja of Otu Costain. Rather his family met and selected him as Oloja of Otu-Contain.
He maintained that the family took a letter to the 2nd Appellant seeking for approval. What the 2nd Appellant ought to have done was to approve the selection of the PW2 by the family to be installed as Oloja of Otu-Costain. But the 2nd Appellant has not given the approval to date.
Letter dated 31st May 2011 to the 2nd Appellant was tendered through PW2, admitted and marked Exhibit A3. Another letter to the Commissioner for Chieftaincy Affairs was tendered through the PW2, admitted and marked Exhibit A4.
?According to the PW2, the 1st Appellant who is
not a member of the Akintope family is now parading himself as Oloja of Otu-Costain. Only members of Akintope family of Otu-Costain are entitled to select a person as Oloja of Out-Costain and it is only descendants of the mate children of Akintope that can vie for the stool and the stool is currently vacant.
Jomu Leje and Akintope families do not hold meetings together. Jomu Leje was the great grandfather of the 1st Respondent (PW2).
Members of Akintope and Adegbehin families are entitled to the chieftaincy title.
The defence of the Appellants at the lower Court as contained in the evidence of the 4th Appellant (DW1) in summary is that the 1st Appellant too is a member of the Akintope family of Odigbo as well as the 3rd Appellant.
That after the death of the former Oloja of Otu-Costain on the 1st January 2011, a meeting was scheduled for the house of the DW1 as head of the Jomu Leje family which comprises of Akintope, Adegbehin and Dero (female child). Present at the meeting were the 1st Respondent, 2nd Respondent, 1st Appellant and many others. The meeting which he (DW1) presided over was on the 22nd January 2011.
?At the meeting nomination was called for the vacant stool. The 1st Respondent nominated himself. Prophet S. A. Ademoye nominated the 2nd Respondent Mrs Tunmise Cecilia Salisu from Akintante stock nominated the 1st Appellant.
DW1 called for a vote among the family members present and a majority supported the candidature of the 1st Appellant. This was reduced into writing and he DW1 signed the minutes. He caused a letter to be written immediately to the 2nd Appellant. He (DW1) signed the letter with the family representatives. The letter was dated 22nd January 2011.
That he carried out the assignment of election to the stool of Oloja of Otu-Costain in line with the Jomu-Leje age-long tradition.
That Chief Genetu Akinwehinmi whom the Respondents say is the oldest man in the family and who the Respondents say called a meeting in his house also witnessed the selection of the 1st Appellant and he signed the letter of recommendation to the 2nd Appellant too.
?That the Respondents fully participated in the meeting that led to the emergence of the 1st Appellant as Oloja of Otu-Costain on 22nd January 2011 in his house and they cannot turn back to feign ignorance.
That it was upon the endorsement of the 1st Appellant that on 28th May 2011 the Orunja in Council led by the 2nd Appellant conferred on the 1st Appellant the title Oloja of Otu-Costain while he was officially installed with all rites by the Orunja on 4th June 2011.
That he (DW1) participated in the installation of the 1st Appellant as a member of the Orunja in Council with photographs taken and video recorded.
After considering evidence of witnesses and written addresses of learned counsel for the parties, the lower Court in a reserved judgment entered judgment in favour of the Respondents.
The Appellants appealed against the judgment. They filed an initial notice of appeal on the 3rd December 2013 containing (11) eleven grounds of appeal. The notice of appeal was amended with leave of this Court on 16th April 2015. It was deemed further amended on 30th September 2013. The Further Amended Notice of Appeal Contains (14) fourteen grounds of appeal from which the Appellants presented the following issues for determination:
1. Whether the lower Court’s Judgment against the Defendants/Appellants ought not to be set aside on
the basis that the lower Court lacked the jurisdiction to hear and determine the suit and grant the reliefs granted therein and/or for non-fulfillment of the statutory condition-precedent by the respondents before instituting the suit?
(Ground 1).
2. Whether the learned trial judge did not misapprehend the entire case and/or the issues in dispute between the parties and whether the misapprehension of the case and/or the issues in dispute between the parties did not occasion a miscarriage of justice in this case when facts the learned trial judge stated not to be in dispute between the parties were in fact in dispute?
(Grounds 2, 3, 6, 8 & 9)
3. Whether the learned trial judge properly evaluated and took a correct view of Exhibit A9 when he held that Exhibit A9 was a concocted document on the ground that it was not considered in Suit No. HOD/29/87 and whether this did not occasion a miscarriage of justice against the defendants/appellants? (Ground 7 & 11)
4. Whether based on the pleadings and the evidence before the Court, the learned trial judge was right to have granted the reliefs granted in favour of the Claimants in this
case? (Grounds 4, 5, 10, 12, 13 & 14).
The 1st and 2nd Respondents on their own part formulated the following issues which are quite similar to the issues formulated by the Appellants though differently couched:
1. Whether or not the 1st and 2nd respondents, were given a fair hearing by the 2nd defendant within the contemplation of SS: 16 (2) (3) and (4) of the Chiefs Law cap 27 Vol. 1, Laws of Ondo State, 2006 and whether the 2nd defendant complied with the law aforesaid to make same invokable against the case of the 1st and 2nd respondents in the circumstance.
2. Whether or not the trial Court misapprehended the case and/or issues in dispute before the parties as Presented before it.
3. Whether or not the trial Court was right in not attaching probative value to Exhibit A9.
4. Whether or not on the state of pleadings before the trial Court and evidence adduced in support of same, the trial Court was right in granting the reliefs so granted in favour of the 1st and 2nd respondents.
The appeal was argued on the following briefs:
1. Amended Appellants’ Brief of Argument dated 10th June 2015 and filed the same day but
deemed duly filed and served on 30th September 2015.
2. 1st and 2nd Respondents’ Brief of Argument dated 26th June, 2015 and filed the same day.
3. Appellants’ Reply Brief dated 8th September 2015 and filed the same day.
Arguing issue.1, learned counsel for the Appellants submitted that at the time the 1st and 2nd Respondents instituted the action at the lower Court, it was not ripe for judicial adjudication administrative remedies prescribed by Section 16 (4) and (5) of the Chiefs Law, Cap 27, Laws of Ondo State 2006 in minor chieftaincy disputes having not been exhausted before the institution of the action.
It was argued that at the time the 1st and 2nd Respondents wrote their letter Exhibit A2 – to the Commissioner of Chieftaincy no “appointment had been apprehended” by the plaintiffs to have taken place, “no dispute had been apprehended by the prescribed authority for determination concerning any appointment in regard to the minor chieftaincy. That the 1st and 2nd Respondents wrote a letter of protest dated 31st May 2011 (Exhibit A3) to the prescribed authority against the purported appointment of the 1st Appellant when they realized
that Exhibit A2 was premature complaining about the appointment of the 1st Appellant as the Oloja of Otu-Costain.
That following a meeting with the Orunja on the 2nd June, 2011 the 1st and 2nd Respondents wrote another letter (Exhibit A4) to the Commissioner for Chieftaincy to protest the action of the Orunja, the prescribed authority.
It was submitted that it is Exhibit A4 that constituted the protest to the Commissioner for Chieftaincy on the decision of the prescribed authority with regards to the appointment of the 1st Appellant as stipulated by Section 16 (3) and (a) of the Chiefs’ Law Cap 27, Laws of Ondo State 2006.
It was submitted that under Section 16 of the Chiefs Law Cap 27, Laws of Ondo State 2006, the Commissioner for Chieftaincy Affairs is not to determine at first instance a dispute emanating from any appointment to a minor chieftaincy. The duty to determine such dispute, it was submitted, is statutorily placed on the prescribed authority, it was submitted. For the prescribed authority will exercise his duty where there has been an appointment of a candidate to fill the vacant minor chieftaincy position and the prescribed
authority must have apprehended a dispute in regard to the appointment.
On the other hand, six ingredients must be present before the Commissioner for Chieftaincy could act, namely, there must have been an appointment and a dispute must have been apprehended by the prescribed authority. There must have been a determination of that dispute one way or the other by the prescribed authority. There must have been a notification of the decision of the prescribed authority to the interested person. There must have been dissatisfaction by the interested person with the decision of the prescribed authority. There must have been a representation made to the Commissioner of Chieftaincy by the dissatisfied interested person.
It was submitted that Exhibit A2 sent to the Commissioner of Chieftaincy did not satisfisy the statutory requirement for the reason that the plaintiffs did not complain about any appointment to the prescribed authority before writing the Commissioner and even in the letter, the complainants did not refer the Commissioner to any decision of the prescribed authority on any dispute on any appointment and the only document the Court could
consider as meeting the six ingredients stated above in Exhibit A4 if it did.
That without allowing the Commissioner for Chieftaincy to act one way or the other to set aside or confirm the Decision of the prescribed authority, the claimants rushed to Court to seek the reliefs claimed in the lower Court.
It was submitted that the exhaustion of the administrative remedies is a sine qua non, and a condition precedent to the initiation of a competent suit challenging the selection and/or appointment of a minor chief under the law.
It was submitted on issue 2 that what the lower Court said was not in dispute between the parties was actually what was the bone of contention. That while the Respondents contended that only Akintope family meet to select an Oloja, the Appellants’ case was that Akintope and Adegbenhin meet under the umbrella of Jomu Leje do so.
It was submitted that if the lower Court had looked at the judgment in HOD/29/87 now before this Court, it would have seen that the claim of the plaintiffs that only Akintope family select the Olotu of Otu is not true.
?It was submitted that if Adegbehin and Akintope selected the late
Olotu of Otu, the Court should hold that they did come under the umbrella of Jomu Leje.
On issue 3, it was submitted that the relevance of Exhibit A9 was that it showed that the procedure for selection was by Akintope and Adegbehin as done in 1986 and affirmed by the Court in suit No: HOD/29/87.
The Court was, urged to re-consider and re-assess Exhibit 9 vis-a-vis other documentary evidence in suit No HOD/29/87.
On issue 4, it was submitted that reliefs 1-4 sought by the Respondents were .declaratory and could not be granted even on admission or on the pleading as was done in this case.
It was submitted that the Respondents did not adduce evidence to entitle them to their claim.
It was submitted that the lower Court lacked jurisdiction to make the order it made against the 2nd Appellant who was dead.
?Arguing issue 1, learned counsel for the 1st and 2nd Respondents contended that prior to the time the 2nd Appellant approved the selection of the 1st Appellant uptill to the time of his installation no written approval was given as contemplated by the Chiefs Law and none of the parties was heard by the 2nd Appellant concerning the
dispute pertaining to the conflicting names of candidates sent to him for his approval despite constant follow up of Exhibits A1 and A6 by the Respondents to the 2nd Appellant.
It was submitted that the moment Exhibits A5 and A12 and Exhibits A1 and A6 were sent to the 2nd Appellant on 22nd January, 2011 and 26th February 2011 respectively he became aware of the dispute between the parties and he was mandated statutorily to look into the dispute pertaining to the conflicting selection of two candidates to the stool before purporting to approve and eventually installing the 1st Appellant as the Oloja of Otu-Constain.
It was submitted that a failure on the part of the 2nd Appellant to determine the dispute between the parties in this suit was a failure to comply with condition precedent and breach of the constitutional provisions of fair hearing and principles of natural justice of the 1st and 2nd Respondents and the Respondents were not duty bound to protest to the Commissioner in charge of Chieftaincy Affairs as provided under Section 16 (5) and (6) of the Chief’s Law of Ondo State.
?The law, it was submitted, enjoins the 2nd Appellant to take a
decision and before a decision is taken, the person or persons to be affected by it has a right to be heard. This 2nd Appellant failed to do.
We were referred to several authorities.
It was submitted that the case of Adesola v. Abidoye (supra) and Eguamwense v. Amghizemwen (supra) relied upon by learned counsel for the Appellants are distinguishable from the instant case on appeal.
?It was contended that from the pleadings and evidence the 2nd appellant denied the 1st and 2nd Respondents fair hearing and was also biased against them. That the 2nd Appellant did not give any written approval of the selection of the 1st Appellant as provided for in Section 16 (2) and (3) of the Chiefs Law of Ondo State but caused the 5th Appellant to issue Exhibit 17 (Re-approval of appointment as Oloja of Otu-Constain).
?It was submitted that with the stance of the 2nd Appellant together with the 3rd – 7th Appellants who were collectively known as Orunja – in – Council, the 1st and 2nd Respondents had no choice other than to approach the Court to seek declaratory reliefs by invoking their constitutional rights as enshrined under Sections 36 and 272 of the
1999 Constitution FRN (as amended) and taking into consideration the complex nature of the claim before the trial Court where parties are canvassing different customs and traditions pertaining to the selection of a candidate to fill the vacant stool.
The Court was urged to resolve issue 1 in favour of the 1st and 2nd Respondents.
On issues ii and iv learned counsel for the 1st and 2nd Respondents submitted that the 1st and 2nd Respondents and their witnesses gave credible evidence at the trial.
It was submitted that custom and tradition are matters of evidence on the facts presented before the Court and must therefore be proved in any particular case unless it is of such notoriety and has been so frequently followed by the Courts that judicial notice would be taken of it without evidence required in proof.
Exhibits A5 and A12 which formed the mainstay of the case of the Appellants it was argued, run contrary to the pleadings and evidence led in support of their case and the Court was urged to so hold.
?Evidence led by the Appellants in Exhibit 18 and their witnesses it was further argued are so incongruous and inconsistent with their
pleadings showing that the eligibility, nomination and selection of a candidate to fill the stool that is vacant is an affair of Akintope family.
On the death of 2nd Appellant, it was submitted that it was the duty of the learned counsel for the Appellants or the Appellants themselves to notify the Court of the death of the 2nd Appellant.
On issue iii, learned counsel for the 1st and 2nd Respondents submitted that the lower Court was right when it held that Exhibit A9 was concocted. It was submitted that Exhibit 9 having not been certified it became inadmissible and had no probative value.
This Court was urged to discountenance Exhibit A9.
In his reply on points of law learned counsel for the Appellants submitted that issue 1 formulated by learned counsel for the 1st and 2nd Respondents was not distilled from any of the grounds of appeal and therefore incompetent.
Thereafter learned counsel for the Appellants proceeded to reargue the appeal. That is not the function of a reply brief.
This appeal can be determined on issues 1-4 formulated by the Appellants and argued by learned counsel for the Appellants as well as learned counsel
for the 1st and 2nd Respondents.
I will consider issue 1 separately and issues 2 – 4 together.
Appointment to a minor chieftaincy is made according to customary law. The customary law applicable is unwritten and it depends on what the appropriate authority believes or is persuaded to believe is the customary law. Parties concerned may make representations oral or documentary for the authority to make up its mind about what is the customary law which pertains to a particular minor chieftaincy.
The position in chieftaincy matters whether recognized or minor is that administrative remedies provided in the relevant laws must be exhausted by an aggrieved party before going to Court.
An aggrieved party in a minor chieftaincy dispute must explore all domestic remedies before going to Court. See Ajibi v. Okewe (2003) 8 NWLR (pt 822) 237, Ayeni & 2 ORS v. Obasa & Anor (2010) LPELR -3829, Amaka v. A. G. Ondo State & Ors (2012) LPELR – 8478 and Section 16 (3) and (4) of the Chiefs’ Law Cap 27 Laws of Ondo State 2006 which provides thus:
“16 (3) Where there is a dispute whether a person has been appointed in accordance with
customary law to a minor chieftaincy the prescribed authority may determine the dispute and the person concerned shall be notified of the decision
(4) Any person who is not satisfied with the decision of the prescribed authority may within twenty-one days from the receipt of the notification, make representations to the Commissioner to whom responsibility for chieftaincy affairs is assigned that the decision be set aside and the Commissioner may, after considering the representations confirm or set aside the decision.”
It is clear from the evidence adduced at the lower Court that on the 22nd January 2011 at a family meeting attended by both 1st and 2nd Respondents, the 1st Appellant was selected Olotu of Otu Costain. See page 485 of the Record of Appeal and Exhibits A5 and A12.
Exhibit A5 tendered by the 1st and 2nd Respondents titled Minutes of the Meeting of the Jomu Leje Family of Odigbo held on Saturday 22nd January, 2011 in the High Chief Jomu Adegoke Josiah House Odigbo in part reads as follows:
“The Chairman reported to the meeting that it was the order from the Orunja-in-Council that the processing of vacant stool of Olotu
of Otu Land remained vacant since the demise of his Highness His HIGHESS (SIC) OLOJA JOHNSON ADEMOYE who died on January 2011 begins and that a candidate from the next ruling house be forwarded to Orunja-in Council for ratifications.
…………………………………………….
During the processes of nomination MRS TUMISE CECILIA SALISU from Akintante stock nominate MR AKINBONI OLUWOLE from Akintante stock while PROPHET SAMUEL OYOKUNLE ADEMOYE from Ademoye stock nominate MR ADERINWA ADEMOYE from Ademoye stock and lastly Mr. John Akintope from Kumuyi nominate himself since no member from Kumuyi stock nominate him.
FAMILY RESOLUTION
According to the resolution arrived at MR. AKINBONI OLUWOLE from Akintante stock is hereby selected as a candidate to be presented to kingmakers.”
According to DW1 the meeting was held in his house. 1st Respondent is listed on the list of attendance as number 4. 2nd Respondent is listed as number 5. Exhibit A5 containing the names of the 1st and 2nd Respondents was tendered by the 1st and 2nd Respondents themselves. It is clear evidence that they were at the meeting in which the 1st Appellant was
selected as Olotu. Exhibit A5 has not indicated anywhere a form of dispute in the selection exercise. There was no dispute at all about the customary law applicable.
Exhibit A12 which was signed by a representative of 1st Respondent’s stock also dated 22nd January 2011 titled “Recommendation of Mr. Akinboni Oluwole As Olotu of Otu land”
reads in part as follows:
“I am directed by the Jomu Leje family comprises (sic) of Adegbehin Akintope and Dero Family of Odigbo Kingdom to recommend Mr. Akinboni Oluwole as the Olotu of Otu land, Odigbo Kingdom
…………………………….
Finally, the family is glad to inform the Orunja-in-Council that the entire Jomu Leje family unanimously put forward their illustrious son in person of MR AKINBONI OLUWOLE for the stool of Olotu of our(sic) and, Odigbo Kingdom.
The undersigned are the representatives of both family selected, in our last meeting.”
?As pointed out earlier 1st Respondent’s stock was represented in Exhibit A12 reproduced in part above by Mrs. Lao Akingbola. There is nothing to show from Exhibits A5 and A12 that there was any dispute in the selection of the 1st Appellant as
Olotu. There was no dispute on the appointment. 1st and 2nd Respondents were at the meeting in which 1st Appellant was selected. There was no dispute about the customary law applicable.
The 1st and 2nd Respondents claim that there was a meeting of the family on 25th February 2011 that was not presided over by the Chairman of the family meeting. That the secretary of the family meeting was not also present at that meeting. That an ad hoc chairman and ad hoc Secretary were appointed for that meeting. That surely could not have been a family meeting.
Although the 1st and 2nd Respondents pleaded that the meeting was held on 25th February 2011, 1st Respondent (PW2) in his evidence in-chief said the meeting was held on 25th January 2011. Providence it appears exposing the false claim to holding a family meeting other than the one held on 22nd January 2011 attended by 1st and 2nd Respondents in which the family selected the 1st Appellant as Olotu of Otu-Costain.
?It is clear from the foregoing that even if 1st and 2nd Respondents held a meeting on the 25th February, 2011 after they had participated in the selection of 1st appellant on 22nd January 2011
that meeting was a mockery. That is why it took them about one month after the selection of the 1st Appellant to hold such a meeting.
This undoubtedly explains why the prescribed authority ignored both their oral protestations and letter of protest dated 31st May 2011 written long after the selection of the 1st Appellant.
In any case the 1st and 2nd Respondents after writing to the prescribed authority Exhibit A3 dated 31st May 2011 a protest letter proceeded on 6th June 2011 to write to the Commissioner for Chieftaincy affairs contrary to Section 16 (a) of the Chiefs Law Cap 27 Laws of Ondo State. No time was therefore given to the prescribed authority to respond to the letter of protest before the 1st and 2nd Respondents wrote to the Commissioner of Chieftaincy Affairs on the 6th June 2011 and two days thereafter took out a writ of summons.
Issue 1 is therefore resolved in favour of the Appellants.
Declaratory reliefs are not granted as a matter of course and on a platter of gold. They are only granted when credible evidence has been led by the plaintiff or person seeking the declaratory relief. See Col. Nicholas Anyaru (Rtd) v. Mandilas
Ltd (2007) 4 SCNJ 388 (2007) 10 NWLR (Pt 1045) 463 at 477-478.
The claim of the 1st and 2nd Respondents was for declaratory reliefs. On the evidence led by them, it is surprising that the lower Court granted the reliefs sought in the face of evidence led. 1st and 2nd Respondents themselves, as I pointed out before, tendered Exhibit A5 which showed that they were at the family meeting held on 22nd January 2011 at which the 1st Appellant was elected Olotu. Although the 1st and 2nd Respondents pleaded that a meeting in which the Chairman and Secretary of the family meeting were absent was held on 25th February, 2011, PW2 in his evidence in-chief said that the meeting was held on 25th January 2011. The Appellants tendered Exhibit A12 date d 22nd January 2011 signed by a representative of the 1st Respondent’s stock conveying the decision of 22nd January 2011 selecting the 1st Appellant as Olotu.
There was therefore no basis for entering judgment in favour of the 1st and 2nd Respondents.
?Heavy weather was made of the customary law applicable to the chieftaincy. With due respect that was unnecessary since it did not arise at the meeting attended by the
entire family at which the 1st Appellant was elected as the Olotu. Therefore there was no need to have recourse to Exhibit A9.
The 2nd Appellant was sued as the prescribed authority. So any order made was against the prescribed authority irrespective of the death of the 2nd Appellant.
In any case I have shown earlier in the judgment that there was no basis for granting the declaratory reliefs sought by the Appellant.
Issues 2-4 are resolved in favour of the Appellants.
Issues 1-4 having been resolved in favour of the Appellants, the appeal should be allowed. It is allowed by me.
The judgment of the lower Court in suit No HOR/30/2011 delivered on 29th November 2013 is hereby set aside.
Appellants are awarded N50,000 costs to be paid by the 1st and 2nd Respondents.
SOTONYE DENTON-WEST, J.C.A. : I have read in advance the judgement delivered by Honourable Justice James Shehu Abiriyi JCA., and I agree with the reasons and conclusions.
By way of emphasis, the Plaintiff/Respondent had yet to exhaust all the domestic remedies as contained in Section 16 (3) and (4) of the Chiefs Law Cap 27 Laws of Ondo
State 2006 which is to the effect that where a dispute arises as to the appointment of a person in accordance with customary law to minor chieftaincy; certain domestic steps must be followed Culminating into making a representation to the Commissioner and only then can it ripen, if unsatisfied, into a Court action. See ADESOLA V. ABIDOYE (1999) 14 NWLR (PT. 637) 28.
It is apparent that this pre-condition that will grant the Plaintiff/Respondent access to the Court in respect of the afore said dispute had yet to be met before the institution of this action and therefore the lower Court was in error to have entered judgment in favour of the 1st and 2nd Respondents.
It is against this background that I also set aside the judgment of the lower Court. I also allow this appeal.
MOHAMMED AMBI-USI DANJUMA, J.C.A. : I agree that the appeal should succeed and I subscribe to the consequential order made in the lead judgment.
?The internal administrative remedies had not been exhausted before the suit was instituted at the trial Court; declaratory reliefs cannot also be granted except upon evidence led in proof of
the claims made.
My Lord, J. S. Abiriyi, JCA has exhaustively adumbrated on this determinant issues and this position of the law vis – a – vis the applicable Chiefs Law of Ondo State Cap. 27, Laws of Ondo State; and so juxtaposed same with the facts led in evidence such that the conclusion arrived at is in consonance with the law.
I, therefore, join him in allowing the appeal and in setting aside the judgment of the trial Court.
I also endorse the order relating to costs as made.
Appearances
TOPE TEMOKUN, ESQ.For Appellant
AND
PRINCE A. F. ADEJAYAN ESQ. AND KUNLE ADETOWUBO ESQ. FOR 1ST AND 2ND RESPONDENTSFor Respondent
