TEWOBOLA & ORS v. JAYEOLA & ORS
(2020)LCN/15595(CA)
In The Court of Appeal
(ADO-EKITI JUDICIAL DIVISION)
On Wednesday, June 10, 2020
CA/EK/82/2018
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
Fatima Omoro Akinbami Justice of the Court of Appeal
Paul Obi Elechi Justice of the Court of Appeal
Between
1. MR. SIMEON OLUYOLE TEWOBOLA 2. MR. THOMAS OLADELE TEWOBOLA 3. MR. OLAREWAJU TITUS TEWOBOLA 4. MR. ALPHONSO OLAGUNJU AJAYI 5. MR. BAYO OJO (For Themselves And On Behalf Of Ajibaredele-Oba Ruling House Of Igbara-Odo Ekiti) APPELANT(S)
And
1. HRM OBA EDWARD JAYEOLA (The Arakaja Of Igbara Odo-Ekiti) 2. MR. NOAH AGUNBIADE (Head Of Ajimo Ruling House Of Igbara Odo Ekiti) 3. MR ALFRED ROTIMI ALUFOGE RESPONDENT(S)
Admissibility of document and the probative value placed on them
It ought to be reminded that there is a dichotomy between admissibility of documents and the probative value to be placed on them. While admissibility is based on relevance, probative value depends not only on relevance but also on proof. Evidence has probative value if it tends to prove an issue. See ACN vs. Lamido (2012) LPELR-SC.25/2012 (REASONS). It is trite that Exhibits are not tendered and admitted in Court for the fun of it, they are admitted for a purpose albeit to assist in determining the relevance of the exhibits to the case. Secondly, once they form part of the record they must be examined, scrutinized and assessed for just determination of the case. See Buba vs. State (1992) 1 NWLR Part 215 page 1 at 17. It is also the law that a party who has tendered documents which were admitted as Exhibits would at the conclusion of trial sail joyfully with it in a boat of victory or sink sorrowfully with it in a boat of defeat. He cannot be a beneficiary of both at the same time. THERESA NGOLIKA ORJI-ABADUA, J.C.A.
Issue of right to a chieftaincy should be proved with fact established by evidence
It is settled that “The issue of right to a chieftaincy has always been in the nature of customary law which has always been a question of fact to be established by evidence. See Giwa v. Erinmilokun (1961) 1 SCNLR 337; (1961) All NLR 294, 296.” See Ogundare vs. Ogunlowo (1997) 6 NWLR Part 509 page 360. THERESA NGOLIKA ORJI-ABADUA, J.C.A.
Meaning of Chieftaincy Declaration
To understand the entire scenario, I think it appropriate at this juncture to decipher “What a Chieftaincy Declaration is”. In the case of Governor of Oyo State vs. Folayan (1995) LPELR-3179(SC), the Supreme Court said that: “By Section 4(2) of the Chiefs Law. Cap. 21 Laws of Oyo State 1978, a Chieftaincy Declaration is a statement of the customary law relating to the appointment etc of a recognized chief. It follows therefore that any question relating to such a declaration is a chieftaincy question. See Enwezor v. Onyejekwe & Ors (1964) NSCC 9; Chief Abaekere, the Arinmo & Ors v. The Minister for Chieftaincy Affairs Western Nigeria & Ors (1963) WNLR 53 HC affirmed by this Court in SC.606/64 on 4th May, 1966.” Then Shittu vs. Olawumi (2014) All FWLR Part 722 page 1679; Tsammani, J.C.A., in determining the meaning of the phrase “Chieftaincy Declaration” held thus: “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 recognized 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.” He explained in full thus:
“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 particularly recognized 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 recognized 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. THERESA NGOLIKA ORJI-ABADUA, J.C.A.
The effect of a validly made Chieftaincy Declaration
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) 8 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 recognized 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 court towards a validly made 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. THERESA NGOLIKA ORJI-ABADUA, J.C.A.
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): The Appellants commenced the civil proceeding leading to this appeal on the 9th November, 2012 before the High Court of Ekiti State sitting at Ikere Ekiti and claimed the following reliefs:
“(a) A Declaration that by the established custom and tradition, the Chieftaincy title of Ayalodi of Igbara Odo Ekiti is rotational between Ajimo and Ajibaradele-Oba Ruling Houses of Igbara-Odo Ekiti.
(b) A Declaration that it is the turn of the Ajibaradele-Oba Ruling House to produce the next Ayalodi of Igbara-Odo Ekiti in accordance with the rotational arrangement between the two eligible Ruling Houses that produce Ayalodi in Igbara-Odo Ekiti.
(c) A Declaration that the 3rd Claimant is the rightful candidate to become the next Ayalodi of Igbara Odo-Ekiti having being duly and validly nominated by the Ajibaradele-Oba Ruling House which is the appropriate or rightful Ruling House to produce the next Ayalodi of Igbara-Odo Ekiti.
(d) A Declaration that the nomination and or selection of the 3rd Defendant by the Defendants as candidate from Ajimo Ruling House to become the next Ayalodi of Igbara-Odo is contrary to the rotational arrangement, tradition, native law and custom on Ayalodi Chieftaincy title of Igbara-Odo Ekiti.
(e) An Order directing and or mandating the 1st Defendant in his capacity as the prescribed authority on minor Chieftaincies (including Ayalodi Chieftaincy) in Igbara Odo Ekiti to the appointment and accordingly install the 3rd Claimant as Ayalodi of Igbara Odo Ekiti forthwith.
(f) An Order of perpetual injunction restraining the 3rd Defendant from further parading himself as nominated candidate to become the next Ayalodi and or from presenting himself to the lst Defendant as the prescribed authority for installation as the next Ayalodi of Igbara Odo Ekiti whatsoever.
(g) An Order of perpetual injunction restraining the Defendants, their agents, privies, servants from nominating, selecting, approving, appointing and installing any candidate whatsoever from Ajimo Ruling House as the next Ayalodi of Igbara-Odo Ekiti.”
The Respondents filed their Statement of Defence and Counter-Claim on the 15th February, 2013 and counter-claimed thus:
“(a) A declaration that the Ayalodi Chieftaincy title in Igbara Odo-Ekiti solely belong to Ajimos’ family.
(b) A declaration that Ayalodi Chieftaincy title is not rotational between Ajimo and Ajibaredele families.
(c) An order of perpetual injunction restraining the Claimants, their heirs, servants, agents and or privies from parading themselves as being entitled to the Ayalodi Chieftaincy title in Igbara Odo-Ekiti.”
The Claimants filed their Amended Statement of Defense to the Defendants’ Counter-Claim on 17/5/2016. The Defendants filed their Reply to the Claimants’ Amended Defense to the Defendants’ Counter-Claim. The suit proceeded to trial after which the lower Court delivered its judgment on the 8th June, 2018, the trial Court held that in the light of the pleadings and evidence led by the Claimants, the Claimants have failed to prove their case as to entitle them to judgment.
In the counter-claim, the trial Court declared that Ayalodi Chieftaincy title in Igbara Odo-Ekiti is exclusive to the Ajimo family of Igbara Odo. It further declared that the Ayalodi Chieftaincy Stool is not rotational between the Ajimo and Ajibaredele families. The Ajibaradele of Igbara Odo-Ekiti did not establish by evidence that they are to produce the next Ayalodi of Igbara Odo-Ekiti.
Consequent upon the Claimants’ displeasure with the said judgment, they filed a Notice of Appeal on the 21st June, 2018 which was anchored on four grounds of appeal. The record of appeal was transmitted to this Court on 25/9/2018. The parties filed their respective Briefs of Arguments which were later amended by their Amended Briefs of Arguments filed on 3/10/2019 and 20/9/2019 respectively and which were deemed as having been duly filed and served on the 16th March, 2020 respectively.
In the Amended Appellants’ Brief of Argument filed on the 3rd October, 2019, four issues were raised thus:
“(a) Whether the lower Court was right to have excluded or failed to place reliance on Exhibits A and B in the determination of the dispute between the parties.
(b) Whether Exhibit K (Intelligence Report of 1936) constitutes an exclusive proof by the Respondents of their sole eligibility to the Ayalodi Chieftaincy title in Igbara Odo Ekiti.
(c) Whether from the totality of the oral and documentary evidence adduced before the lower Court, the Appellants did not establish rotational arrangement with the Respondents on Ayalodi Chieftaincy title in Igbara Odo Ekiti.”
(d) Whether from the totality of the evidence on record, the decision of the lower Court is supported by evidence.”
Arguing in respect of issue No. 1, learned Counsel for the Appellants, Dr. E. K. Adetifa, referred to Exhibit A dated 26/7/1973 which the Ministry of Local Chieftaincy Affairs Ibadan wrote to the Council Manager, Ekiti Southern Local Government requesting for the true customary law regulating appointment to Ayalodi Chieftaincy title in Igbara-Odo Ekiti. The number of the Ruling Houses thereto, (c) The identity of the Ruling Houses and (d) The Kingmakers for the Chieftaincy title. As a result, the Council Manager of Ekiti Southern Local Government Council forwarded a reply dated the 20th August, 1973 which was tendered as Exhibit B articulating how the selection is carried, that there are two Ruling Houses namely (a) Ajimo and (b) Ajibaredele-Oba (the last Ayalodi), that there were fourteen Chiefs who were named therein. Learned Counsel then contended that the two Exhibits bordering on the eligible families and rotational arrangement on Ayalodi Chieftaincy title were ignored and excluded by the lower Court in the determination of the dispute between the parties. He referred to the remarks made by the trial Court at pages 379- 381 of the record to the effect that Exhibit A is a prelude to Exhibit B, Exhibit B is a product of personal inquiry conducted by an Officer of the Ekiti South Division, Ikere Ekiti. The defendants denied participation in the inquiry that led to the outcome of Exhibit B. Exhibit B does not reflect the participation and input of all the stakeholders in the Ayalodi Chieftaincy stool. For Exhibit B to qualify as a Chieftaincy Declaration, certain conditions must be met. There is no provision of the Chiefs Law making it mandatory for the Committee of the competent Council to hold an inquiry; Exhibit B does not have the approval of the Executive Council, Exhibit B is not registered, B is not published. It is in consideration of the above stated reasons that I will not place reliance on Exhibits A and B. Learned Counsel then gave about nine instances why the exclusion of Exhibits A and B by the lower Court in the determination of the dispute between the parties is erroneous and grave. He said that the Exhibits speak for themselves as to the requests by the Ministry of Local Government and Chieftaincy Affairs Ibadan to the Council Manager, Ekiti Southern Local Government Council, Office, Ikere, Ekiti. He said that the requests in Exhibit A did not ask for a Registered Declaration on Ayalodi Chieftaincy title. The Reply in Exhibit B did not include a Registered Declaration on Ayalodi Chieftaincy title but it rather conveyed the true customary law regulating the appointment of Ayalodi Chieftaincy title in Igbara Odo Ekiti. He further said that both Exhibits A and B were official correspondences from relevant government bodies that possessed the statutory competence to generate the same. Learned Counsel further pointed out that the lower Court was in error to have speculated that proper procedures were not followed by the Council Manager before the issuance of Exhibit B. He stressed that Exhibit B is not a Registered Declaration therefore all the conditions mentioned by the lower Court as a requisite for Registered Declaration do not apply. The two Exhibits were admissible in law and they were validly admitted before the lower Court.
He referred to the evidence of the 1st Respondent, the prescribed authority on Ayalodi Chieftaincy title in Igbara Odo-Ekiti under cross-examination that Ayalodi Chieftaincy title does not have a Registered Declaration, therefore, the Court cannot competently exclude legally admissible evidence or Exhibit before it. He cited the cases of Uzamere vs. Urhogide (2011) All FWLR Part 558 page 839 at 860; Bulet Int’l Nig. Vs. Olaniyi (2018) All FWLR Part 943 page 500 at 530-531; Emeje vs. Positive (2009) All FWLR Part 452 page 1056 at 1074; Opara vs. Bridges (2016) All FWLR Part 822 page 1594 at 1612 and 1614 and a host of other authorities and submitted that when a document is said to speak for itself, the parties cannot give evidence contrary to its content. And that when a document is pleaded, tendered and admitted in evidence, the document becomes the best evidence of its contents. He then urged this Court to so hold. He further submitted that it is not the duty of the Court to speculate or embark on assumption not supported by evidence, therefore, it was wrong for the trial Court to have said that Exhibit B is a product of the inquiry conducted by an individual.
It does not reflect the input of all the stakeholders. He argued that there was no evidence to show that the Council Manager did not carry out the relevant inquiry before writing Exhibit B. He contended that it was after the issuance of Exhibit B that the Respondents benefited from the rotational arrangement specified therein by producing Chief Falakaji as the Ayalodi who succeeded Chief Benjamin Tewobola from the Appellants’ family, therefore, the Respondents cannot approbate and reprobate at the same time. They cannot benefit from the rotational arrangement made in Exhibit B and then turn around to challenge the validity of Exhibit B. He further stressed that what Exhibit A requested was the Kingmakers of Ayalodi Chieftaincy title and not the names of all the Kingmakers in Igbara Odo-Ekiti. He submitted that Exhibits A and B had settled the issue of rotational arrangement between the Appellants and the Respondents on Iyalodi Chieftaincy title. He urged this Court to so hold.
With regard to issue No. 2 touching on the reliance placed on Exhibit K, the Intelligence Report of 1936, by the trial Court in arriving at the conclusion that Ayalodi Chieftaincy title is an exclusive preserve of the Respondents, learned Counsel stated that Exhibit K is a mere product of the colonial masters’ curiosity and or inquiry which hold sway where there is no superior documentary evidence on the same subject matter. He then referred to Exhibit J, the 1970 Gazette on the Ayalodi Chieftaincy title which contained the name of the Appellants’ father as the incumbent Ayalodi in Igbara Odo-Ekiti without any reference to the Respondents’ family as a co-eligible family to Ayalodi Chieftaincy title and contended that if any of the parties is to safely claim exclusiveness to Ayalodi Chieftaincy title on the basis of the two Exhibits i.e. “K”, the Intelligence Report and “J”, the 1970 Gazette, the Appellants are on a strong standpoint as per the established principle that where two opposing documents exist on the same subject matter, the later in time takes precedence. He made reference to the decisions in Fabunmi vs. University of Ibadan (2018) All FWLR Part 943 page 637 at 658-659 and I.R.E.C. Ltd vs. Oni (2017) All FWLR Part 876 page 145 at 172 to support the view that when two decisions are conflicting, the latter is to be preferred, and that an Official Gazette is a legal instrument and once issued, it is deemed and presumed to be within the knowledge of the Courts. It must be accorded its due status. He further reproduced the remark of the trial Court shown at pages 385-386 of the record on the exclusive preserve of the Defendants to the Ayalodi Chieftaincy title and that it is not rotational between the two families, and then urged this Court to resolve this issue in favour of the Appellants.
Turning to issue No. 3, that queries if the Appellants did not establish rotational arrangement with the Respondents on the Ayalodi Chieftaincy title in Igbara Odo-Ekiti, learned Counsel referred to the averments at paragraphs 1 to 8 of the Appellants’ Reply to the Respondents’ Statement of Defense filed on 21/5/2013 regarding the circumstances under which the Appellants brought Ayalodi Chieftaincy title to Igbara Odo-Ekiti from Akure, Ondo State. He said that the Appellants consistently maintained that they brought Ayalodi Chieftaincy title to Igbara-Odo Ekiti from Akure, Ondo State. He referred to the evidence of the 1st Respondent who testified as DW2, under cross-examination to show that the Respondents indeed conducted a search and endeavored to verify the claims of the Appellants on how they brought Ayalodi Chieftaincy title to Igbara-Odo Ekiti. He then referred to the testimonies of DW1, DW2 and DW3 wherein they stated how the Respondents, the Ajimo Ruling House brought Saodi Chieftaincy title from Ikole Ekiti to Igbara-Odo. He listed the names of ten Ayalodi Chieftaincy title holders in Igbara-Odo Ekiti produced by the Appellants’ family. He said that by the Respondents’ assertions, they produced only eight Ayalodi title holders and that established that the Appellants who brought the Ayalodi Chieftaincy title from Akure was initially the only eligible family in Igbara Odo Ekiti to produce Ayalodi Chieftaincy title before the Respondents came with their Saodi Chieftaincy title from Ikole Ekiti. The Respondents’ family were later recognized as being eligible to hold the title. He contended that it was because the Appellants’ family had been producing Ayalodi Chieftaincy title in Igbara-Odo Ekiti before the Respondents became eligible to the title that made them to have produced greater number of Ayalodi title holders i.e., ten (10) against the Respondents who produced eight (8). On the evidence of rotation of the Ayalodi Chieftaincy title in Igbara-Odo Ekiti produced by the Appellants, it was stated that Fayileka who reigned as Ayalodi in Igbara-Odo Ekiti was from the Respondents’ family and he was the immediate predecessor of Benjamin Tewobola (the Appellants’ father) who reigned as Ayalodi in Igbara-Odo Ekiti between 1932 and 1970. Then upon the death of the Appellants’ father, Benjamin Tewobola in 1970, Falajiki from the Respondents’ family was installed as the successor Ayalodi in Igbara-Odo Ekiti and reigned until his demise in 2005, and these were confirmed by Exhibits A and B. He submitted that the holding of the lower Court that the Ayalodi Chieftaincy stool is not rotational between the Ajimo and Ajibaredele families and that the Appellants are not entitled or eligible to Ayalodi is erroneous and perverse. He stated that even though it is not every error or lapse on the part of the lower Court that will attract reversal of the said decision but where such error or lapse is perverse and has occasioned a miscarriage of justice, the appellate Court will interfere. He cited the cases of ANPP vs. PDP (2007) All FWLR Part 357 page 885 at 892-893; Gbadamosi vs. Dairo (2007) All FWLR Part 357 page 812 at 829; BSG Energy Holdings Ltd vs. Spears (2013) All FWLR Part 694 page 105 at 125; Osu vs. Nwadialo (2008) All FWLR Part 409 page 479 at 500; C.D.C. Nig. Ltd vs. SCOA Nig. Ltd (2007) All FWLR Part 363 page 1 at 42; Chukwu vs. State (supra) at 1263 in support of his submission that appellate Court has the duty to set aside a perverse finding. He urged this Court to hold that exclusion of Exhibits A and B occasioned a serious miscarriage of justice. He further mentioned the cases of A. G., Federation vs. Abubakar (2007) All FWLR Part 375 page 405 at 457-458 and Ojo vs. Federal Republic of Nigeria (2009) All FWLR Part 494 page 1461 and submitted that where there is an established case of injustice as in the case, the decision should set aside on the ground of perversion. He urged this Court to resolve the issue in favour of the Appellants.
The fourth issue is “whether from the totality of the evidence on record, the decision of the lower Court is supported by evidence and it was submitted that the judgment of the lower Court is against the weight of evidence adduced before it. He referred to Exhibits 11-23 wherein the Appellants were recognized and addressed as Ayalodi Ruling House, yet the lower Court held that the Appellants are strangers to Ayalodi Chieftaincy title in Igbara-Odo Ekiti. He said that the Exhibits were tendered to prove the status of the Appellants as a recognized Ruling Family in Igbara-Odo Ekiti. He referred to paragraphs 23 and 24 of the Reply to Statement of Defense where it was pleaded that Ajibaredele-Oba family is a well-known Ruling House or Family in Igbara-Odo Ekiti and it has been so recognized and treated by the Igbara-Odo Ekiti Community as such. That “Ajibaredele, Oba Ruling family has immensely contributed and still contributing to the development of Igbara-Odo Ekiti as evident in the various contributions towards Igbara-Odo Development Fund and Igbara-Odo celebration. He further referred to the remarks by the Court that evidence presented before the Court does not establish the Ajibaredele Family as a distinct Ruling Family entitled to Ayalodi Chieftaincy stool. Having failed to establish that the Ajibaredele family is a Ruling House and having failed to establish relationship with the Ajimo Ruling House leg (c) of the reliefs sought fails. Learned Counsel argued that despite the issues joined on the Appellants’ claim that Ajibaredele Oba family is a Ruling House in Igbara-Odo Ekiti and the Respondents’ contention that the Appellants’ family is not a Ruling House in Igbara-Odo Ekiti, the lower Court still held that issues were not joined by parties on the status of Appellants as Ruling Family in Igbara-Odo Ekiti.
It was argued that the lower Court failed to appreciate the import of Exhibits 11-23 tendered by the Appellants which evidenced the cash receipts and correspondences issued to the Appellants by Igbara-Odo Ekiti community recognizing the Appellants’ family as a Ruling class or a family in relation to Ayalodi Chieftaincy title as reflected in the name on all the cash receipts and other correspondences concerning Iyalodi. He submitted that Exhibits 11-23 which recognized the Appellants’ family as a Ruling family emanated from or were issued by the Respondents, buttressed the Appellants’ claim that Ajibaredele Oba is a Ruling family in Igbara-Odo Ekiti. Learned Counsel relied on Ekaidem vs. State (2012) All FWLR Part 631 page 1587 at 1613; Afribank (Nig.) Plc vs. Yelwa (2011) All FWLR Part 585 page 296 at 313; Garba vs. Omokhodion (2011) All FWLR Part 596 page 404 at 427 and Global Soap & Detergent Ind. Ltd vs. Nafdac (2011) All FWLR Part 599 page 1025 at 1050 and submitted that this Court is entitled to examine the said documents that is, Exhibits 11-23 since they are already before the Court and part of the documents in the record of appeal.
Learned Counsel then turned to the lower Court’s view that there was no evidence of presentation of the 3rd Appellant as a candidate to the Kingmakers or to the 1st Respondent as the prescribed authority which it anchored on the assertion of the 1st Respondent that he did not know of the existence of Exhibit G, a letter written by the Appellants’ family through the Council of Kingmakers conveying selection and or the nomination of the 3rd Appellant as candidate to be installed as Ayalodi. He submitted that the 1st Respondent is not a witness of truth as he even said he was hearing the name Ajibaredele Oba for the first time. He referred to Exhibits 11-23 which bore the name Ajibaredele Oba and which emanated from the Palace of the 1st Respondent as confirmed by the address on them and contended that the 1st Respondent was aware of the name of the Appellants’ family as a Ruling family in Igbara-Odo Ekiti before his evidence before the Court. He stated that the procedure outlined by the Appellants in paragraph 13 of their Statement of Claim as the traditionally recognized procedures for enthroning Ayalodi in Igbara-Odo Ekiti was admitted by the Respondents in paragraph 7 of the Respondents’ Statement of Defence. He then argued that Exhibit G which deals with the nomination of the 3rd Appellant by the Appellants’ family as the next Ayalodi at a family meeting held on 15/9/2009 and subsequent transmission of his name by the Head of the Appellants’ family to the relevant Council of Chiefs through Chief Asamo vide a letter dated 27/11/2009 is proper, valid, regular and traditionally appropriate. He later referred to a comment by the lower Court regarding Exhibit G, that issues were not joined on the selection, nomination or presentation of the 1st Defendant to the Kingmakers and submitted that there is ample evidence on the same before the lower Court.
Then on the assertions of the Respondents that they brought Saodi Chieftaincy title from Ikole which they later changed to Ayalodi, he said that the Respondents contradicted paragraph 20 of their Reply to the Appellants’ Defence to the Respondents’ counter-claim filed on 30/6/2016 where they averred that the Ajimo family brought Ayalodi Chieftaincy title from Ikole, their ancestral home. He then referred to the cases of Onyekwelu vs. Elf Petroleum Nigeria (2009) All FWLR Part 469 page 426 at 442 and Aregbesola vs. Oyinlola (2011) All FWLR Part 570 page 1292 at 1357 and submitted that a party must be consistent in his case and must not be allowed to approbate and reprobate. He stated that the Respondents are inconsistent as to how Ayalodi Chieftaincy title got to Igbara Ofo-Ekiti as against the Appellants who maintained that they brought the title from Akure, Ondo State. He urged this Court to allow this appeal and set aside the judgment of the lower Court as the same is perverse and occasioned a miscarriage of justice to the Appellants.
The issues presented by the Appellants were adopted by the Respondents via their Counsel, Ezekiel Agunbiade, Esq., and Folasade Abiodiun, Esq., who laid out their arguments in their Amended Respondents’ Brief of Argument filed on 20/9/2018 and marshaled by their Obafemi Adewale Esq. Learned Counsel for the Respondents explained that Exhibit A was the letter dated 25/7/1973 purportedly written by the Ministry of Local Government and Chieftaincy Affairs, Ibadan and addressed to the Ekiti Southern Local Government Council, Ikere Ekiti and the alleged response to that letter was Exhibit B. He stated that the lower Court rightly analysed Exhibits A and B and rightly found them unreliable to the case of the Appellants. He referred to pages 379-381 which showed that they were not only admitted but were analysed and referred to by the trial Court in its judgment and gave reasons why it did not rely on them. They were exhaustively and comprehensively evaluated and were found unreliable. He further explained that Exhibits A and B were tendered by the Appellants to prove that Ayalodi Chieftaincy was rotational and that it was the turn of the Appellants family to produce the next Ayalodi and that the 3rd Appellant is the rightful candidate to become the next Ayalodi and that the 3rd Defendant’s nomination and or selection was contrary to the rotational arrangement, tradition, native law and custom on Ayalodi Chieftaincy title of Igbara Odo-Ekiti. He contended that only a duly registered declaration could supply the answers as held by the trial Court. He stated that the Appellants have not shown that the evaluation of Exhibits A and B was improper and perverse and had occasioned a miscarriage of justice. He referred to the case of ABI vs. CBN & Ors (2011) (without the citation) wherein it was opined that a judgment of the Court is perverse when it runs counter to the evidence or where it has been shown that the trial Court took into account matters which it ought not to have taken into account or when it has occasioned a miscarriage. A miscarriage of justice occurs where there are substantial errors in adjudication which effect is that the party relying on such errors may likely have a judgment in his favour. He then submitted that the Appellants did not raise any ground of perverse findings on Exhibits A and B. They did not plead nor did they give evidence as to whether the Exhibits were a Chieftaincy Declaration in respect of Ayalodi Chieftaincy. He pointed out that all the legal requirements of a valid Chieftaincy Declaration were absent on the Exhibits. The Appellants conceded that parties cannot give evidence contrary to the contents of a document and that the trial Court was right in its finding that Exhibit B did not qualify as a Chieftaincy Declaration. He relied on the case of Iyere vs. BFFM Ltd (2001) FWLR Part 37 page 1667 and Sections 131(1)and (2); 132 and 140 of the Evidence Act, 2011 and stated that the burden is on the party who desires any Court to give judgment as to his legal right or liability dependent on the existence of facts which he asserts to prove those facts. He then submitted that the Appellants failed to prove that Exhibit B is not only a Chieftaincy Declaration but that the document is also registered. It was further stated that in a declarative suit, the onus is on the Claimant to prove and establish his case before the Court. It is not the responsibility of the Respondents to adduce evidence in support of any fact or document placed before the Court by the Claimant. He further argued that the submission of the Appellants at paragraph 4.25 on Exhibit B was incorrect. He said that it is deducible from the Appellants’ argument at paragraph 2.06 and evidence of the Appellants that there is only one Ayalodi from their family in history without evidence that the family was precluded from contesting the stool of Ayalodi in previous selection processes. He said that Exhibits A and B speak for themselves and Exhibit B was properly evaluated and the trial Court did not speculate. He said that the Appellants could not dispute the gravity and validity of Exhibit K. They did not adduce any evidence that they protested Exhibit Keven when their father was the Ayalodi at the time Exhibit K was made. He submitted that Falajiki succeeding Benjamin Tewobola was not as a result of Exhibit K and tradition. He urged this Court to resolve this issue in favour of the Respondents.
On issue two, it was stated that the arguments of the Appellants thereunder were misplaced. Learned Counsel for the Respondents reiterated that Exhibit K was made when Benjamin Ojo Tewobola from the Appellants’ family was the Ayalodi yet no protest was carried by the Appellants family throughout his lifetime. Rather, they embarked on procuring Exhibits A and B surreptitiously. He also said that Exhibit J is no value as it only acknowledges that Benjamin Tewobola was Ayalodi at that point in time. He referred to Ajayi vs. Texaco Nigeria Limited & Ors (1987) LPELR-SC 230/1985 page 28 or (1987) 3 NWLR Part 62 page 577; Woluchem vs. Gudi (1981) 5 SC 291 at 320 and Metal Impex vs. A. G. Leventis (Nig.) (1976) 2 SC and reiterated that parties are bound by their pleadings. He prayed this Court to resolve this issue in Favour of the Respondents.
With regard to issue No. 3, learned Counsel focused on paragraph 8 of the Claimants’ Amended Reply to the Defendants’ counter-claim, evidence of PW1 and PW2 and said that PW1 contradicted the Claimants’ pleading where he said he is the Head of Ajibaredele-Oba Family but did not know who was Ayalodi before Fadumo. He said that it was Fadumo that brought Ayalodi to Igbara Odo contrary to the assertions in the Claimants’ Amended Reply. He said that 12 Iyalodis had emerged in Igbara Odo as against the ten pleaded. He cited the cases of Nsefik vs. Muna (2007) 10 NWLR Part 1043 page 502 at 514; Godwin Nsiegbe vs. Obinna Mgbemena (2007) 10 NWLR Part 1042 page 364 and submitted that the law is that where evidence is at variance with pleading the proper order to make to make is to dismiss the claim. He stated that the evidence of PW2 confirmed that PW1 was a liar and an unreliable witness. PW2 said that Fadumo was the 2nd Iyalodi and that if anybody says that Fadumo was the 1st Ayalodi, such person will be telling a lie and that it was not correct that Fadumo brought the Ayalodi to Igbara Odo. He did not know and cannot say when rotation started. He argued that there are material contradictions in the evidence of the Appellants’ witnesses at the trial Court. He further argued that that there is a big crack, contradiction and discrepancy in the case of the Appellants. It was the totality of the evidence of PW1 and PW2 that the trial Court evaluated and arrived at its finding in Favour of the Respondents. He pointed out that the Claimants did not call any witness from Akure to establish their claims that Ayalodi originated from Akure. He referred to the arguments of the Appellants at paragraphs 6.01 to 6.32 of the Appellants’ Brief. He said that they contended that Exhibits A and B that Ayalodi is rotational despite the fact that they are the only eligible family. The Appellants pleaded rotation at the trial but argued exclusivity on appeal. It was submitted that a declaratory relief is strictly proved for judgment to be delivered in Favour of the party seeking the declaration and as such address cannot take the place of evidence. It was further submitted that the Appellants failed woefully to adduce weighty and credible evidence to convince the Court to exercise its discretion in their Favour.
It was further contended that the Appellants’ arguments under paragraphs 7.00-7.32 are in respect of ground four of their grounds of appeal and not in connection with an issue formulated. He referred to the cases of Baridam vs. State (1994) 1 NWLR Part 320 page 250 at 260 and Odutola vs. Kayode (1994) 2 NWLR Part 324 page 1 at 20 and urged this Court to hold that the said paragraphs 7.00-7.32 are grossly incompetent having been argued outside the three issues formulated and ground four of the grounds of appeal as incompetent having been abandoned. Learned Counsel further urged this Court not to interfere with the findings of the lower Court as it was a decision arrived at after a critical evaluation of the pleadings and evidence before it. He then persuaded this Court to resolve the issue in favour of the Respondents.
The Appellants filed their Reply Brief on 26/6/2019 and evidently reargued their case.
The first issue presented for determination by the Appellants is whether the lower Court was right to have excluded and or failed to place reliance on Exhibits A and B in the determination of the dispute between the parties. To deal with this, it may be appropriate to comprehend the word “exclude” used by the Appellants.
According to The Oxford Advanced Learner’s Dictionary 9th Edition, the word “exclude” means to deliberately not include something in what you are doing or considering.” It is further defined as “to shut or keep out, prevent the entrance of something or to shut out from consideration, privilege, etc. So, by stating that the lower Court excluded the said Exhibits A and B in the determination of the dispute between the parties, it means that the lower Court shut out the said Exhibits in its determination of the dispute, that is, it did not consider them at all. The trial Court in its judgment highlighted at page 379 of the record of appeal, stated as follows:
“The Claimants also relied on documentary evidence to establish the fact of rotation of the Ayalodi Chieftaincy stool between the Ajibaredele family and the Ajimo family of Igbara Odo. Exhibit A, is a certified copy of a letter dated the 26th day of July, 1973. The letter was generated from the office of the permanent secretary, Ministry of Local Government and Chieftaincy Affairs, Ibadan requesting the Council Manager of the Ekiti South Local Government to inform him on the true customary law regulating appointment to Ayalodi Chieftaincy in Igbara Odo Ekiti. Exhibit B is a certified copy of the reply to Exhibit A wherein the acting Council Manager Ekiti South Local Government informed the permanent secretary of facts he gathered through his inquiries of the true customary law regulating appointment in respect of the Ayalodi Chieftaincy. Exhibits “A” and “B” were admitted in evidence because facts in support of the documents were pleaded. They are relevant, and on the basis of their certification which is in substantial compliance with the requirements of the law. They were admitted as Exhibits.”
The lower Court then dissected the two documents and opined that Exhibit A is a prelude to Exhibit B. Exhibit B is the product of a personal inquiry conducted by an officer of the Ekiti South Division, Ikere-Ekiti. The defendants denied participation in the inquiry that led to the outcome in Exhibit B. Exhibit B does not reflect the participation and input of all the stakeholders in the Ayalodi Chieftaincy stool. The lower Court noted that the said Exhibit B was not registered and that by its opening paragraph, it is the product of the inquiry conducted by an individual.
After its critical analysis of the said Exhibits, it held that it will not place reliance on the two Exhibits. By not placing reliance on it, it meant it would not depend on it in arriving at its conclusion. It was not excluded as suggested by the Appellants but the fact is that they were not depended upon by the lower Court in arriving at its decision. In other words, no probative value was attached to the said Exhibits by the lower due to the reasons given therein. It believed that although the facts laying foundation for the two Exhibits were pleaded, their probative values were substantially outweighed by the danger of unfair prejudice since it was somewhat convinced by the defendants’ denial of participation in the inquiry that led to the outcome in Exhibit B.
It ought to be reminded that there is a dichotomy between admissibility of documents and the probative value to be placed on them. While admissibility is based on relevance, probative value depends not only on relevance but also on proof. Evidence has probative value if it tends to prove an issue. See ACN vs. Lamido (2012) LPELR-SC.25/2012 (REASONS). It is trite that Exhibits are not tendered and admitted in Court for the fun of it, they are admitted for a purpose albeit to assist in determining the relevance of the exhibits to the case. Secondly, once they form part of the record they must be examined, scrutinized and assessed for just determination of the case. See Buba vs. State (1992) 1 NWLR Part 215 page 1 at 17. It is also the law that a party who has tendered documents which were admitted as Exhibits would at the conclusion of trial sail joyfully with it in a boat of victory or sink sorrowfully with it in a boat of defeat. He cannot be a beneficiary of both at the same time.
It is clear in the instant appeal as was abundantly made clear in the record of appeal that the trial Court scrutinized the said Exhibits “A” and “B” and came to the conclusion that they did not support the case of the Appellants particularly where the Respondents denied making any input or contribution to its production, that they lacked the requisite conditions and not that they were excluded from its determination of the dispute between the parties. The record of the appeal indicates clearly that the said Exhibits “A” and “B” were thoroughly considered by the lower Court which believed that they did not prove the facts asserted by the Appellants and in respect of which they were tendered. I tend to agree with submissions of learned Counsel for the Respondents on this issue. Accordingly, issue No. 1 is resolved against the Appellants.
Issue No. 2 is whether Exhibit K (Intelligence Report of 1936) constitutes an exclusive proof by the Respondents of their sole eligibility to Ayalodi Chieftaincy title in Igbara-Odo Ekiti. The Appellants had argued that Exhibit K, the Intelligence Report does not contain a single exclusivity clause of the Respondents’ family to Ayalodi Chieftaincy title, that it is not an exclusive right to the Respondents’ family to produce the Ayalodi of Igbara-Odo, Ekiti whereas the Respondents claimed that pages A25 and C20 of the Intelligence Report of 1936 tendered as Exhibit K, emphatically stated that the Ayalodi Chieftaincy title belongs to the Ajimo family.
It is curious that in Exhibit K which depicted the details of all the groups in Igbara-Odo, at page C20, under column 23, the First Group, the Ayalodi of Idasa (Ajimo) was listed as No. 6. Then at A25 which gave a picture of the sub town called Igbara-Odo, (the Olowa), its population as at the time, the Quarters therein, the sub-Quarters and families thereunder, Ajimo (The Ayalodi) was listed as No. 5. The other families listed were (1) Afin (The Oisaya), (2) Oshodi (The Osho), (3) Ajalemo (The Ajalemo) (4) Obayimade (The Obayimade) (6) Ologodo (The Elejofi) and (7) Ero (The Ojumi). It is clear that no mention was made about the Ajibaredele-Oba nor was any recognition given to any Ruling House with such a name.
What I find a bit disquieting is the assertion that Exhibit K was made when Benjamin Ojo Tewobola was on the throne. He became Chief Ayalodi in 1932 yet no protest was made by him when the 1936 document, that is, the Intelligence Report, Exhibit K, recognized only the Ruling House of Ajimo as the holders of Ayalodi Chieftaincy title. Even though Exhibit K did not clearly state that The Ajimo House was the only one eligible to have the Ayalodi Chieftaincy title, it strictly identified the Ajimo Family as the holders of Ayalodi Chieftaincy stool. Exhibit J is the Western State of Nigeria Gazette published on the 13th August, 1970 and under the Western Notice No. 545 The Chiefs Law (Cap. 19), Notification of the Holders of certain Chieftaincies in Ekiti Southern District Council Area was given of which Chief Benjamin Tewobola, The Ayalodi of Igbara-Odo was one. His name was gazetted as the Holder of Ayalodi Chieftaincy title of Igbara-Odo, Ekiti. The only purpose Exhibit J served was to notify the public that the late Chief Benjamin Tewobola was the Holder of Ayalodi Chieftaincy title of Igbara -Odo, Ekiti as at the time and nothing more. There was no dispute between the parties that at one time, the late Chief Benjamin Tewobola was the Ayalodi of Igbara-Odo, Ekiti. Exhibit J merely buttressed that fact. Exhibit J did not establish as claimed by the Appellants that there was a rotational arrangement between the Respondents’ family and the Appellants’ family on ascendency to the throne. Definitely Exhibit J cannot obliterate the message communicated by Exhibit K, i.e. that as at 1936 when that document was made, and notwithstanding that Chief Benjamin Tewobola from the Appellants’ family was at the time, the Ayalodi of Igbara-Odo, the Respondents’ Ajimo family was the only Ruling House identified with the Iyalodi Chieftaincy title. I will somewhat resolve issue two in favour of the Respondents.
Before considering issues 3 and 4 together, I wish to point out that the Respondents’ argument in respect of issue No. 4 holds no water as the Appellants amended their Brief of Argument by raising and adding issue No. 4 to their Brief. So it is not correct to say that no issue was distilled from ground four of the Appellants’ Grounds of Appeal. In considering these issues, it must be recognized that only two witnesses testified on behalf of the Appellants.
One Simeon Tewobola testified as CW1. He adopted his Written Statement on Oath dated 12/11/2013. Under cross-examination he said he is the Head of his family. He said that his father, Ajibaredele Oba introduced Ayalodi Chieftaincy to Igbara-Odo. He said that Ajibaredele Oba was the first to occupy the stool of Ayalodi before Tewobola. After Ajibaredele Oba, Fadumo, a son of Ajibaredele Oba also occupied it. Then his (CW1’s) own father, Ben Tewobola was Ayalodi. He said that Ajibaredele Oba and Fadumo were Ayalodis before Fayileka. Ajibaredele Oba was the first. He said it was Fadumo who brought the title to Igbara-Odo. He again said that Ajibaredele-Oba brought the Ayalodi to Igbara. He further said that Fayileka was Ayalodi before Tewobola. He said that on the issue of rotation he knew that of his family. He knew nothing about that of Ajimo family. He did not know who was Ayalodi before Fayileka. He did not know how many Arawakan had reigned in Igbara-Odo. He could not recall the number of the Ayalodis. There were about 12 Ayalodis from his family. The other side had only one. He did not know when Fayileka was installed as Ayalodi. He said that Ben Tewobola was the Ayalodi he knew. He said they originated from Ado Ekiti. Their family left Ado for Igbara Odo. There was no chieftaincy in the family when they left Ado-Ekiti for Igbara-Odo. He said that his father brought the chieftaincy from Akure. He said that the Ajibaredele Oba was assumed by Tewogbola.
Mr. Thomas Oladele Tewogbola testified as CW2. He adopted his Written Statement on Oath dated 12th November, 2012. He made additional Statement on 2/7/2014. Under cross- examination he said that Fadumo was an Ayalodi but he was not the first Ayalodi. He was the second Ayalodi and it would not be correct to say that Fadumo brought Ayalodi title to the town. He said that Oko Oju reigned next as Ayalodi after Fadumo, that Famoyo reigned after Oko Oju. Oko Oju and Famoyo were from his family. It was when Benjamin Tewogbola was on the throne, that the District Council of Ekiti South came up with the Chieftaincy Declaration. The rotation came about then. He gave names of people who were Ayalodis and stated that they did not arrive Igbara Odo as a family from Afo with any chieftaincy. He said there is a Chieftaincy Declaration which states the rotation of Chieftaincy between his family and that of the Ajimos.
The Ajimos came from Ikole with Saodi in Igbara-Odo. He was not aware of the existence of an Intelligence Report on the Ayalodi Chieftaincy title. He said he was 79 years old. Before the alleged Akure expedition there was no chieftaincy title brought by his family from Ado-Ekiti.
In the Appellants’ pleading, it was averred that the Chieftaincy title of Ayalodi is rotational between the Ajimo and Ajibaredele Oba Ruling Houses. That in line with the rotational arrangement when the late Chief Benjamin Ojo Tewobola from Ajibaredele-Oba died in 1970, he was succeeded by the late Chief Joseph Oni Falajiki from Ajimo Ruling House who ascended the Chieftaincy title in 1975 and died in the year 2005. That following the demise of the late Chief Benjamin Ojo Tewobola in 1970, the Ministry of Local Government and Chieftaincy Affairs, Ibadan, Oyo State wrote a letter to the then Council Manager, Ekiti Southern Local Government, Ikere, Ekiti for clarification on the customary law regulating the appointment of Ayalodi Chieftaincy title.
The salient questions are, “When was the rotational arrangement between the two families established. How was it established and in whose presence. These questions and facts relating to them were succinctly treated by the lower Court from page 375 to 387 of the record of appeal. It correctly stated that native law and custom being unwritten in most cases, is a question of fact to be proved by evidence and that the burden of establishing the case is on the claimants for he who asserts must prove. It held that the fact of rotation of the Ayalodi Chieftaincy stool between the Claimants’ Ajibaredele Oba family and the 2nd and 3rd Defendants’ Ajimo family, though pleaded was not established by cogent evidence by the Claimants’ witnesses, CW1 and CW2. It thoroughly examined all the evidence both oral and documentary presented before it. It is settled that “The issue of right to a chieftaincy has always been in the nature of customary law which has always been a question of fact to be established by evidence. See Giwa v. Erinmilokun (1961) 1 SCNLR 337; (1961) All NLR 294, 296.” See Ogundare vs. Ogunlowo (1997) 6 NWLR Part 509 page 360. It is clear from the evidence led by the Appellants that no rotational order was established to have existed between the Appellants’ family and the Respondents’ family. There was no evidence that when Exhibit B was made or even before it was made, that the said Council Manager, the maker, consulted with the Kingmakers of Igbara-Odo Chieftaincy stool. The said Council Manager did not specify in Exhibit B the people he consulted with or inquired from. He talked about the true customary law. The question is whether he was the one in the right position to state about the true customary law regulating appointment to the Ayalodi of Igbara-Odo Chieftaincy title. He further stated one of his findings as establishing that there are two Ruling Houses which he identified as the Ajimo and the Ajibaredele-Oba.
I observed that Exhibit C dated 30/11/07 was addressed to “The Chairman Chieftaincy Committee & Council of Obas, Ekiti South West Local Government, yet none of the Chiefs nor Obas were called to explain or corroborate this crucial customary rotational arrangement allegedly made by the two families over the stool of Ayalodi of Igbara-Odo, Ekiti. The question is why did the Appellants not call any of the Kingmakers who supposed to have been conversant with the alleged rotational policy to testify to that effect. CW1 and CW2 were not ad idem on when the said rotational policy started or how it evolved. CW2 said there was a Chieftaincy Declaration which stated the rotation of Chieftaincy between his family and that of the Ajimos. The Ajimos came from Ikole with Saodi in Igbara-Odo. He was not aware of the existence of an Intelligence Report on the Ayalodi Chieftaincy title. CW2’s evidence that it was when Benjamin Tewogbola was on the throne that the District Council of Ekiti South came up with the Chieftaincy Declaration and that the rotation came about then was not supported. To understand the entire scenario, I think it appropriate at this juncture to decipher “What a Chieftaincy Declaration is”. In the case of Governor of Oyo State vs. Folayan (1995) LPELR-3179(SC), the Supreme Court said that:”By Section 4(2) of the Chiefs Law. Cap. 21 Laws of Oyo State 1978, a Chieftaincy Declaration is a statement of the customary law relating to the appointment etc of a recognized chief. It follows therefore that any question relating to such a declaration is a chieftaincy question. See Enwezor v. Onyejekwe & Ors (1964) NSCC 9; Chief Abaekere, the Arinmo & Ors v. The Minister for Chieftaincy Affairs Western Nigeria & Ors (1963) WNLR 53 HC affirmed by this Court in SC.606/64 on 4th May, 1966.” Then Shittu vs. Olawumi (2014) All FWLR Part 722 page 1679; Tsammani, J.C.A., in determining the meaning of the phrase “Chieftaincy Declaration” held thus: “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.” He explained in full thus:
“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 particularly 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) 8 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.”
In the light of the above, it behooved the Appellants to establish when and how the Chieftaincy Declaration was made and whether it was registered so as to have the force of law. It is well established that a Claimant seeking refuge under a Chieftaincy Declaration has the burden of proving the salient requirements associated with it. This, the Appellants failed to establish. The lower Court dissected Exhibit B in detail to ascertain whether it could qualify as a Chieftaincy Declaration. It observed that Exhibit B does not reflect the participation and input of all stakeholders in the Ayalodi Chieftaincy stool which I agree with. See also it’s remarks at page 380 of the record where it examined in extenso the conditions Exhibit B must satisfy to qualify as Chieftaincy Declaration. It then found that Exhibit B does not have the approval of the Executive Council. It was not published and it was the product of the inquiry conducted by an individual. It did not reflect the input of stakeholders and DW1 and DW3 denied participation of the Ajimo family in the exercise that led to the production of Exhibit B. It then held that the Appellants could not establish rotation by cogent evidence which I find no reason whatsoever to interfere with. In consequence thereof, I find no merit in this appeal and the same is hereby dismissed by me with no order as to costs.
FATIMA OMORO AKINBAMI, J.C.A.: I agree.
PAUL OBI ELECHI, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother Theresa Ngolika Orji-Abadua JCA in this appeal.
I agree entirely with the reasoning and conclusion of my learned brother that the appeal lacks merit and deserves to be dismissed. I dismiss same accordingly and affirm the judgment of the lower Court.
Appeal Dismissed.
Appearances:
DR. E. K. ADETIFA, with him, ANTHONY EJERE, ESQ. and S. O. DADA, ESQ. For Appellant(s)
OBAFEMI ADEWALE, ESQ., with him, EZEKIEL AGUNBIADE, ESQ., OLUBUNMI OLUGBADE, ESQ., ADEYEMI ADEWUMI, ESQ., STEPHEN ADEMUAGUN, ESQ., FOLASADE JEGEDE, ESQ. and RASHIDAT AJISE, ESQ. For Respondent(s)
