CHIEF JOSEPH EXAMINER-OSIOBE & ORS v. CHIEF ALFRED GWEDE & ORS
(2019)LCN/13909(CA)
In The Court of Appeal of Nigeria
On Thursday, the 30th day of May, 2019
CA/B/276/2011
RATIO
EVIDENCE: WITNESS: HOW MANY WITNESSES CAN A PARTY CALL IN CRIMINAL CASES
The law is settled that, even in criminal cases where the standard of proof is higher than in civil causes or matters, a party has the prerogative of calling any number of witnesses to prove his case. See Samuel Theophilus v. The State (1996) 1 NWLR (Pt. 423) 139. A single credible and qualitative witness can establish a party?s case. See Basil Akalezi v. State (1993) 2 NWLR (Pt. 273) 1. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
JURISDICTION: WHETHER A HIGH COURT HAS THE POWER TO SET ASIDE A DECLARATION MADE AND REGISTERED UNDER THE CHIEFS LAW AND IN WHAT INSTANCE DOES IT HAVE SUCH POWER
The law on this is settled and it is that a High Court has the jurisdiction, competence or power to declare as void and set aside any declaration made and registered under a Chiefs Law, as to the prevailing customary law, if such a declaration is contrary to the actual customs, native law and tradition of the people affected. See Prince Yahaya Adigun & Ors. v. A.G. of Oyo State & Ors. (1987) 1 NWLR (Pt. 53) 678; Prince Olufemi Fasade & Ors. v. Prince Iyiola Babalola & Anor. (2003) 11 NWLR PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1. CHIEF JOSEPH EXAMINER-OSIOBE
2. CHIEF EMMANUEL UFUOMA
3. CHIEF AARON USOKO
4. CHIEF CLIFFORD OMOYIBO ADADE Appellant(s)
AND
1. CHIEF ALFRED GWEDE
2. MR. CLARKSON UNUNUGBE
3. MR. AGBAOVWE OFOBEYE
4. MR. GODWIN ONOTE-ODJA
5. CHIEF UDEDE OSHAVEDJE
6. ATTORNEY-GENERAL OF DELTA STATE
7. THE COMMISSIONER FOR LOCAL GOVERNMENT AFFAIRS, DELTA STATE Respondent(s)
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The 1st ? 4th respondents were the plaintiffs in Suit No. UHC/9/88 instituted in the High Court of Delta State. The said action was struck out by the trial Court on 27/02/1991 for lack of jurisdiction. On appeal to this Court and the Supreme Court, it was resolved that the trial Court had jurisdiction and the suit was remitted to the lower Court to be heard by another Judge other than the learned Judge who ruled on 27/02/1991 declining jurisdiction. The case was heard, after some of the deceased original parties were substituted, and the trial Court delivered a reserved judgment on 26/07/2011 whereby it granted the following claims of the 1st ? 4th respondents:-
a) A declaration that in accordance with the tradition, native law and custom of the Uwherun Clan in Ughelli North Local Government Area of Delta State, a place within the jurisdiction of this honourable Court, the Senior Odion of Uwherun is always appointed from Erovie Quarters and Erovie Quarters only and is not subject to rotation among the five quarters which make up Uwherun Clan.
b) A declaration that Erovie quarter is the only ruling house in Uwherun.
c) A declaration that the purported appointment and subsequently gazetting of one Chief Olori Edjerode, now deceased from Ehere quarter of Uwherun sometime in April, 1980 as the Senior Odion of Uwherun is contrary to Uwherun native law and custom usage and tradition and was therefore null and void and of no effect whatsoever.
d) A declaration that the purported appointment, recognition and subsequent gazetting of one Chief Hivite Ewhikpe Egoh (deceased) from Urede quarters sometime in 1991 as the Odion Rode or Senior Clan head of uwherun is null and void and is of no effect whatsoever as same was done contrary to Uwherun native law and custom usage and tradition.
e) An order setting aside the instrument of recognition/the gazette which purportedly accorded recognition to Chief Olori Edjorode (deceased) as Odion Rode of Uwherun between 1980 ? 1991 as same was null and void and contrary to Uwherun native law and custom, usage and tradition.
f) An order setting aside the instrument of recognition/the gazette which purportedly accorded recognition to late Chief Hivit Ewhikpe Egoh as the Odion Rode or Senior Clan head of Uwherun on 1st February, 1995 as same was null and void and contrary to the Uwherun native law and custom, usage and tradition.
g) A declaration that any purported recognition of the 7th defendant from Egbo quarter as the Senior Odion of Uwherun by 5th and 6th defendants since 1995 is contrary to Uwherun native law and custom, usage and tradition and is therefore null and void.
h) An order setting aside any act of purported recognition of the 7th defendant from Egbo quarter, Uwherun as Senior Odion of uwherun by the Delta State Government sued in this suit as 5th and 6th defendants, as the same is null and void and contrary to Uwherun native law and custom.
i) An order of perpetual injunction restraining the Delta State Government represented in this suit by 5th and 6th defendants whether by themselves, servants, agents and or whomsoever called from recognising, further recognizing and or having any dealings with the 7th defendant for and on behalf of Uwherun Clan or better still as the Odion Rode or Senior clan Head of Uwherun.
j) An order of perpetual injunction restraining the 7th defendant, his servants, agents and or whomsoever called from functioning or continuing functioning and/or parading himself as the Odion of Uwherun Clan.
k) An order compelling the 5th and 6th defendants to recognize and gazette the 1st plaintiff as the Senior Odion of Uwherun in accordance with Uwherun native law and custom, usage and tradition.
l) An order setting aside the declaration of customary law regulating the succession to the title of the senior Odion of Uwherun, Bendel State Legal Notice (BSLN) 88 of 29th September 1979.?
This appeal is against the said judgment and it was heard based on the following processes:-
1. Further amended notice of appeal filed on 20/03/2015 but deemed filed on 23/11/2016;
2. Appellants? amended brief filed on 06/12/2016
3. 1st ? 4th respondents? amended brief filed on 09/03/2018 and deemed properly filed on 03/12/2018;
4. The 5th respondents? brief filed on 28/10/2013; and
5. Appellants? reply brief filed on 17/12/2018.
The appellants distilled two issues for determination as follows:
1. Whether having regard to the evidence on record, the lower Court was right when it held that by the customary law of the Uwherun people, succession to the Odion Rode or Senior Odion of Uwherun Kingdom is the exclusive preserve of Erovie Quarters of Uwherun. (Grounds 1,3,4,5,6 and 7).
2. Whether the lower Court was right when it set aside the declaration of Customary law (Exhibit M) regulating succession to the title of the Senior Odion of Uwherun, Bendel State Legal Notice (BSLN) 88 of 29th September, 1979 on the ground that it does not represent the customary law of the Uwherun prior to the existence of the declaration. (Ground 2).?
Two issues were also formulated by the 1st ? 4th respondents and they are:-
?1. Whether the learned trial Court was right in holding that the 1st – 4th respondents by oral and documentary evidence have proved their case that by Uwherun native law and custom, succession to the title of Senior Odion of Uwherun is the exclusive preserve of Erovie quarters. (Grounds 1,3,4,5,6, and 7).
2. Whether the honourable trial Court in the face of the evidence (Oral and documentary) before the honourable Court was right in setting aside the declaration of the Customary law regulating succession to the title of Senior Odion of Uwherun (Exhibit M) on the basis of it not reflecting the customary law of Uwherun on succession to the title of Senior Odion of Uwherun before the coming into existence of the declaration (Ground 2).?
The 5th respondent adopted the issues as framed by the 1st ? 4th respondents.
The 6th and 7th respondents did not file any brief.
The issues identified by the appellants, the 1st ? 4th respondents and the 5th respondent are essentially the same. However, I will treat both issues together, just as the appellants have done.
Learned counsel for the appellants submitted that the trial Court was wrong when it held that the 1st ? 4th respondents proved that succession to the Odion R?ode title is the exclusive preserve of Erovie quarters of Uwherun. Relying on the case of Imonikhe v. A-G Bendel State (1992) 6 NWLR (Pt. 248) 396 at 410 ? 411, learned counsel for the appellants contended as follows:-
The lower Court was wrong when it set aside the Declaration of Customary law (Exhibit M) regulating succession to the
title of the Senior Odion of Uwherun, Bendel State Legal Notice (BSLN) 88 of 29th September, 1979. It is trite that when a declaration is duly made and registered, it becomes the constitution and embodiment of the entire custom of the community with respect to chieftaincy matter to the exclusion of any other customary law or usage.?
Learned counsel argued that since the 1st ? 4th respondents? claim was declaratory, they (1st ? 4th respondents) ought to succeed on the strength of their own case and not the weakness of the defendants? case. In support of this submission, counsel referred the Court to the cases of CPC v. INEC (2011) 4 LRECN 170 at 193 and Emenike v. PDP (2012) 12 NWLR (Pt. 1315) 556 at 589 ? 590.
Counsel referred to page 317 of the record of appeal to show that ?the learned trial Judge relied heavily on admissions allegedly made by the defendants.”
Learned counsel stated that the trial Court relied solely on the evidence of the 3rd respondent, Mr. Agbaovwe Ofobeye, whose testimony was itself a bundle of contradictions.? Counsel argued that the reliance by the trial Court on the evidence of the 3rd respondent ?is contrary to Sections 16(1), 18 and 73 of the Evidence Act (as amended).”
On the circumstances under which a chieftaincy declaration can be set aside by a Court, learned counsel referred the Court to the case of Olanrewaju v. Oyesomi (2014) 11 NWLR (Pt. 1418) 258 at 293, parags D-H. He argued that the conditions for setting aside a Chieftaincy Declaration does not exist in this case because the 1st – 4th respondents ?were represented during the hearings conducted by the Justice Ighodaro Commission?. To buttress this point, counsel referred to page 17 of the Commission?s Report ? Exhibit ?J?.
Learned counsel said that the lower Court found as a fact, on page 325 of the record of appeal, that the Government duly carried out an investigation before making the Declaration ? Exhibit ?M?. Counsel then submitted as follows:-
?It is not correct that the Erovie quarter had always produced the senior Odion of Uwherun from time. The position of senior Odion rotates amongst the five ruling Houses in Uwherun. It rotates in order of seniority. The
rotation started from time immemorial. As a result, all the quarters have produced a senior Odion of Uwherun. It was Uwherun himself who established this rotational system.?
In support of the above argument, learned counsel referred the Court to the cases of Governor of Kwara State v. Eyitayo (1997) 2 NWLR (Pt. 485) 118 and Imonikhe v. A.G., Bendel State (supra).
In response, the 1st ? 4th respondents submitted that the trial Court was right in its decision, because the case of the 1st ? 4th respondents was established by both oral and documentary evidence.
Learned counsel for the 1st ? 4th respondents argued that the finding of the trial Court on page 322 of the record of appeal was ?a fatal blow? to the appellants? contention as to the proof of the declaratory relief sought by the 1st ? 4th respondents.
Counsel contended that the evidence elicited from the appellants? witnesses supported the 1st ? 4th respondents? case.
Learned counsel for the 1st ? 4th respondents submitted that the conditions stated in the case of Olanrewaju v. Oyesomi (2014) 11 NWLR (Pt. 1418) 258 are not exhaustive and that case ?does not support the contention of the appellants in view of the findings of the trial Court? at page 326 of the record of appeal.
Relying on the case of Usiobaifo v. Usiobaifo (2005) 3 NWLR (Pt. 13) 665 at 684, paras. C-D, learned counsel for the 1st ? 4th respondents submitted that ?a Court of law does not require a multitude of witness (sic) in ascribing probative value to evidence.?
The 5th respondent adopted the arguments of the 1st ? 4th respondents.
I agree with the submission of the learned counsel for the appellants that in a case where declaratory relief is sought, as in the instant case, the plaintiff must succeed on the strength of his case and not on the weakness of the defe
