Godwin Sasi D. Ogolo & Ors V. Chief Joseph Tumini Ogolo & Ors (2003)

LAWGLOBAL HUB Lead Judgment Report

O. EDOZIE, J.S.C.

This appeal emanating from the judgment of the Court of Appeal Port Harcourt delivered on 15th April, 1997, arose from a chieftaincy dispute relating to the stool of Opobo Main House or Main Ogolo House of Opobo Town in Opobo Nkoro Local Government Area of Rivers State. Both parties are members of the Diepiri section of Opobo town within the ancient conglomerate of Opobo kingdom. The Diepiri section is made up of six War Canoe Houses, the head of which is the Ogolo Main House.

By tradition from time immemorial the Chief of Ogolo Main House is the traditional Head of the Diepiri section. With the dimise in 1981 of the then incumbent Chief of Ogolo Main House, Chief Raymond D. Ogolo, the chieftaincy stool became vacant and it was in the process of the selection and installation of a successor that dispute erupted.

The plaintiffs/respondents’ case is that the 1st plaintiff/respondent was in accordance with native law and custom validly and duly selected and installed as the Chief of Ogolo Main House on 29th November, 1985, and therefore the Head of Diepiri section. Angered by this assertion, the defendants/appellants instituted suit No. BHC/66/85 at the High Court of Bori to challenge the claim. During the pendency of that suit, the 10th defendant/appellant and his supporters underwent traditional ceremonies in April, 1986, in consequence of which the 10th defendant/appellant was said to have become duly installed as the Chief of Ogolo Main House. This gave rise to another suit No. BHC/16/86 instituted by the plaintiff/respondents wherein they sought two declaratory reliefs, i.e., a nullification of the installation of the 10th defendant/appellant and the recognition of the 1st plaintiff/respondent as the Chief of Ogolo Main House. They also claimed damages for trespass on the Palace of Ogolo Main House and injunctive reliefs restraining the defendants/appellants from holding out the 10th defendant as the Chief of Ogolo Main House. In the aforesaid suit No. BHC/16/86 which culminated in the present appeal, pleadings were duly filed, exchanged and subsequently amended with the Amended Statement of Claim, the Further Amended Statement of Defence and Reply to the Statement of Defence as the terminal pleadings upon which the case was contested. As formulated in paragraph 27 of the Amended Statement of Claim, the plaintiffs/respondents claimed jointly and severally against the defendants/appellants the following reliefs:-

“(1) A declaration that the purported and mock installation of the 10th Defendant (Levi Brown Ogolo) as the chief of Ogolo Main House on the 10th day of April, 1986, during the pendency of Suit No. BHC/66/85 is unlawful, null and void and of no legal effect whatsoever.

(2) A declaration that the installation of the 1st Plaintiff (Chief Joseph T. Ogolo) as the Chief of Ogolo Main House on the 29th November, 1985, is lawful and valid in accordance with the custom of Ogolo Main House of Ogolo town and that the palace of Chief Ogolo Diepiri in Ogolo Main House compound is customarily under the custody and control of the installed Chief of Ogolo Main House.

(3) N60,000.00 (Sixty Thousand Naira) being damages for trespass committed by the 11th – 16th Defendants in that on or about the 10th day of April, 1986, and on divers days before and thereafter, the aforesaid Defendants by themselves, their agents and servants without the consent of the Plaintiffs broke and entered into Ogolo Main House Palace desecrated same as well as the shrines in Opumogu and “Ihu Esi” of Chief Ogolo’s compound which are in peaceful possession of the Plaintiffs.

(4) Perpetual injunction restraining the Defendants, their agents and servants from holding out the 10th Defendant as Chief of Ogolo Main House in Opobo town.

(5) A perpetual injunction restraining the 10th Defendant by himself, servants, agents from holding himself out as or acting as the Chief of Ogolo Main House in Opobo town.”

At the trial, each party called witnesses and tendered several exhibits to substantiate its case. After the conclusion of the final addresses of learned counsel for both parties, the learned trial Judge, Opene, J., (as he then was), meticulously and painstakingly evaluated the evidence and in a well considered judgment delivered on 28th of July, 1993, dismissed the plaintiffs/respondents’ case. Thereafter, the plaintiffs/respondents lodged an appeal to the Court of Appeal, Port Harcourt Division, which court in a unanimous decision delivered on 15th April, 1987, allowed the appeal and ordered a retrial before the High Court. Against this decision of the Court of Appeal, the defendants/appellants have lodged the instant appeal with a notice of appeal containing only one ground of appeal which notice was subsequently amended with an additional ground of appeal.

Parties by their respective counsel filed and exchanged briefs of argument, which they adopted and relied upon with oral address in amplification of their briefs.

In the appellants’ brief, two issues were identified for the determination of the appeal, viz:-

“ISSUE NO. 1

Whether the learned Justices of the court below were correct in determining the appeal upon the footing that the essential elements of lawful installation of the Chief of the Ogolo Main House under the customary law and practice relating to such installation was a distinct issue placed before the lower court for adjudication.”

“ISSUE NO. 2

Whether the court below acted arbitrarily in ordering a retrial having regard to the very substantial specific findings of fact by the trial court which were unreversed and also considering the issues resolved in favour of the Appellants by the lower court as well as the other surrounding circumstances of the case on appeal.”

On their part, the respondents in their formulated two issues in the following terms:-

“i. Whether the learned Justices of the court below were justified in holding that the applicable customary law and practice relating to the lawful installation of the Chief of the Ogolo Main House of Opobo was a crucial issue in dispute between the parties and that failure by the trial Judge to make a specific finding thereon was fatal.

ii. Whether the court below was wrong in ordering a retrial having regard to its holding that the Learned trial Judge failed to make a specific finding on the applicable customary law and practice relating to the lawful installation of the Chief of the Ogolo Main House of Opobo which was an issue in dispute between the parties.”

It is contended in the appellants’ brief that the gravamen of the complaint in issue No. 1 is that no question as to the essential features or requirements of a valid selection, installation and presentation of the Chief of Ogolo Main House under the appropriate customary law arose for determination before the Court of Appeal as there was no specific ground or grounds of appeal giving rise to such a question or from which such a question could be distilled. Counsel referred to the 16 grounds of appeal at pages 267 and 275 of the record and pointed out that it was not the case of the plaintiffs/respondents as the appellants in lower court that the trial court failed to make specific findings of fact as to the conglomeration of the prescribed acts which constitute a valid installation of the Chief of Ogolo Main House. The cardinal issue in controversy before the lower court, it was stressed, was whether the lower court properly evaluated the evidence before it in line with the decision of this court in Mogaji v. Odofin (1978) 4 S.C. 91. It was therefore submitted that the court below was in error to have upturned the decision of the learned trial Judge on the ground that it made no finding on what would amount to the essential requirements or ingredients of a valid installation of the Chief of Ogolo Main House under the appropriate customary law practice.

On the second issue for determination which deals with the order of retrial, learned counsel for the appellants submitted that an order for retrial is not granted to afford a losing party an opportunity for a second bite at the cherry vide the case of Ezeoke & Ors. v. Nwogbo & Ors. 1 NWLR (Pt.72) 616. He highlighted all the material issues in contest between the parties upon which the trial court made specific findings favourable to the appellants which were not reversed by the court below and submitted that in the circumstance an order of retrial was most inappropriate, rather the court below ought to have affirmed the verdict of the trial court, citing the cases of Onowan v. Iserhien (1976) 9-10 S.C. 95; Idundun v. Okumagba (1976) NMLR 200; Balogun v. Agboola (1974) 10 S.C. 111, Woluchem v. Gudi (1981) 5 S.C. 291.

In reply, learned counsel to the respondents in regard to his first issue for determination submitted that both from the pleadings of the parties filed at the trial court and the respondents’ grounds of appeal before the court below, the question of the applicable customary law and practice relating to the installation of the Chief of the Ogolo Main House of Opobo was clearly in dispute between the parties. References were made to paragraphs 13, 14, 15, 21 and 22 of the Amended Statement of Claim and paragraphs 9, 10, 11 and 21 of the Further Further Amended Statement of Defence and the cases of Messers Lewis & Peat Ltd. v. A.E. Akhimien (1986) 4 S.C. 157 at 163-167; and Akintola & Anor. v. Solana (1986) 4 S.C. 141 at 188, 189. Counsel also referred to the Amended Notice of Appeal filed by the respondents herein dated 16/3/95 and particularly to grounds 8 and 14 which were said to have been covered by issue 2.6 in the issues for determination formulated by the respondents as appellants in the court below and also issue No. 4 of the appellants as respondents in the court below and submitted that they all touched directly on the various aspects of the customary law and practice relating to the installation of the Chief of Ogolo Main House of Opobo. These customary law and practices, it was contended, would include the procedures for the chieftaincy and the role of the distinct War Canoe Houses in Diepiri section and the powers and responsibilities of the Committee or Warisenapu with respect to the said installation. It was submitted that where any of these elements or features is in issue between the parties the applicable customary law and practice can justifiably be said to be in issue between the parties. On the authority of the case of Bankole v. Belu (1991) 8 NWLR (Pt.211) 523 at 537, it was stressed that the Court of Appeal is at liberty to reject all the issues as formulated by the parties and frame its own issues as was done in the instant case if in its view the issue as framed by the parties will not lead to a proper determination of the appeal.

With respect to the respondents’ second issue for determination dealing with the order for retrial, learned counsel pointed out in his brief that one of the distinct features of the customary law and practice in dispute was whether the other Five War Canoe Houses in Diepiri Section have any role to play in the installation of the Chief of Ogolo Main House. He noted that the learned trial Judge did not make any specific finding in that regard apart from the casual remark that the first plaintiff was never presented to the other Five War Canoe Houses in Diepiri section. It was submitted that a finding on this issue is indispensable in reaching a decision on whether or not the 1st plaintiff/respondent’s installation was in compliance with the applicable native law and custom and therefore valid. Alluding to the cases of African Continental Bank Limited v. Nwadiogbu (1994) 7 NWLR (Pt. 256) 330 at 343, Karibo v. Grend (1992) 3 NWLR (Pt. 230) 426 at 441, Reynord v. William Allan 2 WACA 52 at 53, learned counsel submitted that failure by a trial Judge to make a finding of fact on a crucial issue in dispute is fatal where such a finding is necessary for a proper decision. It was further contended that in such a situation where the resolution of the issue by the trial Judge would certainly have turned wholly or partly on the credibility of the witnesses, an appellate court would have no alternative but to remit the case for retrial as it is in no position to accredit one set of witnesses and discredit others and in support of the proposition, the following cases were cited – Adeyemo v. Arokopo (1988) 2 NWLR (Pt.79) 203 at 316, Armels Transport Ltd. v. Martin (1970) 1 ANLR 27 at 32. It was therefore, submitted that the court below was justified in ordering a retrial.

It is convenient to treat the two sets of issues together as one composite issue which is whether there was any material issue unresolved by the trial court which was relevant in the adjudication of the vital dispute between the parties to justify an order of retrial made by the court below. The reliefs sought by the plaintiffs at the trial court have already been set out but at the risk of repetition, the two principal reliefs are a declaration that the 10th defendant was not but the 1st Plaintiff was duly installed as the Chief of Ogolo Main House in accordance with the custom of Ogolo Main House of Opobo. A proper adjudication of such claims will naturally entail the ascertainment of the customary law and practices relating to the installation of that chieftaincy stool. Customary law is the organic or living law of the indigenous people of Nigeria regulating their lives and transactions. It is a mirror of the culture of the people. Under our law, customary law is a question of fact to be proved by evidence or judicial notice if it has been established as required by Sections 14(2) and 73 of the Evidence Act: Oyewunmi v. Ogunesan (1990) 3 NWLR (Pt. 137) 182 at 207, Taiwo v. Dosunmu (1966) NMLR 67 Otogbolu v. Okeluwa (1981) 6-7 S.C. 99. Being a fact to be established by evidence, customary law must be specifically pleaded. In the case in hand, the plaintiff pleaded though inelegantly the customary law and practice they relied upon as is evident from the following paragraphs of the Amended Statement of Claim:-

“10. For many generations ….. Ogolo Main House has been by custom and tradition autonomous in handling her War Canoe House Affairs without let or hindrance from any person including the other five Canoe War Houses, which make up the Diepiri section of Opobo town.

11. The historical and cultural position of the Ogolo Main House made it mandatory for the said House to be informed of an installed chief of any of the aforementioned War Canoe House in Diepiri section for onward introduction to the Opobo Council of Chiefs. The other members of Diepiri section can only watch the installation of a chief of Ogolo Main House and cannot by custom question the manner of choice.
12. Similarly, it is not open to the Chief of Ogolo Main House and the members thereof to question the validity of the choice of Chiefs of the various subordinate War Canoe Houses and whoever is introduced to the Main Houses as the Chief is always accepted by all.
13. The Chiefs of Ogolo Main Houses have for many generations worked together in conjunction with their committee of Ogolo Main House who run the affairs of the House ……..

The choice and election of the Chief of Ogolo Main House is the sole prerogative and functions of the said Committee of the Main House with the unanimous decision and popular support of members of Ogolo Main House.

14. The said Committee of Ogolo Main House is the only authentic and competent body to nominate any person or persons for the Chieftaincy of Ogolo Main House and then present such to the General Meeting of the whole Ogolo Main House comprising of the adult males and females of the aforementioned Ogolo Main House who in turn vote in the open for the candidate of their choice.

(e) The Plaintiffs will rely on the installation instruments of Chiefs … to substantiate the assertion that there is nobody called Warisenapu, neither is it necessary for any of the other War Canoe Houses to signify their approval to the choice of the Chief of Ogolo Main House. The Plaintiff would further aver that the choice of who should be chief of Ogolo Main House is the exclusive prerogative of the Committee of Ogolo Main House.

21. The installation of the 1st Plaintiff was popular and the associated ceremonies thereto were carried out in accordance with the custom of Ogolo Main House …….
22. In the instant case the 1st Plaintiff had the “Ekere” (xylophone) of chief Ogolo Main House sounded for him coupled with the display of “Ngunume” dance by the people of the compound/invitees. After this display the Chief Priest of Ogolo Main House (Aaron S. Ogolo) performed the necessary rites and conducted the 1st Plaintiff to all vital shrines at “IHU EZE” and OPUMONGU” of Ogolo Main House compound where he poured libation on the various shrines invoking the spirits of the ancestors for the protection of the 1st Plaintiff and welfare of the public.”

In reply to the above averments, the defendants pleaded in the Further Further Amended Statement of Defence, inter alia thus:-

“9. In answer to paragraphs 10, 11 and 12 of the amended statement of claim, the defendants deny the distorted history contained therein and state that all War Canoe Houses are autonomous with regard to their internal affairs but in matters affecting the section, all branch War Canoe Houses are subordinate to the Main House and therefore take part in the selection and installation of the Chief of the Main House who by tradition and custom becomes their Head Chief after installation. This is the customary practice in Opobo Town in all sections.

10. While the Warisenapu of the Main Ogolo House selects a Chief to the stool of the Main Ogolo House (who eventually becomes the Head of Diepiri section), it is the prerogative of the other War Canoe House to approve or reject any such candidate presented to them.
11. In further answer to paragraph 11 the defendants say that by custom any chief installed in any of the War Canoe Houses is introduced to Diepiri section for presentation to the Opobo Council of Chiefs.

12 The defendants deny emphatically that the affairs of the Main Ogolo House are run by a committee …….. the Defendants aver that after the Nigerian Civil War, late Chief Raymond Ogolo appointed a committee which helped in collecting revenue from real property for his subsistence allowance …………….

13. ……………

That although each War Canoe House in Diepiri section of Opobo Town enjoys some autonomy, such autonomy does not extend to the selection and installation of the Chief of Main Ogolo House who by custom and tradition becomes the Head Chief of Diepiri section on installation ………..

22. The defendants deny paragraph 22 of the amended statement of claim and will put the plaintiffs to the strictest proof of the allegations therein contained. The Defendants in further answer to the said paragraph state that there is a customary procedure for the installation of all Heads of the Main House in Opobo and will rely on a document titled programme of events for installation ceremonies of the 10th Defendant which is attached to the special invitation.”

From the excerpts of the pleadings quoted above, it is glaring that while the parties agree that the procedure leading to the succession of their chieftaincy stool in dispute consists of several stages involving several customary practices, they are not id idem with respect to the precise nature of those practices. One cardinal area in which the parties have joined issue is on the body which customarily selects or nominates a candidate for the chieftaincy title. The plaintiffs’ case is that the nomination is the exclusive prerogative of the committee of Ogolo Main House and that the 1st plaintiff was validly nominated by that committee and further that Warisienapu does not exist in the affairs of the community. In direct opposition to those assertions, the defendants maintained that Warisenapu exist, that it is the body customarily charged with the responsibility of nominating a candidate for eventual approval and installation as the Chief of Ogolo Main House. The learned trial Judge reviewed the evidence proffered by the witnesses for the parties and at p.178 of the record, in rejecting the case propounded by the plaintiffs, made a finding to the following effect:-

“It has been clearly shown that Warisenapu exists in Opobo and also in Ogolo House and that part of its function is the selection of the Chief of the Main House ……………….

I am fully of the view that Warisienapu exists in the Main House and that even if one chooses to call it a committee, that it is different from an ordinary committee as it is a stool and the appointment is for life unless one misbehaved. They are sort of kingmakers.”

By that finding, it seems to me that 1st plaintiff was not nominated by the kingmakers. The plaintiffs’ case was therefore devastated beyond redemption since they have failed to scale through the first of several hurdles in the chieftaincy process.

In addition to the above finding, the trial court appraised the evidence adduced by the parties regarding the presentation of the selected candidate to the other subordinate War Canoe Houses, the installation process and final presentation to the Opobo Council of Chiefs and at p.194 et seq of the record, it encapsulated its findings thus:-

“It can be seen that the 10th Defendant was not only selected by the Warisenapu of the Main House and the general house of the main house but also the Warisenapu of the Diepiri section; further the procedure adopted in his installation is exactly the same as shown in Chief Strongface’s programme of events Exhibit D.3A.”

As for the 1st Plaintiff, he was nominated by a committee which is said to derive its powers from Exhibit 1 and Exhibit 15A shows that everything about his installation took place on the same day. The meeting started at 12 p.m; the 1st plaintiff was elected there and it was agreed that installation would go on that day; P.W.1 was chosen by the House to officiate as the Chief Priest and it was then agreed that other War Canoe Houses should be invited to participate in the ceremony. The 1st plaintiff was then installed and the shrine rituals were performed. No doubt what is shown in Exhibit 15A falls far short of what should be done.

Besides, the fact that the 1st Plaintiff was not selected by Warisenapu or a committee that has the power to select and install a chief, he was never presented to the other five War Canoe Houses in Diepiri section, there was no Resolution or Rules and Regulations by the members of the Houses, he was not presented with the staff of office by the Acting Head of the section. There is nothing to show that he was presented by the Acting Head of section to Opobo Council of Chiefs in public and the date of presentation.”

It is pertinent to observe that none of the above findings was faulted on appeal before the Court of Appeal which court in the lead judgment of Akintan, JCA., at p.359 lines 29 to 31 of the record held:-

“Although the learned Judge made specific findings of fact and gave reasons for accepting or rejecting certain evidence led before him, he, however, failed to make the necessary findings of fact relevant to the resolution of the dispute submitted to the court.”

(Underlining for emphasis)

Earlier, on the same page at line 10 to 20, the lower court held:-

“……. it is clear from the claim before the court that among the disputes which the lower court was called upon to decide or pronounce upon are, inter alia, to declare whether or not the said installation of Levi Brown Ogolo (the 10th defendant) was lawful or not. In doing so, the court would be expected to make specific findings of fact from the evidence led before it as to what would amount to lawful installation of the Chief of the Ogolo Main House under the appropriate law and practice.

The court was also required to declare whether the installation of the 1st Plaintiff (Joseph T. Ogolo) as Chief of the same Ogolo Main House on 29/11/85 was lawful or not.”

With profound respect to the learned Justices of the Court of Appeal, I think each party pleaded and gave evidence as to what it conceived to be a valid selection and installation of the Chief of the Main House. The trial court for the various reasons it gave rejected the procedure outlined by the plaintiff through which the 1st plaintiff underwent as conforming to the prevailing customary law of the people and by implication held that the installation of 1st plaintiff was not valid. As the trial court rightly pointed out, the defendants had no counter-claim and therefore were not entitled to any declaration in their favour. The court below did not pinpoint at any material aspect of the customary law on which the trial court did not make a finding.

Learned counsel to the plaintiffs in his brief in this court in support of the judgment of the court below argued that the trial court did not make any finding about the necessary law and practice as to whether the subordinate five War Canoe Houses in Diepiri section have any role to play in the installation of the Chief of the Ogolo Main House. With respect to learned counsel, I do not share this view. At the risk of repetition but for the sake of clarity, the trial court at page 194 lines 15 to 17 stated:-

“Besides the fact that the 1st Plaintiff was not selected by Warisenapu or a Committee that has the power to select and install a chief, he was never presented to the other five War Canoe Houses in Diepiri section ………”

Implicit in the above statement is a finding that it is part of the customary law that a candidate nominated or selected from the Main House must be presented to other five War Canoe Houses for approval. That apart the finding by the trial court to the effect that the 1st Plaintiff was not nominated by Warisenapu or a committee vested with power to do so has not been challenged either in the court below or in this court. As I had earlier observed that finding was crucial as it was fatal to the plaintiffs’ case whose principal claim is a declaratory relief. It is trite law that such a relief is a discretionary remedy which will be refused where the plaintiff fails to establish his alleged entitlement to the satisfaction of the court: See Oni & Ors. v. Arimoro (1973) 3 S.C. 165, (1973) 8 NSCC 108; Anyaoku v. Adi (1986) 3 NWLR (Pt.31) 731 at 749 Clay Industries (Nig.) Ltd. v. Aina (1997) 8 NWLR (Pt.516) 208 at 228. The plaintiffs having failed to show that the nomination or selection of the 1st plaintiff was in accordance with custom, the purported nomination was void and a nullity and as such nothing can stand on it: Macfoy v. U.A.C. Ltd. (1961) 3 AER 1169, 1172, 1405; Kolawole v. Alberto (1989) 2 S.C. (Pt.II)1; (1989) 1 NWLR (Pt. 98) 382.It follows, therefore, that any subsequent installation of the 1st plaintiff cannot be valid. It is against this background that there cannot be any justification for the order of retrial made by the court below.

It is a well settled principle that an order of retrial should not be made where it only serves the purpose of giving the losing party the opportunity to prove afresh what it has failed to prove: see Ezeoke & Ors. v. Nwagbo 1 NWLR (Pt.72) 616, (1988) 3 SCNJ (Pt.1) 37 at p.48. Before an order of retrial can be properly made, an appellate court or tribunal ought to satisfy itself that the other party is not thereby being wronged in such a manner as to occasion a miscarriage of justice. A retrial is inappropriate where the plaintiff has failed to prove his case and no irregularity of a substantial nature is apparent on the record: see Dantubu v. Adene (1987) 4 NWLR (Pt.65) 314, Solomon v. Mogaji (1982) 11 S.C. 1 at 24; Mogaji v. Odofin (1978) 4 S.C. 91; Ayoola v. Adebayo (1969) 1 All NLR 159 and Ayisa v. Akanji (1995) 7 NWLR (Pt. 406) 129. In the instant case the plaintiffs have failed to establish a valid nomination of the 1st plaintiff. Even if the question about the role of Five War Canoe Houses were resolved in their favour that would not have affected the verdict of the trial court.

For the foregoing reasons, it is my judgment that the learned trial Judge made specific findings favourable to the defendants substantially on all the material issues in contention between the parties. These findings were not faulted by the court below. In these circumstances, the order of retrial made by the court below cannot be sustained. In the event, this appeal has merit and is accordingly allowed.

The judgment of the Court of Appeal, Port Harcourt Division, delivered on 15th April, 1997, is hereby set aside and in its place the judgment of the trial court delivered on 28th July, 1993, dismissing the plaintiffs’ case is restored.

The defendants/appellants are entitled to costs assessed and fixed at N10,000.00 against the plaintiffs/respondents.

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SC.193/97