Chief Mohammed Shittu & Ors V.chief James Olawumi & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HARUNA M. TSAMMANI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Ekiti state High court, Ido-Ekiti Division delivered on the 16th day of April, 2001 wherein the Plaintiffs’ claims before that court were dismissed entirely.

The Appellants were plaintiffs at the lower court, while the Respondents were Defendants.

The circumstances giving rise to the action filed by the Appellants against the Respondents was as a result of the Chieftaincy Declaration of Usi-Ekiti which increased the number of the ruling houses and the kingmakers, so as to correct the imbalance or lopsidedness pertaining to the chieftaincy of that domain. By that declaration, the Odoba family of the 1st Respondent was included as a ruling family in Usi-Ekiti. The Appellants who claimed that their Ebi Omo Owa ruling families have exclusive right of succession to the throne of Olusi (Oba) of Usi-Ekiti were dissatisfied with the declaration of the Odoba family as a ruling family in Usi-Ekiti and the increment of the number of kingmakers from six to ten, took out a writ of summons against the Respondents, wherein they sought the following reliefs: 1. A declaration that by history, native law, custom and tradition of Usi-Ekiti, there are Olusi three ruling houses to chieftaincy viz; Arakara, Amojojoye and Olasogba and there are six (6) kingmakers to Olusi Chieftaincy title.

2. A declaration that the purported amendment to the number of ruling houses and kingmakers to Olusi of Usi-Ekiti approved by the 2nd to 5th defendant on 5th May, 2003 and registered on 6th May, 2003 is illegal, run counter to the native law, custom and tradition of Usi-Ekiti and as such it is null and void.
3. A perpetual injunction restraining the 1st defendant and members of his Odoba family from regarding themselves as one of the ruling houses to Olusi of Usi

Chieftaincy and restraining 2nd, to 5th defendants from acting or making use of the purported declaration approved on 5th May, 2003 and registered on 8th May, 2003 in the filling of Olusi of Usi-Ekiti chieftaincy title when the stool is vacant.

The Respondents upon being served the Appellants’ Statement of claim filed their respective statements of Defence. The 1st Respondent filed their statement of Defence dated 14/7/2003, while that of the 2nd Respondent is dated 18/3/2004. The 3rd to 5th Respondents filed a joint statement of Defence dated the 23/10/2003.

The Respondents by their various Statements of Defence denied the claims and urged that the claims be dismissed.

At the trial before the lower court, evidence was led by and on behalf of the parties and several documents tendered and admitted as exhibits’ At the close of evidence, the parties filed written addresses, and in a considered judgment delivered on the 16th April, 2007, the learned trial judge dismissed the various claims of the Appellants. The Appellants are dissatisfied with the judgment of the lower court and have now filed this appeal. It is pertinent to point out that during the pendency of this appeal, the 1st Respondent, chief James Olawumi died. Consequently, the Respondents by a Motion on Notice dated and fifed the 22nd/10/2009, sought for and were granted leave to substitute his name with that of MR. MICHAEL OLAJIDE FAKEHINDE I have noted however, that the processes in this appeal were not amended to reflect the substitution made in the name of the 1st Respondent.

The Notice of Appeal filed by the Appellants is dated the 4th day of July, 2001 and filed the 5th day of July, 2007. It consists of six (6) Grounds of Appeal. The Grounds of Appeal, but without their particulars are hereunder reproduced as follows.

1. The Lower court erred in law when it stated in its judgment that “evidence which was not challenged abounds that from Usikorode to Oba Orokoyobiagbe, were from about 13 Obas in-between first defendant’s Oloba family”. In other words that Ebi Odoba had produced Olusi of usi in times past”. And this led to a miscarriage of justice.
2. The lower court was in error when it held that the Ekiti state Government can validly include the Odoba family (i.e. the first defendant’s family) as one of the ruling Houses in Usi pursuant to its powers to make a chieftaincy Declaration for Usi. And this led to a miscarriage of justice.
3. The Lower court was in error when it held that Government has the power to increase the kingmakers in Usi from six to ten because there was an imbalance and lopsidedness in the set up of the kingmakers in Usi-Ekiti. And this led to a miscarriage of justice.
4. The Lower court did not properly evaluate the evidence placed before it in arriving at the conclusion that the plaintiffs have failed to prove their case as required by law, i.e. on the balance of probabilities. And this led to a miscarriage of justice.
5. The decision of the trial court that “the plaintiffs and the 1st defendant have so much in common to warrant their being treated equity and therefore they are properly placed together in the rulership scheme of Usi” is unreasonable, unwarranted and cannot be supported having regard to the unwarranted and cannot be supported having regard to the evidence before the court. And this led to a miscarriage of justice.
6. The judgment of the lower court is against the weight of evidence adduced in the proceedings.

As required by the Rules and practice of this court, parties filed and exchanged briefs of Argument. The Appellants, Brief of Argument which is settled by Abdulhamid Rabiu Esq. is dated the 27th day of May, 2009 and filed the 1st day of June, 2009. The 1st Respondent’s Brief of Argument dated the 16th/09/2009 and filed the 07th/09/2009 vide motion on Notice dated 16/9/2009 and filed the 17/9/2009. The Brief of Argument of the 2nd Respondent is dated the 06/10/2009 and filed the 07/10/2009 by a deeming order of this court vide motion on Notice dated the 06/10/2009 and filed the 07/10/09. That of the 3rd to 5th Respondents is dated the 23/11/2009 and filed the 24/11/2009. It was deemed filed on the 10/3/2010 vide motion on Notice filed the 24/11/2009. The Appellants filed a Reply Brief dated and filed the 10/3/2010.

At the hearing of this appeal on the 23/03/2011, counsel adopted their respective briefs of argument.

In the Appellants” Brief of Argument, three (3) issues were formulated from the six (6) Grounds of Appeal set out in the Notice of Appeal. They are as follows:-

1. Whether, judging from the Defendants’ claim of past ascendancy to the throne of Olusi of Usi, was not challenged and whether the learned trial judge make (sic) any or proper findings on the evidence of the plaintiffs’ witnesses.
2. Whether the 3rd defendant has the power to vary the custom and tradition of the people in making a chieftaincy declaration and whether the chieftaincy declaration of Usi-Ekiti made by the 3rd Defendants was validly made.
3. Whether the evidence in this case was properly evaluated and whether the plaintiffs succeeded in proving their case.

All the Respondents adopted the issues raised by the Appellants for the determination of this court in their respective briefs of argument.

I have carefully read and reflected on the issues formulated by the Appellants, which have been adopted by the Respondents as the issues that arise for determination in this appeal. A careful consideration of those issues would show that issues 1 and 3 are substantially similar. Both issues in my view essentially complain about the evaluation of the evidence and findings of fact made by the learned trial judge. In that regard, I shall consider the two issues, i.e. issues 1 and 3 together.