Adebayo Sosanya V. Engineer Adebayo Onadeko & Ors (2000)

LawGlobal-Hub Lead Judgment Report

ONALAJA, J.C.A.

The plaintiff at page 88 of the record of appeal in paragraph 23 of his amended statement of claim being its concluding paragraph sought against the 1st, 2nd, 3rd, 4th, 5th and 6th defendants the undermentioned reliefs:-

23 RELIEFS SOUGHT

(a) A declaration that the 1st defendant Engr. Adebayo Idowu Onadeko’s – purported nomination and selection as the Odemo of Isara, Isara, Remo, Ogun State of Nigeria is unconstitutional, illegal and contrary to the customary law and as such null, void, ultra vires and of no effect whatsoever.

(b) A declaration that the submission of the 1st defendant’s name to the kingmakers is null and void.

(c) A declaration that the non-submission by the Rokodo/Ogunsere ruling house of the plaintiff’s name to kingmakers as one of the candidates vying for appointment to the chieftaincy is ultra vires the ruling house, and illegal.

(d) A declaration that the 1st defendant is not qualified to be a candidate for appointment to the office or to be appointed as an Odemo of Isara, having regard,to the Customary law pertaining to the Odemo of Isara chieftaincy. An order in nature of mandatory injunction directing the Rokodo/Ogunsere to submit the name of the plaintiff to the kingmakers for consideration for appointment to fill the existing vacancy in the said chieftaincy.

(e) A declaration that the plaintiff being a qualified candidate is constitutionally entitled to vie, contest and be appointed as the Odemo of Isara, Remo, Ogun State of Nigeria.

(f) A perpetual injunction restraining the 2nd – 6th defendants, their servants, privies, agents, officials and assigns from parading the 1st defendant or holding out the 1st defendant as the newly appointed Odemo.

(g) An order of perpetual injunction restraining the 2nd – 4th defendants, their agents, servants, privies, officials and assignees (sic) from announcing, appointing and/or ratifying the 1st defendant as the Odemo of Isara, Isara, Remo, Ogun State of Nigeria.

(h) An order of this Honourable Court on the 2nd -5th defendants to take appropriate and fresh steps to comply with the Chiefs Law for the selection and appointment into the vacant position of the Odemo of Isara, Isara, Remo, Ogun State of Nigeria.

All the defendants were served individually with the writ of summons. The 1st, 5th and 6th defendants retained a joint legal practitioner who filed a joint statement of defence on their behalf.

Similarly 2nd, 3rd and 4th defendants went each served with the writ of summons after service they engaged the services jointly a legal practitioner who filed a joint of statement of defence on their behalf.

From the above, it was obvious that the parties filed, delivered and exchanged pleadings which were amended in the course of trial. At conclusion of the cases of the parties were based on amended pleadings which shall simply be referred to as statement of claim, statement of defence of 1st, 5th and 6th defendants. The statement of defence of the 2nd, 3rd and 4th defendants and reply to the statement of defence of 1st, 5th and 6th defendants.

To establish his case, plaintiff call his father to testify as 1st plaintiff’s witness. His brother testified as 2nd plaintiff’s witness and the 3rd plaintiff’s witness who was former clerk to the kingmakers of Odemo of Isara in April, 1986 to the vacant stool of the Odemo of Isara not the present vacant stool which appointment led to the action that led to this appeal. An attempt to tender a document through him was withdrawn. Unlike the 3rd plaintiff’s witness, many documents were admitted and marked as Exhibits A to M1 through 1st and 2nd PWS. The 1st and 2nd plaintiffs witnesses were rigorously and extensively crossexamined especially 1st plaintiff’s witness who double as plaintiff’s father and his star witness.

With the said 3 witnesses, the plaintiff who did not testify for himself concluded plaintiff’s case.

The 1st set of defendants called as 1st defence witness, the 5th defendant, the secretary of Ogunsere Ruling family who testified in details the procedure taken by the Ogunsere Ruling House through the nomination committee, set up by the family to facilitate nomination to the vacant stool had two members representing each branch Rokodo/Ogunsere Ruling House which comprised of the two members of Ukoyaade branch being plaintiff’s branch nominated and was represented by Messers. G.O. Olateju and W.O. Ogunmona, whilst the chairman of the nomination committee was Mr. S.O. Sogbetun. The said committee unanimously without dissenting voice from any member of the family recommended the 1st defendant Engineer Adebayo Idowu Onadeko as the candidate to fill the vacant stool of Odemo of Isara to Rokodo/Ogunsere Ruling House for ratification, later by the entire family. The notice of the meeting scheduled for 10th March, 1995 was given to the entire members and also to the Ikenne Local Government Officials, State Security Service (SSS). The Director of Personnel management and his officials were also invited to the entire family meeting of 10th March, 1995 which was to be held at Ogunsere Compound, for the filling of the vacant stool of Odemo of Isara.

On 10th March, 1995 at the said family meeting a roll call of members was taken. Each member present upon being called answered, gave his or her name and was recorded accordingly. As the sole purpose of the family meeting was to produce a consensus candidate already nominated by the nomination committee being 1st defendant, his name was put to the house for ratification, it was then 1st PW objected to the nomination and put up for the first time the plaintiff, his son, as a contestant.

In view of the nomination of plaintiff as a candidate, by 1st PW nominations were then called for 175 members of the family who were present nominated 1st defendant. There was no challenge to any member present as not being a member of the family.

The witness was rigorously cross-examined by learned Counsel to the plaintiff. He admitted the membership of plaintiff as belonging to Rokodo/Ogunsere Ruling House thereby qualified to contest as a candidate for Odemo of Isara vacant stool. The said family comprised nine branches which entire nine branches were present at the meeting of 10th March, 1995 as he ensured that they were all served with notice of the meeting, he rejected the suggestion that he did not serve notice of the meeting of 10th March, 1995 on all members of the nine branches of the family.

Under cross-examination by learned counsel for 2nd set of defendants he answered that it was 1st PW who raised objection which led to the casting of vote, that resulted in 175 votes cast in favour of 1st defendant. Plaintiff had three votes in his favour. His father, 1st PW, his uncle and plaintiff himself were the three votes in favour of plaintiff.

One Jamiu Osilaja an employee of Ikenne Local Government testified as 2nd defence witness. He was instructed by the Director, Personnel Management of Ikenne Local Government to attend the nomination meeting of Rokodo/Ogunsere Ruling House on 10th March, 1995 and to record the proceedings by video camera.

He videotaped the proceedings and produced the video tape eventually admitted and marked Exhibit N. He was cross examined and admitted he personally recorded the video recording.

The 3rd DW was the Secretary to Ikenne Local Government, which body is the competent council in respect of the recognised chieftaincy of Odemo of Isara. In his capacity as secretary he published and issued public notice to nominate a candidate to fill the vacant stool of Odemo of Isara, by Rokodo/Ogunsere, Ruling House, the notice was Exhibit D.

On 4th March, 1995 he received a letter of invitation marked Exhibit ‘G’ to a meeting summoned by Rokodo/Ogunsere Ruling House for 10th March, 1995 for the purpose of nominating a candidate to fill the vacancy.

He attended the said meeting of 10th March, 1995 as an observer. The first step was accreditation of membership of the members present at the meeting. The secretary to the ruling house called for nomination and Engineer Onadeko, 1st defendant was nominated, 1st PW then raised an objection. A vote was then taken. 178 persons were present, 3 person’s voted against the nomination of 1st defendant, whilst 175 persons voted in favour of 1st defendant. Witness stated he recorded his observation and instructed a video cameraman to record the entire proceedings.

He made notes of his observation admitted as Exhibit Q. At the end of the meeting, the minutes of the meeting recorded in Yoruba language by secretary of the Ruling House handed the original copy to 3rd DW who caused translation into English to be made by him. The original copy and the translation were admitted and marked Exhibits P and P1 respectively.

At the conclusion of the nomination exercise he forwarded the name to the kingmakers who later appointed 1st defendant as Odemo of Isara. The 4th defendant played no role in the exercise as it had none.

He was cross examined by learned Counsel for plaintiff. He admitted that as secretary to competent council he was conversant with the respondent declaration concerning the Odemo of Isara chieftaincy, which he confirmed to be Exhibit J. It provided for name or names of candidates to fill the vacant stool. He was aware that the Ruling House set up a nomination committee to collect names of candidates and selected a candidate. He would not know whether some persons regarded the meeting as the platform to appoint the vacant stool which was the role of the kingmakers. With this witness the defendants concluded and closed their cases.

After viewing of the video tape notes of it was made by the learned trial Judge which was read to the parties who agreed to the correctness of the notes.

The learned Counsel to the parties addressed the court exhaustively, after which the learned trial Judge delivered his considered judgment on 26th day of July, 1996 covered in pages 269 to 316 of the record of appeal. The learned trial Judge dismissed all the reliefs sought by the plaintiff but upheld that he had locus standi to institute the action.

The plaintiff being dissatisfied with the said judgment filed timeously his notice of appeal at pages 317 -323 of the record of appeal. Originally, plaintiff raised 15 grounds of appeal under Order 3 Rule 2 Court of Appeal Rules and furnished the particulars. With the leave of this Court he filed additional grounds of appeal altogether he filed 29 grounds of appeal, which with all respect contain incompetent grounds of appeal of raising grounds of misdirection and error in law contrary to Order 3 Rule 3(2) Court of Appeal Rules that:-

“Order 3 Rule 3(2):-

If the grounds of appeal alleged misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated”.

Judicially interpreted in Nwadike v. Ibekwe (1967) 4 NWLR (Pt.87) 718 SC; Military Governor of Imo State v. Nwauwa (1997) 2 NWLR (Pt.490) 675 SC; Akaniwon v. Nsirim (1997) 9 NWLR (Pt.520) 255 CA; Loke v. Inspector General of Police & Ors (1997) 11 NWLR (Pt.527) 57 CA; Abdullahi v. Raji (1998) 1 NWLR (pt.534) 481 CA; Akanbi v. Raji (1998)12 NWLR (pt.57) 360:CA; Adenibi v. Laojo (1998) 4 NWLR (pt.544) 168 CA; Free Enterprises (Nig.) Ltd: v. Global Transport Oceanico S.A. (1998) 1 NWLR (Pt.532) 1 CA; United Agro Ventures Ltd. v. FCM Bank Ltd. (1998) 4NWLR (pt.547) 546 CA; Obala of Otan Aiyegbaju & 5 Ors v. Chief Joseph Adesina (Head of Olasuka Ruling House) and Two Ors (1999) 2 NWLR (Pt.590) 163 at 179 SC; Boni Guda & Ors v. Jumbo Kitta (1999) 12 NWLR (Pt.629) 21 CA; Jamiyu Aliyu & 2 Ors v. Stella Taiye Aturu (1999) 7 NWLR (Pt.612) 536 CA, that a ground of appeal cannot contain misdirection and error in law in the same ground of appeal. The plaintiff is hereinafter referred to in this judgment as the appellant.

The appellant’s grounds of appeal are prolix, verbose, repetitive and framed as averments in pleadings. Although it is trite law that there is no limitation of grounds of appeal, prudence dictates that it is not the number of grounds of appeal or litany or deluge of grounds of appeal that determines the success of appeal or the counting of heads that determines the success of appeal but cogent, articulate and sound ground couched and framed within the provisions of Order 3 Rule (1)(2)(3) sub rule 3(2). The grounds of appeal could have been more elegantly drawn with avoidance of duplicity, repetition, verbosity, and prolixity for this reason I have decided not to reproduce them.

Following the appellate procedure of brief writing that the issues for determination both by the appellant and respondent must be based on the ground of appeal whilst an issue may encompass one or two or three grounds of appeal, it is improper, and incompetent to formulate more issues than the grounds of appeal, as appellate courts frown on proliferation of issues.

From the verbose, and prolix 29 (twenty nine) grounds of appeal appellant framed the undermentioned issues at page 5 paragraph 2 in appellant’s brief of argument as the issues for determination in this appeal:-

Issues For Determination In This Appeal

2.1 The issues for determination in this appeal arising from the grounds of appeal and further grounds of appeal that would be filed with leave of this Honourable Court (which leave was granted) are as follows:-

1. Whether the learned trial Judge was correct in holding that paragraph 9 (i) and (ii) of the amended statement of claim which deals with the eligibility of the 1st defendant to be a candidate for the vacant stool was devoid of material particulars, or vague, or half hearted?
2. Whether the learned trial Judge was correct in holding that the evidence the 1st plaintiff witness gave in support of paragraph 9 (i)-(ii) of the amended statement of claim were not specifically pleaded and therefore went to no issue?.
3. Whether the learned trial judge was correct in his application of the decision in Sketch v. Ajagbemokeferi (1989) 1 NWLR (Pt.100) 678, or (1989) 2 SCNJ 131 – whereby he held that plaintiff has no right to lead evidence on any issue pleaded in a defence?.
4. Whether the learned trial Judge was correct in holding that the 1st defendant/respondent is eligible on the grounds that the issue of his eligibility was not raised until trial by the plaintiff/appellant?.
5. Whether the learned trial Judge was correct in saying that:-

It was tragic that the plaintiff has resorted to the same gimmick characteristic of most chieftaincy matters especially in this part of the country of disowning members of the same family who hitherto had been recognised as such?.

6. Whether the learned Judge was correct in holding that:

The only evidence before me was that of the 1st defendant witness tracing the descent-of the 1st defendant to Oba Ogunsere, and that he accepted that evidence when the 1st defendant witness infact gave no such evidence?.

7. Whether the learned trial Judge was correct in holding that:

on the evidence of the 1st defendant witness which he accepted as the only evidence and uncontradicted the 1st defendant was entitled to be nominated as a candidate to fill the vacant stool of Odemo of Isara?.

8. Whether the learned trial Judge was correct in holding that 1st defendant/respondent was duly nominated as a candidate to fill the vacant stool of Odemo of Isara?.
9. Whether or not the learned Judge was correct to have failed to deal with the legality or other-wise of setting up the nomination committee as done by the Rokodo/Ogunsere Ruling House and merely passing it off as convenient practice?.
10. Whether the learned trial Judge was correct in holding that the Rokodo/Ogunsere Ruling House Meeting of 10th March, 1995 was validly constituted?.
11. Whether the learned trial Judge was correct in holding that the Rokodo/Ogunsere Ruling House Meeting of 10th March, 1995 was fairly conducted?.
12. Whether the learned trial Judge was correct in holding that the right of the plaintiff/appellant to be considered as a candidate had not been denied?.
13. Whether the learned trial Judge was correct in holding that the nomination of the plaintiff/appellant by his Ukoyade/Seenu Branch was a Conditional proposal when it was not a plea raised by the defence.
14. Whether or not the learned trial Judge was correct in holding that 3rd and 4th defendants/respondents were not proper parties to the suit.

In accordance with the rules and practice of this court 1st, 5th and 6th defendants were served with appellant’s brief of argument. The 5th and 6th defendants after service of appellant’s brief of argument filed a joint respondents brief of argument. 1st, 5th and 6th defendants are herein-henceforth referred to in this judgment as 1st, 5th and 6th first (1) set of respondents. From their brief of argument they raised from the grounds of appeal the issues for determination at page 4 paragraph 1 as follows:-

Issues For Determination In This Appeal

With respect to learned Counsel for the appellant, she has raised overlapping of grounds of appeal as well as issues for determination that have resulted in duplicity of arguments and confusion.

Also, grounds 1,3,4,5,6,7,8,9,10,12,13 and 14 of the appellant’s grounds of appeal alleged errors of law and facts. It is trite law that a ground of appeal alleging both error of law and misdirection on facts is incompetent and should be struck out.

It is equally trite that issues for determination formulated from incompetent grounds of appeal should equally be struck out; for issues for determination must necessarily arise out of and be related to the grounds of appeal. See Hannah K. Agundo v. Mercy N. Gberbo (1999) 9 NWLR (Pt.617) 71. Holding 16 & 17 and it seems to us very clear from the decision of the Court of Appeal in Abdullahi v. Raji (1998) 1 NWLR (Pt.534) 481 that a complaint or error in law and facts is incompetent and can be struck out by the court suo motu under Order 5 rule 3 of the Court of Appeal Rules.We therefore respectfully submit that grounds of appeal Numbers 1,3,4,5,6,7,8,9,10,12,13 and 14 and arguments relating thereto ought to be struck out as incompetent.

However, in the unlikely event that we are wrong in our understanding of the law, it is respectfully submitted that the issues for determination by this Honourable Court are as formulated hereunder:-

3.01 MAIN ISSUE:

Whether in the matter of the nomination, selection and/or appointment of the 1st respondent for the vacant stool of Odemo of Isara the provisions of the Chiefs Law of Ogun State with regard thereto and the requirements of the Registered Declaration of the Odemo of Ishara Chieftaincy were complied with by the respondents, particularly with regard to:-

(a) Eligibility,

(b) Nomination and

(c) Appointment?

3.02 OTHER ISSUES

Whether the findings of fact as contained in the judgment of the lower court on the matter of eligibility, nomination and appointment to the stool of Odemo of Ishara were justified and supported by the facts before the lower Court,

3.03 Whether the appellant in the matter of eligibility, nomination and selection was denied that right to be considered as a candidate for the vacant stool of Odemo of Ishara or whether the appellant showed sufficient interest in the matter of his candidacy by merely showing that he was a member of the Ruling House?.

3.04 Whether the setting up and composition of the nomination committee set up by the Ruling House to prepare candidates for appointment to the vacant stool was wrong and violation of and inconsistent with the functions and responsibilities of the ruling house or whether it was ultra vires the Ruling House and therefore illegal?.

3.05 Whether the Rokodo/Ogunsere Ruling House’s statutory meeting of 10/3/95 summoned at the instance of Ikenne Local Government, 4th respondent, was validly constituted and the proceedings thereat fairly conducted, and the decision with regard to the appointment of 1st defendant as the new Odemo of Ishara valid and legal and complied with the Chief’s Law and the Registered Declaration of Odemo of Ishara Chieftaincy?.

3.06 Whether notwithstanding the appellant’s criticisms of the judgment of the lower court, the judgment was a correct and valid decision based on the evidence before the lower court, or whether a miscarriage of justice resulted from the judgment?.

Appellant served his brief of argument on the 2nd, 3rd and 4th defendants described as second (2nd) set of defendants. From now on they are named 2nd, 3rd and 4th defendants. 2nd set of respondents. They filed 2nd set of respondents brief of argument. In paragraph 4 page 5 of their brief of argument from the grounds of appeal filed by appellant they raised the issues for determination as follows:-

4. ISSUES FOR DETERMINATION

4.1 Having regard to the grounds of appeal filed in this matter the following issues arise for determination.

(a) Whether the learned trial Judge rightly discountenanced the evidence of the plaintiff/appellant on the genealogy of the 1st defendant/respondent?.

(b) Whether the nomination and appointment of the 1st respondent as the Odemo of Isara is in accordance with the Chiefs Law (Cap. 20) Laws of Ogun State 1978 and the relevant Odemo of Ishara Chieftaincy Declaration made pursuant to it?.

(c.) Whether the 3rd and 4th defendants/respondents are proper parties to the suit?.

Before further consideration of the appeal, 1st set of respondents in paragraph 2.01 of their brief of argument urged this court to consider the basic contentions of the appellant in paragraphs 1 – 3, 6 -21 and 23 in paragraph (3) appellant’s brief of argument.

As already stated above in this judgment the method in which the grounds of appeal are couched as error in law and in fact are contrary to Order 3 rule 3(2) Court of Appeal Rules need to be revisited especially as grounds 1,3,4,5,6,7,8,9,10,12,13 and 21 were grounds of error in law and fact, thereby in view of the catalogue and deluge of legal authorities were they competent ground?

The attitude of the Supreme Court and the Court of Appeal on the matter are reflected in the following cases:-

(a) Paul Nwadike & 2 Ors. v. Ibekwe (1987) 4 NWLR (Pt.67) 718

A ground of appeal cannot be an error in law and a misdirection at the same time, as the appellants’ grounds clearly postulate. By their very nature, one ground of appeal cannot be the two. For the word ‘misdirection’ originated from the legal and constitutional right of every party to a trial by Jury to have the case which he had side either in pursuit of in defence fairly submitted to the consideration or the tribunal.

(b) Dokun Ajayi Labiyi (Representing Labiyi Family) v. Alhaji Mustapha Moberuagbo Anretiola & Ors (1992) 8 NWLR (Pt.258)139 (For himself and on behalf of Anretiolo family, Hero.) wherein it held:

(13) A ground of appeal which alleges a misdirection differs from and is in fact mutually exclusive of, one which alleges an error in law. This is because a misdirection relates to the court’s statement of a party’s case whereas, an error relates to the determination by the court. Nwadike v. Ibekwe (1987) 4 NWLR (pt.67) 718 referred to.

(c) Alice Chiatogu Amadi (substituted by order of court for Lawrence A. Amadi (deceased) v. Charles Orisakwe and two Ors (1997) 7 NWLR (pt.511) 161 CA held that:-

(4) A ground of appeal which alleges an error in law and misdirection on the facts is not a good ground. It is incompetent because by its nature one ground of appeal cannot be both an error in law and a misdirection on the fact Nwadike v. Ibekwe (supra), Bereyin v. Gbodo (1989) 1 NWLR (Pt.97) 372; Uor v. Loko (1988) 2 NWLR (pt.77) 430 referred to, Akpan v. Otong (1996) 10 NWLR (Pt.476) 108; Oladoye v. Administrator, Osun State (1996) 10 NWLR (Pt.476) 38 SC, all the above authorities were referred to and applied Sunday Oyebadejo v. Ramoni Olaniyi & 2 Ors. (2000) 5 NWLR (Pt.657) 485Grounds 1,3,4,5,6,7,8,9,10,11,12,13 and 21, of appellants grounds of appeal as framed and couched alleged error in law and misdirection of facts. After an indepth consideration of the above listed grounds of appeal they raised complaints of error in law and misdirection the method runs contrary to Order 3 Rule 3(2) Court of Appeal Rules interpreted from line of authorities that a ground of appeal cannot be an error in law and a misdirection of fact at the same time such ground is incompetent. Afortiori the above listed grounds of appeal are incompetent, they are hereby struck out.

In Nwadike v. Ibekwe (supra), Bereyin v. Gbodo (supra) it was held that an incompetent ground of appeal cannot be argued together, the incompetent ground contaminates the valid ground they are liable to be struck out as adopted in Idaayor & Anor v. Chief Sampson Tigidam (1995) 2 NWLR (Pt.377) 359 CA, African Continental Bank Plc. v. Eagle Super Pack Nig. Ltd. (1995) 2 NWLR (Pt.379) 590. As a result issues 1,3,5,6,7,8 and 9,10,11 and 12, 13 argued the following grounds of appeal:-

(i) Issue 2 based on grounds 4 and 16

(ii) Issue 3 based on grounds 3 and 19

(iii) Issue 5 based on grounds 14 and 21

(iv) Issue 6 based on grounds 1 and 22

(v) Issue 7 based on grounds 6 and 24

(vi) Issues 8 and 9 based on grounds 5,7,11,13 and 23

(vii) Issues 10, 11, and 12 based on grounds 12,25,26 and 28

(viii) Issue 13 based on grounds 8,9,10,12,14 and 27

having been argued with incompetent grounds of appeal based upon Nwadike v. Ibekwe (Supra); Bereyin v. Gbodo (supra) Idaayor v. Tigidam (supra); ACB v. Eagle Super Pack Nig. Ltd. (supra) are hereby struck out with the appeal sustained on the omnibus ground 15 that the judgment is against the weight of evidence which is permissible under the rule in Ezebilo Abisi & Ors. v. Vincent Ekwealor & Anor. (1993) 6 NWLR (pt.302) 643 at 674 per Ogundare, J.S.C. The objections of the 1st set of respondents to the listed grounds of appeal as incompetent with the issues based and argued on them are sustained, striking them out (supra) is hereby affirmed and confirmed.

The method of formulating the grounds of appeal and the issues based upon them by the appellant reinforces the importance of brief writing which cannot be too much over emphasised and to re-echo the words of wisdom of Eso, J.S.C in Engineering Enterprises of Niger Constractor Co. of Nigeria v. A. G. Kaduna State (1987) 2 NWLR (Pt.57) 381 at 396-397 confirmed by Ogundare, J.S.C in Abisi & 4 Ors v. Ekwealor (supra) and that there is no excuse for learned Counsel since the inception of brief writing in our appellate courts to still present inelegant brief, the showing of appellant’s brief writing re- emphasise the case of continuing legal education for practicing members of the legal profession.

Notwithstanding the inelegant brief by the appellant that will not prevent or deter this Court from living up to its committal of doing substantial justice. Afterall, a bad brief is still a brief though a bad brief. The attitude of the court is to admonish counsel who wrote bad brief.

Be that as it may, in view of our comments about appellant’s brief our choice of adoption for consideration of the issues is limited to the 1st and 2nd sets of respondent’s briefs of argument more especially as appellant did not file reply briefs to respondents’ briefs.

After a further and cool calm view of respondents’ briefs the issues for determination framed by them are further encompassed as follows by this Court:-

(1) Whether having regard to the pleadings, evidence adduced based on the pleadings, the provisions of Chief’s Law Cap 20, Ogun State the learned trial Judge was right to have refused and rejected all the reliefs sought by the appellant except upholding the locus standi of appellant, the 3rd and 4th defendants/respondents?.

(2) Whether the learned trial Judge in refusing the reliefs sought by the appellant exercised his judicial discretion properly, judicially and judiciously?.

It is common ground that the Odemo of Isara Chieftaincy was vacant the qualification and procedure to fill the vacant stool are set out in sections 14(1) and 15 Chiefs Law.Cap 20 Laws of Ogun State of Nigeria with the relevant sections set out as follows:-

“Section 14

Sub(1) A person shall unless he is disqualified, be qualified to be a candidate to fill a vacancy in a recognised chieftaincy if

(a) he is proposed by the ruling house or the persons having the right to nominate the candidate according to customary law and

(b)(i) he is a person the ruling house or the person having the right to nominate candidates are entitled or propose according to customary law as a candidate or

(ii) he is unanimously proposed as a candidate by the members of the-ruling house of the persons entitled to nominate candidates

(2) No person shall be qualified to be a candidate for a recognized chieftaincy who

(a) suffers from serious physical infirmity or

(b) has under any law in force in Nigeria been found or declared to be a lunatic or adjudged to be of unsound mind or

(c) has in any part of the commonwealth

(i) been sentenced to death or imprisonment for a term exceeding two years or

(ii) been convicted of an offence involving dishonesty and sentenced to imprisonment therefore

and has not been granted a free pardon.

15(1) Where a vacancy occurs in a ruling house chieftaincy and a declaration has effect with respect to that chieftaincy

(a) the secretary of the competent council shall announce the name of the ruling house entitled according to customary law to provide a candidate or candidates as the case may be to fill that vacancy

(b) not later than fourteen days after the announcement by the secretary, the members of the ruling house acting in accordance with the declaration, shall submit the name of a candidate or the names of candidates as the case may be to the kingmakers”.

The above was the stage reached in the process of filling the vacant stool of Odemo of Isara when the appellant sought the reliefs of the High Court for declaratory orders and injunctive orders.

Under Ogun State High Court (Civil Procedure) Rules Order 23 rule 5 states-

“No action or proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court may make binding declarations of right whether any consequential relief is or could be claimed or not”.

The jurisdiction of the court to make a declaration under the rule is very wide and only limited by its own discretion. A party claiming declaratory relief has the burden of proof under sections 135, 136 and 137 of the Evidence Act, Cap 112, Laws of the Federation of Nigeria 1990, judicially interpreted that the plaintiff must succeed on the strength of his own case and not the weakness of the defendant’s case, as the burden on a defendant who has not set up a counter-claim, is just to defend the action no more no less Gankon v. Ugochukwu Chemical Industries Ltd. (1993) 6 NWLR (pt.297) 55 SC, Adelaja v. Fanoiki (1990) 2 NWLR (Pt.131) 137 SC, Ayoola v Odofin (1984) 2 SC 120; Woluchem v. Gudi (1981) 5 SC 291 all followed and adopted in Lawrence Elendu & 5 Ors. v. Felix Ekwoaba & Ors. (for themselves and as representing the Ezire (formerly Umuopuk-Para) Development Union) (1995) 3 NWLR (pt.386) 704 at 745 CA.

The exception to the rule that a plaintiff must succeed on the strength of his case and not the weakness of the defence in a declaratory action occurs where the facts in a defendant’s case supports the plaintiffs case. The plaintiff can use those facts in the defendant’s case that support’s his case to establish or prove plaintiff’s case. Akinola v. Oluwo (1962) 1SCNLR 352, (1962) 1 All NLR 224, Edokpolo v. Asemota (1994) 1994) 7 NWLR (Pt.356) 314 at 327; Gankon v. Ugochukwu Chemical Industries (supra); Ogunro v. Arowolo (1998) 6 NWLR (Pt.552) 78. CA; Usman v. Joda (1998) 13 NWLR (Pt.582) 374 CA; Ebe v. Nnamani (1997) 7 NWLR (pt.513) 479 CA; Edokplor & Co. Ltd. v. Bendel Industry Co. Ltd. (1997) 2 NWLR (pt.486) 131 SC.

A declaratory judgment is discretionary at the instance of the judge with the power to be exercised liberally by the judge exercising his discretion judicially and judiciously. It is a form of judgment which should be granted only in circumstances in which the court is of the opinion that the party seeking is, when all facts are taken into full account and consideration he is entitled to the exercise of the court’s judicial discretion in his favour. Onuoha v. Okafor (1983) 2 SCNLR 244, Ekwunno v. Ifejika (1960) SCNLR 320; Egbunike V. Muonweokwu (1962) 1 SCNLR 97; Dr. Iragunima v. Mrs. Uchendu (1996) 2 NWLR (Pt.428) 30 CA; Ibenemeka v. Egbuna (1964) 1 WLR 219 Privy Council.

Under our adversarial system of jurisprudence is the fundamental rule of natural justice of audi alteram partem meaning Hear the other side, no one should be condemned unheard which has ripen into our civil procedure or the rule of pleading that every pleading shall contain a statement of all the material facts on which the party pleading relies but not the evidence by which they are to be proved, such statement divided into paragraphs numbered consecutively and each paragraph containing as nearly as may be a separate allegation. The material facts shall be alleged positively, precisely and distinctly consistent with a clear statement. The pleading must contain a statement of all material facts only, which will put the other party on his guard and tell him all that he will have to meet at the time the case comes up for trial. This is to avoid the other party groping in the dark and to avoid the element of surprise. Lewis & Peat (NRI) Ltd. v.Akhimien (1976) 7 SC 157; (1976) 1 All NLR (Pt.1)460; Chief Mrs. Faderera Akintola & Anor. v. Mrs. Dedeke Solano (1986) 2 NWLR (Pt.24) 598 SC; Onyero v. Nwadike (1996) 9 NWLR (Pt.471) 231 CA.

The main function of pleading which is the life wire and cornerstone under our civil process is to focus with much certainly as far as possible the various matters actually in dispute between the parties by not pleading evidence, that has led to the principle of law that both the courts and the parties are bound by facts pleaded whilst unpleaded facts go to no issue. Abimbola George & Ors v. Dominion Flour Mills Ltd. (1963) 1 SCNLR 117; (1963) 1 All NLR 71 at 77, Ferdinand George & Anor. v. UBA Ltd. (1972) 8 – 9 SC 264; Morinatu Oduka & Ors. v. Kasumu & Anor. (1968) NMLR 28. As stated above material fact is to be pleaded. What is material fact was stated by Cotton L.J in Philips v. Philips (1874) 4 QBD 127 that:-

“The word ‘material’ means necessary for the purpose of formulating a complete cause of action and if anyone material statement is omitted the statement of claim is bad”Appellant challenged and attacked the judgment of the learned trial Judge that paragraph 9(i) and (ii) of the amended statement of claim which dealt with eligibility of the 1st respondents in 1st set of respondent to be a candidate for the vacant stool was ‘devoid of material particulars’ or ‘vague or half hearted’ was erroneous as the particular material was that 1st respondent was not eligible as a candidate, as he descended from a sister of Ogunsere which was sufficient averment. As it was an issue of evidence, it was not to be pleaded as decided in Oduka & Ors. v. Kasumu & Ors. (1968) NMLR 28 at 31 per Coker, J.S.C and Atolagbe v. Shorun (1985) 4 SC (Pt.11) 250 at 265; (1985) NWLR (Pt.2) 360. This point was erroneously taken suo motu by the learned trial Judge without affording hearing on the point by learned counsel to the parties contrary to the decision by Niki Tobi, J.C.A in Ajikawo v. Ansaldo (Nig.) Ltd. (1991) 2 NWLR (Pt.173) 359 at 372-373.

As respondents did not complain about the vagueness nor ask for further particulars, appellant was right to have led evidence in the manner he did. Having erroneously held on the eligibility of the 1st respondent the Court of Appeal should set aside the judgment as the issue is fundamental to the nomination of 1st respondent.

The respondents’ arguments were similar that as the issue raised the eligibility, qualification and nomination of 1st respondent, appellant did not specifically plead sufficient facts as to the ancestry and genealogy of 1st respondent.

Apart from appellant’s pleadings and evidence led at the trial throughout the process of nomination, screening, selection and appointment of 1st respondent as Rokodo Ogunsere Ruling House as the family candidate no one or other ruling Houses or any individual son of Isara Remo raised objection to the descent or eligibility of 1st respondent to the vacant stool of Odemo of Isara. The appellant, his father 1st PW, or appellant’s brother, and the whole of Ukoyade/Seanu Branch (appellant claimed to belong) raised no objection to the eligibility of 1st respondent. It was at the meeting of 10th March, 1995 that 1st PW nominated his son, the appellant, for the first time. As the nomination was supported by appellant’s brother forced voting to be taken. Part of 1st PW’s evidence at pages 187, 188 and 189 of the record of appeal are hereby set down as follows, which were extracted under cross examination:-

Page 187 lines 10-15 he stated –

“The first general meeting of Ogunsere Ruling House of 5/3/94 was convened by me. I was present at that meeting which was attended by members of Rokodo/Ogunsere Ruling House. I agree with you that at that meeting it was agreed that necessary machinery for a nomination of a candidate to fill the vacant stool of Odemo of Ishara be put in motion”.

Page 187 lines 23 – 30 he went on:-

“The Nomination committee set up by the Ogunsere family came into existence as a result of a message from the Kingmakers that Ogunsere family should provide the candidate to fill the vacant stool of Odemo of Ishara;”

At page 189 lines 3-11 he further said –

“It is perfectly true that at that general meeting of 5/3/94 the Rokodo/Ogunsere Ruling House decided that the family would, like to put forward one of their best princes. It is true that it was as a result of the excellent performance of Oba Rokodo that his btother was appointed to succeed him. That situation was peculiar to Rokodo/Ogunsere Ruling Excellency as our forbears that Rokodo/Ogunsere House. It was for the purpose of selection candidate who would perform excellently as our forebears that Rokodo/Ogunsere Ruling House established a nomination committee”.

Page 189… 1st PW stated

Mr. Amos Sosanya is my brother. He attended the general meeting of 10/3/93 where the nomination took place. Nobody proposed the name of the plaintiff at the meeting of 10/3/93. At the meeting of 10/3/95 the name of the 1st defendant was proposed and the proposal was supported.

(Italics furnished).

Still on the issue of eligibility and or qualification appellant’s father as 1st PW under cross examination at pages 188-9 of the record of appeal stated as follows:

“I know as a fact that before the nomination of a candidate may be acceptable that candidate must satisfy certain conditions. I agree that one of such conditions is that the candidate must not have suffered any mental sickness, I also know that he should not have been convicted under any circumstances for an offence involving dishonesty. I agree with you that the candidate should not suffer any physical infirmity. I agree with you that according to the custom of Isara, he should not have a scar on his head as a result of matchet cut”.

It is pertinent and common ground that 1st respondent satisfied all the above conditions precedent, before he was even accepted as a candidate. It is common ground that the Nomination Committee which was set up with full consent and collaboration of appellant, his father 1st PW, his brother and uncle were present at the meeting when 1st respondent after fulfilling all the conditions precedent was accepted as the only candidate for the vacant stool was then passed on to the entire family for ratification at the meeting of 10th March, 1995. It was the name of the candidate approved by the entire family that was to be dispatched to the Kingmakers of Isara for appointment of Odemo of Isara. It is common ground that the Rokodo/Ogunsere Ruling House summoned meeting at its family House by notices issued by the secretary of the family of 1st DW for 10th March, 1995 for the sole purpose of selecting the candidate to fill the vacant stool of Odemo of Isara. At the meeting following the unanimous decision of the nominating committee of the Ruling House, the 1st respondent’s name was proposed and seconded. It was then 1st PW who nominated the appellants which was seconded by another member of his family.

As a result, the meeting was forced to a division which was to be resolved by voting. It is common ground that 178 members of the ruling house? were present at this crucial meeting. It is also common ground that a roll call of the members of the family was taken and was unanimously agreed that 178 members of the family were present. As a result of appellants nomination it was resolved to decide by voting.

It is common ground that the result of the voting was that 175 members voted for 1st respondent whilst 3 members namely appellant’s father 1st PW, appellant’s uncle and his brother voted for him.

It is pertinent to state that the proceedings of the meeting was video taped and showed in court in presence of the learned trial Judge, learned counsel to the parties and the parties. A note of the video tape was recorded by the learned trial Judge and read in open court after which learned Counsel to the parties agreed to the correctness. The video tape was admitted and marked as Exhibit. That the Secretary to Ikenne Local Government played the role of an observer at the meeting of 10/3/95.

Appellant contended that he was denied fair hearing, as the nomination committee was illegal and unconstitutional as it was not covered under the Chiefs Law. Also, he was denied fair hearing of insufficiency of time for nomination.

In encapsulation of issue 1 by this court the locus standi of the 3rd and 4th respondents and appellant were raised. It is trite law that once the locus standi of a party is raised it has to be considered first as it goes to the jurisdiction of the court and whether competent parties are before the court See: Gabriel Madukolu and Other (for themselves and on behalf of the Umuonala Family) v. Johnson Nkemdilim (1962) 1 All NLR (Pt.1) 587; (1962) 2 SCNLR 341; Tijani Bambe & Ors v. Alhaji Yusufu Adetunji, Aderiola & Ors (1977) 1 SC 1, Boni Guda & 2 Ors. v. Jumbo Kitta (1999) 12 NWLR (Pt.629) 21. In the instant appeal, there is no appeal against the locus standi of appellant, the complaint is as to the striking out of 3rd and 4th respondents as not proper parties to the action.

In consideration of necessary parties the starting point is the celebrated case of Devlin J. (as he then was) in Amon v. Rapheal Tuck & Sons Ltd. (1956) 1 QB 357 at 380, applied and treated at pages 136 to 139 of Commentaries From The Bench Part 11 by Onalaja, J.C.A. and stated thus:-

“What makes a person a necessary party? It is not of course merely that he has relevant evidence to give on some of the questions involved, that would only make him a necessary witness. It is not, merely that he has an interest in the correct solution of some questions involved and has thought of some relevant arguments to advance and is afraid that the- existing parties may not advances them adequately… the duty reason which makes it necessary to make a person a party to an action is so that he should be bound by the result or the action and the question to be settled. There must be a question in the action which cannot be effectually and completely settled, unless he is a party”. Klifco Ltd. v. Philip Holzmann AG (1996) 3 NWLR (Pt.436) 276. (Italics is mine)Appellant submitted that the striking out of the 3rd and 4th respondents were improperly struck out by the learned trial Judge. They were joined to see action as under Ogun State Chiefs Law, the State Government and Local Governments have respectable roles to play in the process of filling the vacant stool of Odemo of Isara, as they joined issues with appellant they made themselves full and real parties. They ought not to have been struck out.

For the respondents, it was conceded that under the Chiefs Law 3rd and 4th respondents had roles to play but in the pleadings no allegation was made against them. In any event, they had no role to play in the nomination and appointment exercise. In a situation as decided in Oba Orioge v. Governor of Ondo State (1982) 3 NCLR 349 at 374 where all the allegations made were against the Executive or Military Governor who has been made a party in the action it was not necessary to join the Attorney General with the Governor. In the instant case, it was wrong to join the Attorney General. The lower Court was right when no allegation or valid or sustainable dispute was made against it. So the appeal against striking out the 3rd and 4th respondents lacked substance.

Pains were taken in body of this judgment to emphasise the importance of pleading in our civil process as both the court and parties are bound by the pleadings as it is not permissible to go outside the pleadings.

In the amended statement of claim, appellant averred as follows:-

“4. The 3rd defendant is the Chief Law Officer of the state.

5. the 4th defendant is the Council under the Chiefs Law responsible for Chieftaincy matters in the Local Government Council designated as competent by the 2nd defendant.
6. The plaintiff avers that on or about 23rd February, 1995, the 4th defendant purporting to act through Michael Ogunbodede, Secretary/Director, Personnel Management, Ikenne Local Government issued a public notice in compliance with the provisions of the Chiefs Law Cap 20 Laws of Ogun State of Nigeria 1978 and a declaration made under section 4 (2) of the Chiefs Law 1957 and the Customary Law regulating the selection of the Oba Odemo of Isara Chieftaincy. The said public notice dated 23rd February, 1995 is hereby pleaded and will be relied upon at the trial of the case”.

At pages 315 and 316 of the record of appeal the learned trial Judge referred to paragraphs 4 and 5 of the amended statement of claim. Based on the averments he concluded that 3rd and 4th respondents were not necessary parties having not considered or adverted his attention to paragraph 13 of the amended statement of claim was befogged, in that the averment in paragraph 13 sets the nomination and eligibility of the candidate in motion as provided in Section 4(2) and under section 15(1) and sub rules (a), (b) and (d) of Chiefs Law Cap 20 aforesaid.

“15(1)(d) It shall be lawful for the secretary to attend as an observer any meeting of the ruling house mentioned in sub paragraphs (b) and (c) of this subsection upon directives issued in that behalf by the ommissioner for Local Government and Chieftaincy Affairs”.

Appellant challenged the validity of the notice required under Section 15 aforesaid. The issue could not be resolved effectually and completely unless the 4th respondent was a party. As the striking out of the 4th respondent was based on wrong and unsound principle of law the complaint of the appellant about the striking out of 4th respondent is meritorious the order striking out 4th respondent not being a necessary party is hereby set aside that 4th respondent is a necessary party. With respect to learned Counsel to appellant about the striking out of 3rd respondent lacks substances as no joinder of dispute was pleaded against it. The decision striking out 3rd respondent is affirmed as it is not a necessary party.

From the pleadings and evidence adduced in court, the learned trial Judge concluded that all the necessary steps required under sections 14 and 15(1)(a),(b) and (d) Chiefs Law were properly conducted and confirmed the proper nomination and eligibility of 1st respondent as the fit and proper candidate to be sent to the Kingmakers to be appointed to fill the vacant stool of Odemo of Isara.

The complaint of appellant about nomination of the 1st respondent by the Nomination Committee was baseless in that the idea of having a nomination committee was the brain wave of 1st PW, the father of appellant. It is common ground that at the Nomination Committee meeting though 1st PW was present it was only the 1st respondent that was unanimously nominated as the only candidate to be recommended to the entire family for ratification. Nobody suggested or recommended appellant as a candidate at the nomination committee meeting of 5th March, 1995 held in 1st PW’s house.

On 10th March, 1995 the entire family based on the notice of the meeting to select the candidate already found to be eligible by the nomination committee was to be ratified by the family. It was at meeting of 10th March, 1995 of Rokodo/Ogunsere Ruling House with 178 members present and 1st respondent was put forward as the only eligible candidate to fill the vacant stool of Odemo of Isara that appellant’s father, 1st PW, nominated appellant and having been seconded by appellant’s brother a division was made to be resolved by casting of vote.

It is common ground that the proceedings of 10th March, 1995 was video taped, the video tape was admitted as Exhibit N. After viewing a summary note was made by the learned trial Judge accepted by all parties to be correct. It was also agreed and on common ground that 1st respondent scored 175 votes in his favour as the rightful candidate without dissension about his eligibility as a member of Rokodo/Ogunsere Ruling House. Appellant scored 3 votes mainly from his nuclear family being his father 1st PW, his uncle and brother.

After the nomination of appellant by 1st PW and seconded with a decision to resolve by voting of all members of the family present, the complaint of the appellant about breach of natural justice is devoid of any substance and grossly misconceived.

Section 151 Evidence Act Cap 112 Laws of the Federation of Nigeria 1990 provides as follows:-

“151 When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing”.

was popularised by the celebrated decision of Lord Denning in ‘The High Trees Case’ Central London Property Trust Ltd. v. High Trees House Ltd. (1947) KB 130, (1956) 1 All ER 256. The discipline of Law pages 199 to 223, wherein Lord Denning MR. concluded as follows:-

“It is a principle of justice and equity. It comes to this: When a man, by his words or conduct, has led another to belief that he may safely act on the faith of them – and the other does act on them – he will not be allowed to go back on what he has said or done when it would be unjust or inequitable for him to do so”.

Nearer home, in Nigeria the Supreme Court judicially interpreted Section 151 Evidence Act that the section states the principle governing estoppel by conduct in Joe Iga and Ors v. Ezekiel Amakiri & Ors (1976) 11 SC 1, 12-13 thus:

“Thirdly, if a man whatever his real meaning may be, so conduct himself that a reasonable man would take his conduct to mean a certain representation of facts and that it was a true representation and that the latter was intended to act upon it in a particular way, and he with such belief, does act in that way to his damage, the first is estopped from denying the facts as represented”.1st PW, appellant’s father testified that the idea of setting up the nomination committee was his brain wave

The first general meeting of Ogunsere ruling house of 5/3/94 was convened by me. I was present at that meeting attended by members of Rokodo/Ogunsere Ruling House. I agree with you that at that meeting it was agreed that necessary machinery for a nomination of a candidate to fill the vacant stool of Odemo of Isara, be put into motion. At that general meeting of Rokodo/Ogunsere Ruling House, it was agreed that separate meetings of Rokodo family should be held and separate meetings of Ogunsere Family should be held. Such meetings were held at various times until the general meeting of Rokodo/Ogunsere Ruling House meeting of 10/3/95. (Italics mine).

1st PW also testified about the Nomination Committee by the ruling house at page 187 from line 23 under cross examination:-

The Nomination Committee set up by Ogunsere Family came into existence as a result of a message from the kingmakers that Ogunsere family should provide the candidate to fill the vacant stool of Odemo of Isara.

From the foregoing, the appellant is estopped by his conduct from complaining about the setting up of the nomination committee which was initiated by 1st PW, appellant’s father and the meeting of 5/3/95 wherein 1st respondent was the only candidate nominated was held under his roof and very eyes. 1st PW did not breathe a word that appellant was interested and be nominated, he kept the idea of appellant’s interest in his chest until the general meeting of 10th March, 1995.

Under Section 15 of Chiefs Law Cap 20 the ruling house may nominate a candidate, the challenge of appellant that the learned trial Judge endorsed the nomination lacks substance and appellant is estopped by his conduct to complain that nomination of a candidate was invalid. His complaint is unmeritorious and rejected.

From the foregoing on the encompassed issue 1 by this court the issue raised by appellant are issues of finding of fact by the trial Court:

The attitude of the appellate court like this appeal court is well settled that a Court of Appeal should be loathe to interfere with or reverse findings of fact made by a court of trial unless such findings are perverse. Indeed, the Court of Appeal should not disturb a finding of fact unless that court is satisfied that such finding is unsound. It is in the process of deciding whether the finding is sound or not that the Court of Appeal (because it does not see the witnesses) is left only to examine the grounds that led to the conclusion of the trial Court. In the instant appeal, appellant having by his conduct admitted that the nominating committee was established in 1st PW’S house; that it was the meeting in appellant’s father’s house of 5/3/95 that 1st respondent was nominated as the sole candidate without a single dissenting voice from any quarters or member of the family that this finding of fact by the learned trial Judge was borne out from evidence thereby, I hold that findings of fact were not perverse.

Also, it is common ground that the general family meeting of 10th March, 1995 that 1st respondent was recommended as the eligible candidate as a result of an election between appellant and 1st respondent wherein appellant scored 3 votes whilst 1st respondent scored 175 votes. By virtue of the result of the election 1st respondent was recommended as the sole candidate eligible to become the Odemo of Isara. That after careful consideration of the facts, I found the conclusion and findings of fact by the trial Court not perverse, leading to no legal justification to disturb as an appellate court the findings of fact by the lower Court. Ebba v. Ogodo (1984) 1 SCNLR 372; Abusomwan v. Merchantile Bank Ltd. (1987) 3 NWLR (Pt.60) 196; Adejumo v. Ayantegbe (1989) 3 NWLR (pt.110) 417; Nwokoro v. Nwosu (1994) 4 NWLR (pt.337) 172 CA; Elendu v. Ekwoaba (1995) 3 NWLR (Pt.386) 704 at 746-747 CA.

The result is after due consideration of the pleadings, evidence adduced based upon the pleadings, the provisions of Chiefs Law Cap 20 Ogun State, I reverse the finding of the learned trial Judge that 4th respondent was not a necessary party. I uphold the decision that 3rd respondent was not a necessary party. I find no legal basis to disturb the other findings of fact by the trial Judge. Issue 1 encompassed by this Court is resolved against appellant leading to dismissal of the appeal except that the appeal is allowed that the lower Court was in error to have struck out 4th respondent as an unnecessary party whereas, it was a necessary party to set the machinery in motion for filling the vacant stool of Odemo of Isara under sections 4.,14 and 15 Chiefs Law Cap 20 of Ogun State.

As stated above, appellant sought declaratory and injunctive reliefs which are to be granted or refused by the court acting judicially and judiciously. Being exercise by the lower court of judicial discretion the attitude of the appellate court towards exercise of judicial discretion is well settled and crystalised in the rule of University of Lagos & Ano. v. N. Aigoro (1985) 1 NWLR (pt.1) 143 SC; Elendu v. Ekwoba (1995) 3 NWLR (Pt.386) 704 at 749 CA.

The law is that except upon grounds of law an appellate Court will not reverse a discretionary order of a trial Court merely because it would have exercised the discretion differently. But if on other grounds the order will result in injustice being done or if the discretion was wrongly exercised, in that due weight was not given to relevant consideration the order may be reversed Saffieddine v. C.O.P. (1965) 1 All NLR 54; Enekebe v. Enekebe (1964) 1 All 102; Awani v. Erejuwa II (1976) 11 SC 307; Odusote v. Odusote (1971) 1 All NLR 219.It is well settled that if judicial discretion is exercised bonafide by a lower court uninfluenced by irrelevant considerations and not arbitrary or illegal, the general rule is that an appellate court will not ordinarily interfere.

An appellate court may interfere with the exercise of judicial discretion if it is shown that there has been a wrongful exercise of the discretion such as where the tribunal acted under misconception of law or under mis-apprehension of fact that it either gave weight to irrelevant or unproved matter or it omitted to take into account matters that are-relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases, where it is in the interest of justice to interfere. See: University of Lagos & Anor v. M. I. Aigoro (1985) 1 NWLR (Pt.1) 143 SC. As stated above in this judgment the lower Court or the learned trial Judge after consideration of all the facts concluded that appellant was not entitled to the grant of the declaratory and injunctive orders. Applying the above principle of law as to the exercise of judicial discretion by a trial Judge by the appellate court that, exercise of judicial discretion in a particular case is not a precedent in a subsequent case if used as a precedent it deters and delimits the exercise of discretion, so whether judicial discretion has been exercised rightly or wrongly shall depend on the peculiar circumstances of each case.

In the peculiar circumstances and facts in the instant appeal after a cool calm view, consideration and sober reflection, I see no legal basis or justification to interfere with the exercise of judicial discretion by the learned trial Judge therefore the encompassed issue 2 by this court in coming to this conclusion the findings of fact and their application to the law are spring boards in assessing whether there had been wrongful exercise of judicial discretion or not, has resulted in resolving the issue 2 against appellant.

In conclusion for the reasons given above in this judgment, I affirm the judgment of Hon. Justice B. O. Ogunade delivered at Sagamu High Court on 26th day of July, 1996 by dismissing the said appeal except that I reverse the striking out of the 4th respondent by stating that it is a necessary party. Having succeeded the 1st, 5th and 6th respondents are entitled to cost which acting judicially and judiciously as appellant succeeded in part of his appeal. I fix the cost jointly in favour of 1st, 5th and 6th respondents in the sum of N5,000.00 (five thousand naira) against appellant.

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Other Citations: (2000)LCN/0826(CA)