Michael Oyediran Ajibi (for Himself and on Behalf of Kubonsi Family of Itasa) V. Joseph Olaewe & Anor (2002)
LawGlobal-Hub Lead Judgment Report
ADEKEYE, J.C.A.
This is a chieftaincy tussle, whereupon two different ruling houses nominated their respective candidates for the vacant stool of Onitile of Itasa – a town in the then Kajola Local Government Area of Oyo State, now Iwajowa Local Government. Two plaintiffs before the trial court in suit No. HSK/92/90 in the High Court of Oyo State-Saki Judicial Division – Joseph Olaewe and Joseph Ajibola Olanipekun, representing themselves and on behalf of Ilemola Ruling House of Itasa – sued Michael Oyediran Ajibi – himself and the Kubonsi Family of Itasa for the undermentioned reliefs:-
(a) Declaration that the defendant or any other member of Kubonsi family of Itasa is not by the tradition of Itasa entitled to be appointed and or installed the Onitile of Itasa.
(b) Declaration that only the family of Ilemola of Itasa is by tradition of Itasa entitled to provide the Onitile of Itasa.
(c) An injunction restraining the defendant from parading himself as the new Onitile of Itasa and from performing the functions of the Office of Onitile of Itasa.
Parties filed and exchanged pleadings.
The Itasa town was formerly referred to as Itile. The facts of the case as presented to the trial court were that Ilemola – the progenitor of the Ilemola ruling house – represented in the action by the plaintiffs came down from Oyo Oro to settle at Itasa following a chieftaincy dispute between him and his brother. He eventually became the first Onitile of Itasa. There were fifteen Onitiles after him – thirteen of them came from Ilemola family. The other two Onitiles came to rule by matter of coincidence. Olaitan Aroledolaye was made an Onitile because of his closeness to the Onitile in his lifetime. All members of Ilemola family who were eligible to the Onitile were young, when the Onitile died. He was invited to control the affairs of the town as an interim measure. The other Onitile by name was the Maye of Ayetoro, from where he was invited down”, to be installed Onitile because the people did not like Adesiyan, whose turn it was from Ilemola Ruling House. The last Onitile before the stool, became vacant in 1987, was Oyedokun Aganna Opo, who was frorn Ilemola Ruling House. It was the contention of the plaintiffs that it is only the Ilemola family of Itasa, who is entitled to provide and be installed as the Onitile. The defendant Michael Oyediran
Ajibi – on behalf of the Kubonsi family stated that there are two ruling houses in Itasa – the Ilemola and Kubonsi. The stool of Onitile was to date rotated between the two families. His family selected him, and he was presented to vie against Joseph Ajibola Olanipekun – who was candidate for Ilemola Ruling House. All the kingmakers alive then supported him. He was installed the Onitile by the entire people of Itasa on the 1st of April, 1989. Members of the Ilemola family were present at the ceremony. Following this members of Ilemola family in whose custody – the paraphernalia of office was handed over them to him. They were “Ara”, “Ida-Osa” and “Ago”.
The family celebrated the feast known as “Onje Omo Oye” for him, and this was a customary ceremony of handing over to him as the new Onitile of Itasa. His appointment as Onitile of Itasa is recognized under native law and custom though same is subject to the approval of the chieftaincy committee of the Kajola Local Government Council and recognition of the Executive Council. Meanwhile he has been called upon to perform the functions of the Onitile at local level. It was emphasised that two of the past Onitiles were not from Ilemola family – while he tendered documents as exhibits P3, P4, P5 and P6 to confirm that the Onitile Chieftaincy was rotational between the two families of Ilemola and Kubonsi. At the close of trial, the learned trial Judge in his considered judgment held in the penultimate paragraph, as follows:-
“In the result, the plaintiffs claim against the defendant succeeds in the following respects, and they are accordingly granted the following:-
(a) Declaration that the defendant or any other member of Kubonsi family of Itasa is not by the tradition of Itasa entitle to be appointed and/or installed as the Onitile ot Itasa.
(b) Declaration that only the family of Ilemola of Itasa is by tradition of Itasa entitled to provide the Onitile of Itasa.
(c) Declaration that the appointment of the defendant as the Onitile of Itasa is unlawful and it is therefore, null and void.
(d) An order of injunction restraining the defendant from parading himself as the new Onitile of Itasa and from performing the function of that office”. Vide pages 55-57 of the Record of Appeal.
As the defendant was dissatisfied with the judgment of the trial court, he appealed to this court. He shall from henceforth, be referred to as the appellant. The appellant in his notice of appeal filed ten grounds of appeal. Parties settled records and exchanged briefs in conformity with the Rules of the Court of Appeal. When the appeal came up for argument, the appellant in his amended brief distilled seven issues for determination from his ten grounds of appeal as follows:-
(1) Whether the plaintiffs established the case postulated by them in their statement of claim?
(2) From the evidence adduced in this case, can it be said that there is only one ruling house in respect of Onitile of Itasa minor chieftaincy?
(3) Whether exhibits P5 and P6 are not conclusive of fact that there are two ruling houses in respect of Baale Onitile of Itasa?
(4) Whether the plaintiffs/respondents are not stopped from contending that there is only one ruling house at Itasa in respect of Onitile minor chieftaincy?
(5) Whether the learned trial Judge was right, in granting a declaration that the appointment of the defendant as Onitile of Itasa is unlawful and therefore null and void when there was no such claim or relief by the plaintiffs before the trial court?
(6) Whether the learned trial Judge properly weighed and evaluated the totality of the evidence adduced by the parties in this case, before giving judgment to the plaintiffs and granting all the reliefs claimed by them.
(7) Whether the defendant (now appellant) has not established from the evidence on records before the lower court the evidence of two ruling houses namely –
(a) Ilemola ruling houses; and
(b) Kubonsi ruling house.in respect of Onitile of Itasa.
The respondents in their amended respondent’s brief formulated five issues for determination as follows:-
(1) Whether there is only one ruling house in respect of Onitile of Itasa chieftaincy.
(2) If there is only one ruling house, whether ascendancy to Onitile chieftaincy title is rotational between that ruling house and any other family or is it restricted to only that ruling house?
(3) Whether the relief “Declaration that the appointment of the defendant as the Onitile of Itasa is unlawful and it is therefore null and void is covered by plaintiffs pleadings and evidence available before the trial court.
(4) Whether installation of the defendant/appellant as Onitile of Itasa without the approval of the prescribed authority is valid.
(5) Whether the respondents are estopped from challenging the conferment of Onitile of Itasa chieftaincy on the appellant.
It is hereby observed that the issues for determination raised by the appellant are repetitive and unwieldly. They can be further compressed as follows –
(a) Whether on the available evidence before the court the learned trial Judge was right to have granted the reliefs sought by the plaintiffs/respondents.
(b) Whether the declaration that the appointment of the defendant as the Onitile of Itasa was unlawful, null and void is a proper order to be made by the learned trial Judge when there was no such relief claimed by the plaintiffs/ respondents.
(c) Whether the installation of the defendant/appellant as the Onitile of Itasa without the approval of the prescribed authority is valid?
These three issues undoubtedly cover all the issues formulated for determination by the appellant, while the arguments required to cover them shall also apply to the issues for determination raised by the respondent. This court shall adopt these three issues as those for determination in this appeal.
The respondents in their brief, drew attention to some incompetent grounds of appeal namely grounds 3.2, 3.3, 3.4, 3.6 and 3.7 in that the appellant failed to obtain leave of the lower court or the Court of Appeal before filing these grounds as required by section 221(1) of the 1979 Constitution of the Federal Republic of Nigeria. Grounds 3.2 and 3.7 raise points of facts while grounds 3.3, 3.4 and 3.6 raise points of mixed law and facts. This court is urged to strike out the grounds of appeal. The respondents referred to the cases of Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484; (1986) 3 SC 54, Olanrewaju v. Ogunleye (1997) 2 NWLR (Pt.485) 12, (1997) 1 SCNJ 144; Ajibade v. Pedro (1992) 5 NWLR (Pt.241) 257, (1992) 6 SCNJ (Pt.1) pg 44, A-G., Kwara State v. Olawale (1993) 1NWLR (Pt.272) 645, (1993) 1 SCNJ Pg 208 at 219. In the appellant’s reply brief, the appellants distinguished an appeal from the High Court to the Court of Appeal from an appeal from the Court of Appeal to the Supreme Court. Whereas section 221(1) of the 1979 Constitution governs an appeal from the Court of Appeal to the Supreme Court, and has no relevance to this appeal section 220(1) of the 1979 Constitution which is the relevant law governs an appeal from the High Court to the Court of Appeal. That relevant section stipulates that:
220(1)”An appeal shall lie from decisions of a High Court to the Court of Appeal as of right in the following cases:
(a) Final decisions in any civil or criminal proceedings before the High Court sitting at first instance”.
This section is now S. 241(1)(a) of the 1999 Constitution Section 221(1) of the 1979 Constitution directs that:-
“Subject to the provisions of section 220 of this Constitution, an appeal shall lie from decisions of a High
Court to the Federal Court of Appeal with the leave of that High Court or the Federal Court of Appeal”.
It is trite that a ground of appeal which is not of law alone but of facts or of mixed law and fact, requires the leave of the High Court or the Court of Appeal to make it competent. Where such leave is required but is not obtained before filing same, the grounds of appeal will be regarded as incompetent and struck out. Obijuru v. Ozims (1985) 2 NWLR (Pt.6) 167, Nalsa and Team Associates v. NNPC (1991) 8 NWLR (Pt.212) 652, Erisi v. Idike (1987) 4 NWLR (Pt.66)503. The true position is that an appellant does not require leave to appeal against a final decision of a High Court to the Court of Appeal. He enjoys the liberty under the Constitution and the Court of Appeal Act to appeal as of right within the period of three months of the decision vide sections 220(1) of the 1979 Constitution and section 241(1)(a) of the 1999 Constitution, section 25(2)(a) of the Court of Appeal Act, Oba v. Egberongbe (1999) 8 NWLR (Pt.615) 485 SC. Grounds 3.2, 3.3, 3.4, 3.6 and 3.7 of the appellant’s grounds of appeal are therefore competent.
Issue No.1 This issue for consideration relates to whether on the available evidence before the court the learned trial Judge was right to have granted the reliefs sought by the plaintiffs/respondents – which issue is practically on the consideration of whether the evidence before the court is In support of the claims of the respondents. The appellant agreed that the Onitile of Itasa is a minor chieftaincy whereas Part 3 of the Chiefs Law, Cap. 21, Laws of Oyo State, 1978 regulates the appointment of minor chiefs in Oyo State. The appellant submitted that in a chieftaincy matter, a party who alleges the existence of a particular custom must plead details of the custom and adduce sufficient evidence in support of the custom. In this case the respondents have the onus to establish that the custom relating to the appointment of the Onitile has not been complied with. It was the evidence of the respondents that the Ilemola family nominated the 2nd respondent as the Onitile elect and his name was forwarded to the kingmakers of Itasa. Simultaneously, the appellant was also nominated as the Onitile elect by the Kubonsi family – and equally presented his name to the kingmakers. This was after the death of the last Onitile Oyedokun Aganna Opo – who belonged to the Ilemola family. Five kingmakers met on the appointment of the Onitile and four out of the five kingmakers voted in favour of the appellant.
The respondent protested to the Alafin of Oyo, Chairman of Chieftaincy Committee for Kajola Local Government – who in turn wrote a letter exhibit P2 to the DPO to halt the installation of the appellant as the Onitile. There was an admission under cross-examination that one Olaniyan reigned as Onitile – he was from the family of the appellant. It was the contention of the respondents that Olaniyan became the Onitile by default. The respondents agreed that items like “Ade Osa”, Ara” “Ago” are always kept by the reigning Onitile and they were handed over to the appeI1ant by the father of the 2nd respondent a member of the Ilemola family. Another custom performed for the incumbent Onitile is “Onje Omo Oye” which is a feast prepared for a new Onitile. This feast must be at the instance of the last ruling house to the new Oba – and that the Ilemola family had prepared this food for the appellant, when he was appointed the Onitile. The appellant gave a list of the contradictions in the evidence of the respondents to which if the learned trial Judge had adverted his mind – he would not have granted the reliefs asked by the respondents. There was contradiction in the evidence of the 2nd respondent and the 3 PW as to whether kingmakers and local Government Council approved the appellant as the Onitile vide page 34 lines 41-43 of the records. 2nd PW was in doubt whether chief Olukotun was a kingmaker in Itasa.
2nd PW contradicted the evidence of the 2nd respondent that there was no time that Ilemola family put forward the name of the 2nd plaintiff as the new Onitile of Itasa to the kingmakers vide page 38 lines 3-6. The evidence of the respondents were contradictory and at variance with the pleadings on the foregoing – the lower court should have rejected the evidence outright. He cited cases in support as follows:- Ojo Adebayo v. Igbodalo (1996) 5 NWLR (Pt.450) 507 at 51; Daniel Esike v. Godwin Melodu (1997) 2 NWLR (Pt.435) 54 at 69; Adeleye & Ors. v. Ajiboye & Ors (1987) 3 NWLR (Pt.6l) 432 at 441; Nwakuche v. Azibuike 15 WACA 46; Adimola v. Ajufo (1988) 3 NWLR (Pt.30) 1, Balogun v. Akanji (1988) 1 NWLR (Pt.70) 301.
The evidence of whether there is only one ruling house in respect of the Onitile of Itasa minor chieftaincy P.W.3 Mr. D.B. Akinotan a Personnel Assistant with the then Kajola Local Government confirmed that there are two ruling houses, which evidence was against the case of the respondents – that only Ilemola ruling house can produce candidates for the Onitile chieftaincy. He tendered the documents exhibits P3 and P4 – and that the Kajola Local government Chieftaincy Committee had not approved the appointment of the appellant as the Onitile of Itasa. It was the evidence of the witness that the records of the Local Government show that there are two ruling Houses at Itasa – the Ilemola and Kubonsi. The Local Government had always invited the appellant to perform the roles of the Onitile of Itasa. The witness tendered exhibits P5 and P6 and concluded that the Onitile of Itasa Chieftaincy had always been rotated between Kubonsi and Ilemola ruling houses of Itasa. This evidence of the plaintiffs’ witness contradicted that of the plaintiffs/respondents that there was only one ruling house in Itasa – the Ilemola ruling house. The trial court ought to have dismissed the case of the respondents in view of the contradictions in the evidence of a witness called by them to a vital averment in their pleadings. The appellant cited the cases of Alhaji Waziri Ibrahim v. Alhaji Shehu Shagari & Ors. (1983) 2 SCNLR 176, (1983) 9 SC 59 Ogunbiyi v. Ogundipe (1992) 9 NWLR (Pt.263) 24 at 35. The lower court should have relied on the evidence of PW3, exhibits P5 and P6 to conclude and prefer the case of the appellant that there are two ruling houses in respect of the Onitile of Itasa stool. The appellant cited the cases of Karimu Olujinle v. Bello Adeagbo (1988) 2 NWLR (Pt.75) 238 at 253; Kimdey v. Military Governor of Gongola State (1988) 2 NWLR (Pt.77) 445. The appellant attacked the learned trial Judge of making inconsistent findings based on exhibits P5 and P6 on page 63 lines 3-30 of the records and found that these exhibits were not conclusive that ascendancy to the stool of Onitile was rotational – that only a Chieftaincy Declaration made under the Chiefs Law of Oyo State that could be conclusive. The court held that exhibits p5 and p6 are not valid chieftaincy declaration. The respondents family were not present or represented at the meeting -of the committee.
The learned trial Judge could not conclude that the stool was restricted to Ilemola family in the face of abundant evidence to support that the stool of Onitile of Itasa was rotational between Ilemola ruling house and Kubonsi ruling house. Exhibits P5 and P6 were inquiry and recommendations of the Okeho Iganna District Council Chieftaincy Committee – while PW3 an officer of the Council confirmed that there were two ruling houses. The appellant is entitled to take full advantage of this evidence. Okeho-Iganna Local Government in exhibits P5 and P6 later became known as Kajola Local Government Council. The chieftaincy committee in 1961 approved the appointment of Mr. Oyedokun from Ilemola ruling house. Exhibits P5 and P6 were admitted in evidence without opposition. There was no cross-examination of Mr. Akinotan who tendered the documents.
Exhibits P5 and P6 are public documents binding on the appellant and respondents. The respondents are estopped from disputing that there are two ruling houses to the Stool of Onitile of Itasa. The evidence before the lower court show that all customary laws, customs and tradition as condition precedent to the selection and appointment of the defendant/appellant were fulfilled. The respondent’s family accepted the appellant as the Onitile by passing the paraphernalia of office to him. Vide page 34 lines 2-10, pg 37 lines 21-22 pg 38 lines 3-4 of the records. PW3 gave evidence that the appointment of appellant was regular, as the council would not deal with him if the appointment was irregular. This court is to hold that exhibits p5 and p6 re-established since 1961 that there are two ruling houses of Ilemola and Kubonsi in respect of the Onitile of Itasa chieftaincy – contrary to the finding of the learned trial Judge.
It is an abuse of court process on the part of the respondents to have instituted an action on the issue of the number of Ruling Houses in Itasa in respect of the Onitile chieftaincy stool. This court is to hold that waiver, laches and acquiesence is applicable to this case. The appellant referred to the cases of Felix Ezenonwu v. Onyechi (1996) 3 NWLR (Pt.438) 499, Buraimoh v. Esa (1990) 2 NWLR (Pt133) 406, Bob-Manuel v. Briggs (1995) 7 NWLR (Pt.409) 537 at 554.
By way of reply, the respondents based the exclusive claim of the Ilemola ruling house to the Onitile of Itasa chieftaincy on traditional evidence that out of the fifteen Baales produced in Itasa so far, 13 of them emerged from Ilemola ruling house the two Baales who were not members of Ilemola – and who were supposed to be members of Kubonsi family came on to the throne by coincidence – they were Olaitan Aroledoloye and Olaniyan. Members of Ilemola family protested to the Alafin of Oyo when Olaniyan was wrongly installed.
The appellant claimed that Oyedokun Alamu and Olaniyan were members of Kubonsi family. The appellant tendered the minutes of the chieftaincy sub-committee meeting of Okeho Iganna District Council held in 1961 – to confirm that there are two ruling Houses in respect of the Onitile of Itasa chieftaincy title. The learned trial Judge approached the conflicting traditional evidence of the parties on the principles settled in Kojo II v. Bonsie & Ors. (1957) 1 WLR 1223 at 1226; Oloriode v. Oyebi (1984) 1 SCNLR 390; (1984) 5 SC 1 at 17. The learned trial Judge did not rely on the credibility of witnesses to arrive at his conclusion that there is only one ruling house in respect of the Onitile of Itasa chieftaincy title – which is the Ilemola ruling house. The learned trial Judge tested the traditional evidence by reference to facts in recent years. The Ilemola ruling house relied on their family history as to how the Onitile chieftaincy was evolved – whereas the Kubonsi family relied on certain, respects of tradition in support of their claim – which are the “In a Ojilo Oye” and the passing of the paraphernalia of office – to the new Onitile which are events after installation of an Onitile.
Native law and custom is a matter of evidence to be decided by facts presented before the court unless it is of such notoriety that judicial notice would be taken of it without evidence required in proof. Section 14 of the Evidence Act, Cap. 112, Laws of the Federal Republic of Nigeria, 1990. The custom relied upon by the appellant could operate in a situation where there is a single family with multiple branches. No evidence to establish that after the death of Olaniyan – the two families and the kingmakers decided that ascendancy to the throne of Onitile should be rotational between Ilemola and Kubonsi families. Exhibits P5 and P6 could not be conclusive on this point either. There was no evidence before the court to establish that the respondents were involved in the meetings which brought about the existence of exhibits P5 and P6 – and hence could not be binding on the family. It is only a registered declaration made under the provisions of section 4 of Chiefs Law, Cap. 21, Laws of Oyo State, 1978 that could be conclusive. Exhibits P5 and P6 lack all the essential characteristics of a valid declaration. There was no consensus between the two families that ascendancy to the throne of Onitile shall be rotational between the two families. The court should not hold that the respondents are estopped from waiving their rights to the Onitile chieftaincy. The respondents held that the appointment was not in accordance with the Native Law and Customs of Itasa Community and have not received the approval of the prescribed authority. The respondents cited cases as follows:- Kojo II v. Bonsie & Ors. (1957) 1 WLR 1223 at 1226, Oloriode v. Oyebi (1984) 1 SCNLR 390, (1984) 5 SC 1; Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR (Pt.7) 393; Anyakora v. Obiakor (1990) 2 NWLR (Pt.l30) 52; Adegbaiye v. Akinrimisi (1974) 10 SC 123; Fadiora v. Abonde (1992) 6 NWLR (Pt.246).
This issue obviously challenges the evaluation of evidence of the learned trial Judge, the findings of fact and conclusion whereupon all the reliefs sought by the respondents were granted. I have to reiterate at this juncture that evaluation of evidence is peculiarly the function and duty of the trial court. It is therefore incumbent on the trial court before it rejects or accepts evidence or disbelieves a witness or witnesses that it sets up an imaginary scale and put the evidence of the plaintiff on one side of the scale, it shall also put the evidence of the defendant on the other side of the imaginary scale. It is enjoined to weigh them both together to see where the evidence preponderated not by the number of witnesses called by each side but by evaluation and ascription of probative value. This is because evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a trial court which saw, heard and assessed the witnesses. Where a trial court clearly evaluated the evidence of the parties and justifiably appraised the facts, it is not the business of the Court of Appeal to substitute its own views of the facts for those of the trial court. An appellate court will interfere where there are special circumstances justifying such or where the findings are unsound and where the trial court failed to properly evaluate the evidence before it as a result of which it reached a decision which is perverse. An appellate court will in the interest of justice alter, reverse or set aside such findings. Guda v. Kitta (1999) 12 NWLR (Pt.629) 21; Kuforiji v. VYB Ltd. (1981) 6 SC 40; Fashanu v. Adekoya (1974) 1 All NLR 35; Akinloye v. Eyiyola (1968) NMLR 92; Woluchem v. Gudi (1981) SC 291; Awoyale v. Ogunbiyi (1986) 2 NWLR (Pt.24) 626; Adeyeri II v. Atanda (1995) 5 NWLR (Pt.397) 512; Nwankpu v. Ewulu (1995) 7 NWLR (Pt.407) 269; Onyejekwe v. Onyejekwe (1999) 3 NWLR (Pt.596) 482; Oduwola v. Aina (2001) 17 NWLR (Pt.741) 1.
The court is to determine here whether the appointment of the appellant into the stool of the Onitile of Itasa – was proper and in accordance with the custom of that community. The respondents who challenged this appointment before the trial court held as follows that:-
(1) The member of Kubonsi family to which the appellant belongs is by the tradition of Itasa not entitled to be appointed and installed as the Onitile of Itasa.
(2) It is only the family of Ilemola to which the respondents belong that is entitled to produce the Onitile.
(3) That the Stool of Onitile of Itasa is not rotational between the Ilemola family and Kubonsi family.
(4) The incumbent Onitile – the respondent should be restrained from performing the functions of the office of Onitile of Itasa.
By virtue of sections 6(6)(b) and 236(1) of the 1979 Constitution and sections (6)(6)(b) and 272(1) of the 1999 Constitution, the High Court has jurisdiction to entertain and grant reliefs relating to chieftaincy matters. There is a clear legal distinction between a recognised chieftaincy and a minor chieftaincy – if the validity of the appointment of a chief is challenged in a court of law. If the chieftaincy in question is a recognised chieftaincy, all that the person whose appointment is alleged to be invalid has to do is to inter alia prove that the chieftaincy in question is a recognised chieftaincy under part 2 of the Chiefs Law, Cap. 21, Laws of Oyo State, 1978 and that his appointment was made in accordance with the provisions of the registered declaration in relation to the chieftaincy, which he should produce and tender as an exhibit. If the chieftaincy is a minor chieftaincy – the onus will be on him to prove the customary law regulating the appointment to the chieftaincy and also prove that his appointment was made according to the customary law which he has alleged to be the applicable customary law. In the case of a minor chieftaincy as it is in the instant case, the court will take evidence and decide first of all whether the alleged customary law stated by one or the other of the parties is the applicable customary law and if so – whether the appointment being challenged was made in accordance with the applicable customary law.
The appointment to a minor chieftaincy is made according to customary law. The customary law applicable is unwritten and it depends on what the appropriate authority believes or is persuaded to believe is the customary law. Parties concerned may make representations oral or documentary for the authority to-make up its mind about what is the customary law which pertains to a particular minor chieftaincy. Olagbemiro v. Ajagungbade III (1990) 3 NWLR (Pt.l36) 37; Oladele v. Aromolaran II (1996) 6 NWLR (Pt.453) 180.
It is noteworthy that it is not the duty or function of the court to make or declare the customary law of a community. The duty of the court is to apply the customary law.
Where a registered declaration exists in respect of a chieftaincy, it is admissible evidence of the customary law relating to the selection and appointment of the chief it pertains to. It does not matter that the chieftaincy is a recognized or minor chieftaincy. The purpose of a registered declaration is to embody in a legally binding written statement the customary law of a particular area, setting out clearly the method regulating the nomination and selection of a candidate to fill a vacancy in the chieftaincy of that area. This is to avoid uncertainty in the customary law of the area. The court may take judicial notice of a custom which is codified in accordance with section 4 of the Chiefs Law. There is nothing in section 22 of the Chiefs Law of Oyo State – which restricts the mode of proving the customary law relating to the selection and appointment of a minor chief to any particular method. Any method that satisfies the requirements of section 14 of the Evidence Act will suffice. Agbetola v. L.S.E.C. (1991) 4 NWLR (Pt.188) 664; Oladele v. Aromolaran (1996) 6 NWLR (Pt.453) 180 SC; Ayoade v. Military Governor of Ogun State (1993) 8 NWLR (Pt.309) 111; Popoola v. Adeyemo (1992) 8 NWLR (Pt.257) 1; Obala of Otan Aiyegbaju v. Adesina (1999) 2 NWLR (Pt.590) 163. Native law and custom is a matter of evidence to be decided on the facts presented before the court in each particular case unless it is of such notoriety and has been so frequently followed by the courts that judicial notice would be taken of it without evidence required in proof. Also by section 74(1) of the Act, Customs which have been certified by superior courts of law in Nigeria can be judicially noticed. Giwa v. Erinmilokun (1961) 1 SCNLR 377. It is however, pertinent that matters that are associated with or related to native law and custom or customary law on chieftaincy are to be strictly proved by calling cogent, reliable and credible evidence. Adenaiya v. Governor-In-Council Western Region (1962) WRNLR 1, (1962) 1 SCNLR 442; Jokanola v. Military Governor Oyo State (1996) 5 NWLR (Pt.446) 1; Oladele v. Aromolaran II (1996) 6 NWLR (Pt.453) 180.The court shall now examine how the foregoing principles of law are applicable to the facts of this case.
It is common knowledge and there is consensus that Onitile of Itasa – in the then Kajola Local Government now Iwajowa Local Government Council is a minor chieftaincy and falls under part III of the Oyo State Chiefs Law, Cap. 21, Laws of Oyo State, 1978.
The court is enjoined to determine the number of ruling houses that can vie for the chieftaincy of Onitile of Itasa. The question to ask is whether there is a written declaration in respect of the chieftaincy as this would have spelt out clearly the number of ruling houses available for the chieftaincy. By virtue of section 4(4) of the Chiefs Law, Cap. 21, Laws of Oyo State, 1978, “in the exercise of their powers under the section, a committee shall ensure that no family is declared as a ruling house which is not generally recognised as such at the time of the declaration by the community with which the chief concerned is associated and in particular shall not declare as a ruling house a family which has been in the remote past so recognised but is not recognised at the time of making the declaration.” The appellant relied on the evidence of PW3 – a principal personnel assistant – with Kajola Local Government Okeho, who mentioned than he records of Kajola Local Government reflects that there are two ruling houses in respect of the Onitile of Itasa chieftaincy. He tendered the minutes of the meeting of the chieftaincy committee on the Onitile of Itasa held on the 28th of February, 1961, and 18th of April, 1961 respectively, as exhibits P5 and P6. Both documents are certified true copies of the minutes of the meeting of the Okeho/Iganna District Council Chieftaincy Committee and sub committee, where the selection of Mr. Oyedokun from Ilemola ruling house was approved in 1961. The learned trial Judge concluded about these two documents that they could not be held as conclusive on the point whether ascendancy to the Onitile of Itasa chieftaincy is rotational between Ilemola and Kubonsi families. It is only a registered Chieftaincy Declaration made under the Chiefs Law, Cap. 21, Laws of Oyo State, 1978, that can be so declared. The evidence of traditional history put forward by the parties did not support same.
There is further no evidence on which to conclude that there was any consensus between the plaintiffs and the defendant’s families after the death of Olaniyan that ascendancy to the Onitile chieftaincy should be rotational between the two families. If there was no proper chieftaincy declaration in respect of the Onitile chieftaincy at the time of the selection and appointment of the appellant – then recourse has to be made to the custom of the community in respect of the Onitile chieftaincy. Meanwhile, the learned trial Judge concluded going by exhibits P5 and P6 that the ascendancy to the throne of the Onitile of Itasa is restricted to the Ilemola ruling house and not rotational between that family and Kubonsi family. – Vide page 68 lines 27-30 of the record.
In considering the traditional history led by the parties – the respondents traced the history of the Onitile chieftaincy from their lineal ancestor Ilemola Akangbe to the last Onitile, who died in 1987, whereas the appellant’s family could not trace the emergence of their ancestor Oyedokun Alamu – and how he became the Onitile. The learned trial Judge finally held on the evidence of traditional history adduced by the parties that:-
(i) Ilemola Akangbe was the first Onitile of Itasa
(ii) Nothing to show how Oyedokun Alamu of Kubonsi family came to be associated with Onitile of Itasa. I therefore, find that Oyedokun who was the Onitile of Itasa was a member of Ilemola ruling house.
(iii) Ilemola ruling house produced thirteen of the fifteen Onitiles that ruled Itasa.
(iv) Olaniyan did not become the Onitile of Itasa as of right.
He concluded that
“my final words on this point is that chieftaincy matters where the line of succession is not satisfactorily traced and that line of succession has gaps and mysterious linkage or nexus which are not established, such line of succession would be neglected”.
The learned trial Judge there and then concluded that the traditional evidence led by the plaintiffs on the emergence of the Onitile is more cogent and more probable than the evidence-of traditional history led by the defendant. The learned trial Judge thereupon also concluded that the Ilemola ruling house is the only ruling house in Itasa. Vide page 65 lines 31-45 and page 66 lines 1-8 of the record.
The learned trial Judge went further to say that whereas the respondents relied on their family history and how the Onitile chieftaincy was evolved, the appellant relied on certain aspects of Itasa custom and tradition – which are the submission of the paraphernalia of office to the incumbent Onitile and that the family of the deceased Oba must cook for the new Oba. The learned trial Judge held that these customs relied upon by the appellant could be evoked where rotation is between different branches of the same ruling house. In a civil case the burden of or onus of proof or of establishing his case is on the plaintiff. The onus of proving the existence of a particular fact is also on a party who asserts it. Okubule v. Oyagbola (1990) 4 NWLR (Pt.147) 723; Osawaru v. Ezeiruka (1978) 6-7 SC 135, 145; Johnson v. Maja (1951) 13 WACA 290; Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt.561) 339 at 352. The appellant pointed out the inconsistencies and contradictions in the evidence of the respondents particularly – the evidence of the PW3 – which through exhibits P5 and P6 tried to establish that there were two ruling houses an aspect of the Stool of Onitile of Itasa.
The court did not find the contradictions as material contradictions, which may fundamentally affect the case put forward by the respondent. It is however, appreciated that traditional history which attracts credibility must be total in its narration. Partial or overtly incomplete or abridged history of past events invariably leaves the recipient in doubt of the true nature of the aspect of such history embedded in secrecy. Ogun v. Asemah (2002) 4 NWLIR (Pt.756) 208. Moreover, though the legal burden of establishing his case without relying on the weakness of the defence is always on the plaintiff, the evidential burden of proving a particular shifts or tilts amongst the parties according to the assertions of the parties in their pleadings.
The determination of a chieftaincy question as regards to the number of ruling houses available – and whether ascendancy to the chieftaincy stool is rotational if it were a recognised chieftaincy – the registered declaration would have been of immense help in determining what the customary law is. The Onitile of Itasa is a minor chieftaincy – this court has to consider the position of the Chiefs Law as regards minor chieftaincies as embodied in Part 3 of the Chiefs Law, Cap. 21, Laws of Oyo State, 1978. By virtue of section 22(1) of the Chiefs Law-
“The executive council may appoint in respect of an area of any local government council an authority referred to as prescribed authority consisting of one person or more persons than one who may be the chairman and other members of a committee established by section 5 to exercise the powers conferred by this section in respect of the office of any minor chief whose chieftaincy title is associated with a native community in that area. Such authority in this appeal is a committee set up comprising the traditional rulers in the Local Government Area as follows:-
(1) The Alafin of Oyo as chairman, (2) The Onjo of Okeho, (3) Sabiganna of Iganna , (4) Elero of Ilero.
It is not difficult for these traditional rulers, who are the prescribed authority for the Onitile of Itasa chieftaincy to ascertain the customary laws pertaining to the selection and appointment of a chief in their area. By virtue of section 22(2)
“Where a person is appointed to fill a vacancy in the office of a minor chieftaincy by those entitled by customary law to so appoint and in accordance with customary law, the prescribed authority may approve the appointment”.
By section 22(3) of the Chiefs Law –
“Where there is a dispute whether a person has been appointed in accordance with customary law to a minor chieftaincy the prescribed authority may determine the dispute”.
22(4) “The decision of the prescribed authority –
(a) to approve or not, to approve an appointment to a minor chieftaincy or
(b) Determining a dispute in accordance with subsection (3) of this section shall be final and shall not be questioned in any court”.
The crucial issue before the court is to determine the ruling house or number of ruling houses, which are entitled to vie for the Onitile of Itasa chieftaincy, and to restrain the incumbent of the Stool from parading himself as such. Where there is no registered declaration – reference will be made to the relevant customary laws – which according to section 22 will depend on the appropriate authority and those vast in the customary laws of the area.
The respondents must call credible, cogent and reliable witnesses in proof of the customary law relating to the said chieftaincy.
By virtue of section 14 of the Evidence Act, also the onus of proof of the customary law is on the respondents, who were the unsuccessful candidate for the chieftaincy, and who also alleged that the customary law relating to the chieftaincy was violated by allowing another ruling house other than Ilemola family to present a candidate who was appointed. Oladele v. Aromolaran II (1996) 6 NWLR (Pt.453) Pg. 180. The evidence to support a custom must come from witnesses belonging to the community to show that the community regards the custom as binding on them. The evidence of the respondents before the trial court cannot be regarded as sufficient evidence of custom binding on the Itasa Community. In addition to members of the ruling houses, there must be witnesses from amongst the chiefs, the king makers and important members of the community who are conversant with the customs and traditional history of the community Apoesho v. Awodiya (1964) 1 ANLR 48; Ahuchaogu v. Ufomba (1998) 12 NWLR (Pt.577) 293.
The customary law applicable is unwritten and it depends on what the appropriate authority, in this case, the prescribed authority, believe or is persuaded to believe by evidence is the customary law.
Customary law as I have mentioned earlier is a question of fact to be proved by evidence. Olagbemiro v. Ajagungbade III (1990) 3 NWLR (Pt.l36) 37; Oladele v. Aromolaran (1996) 6 NWLR (Pt.453) 180.
Exhibits P5 and P6 on which the learned trial Judge made his finding show that there was an equiry into the Onitile chieftaincy by a chieftaincy subcommittee set up by the Okeho/Iganna Local Government Council in 1961. Two kingmakers and representatives of the Kubonsi family and Ilemola family were in attendance – while members were traditional rulers. Recommendations according to, exhibit P5 were made by a kingmaker of Itasa, who was spokesman for Ilemola family, and a representative of Kubonsi family, who agreed that a candidate from Ilemola family should become the next Onitile and Councilor John Akinfenwa, who represented the Itasa people. It was the recommendation of the chieftaincy sub committee adopted and approved in exhibit P6 that the appointment of candidate to the Onitile of Itasa is by rotation – between Kubonsi and Ilemola ruling houses.
The learned trial Judge concluded his findings by giving judgment – that Ilemola family ruling house is the only family entitled to present candidates for the Stool of Onitile of Itasa, and declared the appointment of the appellant null and void which automatically prevented him from holding out himself as the Onitile of Itasa. In arriving at this conclusion, the learned trial Judge found that there are two conflicting traditional evidence in proof of the parties respective positions in the matter before the court, and he tested the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is more probable – invoking the principle of law in Kojo II v. Bonsie (1957) 1 WLR 1223 and Oloriode v. Oyebi (1984) 1 SCNLR 390, (1984) 5 SC 1 at 17 – Vide page 64 lines… in the end on page 66 lines 3-8 the learned trial Judge held that:-
“I am of the opinion that the traditional evidence led by the plaintiffs on the emergence of Onitile of Itasa is cogent and more probable than the evidence of traditional history led by the defendant. To that extent the answer to the first question for determination is that Ilemola ruling house is the only ruling house in respect of Onitile of Itasa chieftaincy.”
I regard the foregoing pronouncements of the learned trial Judge as contradiction in terms. When for the purpose of proving a particular fact in issue there are before the court two or more versions of credible but conflicting traditional histories in the sense that it is difficult or impossible for the court to ascertain which version represents the truth, then it can make resort to acts or facts in recent times to ascertain which version is more probable. Where conflicting versions of traditional histories are such that one version is easily preferable to the other or others, a trial court is bound to make a finding in that respect and a resort to the principle in Kojo II v. Bonsie would be unnecessary. Ohiaeri v. Akabeze (1992) 2 NWLR (Pt.221) 1; Akpan v. Udoetuk (1993) 3 NWLR (Pt.279) 94; Adeleke v. Asani (1994) 1 NWLR (Pt.322) 536; Ogbuokwelu v. Umenafunkwa (1994) 4 NWLR (Pt.341) 676.
The requirement of cogent and credible evidence in proof of native law and custom will become even more strict in a case where there is a claim for declaratory and injunctive reliefs which are both equitable in nature as in this appeal. Giwa v. Erinmilokun (1961) 1 SCNLR 377, Ozogula II v. Ekpenga (1962) 1 SCNLR 423, Onyejekwe v. Onyejekwe (1999) 3 NWLR (Pt.596) 482.
In the instant appeal – the contradictory and conflicting nature of the overall evidence from the respondents cannot be overlooked – particularly, the evidence of PW3 a Principal Personnel Officer from the Kajola Local Government Council – which controls all the chieftaincy matters in the area including that of the Onitile of Itasa chieftaincy – indicated that the record of the Kajola Local Government shows that the Onitile of Itasa chieftaincy has always been rotated between Kubonsi and Ilemola ruling houses of Itasa. He confirmed that the appellant has always been invited by Kajola Local Government in any matter that relates to traditional ruler in the local government. The local government will not deal with any Oba or Baale if his appointment is irregular. This evidence obviously tore apart any cogent evidence given by the respondents – as the other witnesses are themselves members of the Ilemola family, and they could not have relied on their own evidence in support of and to establish the customs of Itasa community.
When there are internal conflicts in the traditional evidence adduced by one party in proof of his assertion as was with the appellant in this case then there will be no need to test the party’s traditional evidence with that of the other party – Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR (Pt.7) 393; Kenon v. Tekam (2002) 14 NWLR (Pt.732) 12.
From the appellant- besides exhibits P5 and P6, there is evidence of DW1 – a secretary to Itasa Development Committee, who aired the view of the people of Itasa in respect of the appointment of the appellant, and the evidence of two of the kingmakers who selected the appellant for presentation to the prescribed authority. They all informed the court about the custom of Itasa community that the appointment to the stool of Onitile of Itasa is rotated between the two ruling houses – Ilemola and Kubonsi. The findings of the learned trial Judge in the circumstance of this case is in my opinion perverse. He had refused to advert his mind to and make use of the important evidence of custom of the Itasa Community established before him. Rather the learned trial Judge now thrusted on the community a new system of ascendancy to the throne of Onitile of Itasa, which he structured from facts of recent years following the principle of law in Kojo II v. Bonsie (1957) 1 WLR 1223 – as a guide for future selection of the Onitile. It is not the business of the courts to make declaration of customary law relating to the selection of chiefs. The exercise of such function is not directly related to the general jurisdiction of courts under section 238(i) of the 1979 Constitution. The court can only make declaratory orders to determine the validity or otherwise of the existence of a particular custom. The court will from the evidence adduced ascertain what is the custom of the community and then decide on the existing ruling house by virtue of section 236(i) of the 1979 Constitution Adigun v. A.-G., Oyo State (1987) 1 NWLR (Pt.53) 678; Adigun v. Gov., Osun State (1995) 3 NWLR (Pt.385) 513. Such evidence relied upon to determine the existence of a particular custom may be oral and documentary even in respect of a minor chieftaincy. Oladele v. Aromolaran (1996) 6 NWLR (Pt.453) 180 SC.
As the decision of the learned trial Judge is found to be perverse based on the evidence on printed record – this court as an appellate court has a duty to interfere with such decision – with an intention to reverse same as the findings of fact of the trial court that the plaintiffs/respondents have proved their case cannot be right in the face of glaring inconsistencies and material contradictions of the evidence of the respondents and their witnesses.
Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360; Ukatta v. Ndinaeze (1997) 4 NWLR (Pt.499) 251; NEPA v. Alli (1992) 8NWLR (Pt.259) 279; Odiba v. Azege (1998) 9 NWLR (Pt.566) 370; Okhuarobo v. Aigbe (2002) 9 NWLR (Pt.771) 29 SC.
Issue No.1 is resolved in favour of the appellant.
Issue No.2
Whether the declaration that the appointment of the defendant as Onitile of Itasa was unlawful, null and void is a proper order to be made by the learned trial Judge when there was no such relief claimed by the plaintiffs/respondents.
The appellant submitted that the learned trial Judge held that the appellant contravened section 24 of the Chiefs Law, Cap. 21, Laws of Oyo State, 1978, by offering himself to the kingmakers for installation as Onitile of Itasa – which appointment is unlawful and therefore null and void. The learned trial Judge granted to the respondents a declaration that was never claimed by them. Vide page 75 of the records. This relief was neither in the writ of summons and statement of claim of the respondents. It is trite that a court has no jurisdiction to grant any relief to any party to a proceeding unless such relief is specifically claimed. A court may award less but not more than what the parties have claimed. The learned trial Judge had made a case different from what the appellant pleaded. The learned trial Judge made a grave error granting this relief not claimed by relying on paragraph 8 of the reply to statement of defence. A reply to the statement of defence plays no role in the reliefs sought by a plaintiff in a civil action. The learned trial Judge cannot grant a gratuitous relief to the plaintiffs/respondents. The findings of the learned trial Judge of whether the defendant has been lawfully conferred with the Onitile chieftaincy title when no such issue was raised before him has occasioned to the defendant a great injustice and the honourable court is urged to so hold. The appellant cited the cases of Ekpeyong v. Nyong & Ors. (1975) 2 SC 71 at 80-81, Chief Oja Ojoh v. Chief Eyo Ogboni (1996) 6 NWLR (Pt.454) 277 at 290; Felix Okoli Ezenonwu v. Chief Onyechi & Ors. (1996) 6 NWLR (Pt.438) 499 at 520, Onweonu v. Oke Agu (1996) 5 NWLR (Pt.451) 652 at 664; C.A. Okusun v. Central Bank of Nigeria (1996) 2 NWLR (Pt.428) 77 Ch 87 and 88; Ibrahim Mohammed v. Karlagester (Nig.) Ltd (1996) 1 NWLR (Pt.422) 54 at 62.
The respondents replied that when the appellant was nominated by his family for the vacant position of Onitile – the respondents family protested to the Alafin of Oyo, who is the chairman of Kajola Local Government Chieftaincy Committee. The number of kingmakers who supported the candidature of the appellant could not be ascertained. The respondents family had produced thirteen out of the fifteen Onitile. The respondents lodged a protest against the candidature of the defendant. The learned trial Judge held that there was a dispute in respect of the defendant’s appointment – and the appointment could not be said to be one under the customary law.
This court is to uphold the findings of the learned trial Judge and to hold that the learned trial Judge validly declared the appointment of the appellant by the kingmakers as null, void and of no effect. The case of M.A. Eleso v. Government of Ogun State (1990) 2 NWLR (Pt.133) 420, (1990) 4 SCNJ 45 at 53-57 was cited.
A court must not grant to a party a relief or declaration, which he has not sought or which is more than he has sought. This is because the court is not a charitable institution – to give a party a relief not claimed by him. This principle is engrained both in the rule and practice of pleadings and that of fair hearing. However, depending on the extent of proof, a court can award less than what is claimed – but no more than it. Ekpenyong v. Nyong (1975) 2 SC 71; Union Beverages Ltd. v. Owolabi (1988) 1 NWLR (Pt.68) 128; Okon v. Administrator-General, Cross River State (1992) 6 NWLR (Pt.248) 473; Adefulu v. Okulaja (1996) 9 NWLR (Pt.475) 668; Lewis & Peat NRI Ltd. v. Akhimien (1976) 7 SC 157; Makanjuola v. Balogun (1989) 3 NWLR (Pt.108) 192; Akapo v. Hakeem-Habeeb (1992) 6 NWLR (Pt.247) 266.
It is the local government that can arrange for the installation of any traditional ruler in the area. The evidence of PW3 shows that the appellant has not been properly installed. However, from the evidence before him the learned trial Judge found that there is a dispute in respect of the appointment of the appellant by the kingmakers – which has to be referred to the prescribed authority for his decision. Moreover, regardless of the lack of approval of the appointment of the appellant – the community went ahead to install him as the Onitile of Itasa on the 1st of April, 1989 – and that he had since been performing the function of the office of Onitile. The learned trial Judge in the circumstance made a declaration that the appointment of the defendant as the Onitile was unlawful and it is therefore null and void. The reasons for declaring the appointment as unlawful and therefore null and void are stated on page 73 lines 15-30 of the records – and they are in his opinion:-
(1) There was a dispute in respect of the defendant’s appointment at the time it was made.
(2) The credible evidence to show that he was appointed by Itasa kingmakers, and as such there was no appointment under customary law.
(3) Any selection by the kingmakers, or approval by the prescribed Authority of one not selected by his ruling house is an exercise in futility.
(4) The appellant was installed by the community on 1st of April, 1989.
(5) The prescribed authority was not allowed to determine the dispute as to whether the defendant could be appointed as the Onitile before his installation.
The order of nullity made by the learned trial Judge based on these premises are premature and an order made in vacuo. The Chiefs Law section 22 subsections (3) and (4) and (5) made provisions for cases of dispute arising from the appointment to a minor chief.
Anybody aggrieved by the decision of prescribed authority in the exercise of the powers conferred on him by subsections (2)(3)(4), may within 21 days from the date of the decision of the prescribed authority make representations to the Commissioner for Chieftaincy Affairs to set aside the decision. The foregoing has to be explored and satisfied before seeking any redress in court. The respondent did not allow the prescribed authority to wade into this matter when it was their contention that the customary law relating to the Onitile chieftaincy was violated by allowing the Kubonsi family to present a candidate. This is an area for consideration by the prescribed authority conferred by statute and which he cannot be denied even with the consent of the parties. The law is clear on this issue now that by virtue of section 22(3) of the Chiefs Law of Oyo State, 1978, where there is a dispute as to whether a person has been rightly appointed to a minor chieftaincy in accordance with customary law, the prescribed authority is conferred with jurisdiction to determine such dispute. However, his decision shall be final and shall not be questioned in any court by virtue of section 22(4) of the same law. However, the provisions of section 22 of the Chiefs Law do not exclude the exercise of supervisory jurisdiction by the High Court. The declarations sought in this case were not meant to challenge any decision of the prescribed authority but the acts of appointment and installation of the appellant. In this case, the appellant has not been properly installed before the respondents came court to challenge the act. Where a statute has prescribed a particular remedy, an aggrieved party should be left to exhaust the remedy. In this case, where the respondents have not resorted to the remedies statutorily available to them on the infringement of an alleged right, his action is premature and does not give rise to a reasonable cause of action.
The respondents jumped the gun as their evidence before the court revealed that they had protested to the chairman of the chieftaincy committee – the Alaafin of Oyo the prescribed authority for the Onitile chieftaincy. Jurisdiction by the court cannot be acquired with the consent of the parties. Where there is no power to exercise jurisdiction no legal action results. Adesola v. Abidoye (1999) 14 NWLR (Pt.637) 28 SC; Faloye v. Omoseni (2001) 9 NWLR (Pt.717) 190.
The prescribed authority should be allowed to make a decision on this matter. The decision of the learned trial Judge invalidating the appointment of the appellant cannot stand.
Issue No.3
The issue for consideration is whether the installation of defendant/appellant as the Onitile of Itasa without the approval of the prescribed authority is valid. It is the submission of the appellant that the findings of the learned trial Judge that the appellant’s appointment as Onitile of Itasa has not received the approval of the prescribed authority, cannot be right as it is not supported by evidence.
The respondents based their conclusion on the letter exhibit P2 written by the Alafin of Oyo to the DPO, Okeho and reliance was placed also on exhibits P3 and P4 by the learned trial Judge. Exhibits P3 and P4 ought to have been expunged from the records as parties cannot admit by consent or otherwise a document which is by law inadmissible. Exhibits P3 and P4 ought to have been expunged from the records. By combined effects of sections 97(1)(c) and 97(2)(c) and (e) of the Evidence Act only certified true copies are the only secondary evidence admissible. The respondents replied that the issue of whether or not the appointment of the defendant/appellant has been approved by the prescribed authority could and should be considered by the trial court. The contention of the respondent is that the prescribed authority that is enjoined by law to approve the appointment of a minor chief in Kajola Local Government had not approved the appointment of the appellant as the Onitile. The respondents applied to amend the statement of claim to reflect the central issue in controversy which is whether the appellant was legally appointed as Onitile of Itasa – If the answer is no- the legal consequence is that the appointment is null and void. The amendment sought is not substantially divergent to the other reliefs of the respondents – as it is contained in paragraph 8 of the Reply to the statement of defence. The respondents want to shift this to paragraph 40 of the statement of claim as paragraph 40(III). The application is brought pursuant to Order 26 rules, (1), (2) and (3) of the High Court (Civil Procedure) Rules of Oyo State, 1988. The court should hold that the relief “Declaration that the appointment of the defendant as the Onitile of Itasa is unlawful and it is therefore, null and void” is covered by the plaintiffs/respondents pleadings and evidence available before the trial court so as to grant the amendment to the statement of claim and Reply to statement of defence sought. The respondent relied on the cases of Adekeye v. Akin Olugbade (1987) 3 NWLR (Pt.60) 214, (1987) 6 SC 268 at 280281, Ijebu-Ode Local Government v. Balogun (1991) 1 NWLR (Pt.166) 136, (1991) 1 SCNJ at 17; Chief Asuquo Ekpa v. Chief Etim Akpan Utong (1991) 6 NWLR (Pt.197) 258, (1991) 7 SCNJ (Pt.1) 170 at 182-183. Alsthom v. Sarah (2000) 11 SCNJ 1 at 12-14.
The amendment would have been granted by the trial court – this court is to invoke section 16 of the Court of Appeal Act to grant the amendment. The appellant replied that the averment sought to be amended is in paragraph 8 of the reply to the statement of defence. The statement of defence was amended and what stood before the amendment is no longer material before the court as it no longer defines the issues to be tried. The statement of defence was amended before addresses by counsel – and since the amended statement of defence was filed and served – the original statement of defence becomes non-existent for the purpose of the trial – while the reply based on same cannot be relied upon by counsel and learned trial Judge.
In the appellant’s reply brief, the appellant found it strange for the respondents to amend their statement of claim and reply to statement of defence by their amended brief. Parties cannot by their brief amend their pleadings – a party who intends to amend any part of their case must come by way of application – a motion. The respondents had once filed an application for amendment before this court. An attempt to bring up the same application in a brief of argument is to import into this matter an application through the back door – and this is to overreach the appellant.
The purport of the amendment sought is to join an extra reliefs to the three already filed and served on the parties so that paragraph 40 of the statement of claim with three reliefs numbered as 40(i) to 40(iii) shall now read 40(i) to 40(iv). The amendment now sought was formerly paragraph 8 of the reply to the statement of defence which reads that the plaintiffs pray that – “the appointment of the defendant not been,in accordance with the native law and custom of Itasa community and not having received the approval of the prescribed authority should be declared a nullity by the Honourable Court.”
The statement of defence itself was amended before counsel addressed the court. As paragraph 40(ii) of the statement of claim the amendment sought is to read –
“Declaration that the appointment of the defendant as Onitile of ltasa is unlawful and it is therefore null and void”.
Going through the records of appeal before this court, it was discovered that this same application was filed before this court by the respondents on 16/11/99. The application was brought by way of motion – supported by affidavit. The appellant filed a 15 paragraph counter-affidavit to oppose. This court struck out this application on 20/11/2000. The record of proceedings for that day show that the respondents’ counsel withdrew the application. The question to be answered here is whether the approval to appointment of the appellant had been granted – before his so called installation as the Onitile of Itasa. Section 22(1) of the Chiefs Law, Cap. 21, Part III, Laws of Oyo State, 1978, is clear on this issue. It stipulates that:-
Section 22(2) “When a person is appointed, whether before or after the commencement of this law, to fill a vacancy in the office of a minor chief by those entitled by customary law so to appoint and in accordance with customary law, the prescribed authority may approve the appointment.”
22(3) “Where there is a dispute whether a person has been appointed in accordance with the customary law to a minor chieftaincy the prescribed authority may determine the dispute.”
22(4) “The decision of the prescribed authority-
(a) To approve or not to approve an appointment to a minor chieftaincy
(b) Determining a dispute in accordance with subsection (3) of this section shall not be questioned in any court”.
There is statutory provision that the appointment of the appellant must receive the approval of the prescribed authority – which in this case as relates to the appointment of the Onitile of Itasa – are a chieftaincy committee attached to the Kajola Local Government whose members are four traditional rulers with his majesty the Alaafi n of Oyo as chairman.
The respondents averred in paragraph 34 of the statement of claim – and paragraph 8 of the reply to the statement of defence that the prescribed authority for the Onitile of Itasa Chieftaincy has not approved the candidature of the Onitile elect. The 2nd respondent and PW2 gave oral evidence in support of non-approval by the prescribed authority – Vide page 32 lines 24-26 and page 37 lines 34-36. Mr. Akintola PW – a civil servant attached to the Kajola Local Government confirmed that Kajola Local Government Chieftaincy Committee has not met to approve or disapprove the candidature of the appellant as the Onitile of Itasa. Exhibits P3 and P4 written to the appellant by the Secretary Kajola Local Government, that he cannot receive any stipend, or appoint any chief until the chieftaincy committee of the local government, the prescribed authority has met to approve his candidature. Since the statutory provision embodied in section 22(2) of the Chiefs Law has not been complied with – his name cannot be properly put forward, and he cannot be fully in-stalled to perform the traditional role of the Onitile of Itasa. Section 22(2) of the Chiefs Law shows that the approval of the prescribed authority to the appointment of a minor chieftaincy is mandatory.
The reason why such approval has been delayed in the case of the appellant after appointment by those entitled under this customary law is shown in exhibit P2 written by the chairman of the chieftaincy committee – the relevant prescribed authority for the Onitile’s chieftaincy. The chieftaincy committee could not form a quorum due to the demise of two of the traditional rulers – the Onjo of Okeho and Elero of Ilero. The chairman of the chieftaincy committee has to receive necessary clearance from the Military Governor on the legality of the quorum.
On the overwhelming evidence before this court, the three germain issues for determination have to be resolved in favour of the appellant, in that the findings of the learned trial Judge and the decision based on them was perverse, while the respondents jumped the gun in seeking redress before the court below and this court.
The appeal succeeds and is allowed. The judgment of the lower court is hereby set aside. Costs of the appeal is assessed at N10,000 in favour of the appellant.
Other Citations: 2002)LCN/1213(CA)