Chief Jeremiah Olaitan Oduyoye & Ors V. Alhaji Adebisi Lawal (Baale of Imodi) & Ors (2002)

LawGlobal-Hub Lead Judgment Report

ONALAJA, J.C.A.

The plaintiffs are members of Iselu Family of Imodi-Ijebu and brought the action in a representative capacity for themselves and on behalf of other members of Iselu Family aforesaid by a writ of summons issued in the High Court of Justice of Ogun State in Ijebu-Ode Judicial Division holden at Ijebu-Ode against the 3rd defendant individually but as against the 2nd defendant the Awujale of Ijebuland as the prescribed authority for the minor chieftaincy dispute of Ekiti-Ilu of Imodi-Ijebu.

After issuance of the writ of summons by the plaintiffs, it was served individually on the defendants who retained a joint legal practitioner for their defence of the action. Pleadings were filed, delivered, exchanged and amended. At the conclusion of trial the action concluded on amended statement of claim, amended statement of defence and reply to statement of defence which was not amended as a result of the amended statement of defence as an amended reply was not considered necessary.

Adopting and applying the cases of J.O. Lahan v. Lajoyetan (1972) 1 All NLR (Pt. 2) page 217, 1972 6 SC 190; Adebayo v. OAUTH (2000) 9 NWLR (Pt. 673) 585; Omoyinmi v. Olaniyan (2000) 4 NWLR (Pt. 651) 38; G. and C. Lines v. Oladeye (2000) 10 NWLR (Pt. 676) 613 CA; Onyero v. Nwadike (1996) 9 NWLR (Pt.471) page 231 CA; Sosanya v. Onadeko (2000) 11 NWLR (Pt. 677) page 34 CA, that the particulars of claims set out in the statement of claim supersedes the particulars of the writ of summons makes the claims of the plaintiffs discernable as set out in the concluding paragraph of the amended statement of claim henceforth the amended pleadings are referred to simply as statement of claim and statement of defence. Paragraph 53 of the statement of claim provides as under:

53. WHEREOF the plaintiffs claim as follows:
54. Declaration that the 1st plaintiff is the person entitled to be appointed as Ekeji-Ilu of Imodi-Ijebu

in accordance with the custom and tradition of the people of Imodi-Ijebu applicable to the Ekeji-Ilu of Imodi chieftaincy as well as the Chiefs Law of Ogun State, 1978.

2. Declaration that the 1st plaintiff has been properly appointed as the Ekeji-Ilu of Imodi-ljebu by those entitled by Customary Law of the Community to appoint him and in accordance with the Custom and Tradition of Imodi-Ijebu and the Chiefs Law of Ogun State, 1978.
3. An order compelling the 2nd defendant to give his statutory approval to the appointment of the 1st plaintiff as Ekeji-Ilu of Imodi-Ijebu in accordance with the Chiefs Laws of Ogun State, 1978.
4. A declaration that the 3rd defendant is not entitled to be nominated, appointed or approved by the 2nd defendant or any other person(s) as Ekeji-Ilu of Imodi-Ijebu.
5. A declaration that the purported nomination, appointment, approval and installation of the 3rd defendant as Ekeji-Ilu of Imodi-Ijebu are wrongful, irregular and in violation of the applicable Custom of Imodi-Ijebu as well as the Chiefs Laws of Ogun State, 1978.
6. An order setting aside the nomination, appointment, approval and installation of the 3rd defendant as Ekeji-Ilu of Imodi-Ijebu as same are in violation of the relevant custom and the Chiefs Law of Ogun State, 1978.
7. Perpetual injunction restraining the 3rd defendant from parading himself as the Ekeji-Ilu of Imodi-Ijebu.

The defendants joined issues positively with the plaintiffs in the statement of defence in accordance with the rule in Lewis & Peal (NRI) Ltd. v. Akhimien (1976) 7 SC 157, (1976) 1 All NLR (Pt.1) page 460; Adesanya v. Aderounmu (2000) 9 NWLR (Pt. 672) page 370 SC; Chief F. Akintola & Anor. v. Dedeke-Solano (1986) 2 NWLR (Pt. 24) page 589 SC.

To substantiate and establish their claims the plaintiffs testified for themselves and called in all five witnesses, in the course of their testimonies documents were admitted in evidence and marked as exhibits, references shall be made to them in the judgment. The five witnesses were subjected to cross-examination by the learned counsel to defendants.

Similarly, the defendants called five witnesses in all in defence of their cases. Documents were admitted in evidence and marked exhibits, references shall be made to them where necessary in the judgment. All defence witnesses were rigorously cross-examined by the learned Senior Advocate to the plaintiffs.

At the conclusion of testimonies learned Senior Advocate to the plaintiffs and learned counsel to the defendants addressed the learned trial Judge, who adjourned to deliver a considered judgment on 15th March, 1976 covered at pages 129 to 140 of the record of appeal.

In evaluating the evidence adduced by the parties the learned trial Judge set up the imaginary judicial scale under the rule in Mogaji v. Odofin (1978) 4 SC 91-98; Okulate v. Awosanya (2000) 2 NWLR (Pt. 646) page 530 SC at pages 135, 137, 138, 139 and 140 of the record of appeal partly as follows:

The plaintiffs have limited their case to the appointment of 1st plaintiff as the Ekeji-Ilu of Imodi. However, the evidence led in this case show that the Ekeji-Ilu of Imodi eventually becomes the Baale of Imodi whenever a vacancy occurs. Further it is clear that the Baale of Imodi was a recognised chieftaincy to which part 2 of the Chiefs Law, Cap. 19, Laws of Western Region, 1959 was applicable – (see Recognised Chieftaincies Order WRLN 22 of 1959 at page 306 of Volume 1 Laws of Western Region 1959). This is clearly the basis for the making of exhibit B which was the registered declaration applicable to the chieftaincy.

However by W.S.L.N. 6 of 1976, the Baale of Imodi is now a minor chieftaincy since it is no more included in the list of recognised chieftaincies. It is the prescribed authority that now approves appointment to the chieftaincy. However the customary law as to appoint cannot change as only those who are appointed in accordance to that chieftaincy can be properly approved by the prescribed authority.

Generally, chieftaincy matters have now been codified in Ogun State and the Chiefs Law, Cap. 20 Laws of Ogun state, 1978 is the relevant law applicable to chieftaincy matters within the state. There are recognised chieftaincies to which part 2 of the law applies and appointment to these chieftaincies must be approved by the Executive Council or the Commissioner responsible for chieftaincy matters under section 30 (1)(b) of Cap. 20 – (see W.S.L.N. 7 of 1976). In relation to minor chieftaincies to which part 3 of Cap. 20 applies, it is the prescribed authority to such minor chieftaincies under section 22 (2) of Cap. 20;

One aspect is however clear and certain all appointments to all chieftaincies be it minor or recognised must be made in accordance with the Customary Law applicable to such chieftaincies … by those entitled by customary law to so appoint in accordance with the custom in relation to minor chieftaincies. Thus, while an appointment process starts with selection by ruling house, it ends with approval by the appropriate authority and without the necessary approval no one can validly call himself a Chief. See Ayoade v. Governor of Ogun State (1993) 8 NWLR (Pt. 309) 111 at 128 and also Gbadebo v. Abeokuta Local Government & Ors. (1983) 2 FNR 264.

The plaintiffs and defendants are all agreed that the Ekeji-Ilu eventually becomes the Baale whenever a vacancy occurs. They do not agree as to the customary law applicable to the appointment. The plaintiffs

evidence that only Odoyangbuwa and Iselu produces both the Baale and Ekeji-Ilu cannot be correct. This is so in view of exhibit B which has included Aledo in the list. I do not agree that the defendants mentioned three ruling houses as submitted by Chief Toye Coker.

There are always two ruling houses to produce both the Ekeji-Ilu and the Baale. These are (a) Odoyangbuwa and (b) Iselu and Aledo. Iselu and Aledo are not two ruling houses but one ruling house. The evidence that Odulalu was the first Baale of Imodi cannot be correct. If both Iselu and Sape were settled at Imodi. It only shows that Imodi was in existence before Iselu and Sape came to settle. This is where the story of defendants that Obede was the first person to settle at Aledo becomes more probable and that Naalo was the first Baale of Imodi from Aledo.

The 1st plaintiff gave the names of previous Baale and Ekeji-Ilu from Odulaju to the present Baale – 1st defendant showing only Odoyangbuwa and Iselu.

However 3rd defendant as D.W.1 also gave the names of previous Baale and Ekeji-Ilu from Naalo from Aledo to Jones Odukoya from Iselu. The defendants were able to show that Naalo was the 1st Baale from Aledo and Odoyangbuwa and Iselu. Aledo should now produce in succession two Baales in rotation and that since Jones Odukoya came from Iselu, Aledo should now produce the Ekeji-Ilu and that the Aledo people actually appointed him and presented him to 2nd defendant who duly approved his appointment. The evidence of 1st plaintiff that 2nd defendant would only bless him cannot be correct. Both Baale and Ekeji-Ilu are minor chieftaincies and require approval by prescribed authority before any appointment could be valid … that customarily both Baale and Ekeji-I1u are produced by Odoyangbuwa and Iselu and Aledo. I am more convinced by the evidence of D.W.3 Mustafa Olowa who testified that the two quarters of Odoyangbuwa and Imafon produce the Baale and Ekeji-Ilu and that Imafon is made up of Iselu and Aledo. This evidence clearly establish the custom of appointment to the chieftaincies …

The role of 1st defendant is ignoble in the whole matter but this cannot be the basis to set aside the appointment of 3rd defendant validly made … the present Baale – 1st defendant being from Odoyangbuwa, I hold that by the custom as proved by the defendants which I accept, it is now the turn of Aledo to appoint the Ekeji-Ilu and not that of Iselu. Therefore the appointment of 3rd defendant cannot be assailed …

The 3rd defendant established that he is both from Iselu and Aledo and that both ways he could be Ekeji-Ilu.

Further I have held that his appointment is in order as by Customary Law both Iselu and Aledo could produce Baale and Ekeji-Ilu. The abundant evidence which I believe is that the Aledo people appointed him and the prescribed authority approved his appointment. The 2nd defendant must have been satisfied under section 22(2) of Cap. 20 that 3rd defendant’s appointment was proper before approval. I therefore dismiss claims four and five I would also dismiss claim six since the appointment of 3rd defendant as Ekeji-Ilu is held to be valid. The injunction would also fail.

All the claims of the plaintiffs are hereby dismissed in their entirety.”

The learned trial Judge dismissed all the claims of the plaintiffs.

Being dissatisfied, plaintiffs timeously filed notice of appeal to be found at pages 141 to 144 of the record of appeal. Seven grounds of appeal were formulated and in accordance with the rules of this court they furnished and supplied the particulars. The plaintiffs are from henceforth referred to in this judgment as appellants. The notice of appeal was served on the defendants who are herein referred to in this judgment as 1st, 2nd and 3rd respondents.

After service of the notice of appeal on respondents in accordance with the rules and practice of this court about brief writing appellants with the leave of court filed appellants’ brief of argument in this court on 27th March, 1998 which brief of argument was relied upon and adopted in the argument of this appeal.

Upon the argument of appeal before this court, learned counsel for the respondents and the respondents were absent having filed with the leave of this cout1 respondents’ brief of arguments this court invoked its powers under Order 6 rule 9 sub rules (1) and (5) of the Court of Appeal Rules to have deemed the respondents’ appeal to have been argued on respondents’ brief of argument filed on 8th November, 2000; Popoola Bamgbegbin & Ors. v. Jimoh Atanda Oriare & Ors. (2001) 5 NWLR (Pt. 707) page 628 CA.

Appellants at page 3 of their brief of argument distilled from the grounds of appeal the issues for determination as follows:

3.00 Issues for determination:

1. Whether the learned trial Judge was right in applying exhibit B (the selection to the Baale of Imodi Chieftaincy Declaration) to the Chieftaincy title of Ekeji-Ilu of Imodi-Ijebu?.
2. Whether having regard to the admissible evidence on custom and tradition relating to the appointment of Ekeji-Ilu Chieftaincy title adduced at the trial, the learned trial Judge was right in rejecting the appellants’ version and dismissing their case?.
3. Whether the learned trial Judge was right in holding that exhibits ‘G3’ – ‘G5′ are of no effect.

On their part, respondents at page 4 of respondents’ brief of argument followed the rule of brief writing that respondents must formulate also their issues for determination based on the grounds of appeal Union Bank of Nigeria Plc v. Okubama (2000) 14 NWLR (Pt. 688) page 570 CA. Respondents’ issues for determination are as follows:

Issues for determination:

1. Whether exhibit B which is the chieftaincy declaration in respect of selection and appointment to the chieftaincy title of Baale of Imodi is applicable to the chieftaincy title of Ekeji-Ilu of Imodi?.
2. Whether on the preponderance of evidence before the trial court the trial Judge could still have held that the appellants had discharged the onus of proof placed on them?. This includes the decision of the trial court on the procedure adopted against the 2nd respondent.
3. The validity of exhibits D. G3-G5.

A close consideration of the issues for determination by the parties in this appeal shows that the issues for appellants and respondents’ issues are similar and further encompassed by this court that:

“Whether the learned trial Judge was right to have dismissed all the claims of appellants based upon the law, pleadings and evidence adduced before him by relying on the credibility of the witnesses”.

Appellants submitted on issue 1 in their brief of argument that learned trial Judge was wrong to hold that:

The plaintiffs’ evidence that only Odoyangbuwa and Iselu produce both the Baale and Ekeji-Ilu cannot be correct. This is so in view of exhibit B. (The Italics was supplied)

Learned counsel for appellants submitted that Baale and Ekeji-Ilu are distinct chieftaincy titles and exhibit B specifically and expressly mentioned selection to the Baale of Imodi chieftaincy declaration, this excludes any other chieftaincy title not so mentioned the maxim expressio unius est exclusio alterius applies the contrary by the court was to making a declaration to the minor chieftaincy title of Ekeji-Ilu which the court lacked power to make, as decided in Adigun & Ors. v. A.-G., Oyo State & 17 Ors. (1978) 2 NWLR (Pt. 56) page 197; Eguamwense v.Amaghizemwen (1993) 9 NWLR (Pt.315) page 1 at 41; Lidepe v.Sonekan (1995) 1 NWLR CPt.374) page 688. As the words in exhibit B were very clear and unambiguous the court had no power to add or read extraneous matters to it UBN Ltd. v. Ozigi (1994) 3 NWLR CPt.333) page 385 at 400; USN Ltd. v. Sax (Nig.) Ltd. (1994) 8 NWLR CPt.361) page 150 at 164. Exhibit B did not provide any custom or tradition for selection and or appointment of the Ekeji-Ilu Chieftaincy title. In the absence of a declaration for the chieftaincy title of Ekeji-Ilu of Imodi in dispute the court should have acted on the custom and tradition as established by evidence Lipede v. Sonekan, supra.

The learned trial Judge was in error to have exhibit “B” to the minor chieftaincy of the disputed Ekeji-Ilu of Imodi. This honourable court should therefore resolve issue 1 in appellants’ brief of argument in favour of appellants by allowing the appeal.

As reflected above issue 1 in respondents’ brief of argument is similar to issue 1 in appellants’ brief of argument. In support respondents submitted that Ekeji-Ilu Chieftaincy be treated as res gesta. Baale of Imodi Chieftaincy as embodied in section 7 of the Evidence Act, 1990 as the selection and appointment of Baale Imodi E are acts or incidents which constitute or accompany and explain the facts about the selection and appointment of the disputed minor chieftaincy, they are admissible as forming part of res gesta, Otiti v. The State (1991) 8 NWLR (Pt. 207) page 103 at 108 the maxim expressio unius est exclusio alterius, supra does not apply in that the Baale of Imodi-Ijebu and Ekeji-Ilu of Imodi-Ijebu are dependent on each other for existence. The latter being a stepping stone before being appointed to the former. The learned trial Judge had rightly applied exhibit B to the chieftaincy title of Ekeji-Ilu of Imodi.

The inclusion of Aledo family in exhibit B rendered the case of appellants to be useless and incompetent claims as it knocked the bottom off appellants’ claims.

The averment in paragraph 12 of the statement of defence was supported by the evidence of all defence witnesses to the effect that namely Odoyangbuwa, Iselu and Aledo families, with Iselu and Aledo merged as one that produced the appointment of Ekeji-Ilu in rotation between Odoyangbuwa, Iselu and Aledo. The same custom is used for the selection and appointment of Baale Imodi, the learned trial Judge concluded rightly that exhibit B declared the custom of the appointment of Ekeji-Ilu Chieftaincy of Imodi. As exhibit B is the registered declaration of the chieftaincy it excludes any other customary law or usage and will continue to be in force until amended or set aside by a competent court Obala of Otan Aiyegbaju & Ors. v. Chief Joseph Adesina & Ors. (1999) 2 NWLR (Pt. 590) page 163 at 101. By applying exhibit B the trial court did not made a chieftaincy declaration neither did it add nor made extraneous matter into exhibit B in the circumstance issue 1 in appellants’ brief of argument is unsustainable and be resolved against the appellants by dismissing the appeal based on it but resolve issue 1 in respondents’ brief of argument in favour of respondents and to dismiss the appeal.

The above are the contentions of the parties on the similar issue 1 in appellants’ and respondents’ briefs of arguments succinctly put whether from the pleadings and evidence in this case the learned trial Judge was right to have based and concluded that exhibit B was applicable customary declaration to Ekeji-Ilu minor chieftaincy.

It is common ground that Ekeji-Ilu is a minor chieftaincy under Chiefs Law, Cap. 20, of Laws of Ogun State which by its section 22 and its sub-sections apply to the disputed minor chieftaincy of Ekeji-Ilu with the applicable law being section 22 and its sub-sections Chiefs Law, Cap. 20 aforesaid provide as follows:

22(1) The Executive Council may appoint in respect of the area (which expression shall in this part and part 4 be deemed to include a reference to part of an area) of any Local Government an authority (in this part referred to as the prescribed authority) consisting of one person, or of 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.

(2) Where 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.

(3) Where there is a dispute whether a person has been appoint in accordance with customary law to a minor chieftaincy the prescribed authority may determine the dispute.

(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

(5) Any person aggrieved by the decision of the prescribed authority in exercise of the powers conferred on the prescribed authority by sub-sections (2), (3) and (4) of this section may, within twenty-one days from the date of the decision of the prescribed authority, make representations to the Commissioner to whom responsibility for chieftaincy affairs is assigned that the decision be set aside and the Commissioner may, after considering the representations, confirm or set aside the decision.

Appellants sought declaratory reliefs 1 to 6 under Chiefs Law, Cap. 20, Laws of Ogun State, at page 135 of the record of appeal the learned trial Judge stated thus as reflected above in this judgment:

Generally, chieftaincy matters have now been codified in Ogun State and Chiefs Laws, Cap. 20, Laws of Ogun State, 1978 is the relevant law applicable to chieftaincy matters within the state …

In relation to minor chieftaincies to which part 3 of Cap. 20 applies, it is the prescribed authority to such minor chieftaincies that approves appointment to such minor chieftaincies under section 22(2) of Cap. 20 .

… The plaintiffs and defendants are all agreed that the Ekeji-Ilu eventually becomes the Baale whenever a

vacancy occurs. They do not agree as to the customary law applicable to the appointment. The plaintiffs’

evidence that only Odoyangbuwa and Iselu produce both the Baale and Ekeji-Ilu cannot be correct. This is so in view of exhibit B which has included Aledo in the list. I do not agree that defendants mentioned three ruling houses as submitted by Chief Toye Coker. There are always two ruling houses to produce both the Ekeji-Ilu and Baale. These are (a) Odoyangbuwa and (b) Iselu and Aledo. Iselu and Aledo are not two ruling houses but one ruling house … This is where the story of defendants that Gbede was the first person to settle at Aledo becomes more probable and that Naalo was the first Baale of Imodi from Aledo.

Section 2 of Cap. 20 Chiefs Law aforesaid defines minor chief ‘means a chief other than a recognised chief’ it is common ground that Ekeji-Ilu and Baale of Imodi are minor chieftaincies within the meaning and intendment of section 2 as defined above and the applicable law is part 3 section 22 and its sub-sections, supra, Cap. 20, Chiefs Laws as aforesaid.

By virtue and under delegation of functions page 282 Vol. 1 Chiefs Law, Cap. 20, Ogun State delegated to prescribed authorities mentioned in the second column of the schedule hereto with respect to the minor chiefs whose chieftaincy titles are associated with the native communities in the respective areas mentioned in the third column of the schedule.

“Schedule

Serial Prescribed Authority Area

74 The Awujale of Ijebu Land The area of authority of the Ijebu Ode District Council.”

It is common ground that Ekeji-Ilu of Imodi is a minor chieftaincy and that 2nd respondent is the prescribed authority hence the declaratory reliefs sought against 2nd respondent in particular in claims 3 and 4 by appellants. Exhibit B was issued by Ijebu-Ode District Council as declaration made under section 4(3) of the Chiefs Law, 1957 of the Customary Law regulating the selection of the Baale of Imodi chieftaincy:

(i) The number of quarters which have the right to provide candidate for the chieftaincy shall be two namely;

(1) Odoyangbuwa

(2) Aledo-Iselu

(ii) The order of rotation in which every quarter shall provide a candidate is as follows:

(1) Odoyangbuwa (present ruling quarter)

(2) Aledo-Iselu

(iii) The method of nomination from the quarters shall be as follows:

A mass meeting of the quarter concerned shall be held under the quarter head of the quarter whose turn it is to provide candidate at a suitable place and time to be specified by him for the purpose of nominating a candidate. The candidate so nominated shall be presented to the towns people and later to the Awujale for approval and recognition who shall receive no customary gifts from the candidate. MADE by the Chieftaincy Committee of the Ijebu Ode District council which has been designated as the competent council by W.R.L.N. 61 of 1955 and signed by the Chairman and Secretary of the Committee this 8th day of March, 1958.

L.A. Akinsanya,

Chairman, Chieftaincy Committee

C. Aden Aderibigbe,

Secretary, Chieftaincy Committee

APPROVED this 5th day of December, 1958

D.S. Adegbenro,

Minister of Local Government

REGISTERED this 6th day of December, 1958

G.H. Buck,

For Permanent Secretary,

Ministry of Local Government.

It is pertinent to state that exhibit B registered on 6th December, 1958 is the subsisting registered declaration of the customary law regulating the selection to the Baale of Imodi Chieftaincy as it has not been amended, it is therefore the applicable declaration of the customary law so held the Supreme Court in Obeda of Otan Aiyegbaju G & 5 Ors. v. Chief Joseph Adesina (Head of Olasuka ruling House) and 2 Ors. (1999) 2 NWLR (Pt. 590) page 163 at 181, 184-185 that:

(1), (2) and (3).

Held (unanimously dismissing the appeal):

1. On what grounds locus standi in chieftaincy action- It is not sufficient in a chieftaincy suit, as in the instant case for the plaintiff to merely say he is a descendant of a chieftaincy line. In addition to belonging to a ruling house, he must demonstrate how his interest arose. (Momoh v. Olotu 1970) 1 All NLR 177 referred to. (P.184, paras. E-F).
2. On proof of registration of a chieftaincy declaration If there is a registered declaration of the customary law regulating the appointment to a chieftaincy office, the evidence is straight forward and would consist in the production of the registered declaration, in which case a single witness would suffice. (Adigun v. A.-G., Oyo State (1987) 2 NWLR (Pt. 53) 678 referred to and applied. (Pp. 184-185, paras. H-A).
3. On effect of registration of chieftaincy declaration –

A registered chieftaincy declaration is deemed to be the customary law regulating succession when a vacancy occurs in the chieftaincy. It excludes any other customary law or usage and will continue to be in force until amended or set aside by a competent court. In the instant case, the Olotan Chieftaincy Declaration of 1957, which is subsidiary legislation, has the force of law, 181, paras. C-D) See also (1) The Secretary, two Central Local Government & 2 Ors. v. Taliatu Adio (2000) 8 NWLR (Pt. 667) page 155 at 131 SC wherein it was held by the Supreme Court that:

(1) A chieftaincy declaration is by virtue of the Chiefs Law of Oyo State, Cap. 21, Laws of Oyo State, 1978 a statement declaratory of the customary law regulating the selection of a person to be the holder of a recognised chieftaincy.

(2) A chieftaincy declaration by virtue of the Chiefs Law of Oyo is subsidiary legislation in that it is made under the authority of the said Chiefs Law.

Appellants contended that as exhibit B was ominously silent about Ekeji-Ilu it is improper to extend its application to Ekeji-Ilu when it specifically declared the Baale of Imodi Chieftaincy by applying the rule of interpretation of statutes and as the words used are not ambiguous the ordinary, natural and grammatical meaning should apply the application and extension to Ekeji-Ilu makes the Latin maxim expressio unius est exclusio alterius translated means (the expression of one thing is the exclusion of another is applicable) be applied and that exhibit B is not the registered declaration of the customary law for the selection of Ekeji-llu of Imodi. The Registered Trustees of ECWA Church GAA Akanbi Ilorin v. Mallam Saidu Ajia ljesha (1999) 13 NWLR (Pt. 635) page 368 at 384 Court of Appeal.

The Latin maxim must be applied with great care and caution as it means that the expression of one person or thing implies the exclusion of other persons or things of the same class but which are not mentioned. In Colquhoun v. Brooks (1887) 19 QBD 400 at page 406, Wills J. said:

I may observe that the method of construction …

expressio unius exclusio alterius is one that certainly requires to be watched. Perhaps few so-called rules of interpretation have been more frequently misapplied and stretched beyond their due limits. The failure to make the expressio complete very often arise from accident very often from the fact that it never struck the draftsman that the thing supposed to be excluded needed specific mention of any kind and the application of this and every other technical rule of construction varies so much under differing circumstances and it is open to so many qualifications and exceptions, that it is rarely that such rules help one to arive at what is meant.

On appeal reported as (1889) 21 QBD 52 at page 65 Lord Lopes, L.J. In the Court of Appeal stated:

The maxim expressio unius exclusio alterius has been pressed upon us. I agree with what is said in the court below by Wills J. about this maxim. It is often a valuable servant but a dangerous master to follow in the construction of statutes or documents. The exclusio is often the result of inadvertence or accident and the maxim ought not to be applied were its application having regard to the subject matter to which it is to be applied leads to inconsistency or injustice.

Applying the above to the instant appeal, it is common between the parties that the condition precedent before a person can be appointed Baale of Imodi is first of all to be appointed Ekeji Ilu and when the Baaleship is vacant through the ladder one is appointed Baale of Imodi through the registered declaration exhibit B it is the same customary law and procedure set out in exhibit B that is used in appointment of Ekeji Ilu with confirmation by the prescribed authority in the instant appeal the second respondent the Awujale of Ijebuland. Respondents put it rightly that Ekeji Ilu is the stepping stone and foundation to becoming the Baale, Imodi, the two are intertwined like a Siamese twins you cannot be appointed into the minor chieftaincy of Baale of Imodi without first being Ekeji-Ilu.

The Ekeji-Ilu is the condition precedent to appointment of Baale.

Condition precedent was stated to mean in Hamza Lawal & Anor v. Kafaru Oke & Ors. (2001) 7 NWLR (Pt. 711) page 88 at 116 wherein the Court of Appeal stated and held:

14. On meaning of condition precedent is something that must be done or happen in a particular case before one is entitled to institute an action. It is not of the essence of such a cause of action but it has been made essential by law JAL 361 Inc. v. Mobil Oil (Nig.) Plc. (1999) 5 NWLR (Pt. 601) referred and adopted.

As Ekeji-Ilu chieftaincy is a condition precedent to appointment of Baale Imodi chieftaincy it is my view and understanding that the appointment of Ekeji-Ilu is embedded in exhibit B and subsumed by exhibit B by implication therefore the submission of appellants of exclusio is rejected by me as inapplicable in so holding I was guided by the decision of Morris, L.J in Dean v. Weisen Grund (1955) 2 QB 120 at page 137 and also Re Newspaper Proprietors Agreement (1962) LR 3 RP 81 at page 95 and (1964) LR 4 RP 361 at page 397.

As a result issue 1 raised by appellants is unmeritorious and resolved against the appellants that exhibit B is the registered declaration of the customary law for the selection and appointment to the minor chieftaincy title Ekeji-Ilu of Imodi, appellants’ complaint about exhibit B lacks substance leading to dismissal of the appeal on this ground. Issue 1 in respondents’ brief is resolved in favour of respondent thereby a dismissal of the appeal on this issue.

Issues 2 and 3 in appellants’ brief of argument are complaints against the evaluation of evidence based on the evidence adduced before the learned trial Judge from the averments in appellants’ statement of claim. The main fulcrum of appellants’ complaints as per the chart at page 6 of appellants’ brief of argument established that both Baale and Ekeji-Ilu chieftaincy titles had always been rotated between Iselu and Odoyangbuwa families and that no member of Aledo family through which 3rd respondent claimed was ver appointed Ekeji Ilu since its creation. The 1strespondent set up a committee to look into the chieftaincy dispute between 1st appellant and 3rd respondent. The 1st respondent affirmed and confirmed the appointment of 1st appellant whilst it rejected the appointment and selection of 3rd respondent as shown in exhibits D, G3 to G5 which reflected that 1st respondent agreed with the decision of the committee set up by him to resolve the dispute.

Out of the blues 1st respondent presented 3rd respondent to the 2nd respondent the prescribed authority for the minor chieftaincy who relied on exhibit B that Aledo family had never produced nor been selected as Ekeji-Ilu erroneously appointed 3rd respondent without enquiry whether the 3rd respondent was rightly selected before presentation to him as shown in exhibit G3 to G5.

Appellants therefore submitted that a proper appraisal of the evidence adduced before the learned trial Judge and the conclusion reached showed that the learned trial Judge did not evaluate the evidence properly the findings of facts and dismissal of all the claims of the appellants were perverse, so also the evidence of respondents that Naalo was the 1st Baale of Imodi who hailed from Aledo family which evidence was based on the belief and acceptance of the evidence of 3rd DW the 91 old man who laid claim as the oldest living person in Imodi when he testified. The evidence was not pleaded therefore it goes to no issue. Emegokwue v. Okadigbo (1974) 4 SC 113 at 17, George v. Dominion Floor Mills Ltd. (1963) 1 All NLR at 71 at 77.

Appellants submitted that a proper appraisal of the evidence would have shown that respondents did not challenge the evidence of rotation of Ekeji-Ilu between Odoyangbowa and Iselu families.

As the evidence was unchallenged the learned trial Judge should have applied Omoregbe v. Pendor Lawani (1980) NSCC Vol. 122 page 164; Otuedon & Ors. v. Olughor & Ors. (1997) 9 NWLR (Pt.521) page 355 at 376.

With regard to exhibits D, G3 to G5 the rejection by the learned trial Judge that they are of no effect at page 138 of the record of appeal lines 4 – 5 and 29 – 30 was erroneous. The parties joined issues in their pleadings and ought to have rejected paragraph 17 of the statement of defence as there was no evidence that 1st respondent has no power to write exhibit D which constituted an admission against the interest of the 1st respondent and thereby estopped from setting up a contrary assertion see Daniel Okonkwo v. Ogbogu & Ors. (1996) 5 NWLR (Pt. 449) page 421 at 433; Ojiegbe & Ors. v. Okwaranyia & Ors. (1962) 1 All NLR 605. Though an admission do not constitute conclusive proof of the matters admitted but it may operate as estoppel Kamalu v. Umunna (1997) 5 NWLR (Pt. 505) page 321 at 336. If the learned trial Judge had considered all the facts adduced on exhibit D properly he would not have dismissed exhibit D as of no weight and valueless.

Exhibits G3 to G5 were the minutes and findings of chiefs appointed to look into the dispute between 1st appellant and 3rd respondent.

The 1st respondent was the chairman and executed exhibits G3 to G5 as 1st respondent was the one that set up the committee 1st respondent resiled and that he had no such power which led the learned trial Judge to hold erroneously that the recommendation in exhibit G3-G5 was of no effect. This committee appellants submitted did not assume the power of the appropriate property, the main function was to recommend to 2nd respondent as 1st respondent was a member of the committee it could not recommend to himself.

This honourable court like the trial court should re-evaluate the evidence as they merely bordered on documentary evidence since credibility of witnesses about the documentary evidence had no role to play reliance was made to cited cases among which is Ezebilo Abisi & Ors. v. Vincent Ekwealor & Anors. (1993) 6 NWLR (Pt.302) page 643 at 673 SC.

From the foregoing issues 2 and 3 of appellants’ brief of argument be resolved in appellants’ favour that the learned trial Judge was wrong in dismissing the appellants’ case by setting aside the said judgment by allowing the appellants’ appeal.

Respondents in issues 2 and 3 in respondents’ brief of argument touched on whether the learned trial Judge was right to have evaluated the evidence that on the totality of evidence at the trial appellants failed to dislodge that Aledo family was to produce the Ekeji Ilu as Aledo Iselu family constitute the second ruling house to producer Ekeji Ilu in rotation between Aledo and Iselu as the last was from Iselu wing it was for Aledo to fill the vacant minor chieftaincy. The genealogy of 3rd respondent which appellants stated was not pleaded was in fact pleaded in paragraphs 14 and 15 of the statement of defence which averments were established through the testimonies of 1st DW and 3rd DW who were unshaken under cross-examination.

The illustrated chart be disregarded as contrary to exhibit B which is the subsisting registered customary declaration for Ekeji Ilu. This issue is whether by virtue of exhibit B Aledo was fit to produce the next ekeji Ilu and not whether there was a previous holder from Aledo. In any event the first Baale of Imodi, Naalo was from Aledo section. Respondents submitted that the learned trial Judge did not misconceive the evidence before him. The conclusion and assessment were based on the evidence validly pleaded in the statement of defence, the findings and conclusions were not perverse Akinfolarin v. Akinola (1988) 3 NWLR (Pt. 81) page 235 at 238.

The evidence of the appellants were inconsistent and unreliable so submitted respondents and were devoid of any credibility, whereas respondents’ evidence were cogent, convincing and did not conflict with their pleadings so the learned trial Judge was right to have dismissed all the claims of appellants as they lacked substance equally the court should dismiss the appeal. Claim or relief 3 sought an order of mandamus against 2nd respondent, to seek an order of mandamus against a public officer to compel him to perform his public duty is to proceed under Order 43, High court (Civil Procedure) Rules of Ogun State as appellants did not follow the special procedure. With respect relief three by appellants in my understanding is a mandatory order against 2nd respondent to perform his statutory duty although it is covered by judicial review the appellant elected to seek among other declaratory orders to compel 2nd respondent perform his statutory function was justified instead of judicial review of mandamus in any case the parties did not join issues in the lower court that relief 3 be struck out as not competent. The issue of mandamus was cursory submission in the address of the learned senior counsel for respondents no comments or order of mandamus was made by the learned trial Judge so the argument of counsel did not arise from the judgment of the lower court or based on any grounds of appeal, therefore the issue of mandamus is rejected as of no merit.

On the issue of exhibits D, G3-G5 respondents submitted were properly treated by the learned trial Judge as having no weight because 3rd respondent’s acts on exhibits D, G3-G5 were ultra vires as they were illegal acts of 3rd respondent as a party cannot derive and enjoy benefit of his illegal act Oil Field Supply Centre Ltd. v. Johnson (1987) 2 NWLR (Pt. 58) page 625 at 626; Ogwuru v. Coop. Bank of Eastern Nigeria (1994) 8 NWLR (Pt. 365) page 685 at 686. This honourable court should resolve the issue against appellants as lacking in substance and affirm the treatment of exhibit D, G3-G5 that they had no effect or weight.

All the issues raised by appellants be resolved against them by dismissing the appeal but affirm and confirm the judgment of the lower court that dismissed all the claims of appellant.

Appellants sought declaratory orders and injunction against respondents. Order 23 rule 5 High Court (Civil Procedure) Rules of Ogun State reads that 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 declaration of right whether any consequential relief is or could be claimed or not, the power to grant binding declarations of right is discretionary but the power is very wide but to be liberally exercised and only limited by the discretion of the court itself Ibeneweka v. Egbunam (1964) 1 WLR page 219 (Privy Council); Elendu v. Ekwoaba (1995) 3 NWLR (Pt. 386) page 704 CA confirmed by Supreme Court in Elendu v. Ekwoaba (1998) 12 NWLR (Pt. 578) page 320 SC.; Fasanya v. Adekoya (2000) 15 NWLR (Pt. 689) page 22 CA. In the exercise to grant or refuse declaratory order the court must act judicially and judiciously each exercise of discretion shall depend on the facts and circumstance of each case.

As appellants’ claims on declaratory orders and injunction the onus placed on them are set out in sections 135, 136 and 137 Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990 judicially interpreted that the plaintiff who seeks declaratory orders and injunction must succeed on the strength of his own case by preponderance evidence of probability and not the weakness of the defendants’ case in such a situation the plaintiff can rely on that part of the defendants’ case that supports plaintiffs’ case to establish the plaintiffs’ case see chapter 13 Burden and Standard of Proof by Hon. Justice Niki Tobi, JCA, pages 280, 281 and 282 in Law and Practice of Evidence in Nigeria by Chief Afe Babalola, SAN; Elendu v. Ekwoaba (1995) 3 NWLR (Pt.386) 704 Court of Appeal (1998) 12 NWLR (Pt.578) 20 SC; Josiah Akinola & Anor v. Fatoyinbo Oluwo & Ors. (1962) 1 SCNLR 353; Itauma v. Akpe-Ime (2000) 12 NWLR

(Pt.680) 156 SC; Adeniji v. Onagoruwa (2000) 1NWLR (Pt.639) 1 CA.

It is trite law that where the parties call witnesses before accepting or rejecting the evidence of parties the trial Judge is enjoined to set up an imaginary judicial scale by putting up the evidence adduced by the plaintiff on one side of the scale and putting the evidence adduced by the defendant on the other side of the imaginary judicial scale and weigh both together to attach probative value not by the number of witnesses called by either side but by ascription of probative value to see where the scale of justice tilts is what is meant that civil case is decided on the evidence of probability Mogaji v. Odofin (1978) 4 SC 91 at 98; Tinubu v. Khalil & Daibbo Trans. Ltd. (2000) 11 NWLR (pt.677) 171 SC. From the printed record the learned trial Judge followed this rule and in assessing, evaluation and ascription of weight to the pieces of evidence that led to reference to pages 135, 136, 137, 138, 139 and 140 of the judgment, supra.

As appellants complained about the evaluations, ascription of probative value and the findings of fact based partly on credibility of witness made this court for a comprehensible understanding of the issues led supra to the production in part of the judgment from pages 135 to 140 of the record of appeal.

The approach to evaluation of evidence is the rule in Mogaji v. Odofin, supra the learned trial Judge applied rightly the said rule in the evaluation in this case.

Evaluation of evidence is primarily the function of the trial court having regard to the fact that it is the trial court which had the opportunity of seeing and hearing the testimonies of witnesses and observing their demeanour. It is only where and when the trial court fails to evaluate such evidence properly or at all that an appellate court can intervene and re-evaluate such evidence itself. Otherwise, where the trial court has satisfactorily performed its primary function of evaluating evidence and correctly ascribing probative value to it, an appellate court has no business interfering with its finding on such evidence. Ebba v. Ogodo (1984) 5 SC 291 at 326; Nwokoro v. Nwosu (1994) 4 NWLR (Pt.337) 172 at 188 CA; Guda v. Kitta (1999) 12 NWLR (Pt.629) 21 CA; Omodele Ashabi Eya & Ors. v. Alhaji Bello Qudus & Anor. (2001) 15 NWLR (Pt. 737) 587 at 620, and 621 CA.

In evaluating the evidence, the learned trial Judge found as a fact that exhibit B is registered customary law for selection and appointment of Ekeji-Ilu of Imodi. It was the Aledo family that was rightly selected and appointed with confirmation of the 3rd respondent as Ekeji-Ilu by the prescribed authority 2nd respondent as declared in exhibit B. From the foregoing it is only where and when the trial Judge fails to evaluate such evidence properly or at all that an appellate court can intervene and itself re-evaluate such evidence. Otherwise, where the trial court has satisfactorily performed its primary function of evaluating evidence correctly ascribing probative value to it an appellate court has no business interfering with its findings on such evidence. In the instant case on appeal the pleadings and evidence were deliberately and advisedly set up above and to say that the learned trial Judge acted properly, satisfactorily and convincingly in the ascription and evaluation of evidence based on credibility. Therefore, I decline to interfere with the evidence by the lower court.

Be that as it may, the altitude of the appellate court towards findings of fact by the trial court is well settled and trite that a Court of Appeal should be loathe to interfere with or reverse findings of fact made by court of trial unless such findings are perverse. Indeed, the Court of Appeal should not disturb a finding of fact unless that court is deciding whether the evidence is sound or not that 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 case, the findings of fact that Aledo and Iselu jointly and by rotation between them can produce vacancy to selection and appointment to Ekeji-I1u and succession to Baale of Imodu as declared in exhibit B after analysing and assessment of the appellants’ case that it was Iselu alone that could present nomination for Ekeji-Ilu whilst 3rd respondent stated that Aledo and Iselu families are to produce nominations in rotation was after careful evaluation of the evidence rejected the case of the appellants that only Iselu is entitled to produce nomination of Ekeji-Ilu minor chieftaincy this findings of fact was borne out from the pleadings and exhibit B which is the subsisting registered customary declaration for Baale of Imodi to which there is a condition precedent that from time immemorial a person cannot be selected or nominated as Baale of Imodi unless through the door or ladder of being Ekeji-Ilu. The finding of fact in my view and opinion is not perverse therefore as an appellate court there is no legal basis or justification to disturbing the findings of fact which is hereby confirmed by me Abusomwan v.Merchantile Bank Ltd. (1987) 3 NWLR (Pt.60) 196 SC; Omoregie v. Idugiemwanye (1985) 2 NWLR (pt.5) 41; Nwokoro v. Nwosu (1994) 4 NWLR (Pt.337) 172 CA.

In the consideration of the evidence the learned trial Judge at page 138 of the record of appeal already reproduced above in this judgment, the extract reads in part as follows:

“I hold that the defendants established customarily both Baale and Ekeji-Ilu are produced by Odoyangbuwa and Iselu and Aledo, I am more convinced by the evidence of DW3 Mustafa Olowa who testified that the two quarters of Odoyangbuwa and Imafon produce the Baale and Ekeji-Ilu and that Imafon is made up of Iselu and Aledo. This evidence clearly established the custom of appointment to chieftaincies. The custom is supported by exhibit B which is the approved registered declaration applicable to the Baale of Imodi. Since the same custom is applicable to both chieftaincy exhibit B also supports the customary law applicable to the Ekeji-Ilu chieftaincy. The role of 1st defendant is ignoble in the whole matter but this cannot be the basis to set aside the appointment of 3rd defendant validly made ….The 3rd defendant established that he is both from Iselu and Aledo and that both ways he could be Ekeji-Ilu.”

My understanding of the above is the complaint of appellants against the learned trial Judge of wrongful and improper evaluation of evidence based on the credibility of witnesses. It is trite law that generally an appellate court will not interfere with the decision of a trial court which is based on the credibility of witnesses unless the appellate court is satisfied that the learned trial Judge failed to take advantage of having seen and heard the witnesses, there is no convincing complaint that the learned trial Judge ran foul of this principle of law. Therefore there is no legal justification to interfere or disturb the evaluation of the evidence based on credibility of witnesses by the learned trial Judge.

As stated above appellants sought declaratory reliefs and injunctions which are granted or refused at the judicial discretion of the court. A declaratory judgment is a remedy for the determination of justifiable controversy where the plaintiff is in doubt as to his legal rights. It is also binding adjudication to the rights and status of litigants even though no consequential relief is awarded.

Being exercise of judicial discretion the attitude of appellate court to exercise of judicial discretion by trial court is well settled by the case of University of Lagos v. M.I. Aigoro (1985) 1 NWLR (Pt.l) 143. 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 considerations the order may be reversed 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 bona fide by a lower court uninfluenced by irrelevant consideration 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 misapprehension of fact that it either gave weight to irrelevant or unproved matter.

Applying the above principles in the instant appeal there is no wrongful exercise of the judicial discretion by the trial Judge as the trial court refused the declaratory orders and injunction that in the circumstances the trial court was not satisfied that appellants were fully entitled to the exercise of the courts’ discretion in their favour Onuoha v. Okafor (1983) 2 SCNLR 244; Ekweno v. Ifejika (1960) SCNLR 320; Egbunike v. Muonweokwu (1962) 1 SCNLR 997 referred to and applied in this case.

From the foregoing, all the issues canvassed on issue 2 in appellants’ brief of argument are resolved against appellants as unmeritorious and lacking in substance thereby the appeal is dismissed for the reason given in consideration of issue 2 in appellants’ brief and issue 2 in respondents’ brief of argument that appeal is dismissed.

Exhibits D and G3-G5 were written by 1st respondent whilst exhibits G3 to G5 were minutes of a meeting about selection and nomination of Ekeji Ilu Minor chieftaincy. It is trite law that statement reduced into writing can only be used like a previous statement made in a previous proceedings to cross-examine the maker it has no other evidential value Alade v. Aborishade (1960) SCNLR 398; Bayol v. Ahemba (1999) 10 NWLR (Pt. 623) page 381 SC; Forarin v. Durojaiye (1988) 1 NWLR (Pt. 70) page 351 SC; Njoku v. Dikibo (1998) 1 NWLR (Pt. 534) page 496 CA. Applying the above to the instant case as they were not used for cross-examination they were of no evidential value as rightly held by the court. Issue 3 in both parties’ briefs of argument are resolved against appellants but in favour of respondents thereby leading to the dismissal of appellants’ appeal as unmeritorious.

As all the issues are resolved against appellants their appeal are dismissed whilst the judgment of Hon. Justice Oyewole Osidipe dated 15th day of March, 1996 is hereby confirmed and that all the declaratory orders and injunction sought by appellants were rightly and properly dismissed.

Notwithstanding the dismissal of appellants’ claims, the case would have been dismissed in any event for non compliance with section 22(5) Chiefs Law, Cap. 20, Laws of Ogun State judicially interpreted in Hamza Lawal & Anor (The Oloja of Igbesa) v. Kafaru Oke & Ors. (2001) 7 NWLR (Pt. 711) page 88 CA.

As the appeal of the appellants have been dismissed the respondents are entitled to costs. I need to reiterate that costs follow the event and it is awarded at the discretion of the court acting judicially and judiciously to compensate the successful party and not to punish the unsuccessful party therefore, I fix the cost of this appeal in the sum of N3,000.00 (Three thousand naira) each for the 1st and 3rd respondents being a total sum of N6,000.00 (Six thousand naira) whilst the sum of N4,000.00 (Four thousand naira is awarded in favour or 2nd respondent against the appellant the cumulative costs of N10,000.00 (Ten thousand naira) is awarded jointly and severally against appellants in favour of respondents as stated above.

Other Citations: (2002)LCN/1106(CA)