Chief Simeon Kayode Olayioye V. Madam Cecilia Ajibike & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment)

The appeal was brought by an interested party. It is against the decision of the High court of Justice of Kwara state holding at Omu- Aran (the court below). The judgment was given on 25/5/2005. The original parties in the court below were the present claimant/respondent, one Madam Cecilia Ajibike, and the defendant/respondent, one Mr. John Kolawole Asanlu (For the Asanlu Family Oro).

At the end of the proceedings, the court below gave judgement for the claimant/respondent that there are only three Ruling Houses in the Asanlu of Oro chieftaincy. It went ahead to enter an order of permanent injunction against any attempt to increase or expand the number of Ruling Houses or Families for the Asanlu of Oro chieftaincy.

The case in the court below commenced on a writ of summons with a statement of claim traversed by a statement of defence. Only the claimant/respondent testified. She did not call any witness. The defendant/respondent declined to give evidence. He aligned himself with the claimant’s/respondent case. The court below accepted the lone evidence of the claimant/respondent to hold that by the custom of the Asanlu of Oro chieftaincy, only the three Ruling Houses or Families of Babatunde, Duntoye and Ayinde are eligible to contest the stool of the Asanlu of Oro. The court below then issued the permanent injunction earlier referred to in the discourse.

The appellant became aware of the judgment of the court below when he was served an application for interlocutory injunction praying for a restraining order against his own side of the family called the Olayioye Ruling House of the Asanlu of Oro chieftaincy challenging his installation as the Asanlu of Oro. The appellant reacted by filing a motion for enlargement of time and for leave to appeal as an interested party on 9/3/2007, but dated 5/3/2007. The Court granted the motion on 15/4/2008. The appellant filed his notice of appeal containing four grounds of appeal on 15/4/2008.

The appellant’s brief of argument prepared by his learned counsel, Mr. Koni, was filed on 26/3/2007. The respondents were served the brief of argument on 30/3/2009. They did not file their own briefs of

argument. On a motion dated 28/7/2010, but filed on 29/7/2010, the appellant successfully moved the Court on 7/2/2011, to argue the appeal on the appellant’s brief alone. The order setting down the appeal for hearing on the appellant’s brief was made on the same 7/2/2001.

The appeal was argued on 24/10/2011. The appellant’s learned counsel adopted the two issues for determination distilled from the four grounds of appeal in the course of oral argument on the appeal. The said issues for determination derived from the grounds of appeal are, for convenience, copied below:

“(1) Considering the established native law, custom and tradition of Oro people, whether there are only three Ruling Houses that are entitled to nominate and present candidates for the chieftaincy stool of Asanlu of Oro-Grounds 1, 2 and 3.

(2) Having regard to the fact that from the commencement to the conclusion of the trial of this suit, no hearing notice or any court process at all was served on the appellant or his family, Olayioye Ruling House, on the platform of which he (the appellant) ascended the chieftaincy stool of Asantu of Oro, whether or not the lower court acted in the interest of justice by making orders which completely exterminate the interest of the appellant as well as that of his Ruling Family in the said Asanlu of Oro chieftaincy stool – Ground 4.”

Submitting on issue 1, the appellant stated that both the claimant/respondent and the defendant/respondent are members of the same family, Babatunde Ruling House; the suit brought by the claimant/respondent in the court below was based on custom; the defendant/respondent filed a skimpy statement of defence and was lacklustre in defending the action by opting not to give evidence in defence of the suit; the claimant/respondent did not call any witness, nor tendered any document in evidence before she closed her case; her testimony per se did not prove the custom she projected that there are only three Ruling Houses in the Asanlu of Oro chieftaincy eligible to contest the stool; the alleged custom was not shown to be notorious or in frequent application and use in the superior court to be judicially noticed; the custom needed to be proved to the fetter or by cogent evidence, which was not met by the solitary testimony of the claimant/respondent, consequently the declaratory reliefs sought by the claimant/respondent which are not granted as a matter of course, or in default of evidence or concession/admission by the defendant, but on hard facts proved by the claimant’s evidence, should not have been granted to her following sections 14 (1) and 137 of the Evidence Act and the cases of Egharevba v. Omonghae (2001) 11 NWLR (pt.724) 318 at 336, Barje v. Gunduma (2001) 13 NWLR (pt.731) 673 at 681, Temile v. Awani (2001) 12 NWLR (pt .728) 726 at 752, Olowu v. Olowu (1985) 3 NWLR (pt. 13) 372, Agbai v. Okogbue (1991) 7 NWLR (pt.204) 391, Alomaja v. Adewale (2004) 15 NWLR (pt.897) 564 at 588, Ngege v. Igbo (2004) 4 NWLR (pt.651) 131, Romaine v. Romaine (1992) 4 NWLR (pt.238) 650 at 652.

Submitting on issue 11, the appellant contended that the claimant/respondent and the defendant/respondent, as members of the same Babatunde Ruling House of Asanlu chieftaincy, colluded to prosecute the same agenda of excluding the appellant’s family, the Olayioye Ruling House, from the Asanlu of Oro chieftaincy by the defendant/respondent readily conceding the claim in a non-committal terse statement of defence and electing not to give evidence in the course of which he urged the court below to grant the reliefs sought by the claimant/respondent.

It was argued further that the defendant/respondent only used his statement of defence as a ploy to deceive the court below into believing both the claimant /respondent and himself were disputants or adverse parties without joining the Olayioye Ruling House in the Asanlu of Iro chieftaincy tussle, when both of them knew the outcome of the suit would prejudicially affect the interest of the appellant’s branch of the Ruling House which was the target of the suit but not joined in the action contrary to the decisions in the cases of Awoniyi v. Amorc (2000) 10 NWLR (pt .676) 522, Green v. Green (1987) 3 NWLR (pt.461) 480, Mobil Oil Plc v D.E.N.R. Ltd. (2004) 1 NWLR (pt.853) 142 at 158; and that the final order made by the court below had the adverse effect of excluding the appellant’s Ruling House or Family from occupying the Asanlu of Oro chieftaincy stool, when the appellant’s Ruling House was not made a party to the suit, therefore the appeal should be allowed following the case of Nabaruma v. Ofodile (2004) 13 NWLR (pt.891) 599 at 618.

The issues formulated by the appellant are, in my view, apt for the determination of the appeal and are hereby adopted for the purpose of the appeal. I think the starting point should be to take a bird’s eye view of the nature of the dispute and, how it was fought by the original parties in the court below