Efunwape Okulate & Ors Vs Gbadamosi Awosanya & Ors (2000)

LAWGLOBAL HUB Lead Judgment Report

UWAIFO, J.S.C.

This appeal is from a judgment of the Court of Appeal, Ibadan Division, given on 20 May, 1992. Judgment had been given in favour of the plaintiffs by the High Court, Ijebu-Ode, Ogun State. The defendants then contested it on appeal on three issues but in the main that the claim, in substance, involved the determination of family status and therefore the High Court did nor have original jurisdiction to entertain it. The reliefs sought by the plaintiffs were-

As against the 1st and 2nd defendants, a declaration that they or any member of their respective families are not entitled to be nominated, approved and/or appointed to the chieftaincy post of Olisa of Makun, Sagamu, as they are not members of Oresolu Family.

As against the 3rd, 4th and 5th defendants, perpetual injunction restraining them from ever recognising, approving, appointing and/or gazetting either of the 1st and 2nd defendants or anyone from their families as the Olisa of Makun, Sagamu.

On further appeal to this court, the same issues canvassed in the Court of Appeal were raised for determination. I set them out as follows:

1. Whether the court below was not in error when it held that the claim of the plaintiffs/respondents was not in the main and in substance one for the determination or an issue of family status.
2. Whether the court below was not in error when it held that in the circumstances of this case, the High Court has original jurisdiction to entertain the suit.
3. Whether the court below was not in error when it held in effect that the judgment of the trial court was not unreasonable having regard to the evidence led in the case.

Perhaps it is pertinent to remark here that the issue of jurisdiction, though pleaded, was not taken in limine at the trial court. The case was fought in full before counsel for either party addressed the issue. Consequently, the learned trial Judge (Delano J.) resolved the issue of jurisdiction along with the merits of the case. So did the court below, including the findings of fact made by the trial court.

The defendants (hereinafter referred to as the appellants) would appear to want this court to take the same course upon the issues raised. I shall accordingly consider and resolve seriatim the three issues raised for determination in the appellants’ brief. I have adopted this approach even although I am aware that had I taken first the second issue and resolved it in the negative, the first issue would have been rendered rather unnecessary. But it must not be forgotten that it was indeed the first issue that necessitated having a full court to hear the appeal. Both counsel dealt with it exhaustively in their respective briefs of argument as a live matter in the proceedings. I felt that to parry the issue in the circumstances, even purely on the rule of judicial expediency, would appear unsatisfactory.

First lssue:

On the first issue, learned counsel for the appellants, Chief (Mrs) Aremu, argued that the claim before the trial High Court was concerned with family status, From that premise, the contention is that the High Court of Ogun State did not have original jurisdiction to entertain the suit by virtue of section 10(1) [erroneously stated in the brief as s. 9( 1)] of the High Court Law, Cap.44 of the Laws of Ogun State, 1978, wherein original jurisdiction is denied to the High Court over matters relating to “marriage, family status, guardianship of children and inheritance or disposition of property on death”. Instead, that provision proceeds to confer jurisdiction in such matters on a Customary Court. For the purposes of issue 1, I shall look at the claim to ascertain what relief was in essence sought therein, The first relief seeks a declaration that the 1st and 2nd defendants or any members of their respective families are not members of Oresolu Family and consequently are not entitled to be nominated, approved and/or appointed to the chieftaincy post of Olisa of Makun, Sagamu. The statement of claim traces the family tree or genealogy of Olisa Family of Makun, Sagamu, identifying the lineage of the plaintiffs with it. It excludes the 1st and 2nd defendants. The purpose of relief 1 is to establish that only members of the said Olisa Family qualify to be appointed to the Olisa of Makun chieftainship. The 1st and 2nd defendants also set out in their Statement of defence the genealogical tree of Olisa Family of Makun different from that of the plaintiffs, and identifying themselves therewith through Demike and Ogundipe family branches. What was therefore joined on the pleadings in regard to relief 1 is whether or not the 1st and 2nd defendants can be said to be members of Olisa Family of Makun.

The said defendants as appellants contest in this court, as they did in the two courts below, that relief calls for a determination of the “family status” of the 1st and 2nd defendants.

They argue in their brief inter alia:

“It is the term ‘family status’ within this contest [of s.10 (1) of the High Court Law of Ogun State] that has called for interpretation. With great respect to this Honourable Court, what it has done so far is to interpret ‘family status’ as ‘status within the family’. It is respectfully submitted, however, that ‘family status’ does not necessarily mean ‘status within the family’. Being a member of a family is a ‘status’ by itself. In a strict legal sense, ‘Status’ is the sum total of an individual’s rights, obligations and disabilities conferred or imposed upon him irrespective of his own volition.”

With due respect, although this may be an interesting argument, it does not take account of widely accepted definitions of ‘family’ and ‘status’ in many standard reference books. For example, The Shorter Oxford English Dictionary Vol. 1, 3rd edition, page 723 defines ‘family’ as “The body of persons who live in one house or under one head, including parents, children, servants, etc .. The group consisting of parents and their children, whether living together or not; in wider sense, all those who are nearly connected by blood or affinity … Those descended or claiming descent from a common ancestor; a house, kindred, lineage.” And in vol. II page 2115, ‘status’ as used in Law is defined as “The legal standing or position of a person as determined by his membership of some class of persons legally enjoying certain rights or subject to certain limitations …. Position or standing in society, profession, and the like.” It means that from a combination of both definitions, the term ‘family status’ must be the standing or position of a person within a class of persons constituting a family. Membership of a family cannot be properly regarded the same as the family status of a person because it is not. In my opinion, family membership is no more than family affinity or consanguinity or lineage – see The Shorter Oxford English Dictionary vol.1 (supra) pages 33, 402 and 1217 – as distinguished from the status held by a member within his family. It would seem to follow that one cannot talk of the family status of a person without first ascertaining which family he belongs to. That was the position taken by this court in Adeyemi v. Opeyori (1976) 10 NSCC 455; (1076) 9-10 SC 31. In that case, in order to consider the definition of “family status’ reference was made to Ford v. Ford (1946-47) C.L.R. 524 where Lathan C.J. said at page 529: “A person may be said to have a status in law when he belongs to a class of persons who, by reason only of their membership of the class, have rights or duties, capacities or incapacities, specified by law which do not exist in the case of persons not included in the class and which in most cases atleast could not be created by an agreement of such persons …. These consequences follow as a matter or law from the fact of membership of a particular class of persons.” Relying on this observation, this court said at page 466 per Idigbe JSC:

“It follows therefore that no question as to a person’s status in any panicular family can arise until it be first established that he is a member of that family.”

In the present action, the lower court cited Adeyemi v. Opeyori (supra) and felt itself bound, quite rightly, by it. It therefore had to hold that what was sought in relief 1 by the plaintiffs/respondents was the ascertainment of the membership of a family which they say was asserted by the 1st and 2nd defendants/appellants. It maintained that it was not their family status (or status in that family) as contended by the appellants in the course of their defence of the action that the said relief meant in substance. It was on the basis of that contention by the appellants which. with due respect, I consider not sustainable, that this court was invited to over rule Adeyemi v. Opeyori (supra) and hold that membership of a family confers, or is the same as, family status: and on that ground to set aside the judgment of the lower court in this case as being erroneous. I do not accept that the lower court erred on the issue. It followed the decision of this court of which no other option was open to it as long as the decision remains the law on the point.

It is true that this court is entitled to depart from or overrule its earlier decision when called upon to do so in an appropriate situation. It will have to be convinced to take that course if it is shown (I) that the previous decision is clearly wrong and there is a real likelihood of injustice being perpetuated: see Bucknor-Maclean v. Inlaks Ltd. (1980) 8-11 S.C. 1; or (2) that the previous decision was given per incuriam: see Odi v. Osafile (1985) I NSCC 14; (1985) I NWLR (Pt.I) 17; or (3) that a broad issue of public policy was involved: see Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 6 S.C. 158; (1983) 14 NSCC 226; (1983) 1 SCNLR 296 citing Jones v. Secretary of State (1972) 1 All ER 145 at 149 per Lord Reid. I find that the invitation to this court to overrule Adeyemi v. Opeyori (supra) has no merit. I accordingly answer the first issue in the negative.

Second Issue:

This issue relates to the provisions of s.10 of the High Court Law (Cap.44) vol. III Laws of the Ogun State, 1978. The said section reads:

“10(1) To the extent that such jurisdiction may be conferred by the State Legislature, the jurisdiction by this Law vested in the High Court shall include all the civil jurisdiction which at the commencement of this Law was, or at any time afterwards may be exercisable in Ogun State for the judicial hearing and determination or matter’s in difference, or for the administration or control or property and persons. and also all the criminal jurisdiction which at the commencement of this Law was, or at any time afterwards may be there exercisable for the repression or punishment or crimes or offences or for the maintenance of order and all such jurisdiction shall be exercised under and according to the provisions of this Law and not otherwise:

Provided that, except in so far as the Governor may by Order in Council otherwise direct and except in suits relating to the administration or intestate estates, transferred to the High Court under the provisions of section 30 of the Customary Courts Law, the High Court shall not exercise original jurisdiction in any matter which is subject to the jurisdiction of a customary court relating to marriage, family status, guardianship of children and inheritance or disposition of property on death.

(2) The jurisdiction of the High Court shall include such jurisdiction as may be vested in it by Federal Law.”

To the extent that the above-quoted section of the High Court Law tends to limit the jurisdiction of the High Court of Ogun State, the lower court held that it was in conflict with s.236(1) of the 1979 Constitution, then applicable, and therefore null and void. The result was that it held that the High Court had jurisdiction to entertain the action. As Sulu-Gambari JCA put it in regard to the said s.236(1):

“Being a provision of the Constitution, any law particularly law of a State which is in conflict with it becomes null and void and that the provision of section 10(1) of the Ogun State High Court Law to the extent that it seeks to limit the jurisdiction of the High Court as provided by section 236 of the 1979 Constitution is of no effect; and that the High Court had jurisdiction to determine the case as it did.”

There is no doubt in my mind that the learned Justice was right. The court below had the authorities of this court to guide it in reaching that decision. Section 236(1) of the 1979 Constitution conferred unlimited jurisdiction on the High Court of a State in these words:

“236(1)Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of a State shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.”

The provision in s.10(2) of the High Court Law of Ogun State should not be lost sight of. It acknowledges that the jurisdiction of the High Court shall include such jurisdiction as may be vested in it by Federal Law. The 1979 Constitution was promulgated by a Federal Act known as the Constitution of the Federal Republic of Nigeria (Enactment) Act, 1978: see Laws of the Federation of Nigeria 1990, Vol. IV, Cap.62, page 2329. It will be clear from that that even s.10 of the High Court of Ogun State contradicts itself in the manner it purports to limit the jurisdiction given to the High Court by a Federal Act.

However, this court had in Bronik Motors Ltd. v. Wema Bank Ltd.(supra) declared that it was the 1979 Constitution that conferred unlimited jurisdiction on the High Court of a State and not the State Law. As Obaseki JSC put it [see (1983) 14 NSCC at p.266]:

“An examination of the provisions of the 1979 Constitution reveals that the Constitution has been positive and clear, and loud not silent or secretive in the language used in granting jurisdiction to the courts it has created and the courts to be created by law passed by a State House of Assembly …. It is the people of the Federal Republic of Nigeria who granted unlimited jurisdiction to the High Court they established for the State and not the people of the State.”

What this means or must imply is that no State can take away the jurisdiction conferred by the entire Federation on State High Courts. The decision in Bronik Motor case (supra) was firmly that the State High Courts had unlimited jurisdiction to hear and determine any cause or matter unless specifically precluded by the Constitution or any other appropriate enactment as long as it retains its potency (such as a Decree) from exercising such jurisdiction. This was reiterated in Savannah Bank of Nigeria Ltd. v. Pan Atlantic Shipping & Transport Agencies Ltd. (1987) 1 NWLR (Pt.-19) 212: (1987) 1 S.C. 198; (1987) 18 NSCC (Pt. 1) 67, particularly at pages 81 – 84. where Coker JSC who read the leading judgment observed at 83:

“The question now is: Whether section 8(1) of the Federal High Court Act still retains the potency of a Decree which until the 1979 Constitution has superior force than (sic) the then Constitution Is it a valid existing provision of the Act as defined in section 274(1)(a) having regard to the unlimited jurisdiction conferred on State High Courts by section236 of the Constitution. Put differently, can an Act or the National Assembly overrule a specific provision of the Constitution Section 1(3) of the Constitution says in such a case the Constitution shall prevail over the inconsistent provision of the Act or Law.”

This court then reached the conclusion that the Federal Revenue Act. 1973 having lost the pre-eminence it had when a Decree [which pre-eminent position was held it had got by this court in American International Insurance Co. Ltd. v. Ceekay Traders Ltd. (1981) 5 S.C. 81 before the coming into force of the 1979 Constitution] was incapable of excluding the jurisdiction of tlate High Courts and therefore to the extent that it still purported to do so was in conflict with the 1979 Constitution and void. I must therefore hold, a fortiori, that the proviso to s.10( 1) or the High Court Law of Ogun State purporting to limit the jurisdiction of the High Court is unconstitutional and therefore to the extent of its conflict with the 1979 Constitution, is void. The second issue is accordingly answered in the negative.

Third Issue:

The argument of the appellants in respect of the third issue is that had the learned trial Judge approached the evaluation of the evidence properly, he would have come to the conclusion that they were descendants of Oresolu. They underpinned the instances they cited in their brief or argument on what Sulu Gambari JCA observed that:

“Even though the method or approach involved by the learned trial Judge may not be orthodox and much heavy weather had been made by the learned counsel for the appellants in criticising the approach or the learned trial Judge, I do not see and it has not been established before us that there has occasioned a miscarriage of justice by the unacceptable approach (which is alleged) of the learned trial Judge. This is therefore not an occasion in which I feel bound to interfere with the findings of facts of the learned trial Judge.”

The appellants then went on to contend that the learned Justice “having himself admitted that the approach or the learned trial Judge in evaluating the evidence was unorthodox and unacceptable. ought to have exercised extreme care before coming to the conclusion that in so doing, the judgment of the learned trial Judge did not occasion a miscarriage of justice.”

The learned Justice of the Court of Appeal, as call be observed, did not condemn the method of approach of the learned trial Judge which he thought ‘may not be orthodox’ but he indeed said it did not occasion a miscarriage of justice. Even the phrase ‘unacceptable approach’ contained in the observation of the learned Justice merely repeated the appellants’ counsel’s tag on the learned trial Judge’s approach. That is indicated by the learned Justice in parenthesis. He did not himself make or adopt that stricture. I think on the present issue, the essential focus should be on whether the learned trial Judge made proper findings and reached the correct judgment upon the facts before him. It is not the method or approach that necessarily determines those ends. As I understand it, so long as a judge does not arrive at his judgment merely by considering the case of one party before considering the case of the other, his judgment, if right, will not be set aside simply on the method of assessment of the evidence or approach to the entire case he may have adopted. It can be no cause for worry that different judges adopt varied approaches. There are those who may even begin with the defence case: see Woluchem v. Gudi (1981) 5 S.C. 291 at 294 per Idigbe JSC. And they may be able to properly cope with that approach provided it is always remembered that it is the plaintiff who must prove his case on the balance of probabilities. What therefore to watch out for in a standard judgment are: (l) Are the parties to the case appropriately stated (2) Is the nature of the claim and cause of action known and considered (3) Have the issues in controversy been appreciated and dealt with (4) Has the evidence been properly received, and every relevant aspect thereof evaluated and given its probative value (5) Have findings supported by the evidence been made and conclusions in fact and in law drawn (6) Has the accepted and treated evidence all both sides (if a civil case) been put on either side of the imaginary scale to see to which side it tilts favourably (7) Has verdict or decision been reached. judgment given and consequential orders, where necessary, made All these matters can be found in a combination of such authorities as Polycarp Ojogbue v. Ajie Nnabia (1972) I All NLR (Pt.2) 226at 232; Mogaji v. Odofin (1978) 4 S.C. 91 at 93; Bello v. Eweka (1981) 1 S.C.101 at 119; Woluchem v. Gudi (supra) at 294. 306, 309: Ezeoke v. Nwagbo (1988) 1 NWLR (Pt.72) 616; (1988) 1 NSCC 414 at 424; Duru v. Nwosu (1989) 4 NWLR (Pt.113) 24 at 35 – 36; 54 – 55.

Now, to some of the specific instances criticised by learned counsel for the appellants in the judgment under consideration. First, it was contended that the account of the 1st and 2nd respondents as to how the chieftaincy title of Olisa was brought from Ile-Ife contained ‘incongruity’ which should have alerted the learned trial Judge and the court below to ‘consider the improbability of an Olisa and the King of Ife for that matter merely leaving their domain for another for no apparent reason.’ The aspect of the evidence of p.w.1, Adebayo Akilo, was quoted in the brief as follows:

“In Ijebu custom including Remo, it is the custom that the Olisa is next in rank to the Oba. Ogunkan was Olisa to Oba Osoribiya in Ile Ife. Osoribiya and Ogunkan left Ile-Ife together. I do not know what led to Osoribiya and Olisa Ogunkan leaving IIe-Ife.”

Although to the well initiated in the Ijebu custom, it may sound improbable, as contended by appellants’ counsel that a reigning Oba and his next in rank would migrate from Ile-Ife, what would make it so was not borne out by the evidence. That means that anyone who may have to decide that issue on what is available in the record of proceedings cannot justifiably be influenced by such improbability.

The 1st P. W. gave that evidence reproduced above in cross-examination. However, the evidence in fuller detail does not relate to a reigning Oba but to a prince of IIe-Ife because the portion of that evidence which was omitted from the quotation reads: “Osoribiya was a prince in lle-ife, Osoribiya is senior to Olisa …. It is true that on the emigration of a prince, he has to migrate with an emblem of his father to show that he is a prince:’ I can see nothing improbable in a prince migrating from his father’s kingdom with a chief to somewhere else.

The second contention was that “it is incredible and most highly improbable that a man would ‘take’ a title from the cradle of the Yoruba Kingdom to a small village, and keep the title in the air just like that” I do not understand the aspect that the title was kept in the air. The evidence in chief on the point reads: “The first Olisa is Ogunkan. He hailed from lle-Ife. He came to settle at Agbele. Agbele is where Osoribiya and Ogunkan first settled. Agbele is in Makun. Ogunkan brought the chieftaincy title of Olisa to Makun from lIe-Ife. Oresolu was the Olisa of Makun. He was the first Olisa to be installed in Agbele. Makun:’ This is clear enough. What appeared to be a contradiction as to who was the first Olisa to be installed must be read against the averments in paras. 2 and 3 of the amended statement of claim which read:

“2. Ogunkan hailed from lle-Ife from where he originally brought the chieftaincy title of Olisa. This Ogunkan was the father of Oresoju the first Olisa to be installed at (Agele) Makun, Sagamu.

3. The first ever Olisa of Makun, Sagamu was Oresolu, who reigned about 200 years ago.”

It thus appears that Ogunkan was not installed Olisa but claimed the chieftaincy title by right having brought it from lle-Ife. But his son Oresolu was the first be installed Olisa after his father Ogunkan died. This seems even to fit reasonably in the averment in para.46 of the 1st and 2nd defendants/appellants’ statement of defence that Oresolu was appointed and installed by Osoribiya as his first Olisa in Agbele. Makun. That was what the lower court held from the evidence, and I think with some justification, to affirm the finding of the trial court that Ogunkan the father of Oresolu migrated from Ile-ife to Agbele bringing the Olisa chieftaincy title with him.

Other criticisms by appellants’ counsel of the judgment or the lower court were based broadly on tile argument that the appellants’ case was more credible than that of the respondents. The marshalling of the argument may have been painstaking but I do not consider the criticisms to be sufficient to fault the concurrent findings of fact of the two courts below having regard to the evidence. The trial court was faced with two conflicting versions of evidence adduced by both sides. it considered different aspects of the evidence and preferred the case of the plaintiffs/respondents. I cannot find that those findings are perverse. I think and am satisfied that the lower court acted within principle not to interfere with those findings: see Omoregbe v. Edo(1971)AII NLR 282;Ebba v. Ogodo (1984) 1 SCNLR 372; Chukwueke v. Nwankwo (1985) 2 NWLR (Pt.6) 195; Ajuwa v. Odili (1985) 2 NWLR (Pt.9) 710; Fatuade v. Onwoanmanani (1990) 2 NWLR (Pt.132) 322. Where there have been concurrent findings of the two lower courts, this court makes it a policy not to disturb them unless special circumstances include exist to warrant interference. Such special circumstances include perverse findings, error in procedural or substantive law occasioning a miscarriage of Justice: see Chinwendu v. Mbamali (1980) 3 – 4 S.C. 31; Onwuka v. Ediala (1989) 1NWLR (Pt.96) 182; Adebayo v. Ighodalo (1996) 5 NWLR (Pt.450) 507; Ivienagbor v. Bazuaye (1999) 9 NWLR (Pt.620) 552.

I find no merit in this appeal and accordingly I dismiss it. I award costs of N10,000.00 in favour of the respondents against the 1st and 2nd appellants.

---

SC.198/1992