Oba Adebanjo Mafimisebi & Anor V. Prince Macaulay Ehuwa & Ors (2007)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C

In the High Court of Ondo State of Nigeria in the Okitipupa Judicial Division and in suit No. HOK/7/84, the plaintiffs who are the respondents and the cross-appellants herein commenced this action on the 14/6/1984. In their Further Amended Statement of Claim as per paragraph 36 thereof, they claimed against all the defendants therein, that is the appellants/cross-respondents and the respondents/cross-respondents herein the following declarations and reliefs:-“(i) Declaration that the Registered Declaration of Ugbo Chieftaincy are (sic) defective and inexhaustive of the customs and traditions of Ugbo chieftaincy and therefore null and void.

(ii) Declaration that under the traditions and customs of the Ugbo people regarding Ugbo chieftaincy the appointment of an Olugbo is by rotation between AGBEDUN/OJOGO and OYETAYO/ATARIOYE section of OJADELE ruling house since the demise of OJADELE.

(iii) Declaration that the Registered Declaration of the Ugbo Chieftaincy to the extent that it fails to provide for rotation between AGBEDUN/OJOGO and OYETAYO/ATARIOYE sections of OJADELE Ruling house is defective, inequitable, invalid, null and void.

(iv) Declaration that the findings and recommendations of Morgan Chieftaincy Review Commission of 1981 relating to the Olugbo of Ugbo Chieftaincy in Ondo State and the Government White Paper issued on it are invalid null and void on the following grounds:-

(a) That the findings and the recommendations of the said commission on which the 1st defendant

based its decision are contrary to law having disregarded vital evidence placed before it.

(b) That the findings and the recommendations of the said commission which the 1st defendant based its decision are contrary to law having taken into consideration extraneous matters.

(v) Declaration that under the customs and traditions of the Ugbo people, the head of the OJADELE ruling house must present candidates aspiring to the OLUGBO Stool physically for screening and selection before the kingmakers at the meeting where a candidate will be appointed.

(vi) Declaration that the 7th defendant is not a kingmaker of the Olugbo of Ugbo in Ilaje/Ese-Odo of Ondo State.

(vii) Declaration that the purported appointment and approval of the candidature of the 3rd defendant as the Olugbo by the 4th – 7th and 1st to 2nd defendant respectively is irregular, illogical, uncustomary, invalid, null and void and of no effect whatsoever.

(viii) An Order of perpetual injunction restraining the 1st, 2nd, 4th, 5th and 7th defendants by themselves or through their servants, agents or privies, or otherwise howsoever from taking any steps or actions in relation to or in furtherance of the purported appointment of the 3rd defendant as the Olugbo elect.

(ix) An Order setting aside the purported appointment of the 3rd defendant as the Olugbo elect.

An Order of perpetual injunction restraining the 3rd defendant from further presenting or parading himself or holding out himself or allowing himself to be held out as the Olugbo and from exercising any right or performing any functions ascribed to an Olugbo.”Pleadings were filed, exchanged and amended. At the trial the parties gave evidence, and called other witnesses and documentary evidence were tendered. At the conclusion of the trial, in his judgment delivered on the 7th day of June, 1990, the learned trial Judge dismissed in their entirety the declarations, reliefs and injunctions the plaintiffs claimed as reproduced above. The plaintiffs felt unhappy with the situation and appealed to the Court of Appeal on one original ground of appeal. With the leave of the Court of Appeal, 13 additional grounds were allowed to be canvassed on behalf of the plaintiffs.

In the determination of the matter before it, the Court of Appeal per Akpabio JCA (who read the lead judgment which was concurred by Ogebe and Ubaezonu JCA) at page 622 of the printed record of the proceedings stated as follows:-“I have carefully considered all the issues formulated by all the parties above and find that the most important question for determination in this appeal is whether the Registered Chieftaincy Declaration of Olugbo, exhibit “A” correctly represents the Chieftaincy custom or tradition of the Ugbo people. xxxxxxxx.

I consider this question most crucial because if at the end we find the chieftaincy declaration, Exhibit “A” did not correctly represent the chieftaincy tradition of the Ugbo people as they exist on the ground, this court will not hesitate to declare it invalid and set it aside. xxxxxxxx If exhibit “A” is set aside, then clearly all other things done under it, such as the appointment of the 3rd respondent as the Olugbo or Olugbo elect must also be set aside as null and void.”

The Court of Appeal in the aforesaid judgment concluded as follows:

“I have carefully considered all the evidence adduced in this case and find that the evaluation of evidence, and the ascription of probative value thereto, are matters peculiarly within the province of the trial court and not that of the Court of Appeal. xxxxxxxx

In the instant case where the learned trial Judge had failed to make any reference or pronouncement at all on exhibit “J” series xxxxxxx justice therefore demands that this case should be sent back to the court below for a fresh trial before another Judge of Ondo State High Court.”

Thus the Court of Appeal allowed the appeal of the plaintiffs on that single issue and ordered retrial before another Judge. Some of the defendant that is the appellants herein felt disgruntled with the decision and have now appealed to this court. The plaintiffs also cross-appealed to this court against the order remitting the case back for an order of retrial and contend that this court should look into the evidence and decide the matter or the narrow issue as set out by the Court of Appeal.

But before the examination of the notices of appeals, and the various issues for determination identified formulated and submitted to this court, it is desirable at this stage to state the back ground facts of the dispute herein. The facts put very briefly is that the plaintiffs took this action complaining that the Olugbo chieftaincy declaration tendered in the proceedings as exhibit “A” was made on wrong recommendations by the Morgan panel, in that the evidence led before that panel on the customary law and the traditions of the Olugbo people concerning the Olugbo chieftaincy were disregarded by the panel. It is also alleged that the panel based its finding on extraneous matters.

It was said to be common ground, that the late Olugbo, Oba Napolean Mafimisebi III took a memorandum based on agreement by the entire members of the ruling house, all the descendants of the Ojadele to Morgan Commission. The memorandum contained a number of recommendations including order of rotational succession to the Olugbo stool. While giving evidence before the panel, the Oba, the father of the 3rd defendant, urged the panel to recognize two ruling houses viz: Agbedun/Ojogo and Oyetayo/ Atarioye. Because, according to him, their ancestor, Ojadele had two wives and each of the wives had two sons. The plaintiffs in the main allege that chieftaincy declaration in exhibit “A” does not correctly represent the customary law and traditions of the Ugbo people in relation to the succession to the Olugbo stool.

The plaintiffs also averred that there were many irregularities in the nomination, selection and the purported appointment of the 3rd defendant sufficient to vitiate the whole selection exercise, e.g. the secretary to the local Government conspired with the kingmakers to conduct the nomination and the selection exercise behind the back of the members of the ruling house and especially behind the back of the other stool contestants and the wrong membership of the Caleb Kalejaiye (now substituted) to the council of kingmakers. It was averred that he was never appointed Asogba and was therefore not a kingmaker and he had no right to take part in the nomination or selection of an Olugbo.

The defendants disagreed with the plaintiffs in a number of points, but it is common ground that on each occasion a vacancy in the stool of Olugbo arose, there were always many contestants against the son of deceased Oba even though the 3rd defendant and witnesses testified that the succession to the Olugbo stool is from father to son and that there was no rotation. This latter position of defendants was disbelieved by trial Judge.

From the pleadings and the evidence adduced, it appears that both the plaintiffs and the 3rd defendant and his witnesses are agreed that exhibit “A” did not truly represent the customary law and tradition of the Ugbo people in relation to the succession of the stool of Olugbo. The plaintiffs pleaded and led evidence that succession to the Olugbo stool was by rotation see paragraphs 13, 14, 15, 16 of the further amended statement of claim. The 3rd defendant by paragraph 7 of the amended statement of defence pleaded and in his evidence stated that the succession to the Olugbo throne is from father to son and he is the only qualified candidate amongst the six contestant that vied for the Olugbo throne which was vacant then. While it is clear that exhibit “A” limits the succession to the Olugbo to male descendants of Ojadele only.

Faced with this situation, the learned trial Judge after discussing the legal status of exhibit “A” and the circumstances when it can be successfully challenged in a court, referred to the case of Adigun v. A.-G., Oyo State (1987) 1 NWLR (Pt.53) 678 at 717and said at page 400 of the printed record:-

“xxx This court has jurisdiction to look into the existing declaration exhibit “A” and if, from the adduced evidence, I find that it does not represent the true customary law of the Olugbo chieftaincy or that the Morgan Chieftaincy Commission was in breach of the rules of natural justice or that the Morgan Commission had acted on extraneous consideration xxxx I shall set exhibit “A” aside and declare what the true position is as regards the customary law of the Olugbo chieftaincy.”

It was after the purported consideration of the evidence adduced by both parties that the learned trial Judge said in part of his judgment, See page 413 of the printed record:-

“I must say it is not terribly important for the sake of this suit to find out which of the two versions is correct because exhibit “A” i.e the Registered Chieftaincy Declaration is not inconsistent with either version.”

Thus the learned trial Judge found there was no inconsistency from the stand of the plaintiffs who averred succession by rotation, the 3rd defendant who averred succession from father to son and exhibit “A” which simply stated succession to the male descendants of Ojadele.

Again the learned trial Judge proceeded to consider whether the plaintiffs have adduced any credible evidence to entitle them to have the declarations sought by them. He concluded thus:-

“Apart from the oral evidence of the plaintiffs and their witnesses that the chieftaincy had been in rotation among the 4 children of Ojadele since the death of Ojadele there is no other corroborative evidence which can support this claim. On the other hand there is overwhelming evidence to support the claim of the 3rd defendant that the chieftaincy has been hereditary since the death of Ojadele.” Thus, as mentioned before, the learned trial Judge found the customary law and tradition of the Ugbo people to be hereditary as against exhibit “A” which leaves succession to all the male descendants of Ojadele. He yet proceeded to dismiss the plaintiffs’ claims. Also as mentioned above, the plaintiffs appealed to the Court of Appeal and mainly complained that the learned trial Judge did not properly appraise and analyze all the evidence led before him. It was claimed that the learned trial Judge failed to refer or be guided by Exhibits J series, if he had done so he would find the corroboration in the evidence of the plaintiffs on the question of rotation. It was on that narrow ground that the Court of Appeal allowed the plaintiffs’ appeal and set aside the dismissal of the plaintiffs’ case by the trial court. I shall now discuss the appeal of the 3rd defendant, then the appeal of the 7th defendant and finally the cross-appeal of the plaintiffs. It appears to me that the other defendants, i.e. the king makers, the secretary to the local Government and the Government officials though sometimes referred to as appellants, they did not file an appellants’ brief, even if they filed.

Notice of appeal, they merely filed respondents’ or cross-respondents brief.

The appeal of the 3rd defendant

In his notice of appeal, the 3rd defendant has filed 4 grounds of appeal and distilled from the grounds, the learned counsel appearing for him has identified, formulated and submitted to this court the following issues for the determination of the appeal. The Issues are:-

“(a) Whether the learned justices of the Court of Appeal were right in holding that exhibit “A” which is the registered declaration of the Olugbo chieftaincy can be set aside having not been proved to be illegal, unlawful and or null and void.

(b) Whether exhibit J series are inconsistent with the content of exhibit “A”.

(c) Whether exhibit J series which are records of Boards of Enquiry of various strives by aspirants to the stool Olugbo in 1950s can be used to alter, amend or modify the contents of a validly made chieftaincy declaration.”

Issue (a)

This issue mostly focuses on the question whether the courts have the competence or the jurisdiction set aside or declare null and void exhibit “A” the chieftaincy declaration made lawfully in accordance with the provisions of the relevant chiefs’ law. It is argued that the Court of Appeal was in error to have held that it has the power to set aside a subsidiary legislation such as exhibit A. Learned counsel referred to the case of Obala of Otan Aiyegbaju v. Adesina (1992) 2 NWLR (Pt.590) 163 at 181. It is further argued that the courts are not empowered to amend the Olugbo chieftaincy Declaration see Ajakaiye v. Idehai (1994) 8 NWLR (Pt.364) 504. It is further contended that the plaintiffs did not claim a relief for the setting aside of exhibit A, the plaintiffs merely wanted the court to declare exhibit “A” as null and void.

The learned counsel for 1st, 2nd and 4th defendants argued and submitted that the function of the court is jus dicere and not jus dare, the court cannot assume the role of the legislature to amend or alter a legislation and that the court has no jurisdiction to invalidate a Registered Chieftaincy Declaration such as exhibit “A” unless it violates the State’s Chief Law and counsel referred to and cited Ayoade v. Govemor of Ogun State (1993) 8 NWLR (Pt.309) 111; Oyefolu v. Durosimni (2001) 16 NWLR (Pt.738) 1.

For the plaintiffs, the learned senior counsel representing them argued, that the courts have the power and the jurisdiction to invalidate any chieftaincy declaration once it becomes apparent, that the declaration does not properly represent the customary laws and traditions of the people. Learned counsel referred to the case Adigun v.A-G. Oyo State (1987) 1 NWLR (Pt.53) 678 and also the case of Ajakaiye v. Idehai (supra) Aku v.Aneku (1991) 8 NWLR (Pt.209) 280.

On the question, whether the plaintiffs asked for the relief of setting aside the declaration in exhibit A by asking for a declaration that it is null and void, it is submitted that the defendants are merely engaged in semantics. It is submitted that when exhibit “A” is declared as null and void, it means it is no longer in existence.

Now dealing with this issue, in my view, the plaintiffs by asking for a declaration that exhibit “A” is null and void, they also mean that exhibit “A” does not really exist, if it exists, it should be set aside. I agree, it is a matter of semantics and it is a distinction without a difference. A careful study of the pleadings of the plaintiffs clearly show that plaintiffs wanted to have the declaration in exhibit “A” set aside, since it did not truly represent the customary law of the people. The learned trial Judge had no difficulty in finding that the plaintiffs wanted the declaration in exhibit “A” merely set aside. See from pages 397 to 402 in the printed record where the learned trial Judge dealt with the legal status of exhibit “A”.

Now, to the main question what is the legal status of exhibit “A”. Do the courts have the competence to set aside, the registered declaration The learned trial Judge in his judgment answered the question he stated at page 398 of the printed record:

“The question whether the High Court has jurisdiction to make a declaratory order such as ones sought by the Writ of Summons and Statement of Claim in this case is well discussed in the case of Adigun v. A.-G. of Oyo State (1987)1 NWLR (Pt.53) 678. xxxxx The Supreme Court held that it does xxxxxx”

The learned trial Judge cited the statement of ESO JSC at page 717 of the report, thus:

“xxx The effect of such a declaratory Order of the court would be that any declaration made and registered under the Chiefs Law as to the customary law prevailing which was not in line with the declaratory order of the court as to the existing customary law would be void xxxxx.”

In the same case Justice Obaseki JSC also observed:

“xxxx It cannot, in my view, be correctly, and legally argued that the High Court cannot entertain and adjudicate on such a claim in the exercise of its unlimited jurisdiction vested in it by section 236(1) of the Constitution of the Federal Republic of Nigeria, 1979.”

Applying the above principle, the learned trial Judge continued-

xxxx I will from the evidence adduced in this court, ascertain and find whether there is customary law on the Olugbo chieftaincy, what it is and then decide whether on the evidence Agbedun/Ojoga and Oyetayo/Atarioye are the two ruling houses xxxxxx. The court can intervene to declare the existing chieftaincy declaration valid or invalid.”

So, clearly, it is not the Court of Appeal that made this important statement on the power of the court to intervene and to declare as invalid and set aside a chieftaincy declaration, but the trial court. See pages 399 – 400 of the printed record. There is no appeal against the decision of the trial court. The Court of Appeal merely restated what the trial Judge has stated. This court, cannot therefore in this matter reopen the decision of the trial Judge without any appeal to the Court of Appeal on the matter. See Ijale v. A.G. Leventis & Co. Ltd. (1959) 4 FSC 108; (1959) SCNLR 255; Oshodi v. Eyifunmi (2000) 13 NWLR (Pt.684) 298.

In the case of Odiase v. Agho (1972) 3 SC 71, at page 76, Lewis JSC.

“Normally if there is an appeal against a judgment on one point then the appeal stands or falls on that one point. When we give judgment on that point we have not pronounced on this point not argued and, though they rest as part of the decision of the High Court, they remain open to argument as point of law in any other future appeal before us unfettered by any pronouncement of this court as to their validity.”

In other word, the fact that the Court of Appeal reechoed the statement made by the learned trial Judge which was not appealed against, it cannot be a subject of a further appeal without an appeal on that point to the Court of Appeal. This court clearly has no jurisdiction to entertain an appeal direct from the trial High Court. The complaint under this head is in my view incompetent.

Be that as it may, the Court of Appeal held at page 631 of the printed record that it had power to set aside a registered declaration H which does not correctly “declare the chieftaincy custom and tradition of the area concerned.” Is this correct In my view, all the authorities seem to support the view. See sections 5(1) and 5(2) of the Chieftaincy Edict of Ondo State, Edict No. 11 of 1984. See Fasade v. Babalola (2003) 11 NWLR (Pt.830) p. 26 and the ADIGUN case. In the instant case exhibit A was frontally attacked by all the parties as soon as it was made. The parties clearly stated their different versions of the customary law relating to the chieftaincy. None of them agreed with the provisions contained in exhibit A. According to the 3rd defendant and his witnesses, the customary law of the chieftaincy is that succession to the throne is from father to son. The plaintiff on the other hand pleaded and gave evidence that it is rotational while exhibit “A” states that ascension to throne is a free affair to all the male descendants of Ojadele. Faced with this conflicting situation, the learned trial Judge held that the courts have the jurisdiction to intervene and decide whether exhibit “A” truly represents the customary law and traditions of the Ugbo people. There is no doubt that the court cannot promulgate a chieftaincy declaration. See the judgment of ONU JSC in the case of Ajakaiyi v. Idehai supra pages 532-533 in which he cited the case of Eguamwense v. Amaghizemwen (1993) 9 NWLR (Pt.315) 1 at 41 where it was stated, that the court has no business to promulgate declaration of customary law, but all the authorities are one in that the courts have the competence to see whether a chieftaincy declaration such as exhibit A is really in conformity with prevailing customary law.See Aku v. Aneku (supra) and accordingly declare it invalid if does not. I accordingly resolve issue A against the 3rd defendant/appellant, that the courts have the competence of setting aside exhibit “A” if found to be contrary to the proved customary law and practice of the people.

Issue (b)

This issue is concerned with the question whether exhibit “J” series are inconsistent with exhibit “A” thus necessitating that they should be considered to impeach and or infract exhibit “A”. It is submitted that exhibit J series are archival records of reports of various Boards of Enquiry set up to look into the Olugbo chieftaincy disputes.

The learned counsel for the 3rd defendant concedes that the learned trial Judge did not evaluate or make reference to them, but the learned counsel argued that the documents were inadmissible and that they were not in any event inconsistent with exhibit “A”. The learned counsel for the 1st, 2nd and 4th defendant have virtually the same argument against exhibits J series.

The learned counsel for the plaintiffs on the other hand argues that the issue of admissibility of exhibits J series is a fresh issue on which there was no appeal against their admissibility either in this court or in the court below, and no leave was obtained to raise the issue of their admissibility. It is further argued that the exhibits were tendered without objection at the trial and it is too late now to object to their admissibility. It is again argued that the exhibits J series are relevant to show the customary law and traditions of the Ugbo people and there is nothing in the Evidence Act preventing their admissibility. It is submitted that the failure to consider the exhibits by the learned trial Judge was fatal to his decision.

Now, there is no dispute whatever that the learned trial Judge had failed to evaluate, appraise the documentary evidence as contained in exhibit J series which were admitted in evidence mostly without any objection. In his judgment, the learned trial Judge as shown above, said he would consider all the evidence adduced before him in order to find whether the existing customary law of Ugbo people in relation to the succession of the Olugbo is inconformity with exhibit “A”. He was to look into all the “evidence adduced” he failed to consider these pieces of evidence in his determination of the correct customary law of the Ugbo people. He also accused the plaintiffs of not supplying corroborative evidence on the issue of for example the rotational nature of the accession to the Olugbo throne at page 414 of the printed record. The learned trial Judge said:

“However, I should resolve the issue as to what this court feels about the evidence led here about rotation of the chieftaincy without any prejudice to what the appropriate authority may likely do in the future. Apart from the oral evidence of the plaintiffs and their witnesses that the chieftaincy has been in rotation among the few children of Ojadele since the death of Ojadele there is no other corroborative evidence which can support this claim.”

The corroborative evidence if corroboration was necessary when the evidence contained in exhibits J series and the other documents which the learned trial Judge said he was going to consider to find out whether exhibit “A” truly represent the customary law and practices of the Olugbo people. His failure to clearly determine the issue in controversy between the parties by not considering all the evidence adduced before him, the learned trial Judge had failed in his duty of just fair adjudication.

It is common ground that exhibit J series were proceedings of enquiries made as the result of protests always occurring when a new Olugbo was to be appointed. The plaintiffs claim that the Exhibits contain evidence of customary law relating to the chieftaincy. The documents were pleaded and tendered and there was only one in which the defendants lamely and unsuccessfully objected.

The learned trial Judge was wrong to have failed to consider the evidential values of the documents. I accordingly resolve issue (B) and (C) against the 3rd defendant/appellant.

There are the 3 issues argued in the 3rd defendant’s/appellant’s brief. These issues having been resolved against the 3rd defendant, his appeal is accordingly dismissed by me.

Appeal of the 7th defendant as substituted by High Chief Francis Omotunde Ewarawon

The 2nd appellant herein is the predecessor of the 7th defendant in these proceedings. He was the deceased High Chief Caleb Kalejaiye. He died during the pendency of these proceedings and was substituted by an order of this court with High Chief Francis Omotunde Ewarawon. He filed a brief as an appellant in this matter and in it, the learned counsel for him has identified and formulated one issue for the determination of his appeal. The issue reads:-

“Considering the circumstances of this case, the painstaking and thorough manner with which the trial court considered and evaluated relevant evidence placed before it and came to a decision and in view of exhibits “A”, “C” and “S” whether the lower court was not patently wrong in ordering retrial based on the fact that the trial Court did not pronounce of exhibits “J”, “J1”, “J2” “J3” and “J4”.

The learned counsel for the plaintiffs filed and relied on a preliminary objection, that the appeal of the 7th defendant was earlier on struck out by this court for failure to file brief. I am not prepared to make a decision one way or the other because the above issue raised by the 7th defendant is covered by the issues contained in the appeal of the 3rd defendant. I do not see the need for me to repeat what I discussed in the appeal of the 3rd defendant. Suffice it for me to only hold that the issue is also resolved against the 7th defendant appellant and consequently his appeal is also rejected by me.

Plaintiffs Cross-appeal

The Court of Appeal and all the parties concerned including the 3rd defendant are one in that the learned trial Judge did not evaluate, the evidence contained in exhibit J series when he decided to consider all the evidence “adduced” to find out whether exhibit “A” truly represent the customary law and practice of the Ugbo people. The Court of Appeal remitted the matter back to the High Court for a new trial when the documents will be fully evaluated before a decision is made on the validity or otherwise of Exhibit “A”. The plaintiffs cross-appealed against the order remitting case back to the High Court. Two grounds of appeal were filed and distilled from the grounds, the learned counsel for the plaintiffs/cross-appellants has submitted the following issue for the determination of the cross-appeal:-

“Whether the Court of Appeal is not empowered by section 16 of the Court of Appeal Act, Cap. 75, Laws of the Federation, 1990 to rehear this case as if it were the court of first instance and made necessary orders directives and or ascribe probative value to evidence of facts like exhibits J, J1, J2 and J4 not bordering on demeanor which were not considered, appraised reviewed by the trial court instead of ordering a retrial de novo.”

It is submitted that since it is common ground and all the parties agree that the learned trial Judge had failed to evaluate appraise all the evidence adduced before him e.g. the exhibit J series, the lower court was competent to intervene to evaluate appraise the evidence and make proper inference and ascribe probative value to the evidence as a matter of duty to minimize cost, expenses and time of litigation. It is submitted that the Court of Appeal was in error to have remitted the case back to the trial court for a new trial. It is submitted that the crux of the dispute between the parties is whether the succession to the Olugbo chieftaincy of Ugbo land is hereditary i.e. from father to son as claimed by the 3rd defendant or is it by rotation as claimed by the plaintiffs. It is submitted that the evidence contained in exhibit J series, which are archival materials, tendered at the trial firmly and completely established the rotational nature of the Olugbo succession which was completely ignored by the learned trial Judge.

It is submitted that the trial court by virtue of section 16 of the Court of Appeal Act is empowered to use the evidence and to make proper findings on the matter. The learned counsel relied on the following cases Fatoyinbo and Others v. Abike Williams and Others (1956) SCNLR 274; Lawal v. Dawodu (1972) 1 ANLR 270; Shell BP Petroleum Dev. Co. (Nig) Ltd. v. Pere Cole (1978) 3 SC. 183; Fatuade v. Onwoamanam (1990) 2 NWLR (Pt.132) 322; Maja v. Stocco (1968) NMLR 372.

The learned counsel for the plaintiff further argued that the Court of Appeal had clearly evaluated the evidence as contained in the exhibit J series and had made findings on the issue of the dispute between the parties and it needed merely to enter judgment in favour of the plaintiffs.

Most of the argument of counsel for the cross-respondents go to the admissibility of the exhibits J series or are merely repetitive of their arguments under issue (B) of the main appeal and having regards to the answers I gave while considering issue (B) I see no need to repeat the arguments or my reaction to them.

Now, with reference to the evaluation of the evidence as contained in the Exhibit J series. In its judgment the Court of Appeal at page 638 in the lead judgment stated:-

“At the High Court the appellants as plaintiffs produced and tendered inter alia a series of five documents from the National Archives which were admitted as exhibits J, J1, J2, J3 and J4. (They will hereinafter be referred to as exhibit J series). It is unnecessary to produce any of them here, as they are rather lengthy. The important thing however, setting up the Morgan Commission, and the making of exhibit “A”. These exhibits all showed that the appointment of Oba Mafimisebi III as the successor to his late father Oba Mafimisebi II. Exhibit “J” for instance was the Report of Board of Enquiry set up to enquire into the Olugbo chieftaincy dispute held in 1953. They contained the evidence of few supporters of the Oba who sought to show that succession was hereditary, while the vast majority testified that it was originally rotational and sought to restore it. The general conclusion in Exhibit J was that the “Olugbo stool is NOT HEREDITORY,” and that it was NOT YET the turn of Napeoleon Mafimisebi (i.e. the father of the 3rd defendant) to be an Olugbo. Exhibit J1 was also a record of proceedings of another enquiry set up in January; 1954. Exhibit 12 was the report of District Officer Okitipupa Division on the same subject matter. All the other exhibit J series dealt with the best method of succession to the throne by rotation.”

In my view, it is quite clear with the above findings by the Court of Appeal on the evidence in the exhibits J series, there is absolutely no need to remit the case back to the High Court for retrial. These pieces of evidence was the evidence the trial Judge was looking for when he said apart from their oral evidence the plaintiffs failed to show any corroborative evidence of rotation to the stool of Olugbo. The evidence is there is exhibit J series which he failed to utilize. It is very important to bear in mind that the cross respondents did not appeal against the finding by the Court of Appeal after evaluating exhibit J series, that there was overwhelming evidence that the method of succession to the Olugbo is by rotation.

I will apply section 22 of the Act and Order 6 rule 12(2) and (5) of the Supreme Court Rules to enter judgment in favour of the plaintiffs. See A.-G., of Oyo State v. Fairlakes Hotels Ltd. (1988) 5 NWLR (Pt.92) 1 at 50; Dantata v. Mohammed (2000) 7 NWLR (Pt.664) 176. This is merely to ensure the final determination on the merits the real questions in controversy between the parties. This is clearly within the general powers of the court to do justice without any undue regard to technicalities.

In their pleadings and evidence, the plaintiffs alleged that exhibit “A” the Registered Chieftaincy Declaration did not truly represent the customary law and practice, and in view, the other disputants, especially the third defendants who also did not accept totally the provisions of exhibit “A” when he claimed succession is hereditary, from father to son as against being free to all male descendants of Ojadele as contained in exhibit “A”. In their attempt to prove their contention, the plaintiffs gave evidence of the rotational nature of the succession and also tendered exhibit J series which were ignored by the learned trial Judge but which on appeal were evaluated and appraised by the Court of Appeal. The Court of Appeal found that exhibit J series proved the question of rotation, but failed to enter judgment in favour of the plaintiffs but remitted the case back to the trial court for trial de novo. In my opinion, the single issue posed by the plaintiffs/cross appellants is resolved in their favour and consequently the cross-appeal is allowed by me.

In the result the decision of the Court of Appeal remitting the case back to the trial court for a trial de novo is set aside. In its place, I enter judgment in favour of the plaintiffs as per paragraph 36 of the further amended statement of claim reproduced at the beginning of this judgment.

The plaintiffs are entitled to costs assessed at N10,000.00 against each set of the appellants/defendants and the defendants/cross respondents.

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SC.160/1995