The Military Governor of Oyo State & Anor V. Mr. Emmanuel Adekunle (2004)
LawGlobal-Hub Lead Judgment Report
OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.
This is an appeal against the judgment of the High Court of Oyo State, Eruwa Judicial Division, delivered on the 31st day of July, 1997. The plaintiffs before the trial Court in an action filed as suit No.HER/2/90, Emmanuel Adekunle for himself, and on behalf of the Tella ruling house of the Oloba family of Aiyete sued the Governor of Oyo State and Olalere Akinteye from the Oloba family of Idere – before the High Court at Eruwa. The facts which precipitated into this action were that sometime in 1986, there were two contestants to the vacant stool of Oloba of Oba; Oba being a village in the then Ibarapa Local Government, now Ifeloju Local Government of Oyo State. Oloba of Oba, itself is a minor chieftaincy, to which Part IT of the Chiefs Law of Oyo State, 1978, does not apply. It is a vast area of land between Idere and Aiyete – which makes the Oloba chieftaincy itself a land owning title. The two claimants to the chieftaincy are the Oloba family of Aiyete and the Oloba family of Idere.
There was a stalemate in the appointment with two rival candidates, two different prescribed authorities claiming power of approval on each respective candidate.
The Asawo of Aiyete on the one hand, and the Onidere of Idere on the other hand. In the dual nominations, Adepegba Aderounmu the 2nd plaintiff’s nomination was approved by Asawo Falola of Aiyete on the 11th of April, 1988, and Olalere Akintoye was approved by Onidere of Idere on the 16th of May, 1986.
These nominations generated reactions and counter-reaction from the two sides – which led to the intervention of the Military Government, which then directed the setting up of the Fakayode administrative panel of enquiry – with the under mentioned terms of reference:-
(i) To determine the real founder of Oba and his descendants up to the present generation with a view to establishing –
(a) The family or families that has/have the right to the Oloba chieftaincy.
(b) The historical and cultural relationship between Oba and the neighbouring towns – Aiyete and Idere.
(c) The accredited prescribed authority of Oloba chieftaincy stool in accordance with history, custom and tradition of the people.
(ii) To determine the relationship between the Asawo Aiyete and Onidere of Idere as it affects the Oloba chieftaincy.
(iii) To determine the boundary between Aiyete and Idere.
(iv) To make appropriate recommendations that may assist the government to finally settle the conflict, relating to the process of filling the present and subsequent vacancies in the Oloba of Oba chieftaincy.
At the end of the inquiry, the panel submitted its findings and recommendations to the Oyo State Government, which the government fully accepted. Particularly that –
(1) Onidere is the recognized prescribed authority over the Oloba chieftaincy title;
(2) That the approval of Oladere Akinteye – the 2nd defendant commence with effect from the 16th of May, 1986, vide exhibits B and B1.
(3) That the Oloba family of Aiyete cannot contest the chieftaincy title.
(4) That in consequence of (1) above the purported appointment of Mr. Adepegba as the Oloba of Oba by the late Asawo FaIola of Aiyete on 11th April, 1988, is null and void and of no effect.
(5) That the Onidere of Idere is the prescribed authority over the Oloba of Oba chieftaincy title vide exhibits B, B1 and S.
The plaintiff’s family of Oloba of Aiyete – being aggrieved by these recommendations and implementation of same by the Oyo State Government instituted an action claiming the following reliefs:-
a. Declaration that the findings and recommendation of Fakayode Panel of Inquiry into the Oloba of Oba chieftaincy dispute to the effect that there were five ruling houses in Oba in respect of Oloba chieftaincy that Onidere is the prescribed authority over the Oloba chieftaincy and that Government should uphold the appointment of the 3rd defendant as the Oloba of Oba are perverse contrary to the customary law of Oloba chieftaincy and therefore invalid.
b. Declaration that the purported appointment of the 3rd defendant as the Oloba of Oba and upholding of same by the 1st defendant vide its letter ref. No. CB/41/175/19/122 of 23rd February, 1989, is irregular, contrary to the customary law relating to Oloba chieftaincy and therefore invalid.
c. Declaration that the findings and recommendations of Fakayode Panel of Inquiry are contrary to law having not taken into consideration vital evidence placed before it and therefore null and void and of no effect.
In the Alternative-
Declaration that the said findings and recommendations are in exhaustive of the customs and traditions relating to Oloba chieftaincy and therefore invalid.
d. Declaration that the Tella family is the only family entitled under the native law and custom to produce the Oloba of Oba to the exclusion of any other family.
e An order of injunction restraining the 1st and 2nd defendants by themselves, their agents and or servants or whosoever from recognizing, treating and/or dealing with the 3rd defendant as the Oloba of Oba.
f. Injunction restraining the 3rd defendant from acting as or parading himself as the Oloba of Oba pending the determination of the substantive case.
This historical background of the case revealed that the two families contesting for the vacant stool of Oloba – the Oloba family of Aiyete and the Oloba family of Idere have no common ancestry. The plaintiffs belong to the Oloba family of Aiyete – they traced their root to Adetunji, who was the founder of Oba, and he brought the title of Oloba to lbarapa from Oyo-ile. Oba is situated between Idere and Aiyete. Tella was the father of Adetunji and he was the first Oloba of Oba Compound in Oyo. After Adetunji, Adegoke became the Oloba – followed by Aderounmu. He died fifty-seven years ago in 1938 – and no Oloba had been installed ever since. All the Olobas were installed by Alafin of Oyo. Adelakun and Adekola, who could have succeeded Aderounmu died in quick succession. The first settlement was Orile-Oba – but this was scattered by wars and Oba people are settled in Aiyete. Aiyete was founded by seven people, namely Jagun, Oniwofin, Odomofin, Oloba, Oniki, Odede and Ikogbe. After a long interregnum – the 2nd plaintiff was nominated by the family of Aiyete, while the Asawo FaIola as Bale of Aiyete approved his nomination in 1987.
This was prior to the Fakayode Panel of Inquiry. The plaintiffs maintained that there is only one ruling house for the Oloba chieftaincy – which is the Tella ruling house of Aiyete. The family was emphatic that there is only one Oba – and the chieftaincy title to which the family is entitled is called Oloba in Ibarapa Aiyete. They however, agreed that Odowofin, Jagun, Odede Oniwofin, Kogbe and Oloba are all under Asawo of Aiyete. The Oloba wears a beaded crown which became exhibit A in the course of this trial. The defendant claimed to be a descendant of Olofinji Adio, who came from Oyo to Idere. The Onidere gave him land to settle upon – at a place now known as Oba Olofinji Adio named the place Imaka. After his death, Aiyelosin became Oloba, followed by Ilejinmolu, and Olugoke. During Olugoke’s reign, war broke out, which forced the Oba people to come to Idere for refuge. Onidere allowed Olugoke to stay in Idere, provided he did not wear the crown his ancestors brought from Oyo, except at the time when he wanted to perform the ritual at Imaka.
The Onidere granted the land on which Aiyete stands to Asao Oluyemi – In reciprocation, the Asawo used to bring to Onidere at the annual Egungun festival, the thigh of a cow, bottle of schnapps and kolanut. After Olugoke, Abiona, Ajao, Sangojimi and Adelakun reigned in succession as Oloba. The incumbent of the title of Onidere Oba Amos Eniola Olawore appointed the 2nd defendant as Oloba – as the Government made him the prescribed authority following the findings of Fakayode Administrative Panel of Inquiry. His predecessors as Onidere had always installed all the Olobas, who had reigned in Oba. He gave the 2nd defendant a certificate of chieftaincy. The defendants maintained that there is no Oloba family in Aiyete and that the 2nd defendant is from Ajao ruling house in Idere – while the other Oloba ruling house is Ilejinmolu. The last Oloba Adelakun reigned from 1952 to 1982, while the present Oloba – 2nd defendant was installed in 1986 – after the letter exhibit S from the Government of Oyo State.
Parties exchanged pleadings – and led evidence in support of same during the trial of the case. The trial court in its considered judgment granted reliefs as fellows:-
(i) Having found that the Oba land is an area traditionally associated with Aiyete town which consequently means that the Asawo of Aiyete is the Prescribed Authority vide Prescribed Authority (Delegation of Functions) Subsidiary Legislation made pursuant to section 22 of the Chiefs Law, Cap. 21, Laws of Oyo State, 1978. I hold and declare that, the Onidere is not the prescribed authority for the Oloba of Oba chieftaincy.
(2) I declare that the appointment of the 3rd defendant as the Oloba of Oba and the upholding of same by the 1st defendant vide its letter ref. No. CB/41/175/19/22 of 23rd February, 1986, is irregular and therefore invalid.
(3) That 1st and 2nd defendants by themselves, their agents and/or servants or whosoever, are hereby restrained from recognizing, treating and/or dealing with the 3rd defendant as the Oloba of Oba.
(4) The appointment of the 3rd defendant as the Oloba of Oba is hereby set aside and accordingly the 3rd defendant is restrained from parading himself as the Oloba of Oba.
(5) The report of the Fakayode Panel of Inquiry into the Oloba of Oba chieftaincy is set aside to the extent only that it recommended that the Onidere of Idere is the prescribed authority in respect of the Oloba of Oba chieftaincy and that the appointment of the 3rd defendant as the Oloba of Oba be upheld.
The defendants being dissatisfied with this judgment, appealed to this court. The parties filed their notice of appeal. The notice of appeal of the 1st defendant henceforth, to be referred to as the appellant contained nine grounds of appeal. At the time this appeal was argued the 1st appellant adopted and relied on his brief filed on 8/11/99 wherein he distilled three for determination as fellows:-
(i) Whether having regard to the case as pleaded, the evidence led thereon particularly by the plaintiffs’ witnesses and the principle of law that a court is without power to grant to a party before it a relief such a party has not asked for, the learned trial Judge was right in holding that the Asawo of Aiyete, is the prescribed authority for the Oloba of Oba chieftaincy and that the Onidere of Idere is not the prescribed authority for the said Oloba of Oba chieftaincy.
(ii) Whether on the pleadings as settled particularly with reference to paragraph 16 of the further amended statement of claim and the evidence led – it was open to the learned trial Judge to resolve the issue, of who is the prescribed authority for the Oloba of Oba chieftaincy by a determination or consideration of which town Oba is traditionally associated with between Idere and Aiyete.
(iii) Whether the learned trial Judge carried out an evaluation of the evidence adduced before him, arrived at the proper findings therein and resolved the issues joined in the pleadings accordingly.
The 2nd appellant filed his brief on the 2nd of July, 1999, which he adopted and relied upon, while he formulated nine issues for determination by this court. The nine issues flow from the ten grounds of appeal filed by him as follows:-
(i) Whether the lower court was right in holding that the principle of law enunciated in Eguamwense v Amaghizemwen (1993) 9 NWLR (Pt. 315) page 1 at pages 23-24 was not applicable to this case.
(ii) Whether in the light of the parties to this case, the pleadings and the evidence before the lower court the learned trial Judge was right in holding that the Onidere of Idere is not the prescribed authority for Oloba of Oba chieftaincy.
(iii) Whether on the materials before the lower court the trial Judge was right in setting aside the recommendation of Fakayode Panel to the effect that Onidere is the 2nd defendant a certificate of chieftaincy. The defendants maintained that there is no Oloba family in Aiyete and that the 2nd defendant is from Ajao ruling house in Idere – while the other Oloba ruling house is Ilejinmolu. The last Oloba Adelakun reigned from 1952 to 1982, while the present Oloba – 2nd defendant was installed in 1986 – 13: after the letter exhibit S from the Government of Oyo State.
Parties exchanged pleadings – and led evidence in support of same during the trial of the case. The trial court in its considered judgment granted reliefs as fellows:-
(i) Having found that the Oba land is an area traditionally associated with Aiyete town, which consequently means that the Asawo of Aiyete is the Prescribed Authority vide Prescribed Authority (Delegation of Functions) Subsidiary Legislation made pursuant to section 22 of the Chiefs Law, Cap. 21, Laws of Oyo State, 1978. I hold and declare that the Onidere is not the prescribed authority for the Oloba of Oba chieftaincy.
(2) I declare that the appointment of the 3rd defendant as the Oloba of Oba and the upholding of same by the 1st defendant vide its letter ref. No. CB/41/175/19/22 of 23rd February, 1986, is irregular and therefore invalid.
(3) That 1st and 2nd defendants by themselves, their agents and/or servants or whosoever are hereby restrained from recognizing, treating and/or dealing with the 3rd defendant as the Oloba of Oba.
(4) The appointment of the 3rd defendant as the Oloba of Oba is hereby set aside and accordingly, the 3rd defendant is restrained from parading himself as the Oloba of Oba.
(5) The report of the Fakayode Panel of Inquiry into the Oloba of Oba chieftaincy is set aside to the extent only that, it recommended that the Onidere of Idere is the prescribed authority in respect of the Oloba of Oba chieftaincy and that the appointment of the 3rd defendant as the Oloba of Oba be upheld.
The defendants being dissatisfied with this judgment appealed to this court. The parties filed their notice of appeal. The notice of appeal of the 1st defendant henceforth, to be referred to as the appellant contained nine grounds of appeal. At the time this appeal was argued the 1st appellant adopted and relied on his brief filed on 8/11/99 wherein he distilled three issues for determination as fellows:-
(i) Whether having regard to the case as pleaded, the evidence led thereon particularly by the plaintiffs’ witnesses and the principle of law that a court is without power to grant to a party before it a relief such a party has not asked for, the learned trial Judge was right in holding that the Asawo of Aiyete is the prescribed authority for the Oloba of Oba chieftaincy and that the Onidere of Idere is not the prescribed authority for the said Oloba of Oba chieftaincy.
(ii) Whether on the pleadings as settled particularly with reference to paragraph 16 of the further amended statement of claim and the evidence led – it was open to the learned trial Judge to resolve the issue of who is the prescribed authority for the Oloba of Oba chieftaincy by a determination or consideration of which town Oba is traditionally associated with between Idere and Aiyete.
(iii) Whether the learned trial Judge carried out an evaluation of the evidence adduced before him, arrived at the proper findings therein and resolved the issues joined in the pleadings accordingly.
The 2nd appellant filed his brief on the 2nd of July, 1999, which he adopted and relied upon, while he formulated nine issues for determination by this court.
The nine issues flow from the ten grounds of appeal filed by him as follows:-
(i) Whether the lower court was right in holding that the principle of law enunciated in Eguamwense v Amaghizemwen (1993) 9 NWLR (Pt. 315) page 1 at pages 23-24 was not applicable to this case?
(ii) Whether in the light of the parties to this case the pleadings and the evidence before the lower court the learned trial Judge was right in holding that the Onidere of Idere is not the prescribed authority for Oloba of Oba chieftaincy?
(iii) Whether on the materials before the lower court the trial Judge was right in setting aside the recommendation of Fakayode Panel to the effect that Onidere is the prescribed authority for Oloba chieftaincy and that the appointment of the 3rd defendant be upheld?
(iv) Whether or not, having set aside government’s decision on the findings and recommendations of Fakayode Panel the trial Judge could validly set aside the appointment of the 3rd defendant based on the said government decision and also grant reliefs (a), (b), (e), (f) and (g) claimed by the plaintiffs?
(v) Was the learned trial Judge right to have considered the town to which Oba is traditionally associated with between Aiyete and Idere in his effort to determine the prescribed authority for Oloba of Oba chieftaincy?
(vi) Was the decision of the trial Judge that Oba is traditionally associated with Aiyete right having regard to the issue before the court and the evidence led thereon?
(vii) Was the learned trial Judge right in giving the plaintiffs judgment on Oloba of Oba chieftaincy, when it was clear that they in their evidence claimed Oloba of Aiyete contrary to their pleadings?
(viii) What is the order a court should make on a claim which a plaintiff failed to prove?
(ix) Was the learned trial Judge right on the state of pleadings and the evidence before him to hold that there was no town strictly called Oba?
The 1st and 2nd respondents filed two different respondents’ brief – one as a reply to the 1st appellant’s brief filed on 21/6/02 and the other as a reply to the 2nd appellant’s brief also filed on 21/6/02. It is noteworthy that the name of the 2nd defendant before the trial court – Secretary, lfeloju Local Government was struck out following an application by the counsel to the 2nd plaintiff on the premises that it is not a juristic person. In the 1st and 2nd respondents’ brief as a reply to the appellant’s brief – the respondents adopted the issues formulated by the appellant – which can be interpreted that the respondents agree with the views of the 1st appellant on this appeal – whereas as a respondent it is expected to formulate issues in support of the judgment of the trial court.
In the respondents’ brief to the 2nd appellant’s brief, the respondents formulated five issues for determination as follows:-
(1) Whether Fakayode Commission of Enquiry was not merely an Administrative Panel to which the case of Eguamwense v. Amaghizemwen (1993) 9 NWLR (Pt.315) page 1 at page 23-24 does not apply.
(2) Whether the findings and recommendation of Fakayode Administrative Inquiry can only be challenged by way of judicial review.
(3) Whether from the totality of both oral and documentary evidence adduced in the lower court the Onidere of Idere can be said to be the prescribed authority for the Oloba chieftaincy.
(4) Whether Oba is not a town traditionally associated with Aiyete to make the Asawo of Aiyete (Baale of Aiyete) the prescribed authority over Oloba chieftaincy.
(5) Whether from the totality of the evidence both oral and documentary it is not apparent that Onidere of Idere is not the prescribed authority for the Oloba chieftaincy.
In considering issue No.1 – which is whether by holding that the Onidere of Idere and not the Asawo of Aiyete is the prescribed authority for Oloba of Oba chieftaincy, the learned trial Judge has not granted what the parties did not ask for. The appellant submitted that this conclusion of the learned trial Judge was not claimed in the writ of summons and further amended statement of claim of the respondent. The learned trial Judge was in error, when he held that the parties were suing for declaration as to who is the prescribed authority in respect of Oba town.
The respondent did not plead this in their amended statement of claim. In paragraphs 12 and 16 of the further amended statement of claim – the plaintiffs/respondents averred as follows:-
Parag. 12: Oba Adegoke was crowned by Oba Adeyemi I, the Alaafin of Oyo in 1982.
Page 16: The Alaafin of Oyo is the prescribed authority for the Oloba chieftaincy.
The appellants joined issue on it – and in their amended statement of defence held that Onidere was the prescribed authority. The law is settled that parties are bound by their pleadings, while the trial court is to keep strictly to the pleadings in his judgment and to decide the case only on the issues raised in the pleadings. The appellate court is urged to interfere with the findings of the court on this issue and set it aside. The 1st appellant cited the cases of Olorunfemi v. Asho (1999) 1 NWLR (Pt.585) 1; (1999) 65 LRCM 28 at pg. 431; Ogbuokwelu v. Umeanafunkwa (1994) 4 NWLR (Pt.341) pg. 676; Nwoke v. Okere (1994) 5 NWLR (Pt. 343) 159; Ogbu v. Ani (1994) 7 NWLR (Pt. 355) 128 and Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt. 146) 578.
Going through the nine issues formulated by the 2nd appellant – issues one to four can be argued together as the four issues are subsumed in issue one in the appellants brief. Issues 5 – 7 are to be argued together as they cover the same issues as the 1st appellant’s issue two. Issues 6 – 9 shall be considered together with issue 3 in the 1st appellant’s brief.
Issues 1 – 4 in the 2nd appellant’s brief criticized the trial court, where it concluded that the decision in Eguamwense case was not applicable to this case and that this action was competent and whether on the facts before the court, it could set aside the appointment of Onidere of Idere as prescribed authority – and validly appoint the 3rd defendant as Oloba of Oba without setting aside the findings and recommendation of Fakayode Panel on this issue. The situation in this case is that the government had accepted the recommendation of the Fakayode Panel – which made it binding on all.
It can only be challenged by way of Judicial Review. The learned trial Judge limited himself to a consideration of whether the recommendation of Fakayode Panel could be attacked by a declaratory action as distinct from judicial review by certiorari. The decision of the learned trial Judge has created a parallel decision to that of the government by the question of who is the prescribed authority for Oloba of Oba, as the decision of Fakayode Panel of Enquiry has not been set aside. The jurisdiction to appoint prescribed authority for an area is vested in the Executive Council. The court cannot exercise the same power. The prescribed authority has to be set aside as it runs parallel to that of the Government making the Onidere of Idere the prescribed authority, The Government based its decision on Fakayode Panel of Enquiry and communicated same to Local Government as exhibit L, and also to parties in exhibits M, N, and P.
The Onidere was not a party in the suit and the court has no jurisdiction to give a decision against a person who is not a party to a case – while the respondents did not put up a claim stating that the Onidere was not as prescribed authority for Oloba of Oba chieftaincy. Both court and parties are bound by the pleadings. Any finding supposed to be based on law and not on the custom of Oloba chieftaincy is invalid. Setting aside part of the panel’s recommendation was clearly erroneous. The court is urged to resolve the issue. The appellant cited the cases of Ezeonwu v. Onyechi (1996) 3 NWLR (Pt. 438) 499; Okonkwo v. Okagbu (1994) 9 NWLR (Pt. 368) 301; Co-op Bank Ltd. v. Obokhare (1996) 8 NWLR (Pt. 468) pg. 579; Ekpeyong v. Nyong (1975) 2 SC 71; Duke v Nzeke (1988) 3 NWLR (Pt. 84) 144 and A.-G., v. Onuselogu (1987) 3 NWLR (Pt. 66) 547.
As regards issue one, the 1st and 2nd respondents in their brief in reply to the 1st appellant – submit that from the pleadings and the evidence given by both the respondents and the appellant’s issue were joined on paragraph 29(a) of the amended statement of claim which is a relief particularly claimed by the respondent on prescribe authority. The finding of the lower court as to the issue of prescribe authority is properly raised both on the pleadings and the evidence adduced by all the parties.
The lower court found as a fact that Onidere is not the prescribed authority and having so found it was necessary for the lower court to proceed to determine who is the prescribed authority. The learned trial Judge was right to have has recourse to chieftaincy law which makes provision for prescribe authority, i.e. Schedule 1, Chiefs Law, Cap. 21, Vol. 1, Laws of Oyo State, 1978. The court is urged to affirm this judgment.
In the respondents’ brief to the 2nd appellant’s brief issues or and two were argued together. The respondent submitted that the Fakayode Administrative Panel of Inquiry was merely investigation and advisory panel and not a judicial or quasi judicial, hence, it decision can be challenged by declaratory action and not only be way of judicial review. The lower court had jurisdiction to set aside the findings and recommendations of the Fakayode Panel of Inquiry and the decision of the 1st appellant based on it. This the learned trial Judge did in his judgment. The decisions of the government and that of the court on the issue of prescribed authority did not rule parallel to each other, as that of the government was set aside.
The issue of who is a prescribed authority is a question of law to be determined in accordance with the provisions of the Chiefs Law Cap. 21, Vol. 1, Laws of Oyo State. The principle in Eguamwense Amaghizemwen’s case is not applicable to the issues raised by respondents – who were criticizing the validity of the Fakayode Pan in recognising the Onidere of Idere as the prescribed authority from Oloba chieftaincy. The case before the lower court was a civil proceeding in which the existence of a legal right falls for determination. The court is urged to uphold the decision of the lower court. The respondents cited the cases of Okoye v. Lagos State Government (1990) 3 NWLR (Pt. 136) 115; Queens v. President Ijebu Province Ex-parte J. C. Oshinlaja (1957) 1 WRNLR 173 at 174; Edewor v. Uwegba (1987) 1 NWLR (Pt. 50) 313 and Adigun v. A.-G., Oyo State (1987) 1 NWLR (Pt. 53) 678 at 706.
The 2nd Issue is whether on the pleadings as settled particularly with reference to paragraph 16 of the further amended statement of claim and the evidence led, it was open to the learned trial Judge to resolve the issue of who is the prescribed authority for the Oloba of Oba chieftaincy by a determination or consideration of which town the Oloba of Oba is traditionally associated with between Idere and Aiyete. The 1st appellant submitted that the learned trial Judge erroneously resolved the issue of who is the prescribed authority for the Oloba of Oba chieftaincy by a determination of the question of which town Oba is traditionally associated with as between Idere and Aiyete and came to the conclusion that Oba is traditionally associated with Aiyete and thereby proclaimed that Asawo of Aiyete is the prescribed authority for the Oloba chieftaincy. The learned trial Judge going by the pleadings should have decided on who as between Onidere of Idere and Alaafin of Oyo is the prescribed authority for the Oloba chieftaincy. The 1st PW, 2nd PW and 3rd PW gave evidence that traditionally Oloba of Oba was usually installed by the Alaafin. DW1, DW2 and DW3 gave evidence that Onidere of Idere is the prescribed authority for Oloba of Oba chieftaincy – as Oba is not under the domain of the Alafin of Oyo.
The learned trial Judge also considered whether Oba is traditionally associated with Idere or Aiyete, this was raised suo motu by court. It was not borne out by the pleadings of the parties. The trial Judge in the course of the trial rejected a letter dated 11/4/86 sought to be tendered in evidence on the basis that the plaintiffs did not plead that the Asawo of Aiyete was the prescribed authority for the Oloba chieftaincy. The learned trial Judge contradicted himself by this judgment. The trial court failed to decide the case of the parties on what they joined issues. This court is urged to set aside this judgment.
The 2nd appellant submitted as regards Issue two, that there was no claim before the trial court, that it should set aside Fakayode’s Panel of Inquiry – yet the court proceeded to set aside part of the findings and recommendation in the panel’s report – which is erroneous. In resolving the issue as to whether Oba is traditionally associated with Idere or Aiyete. The learned trial Judge relied on documents showing the extent of Oba land, the location of Idere and Aiyete, and the grant of land for agricultural purpose. The approval was clearly wrong – as he had earlier on said in the judgment that he was not concerned with the determination of the ownership of land.
The learned trial Judge quoted from the wrong section of the Chiefs Law – while proclaiming that Asawa is the prescribed authority for the Oloba chieftaincy was done practically by him and not the Chiefs Law. The court cannot usurp the function of appointing a prescribed authority which is vested in the executive council – the government. The evidence before the court is in respect of Oloba of Aiyete, while the 3rd defendant is interested in the Oloba of Oba chieftaincy. There was no finding of the court that the two are same.
The 1st and 2nd respondents in the reply to the 1st appellants brief submitted that the issue of prescribed authority is, not that of custom but of law – and relied on Schedule 1 of the Chiefs Law, Cap. 21, Vol. 1, Laws of Oyo State, 1978. The issue of admissibility of a letter during trial cannot vitiate the findings of a court arrived at after a trial on merits. Consequently, the learned trial Judge has not over-stepped his bounds when he held that the Asawo is the prescribed authority in line with the statutory provision as contained in the Chiefs Law.
In the respondents’ reply to the 2nd appellant’s brief in respect of issues 3, 4 and 5, which is equivalent to issue two in the 1st appellant’s brief and issues 5 – 7 of the 2nd appellant’s brief, it was submitted that the finding of the lower court was based on the evidence of witnesses as to the nearness of Oba town to Aiyete. The plaintiffs’ witnesses also gave evidence to the effect that they have linkage with Aiyete. The witnesses gave evidence that Oba and Aiyete are of the same stock and no difference between the same communities.
The learned trial Judge based his finding of making Asawo of Aiyete the prescribed authority for the Oloba of Oba because of the nearness and traditional association of Oba and Aiyete. Onidere of Idere will be affected by the decision of the trial court, which is urged in paragraph 29(a) and (b) of the amended statement of claim to set aside the appointment of Onidere of Idere as prescribed authority. There was no evidence to support the averment of the respondents that Alaafin was prescribed authority for Aiyete – and hence same is deemed abandoned. The respondents were unable to establish by credible evidence that Asawo of Aiyete, or also known as Bale of Aiyete is the prescribed authority for Oloba of Aiyete and Onidere of Idere.
On the 3rd issue – this court, is urged to determine whether the learned trial Judge had carried out an evaluation of the evidence adduced before him, resolved the issues joined in the pleadings before arriving at the proper findings accordingly. The appellant submitted that the plaintiffs claim relates to the Oloba of Oba chieftaincy. The plaintiff’s witnesses stated that Oba, Idere and Aiyete are three distinct villages – and that Idere was founded before Aiyete according to 1st – 4th PWs. 1st PW confirmed that the title of their family is Oloba – Aiyete. The evidence of PWs 1-3 was on Oloba of Aiyete and not Oloba of Oba as pleaded by them. PW3 later stated that Oloba of Oba and Oloba of Aiyete are same. The trial court should have dismissed the case of the respondents as being at variance with their pleadings. These material contradictions in the evidence of the respondents are in respect of the Olobas, who had reigned in Oba, and those who founded Aiyete. If the learned trial Judge had considered them he would have destroyed the respondent’s claim. This court is called upon to re-evaluate the evidence. On the third issue, the 2nd respondent submitted that it was erroneous for the trial court to have struck out the respondent’s claim for declaration that Tella family is the only family entitled to Oloba of Oba chieftaincy – instead of dismissing same.
The view held by the appellant that there is no Oba town is perverse and this court is urged to set same aside. The respondent on issue three submitted that though parties during trial were using the words Oloba of Idere and Oloba of Aiyete interchangeably – both parties knew they were fighting on the Oloba 1 of Oba chieftaincy stool.
The learned trial Judge discharged the duty placed on him when he properly evaluated the evidence of all the witnesses before arriving at his decision and this court cannot interfere with it unless it is found to be perverse. The learned trial Judge had recourse to the Chiefs Law of Oyo State to determine (who is the prescribed authority. The executive council has carried out its duty by appointing the prescribed authority listed therein in accordance with section 22(1) of the Chiefs Law of Oyo State. There is evidence by the respondents that Oba has been desolate same was confirmed by the 2nd appellant’s witnesses. This court should hold that the plaintiffs pleaded and proved their entitlement to the chieftaincy.
I have painstakingly considered the issues formulated by the parties and the submission in support. I am duty bound to remark that the issues themselves and the submission particularly those of the two appellants are repetitive and rambling, that one could easily lose sight of the grouse of the appellants in this appeal. The issues involves in this appeal are simple and straightforward.
They are substantially asking this court to determine whether the learned trial court had not committed a substantial error by setting aside the decision of the Government of Oyo State made on the recommendation and findings of the Fakayode Administrative Panel of Inquiry into the Oloba of Oba chieftaincy – whereupon it proclaimed the Asawo of Aiyete as the prescribed authority for the ‘Oloba of Oba chieftaincy. Secondly, whether the learned trial Court could arrive at such decision based on the evidence of witnesses before the court at the trial. Before giving any proper consideration to them it is pertinent for me to consider the issue raised by the 2nd appellant as to whether the lower court was right in holding that the principle in the case of Eguamwense v Amaighizemwem (1993) 9 NWLR (Pt. 315) 1 at 23 – 24 was not applicable to this case.
In short, whether the trial court gave proper consideration to the validity of asking the trial court to set aside the recommendation and findings of the Fakayode Administrative Panel of Enquiry on which the government relied upon to make the Onidere of Idere the prescribed authority for the Oloba chieftaincy – and on which the latter relied upon to approve the appointment of the 2nd appellant as Oloba of Oba. I regard this as bordering on the issue of jurisdiction of the lower court to adjudicate on suit No. HER/2/90.
As issue of jurisdiction being a threshold and fundamental issue this court has the right to consider same. If it is discovered even at this appellate stage that the plaintiff did not approach the court through the right and proper procedure the entire proceedings before the trial court would amount to an exercise in futility. This relates to the competence of the suit before the trial court. Madukolu v. Nkemdilim (1962) 2 SCNLR pg. 341 at pg. 348 SC; Bronik Motors v. Wema Bank 1 SCNLR 296 and Ogunmokun v. Military Administrator Ogun State (1999) 3 NWLR (Pt. 594) 261 at 279-280.
The claim of the respondents before the trial court reads –
(c) Declaration that the findings and recommendations of Fakayode Panel of Enquiry contrary to law having not taken into consideration vital evidence placed before it and therefore null and void and of no effect. In the alternative –
(h) An order setting aside the report and findings of Fakayode Commission of Enquiry into Oloba of Oba chieftaincy dispute.”
The crucial question now is whether the lower court can set the foregoing aside by declaration. The learned trial Court distinguished the Eguamwense’s case from the present case by pointing out that the Fakayode Panel is an administrative panel whose recommendations and findings are meant to be advisory to the government. It has no quasi judicial or judicial power. It is an established principle of law that a person who desires to challenge an administrative act or omission is able to do so by bringing his claim in a writ action for declaration. The court will not make a declaration where such jurisdiction is excluded by statute – which gives exclusive jurisdiction to another tribunal. Adigun v.A.-G., Oyo State (1987) 1NWLR (Pt. 53) pg. 578.
The court also relied on the case of Okoye v. Lagos State Govemment (1990) 3 NWLR (Pt.136) pg. 115 to hold that:-
“Generally, a body exercising powers which are of merely advisory, deliberative, investigatory or conciliatory character or which do not have legal effect until confirmed by another body, or involved only the making of a preliminary decision will not normally be held to be acting in a judicial capacity.”
I agree with the foregoing conclusion of the learned trial Judge.
I hold in addition to the foregoing that an action for declaration is a discretionary remedy exercised in accordance with the surrounding circumstance of the case, in the determination of a point of law, construction of a document, and for the determination of the validity of orders or decisions of inferior courts or tribunals. It is commonly adopted in cases of –
(1) Dispute as to title to land under customary law.
(2) Disputes as to title to chieftaincy.
Where a statute has given exclusive jurisdiction to another tribunal or hierarchy of tribunals the jurisdiction of the court to grant a declaration in respect of such relevant matter is ousted. The High Court cannot make declaration of customary law relating to the selection of Chiefs under that law. In the exercise of the court’s judicial functions under section 236 of the Constitution the courts can make declaratory orders in respect of the functions and powers under the law with a view to determine the validity or otherwise of the existence of a particular custom.
An aggrieved party can invoke the supervisory jurisdiction of the High Court by way of declaration in seeking for the decision of a statutory or inferior tribunals to be set aside. Adigun v. A.-G., Oyo State (1987) 1 NWLR (Pt. 53) 678 at 674 and Ajagungbade v. Laniyi (1999) 13 NWLR (Pt. 633) 92.
By the combined effect of sections 6(6)(b) and 236(1) of the Constitution the High Court has jurisdiction to determine questions relating to the existence of chieftaincy matters by way of declarations by virtue of its unlimited jurisdiction to entertain civil disputes, unless where such jurisdiction is specifically excluded by the Constitution and statute. Bronik Motors Ltd. v Wema Bank Ltd. (1983) 1 SCNLR 296; Western Steel Works v. Iron & Steel Workers Union (1987) 1 NWLR (Pt. 49) 284 and Oseni v. Oniyide (1999) 13 NWLR (Pt.634) 258.
I shall now proceed to address the vital issues for determination in this appeal which is whether the learned trial Judge can hold that the Asawo of Aiyete is the prescribed authority for the Oloba of Oba chieftaincy and that the Onidere is not the prescribed authority for the said Oloba of Oba and secondly whether the learned trial Judge can resolve this issue of prescribed authority for the Oloba of Oba chieftaincy by a determination or consideration of which town Oba is traditionally associated with between Idere and Aiyete.
The relevant portion of the judgment of the learned trial Judge reads: In the final analysis, the judgment of this court in this case shall be and is as follows:-
“Having found that the Oba land is an area traditionally associated with Aiyete town which consequently means that the Asawo of Aiyete is the prescribed authority for the area in accordance with the Prescribed Authority (Delegation of Functions) Subsidiary Legislation made pursuant to section 22 of the Chiefs Law, Cap. 21, Laws of Oyo State, 1978. I hold and declare that the Onidere of Idere is not the prescribed authority for the Oloba of Oba chieftaincy.
The learned trial Judge appreciated that where there is statutory provision for determination of a matter – the court must only look at that statutory provision – and that the relevant statutory provision is the Chiefs Law (Delegation of Functions) section 22(1) of the Chiefs Law, Cap. 21, Laws of Oyo State, 1978. He based his decision on the fact that Oba is an area traditionally associated with Aiyete vide pages 246 – 248 of the record.
It is trite law that parties to proceedings need not plead statute before reliance is placed on them. Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386 at 398. The issue of the appointment of prescribed authority is not a matter of custom but that of law. The relevant law here is the Chiefs Law, Cap. 21, Laws of Oyo State, 1978. Section 22(1) and (c) Part III – deals with the appointment of the prescribed authority for minor chiefs. In the schedule, in the part captioned delegation of functions the prescribed authority for a particular area is indicated. The Onidere of Idere is mentioned and grouped as number 114 and the Bale of Aiyete as 116.
Sections 73 and 74 of the Evidence Act, Cap. 112, Laws of the Federation, 1990, specify facts which can be judicially noticed. Section 73 of the Evidence Act reads:-
“No facts of which the court must take judicial notice need be proved”
Section 74(1)(a) reads:-
“The court shall take judicial notice of the following facts –
(a) all laws or enactments and any subsidiary legislation made thereunder having the force of law now or heretofore in force, or hereafter to be in force in any part of Nigeria.”
The Chiefs Law of Oyo State, 1978, comes under this section of the Evidence Act – and the learned trial Judge committed no error in invoking this law in the course of his judgment without being pleaded by the parties. I shall now consider whether under this law the learned trial Judge has power to decide on who is prescribed authority for the Oloba of Oba chieftaincy, when he was urged to set aside the recommendation of the Fakayode Panel of Inquiry to the extent of making the Onidere of Idere the prescribed authority under the Chiefs Law. The criteria is that Oba should be traditionally associated with the town either – Aiyete or Idere.
The facts on ground was that there was dispute as to which family was to fill the vacant stool of Oloba of Oba as between Sangojimi family of Idere and Tella family of Aiyete. Tella family claimed that the stool of Oloba of Oba belongs exclusively to their family. There was loggerhead in the appointment – with two candidates on ground selected by their respective families and approved by two Prescribed Authority – the Bale of Aiyete and the Onidere ofIdere.
The Military Administration waded into the matter by setting up the Fakayode Administrative Panel of Inquiry. The Onidere of Idere was made the prescribed authority for Oloba of Oba chieftaincy by the Executive Council of Oyo State following the findings of Fakayode panel and this was communicated to the Onidere of Idere by the letter dated 23rd of February, 1989, exhibit S. The report and recommendation, of the Fakayode Panel is exhibits B and B1. The Onidere of Idere having been vested with the power of prescribed authority – forwarded his letter of approval to the 2nd appellant on the 16th of May, 1986, vide exhibit S. The certificate of approval to the 2nd appellant as the Oloba of Oba is exhibit K. The lower court set aside the appointment of the Onidere of Idere and substituted this with Bale of Aiyete based on his own findings and conclusion as regards the town traditionally associated with Oba as between Idere and Aiyete. It is glaring that there is jurisdiction vested in him by the combined effect of sections 6(6)(a) and 236 of the 1979 Constitution to have a supervisory jurisdiction on the decision of the panel or the Executive Council.
The power of the court to set aside the decision does not surely empower the court to substitute its own candidate – as that is the province of the Executive Council under the Chiefs Law. By virtue of section 22(1) of the Chiefs Law, Cap. 21, Laws of Oyo State, 1978 – which reads:-
“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 or group of Local Governments, 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.”
The steps taken by the government to set up a Panel of Inquiry into the Oloba of Oba chieftaincy and the approval of the 2nd appellant as the rightful Oloba of Oba – and confirmation of Onidere of Idere as the prescribed authority for Oloba of Oba chieftaincy are based on section 22(5) to (7) of the Chiefs Law, 1978. It is not the business of the High Court to make declarations of customary law relating to the selection of chiefs under the Chiefs Law.
Where a statute has given exclusive jurisdiction to another tribunal the jurisdiction of the court to grant a declaration in respect of such relevant matters is ousted. The word ‘may’ used in section 22(1) of the Chiefs Law means must and it is imperative. The exercise of the power to appoint a prescribed authority by law is on the executive council and not vested in the courts. Adesola v. Abidoye (1999) 14 WLR (Pt.637) 28 SC, and Eguanwense v. Amaghizemwen (1993) 9 NWLR (Pt.315) 1.
When a court has no jurisdiction to hear and determine a matter before it, any step taken in relation to the matter is a nullity and void. Adesola v. Abidoye (1999) 14 NWLR (Pt.637) 28. I do not need to belabour the issue by delving into the issue of the evaluation of the evidence adduced before the learned trial Judge and whether he had arrived at the proper findings thereon. The learned trial Judge did consider the evidence of the parties, but he failed to exercise his discretion in the matter according to law. All that was required of him was to set aside the decision to make the Onidere the prescribed authority, if he was not properly appointed according to the Chiefs Law as regards the subsequent appointment of the 3rd PW. The Executive Council had set up a panel of inquiry to look into the Oloba of Oba chieftaincy – there is no challenge that the Inquiry did not operate according to law or that it did not keep to its terms of reference. In the final analysis and going by the evidence before the trial court the appeals of the 1st and 2nd appellants succeed. The judgment of the trial court delivered on the 31st of July, 1997 is set aside.
It is noteworthy that the report of the Fakayode Panel of Inquiry into the Oloba of Oba chieftaincy was set aside to the extent only that it recommended that the Onidere of Idere is the prescribed authority in respect of the Oloba of Oba chieftaincy and that the appointment of the 3rd defendant as the Oloba of Oba be upheld. That portion of the Fakayode Panel of Inquiry recommending that the Onidere of Idere is the prescribed authority in respect of the Oloba of Oba chieftaincy and that the appointment of the now 2nd appellant as the Oloba of Oba be upheld already set aside is restored. N5,000.00 costs of this appeal is awarded in favour of the 2nd appellant.
Other Citations: (2004)LCN/1592(CA)