Thomas Adesola Oyetayo & Ors. V. Ganiyu Lawal Mosojo & Ors. (1997)

LawGlobal-Hub Lead Judgment Report

OKUNOLA, J.C.A. 

This is an appeal against the judgment of Kolawole J. of the Oyo (now Osun) State High Court sitting in Oshogbo delivered on 22/3/90 in which the court entered judgment in favour of the plaintiff/1st respondent and against defendants/appellants.

The facts of this case briefly put are as follows: The 1st respondent herein as plaintiff sued the appellants herein as defendants claiming as per his amended Writ of Summons as follows:

(i) Declaration that the appointment and installation of Mr. Thomas Adesola Oyetayo (i.e. 1st defendant) by 2nd, 3rd, 4th, 5th, 6th, 7th and 8th defendants as the Obasinkin of Ila is contrary to the Native Law and Custom of Ila Orangun and is therefore null and void.

(ii) Perpetual injunction restraining the 1st defendant from acting and or parading himself as the Obasinkin of Ila Orangun.

(iii) Perpetual injunction restraining the 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th and 10th defendants from recognizing the 1st defendant as the Obasinkin of Ila Orangun.

(iv) An order of the Court selling aside the Chieftaincy declaration in Ila as affecting the Obasinkin Chieftaincy in Ila Orangun and to declare the same as being contrary to native law and custom of Ila Oragun and therefore null and void.

Pleadings were filed and exchanged and the parties led evidence thereon. The plaintiff is a member of the Obasinkin Logun Kando’s family of Ila Orangun from which all the previous Obasinkins have come. The plaintiff took the action in representative capacity. It was the plaintiff’s claim that the Chieftaincy title of Obasinkin was exclusive to his family (i.e. that only members of Logun Kando family can aspire to become Obasinkin of Ila). According to him, his family was not aware of the 1960 Obasinkin Chieftaincy Declaration which added the family of the 1st defendant as another Ruling House in respect of the Chieftaincy. He claimed that even though Obasinkin Jekayinfa who was from his family attended the enquiry set up to find out how many ruling houses were entitled to the Chieftaincy of Obasinkin before the said declaration was made, registered and approved by the government his family was not aware of it. It was his case that Obasinkin Jekayinfa attended all the meetings but did not take part in the proceedings hence he contended that the addition of another ruling house to that of the plaintiff is not declaratory of the custom of Ila Orangun respecting the succession of the Obasinkin Chieftaincy. The plaintiff further on tended that, as the Obasinkin Chieftaincy was relegated to a minor Chieftaincy, it was no longer subject to the provisions of part 2 of the chiefs Law Cap 21 of the Western State.

The 1st defendant claimed that the plaintiff’s family was represented at the enquiry and put up their case and that 11 previous Obasinkins were from their family. The defendant’s case was that two members of his family were former Obasinkins. He further contended that Obasinkin Ajayi Jekayinfa from the plaintiff’s part attended and took active part among other interested parties in the proceedings leading to the declaration. He contended that since the late Obasinkin came from the plaintiff’s family, it was the turn of his family to present a candidate for the vacant stool in accordance with the 1960 Obasinkin Chieftaincy Declaration which is valid and applicable and hence his appointment was valid, lawful and in order. After the parties have led evidence as per their pleadings supra, learned counsel for the parties addressed the lower court. In the end, learned trial Judge found for the plaintiff.

Dissatisfied with this judgment, the defendants have appealed to this Court on 3 Original grounds of appeal and with leave of this Court added 5 additional grounds. From the eight grounds of appeal the defendants/appellants (hereinafter referred to as the appellants) have formulated the following four issues for determination in this appeal viz:

(1) Whether the learned trial Judge had jurisdiction to entertain the suit

(ii) Whether the learned trial Judge was right when having held that the Chief Ajayi Jekayinfa was present when the chieftaincy declaration was being considered but did not take part in the making of the said Chieftaincy Declaration in relation to Obasinkin Chieftaincy title.

(iii) Whether the learned trial Judge was right when he refused to accept the uncontradicted, unchallenged and uncontroverted evidence of the Secretary of Ila Local Government who testified as P.W.5 and D.W.6.

(iv) Whether the learned trial Judge was right in depriving the 1st defendant’s family their right to the Chieftaincy title which vested in the family so soon as Late Ajayi Jekayinfa the incumbent died.

Both learned counsel to the appellants and the 1st respondent filed their briefs of argument on behalf of their respective clients. The Counsel after adopting and relying on these briefs addressed us viva voce in support of their case.

Learned appellant’s Counsel, Chief O. Akande adopted the appellant’s amended brief filed on 7/11/95 and the appellant’s reply brief filed on 19/1/96 and urged the court to allow the appeal. 1st respondent’s counsel Mr. A.B. Ajayi adopted and relied on the 1st respondent’s brief filed on 11/5/93 and urged the court to dismiss the appeal. On the other hand both the 2nd and 3rd respondents who were duly served with the above stated briefs and the Hearing Notice for the appeal were absent and unrepresented. They did not file briefs as well.

I have gone through the submission made by learned counsel to both parties in respect of the four issues raised for determination vis-a-vis the records and the prevailing law. It is my view that the common complaint of both parties centres on the four issues formulated by the defendant/appellants supra. It is intended to deal with the issues one after the other starting first with issue one on jurisdiction. This is so since jurisdiction is the basis of adjudication. It is the out come of this issue that will determine whether other issues will be considered. However, it is intended to treat Issues 2 & 3 together and Issue 4 last. Before dealing with Issue 1, I propose to address the preliminary objection raised by the respondent in the 1st respondent’s brief. The objection is predicated on two grounds, viz:

(i) That the appellant’s’ brief is without a list of the legal authorities cited contrary to order 6 rule 3(b) of the Court of Appeal Rules.

(ii) That Issue No.1 on Jurisdiction is completely unrelated to either ground 4 or 7 of the grounds of appeal, hence it is incompetent and the issues formulated therefrom should be disregarded.

On the first ground learned counsel on page 6 of the respondent’s brief cited Order 6 Rule 3(b) of the Court of Appeal Rules in support. Learned Counsel to the appellant in his reply at page 1 of the appellants’ reply brief submitted on this point that this objection is misconceived as the appellants are required to file their list of authorities within 3 days of the hearing of the appeal. Failure to do this, counsel argued, the appellants will not be permitted to cite such legal authorities. I have considered the arguments of both counsel to the parties vis-a-vis the records and the prevailing law. In my view, it is trite law that failure to file the list of authorities within 3 days of hearing of the appeal will deprive the appellants the opportunity of citing such legal authorities and no more.

On the 2nd ground, the respondent’s complaint is simply that the issue of jurisdiction cannot be raised at any time particularly on appeal where it had not been raised at the lower court. Learned Counsel to the respondents contended that since jurisdiction was not raised in the grounds, it cannot be entertained. He cited numerous legal authorities in support (vide p. 7 of the respondent’s brief). By way of reply learned counsel to the appellants on pages 1 & 2 of the appellants’ brief submitted that the particulars of grounds 4 & 7 which must be taken along with the grounds complain of jurisdiction of the court. Counsel further submitted that jurisdiction can be raised at any stage of the proceedings, even before the Court of Appeal. Learned counsel cited Bakare v. A.G. Fed. (1990) 5 NWLR (Pt. 152) 516 (1990) 9 SCNJ 43 p. 49 to back up his contention.

I have gone through the submissions of both learned counsel to the parties on this 2nd ground vis-a-vis the record and the prevailing law. I observe that the particulars of errors in grounds 4 & 7 complain of the issue of jurisdiction. As regards the issue of jurisdiction not being raised at the lower court, I agree and hold that it is trite law that issue of jurisdiction can be raised at any stage of an action including on appeal. See Alh. Hashimu Garba Matari & 6 Ors v. Ahmadu Dangaladinma & 1 Or (1993) 3 NWLR (Pt. 281) 313 (1993) 2 SCNJ 122, Petrojessica Enterprises Ltd & Anor v. Leventis Technical Coy Ltd. (1992) 5 NWLR (Pt. 244) (1992) 6 SCNJ 154. In the light of the foregoing authorities, I resolve the two grounds in favour of the appellants.

In sum, the preliminary objection lacks merit and it is overruled. I shall now proceed to deal with the issues raised by the appellants in their brief.

On Issue 1 touching on jurisdiction, learned counsel to the appellants on pages 3 & 4 of the appellants’ brief submitted that Exh. ‘D’ the Chieftaincy Declaration in relation to Obasikin Chieftaincy title was made, approved, on 15/3/60 and registered on 16/3/60. The said Exh. ‘D’ created ruling houses for Obasinkin Chieftaincy and as such the cause of action arose in 1960 before the 1979 Constitution came into operation, learned counsel asserted. Learned counsel further submitted that the applicable law to an action is that law at the time the cause of action arose. He therefore submitted that even though this suit was filed in 1983 after the 1979 Constitution, the cause of action having arisen in 1960, the applicable law at the time the cause of action arose was the Chiefs’ Law of Western Region and not the 1979 Constitution. Learned Counsel finally contended that the lower court had no jurisdiction to entertain the suit to set aside the chieftaincy Declaration relating to Obasinkin Chieftaincy. Learned Counsel cited in support the cases of Uwaifo v. A.G. Bendel State & 4 Ors. (1982) 7 SC 124 p.131. Olaniyi v. Gbadamosi Aroyewun (1991) 7 SCNJ 40 p.41.(1991) 5 NWLR (Pt. 194) 652.

By way of reply, learned counsel to the respondent on pages 8-12 of the respondent’s brief conceded that Exh. ‘D’ was made in 1960 under the Chiefs Law of Western Region 1959. Learned counsel contended that contrary to the submission of learned counsel to the appellants, the cause of action in this matter are a combination of (a) resistance of the other defendants from installing the 1st defendant as new Obasinkin of Ila Orangun (b) entitlement of Logun Kando’s Family’s exclusive right to the title of Obasinkin of Ila Orangun. Learned counsel further submitted that the cause of action arose in this case in 1982 on the demise of Obasinkin Ayayi Jekayinfa, counsel cited Salami Afolabi & Ors v. Governor of Oyo State & Ors.(1985) 2 NWLR (Pt. 9) 734 (1985) 9 SC 117 Lines 8-12 in support. Learned counsel submitted that the applicable law at the time the cause of action arose was the recognized Chieftaincies (Revocation and Miscellaneous) order W.S.L.N. No.6 of 1976 and the 1979 Constitution of the Federal Republic of Nigeria. He submitted that the cases of Uwaifo v. A.G. of Bendel & 4 Ors (1982) 7 SC 124 p.131 and Olaniyi v. Aroyewun & 7 Ors (supra) cited by learned counsel to the appellants are completely inapplicable.

I have considered the submission of both learned counsel to the parties vis-a-vis the records and the prevailing law. Their arguments boil down to

(a) What is the cause of action in the instant case under our law?

(b) When did the cause of action arise?

As to when the cause of action arises under our law, this has received judicial definition from the appellate courts in the country to the effect that it is the date of occurrence, neglector default complained of and not that of the consequence or result of any of them. Put in another way, it is not the sickness resulting from the act complained of but the act itself. See Samuel A. Adigun v. I.O. Ayinde & Ors (1993) 8 NWLR (Pt.313) 516 (1993) 11 SCNJ 1; A.G. Kwara State & Ors v. Raimi Olawale (1993) 1 NWLR (Pt. 272) 645 (1993) 1 SCNJ 208; Smart Gabari Ogbimi v. Mrs. Beauty Ololo & Ors (1993) 7 NWLR (Pt. 304) 128 (1993) 7 SCNJ 447; Chief Festus S. Yusuf v. Cooperative Bank Ltd (1994) 7 NWLR (Pt.359) 676 (1994) 9 SCNJ 67.

Applying the above judicial definition to the instant case it is clear that the resistance of the other defendants from installing the 1st defendant as new Obasinkin of Ila Orangun and the entitlement or Logun Kando’s family’s exclusive right to the title of Obasinkin of Ila Orangun are ripples flowing from the challenge posed by the declaration in Exh. ‘D’. All these coupled with the death of the last Obasinkin in 1983 constitute the consequence or sickness resulting from the declaration Exh. ‘D’ which is the act itself. It is therefore apparent that the act Exh ‘D’ which constitutes the cause of action in the instant case arose in 1960 and not in 1982 on the demise of the Obasinkin Jekayinfa and I so hold.

As to the applicable law both learned counsel to the parties concede and I agree with them that the applicable laws for the determination of the action before a court are those in force when the cause of action arose. See Chief Uwedor Utih & Ors v. Jacob Omurhurhu Onoyivwe & Ors. (1991) 1 NWLR (Pt. 166) 166 (1991) 1 SCNJ 25; Samuel A. Adigun v. I.O. Ayinde & Ors. (1993) 8 NWLR (Pt. 313) 516 (1993) 11 SCNJ 1. Learned counsel to the respondent contended that since the cause of action arose the applicable laws had undergone changes and urged that such changes should affect the accrued rights of the respondent. The appellants disagreed with this argument. I have gone through the arguments of both parties on this novel point. In my view this poser had been resolved by the highest court in this country to the effect that the applicable law for determination of an action is the substantive law existing at the time of the action and that change of law will not affect accrued rights and obligations unless the change is made retrospective. See Victor J. Rossek & Ors v. African Continental Bank Ltd. & Ors.(1993) 8 NWLR (Pt. 312) 382 (1993) 10 SCNJ 20. Since both the recognized Chieftaincy (Revocation and Miscellaneous) Order WSLN No.6 of 1976 and the 1979 Constitution of the Federal Republic of Nigeria were not made retrospective I agree with the appellant that notwithstanding the provisions of both laws stated supra, the High Court or any other court will have no jurisdiction to entertain this matter in view of S.24(a) of the Chiefs Law Cap. 19 of Western Region which is the applicable law in the instant case and I so hold. See Rossek & Ors. v. A.C.B. Nig. Ltd & Ors. (supra). In the circumstance, Issue No. 1 is resolved in favour of the appellants.

Issues 2 & 3 deal with the finding of fact by the lower court that Obasinkin Jekayinfa was present at the Enquiry leading to Ex. ‘D’ but did not participate at the Enquiry and the refusal of the court to accept the evidence of the Secretary to the Ila Local Government who testified as P.W.5 & D.W.6. On both issues learned counsel to the appellants on page 5 paragraph 5.03 of the appellants’ brief submitted that since the learned trial Judge accepted the evidence of P.W.4 that Ajayi Jekayinfa took part in the proceeding that made Exh. ‘D’, he was in error to say he did not take part particularly when his position aired on in the Chieftaincy is viewed. Learned counsel also referred to the address of counsel on the uncontradicted and unchallenged evidence of P.W.5 who also testified as D.W.6, the Secretary to Ila Local Government at page 160 Lines 10-32 of the records and contended that the trial Judge was in error to refuse to accept same as unchallenged evidence when in the end the Judge carne to the same conclusion that late Jekayinfa took part in the enquiry. By way of reply, learned Counsel to the respondent conceded at page 14 in paragraph 7 of the respondent’s brief that at no time did the learned trial Judge say that Chief Jekayinfa was either not present or did not take part in the meeting of 5/12/57 save that the learned trial Judge said there was nothing in the minutes of the said meeting to warrant the use of the word ‘actively’.

I have gone through the submissions of both learned counsel to the parties on these issues, via-a-vis the records and the prevailing law. In my view both learned counsel have agreed on the unchallenged evidence of P.W.5 & D.W.6 that Chief Jekayinfa was present and took part in the meeting leading to Exh. ‘D’, the question is whether under our law, the learned trial Judge was justified to have refused such evidence? I would answer this poser in negative. The law in this country is that an uncontroverted and unchallenged evidence such as the one under review must be accepted by the court and such evidence must be acted upon by the court. See Alhaji Abdullahi Baba v. Nigerian Civil Aviation Training Centre & Anor (1991) 5 NWLR (Pt. 192) 388 (1991) 7 SCNJ 1; L.S.D.P.C. & anor v. Nigerian Land and Sea Foods Ltd. (1992) 5 NWLR (Pt. 244) 652 (1992) 6 SCNJ 243: Hycinth nwachukwu Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt. 361) 124 (1994) 9 SCNJ 161. It needs to be stressed here that with respect to such evidence, the appeal court is in the same position as trial court to draw inference from such evidence See Jimoh Adesanya Odubeko v. Victor O. Fowler & anor (1993) 7 NWLR (Pt.308) 637 (1993) 9 SCNJ 1851.

In the light of the foregoing authorities, I hold that the learned trial Judge was in error for refusing to accept the evidence of P.W.5 & D.W.6, the Secretary to Ila Local Government, moreso when he held on page 169 Lines 30-36 that he was prepared to accept that Jekayinfa told the enquiry that the Obasinkin Chieftaincy title was only for Logun Kando. In the circumstance, the finding of the learned trial judge that Jekayinfa did not participate at the enquiry leading to Exh. ‘D’ the 1960 Declaration is contrary to evidence before the court and is perverse. On the whole I resolve Issue, 2 & 3 in favour of the appellants.

Issue 4 deals with whether the learned trial Judge was right in depriving the 1st appellant’s family their right to the Chieftaincy title which vested in the family so soon as late Ajayi Jekayinfa the incumbent died? Learned counsel to the appellants submitted by way of summary at page 7 paragraph 3 of the appellants’ brief the right of the 1st appellant’s family to the title of Obasinkin had become vested in the family when Jekayinfa who hailed from the plaintiff’s family died in 1983. By way of reply, learned counsel to the respondents argued on the contrary on pages 17-19 of the respondents’ brief. I have considered the submissions of both parties on this issues vis-a-vis the records and the prevailing law. In my view and having regards to my views on issues 1, 2, & 3 supra, going by the 1960 declaration, the right of the 1st appellant’s family to the title of Obasinkin had become vested in the 1st appellant’s family when Jekayinfa who hailed from the plaintiff’s family died in 1983 and I so hold.

On the whole, this appeal succeeds and it is allowed. The judgment of Kolawole, J. of the Oyo (now Osun) State High Court sitting in Oshogbo in Suit No. OS/69/83 delivered on 22/3/90 is hereby set aside costs of N1,000.00 is awarded in favour of the appellants.

Other Citations: (1997)LCN/0279(CA)