In The Supreme Court of Nigeria
On Friday, the 12 th day of January 2007
S.C. 160/1995
Between
Oba Adebanjo Mafimisebi ....... Defendants/Appellants/Cross- Chief Frances Omotunde Ewarawon                     Respondents
(Substituted by Order of Court on 2/5/2006)
And
Prince Macaulay Ehuwa
Prince Ethiopia Eyiwumi Okiki...Plaintiffs/Respondents/           Prince Ephraim .O.Omotoye               Cross-Appellants
Prince Albert .S. Ebigbemi
And

The Military Governor of Ondo State .... Defendant

                                                   /Respondent/Cross-Respondent
The Secretary, Ilaje/Ese-Odo Local Government
The Attorney-General of Ondo State
And
High Chief S.A. Adugben ...... Defendants/Respondents

                                                    /Cross-Respondents
High Chief A. M Agbaro

Judgment of the court

delivered by

Dahiru Musdapher. J.S.C.

In the High Court of Ondo State of Nigeria in the Okiti-pupa 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 UgboChieftaincy are (sic) defective and inexaustive 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 betweenAGBEDUN/OJOGO and OYETAYO/ ATARIOYE section ofOJADELE ruling house since the demise of OJADELE.

(iii)       Declaration that the Registered Declaration of theUgbo 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 UgboChieftaincy 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 1^st 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 1^st defendant based its decision is 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 OLUGBOStool physically for screening and selection before the kingmakers at the meeting where a candidate will be appointed.

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

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

(viii)     An order of perpetual injunction restraining the 1^st,2^nd ,4^th ,5^th and 7^th 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 3^rd defendant as the Olugbo elect.

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

(x)        An Order of perpetual injunction restraining the 3^rd 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 or the 7^th 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 J.C.A) 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   ofOlugbo, Exhibit "A" correctly represents the   Chieftaincy custom or tradition of the Ugbo people,

...……………………………….. …………………………………………….

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 theUgbo people as they exist on the ground, this court will not hesitate to declare it invalid and set it aside    ,…………………………….…………………………… If exhibit "A" is set aside, then clearly all other things done under it, such as the appointment of the 3'  respondent as theOlugbo 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, ………………………………….

In the instant case where the learned trial judge had failed to make any reference or pronouncement at all on exhibit "J" series ……………………………………. justice therefore demands that this case should be sent back to the court below for a fresh trial before another Judge ofOndo 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 Olugbochieftaincy 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 lateOlugbo, 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 3^rd defendant, urged the panel to recognize two ruling houses viz Agbedun/Ojogoand 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 3^rd 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 3^rd 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 dependants was disbelieved by trial judge.

From the pleadings and the evidence adduced, it appears that both the plaintiffs and the 3^rd defendant and his witnesses are agreed that Exhibit "A" did not truly represent the customary law and tradition of the Ugbopeople 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 3^rddefendant 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 contestants 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 Ojadeleonly.

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 Vs. A. G. Of Oyo State [1987] 1 NWLR (Pt. 53) 678 at 717 and said at page 400 of the printed record:-

"……………………… 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……………………. I shall set Exhibit "A" aside and declare what the true position is as regards the customary law of the Olugbochieftaincy."

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 3^rd 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 ofOjadele 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 3^rddefendant 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 3^rd defendant, then the appeal of the 7^th 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 any appellants' brief, even if they filed. Notice of appeal, they merely filed respondents' or cross-respondents brief.

The appeal of the 3^rd defendant

In his Notice of appeal, the 3^rd 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 subsidiary legislation such as Exhibit A. Learned counsel referred to the case of

Obala of Otan Aiyegbaju vs. 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 vs. 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 1^st, 2^nd and 4^th 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 vs. Governor Of Ogun State [1993] 8 NWLR (Pt 309) Oyefolu vs. Durosinmi II [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 vs. A.G. Oyo State [1987] 1 NWLR (Pt 53) 678 and also the case of Ajakaiye vs. Idehai (supra) Aku vs. 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 vs. A.G. of Oyo State [1987] 1 NWLR (Pt 53) 678.  …………………. The Supreme Court held that it does…………………….."

The learned trial judge cited the statement of Eso. JSC at page 717 of the report, thus:

"……………………  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 ……………..."

 In the same case Justice Qbaseki JSC also observed:-

"………………………… 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 23 6(i) of the Constitution of the Federal Republic of Nigeria 1979."

Applying the above principle, the learned trial judge continued-

"……………………….. 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/ Ojogaand Oyetayo/Atarioye are the two ruling houses…………………………………………. 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  vs Leventis [1959] 4 FSC 108 Oshodi vs.Eyifunmi [2000] 13 NWLR (Pt 684) 298

In the case of Odiase  vs. Agho  [1972] 3 SC 73, At Page 78, Lewis J.S.C.

"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 to any other future appeal before us unfitted 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 who 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 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(ii) and 5(2) of the Chieftaincy Edict of Ondo State, Edict No. 11 of 1984. SeeFasade vs. Babalola (2003) 11 NWLR and the Adigun case(Pt. 830) p. 25 (supra).

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 3^rddefendant and his witnesses, the customary law of the chieftaincy is that succession to the throne is from father to son. The plaintiffs 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 ofONU JSC in the case of Ajakaiye vs. Idehai supra pages 532-533 in which he cited the case of Egumwense vs.Amaghizenwen (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. SeeAku vs. Anekwu supra and accordingly declare it invalid if does not. I accordingly resolve issue A against the 3^rddefendant/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 3^ld 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 1^st, 2" and 4^th 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 what-ever 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 Ugbopeople 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 theOlugbo 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 ofOjadele there is no other corroborative evidence which can support this claim."

The corroborative evidence if corroboration was necessary was 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 represents 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 3^rddefendant/appellant.

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

Appeal of the 7^th Defendant as substituted by High Chief Francis Qmotimde Ewarawon

The 2^nd appellant herein is the predecessor of the 7^thdefendant 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'.

On the other hand, learned senior counsel for the plaintiffs/respondents, Chief Afe Babalola, SAN in the brief of argument filed on 18/1/05 in reaction to the 1^stappellant's brief identified the following two issues for determination, namely:

"(i)       Whether or not the Court of Appeal had the competence and the jurisdiction to set aside Exhibit "A" when the said exhibit was found to be contrary to the native law and customs of Olugbo of UgboChieftaincy as pleased by the parties to the case? Grounds (I), (III) and (IV).

(ii)        Whether Exhibit J series which are historical records relating to the chieftaincy 'are not admissible to invalidate the content of Exhibit "A"."

The above issues were adopted by learned senior counsel in the respondents' brief of argument to the 6^thdefendant/appellant's brief, deemed filed on 19/10/06. In order words and according to the learned senior counsel both appeals in effect have the same substratum and I tend to agree with him. As regard the cross appeal, a single issue is identified in the cross appellants’ brief filed on 6/11/97 to wit:-

"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 re-hear this case as if it were the Court of first instance and make necessary orders, directives and or ascribe probative value to evidence of facts like exhibits "J", "J1", "J2" and "J4" not bothering ondemeanor which were not considered, appraised or reviewed by the trial court instead of ordering a retrial De-novo."

I hold the view that the two issues formulated by learned senior counsel for the plaintiffs/respondents/cross appellants constitute the real issues in controversy in this appeal but the main issue remains issue No. 1

"Whether or not the Court of Appeal had the competence and jurisdiction to set aside Exhibit "A" when the said exhibit was found to be contrary to the Native law and customs of Olugbo of Ugbo chieftaincy as pleaded by the parties to the case"

The arguments from the two appellants on issue No. 1 boil down to a submission that the court of trial, granted that it found that exhibit A, the chieftaincy declaration, was defective and in exhaustive of the customs of Olugbo ofUgbo chieftaincy the court would be without jurisdiction to set same aside granted further that there was a relief of setting same aside pleaded by the respondents; that since the relief of setting aside of Exhibit 'A' was not pleaded, the court is incompetent to grant same; the following cases were cited and relied upon: Igbe vs Efeki (2000) 10 NWLR.(pt. 674) Ekpenyong vs Nyong (1975) 2 SC. 71; Obioma vsOlowu (1978) 3^:SC. I; Okoya vs Santili

(1991) 7 NWLR (pt. 206) 753. Another reason given for the absence of competence in the court to set aside exhibit A is that it is a subsidiary legislation and that the duty of the court is to interprete it and that the court can only invalidate a chieftaincy declaration if it violates the Chiefs Law or Edict of the state, definitely not when it fails toaccomodate a customary law or usage.

On the other side of the coin are the submissions of learned senior advocate for the plaintiff/respondents to the effect that a claim for declaration that exhibit A is null and void is the same thing as a claim for setting aside exhibit A. Citing and relying on the cases of Adegun vs A-G of Oyo State (1987) 1NWLR (pt. 53) 678 and Aku  v.  Aneku(1991) 8 'NWLR" (pt. 209J 280 learned senior the submission of learned Senior Advocate for the plaintiffs/respondents/ counsel submitted that the court can set aside chieftaincy declaration which does not correctly declare the chieftaincy law and tradition of the area in issue.

To begin with, I do not agree with cross appellants that a claim for declaration of a right is the same-as a claim to set aside what had been found to have been wrongly done. Looking closely at the reliefs claimed in the action and which have earlier been reproduced in the judgment, it is clear that there is no claim for setting aside the chieftaincy declaration, exhibit "A" and I so hold. The issue therefore as can be seen from the pleadings is whether the court can order the declarations sought in view of exhibit A. In other words is the court competent to declare exhibit A null and void as claimed by the plaintiffs/respondents/cross appellants.

It is settled law that it is the claim of the plaintiff that determines the jurisdiction of the court to entertain same; see Barclays Bank v Centra! Bank (1976) 6 SC. 175; Adeyemivs Opeyori (1976) 9-10 SC. 31. In the instant case and as can be seen from the pleadings and reliefs claimed, the claim of the plaintiffs/respondents/cross appellants is substantially declaratory apart from the few injunctivereliefs thrown in for good measure. It is also settled law that an action for declaration is a useful and’ important procedural method or .means of ascertaining and deciding a point of law or the construction of a document or deciding the existence of a right or obligation of a party as well as the determination of the validity of orders or decisions of inferior courts or tribunals or administrative bodies. In short, it is a very useful tool in a, great variety of ways and circumstances including resolution of disputes as to title to land or chieftaincy.

It is also settled that the issue as to who is qualified to ascend to any traditional stool or throne is subject to the customary law and traditions of the people concerned which is in turn a question of fact to be proved by calling evidence unless frequent proof of same has made it to attain the legal status of notoriety so as to be judicially noticed, see Oluwu vs Olowu (1985) 3NWLR (pt. 3) 372;Agbai vs Okogbue (1991) 7 NWLR (pt. 204) 391. It is to avoid the problem of calling evidence each time a particular native law and custom needs to be established in relation to chieftaincy in the former Western Region of Nigeria that gave rise to the attempt at codification of therelevant customary laws and traditions of the relevant people in relation to particular chieftaincies otherwise known as Chieftaincy Declarations. Therefore the purpose of registered chieftaincy declaration is to embody in a legally binding written statement of Tact, the customary law of the relevant area in which the method regulating the nomination and selection of a candidate to fill a vacancy is clearly stated so as to avoid uncertainty. From the decided cases, the function of making chieftaincy declarations lies with the executive arm of the state government concerned and is usually exercised by a chieftaincy committee on behalf of that government.

It is now settled law that where a declaration in respect of a recognized chieftaincy is validly made and, registered, the matter therein stated shall be deemed to be the customary law regulating the selection of a person to be the holder of the recognized chieftaincy to the exclusion of any other customary usage or rule. The registered declaration is therefore a declaration of the tradition, customary law and usages pertaining to the selection and appointment to a particular chieftaincy stool which necessarily dispenses with the need of proof by oral evidence of such tradition, custom and usages each time the need arises to determine the matter, see Oladele v.Aromolarain 11 (1996) 6 NWLR (pt. 453) 180. The duty of the court in such circumstance  of a registered declaration - is to apply the provisions of a chieftaincy declaration to the facts of the case as established by evidence particularly as the court has no power to assume the functions of the chieftaincy committee as regards the making or amendment of customary law governing the selection and appointment of traditional chiefs in such relevant case but it is the business of the court to make a finding of what the customary law is and apply the law for the purpose of the claims for declaration:- see Ikiwe vsEdijero (2001) 18 NWLR (pt. 745) 446 at 478 - 479; Adigunvs A-G Oyo State (1887) 1 NWLR(pt. 53)678.   

In the case of Afolabi vs Governor of Oyo State (1985) 2NWLR (pt: 9) 734 at 738 this court stated that:-

"A Chieftaincy Declaration made under the Chiefs Law, 1978 is the customary law in force in the area which it covers.  By section 4(2) of the Chiefs Law 1978 such Declaration continues to have effect until it is amended and the amended Declaration is registered."

In the case of Adigun vs A-G of Oyo State (1987) 1 NWLR(pt. 53) 678 this Court held that the making of a chieftaincy declaration is purely an administrative act, not a function exercisable by the court  and that where there is a registered chieftaincy declaration in relation to a particular chieftaincy, the production of the declaration would suffice but where in the process of the making of the said declaration those who ought to be heard were not so heard or where the making of that declaration is in beach of the right to fair hearing the court can interfere as the administrative body is bound to observe the rules of fair hearing.

In Obala of Otan Aiyegbaju vs Adesina (1992)'2 NWLR (pt. 590) 163 this court also held that the court can set aside a registered declaration. The competence of the court to set aside or declare a registered declaration null and void is therefore settled and is beyond doubt irrespective of whether the said declaration enjoys the status of a subsidiary legislation or statutory instrument particularly as the court has the vires to declare invalid an Act of the National Assembly, talk less of a statutory instrument. The’ importance of the statement of the law lies in the apparent misconception that once a registered declaration is made it cannot be set aside or declared invalid. It can, where for instance it offends any constitutional provision or Act or Law etc. In the most recent decision of this court in the case of Fasade vs Babalola (2003) 11 NWLR (pt. 830) 25 thiscourt ,par Uwaifo, J.S.C stated the law as follows:-

"………….          where a declaration has been validly made in respect of a recognized chieftaincy and registered, it represents the applicable custormary law regulating the selection and appointment of a candidate to a vacant chieftaincy; and the provisions of such a registered declaration should prevail until amended; see Ogundarevs Ogunlowo (1997) 6 NWLR (pt. 509) 360.  The registered declaration is the admissible and subsisting declaration.  See Adigun vs A-G Oyo State (1987) 1 NWLR (pt. 53) 678, (1987) 3 SC. 250; Oladele vs Aromolaran 11; its existence from the relevant chiefs law has statutory force.  SeeAyoade vs Military Governor, Ogun State, (1993) f 8NWLR (pt 309) 111."

(Emphasis supplied)

The question that naturally follows and on which lies the resolution of the appeal is whether Exhibit A qualifies as one of those to be declared null and void. The case of the plaintiffs/respondents/cross appellants is that exhibit A is defective and in exhaustive of the customs and traditions of Ugbo chieftaincy and that by the tradition and customs of the people, the appointment of the Olugbo is by rotation which exhibit A failed to recognize and provide for and consequently null and void. From the pleadings of the parties, two versions of the custom relevant to the OlugboChieftaincy were pleaded and testified to by the parties to the action; these are rotational succession by the plaintiffs/respondents/ cross appellants and father to son otherwise called hereditary succession pleaded and testified to by the 3^rd defendant/1^st appellant. It is to be noted that the Morgan Commission whose recommendations led to the production of exhibit A never adopted either of the two versions hence the continuation of the dispute as to the correct mode of succession to theOlugbo of Ugbo chieftaincy. Rather than adopt either of the versions the commission and the government in their wisdom threw the issue wide open to any male decendant.of Ojadele Ruling House. It did not solve the problem hence the continuation of the agitation with each party sticking to its version even in the court. It has been argued that exhibit A is consistent with the two versions. I do not agree. If it. were, there would have been no further need for the agitation particularly for the appellants insisting that succession to the throne in issue is from father to son, which is to the exclusion of the other members of the Ruling House. It is therefore very clear to me that the parties to the action are clearly not satisfied with exhibit A as representing the customary law relevant to the chieftaincy in issue hence the action for declaratoryreliefs. I hold the view that the claims as couched - being declaratory in nature are within the jurisdiction or competence of the court to grant if there are facts to support same. The court is not being called upon to make a chieftaincy declaration for the person neither is it to amend the existing declaration. I hold the considered view that just as the court has the vires to declare or set aside a registered declaration found to be unconstitutional or contrary to the provisions of any Act or Law including the Chieftaincy Law under which it was made, the court equally has the competence to declare same null and void when from the evidence, it is clear that the said declaration does not truly represent the customary law it professes to restate.    The above position was recognized by the learned trial judge as being the true position of the law on the matter when he stated at page 400 of the record thus:-

"This court has jurisdiction to look into the existing declaration Exhibit "A" and if, from the adduced evidence, I find that if 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........ I shall set Exhibit "A" aside and declare what the true position is as regards the customary law of the OlugboChieftaincy."

From the above position taken by the trial judge which was never challenged on appeal, it is clear that no proper decision can be taken in relation to the issue stated by' that court without a proper and exhaustive appraisal or evaluation of the totality of the evidence produced before the court by the parties in support of their contending versions. It is the case of the plaintiffs/ respondents/cross appellants that in an attempt at resolving the issue the learned trial judge failed to evaluate the exhibit J series tendered in support of their case and the lower court agreed with that submission and proceeded to order a retrial. It has to be noted that the issue of admissibility of exhibit J series as, raised and argued by learned counsel for the appellants is misconceived as the documents were admitted without objection and the issue is being raised for the first time in this court without leave there being no appeal on the issue before the lower court.

The trial court at page 414 found, inter alia, as follows:-

''Apart from the oral evidences of the plaintiffs and their witnesses that (he chieftaincy has been in rotation among the few children of Ojadele since the death ofOjadele there is no other corroborative evidence which can support this claim."

The above finding is crucial in that if proved wrong, it gives credence to the complaint of the respondents/cross appellants that the trial court failed to evaluate the exhibit J series in its judgment and that if it had done so it would have arrived at a contrary conclusion. The lower court agreed with the respondents on the matter particularly as that court in quoting from the contents of exhibit J at page 638 of the record stated that "the general conclusion in Exhibit J was that the "Olugbo stool is NOT HEREDITARY" and that it was NOT YET the turn of Napoleon Mafemisebito be an Olugbo." The above finding clearly demonstrates the corroboration which the trial court had said does not exist in the evidence before it. There is therefore the evidence in support of the plaintiffs/respondents' case that the customary law applicable to Olugbo of Ugbo stool is rotational succession rather than hereditary succession as contended by the appellants. To that extent it is unsafe to say that exhibit A which neither advocates the rotational succession nor the hereditary succession is a true reflection of the applicable customary law of the people concerned that being the case, it is liable to be declared null and void ab initio.

It is   settled   law that the evaluation   of evidence   and  the ascription of probative value thereto reside within the province of the trial court that saw, heard and assessed the witnesses and that where a trial court unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of the appellate court to substitute its own views for the view of the trial court but the court can intervene, where there is insufficient evidence to sustain the judgment, or where the trial court fails to make proper use of opportunity of seeing, hearing and observing, the witnesses or where the findings of fact of trial court cannot be regarded as resulting from the evidence or where the trial court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or are not supported by evidence before the court - seeAkinloye vs Eyiyiola (1968) NMLR 92, Enang vs Adu (1981) 11-12 S.C 25; Woluchem v. Gudi (1981) 5 S.C 291; AkpagbuVS Ogu (1976) 6 S.C 63; Odofin vs Ayool (1984) 11 S.C 72;Amadi vs Nwosu (1992) 5 NWLR.(pt 2421) 273; Okpiri vsJonah (1961) 1 SCNLR 174; Maja vs Stocco (1968) 1 All NLR141; Ike vs Ugbo oaja (1993) 6 NWLR (pt. 301) 539; Ebba vsOgodo (1984) 1 SCNLR 372.

However where the issue before the court canters on the assessment or consideration of documentary evidence tendered in the proceedings as distinct from the credibility of witnesses as in the instant case where the issue is the evaluations non evaluation of the exhibit J series, the appellate court is not foreclosed by the views of the learned trial judge on the said documentary evidence from evaluating and making its own findings thereon; that is also settled law. See Absi  v.  Ekwealor (1993) 6 NWLR(pt. 302) 643; Adeyemi II v. Atanda (1995) 5 NWLR (pt. 397) 512 at 529.at page 638 of the record, the lower court therefore appraised exhibit J series and stated as follows:-

"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 Exhibit J, J1, J2, J3 and J4 (They will hereinafter be referred to as Exhibit J series).  It is  unnecessary to reproduce any of them here, as they are rather lengthy.  The important thing however, setting up the Morgan Commission, and making of Exhibit "A".   These exhibits all showed that the appoint­ment of Oba Mafimisebi III as the successor to his /are father Oba Mafimisebi II. Exhibit J for instance was the report of Board of Enquiry set up to enquire into the Ohigbo 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 "OluqboStool is  NOT  HEREDITARY," and that it was NOT YET the turn of Napoleon Mafimisebi (i.e the father of the 3^rd defendant)        to be an Olugbo. Exhibit J1 was also a record of proceedings of another enquiry set up in January, 1954.  Exhibit J2 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."

(Emphasis Supplied.)

I hold the view that the lower court having come to the conclusion that the trial judge did not evaluate the exhibit J series has the duty to evaluate same and come to a conclusion thereon, which was done in this case particularly as the principle is that an appeal is a rehearing of the matter before the appellate court.

I have carefully gone through the exhibit J series and at page 468 of the record is part of Exhibit J. which states the following:

 "Finding of Oluqbo Chieftaincy Disputes Board of Enquiry10^th  July  - 17^tth “

(a)        Napoleon Mafimishebi

Olugbo stool is not Hereditary.  He is not the only son of Agbodun the descendant of Ojedele’s his great grand father.

(b)        He is the grand son of Ogundere the Olugbo who was the father of Mafimishebi I from whomMafimishebi II came out and begat NapoleonMafimishebi the "Contestant."

……………………………………………………………………….

…………………………………………………..

Conclusion:

It is not yet his turn."

The Committee concluded at page 470 thus:-       

"The Committee hereby recommends Chief Josiah A/anaAiyemobuwa (Chief Ojomo of Ugbo) the Olubo of Ugbothis day: the 17^th July, 1953 unanimously...."

He was not from the same branch with Mafimishebi. He came from Ojogo branch. However despite the finding by the lower court as reproduced supra, the court went on to order a retrial of the case before another judge with a directive to evaluate and appraise the exhibit J series.

The principle guiding the court in ordering a retrial of a suit have been stated in various cases as being dependent on the circumstances of a particular case. Generally it is agreed that an appellate court will be reluctant to order a retrial where:-

(a)        the plaintiff has established his case by raising the probabilities in his favour; or        

(b)        the order of retrial will enable the defendant to improve his position during retrial to the prejudice of his opponent; or

(c)        the litigation will be unnecessarily prolonged; or

(d)        the proceedings are conducted by the trial court largely in conformity with rules of evidence and i procedure; or

(e)        there was no substantial irregularity in the conduct of the case.  It is settled that an order of retrial will not be made in any of the above stated circumstances so as to avoid injustice.

In the instant case the Court of Appeal in the passage reproduced supra evaluated the exhibit J series and in fact came to some definite conclusions on them as underlined supra. That clearly show that the said exhibits support the case of the plaintiffs/respondents/cross appellants that succession to the throne in question is rotational not hereditary as found by the learned trial judge. This finding goes to reinforce the claim of the plaintiffs/respondents/ cross appellants that exhibit A does not reflect the true position of the customary laws of the people as regard theOlugbo of Ugbo Chieftaincy. Exhibit A simply says that every member of Oladele Ruling House is competent to contest the Olugbo Chieftaincy.

It is settled law that where a trial court failed in its primary .duty of making findings of facts on issues joined on the pleadings and the evidence is such that an appellate court cannot make its findings and come to a decision on ail the relevant issues, an order of retrial is the proper order the appellate court should make - see (pt. 79) 703; Osolu vs Osolu (2003) 11NWLR (pt. 832) 608. Kareemvs UBA Ltd (1996) 5NWLR (pt. 451) 634; Okeowo vsMigliore (1979) 11 S.C 138; Bakere vs Apena (1986) 4NWLR(pt. 33) 1; Awote vs Owodunni (No.2) (1987) 2 NWLR (pt. 52) 366; Adeyermo vs Arokopo (1988) 2 NWLR

However in the instant appeal the evidence found not to have been evaluated by the trial court is documentary and do not depend on the demeanor of the witnesses which would have confined evaluation strictly to the domain of the trial court. The evidence involved in the instant case is documentary which the court has held time without number that an appellate court has as much right or duty to appraise same as the trial court and the lower court did avail itself of that opportunity as evidenced in the passage in its judgment earlier reproduced.

The unfortunate thing that happened in the instant case is that after making the evaluations and coining to the conclusions or findings as underlined supra the lower court erroneously ordered a retrial contrary to the principle of law that where an appellate court decides to make an order for retrial, it should desist from making a statement that may tend to prejudice the new trial. It is therefore my considered view that the lower court having come to the conclusion it did in relation to the exhibit J series erred in ordering a retrial instead of granting thereliefs as claimed by the plaintiffs/respondents/cross  appellants. The order of retrial is in the circumstances liable to be set aside and I hereby order accordingly.

From the facts of this case and the relevant law I agree with my learned brother MUSDAPHER, J.S.C that the appeals have no merit and are accordingly dismissed by me while the cross appeal is allowed. The reliefs claimed by the plaintiffs/respondents/cross appellants in paragraph 36 of the Further Amended Statement of Claim earlier reproduced in this judgment are hereby granted as prayed. With, the grant of relief. 36(ix) and the order of injunction prayed for in paragraph 36(x) supra coupled with the declaration of nullity of Exhibit A, it becomes apparent that exhibit A is without validity and in effect does not exist neither does it require a formal order of court setting same aside in the circumstance of this case.

Appeals dismissed. Cross appeal allowed.

Counsels