MAIN JUDGMENT

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment):

This appeal is against the judgment of the High Court of Lagos State (Coram Honourable Justice M.O. Obadina) delivered on the 14th day of December, 2005.

The Appellants were the claimants in the court below while the Respondents were the Defendants.

RELEVANT FACTS

The case of the parties as summarized by the learned trial judge at page 5 of the records is of immense help in the understanding of the case for adjudication and for ease of reference same is set out hereunder:

"The case of the claimants is that they are the descendants by blood of King Kosoko 1 and are entitled to succeed to the office of Olojo and Asajon of Lagos. That the declaration made under the Obas and chiefs law of Lagos State 1981 by the Governor of Lagos State regulating the selection of the Oloja of Lagos does not represent the correct tradition, custom and historical facts of the Oloja Chieftaincy. That the failure of the Lagos State Government views thereon infringe the fundamental rights guaranteed by Section 33 (3) of the 1979 Constitution.

The case of the 1st - 5th, 7th and 8th Defendants is that king Kosoko 1 had only 9 children as contained in the Declaration of 3rd November, 1983. That the claimants with the exception of the 1st claimant are descendants of domestics and sojourners in the place of king Kosoko 1.

The 6th Defendant's case is that he is the one entitled to the stool of Oloja of Lagos having been nominated by the Akinsanya Oloja ruling house, the first ruling house entitled to present a candidate for the stool by virtue of the Declaration exhibit P14 (registered on the 3rd November, 1983).

It is beyond doubt that the ambit of the dispute between the disputants (other than the 9th and 10th Defendants) has to do with the inadequacy or otherwise of the declaration in respect of the Oloja of Lagos Chieftaincy and the need to amend same (as claimed by the claimants) or as claimed by the 1st - 8th Defendant that the existing declaration registered on 3rd November, 1983 should not be amended but maintained as it is.

The learned trial judge took evidence from all the parties and after the submissions of counsel on the issues delivered judgment on the 14th day of December, 2005. The judgment of the court is reproduced at pages 905-949 of volume 111 of the records.

The claimants being aggrieved by the judgment by a notice of appeal dated 21st day of December, 2005 reproduced at pages 952-954 of the volume 111 of the records caused an appeal to be lodged against the judgment.

Before the expiration of the time within which an appeal could be lodged against the judgment aforesaid the Appellants caused an amended notice of appeal dated 18th day of January 2006 to be filed and same is reproduced at 1046-1050 of volume 1st of the records.

By an application dated the 20th of February, 2007 and granted on 18th May, 2008, the Appellants were allowed to further amend the grounds and notice of appeal at pages 1046-1050 of volume 111 of the records. The further amended notice of appeal was filed on 16th May, 2008.

By a most recent application dated 12th July, 2011, the Appellants have further sought an order to further amend the notice and grounds of appeal by filing and serving a 2nd further amended notice of appeal and a deeming order in respect of the one already filed and served. The order was granted by this Honourable court on the 7th of February 2012.

The amended grounds of appeal contained in the 2nd further amended notice of appeal shall be considered for the purpose of this brief of argument in respect of this appeal.

ISSUES FOR DETERMINATION IN THE APPEAL

From the totality of the grounds of appeal contained in the 2nd further amended notice of appeal dated 12th July, 2011 four (4) issues arise for determination in this appeal and they are:

1.      Whether on the finding of the court below the exhibit P14 was not comprehensive in relation to the customary law in respect of the Oloja Chieftaincy of Lagos the learned trial judge was in error in failing to grant the declaration sought by the Appellant having regard to the evidence before the court and the fact that exhibit P4 was made two years after exhibit P14 was registered (grounds 1, 2, 3, 4 and 7).

2.       Whether the learned trial judge having admitted exhibit P5 or D1 was right to have refused to act on same on the basis of absence of an illiterate jurat thereon when the alleged absence of illiterate jurat was not pleaded and the exhibit was tendered by the claimants and the 1st - 8th Defendants and was by itself admissible in virtue of sections 39, 109, 111 and 123 of the Evidence Act as to the 35 children of King Kosoko pleaded by the claimants/Appellant (grounds 5, 6, 10 and 11).

3.       Whether the learned trial judge was right in using the contents of exhibit P14 as the basis for rejecting the evidence of the 3rd and 9th Claimants/Appellants when exhibits P14 was what was sought to be declared as not representing the customary law in respect of the Oloja of Lagos Chieftaincy (ground 9).

4.       Whether the Claimants/Appellant discharged the onus of proof on them in respect of their membership of their right of birth as members of the King Kosoko family having held that the allegation of the 1st - 8th Defendants/Respondents that the Appellant are descendants of royal domestics and sojourners were unsubstantiated ground 8 and 12.

On the other hand, the learned counsel to the Respondents formulated the following issues for determination.

1.       Whether parties are bound by their pleadings and if so, whether based on the pleadings of the parties in this case, the learned trial judge was right to have delivered judgment in favour of the Respondents.

2.       Whether based on the totality of evidence before the trial court, the learned trial judge was right to have delivered judgment against most of the claimants in favour of the Defendants/Respondents?

3.      Whether the trial court's decision in relying on the entire contents of exhibit "P5" or D.1" particularly pages 51-58 of exhibit 'P5' pages (49-54 of Exhibit 'D1') and attaching probative value to Exhibit "D7" or 'P5' tendered in evidence was perverse.

4.   Whether the learned trial judge was right nullifying the capping and installation of the 2nd Claimant/Appellant and if so, whether it is legally right and proper for the 2nd Claimant/Appellant to be reinstalled by the Lagos State Government as the Oloja of Lagos during the pendency of this appeal?

Having carefully perused the two set of issues I tend to be guided by the four (4) issues as set out by the Appellants in the determination of the appeal.

APPELLANTS ARGUMENTS

Arguing issues 1, 2 and 3 together, the learned Senior Advocate for the Appellants submitted that, the three issues in reality deal with different perspectives of proof of the case of the Appellants as to the need to amend and replace the 1983 registered declaration in respect of the Oloja of Lagos admitted in evidence before the court below as exhibit P14.

Learned counsel submitted further that the power of the Governor to amend or replace a defective or faulty registered declaration is contained and set out in Section 12 of the Obas and Chiefs of Lagos State Law, Cap 02, Laws of Lagos State, 2003. From that law, it is within the powers of the Governor on being satisfied of any deficiency in the law to call for an amendment of an existing declaration by requiring the chieftaincy committee to amend same.

Learned Senior Counsel contended further that, the learned trial judge in the instant appeal at pages 918 of the records cited the authority of the Supreme Court case in ODUTAN V. AKIBU (2000) 7 SC (Pt. 11) 106, (2000) 13 NWLR (Pt. 685). The learned trial judge observed that in ODUTAN AKIBU supra, the Supreme Court (per Ogundare JSC of blessed memory) considered the traditional history put forward (as evidence) in coming to a conclusion on the number of the ruling houses entitled to the Elet-Iwase Stool even though a declaration had been made and registered.

Learned Senior Counsel further submitted that, the claim of the Appellants before the trial court complains about the deficiency of the 1983 declaration in paragraph 3 of page 906 of the judgment. The learned trial judge at page 919 proceeded to set out the provisions of Section 6 (2) of the Obas and Chiefs of Lagos State Law 1981 as to what a registered declaration should contain and found that exhibit 14 (which is the declaration) was not a comprehensive requirement. The deficiency found by the trial court was posited on Section 2 (a) (iv) the number and identity of the king makers 2 (a) (v) the method of nomination by each ruling house 2 (a) (iv) the identity of any other person whose consent is required to an appointment made by the king makers and the usage regulating the granting or withholding of such consent. If the learned trial judge had properly appreciated the ambit of the claimants' claim and the evidence put forward by the 3rd and 9th PW8 as to the customary law in respect of the Oloja of Lagos Chieftaincy, she would not have used exhibit 14 (which is what the Claimants complained about) as the yardstick in rejecting their evidence offhand at page 921 of the records.

Learned Senior Counsel further submitted that, the evidence before the learned trial judge was that exhibit P4 being the Government views on the report of the Tribunal of Inquiry was made on the 28th February, 1985. The registered declaration Exhibit P14 registered on 3rd of November, 1983. The learned trial judge at page 916 of the records proceeded to rely on the Government views (Exhibit P4) to justify the existence and force of law accorded to Exhibit P14.

Learned Senior Counsel further submitted that, with respect to the learned trial judge if she had accorded a proper appreciation to the two documents viz Exhibit P4 and P14, she would have come to the irresistible conclusion that Exhibit P4 did not lead to the existence of making Exhibit P14 for the simple reason that Exhibit P14 was registered on 3rd November, 1983 a period of 15 months before Exhibit P4 came into existence. In the absence of Exhibit P4 the learned trial judge would not have had any material on which her views that Exhibit P14 was the result of an inquiry could have been based. It therefore follows that Exhibit P14 was not the product of the customary law in respect of the Oloja of Lagos Chieftaincy. This is the second reason why the declaration sought in paragraph 3 of the claim ought to have been made by the trial judge below and a refusal to so order was an error.

Learned Senior Counsel further submitted that Exhibit P5 tendered by the Claimants/Appellants and Exhibit D1 tendered by the 1st - 8th Defendants/Respondents are one and the same document admitted by the court without any objection. The essence of the document was to show that king Kosoko 7 of Lagos, the 1st Oloja and the progenitor of the Claimants and the 1st - 8th Defendants/Respondents as found by the trial court had more than 9 children.

Learned Senior Counsel submitted further that the view of the trial judge that the pleadings of the Claimants were in conflict with the entries in Exhibit P5, the main evidence tendered by the Claimants in proof of their contention that king Kosoko 1 had 35 children cannot also be supported.

The learned trial judge fell into this error because she lost view of the main issue in dispute as to the possible number of ruling houses in respect of the Oloja of Lagos Chieftaincy. The dispute was whether king Kosoko 1 had 9 children which constituted the 9 ruling houses in Exhibit P14 or 35 children as contained in Exhibit P5 or D1. The dispute was not in respect of the grand children or great grand children.

Learned Senior Counsel further submitted that, the fact that not all the names of the grand children and great grand children of king Kosoko are mentioned in Exhibit P5 could not have contradicted the oral evidence of the Claimants but supported same to the extent of those mentioned in Exhibit P5. The learned trial judge was therefore in error when he held that the pleadings of the Claimants were in conflict with the entries Exhibit P5. It follows that the oral testimonies of PW2, PW3, PW5, PW7, PW8 and PW9 as the grand children and great grand children of king Kosoko 1 could not be said to be contradicted by P5 or D1 because of the absence of a comprehensive list in P5 or D1 but supported by same in view of the number of years between 1939 the date of P5 or D1 and 2005 the years of the testimonies of the witnesses.

Learned Senior Counsel further submitted that the pleadings and the evidence of the Claimants were in consonance with Exhibit P5 or D1 to the extent that the Exhibit set out correctly the number of the direct children of king Kosoko 1 and also spoke as to the grand children and great grand children as at the date of Exhibit P5 in 1939. What was not contained in P5 as to the other descendants that existed in 2005 were supplied by oral evidence of the witnesses. It was a case of support and not that of contradiction.

Learned Senior Counsel further submitted that if the learned trial judge had given a proper consideration to Exhibit P5 along with the evidence of the witnesses of the Claimants aforesaid she would come to the irresistible finding that Exhibit P14 was deficient as to the number of ruling houses in respect of the Oloja of Lagos Chieftaincy thus leaving the Governor to effect an amendment to the declaration Exhibit P14. The Appellants urge this court to so declare accordingly.

RESPONDENTS ARGUMENTS

The learned counsel to the Respondents (1st - 8th) submitted that, contrary to the position of counsel to the Appellants in paragraph 4.00 of his brief of argument that the focus and main claim of the Claimants/Appellants is a challenge to the inadequacy of the Oloja of Lagos Chieftaincy declaration (Exhibit P14) as to the correct tradition, custom and historical facts of the Chieftaincy family, the real focus and main claim of the Claimants/Appellants at the trial court is as summarized by the learned trial judge at page 909, vol. 3 of the record of appeal and as equally and rightly identified by the Appellants compel in paragraph 2.00 of his brief of argument.

Learned counsel submitted further that the main claim of the Appellants at the trial court is that they are descendants by blood of king Kosoko 1 and therefore entitled to the rights and privileges of the descendants of the said king Kosoko 1, whilst the two other claims relating to the issue of the Chieftaincy declaration not representing the correct tradition, custom and historical facts of the Oloja of Lagos Chieftaincy and the failure by the Lagos State Government to release and publish the report of the tribunal of inquiry and the Government to release and publish the report of the tribunal of inquiry and the Government views infringing the Claimants/Appellants fundamental rights as guaranteed under Section 33 (3) of the 1979 Constitution are ancillary, supplementary or subordinate claims.

Learned counsel further submitted that, on the other side of the divide, the 1st - 8th Respondents deny that the Claimants/Appellants are descendants by blood of king Kosoko 1. The Claimants/Appellants in attempt to prove at trial that they are blood descendants of king Kosoko 1 pleaded paragraphs 1 (a) - 1 (k) of their further amended statement of claim contained at pages 365 - 369 vol. 2 of the record of appeal and also relied heavily on the 1939 petition of Momodu Oteniya (Exhibit P5) which was also pleaded in paragraphs 4 & 5 of the Claimants further and further amended reply contained at pages 63 - 637, vol. 2 of the record of appeal. The 1st - 5th, 7th and 8th Defendants equally relied on their amended statement of defence and tendered Exhibit D1 in support of their case that most of the Claimants/Appellants are not blood descendants of king Kosoko 1, in addition to the testimony of Momodu Oteniya in suit No. 250/1936; MOMODU OTENIYA V. JOHN DUNGBA & 2 ors admitted as Exhibit D2.

Learned counsel further submitted that, it is a cardinal principle of pleading that parties are bound by their pleadings and whatever evidence adduced in the course of a trial that is not in conformity with the pleading, becomes a non - issue and must be ignored by a trial judge. In other words, evidence must be within pleadings and not outside the pleadings. See EGBUE v. ARAKA (1988) 8 SC (Pt. 3) 98; EZE V. ATASIE (2000) 6 SC (Pt. 1) 214; THE NATIONAL INVEST. & PROPERTIES CO. LTD V. THE THMPSON ORGANISATION LTD & ORS (1969) NMLR 99.

Learned counsel further submitted that the learned trial judge having reviewed the evidence of the Claimant/Appellants witnesses at pages 925 - 929 of the record, found at page 933 Vol. 3 of the record of appeal that the pleadings of the Claimants were in direct conflict with the entries in Exhibit P5, the main evidence tendered by them. Once the findings of fact are based on the evidence upon the pleadings of the parties, the Court of Appeal should not interfere with the judgment of the learned trial judge see AGWUNEDU V. ONWEMERE (1994) 1 NWLR (Pt. 321) 375; NWOKE V. OKERE (1994) 5 NWLR (Pt. 343) 159; UBN LTD V. ALBERT OZIGI (1994) 3 NWLR (Pt. 333) 385; ORO V. FALADE (1995) 5 NWLR (Pt 396) 385; GODWIN UZOECHI V. ONYENWE & ORS (1999) 1. SC 63 at 67.

Learned counsel further submitted that, the claim by the claimants/Appellants that the failure of Lagos State Government to release and publish the report on the dispute between the two factions of the Kosoko family, i.e. the tribunal of inquiry had breached their fundamental right to fair hearing as guaranteed by section 33 (3) of the 1979 Constitution. The Claimants/Appellants however, failed to prove at the trial that they were denied any opportunity of presenting their case or cross examining the opponents during the tribunal sitting. As a matter of fact, evidence was given before trial that the process at the tribunal was that of a level playing field.

Learned counsel further submitted that, the right to fair hearing has been held by the courts not to stop with parties being present in court, but a right to be heard at every material state of the proceedings. See AGBAHOMOVO V. EDUYEGBE (1999) 3 NWLR (P. 594) 170 at 184; EKUNMA V. SILVER EAGLE SHIPPING AGENCIES PH LIMITED (1987) 4 NWLR (Pt. 65) 472 at 486.

Learned counsel further submitted that, on the issue that the Oloja of Lagos Chieftaincy declaration (Exhibit P14) does not represent the correct tradition custom and historical facts of the Oloja of Lagos Chieftaincy family, whilst the learned trial judge found that Exhibit P14 is not comprehensive only in relation to the requirements in Section 2 (a) iv - vi of the Obas and Chiefs Law of Lagos State 1981, this finding by the learned trial judge differs from the third relief being sought by the Claimants in the further amended statement of claim which is contained on page 368 Vol. 2 of the record of appeal. The learned trial judge found that Exhibit P14 was not comprehensive as it relates to Sections (2) (a) iv - vi of the Obas and Chiefs of Lagos State Law 1981, this observation was different from the Claimants/Appellants request for a declaration and setting aside Exhibit P14 based on its non-conformity with Sections 6 (2) (a) (i) (iii) and (iv) of the Obas and Chiefs of Lagos State Law 1981.

Learned counsel further submitted that the trial judge was right not to have set aside Exhibit P 14, as it was a result of the setting up by the Lagos State Government of the Tribunal of Inquiry in 1981 wherein both the Claimants/Appellants and Defendants/Respondents submitted memoranda, gave evidence and were cross - examined by counsel for both sides, following which a report of the inquiry was submitted to the Government and a decision was taken by the Government at its executive council meeting based on the submitted report, culminating in the creation of Exhibit P14. The delay in the publication of Exhibit P4 in 1985 must have been due to administrative delays or bottlenecks in government, bearing in mind that there was a change in government as a result of military coup of 1983 and there were two different military administrations between 1983 and 1985 and none of the administration saw anything wrong in publishing Exhibit P4. Consequently, Exhibit P14, being an official act of the Lagos State Government having been done in a manner substantially regular, that formal requisites for its validity must have been complied with. See OKEKE V. STATE (2003) 2 AX. 63 at 115; JAMES EDUN & ANOR V. INSPECTOR GENERAL OF POLICE (1966) 1 ALL NLR 17 at 21.

Learned counsel further submitted on the admissibility of Exhibit P5 and D1 respectively that it is now firmly settled by the Supreme Court that in determining the admissibility of evidence, particularly documentary evidence, it is the relevance of the evidence that is important and not how the evidence was obtained. As such, admissibility of evidence and particularly documents depends again on the purpose for which it was tendered. See OGBE V. ASADE (2009) 12 S.C. (Pt. 3) 37; OGBUNAYINYA & 5 ORS V. OBI OKUDO & 2 ORS (1979) 6-9 S.C. 32; OKONJI & 2 ORS V. NJOKANMA & 2 ORS (1999) 2 S.C. (Pt. 2) 150.

Learned counsel submitted further that a close scrutiny of the Claimants further amended statement of claim contained at pages 365 - 369 of Vol. 2 of the record of appeal and also the Claimants further and further amended reply reveals that the Claimants/Appellants tendered Exhibit P5 not to show that king Kosoko 1 had 35 children as now claim by counsel to the Appellants, but to show the Claimants/Appellants alleged connection and blood relationship with late king Kosoko 1.

On the part of the court, the submissions on both sides, with respect to issues 1, 2 and 3 of both the Appellants and the Respondents brief of arguments is carefully examined. Amongst others, but in the main, the 3 issues, 1, 2 and 3 deal with different perspective of proof of the case, the Appellants as to the need to amend and replace the 1983 registered declaration in respect of the Oloja of Lagos admitted in evidence before the court below as Exhibit P14.

The claim of the Appellants before the trial court which complains about the deficiency of the 1983 declaration is found in paragraph 3 of the judgment of the lower court on page 906 of the records thus:

"3.     that the declaration made under the Obas and Chiefs of Lagos State Law 1981 by his Excellency the then Governor of Lagos State regulating to the selection of the Oloja of Lagos Chieftaincy and dated 31st October, 1983, does not represent the correct tradition custom and historical facts ad practices of Oloja Chieftaincy in respect of-

i.        The number and identity of the ruling houses

ii.    Persons who may be proposed as candidates by a ruling house entitled to fill a vacancy in the Chieftaincy and;

iii.      The number and identity of the king makes for the chieftaincy, and an order setting aside the said declaration."

Both the Appellants and the 1st - 8th Respondents are on the same page as to the decision of the learned trial at page 919 of the records, as to what a registered declaration should contain. The learned trial judge found that Exhibit 14 (which is the declaration) was not comprehensive of the requirement. The learned trial judge set out the provisions of Section 6 (2) of the Obas and Chiefs of Lagos State Law 1981 as to what a registered declaration should contain.

The 1st - 8th Respondents at page 14 of their brief argument admitted that the learned trial judge found that Exhibit 14 is not comprehensive requirement of a valid declaration but on a different perspective. At paragraph 6.09 of page 14 of the Respondents brief of argument the learned counsel stated as follows:

"Whilst the learned trial judge found that Exhibit P14 is not comprehensive only in relation to the requirement in section 2 (a) iv - vi of the Obas and Chiefs Law of Lagos State 1981, this finding by the learned trial judge differs from the third relief being sought by the Claimants in the further amended statement of claim which is contained on page 368, Vol. 2 of the record of appeal as follows-

The Plaintiff therefore claim declarations

c) That the DECLARATION made under the Obas and Chiefs of Lagos State Law 1981 by His Excellency the Governor of Lagos State, regulating the selection of the Oloja of Lagos Chieftaincy and dated 31st October, 1983 does not represent the correct tradition, custom and historical facts and practices of the Oloja Chieftaincy in respect of

i.        The number and identity of the ruling houses, section 6 (2) (a) (i)
 

ii.       Persons who may be proponed as candidates by a ruling house entitled to file a vacancy in the chieftaincy section 6 (2) (a) (iii) and
 

iii.      The number and identity of the kingmakers (section 6 (2) (a) (iv)

Learned counsel to the 1st - 8th Respondents with respect to the claimant declarations of the Appellants (Plaintiffs then) set out above, submitted that even though the learned trial judge found that Exhibits P14 was not comprehensive as it relates to Sections 6 (2) (a) iv-vi of the Obas and Chiefs Law 1981: this observation was different from the Claimants/Appellants request for a declaration and setting aside of Exhibit P14 based on its non-conformity with Sections 6 (2) (a) (i), (iii) and (iv) of the Obas and Chiefs of Lagos State Law 1981.

I have carefully looked at both the inadequacies or the lack of comprehensiveness to Exhibit P14 as set out by the Respondents themselves, between the observations made by the learned trial court, and those of the Claimants/Plaintiffs it is difficult to draw a line of difference between the two as the Respondents tried to do. The bottom line here is that, and also admitted by the Respondents the learned trial court, had found Exhibit P14 as being in comprehensive. In fact from what the Respondents set out, the learned trial court had not covered all the claims of the Appellants to Exhibit P14.

Having found Exhibit P14 as not being comprehensive, why the twist or the refusal by the learned trial judge to set it aside. The Respondents tried to justify the refusal by the court. The learned trial judge at pages 920-921 Vol. 3 of the record of appeal, stated as follows:

"The registered declaration is admissible evidence of the customary law is conclusive so long as it remains the subsisting declarations see OLADELE V. AROMOLARAN II (1996) 6 NWLR (Pt 435) 180; OGUNDIPE V. AKINLOYE (2002) 10 NWLR (Pt. 775) 335. The testimony of PW3 and PW9 in this regard are discountenanced. Their evidence of customary law cannot stand in the face of Exhibit P14."

"The Defendants stated the trite position of the law or whether a court can amend or re-write a declaration on the basis of the principle of stare decisis I am bound by the decision of the Supreme Court in the case of FADADE V. BABALOLA (2003) 11 NWLR (Pt 830) 26. I hold that I do not have the power to make the declaration sought in their 3rd claim before this court."

"The person who can amend the declaration upon representation made to him is the Governor. See case of ALHAJA MUNIRAT ODUNTAN & ORS V. ALHAJI ABUDU W. AKIBU (2000) 7 SC (Pt.11) 106."

The Respondents furthered to justify why the trial court, although found Exhibit P14 not comprehensive, but refused to set it aside as Exhibit P4 (the white paper) was made two years after Exhibit P14. Sections 9, 10 & 37 of the Obas and Chiefs of Lagos State Law (Cap.02) Laws of Lagos State which talks about the process of securing the Governor's approval in respect of a Chieftaincy declaration and that no declaration shall come into effect until so registered. Once a Chieftaincy declaration has been made or approved by the Governor. It is the registration of such Chieftaincy declaration that is of importance before validity could be given to it, rather than the publication in a white paper, Equally, Section 168 (i) Evidence Act 2011 (formerly Section 150 (i) Evidence Act (cap. E14) LFN 2004 which provides that-

“When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that requisites for its validity were complied with."

The Appellants maintained that Exhibit P14, once found not comprehensive by the court, it should proceed to ask the Governor to so amend it, as the power of amendment resile with the Governor as rightly pointed out by the court itself. Appellants maintained that if the court had accorded a proper appreciation to the two documents viz Exhibit P4 and P14, the court would have come to the irresistible conclusion that Exhibit P4 did not lead to the existence or making of Exhibit P14 for the simple reason that Exhibit was registered on 3rd November, 1983 a period of 15 months before Exhibit P4 came into existence. In the absence of Exhibit P4 the learned trial judge or the court would not have had any material to rest the views that Exhibit P14 was the result of an inquiry could have been based. It follows that Exhibit P14 was not the product of the customary Law in respect of the Oloja of Lagos Chieftaincy. Also Exhibit P5 tendered by the Claimant/Appellants and Exhibit D1 tendered by the 1st - 8th Defendants/Respondents are one and the same documents admitted by the court without any objection. The essence of the document was to show that king Kosoko 1 of Lagos, the 1st Oloja and the progenitor of the Claimants and the 1st - 8th Defendants/Respondents as found by the trial court, had more than 9 children. The main dispute in this appeal was whether king Kosoko 1 had 9 children which constituted the 9 ruling houses Exhibit P14 or 35 children as contained in Exhibit P5 or D1. The dispute was not in respect of the grand children or great grand children.

Now, a very clear appreciation of the dispute before this court that, Exhibits P5 tendered and admitted was a document relied upon by the Appellants as Claimants/Plaintiffs at the lower court. The same document, bearing the same content was tendered and admitted as Exhibit D1 by the 1st - 8th Respondents, as Defendants in the lower court. There is no confusion about this, as to fact that if Exhibit P5 had effect of not been quite legible, or the absence of a jurat required by the illiterate protection law, which was not even raised by either party on the pleadings as to the application of that law, the court had option to either look at Exhibit P5, D1 which are all documents before it. The issue of attaching weight to Exhibit P5 alone was in the opinion of this court an unnecessary digression by the trial court. Having Exhibit P5 or D1 as the case may be, this court agrees with the submissions of the learned counsel to the Appellants that the fact is that not all the names of the grand children and great grand children of king Kosoko are mentioned could not have contradicted the oral evidence of the Claimants. It is quite logical Exhibit P5 was made in 1939. The period of about 66 years between the date of Exhibit and testimonies of the witnesses for the Claimant and even the Defendants would have made the contents as to the number of some of the grand children and great grand children and other not to be expected to appear in Exhibit P5. The oral testimonies of the PWS as to the grand children and great grand children of king Kosoko 1 could not be said to be contradicted by P5 or D1 because of the absence of a comprehensive list in P5 or D1 but supported by same in view of the number of years between 1939 the date of P5 or D1 and 2005 the year of the testimonies of the witnesses. If the learned trial judge had given a proper consideration to Exhibit P5 along with the evidence of witnesses of Claimants he would come to the finding that Exhibit P14 was deficient as to the number of Ruling Houses in respect of the Oloja of Lagos Chieftaincy thus leaving the Governor to effect an amendment to the declaration Exhibit P14.

For the purposes of clarity, this court will repeat the position of the learned trial judge at page 919 of the records. The learned judge proceeded to set out the provisions of Section 6 (2) of the Obas and Chiefs of Lagos State Law, 1981 as to what a registered declaration should contain and found that Exhibit P14 (which is the declaration) was not comprehensive of the requirement in the following words.

“I agree that Exhibit P14 is not comprehensive only in relation to the requirement in Section 2 (a) iv-vi of the law but it is not void."

The deficiency found by the trial court was posited on Section 2 (a) (iv) the number and identity of the kingmakers 2 (a) (iv) the method of nomination by each ruling house. 2 (a) (iv) the identity of any other person whose consent is required to an appointment made by the kingmakers and the usage regulating the granting or withholding of such consent. These are the deficiencies highlighted by the learned trial judge to Exhibit P14. These deficiencies were repeated by the Respondents in their brief of argument. The Respondents from the record before this court do not have any quarrel with the position of the trial court.

Respondents at least have not cross-appealed against that position arrived at by the learned trial court. All the contenders in the instant appeal agree now that Exhibit P14 is deficient with relation to requirement in Section 2 (a) iv-vi of the Law. The point of contention here is that the findings by the learned trial judge above differs from the third relief being sought by the Claimants in their further amended statement of claim which is contained on page368 Vol.2 of the record of appeal as follows:

"The Plaintiff therefore claim declarations:

(c)     That the DECLARATION made under the Obas and Chiefs of Lagos State Law 1981 by His Excellency the Governor of Lagos State, regulating the selection of the Oloja of Lagos Chieftaincy and dated 31st October, 1983, does not represent the correct tradition, custom and historical facts and practices of the Oloja Chieftaincy in respect of:

(i)      The number and identity of the ruling houses section 6 (2) (a) (i)

(ii)     Persons who may be proposed as candidates by a ruling house entitled to fill a vacancy in the Chieftaincy (section 6 (2) (a) (iii) and

(iii)    The number and identity of kingmakers section 6 (2) (a).

(iv)    For the Chieftaincy and an order setting aside the said declaration.

As stated earlier, the trial judge found that Exhibit P14 was not comprehensive as it relates to section 6 (2) (a) iv-vi of the Obas and Chiefs of Lagos State Law 1981. This observation was different from the Claimants/Appellants request for a declaration and setting aside of Exhibit P14 based on its non-conformity with sections 6 (2) (a) (i), (iii) and (iv) of the Obas and Chiefs of Lagos State Law 1981.

The sum total here is that the learned trial judge found that Exhibit P14 was not comprehensive as it relates to Sections 6 (2) (a) iv-vi of the Obas and Chiefs of Lagos State Law 1981, this observation was different from the Claimants/Appellants request for a declaration and setting aside of Exhibit P14 based on its non-conformity with section 6 (2) (a) (i), (iii) and (iv) of the Obas and Chiefs of Lagos State Law 1981.

From the above therefore, it is very clear that, although the learned trial judge did appreciated the deficiency to the Exhibit P14 with relations to those sections listed above, he did not go to, or the record has not beard that, he really got the crux of the Appellants' claims before him especially the paragraphs three (3) thereto. There Appellants" claim also relates to the inadequacy or otherwise of the declaration in respect of Oloja of Lagos Chieftaincy captured in Exhibit P14, and the need to amend same. The 1st - 8th Respondents maintained that the existing declaration registered on 3rd November, 1983, should not be amended but maintained as it is. In order to justify their claim to the amendment sought for, the Appellants tendered Exhibit P5 which was a 1939 petition of Momodu Oteniya. The 1st - 8th Respondents also tendered the same document (1939 petition of Momodu Oteniya) but was admitted from them as Exhibit D1. The aim of the Appellants to Exhibit P5 is to show that king Kosoko 1 during his life time had 35 children which is also shown in the same document tendered by the Respondent, and not 9 children as claimed by the 1st - 8th Respondents and contained a ruling houses in Exhibit P14.

The trial court had already found that Exhibit P14 was not comprehensive as to some requirements of the law already stated in this judgment. This aspect is considered settled. The Respondent as stated earlier on in this judgment has not cross-appealed on this point. This is a clear admission by the trial court itself. The Supreme Court in the case of CHIEF CHUKWUEMEKA ODUMEGWU OJUKWU V. DR. EDWIN ONWUDIWE & ORS (1984) 2 S.C. 15 at 88 stated as follows:

"Another principle deeply enshrined in our jurisprudence is that admissions made do not require to be proved for the simple reason among others that "out of the abundance of the heart the mouth speaketh" and that no better proof required than that which an adversary wholly and voluntarily owns up.

It only remains to add here that, the trial court having made such finding, ought not to allow the declaration to stand, as it cannot be said to represent the correct tradition, custom and historical facts and practices in respect of the Oloja of Lagos Chieftaincy. This court will subsequently determine who has the power to cause an amendment to a declaration if found defective as in the instant appeal.

The next question is why did the trial court refused to grant the Appellants (then Claimants/Appellants) claim to such inadequacies, in different section as to some requirements of the law, already stated above. The Appellants in order to buttress their claim to the sought amendment to Exhibit P14 brought in aid Exhibit P5, which is the same document tendered by the 1st - 8th Respondents tendered and admitted as Exhibit D1. The trial court in refusing to grant the claim for the amendment to the declaration by the Appellants stated as follows at its judgment pages 913 - 914 Vol. 3 of the record of appeal.

"Before this declaration was made, the Lagos State Government constituted a Tribunal Inquiry in 1981 by legal notice No. 73 of 1980 to resolve the dispute between the two factions of the Kosoko family... Both sides of the conflict presented memoranda to the Tribunal. They were examined and cross by their counsel, PW1, PW3, PW8 and PW9 admitted under cross-examination that they were at the Tribunal and they were examined and cross-examined. PW3, the 9th plaintiff said under cross-examination by Mr. Sanusi:

"We were not prevented during the Tribunal sitting from presenting our case. We were not prevented from cross-examining the other side. It was a level playing ground at the Tribunal."... The complaint of the Claimants according to PW3 and PW9 was that the report of the Tribunal was not made public. The Claimants demanded for the report vide letters Exhibits P2 and P3. PW3 stated that the report ought to have been published because it is like a judgment."

"DW1 testified that they did not see the report also, but stated he purchased the Government views Exhibits P4 at Lagos State Secretarial Alausa. He tendered Exhibit D4, Lagos State Government Receipt for purchase of the Government views."

"The first claim of the Claimants is that the report and Government views be declared null and void for non-publication of same." The court went further to state that:

"The Claimants in this case by their testimony were not denied a fair hearing at the Tribunal as they put forward their case, were examined and cross-examined and had the opportunity to cross examine the Defendants, I therefore resolve the first issue against the Claimants. I hold that the Government was not under any duty to release the report of the Tribunal to any of the parties."

I do agree with the trial court only to the extent of what it said on pages 915-916, Vol. 3 of the record of appeal that:

"The Governor upon consideration of such report, manifests his acceptance by publishing the report of its findings in white paper which tells the world the reaction of the Governor in the inquiry and thereafter any interested person can purchase such a document from the Government press or appropriate authority see ABDULLAHI V. HASHIDU (1999) 4 NWLR (Pt. 600) 638 at 646."

The trial court rightly stated the law above, in the instant case, the court said the 1st Respondent DW1 had testified that they did not see the report that he purchased the government views Exhibit P4 at Lagos State Secretariat, Alausa. He tendered Exhibit D4, Lagos State Government Receipt for purchase of the Government views. The trial court however, with the said Exhibit P4 (Government views) before it, yet found that Exhibit P14, in its judgment as deficient in some sections earlier stated. The Appellants had approached the lower court to say that, the said Exhibit P14 (the declaration) is also deficient in other sections stated by them. This is the crux of their matter at the lower court, which the said court had failed to appreciate. The Appellants tendered Exhibit P5, and the 1st - 8th Respondents tendered the same document as Exhibit D1 in support of their contention. There is nowhere in the record before this court, where the lower court critically examined their claim with the supporting oral evidence and Exhibit tendered. The trial court only demonstrated a dance drama, going forward and backwards to legitimize the views of the Government as contained in Exhibit D4. The trial court was bound to examine as per the claim of the Appellants whether Exhibit P14 (the declaration) is deficient, also to the extent of their claim. The trial court itself suo motu had found some aspect of Exhibit P14 as being deficient. The trial court cannot take a weak position, that the Government views cannot be challenged and or reviewed by the court. The Supreme Court per Ogundare JSC (as he then was) in ODUTAN V. AKIBU (2000) 7 SC (Pt. 11) 106 at 115 upheld the views of Tobi JCA (as he then was) as follows:

"It is not my understanding that the Respondents by their actions questioned the validity of any existing law made on or after 15th, January, 1966 as to the competence of any authority or person to make such law. On the contrary, they seem to question the validity of executive action. In my humble view there is a big wall demarcating the two. There is also a big world of difference between the two. A law which is validly promulgated or enacted could be wrongfully unlawfully or illegally executed. While the law remains sacrosanct its sacrosantity cannot cure a wrongful or illegal executive action outside the provisions of an enabling law, then the action is taken without jurisdiction and a court of law is entitled to pronounce such an act null and void. That, in my opinion is quite different from the competence of any authority or person to make any law. I therefore hold that section 6 (6) of the Constitution does not assist the Appellants.

Following the authority of the apex court above, since the lower court at page 919 of the records set out the provisions of Section 6 (2) of the Obas and Chiefs of Lagos State, 1981 as to what a registered declaration should contain and found that Exhibit 14 (which is the declaration) was not comprehensive in relation to the requirements in Section 2 (a) iv-vi of the law, bearing in mind the case of the Appellants before it, on the need to amend and replace the 1983 registered declaration (Exhibit P14), it had the power to order amendment, but no to replace it. The court has the power to order the Government in whose power it is to amend a defective or faulty registered declaration.  The power of the Governor is as set out in Section 12 of the Obas and Chiefs of Lagos State Law cap 02, Laws of Lagos State, 2003 which in the following terms.
 

"1.     Where the Governor is satisfied that a registered declaration
 

a)      Does not contain a true or sufficiently clear statement of the customary law which regulates the selection of a person to be the holder of a recognized Chieftaincy or
 

b)      Does not contain a sufficient description of the method of selection of the holder of such recognized chieftaincy; or
 

c)       Contains any error whether as to its form of substance;
 

d)      Is otherwise defective, faulty or objectionable having regard to the provisions of this law, the Government require the Chieftaincy Committee to amend such declaration in any respect that he may specify or to make a new declaration, according as he may consider necessary or desirable in each case."

In case at hand, the declaration sought for amendment, had failed short of the requirements of the provision of Section 6 (2) of the Obas and Chiefs of Lagos State Law 1981. Since the failure is to comply with the law, the lower court was under a duty to order the Governor to comply with the law and effect that amendment. The lower court however, did not.

Further to this, the lower did not pronounce on the basis of the Appellants' claim before it, for the failure of Exhibit P14 to conform with Sections 6 (2) (a) (i) (iii) and (iv) of the Obas and Chiefs of Lagos State Law 1981. This is the fulcrum of the appeal. The lower court has not answered any of the claims of the Appellants placed before it. The deficiency which the trial court said it found with Exhibit P14 was not the Appellants' claim before it. This is a fact admitted by the Respondents in their brief of argument see paragraph 6.10 at page 14, wherein it was stated as follows:

"Submit that even though the learned trial judge found that Exhibit P14 was not comprehensive as it relates to Sections 6 (2) (a) iv-vi of the Obas and Chiefs of Lagos State Law 1981, this observation was different from the Claimants/Appellants request for a declaration and setting aside of Exhibit P14 based on its non conformity with sections 6 (2) (a) (i), (iii) and (iv) of the Obas and Chiefs of Lagos State Law 1981."

The main issue here is that as per the Appellants claims at the trial court, no pronouncement one way or another was made. The record showed that the trial court remained evasive in the determination of those issues. It is trite law that, the court must pronounce; and not take an evasive posture on issues joined before it for determination. On this, see the Supreme Court decision in EKE V. OKWARANYIA (2001) 20 W.R N. 132 at 160; or (2001) 12 NWLR (pt 726) 181 at 213-214 per Ogwuegbu JSC (as he then was):

"I have no doubt that the court below misconceived the purport of "an issue" and "Joinder of issues". This is manifest in the contradictory posture of that court. An "issue" is a disputed point or question to which parties to an action have narrowed their several allegations and upon which they desire to obtain a decision of the court. The issue may be that of law or fact. In one breath, the court below there was "joinder of issues" and in another, it said that the Defendants had evasive denial of the material issues. A "joinder of issue" operates as a denial of every material allegation of fact in the statement of claim or in the proceeding pleading which is not expressly admitted?"

Also, as to what an issue is, before the court, see CHIEF P. U. EJOWHOMU V. EDOKE ETER MANDILAS LIMITED (1986) 9 S.C. 41 at 102 - 103 per Karibi-Whyte, JSC (as he then was).

"An issue is the question in dispute between the parties necessary for the determination by the court. See AKINTOLA V. SOLANO (1986) 2 NWLR 598. It is only that which the court is concerned."

In the instant appeal, the trial court having not concerned itself with the issues joined by the parties before it as per their claims, cannot be said to have heard them and granted them fair hearing before it. This court therefore agrees with the learned counsel to the Appellants that the trial had not appreciated the ambit of the Claimants' claim, and the evidence put forward by them. I resolve issues 1, 2, 3 in favour of the Appellants and against the 1st - 8th Respondents.

On the Appellants issue No. 4 to wit:

With the Claimants/Appellants discharged the onus of proof on them in respect of their membership of their right of birth as members of the king Kosoko family having held that the allegation of the 1st - 8th Defendants/Respondents that the Appellants are descendants of Royal domestics and sojourners were unsubstantiated."

Also the 1st - 8th Respondents' issue No.4 to wit:

Whether the learned trial judge was right in nullifying the capping and installation of the 2nd Claimant/Appellant and if so, whether it is legally right and proper for the 2nd Claimant/Appellant to be re-installed by the Lagos State Government as the Oloja of Lagos during the pendency of this appeal?

In view of the resolution by this court to issues 1, 2, 3 of the appeal, both the Appellants' issue No. 4 and the 1st - 8th Respondents issue No. 4 have all become hypothetical issues before this court. The trial court had not even pronounce on the claims set out by the Claimants/Plaintiffs then before it. Both the questions set out by the Appellants as issue No. 4, and those set out by the 1st - 8th Respondents as issue No. 4 are no life questions before this court. This court therefore, cannot proceed to answer them. This court in the case of N.A.A. V. ORJIAKOR (1998) 6 NWLR (Pt. 553) 265 AT 274 per Salami JCA (as he then was) stated on courts determination of hypothetical questions as follows:

"The Respondents' brief is devoted mainly to argument that should have been proffered in the court below, in answering the Appellants' preliminary objection to the action. These answers were not given to the court below and even, if they were, the leaned trial judge has not expressed her opinion thereon, therefore, this court cannot decide the matter. An Appeal Court is not a place where hypothetical question or questions set by counsel are answered this court answers life questions or issues see AKEREDOLU V. ADEREMI (NO. 2) 1986) 2 NWLR (Pt. 25) 710, 725 S.C.; EKPEROKUN VS. UNIVERSITY OF LAGOS (1986) 4 NWLR (Pt. 34) 162, 177 S.C. if learned counsel for Respondent is desirous of an answer to that question, he is better advised to return to the court below to conclude his submission in preliminary points raised by learned counsel for Respondent. The learned trial judge would then give an answer, which would be the subject to appeal to this court."

I find the decision of the respected jurist above in N.A.A. V. ORJIAKOR (supra) on all fours with that present appeal. Both the Appellants and the Respondents' issue No. 4 can only be answered by the lower court, when the claims of the Claimants/Appellants are answered before it.

On the whole therefore, this appeal is meritorious, and it is hereby allowed. The judgment of Honourable Justice M. O. Obadina, of the High Court of Lagos State, Ikeja Judicial Division in suit No. LD/1057.86 delivered on the 14th of December, 2005, is hereby set aside by this court.

This court has ordered that, this case be remitted back to the Honourable Chief Judge of Lagos State for a fresh trial before another judge.

RITA NOSAKHARE PEMU, J.C.A.:

I had a preview of the Judgment just delivered by my brother SIDI DAUDA BAGE JCA and I agree with his opinion and conclusions.

The appeal is allowed, and the suit, the subject matter of the appeal shall be remitted back to the Court below, to conclude its assignment in law.
I subscribe to the consequential order made by my brother Justice.

HON. JUSTICE YARGATA BYENCHIT NIMPAR, J.C.A.:

I had the privilege of reading in draft the Judgment just delivered by my brother S. D. BAGE, JCA.

I agree with the resolution of the issues distilled for determination in this appeal. The Judgment has covered all the areas and I have nothing more to add.

I also allow the appeal and abide by the orders made in the lead Judgment.