Abraham Adekunle & Ors. V. Chief Akinremi Aremu & Ors. (1997)

LawGlobal-Hub Lead Judgment Report

MUKHTAR, J.C.A.

This is an action taken in representative capacities by the plaintiffs who belong to various family chieftaincies of Ilero, against the holder of Sobaloju chieftaincy and some officials of the Government. According to the plaintiffs the Sobaloju chieftaincy is the last in the hierarchy of the chiefs of Ilero according to the customary law of Ilero starting with the Elero of Ilero. The case of the plaintiffs is that the first Elero of Ilero was Ogunola Abere, the son of Labinjo who settled at Igboare later called Ilu Aro with his people and was at the helm of affairs of Ilu Elero. Oluyero Akano who migrated from Irawo was conferred with the first hereditary chieftaincy of Jagun of Ilero, and his descendants have been the successive Jaguns, the next in rank to the Elero. Elero Akinola conferred other migrants with the hereditary chieftaincies of Olukotun, Ajeji, Olukosi, Mogaji, Olukotun and they all followed in order of seniority. The title of Sobaloju was conferred on one Olayeri the ancestor of the 1st defendant by Elero Mokolade Alao, the third Elero of Ilero, and he became the eighth in rank to the Elero.

The Jagun always acted for the Elero whenever the latter was unavailable, but around 1964 the then Jagun fell out of favour with the then Elero, Olawayanju Akangbe, and the Elero made the 1st defendant supercede the Jagun in various matters. After the death of that Jagun (Otunla Ajani) and the ascension of the 1st plaintiff, as Jagun, Oba Akanbi restored the rights of Jagun on the new Jagun after the intervention of some people. The 1st defendant, the Sobaloju, resisted. The report of an investigation confirmed the Jagun as second in rank to the Elero, and it was accepted by the Oyo State Government. However at the advent of politics the matter was revisited, and the then Government wrote recognizing the Sobaloju as the second-in-rank to the Elero inspite of the Elero’s resistance and his protests. By this action the other chieftaincies were downgraded. Consequently they instituted this action in the court below claiming the following reliefs:-

“(1) A declaration that the decision of Oyo State Government that the Sobaloju of Ilero is the second-in-rank to the Elero of Ilero is against the history, custom and traditions of Ilero and is therefore improper, unconstitutional, null and void and of no effect.

(2) A declaration that the Sobaloju of Ilero is the eight-in-rank to the Elera of Ilero.

(3) As (1) declaration that the Jagun of Ilero the Olukotun of Ilero, the Ajeji of Ilero, the Olukosi of Ilero, the Mogaji of Ilero and the Oluketu of Ilero are senior-in-rank to the Sobaloju of Ilero.

(4) Injunction restraining the 1st defendant Chief Akinyemi Aremu (Sobaloju of Ilero) from parading himself as the second-in-rank to the Elero of Ilero.

(5) Injunction restraining the defendants and all persons acting under their authority for giving effect to the decision of Oyo State Government that the Sobaloju of Ilero is the second-in-rank to the Elero of Ilero.

The 1st defendant objected to the competence of some of the plaintiffs in instituting the action. The case as stated in traditional history of Sobaloju in his further amended statement of defence is contrary to that of the plaintiffs, for according to him, Alawoote, his ancestor, was the first Sobaloju, and was treated as the second-in-command to the Elero from that time to the present day. In between this period attempts were made to relegate the Sobaloju to the eighth position in the hierarchy of the chieftaincies in Elero. The 2nd and 3rd defendants however, confirmed that the Sobaloju is the second-in-rank to the Elero, that the 1st defendant was downgraded during the first Republic for political reasons and for incurring the wrath of the Elero.

At the close of the parties’ case their counsel addressed the court. The evidence adduced were evaluated by the learned trial Judge who also considered the addresses, and at the end of the day dismissed the case of the plaintiffs. Aggrieved by this dismissal the plaintiffs appealed to this court on nine grounds of appeal which were later increased to 11 by an order of this court on 22/8/90. In compliance with Order 6 of the Court of Appeal Rules 1981, as amended, counsel with the exception of that of the 4th respondent exchanged briefs of argument which were adopted at the hearing of the appeal.

The 4th respondent filed an application for extension of time to file the 4th respondent’s brief, but he never showed up in court to move the application. Hence the application was struck out on 6/6/94.

Eleven issues were formulated in the appellants’ brief of argument; whereas six were raised in the 2nd and 3rd respondents’ brief. I will treat the appellants’ issues starting with issue (1) which reads:-

1. Whether having regard to the provisions of sections 6(6) (b) and 236 of the 1979 Constitution of the Federal Republic of Nigeria, the decision of the Oyo State Government that the Sobaloju of Ilero should be formally recognised as the second in rank to the Elero of Ilero gave rise to a right of action by the plaintiffs or gave the plaintiffs a right to judicial relief.

As far as this issue is concerned I have gone through all the grounds of appeal, (both in the original notice of appeal, and the additional grounds of appeal) but I have not detected the ground that covers this issue. An issue for determination that is not clothed by a ground of appeal is worthless, as it cannot stand on its own, in which case it cannot be treated for the purpose of determining an appeal. It is settled law that an issue for determination must now and derive its source from a ground of appeal. Where it is not so derived then it becomes redundant and a non-issue which must be struck out and discountenanced. See Fasoro V. Beyioku (1988) 2 NWLR part 76 page 263, Akinbinu v. Oseni (1992) 1 NWLR (Pt. 215) page 87, and Sahimi V. Akinola (1993) 5 NWLR part 294 page 434. In this wise the said issue (1) reproduced supra is hereby struck out.

Issue No. (2) is whether the learned trial judge was right to have held that the plaintiffs’ cause of action in this case arose in 1968 and not in 1982 when he found that “there was no evidence as to what the final decision of the State Government was, apart from the letter (Exhibit ‘H’). I will treat this issue together with issue (3). Issue (3) is whether the learned trial judge was right to have held that the inquiry conducted into the Sobaloju of Ilero chieftaincy in 1981 and the decision of the Oyo State Government on the Report of the Inquiry were superfluous for the determination of the time when the plaintiffs’ cause of action arose. It is on record that the plaintiffs pleaded the hierarchy of the chieftaincies in Ilero starting from the Jagun who is next to the Elero and supported it with evidence which were not controverted. The reason for the disruption of the line was given by the third plaintiff as follows:-

“About 24 years ago Oba Olayanju Akanbi fell ill and was taken to the Baptist Hospital Shaki. He was away for about three months. The then Jagun, Otunla Ajani did not go to visit the Elero in the Hospital even though all the other six chiefs went to visit the Elero… On his return home, the then Elero stripped Jagun of all his benefits and privileges as the next chief to the Elero. He then made the Sobaloju (1st defendant) to be discharging the duties of the Jagun. The then Jagun (Otunla) reported the matter to the Oke Iho/Iganna Council.”

The evidence was given in November 1988, thus making the time of the above event to be sometime in 1964. Having been conferred with the duties of the Jagun for two years the 1st defendant petitioned vide Exhibit ‘M’ to be made the next in rank to the Elero of Ilero. A pertinent portion of the petition reads:-

Any time that my predecessor comes they sat next to Ilero the head of the town. But to my surprise, the above mentioned chiefs politically (sic) or other reasons best known to them conspired to make my sitting at Elero’s house to be the last seat. This happened during the N.N.D.P. Government regime in Western Region. But I kept silent so that my position might not be redundant as such had happened in many other places in the Western Region. I pray your honour to help me advise the Elero and other subordinate chiefs to please let me retain my position as my predecessors during their life time.”

I believe as a result of Exhibit ‘M’, Exhibit ‘Q’ was written from the District Council Office, Okeho, to the Sole Administrator, Divisional Office, Oyo. It is worth noting the following extract from the letter:-

“… Traditionally the Sobaloju sits next to the Elero when he returns from his hunting expeditions and the title is generally regarded as a senior chieftaincy among the other chiefs. The holder of the Sobaloju chieftaincy title puts the traditional leaves on the head of a new Elero when about to be installed and crowned. It is my sincere belief that previous holders of the Sobaloju chieftaincy titles were most inarticulate and were therefore relegated to the background. All the chiefs present were agreed that the position should be rectified provided their present seniority is not jeopardized.”

A committee was set up to look into (amongst other matters) the matter of Sobaloju of Ilero seniority claim, and in its report, Exhibit ‘N’, the content of Exhibit ‘O’ supra was considered. At the meeting the Otunba Ajani – Jagun of Ilero confirmed that he was next in rank to the Elero, and the Mogaji also confirmed the same. After the consideration of Exhibit ‘M’ and the representation of Sobaloju which the Elero confirmed, the chiefs with the exception of the Elero were asked to leave, and the Committee resolved and recommended the following order of seniority of Ilero chiefs:-

1. Elero
2. Sobaloju
3. Jagun
4. Olukotun and so on and so forth.

What is clear from the above materials is that even though the 1st defendant attributed the downgrading of the Sobaloju to the political atmosphere then prevailing, the investigation stated in Exhibit ‘O’ revealed a different reason for it (personal as it may be). This can be seen from the underlined extract from Exhibit ‘O’ reproduced supra. In as much as this conflicting reasons may be insignificant, and not worth dwelling on unnecessarily, the stance of the Jagun and Mogaji who were at the two meetings in Exhibits ‘N’ and ‘O’ gives me anxious moments. In Exhibit ‘O’ a letter that greatly influenced the committee responsible for Exhibit ‘N’, it was stated that all the chiefs present were agreed that the position of Sobaloju should be rectified provided their present seniority is not jeopardised. If they were truly agreeable to that proposal, then there is no gain saying that their seniority will automatically be jeopardised, and in this respect one wonders if there is any rational in the statement. Then on 20/3/67 when they appeared before the Chieftaincy Committee the two chiefs confirmed that the most senior chief next to the Elero is the Jagun. I find it very difficult to reconcile the instance in Exhibit ‘O’ and Exhibit ‘N’.

Now, at the end of the above exercise the District Officer communicated the recommendation in Exhibit ‘N’ to the Permanent Secretary, Ministry of Local Government and Chieftaincy Affairs seeking its approval. To this end, Exhibit ‘L’ was written, and it is the argument of learned counsel for the 1st respondent and 2nd and 3rd respondents that the said letter is the basis for the action, and so the cause of action arose in 1968 the year Exhibit ‘L’ was written. Before going into the merits of these arguments I would like to visit the scenario that led to Exhibit ‘H’ which the appellants contend gave birth to the cause of action. In 1974, the 1st plaintiff who succeeded the Otunba Ajani who was the then Jagun involved in the 1968 exercise petitioned against the position of the 1st defendant, and the Chieftaincy Committee recommended the reversal of the content of Exhibit ‘L’ vide Exhibits ‘F’ and ‘G’ Exhibits ‘Y’, ‘Z’ and ‘AA’ were written to the then Military Government on the issue of who should rightly be the next-in-rank to the Elero of Ilero, in 1977 and 1978, but inspite of their contents and the entreaties therein, it seems the matter was not laid to rest until June 1982, when Exhibit ‘H’ was written by the then Government of the day. Curiously however, it is as though the letter was written out of the blues, with no reference to any earlier correspondence as is customary, or report from which it arose or which it was sequel to. Below is the content of Exhibit ‘H’ –

“Oba Olayanju Akanbi

The Elero of Ilero,

Ilero

u.f.s.

The Secretary

Kajola East Local Government Council,

Okeho,

Via-Oyo.

Determination of the Correct Traditional Position of the Sobaloju of Ilero.

I am directed to inform you that the Oyo State Government has, after considering the report of the Inquiry conducted in to the Sobaloju of Ilero chieftaincy decided that the Sobaloju of Ilero should be formally recognised as the second-in-rank to the Elero of Ilero.

2. You are therefore requested to give immediate effect to this decision.

‘Sola Koyejo

for: Secretary to the Government.”

Against the backdrop that the plaintiffs’ claim is based on the fact that the position of the Sobaloju is eight-in-rank to the Elero of Ilero, after all the other chieftaincies it can be said that the above recognition in Exhibit ‘H’ has infringed or violated their civil rights, having been superseded. At any rate, this letter as reproduced above stated that the Sobaloju of Ilero should be formally recognised as second-in-rank to the Elero of Ilero! I am emphasising the importance of this letter in view of the word ‘formally’ used, as it seems to be pregnant with meaning. It is possible that the letter was prompted by the Report of the Ilero Chieftaincy Dispute that was received on 25/5/82 at the office of the author of Exhibit ‘H’. In Exhibit ‘DD’ the following was recommended:-

“… that chiefs be invited to Ibadan and a round-table conference held with them over the issue when it could be brought to them that the chieftaincy of Sobaloju of Ilero has come to stay as the second in command to the Elero and that the situation calls for their cooperation to ensure peace, stability and progress in Ilero town.”

There is nothing to show that neither the above recommendation was adhered to nor was there any letter signifying the Government’s acceptance and approval of it. The only indication that it has done so, may perhaps be indirectly found in Exhibit ‘H’, but then as I have already opined it is bereft of such clear intention. Before I leave Exhibit ‘DD’ I would like to make some observations on certain facts which I consider fairly contradictory to one another. In the Report, the downgrading of the Sobaloju chieftaincy was traced to:-

(a) The issue of divorce case

(b) Chief Akinyemi’s refusal to toe N.N.D.P. Party line.

(c) Land dispute.

I am particularly attracted to (b) supra. In the body of there port it was stated that-

“… During the regime of the N.N.D.P. Chief Akinyemi, the Sobaloju refused to toe the party line as did other chiefs hence the isolation and relegation meted out for him as his prize for going it alone.”

I think I will be correct to presume the period was around 1964 to 1965. Then on page (11) of the Report, under the heading “The exact traditional position of the Sobaloju Chieftaincy in Ilero chieftaincy Hierarchy”, will be found the following:-

” … The fact of the case is that Chief Sobaloju used to be the most senior chief and, therefore, the next in rank to the Elero of Ilero until when he refused to go to war with the Elero-Anretiola … Only chiefs Jagun, Olukotun and Ajeji went with him… To show his appreciation towards those who loyally went to war with him he rearranged the order of seniority of the Ilero chiefs thereby placing his favourite in the fore-front if only to compensate them and spite those who refused to go to war with him.

It was this action of his which the Elero righted in 1967 when he restored Chief Sobaloju to his proper position as the most senior and next-in-rank to the Elero.”

Going by paragraph (49) of the amended statement of claim which was not specifically denied, this relegation must have happened ages before the relegation complained against by the 1st defendant. If that is the case then the position of the Sobaloju has long been meddled with from the time of the third Elero, and not during the N.N.D.P. political era, which came to be in the mid sixties. Indeed, I find it difficult to reconcile these aspects of the downgrading as contained in Exhibit ‘DD’, and even with that alleged in Exhibit ‘M’ by the 1st defendant himself. In fact it contradicts the case put forward by the plaintiffs both in their pleadings and evidence. The reasons given for the relegation are therefore hazy, and it is difficult to categorically pin point the exact reason and time of the relegation. Perhaps what was given as being attributable to it is as contained in Exhibit ‘O’ has some substance, but my view is that its author was trying to steer clear of troubled waters and avoid political controversy.

Now, going back to when the cause of action arose, it is imperative that one compares and analyses the purport of the content of Exhibits ‘L’ which was written in May 1968, and Exhibit ‘H’ which was written in June 1982. It is instructive to note that whereas Exhibit ‘L’ was not specific and categorical, Exhibit ‘H’ was firm and had an air of finality about it to affirm that the Government has finally laid the issue of seniority to rest in 1982, most especially in view of the word “decided” used in the letter, and reference to Exhibit ‘DD’ which came out sometime in 1982. It is very clear therefore that the decision was not final in 1968, and so encouraged by the Government who even went to the extent of not only entertaining further petitions and representations, but also setting up yet another committee, to wit Exhibit ‘DD’ was produced and acted upon. To this end I am satisfied that on the face of the abundant documentary evidence the cause of action arose in 1982, and not in 1968, and so the answers to the issues above are in the negative. Ubaezonu J.C.A. aptly described the title the cause of action arises or accrues in the case of Omotayo v. N.R.C. (1992) 7 NWLR part 254 pages 471 in the following terms:-

“My postulation is that a cause of action arises or accrues to the plaintiff the moment an act is done or an event happens and/or a default or neglect in doing something which in each case gives the plaintiff the right of action. As Black Law Dictionary 4th edition puts it, a cause of action arises “where there is a concurrence of facts giving rise to enforceable claim.” As soon as the cause of action has arisen, time begins to run against the person in whose favour the cause of action has arisen. In applying the above definitions to a cause in practice one has to look at the writ of summons and the statements of claim and compare the averment on the statement of claim as to the date the wrong was committed with the date the writ of summons was filed.”

The above quotation is of assistance in determining the supra issue on the time the cause of action arose in the instant case I hereby reiterate that it arose in 1982 when Exhibit ‘H’ was written or received by the plaintiff. Grounds of appeal Nos. (2) and (II) to which these issues are married succeed.

Whether or not the learned trial judge was right when he held that he lacked jurisdiction to entertain the action and that it ought to be dismissed on that account is the next issue which I will discuss together with issue No. (6) in the appellants’ brief of argument. The issue is, whether the learned trial Judge was right in holding that the issue of seniority among the chiefs in Ilero is essentially a question of their grading that the resolution of the issue involves a chieftaincy question as envisaged under section 165(1) of the 1965 Constitution. I will commence the treatment of these issues by first reproducing a relevant portion of the judgment of the lower court, which reads:

“The applicable law at that time, which was clearly before 1979, was the 1963 Constitution and the Chiefs Law (cap. 19) Laws of Western Region of Nigeria 1959. Under section 161(3) of the 1963 Constitution Section 80(6) of the Constitution of Western Region of Nigeria 1962 and section 24 of the Chiefs Law (Cap. 19) Laws of Western Region of Nigeria, 1959 all courts in Nigeria were prohibited from entertaining chieftaincy questions. Section 165(1) of the 1963 Constitution had defined chieftaincy questions to mean:

“Any question as to the validity of the selection, appointment, approval of appointment, recognition, installation, grading, disposition or abdication of chiefs.”

Since the issue of seniority among the chiefs in Ilero is essentially a question as to their grading there is no doubt that the resolution of the issue involves chieftaincy as envisaged under section 165(1) of the Constitution.”

It is the contention of learned counsel for the appellants that the issue of grading of Ilero chiefs was not raised in the pleadings before the lower court, and so the learned trial Judge was not entitled to make any decision on grading of Ilero Chiefs. Learned counsel for the 1st, 2nd and 3rd respondents disagreed with this contention and I am inclined to be on the same path with them, for issues were actually raised and joined in the following terms:-

In the amended statement of claim the plaintiffs averred:

20(1) The Jagun of Ilero is, according to Customary Law in Ilero, the second-in-rank to the Elero of Ilero.

Sobaloju was thus the next-in-rank to the Oluketu of Ilero and the eighth-in-rank to the Elera of Ilero.

Sobaloju Labode Ayisa was the eighth-in-rank to the Elera when Oba Olayaji Akanbi was enthroned in 1928. The salary of each of the Jagun, Olukotun, Ajeji and Mogaji has always been higher than that of the Sobaloju.

In his amended statement of defence the 1st defendant averred:-

13. In answer to paragraph 20 the 1st defendant avers that since Ilero was founded the reigning Sobaloju of Ilero has always been the second in rank to the Elero of Ilero to the exclusion of any other chief in the town who were regarded and treated as juniors to the Sobaloju.
14. In reply to paragraph 57 of the amended Statement of Claim the 1st defendant says that the salaries of the chiefs in Ilero were not fixed (sic) on the basis of seniority but were fixed arbitrarily by the then Divisional Officer.

The above averments clearly show that issues were raised and joined on gradings, for what else is being talked about and envisaged, when positions in the scheme of things or hierarchy, but gradings? The word ‘grade’ is defined in the respondent’s brief of argument as, “quality, value, relative position, rank, status or standing.” I am in full agreement that the matter in controversy falls within the above definition.

I will now deal with the issue of jurisdiction as pronounced by the learned trial Judge. It is indisputable that by virtue of the combined effect of section 24 of the Chiefs Law Cap. 19, Laws of Western Region of Nigeria and section 161(3) of the 1963 Constitution the jurisdiction of any court in the Western Region of Nigeria is ousted in respect of chieftaincy questions, but the pertinent question here is, is the supra Constitution the applicable law at the time the cause of action in the instant case arose? I think not, for even though I endorse the respondents’ counsel argument that the law governing a cause of action as at the time the cause of action arose is applicable, and their reliance on the cases of Adamu & Ors v. A.G. Bendel State & Ors (1982) NCLR 678 and Mustapha v. Governor of Lagos State & Ors (1987) 2 NWLR part 58 page 539 etc. the said 1963 Constitution was not the applicable law at the relevant time.

I have already found above that the cause of action arose in 1982, and having so found, I think it will not be wrong to say and find that at the time the cause of action arose, it was the 1979 Constitution of the Federal Republic of Nigeria that was in operation. It is trite that a court of law must adhere strictly to the provision of the law in operation at the advent of the cause of action, and apply it accordingly. In doing so the court must scrutinise the writ of summons and statement of claim with a microspic eye in order to determine the cause of action and the time it arose, for if this is not done the Judge may fall into the grave error of applying the wrong law and so wrongly confer or strip himself of jurisdiction. See Adeyemi v. Opeyori (1976) 9- 10 S.C.31. In this wise, the learned trial Judge in the present case, erred when he found:-

“As I have already found that the plaintiffs’ cause of action arose before 1979, it follows that this court now lacks jurisdiction to entertain this action and for this reason, this case ought to be dismissed.”

My answer to these issues are thus in the negative and affirmative respectively, and so grounds of appeal Nos. (1) and (10) succeed and fail respectively.

However, it will be noted that inspite of his finding, the learned trial Judge proceeded to determine the case on its merit.

Issue No. (7) is whether or not the proceedings of the Iyiola Inquiry contravened the principles of natural justice. The grouse of the appellants under this issue is that the 5th plaintiff and the 1st defendant were subjected to different types of hearing. It is learned Counsel’s contention that having given the 1st defendant oral hearing, the 5th plaintiff should have also been so obliged when the inquiring officer went to Ilero, having known that the 5th plaintiff was ill. Learned counsel for the appellant has described this anomaly as a contravention of the principles of natural justice placing reliance on the case of Adigun & Ors v. Attorney General Oyo State & Ors (1987) 1 NWLR (Pt. 53) page 678. Learned counsel for the 1st respondent has urged the court to disregard all the arguments under this issue, as the appellant has set up a new case on appeal, that is different from the one put before the trial court, most especially as it does not emanate from the judgment appealed against, and he has not sought leave to raise it for the first time in this court He placed reliance on the case of Adesokan & Ors v. S. Adetunji & Ors (1994) 6 S.C.N.J. 123; (1994) 5 NWLR (pt 346) 540. I will at this juncture deal with this aspect of the argument by looking at the pleadings and the judgment. In the amended statement of claim will be found the following averments:-

88. The plaintiffs aver that they were not accorded an opportunity of being heard in the said enquiry even though the 1st defendant was granted that opportunity.
89. The plaintiffs aver that the said enquiry was conducted in breach of the rules of natural justice and also in flagrant violation of the provisions of section 33 of the Constitution of the Federal Republic of Nigeria 1979.

The 6th plaintiff who is a principal member of the Ajeji family of which the 5th plaintiff was the Chief testified that the 5th plaintiff was old and could no longer walk around, and that he was close to the 5th plaintiff in the performance of his chieftaincy duties. When cross-examined the witness stated:-

“I was not aware of any inquiry into the dispute between the 1st plaintiff and the 1st defendant. The Ajeji (the 5th plaintiff) did not send any memorandum to any inquiry.”

This witness and some other plaintiff witnesses denied knowledge of the inquiry in 1981. I believe if some of them were not aware of it, it may be said that they were not given the opportunity to be heard, as such there was breach of natural justice, as enshrined in Section 33 of the Constitution of the Federal Republic of Nigeria, Cap. 62, laws of the Federation of Nigeria 1990, which stipulates:

“33. (1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

Whether all the plaintiffs were deprived the opportunity to be heard, as averred in the amended Statement of Claim above, is the same as saying the 5th plaintiff was so deprived as being put forward now by the appellants is another matter that needs to be closely looked at. Having pleaded the plaintiffs in general, would isolating the 5th plaintiff in the appellants’ case before this Court now, mean the appellants’ putting forward another case? It may well mean that the appellants’ counsel after perusing the proceedings thoroughly decided that a blanket allegation involving all the plaintiffs could not stand, and so after combing the said proceedings with a fine toothbrush chose to be more specific by concentrating on the case of the 5th plaintiff, for which he raised ground (5) of appeal. I believe by so doing they have not brought any fresh matter that will require the leave of this court before it is argued, for it was part of the case before the lower court, even though in a more general term then. On this score I refuse to subscribe to the argument of counsel for the 1st respondent that this issue and the argument thereunder should be ignored.

On the claim that the 5th plaintiff was not availed the opportunity of being heard there is nothing in Exhibit ‘DD’ to show that the 5th plaintiff was ill and couldn’t appear before the Enquiry to give evidence. The letter on page 72 of Exhibit ‘DD’ referred to by learned counsel for the appellants is in Yoruba Language, so its content is not known to this court. When the Inquiry Officer went to the Palace of Elero of Ilero, those who wished to give evidence appeared to do so, as is reflected on page 58-59, and there is nothing therein to show that the 5th plaintiff showed up, and he was refused audience. There is also nothing to show that when the Enquiry Officer went to Ilero he visited the 1st defendant to hear his evidence. In fact the 1st defendant went to the venue of the Inquiry at Okeho Grade ‘C’ Customary Court to testify, as is reflected on page 37-44 of Exhibit ‘DD’. In the circumstances, what obliges the Enquiry Officer to visit the 5th plaintiff in his house, when he did not visit anyone else apart from the Elero. By not visiting, has he infringed or contravened any rule of law? I think not because there was nothing special about the 5th plaintiff not giving evidence. Besides learned counsel hasn’t told this court what special evidence he would have given, that is not contained in his letter on page 72 of Exhibit ‘DD’ if he was visited, or that has already not been given by the other plaintiffs. The impression learned counsel was trying to give that the 1st plaintiff was accorded a special treatment that was not extended to the 5th plaintiff, is with due respect, tinged with certain inaccuracies. A person reading through the argument may be wont to believe that the 5th plaintiff was deprived of a privilege that was extended to the 1st defendant, and so was given preferential treatment when in fact; this is far from the truth. In the circumstances I am not satisfied that the proceedings of the Iyiola Enquiry contravened the principles of natural Justice, and so the ground appeal No. (5) to which this issue is married to fails.

The next two issues are:-

(8) Whether the learned trial Judge was right to have rejected the plaintiffs’ case on the ground that it was not shown why any of the other chiefs, namely Olukotun, Ajeji, Olukosi, Mogaji and Oluketu was not appointed to supercede Jagun Otunba as the second in rank to the Ilero.

(9) Whether from the observations made by him, the learned trial Judge was right to have said that “the plaintiffs and their witnesses would appear to have deliberately set out to mislead the court in this case.”

In arguing issue (8) supra learned counsel for the appellants restated the plaintiffs’ case that Ogunmola Abere was the first Elero of Ilero, and referred to the evidence of the 3rd plaintiff which was confirmed by the evidence of the 2nd, 6th, 8th, 10th and 11th plaintiffs. According to learned counsel the relevant pieces of evidence were not challenged, and ought therefore to have been accepted. He placed reliance on the case of Akibu v. Opaleye & Anor (1974) 11 S.C. 189. It is true that it is on record that these witnesses testimony on Ogunmola Abere as the first Elero of Ilero, and who was conferred with the title by the community was neither challenged nor debunked by the defendants. It is on record that the 1st defendant testified that Labinjo was the first Elero. Learned counsel for the appellants has submitted that the evidence ought to be rejected, because

(1) It was not the 1st defendant’s case on his pleadings that Labinjo and not Ogunmola was called Abere.

(2) Evidence of the 3rd D.W. Saka Okunlade Akano, that Ogunmola Abere was the first Elero contradicted the 1st defendant’s evidence that Labinjo was.

(3) Paragraph 26 of the plaintiffs’ amended statement of claim wherein it was averred that Labinjo was never regarded as a traditional ruler was admitted in paragraph 1 of the 1st defendant’s amended Statement of Defence.

(4) Paragraph 26 of the plaintiffs amended statement of claim where in it was averred that Ogunmola Abere was made the first Elero by the whole of Ilero community was not denied anywhere in the 1st defendant’s amended Statement of Defence.

On (1) above I don’t think there is any big deal in this addition or extension in the evidence to warrant the rejection of any other evidence. After all it is not every evidence that will emerge in the course of proceedings that is expected to be pleaded. See Thanni v. Saibu (1977) 2 S.C. page 89, and U.A.C. Limited v. Saka Owoade 13 WACA page 207.

On (2) I find no basis for this argument because there was no such evidence by D.W.3. On (3) above there was no such admission in paragraph (1) of the amended statement of the 1st defendant as claimed by learned counsel. It may well be that because the said paragraph (26) was not denied, the learned counsel wants this court to apply the principle of law that it is deemed admitted.

The evidence on the hierarchy of the chieftaincies starting from the Elero and then the Jagun was given by the 3rd plaintiff, and it was not challenged. However, having considered the evidence before him the learned trial Judge made the following observation:-

“If it is true as alleged by the plaintiffs that the chieftaincy of Sobaloju held by the 1st defendant was traditionally eight in rank to the Elero, and that the 1st defendant was merely promoted to the second position because the then Jagun refused to visit the then Elero in hospital, the question would still arise as to why any of the other chiefs who were supposed to be senior to the 1st defendant was catapulted from the eighth position to the second position.”

It is obvious that the above does not go well with the learned counsel for the appellants, for he is convinced that the remark must have weighed heavily in his mind when he dismissed the plaintiffs’ case. The law as is laid down and applied in the country is that in any civil action a plaintiff must prove his case on preponderance of evidence and the balance of probability. See Elias v. Omo-Bare (1982) 5 S.C. 25, and Woluchem v. Gudi (1981) 5.C. 291. To be quite frank, I also fall into the same predicament as the trial Judge because I wondered aloud to myself on why there should be such drastic switch of positions from eighth to second after reading the pleadings. The hike was certainly abnormal and inconceivable, but then perhaps the evidence of traditional history given by the 1st defendant has probably provided an insight to the position of Sobaloju from time.

Where plaintiff has successfully proved his case on preponderance of evidence, then he is said to have discharged the onus placed on him by the law, and then the onus shifts to the defendant, and it continues to shift for it is not static. See N.M.S.I v. Afolabi (1978) 2 S.C. 79. A plaintiff who however fails to prove his case by credible evidence is bound to fail, as by virtue of section 135 of the Evidence Act Cap. 112, Laws of the Federation of Nigeria, 1990, he who asserts must prove. The pertinent question here is, have the plaintiffs discharged the burden placed on them or not? In answering this question one must also consider the credibility of the evidence adduced by the plaintiffs and the value ascribed to them by the learned trial judge. Now back to the supra question, evidence abound from both sides on how the Sobaloju Chieftaincy came to be, some were challenged and some remained unchallenged. There were also various pieces of evidence adduced by the plaintiffs whose veracity were punctured by the learned trial judge in his judgment, and the learned counsel for the 1st, 2nd and 3rd respondents reinforced the learned trial judge’s findings on these evidence. Such evidence are like those in conflict with the documentary evidence before the court. The learned counsel for the 1st respondent has placed reliance on the case of Fashanu v. Adekoya (1974) All N.L.R. part 1 35, and has submitted that declaratory reliefs as claimed by the plaintiff must be proved with credible and honest evidence. He referred to the cases of Okonkwo v. Okagbue (1994) 12 SCNJ 89; (1994) 9 NWLR (Pt. 368) 301, and Akpakpuna v. Nzeka (1983) 7 S.C. 1 (1983) 2 SCNLR. Indeed, the learned trial judge doubted the credibility of the plaintiffs’ witnesses and expressly said so in his judgment, as is demonstrated in the following reproduced abstracts of it.

“The sum total of the foregoing observation is that the plaintiffs and their witnesses would appear to have deliberately set out to mislead the court in this case:

“There are some of the instances where the plaintiffs have sought to deny the obvious and have indulged in downright falsehood.”

The learned trial judge at the end of the day made the following observation and finding-

“It is well known that in a claim for declaration, the plaintiff is expected to succeed on the strength of his case and not on the weakness of the case for the defence. See Dada v. Ogunremi (1967) NMLR 181 at page 185. But in the present case, the evidence adduced in support of the plaintiffs’ case was for the most part nebulous and untruthful. I find the evidence adduced by the defence probable and more convincing:

I agree with the learned trial judge in this respect, for it seems all along the plaintiffs were out to capitalise on the weakness of the defendants’ case, which is not allowed by the law. It is trite that a party must not, and will not be allowed to rely on the weakness of the case of his opponent. See Woluchem v. Gudi (1981) 5 S.C. 291. As i have said earlier on, he must prove his case on the preponderance of evidence adduced by him. It is very clear to me that all the appellants’ arguments on these issues in their brief of argument are geared towards spotlighting the weaknesses in the defendants’ ease, and the learned counsel has made efforts (which I think are futile) to alert the court to concentrate on them to the defendants’ detriment. This could be said to be natural, but where there is no justification for such reliance like in the instant case where the plaintiffs’ evidence lack credibility, (as was found by the trial judge) then an outright refusal of the court to subscribe to the arguments is defendable.

The cardinal principle of the law is that a trial judge may believe or disbelieve the evidence he wishes to believe or disbelieve, for it is he who has been opportuned to listen to the witness and watch his demeanour. Having been availed of this singular prerogative an appeal court will not ordinarily disturb the view and findings of the court of first instance on such ascription of probative value, unless it is perverse. See Igbuya v. Eregare (1990) 3NWLR part 139 page 425 and Koiki v. The State (1976) 4 S.C. 107.

In this wise I resolve the two issues just discussed in favour of the respondents, and so dismiss grounds (6) and (7) of appeal to which they are married.

The last two issues, which I will discuss together are

(10) Whether having regard to the pleadings and the evidence led by the parties in this case, it was established that the Sobaloju of Ilero was the eighth and not the second in rank to the Elero of Ilero.

(11) Whether or not the plaintiffs proved their case upon the preponderance of evidence.

Learned counsel for the appellants has argued that the evidence given by D.W.1 and 2 on the history of Sobaloju chieftaincy could not have been of any probative value; in view of their evidence before the Iyiola Commission of Enquiry contained in Exhibit ‘DD’. He drew the court’s attention to the following pieces of evidence in Exhibit ‘DD’.

“Chief Mogaji: I could not say anything because I am so young on the throne and I have not got the facts of the situation.

“Chief Abese: I have just come to Ilero. I don’t know much history of the town and I don’t want to tell lies. I can not say anything on this matter.”

I have confirmed from Exhibit ‘DD’ that the above are accurate. I will now examine their evidence before the lower court. When D.W.1 testified there, he denied that he said what is contained in the reproduced piece of evidence above, when he was cross-examined. This is reflected on page 105 of the printed record of proceedings. As for the Oluketu, Salawu Alamu who was 44 years old, and only fours years as the titled chief of Oluketu, when he appeared before the Enquiry reported in Exhibit ‘DD’, even though at that time he said he did not know much of the history of Ilero, when he testified in court eight years later he was full of knowledge of the place, and its chieftaincies. It is not surprising, because the evidence he gave was based on traditional history of Ilero, and such histories are usually passed on from generation to generation and from people to people of the area and such knowledge improves with the passage of time on being repeatedly told. The fact therefore that D.W.2 knew nothing about the history as reported in Exhibit ‘DD’ but got to acquire the knowledge much later is not strange. Learned counsel’s stance on this is to me not plausible. Learned counsel for the appellant is quarrelling with the learned trial judge’s statement in the judgment on page 184 of the printed record of proceedings where he said:-

“There was evidence by the defence which I believe, that the ancestor of the 1st defendant arrived before every other person of the old Ilero.”

The grouse of learned counsel is that by saying so, he provided the 1st defendant with a case, which he did not setup in his pleadings, and which he was not entitled to do. He placed reliance on the case of Akpakpuna and Ors v. Nzeka & Ors supra. It will be of assistance to glance at the pleadings of the 1st defendant and reproduce whatever averment is applicable to this averment. I believe the following averments are:-

14. The 1st defendant avers that during the reign of Alafin Atiba, he, the said Alaafin invited one Alawoote the ancestor of the 1st defendant from Ilero being a seasoned hunter to come and help him ward off some wild animals in the wilderness around his domain.
15. After destroying the animals the said Alawoote first settled at a place presently known as Babaode and after a brief stay the said Alawoote moved to a place known as Apata Itaho all being part of the said wilderness together with his children using the place as his resting place while he continued with his hunting job.
16. By this time more people had started to arrive and were allowed to settle at Apata Itaho and it was this great influx of other people that influence the changing of the name of the settlement from Apata Itaho to Ilero meaning “the settlements of migrants.”

A cursory glance at the above averments clears whatever doubt that may have existed in my mind that the statement of the learned judge supra, attacked by learned counsel had some basis. To say therefore that the 1st defendant did not plead the facts upon which the learned trial judge supported his statement is inconceivable. What worries me however the fact in paragraph (14) is supra which talks about the ancestor of the 1st defendant, Alawoote being invited from Ilero. The pertinent question I want to ask is, if he was already living in Ilero when he was invited by the Alaafin, then how does one explain the rationale in the averments in paragraphs (15) and (20) of the 1st defendant’s pleadings reproduced above. It doesn’t make much sense and there is no synchronisation.

Learned counsel for the appellant has referred the court to D.W.1’s evidence on the sitting arrangements of the chiefs when they sit in the Elero’s Palace on page 106 of the printed record of proceedings which he said the learned trial Judge did not consider. He cited the case of Ondo State Agricultural Credit Corporation v. Chief Morakinyo & Ors (1986) 2 NWLR (pt. 25) page 670 to support his argument that it was wrong not to consider any piece of evidence however small. This piece of evidence which learned counsel deems to be salient reads:-

“Jagun and Ajeji sit next to Elero before Olukotun. The chiefs usually sit next to Elero in the order in which they arrived at Ilero. Sobaloju used to sit in the ninth position to the Elero. What the 1st defendant had been demanding is that he should be sitting next to the Elero.”

As a matter of fact the learned trial judge considered the plaintiffs’ case on that aspect of the case in his judgment, but somehow he failed to consider that of the D.W.1 above, which in fact reinforced the plaintiffs’ case. In his judgment the learned trial judge asserted inter alia thus:-

“The plaintiffs have sought to buttress their case by referring to certain alleged seniority in the order of sitting in the palace of Elero or on the other hand, as to their membership of the Customary Court at Ilero. The evidence adduced in this regard was rather nebulous and extremely inconclusive in that there were certain court proceedings in the Customary Court in which the 1st plaintiff was arranged second in rank to the Elero.”

Me think having had the view expressed above on the plaintiffs’ case, the learned trial judge should have been obliged to consider the evidence of D.W.1 on the sitting arrangement of the chiefs on the basis of seniority. It is a piece of evidence that is pertinent to the case of the plaintiffs, and which should have been given some weight, more so as it supports the plaintiffs’ case. It is trite that a trial judge can consider evidence adduced by the defence which helps to strengthen and supports the plaintiff’s case, it is permitted to add weight to the case of the plaintiff. See Ekeretsu v. Oyobebere (1992) 9 NWLR part 266 page 438 and Akinola v. Oluwo (1962) 1 All NLR 224: (1962) 1 SCNLR 352.

In this regard i subscribe to learned counsel’s argument that the failure of the learned trial judge to consider the said evidence occasioned miscarriage of justice, for it was vital.

Learned counsel for the appellants has submitted that the learned trial judge has failed to properly evaluate the evidence before him which he was duty bound to do, and so the decision should not be allowed to stand. He placed reliance on the cases of Welli & Anor v. Okechukwu & Ors (1985) 6 S.C. 132; (1985) 2 NWLR (Pt. 5) 63. Atanda & Ors v. Ajani & Ors (1989) 3 NWLR part III page 511. This revolves around the evaluation of evidence, a subject which has been almost over flogged in a long line of authorities. The one that has been used and relied upon over and over again is the case of Mogaji & Ors v. Odofin & Ors (1978) 4S.C. 91, where Fatayi Williams J.S.C (as he then was) laid down the following principles of law, which have with time been applied by the courts:-

“In short, before a Judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale, he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a case is decided on the balance of probabilities. Therefore in determining which is heavier, the Judge will naturally have regard to the following:

(a) whether the evidence is admissible

(b) whether it is relevant;

(c) whether it is credible;

(d) whether it is conclusive; and

whether it is more probable than that given by the other party.”

(italics is mine)

As can be seen from the above extract many factors have to be considered. In an earlier part of this judgment I did discuss the issues of probative value ascribable to each evidence and credibility. They are very essential and play prominent roles in the evaluation of evidence. A Judge is not enjoined to merely consider the weight of evidence adduced, he must also consider their credibility etc. Once he considers a piece of evidence to lack credibility then its weight becomes light and thus affects” the pendulum of the imaginary scale. I believe the learned trial Judge did place the two sets of evidence on the imaginary scale as prescribed in and found that the pendulum shifted to the case of the defendants. In the circumstances I resolve the issues just discussed partly in favour of the appellants and so allow grounds of appeal Nos. (4) and (5). The answer to issue (11) supra is in the negative. Grounds of appeal No. (8) and (9) covering it thus fail.

It seems issue No. (5) formulated in the appellants’ brief of argument has no related ground of appeal. In the circumstances it is hereby struck out. See the cases of Fasoro v. Beyioku etc supra.

The sum total is that this appeal succeeds in part, and so it is allowed. The judgment of the lower Court is hereby set aside. I assess costs at N2, 000.00 in favour of the appellants against the 1st respondent.

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Other Citations: (1997)LCN/0348(CA)