Alfa Issa Akano V. Ilorin Emirate Council & Ors (2002)
LawGlobal-Hub Lead Judgment Report
MURITALA AREMU OKUNOLA, J.C.A.
This is an appeal against the judgment of Gbadeyan J of the High Court of Kwara State holden at Ilorin delivered on 24th of November, 1995 wherein the Court held that the appointment of the Plaintiff/Respondent as Bale or Oluo of Oke-Oyi took effect from 1/9/93. The Court further prohibited the 1st Defendant/Appellant from parading himself as Bale or Oluo of Oke-Oyi and the 2nd Defendant/Respondent from treating him as such.
The facts of this case briefly put were as follows:
The Appellant herein was 1st Defendant in a Suit brought by the 3rd Respondent. In the High Court, 3rd Respondent herein as plaintiff claimed against the Appellant, 1st and 2nd Respondents jointly and or severally as follows:
(i) Declaration that the Plaintiff is the Oluo of Oke-Oyi having been so appointed by the Oke-Oyi Kingmakers and approved by the Kwara State Governor under Section 3(1) of the Chiefs (App & Dep) Law.
(ii) A Declaration that the 2nd Defendant has no power to appoint an Oluo for Oke-Oyi in view of Section on 78(1) (j) of the Local Government Edict Law No.8 of 1976 and Section 13 of the Chief (Appointment and Deposition Amendment Edict No.8 of 1985).
From the 19 grounds of appeal, the 1st Defendant/Appellant formulated the following six issues for determination in this appeal. These are:-
(1) Whether, at the close of pleadings, there was any issue joined as to the number of Kingmakers and Ruling Houses in Oke-Oyi and that the Plaintiff had the support of the majority thereof to warrant the finding by the learned trial Judge that there are four (4) Kingmakers in Oke-Oyi majority of which supported the Plaintiff against the 1st Defendant?; Grounds 7, 12, 13, 18 and 19.
(2) Whether the learned trial Judge was right when he held that the Plaintiff was properly appointed Baale of Oke-Oyi? Grounds 3, 4, 8, 9, 10, 15, 17 and 20.
(3) Whether there was any relief known to law which the Plaintiff could be granted and whether the Plaintiff asked for the proper relief having regard to his pleadings? Grounds 1, 2, 6, and 16.
(4) Whether the conduct of the Plaintiff was not such as to preclude him from the grant, in his favour of a declaration sought? Ground 14.
(5) Was the right approach adopted in this case by the learned trial Judge in his judgment and what is the effect of this?
(6) Whether the award of N12, 000.00 as cost was not excessive and punitive? Ground 5.
On the other hand the Plaintiff/3rd Respondent agreed with the issues formulated by the Appellant and cross appealed. From the 2 grounds of cross-appeal he formulated the following 2 issues for determination in the cross-appeal viz:
- Was it right for the learned trial Judge to have made the commendation or entreaty when neither side sought for it nor the Emir was not a party to the proceedings?
- Could the Emir disregard a Chief whose appointment has been made by Kingmakers and approved by the Kwara State Governor?
Learned Counsel to the 1st and 2nd Respondents agree with the issues formulated by the Appellants in the main appeal but added the following issue.
“Whether the 2nd Defendant/Respondent the Ilorin Emirate Council acted Ultra vires its power by confirming the appointment, turbanning and coronation of the Appellant as the Baale of Oke-Oyi following the recommendation made to it via Exh D4 by the Oke-Oyi Kingmakers.” (This relates to grounds 17 & 20 of the Appellant’s Additional Grounds of appeal)
Learned Counsel to the parties has filed their respective briefs on behalf of their clients. Learned Counsel to the parties adopted and relied on these briefs and addressed us viva voce. It is intended to consider the arguments of learned Counsel to the parties in support of both the main appeal and the cross-appeal in their, briefs as well as in their submissions viva voce. Learned Counsel to the 1st Defendant/Appellant/Cross-Respondent, Mr Adeniyi Akintola adopted and relied on 1st Defendant/Appellant’s brief filed herein on 25/9/96 the reply to cross-appellants brief deemed filed by Order of Court dated 28/10/99. He stated that he had nothing to add and urged the Court to allow the appeal. By way of reply, Prince J.O. Ijaodola for the 1st Respondent/cross Appellant (herein after referred to as Plaintiff/Respondent adopted and relied on the Respondent’s brief filed on 30/12/97 and the Plaintiff/Respondent’s/Cross Appellant’s brief dated 19/1/2000 but filed by the order of this Court dated 9/2/2000. He urged the Court to dismiss the main appeal based on unbelieved evidence at the lower court and to allow the Cross-appeal since the two issues in the Cross-appeal were not covered by the parties. By way of reply, learned counsel to the 2nd & 3rd Defendant/Respondents (hereinafter referred to as 2nd & 3rd Defendant/Respondents) Mr. T.S. Ashaolu, Hon. Attorney General and Commissioner for Justice, Kwara State leading Mrs. Funsho Lawal Ag. Director of Civil Litigation (Kwara State) contended that consequent upon the Order separating the appeal into 2, he filed 2nd & 3rd Defendant/Respondent’s brief of argument on 3/3/98.
Learned Attorney General adopted and relied on the 2nd & 3rd Defendants/Respondent’s brief of 3/3/98. He urged the Court to allow the main appeal and dismiss the Cross-appeal. He added that his additional authorities filed relate to grounds of appeal filed by the Appellant. By way of further reply, learned counsel to the 1st Defendant/Appellant submitted that he had nothing to add.
I have considered the submissions of all the learned counsel to the parties in this case vis-a-vis the records and the prevailing law. I shall now give my views on them. I propose to deal with issues 1, 2, 3 & 4 of the 1st Defendant/Appellant which are pleadings related and which touch on the propriety or otherwise of the Plaintiff as Baale of Oke-Oyi. After disposing of these issues together. I shall then examine what is left. On first and second issues, learned counsel to the 1st Defendant/Appellant by way of summary at page 17 of the Appellant’s brief submitted that there is no issue as to the number of ruling houses. Learned Counsel further submitted that two (2) is not a majority in a committee of four (4) contending that the plaintiff having purportedly secured the support of 2 Kingmakers cannot claim to have the support of the majority. In the circumstance, learned counsel to the 1st Defendant/Appellant submitted that the learned trial judge was in error when he held that the Plaintiff was properly appointed and when he set aside the appointment of the 1st Defendant. Learned Counsel to the Appellant drew support for the above submissions from the following cases:
A.I. EGBUNIKE & ANOR. V ACB LTD. (1995) 2 NWLR (Pt 325) 34 pp 51 & 53; SPACO VEHICLE & PLANT HIRE CO. V ALRAINE (NIG) LTD. (1995) 8 NWLR (Pt. 416) 655; UNB LTD. V OGBOH (1995) 2 NWLR (Pt 380) 647.
Learned Counsel to the Appellant referred to the State of pleading stressing that at the close of same there are five kingmakers in Oke-Oyi.
This averment having not been controverted, learned counsel submitted that there is no basis for any evidence to the effect that there were four kingmakers upon which the learned trial judge based his finding of 4 kingmakers and two chosen as majority. No kingmaker was called by the plaintiff, he added.
Learned Counsel submitted further that contrary to the holding of the learned trial Judge that there are two ruling houses in Oke-Oyi and that the 1st Defendant was not a descendant of Oluo nor was he related to any of the ruling house, the plaintiff never pleaded anything on the number ruling houses.
As regards whether the Plaintiff was properly appointed Baale of Oke-Oyi in Issue 2, Learned Counsel to the Appellant submitted that since the learned trial judge held that the Plaintiff was appointed by the majority of the kingmakers -2 out of 4 – the absence of evidence of any of these kingmakers renders the finding of the learned judge baseless or perverse.
On the Plaintiff’s as well as learned trial judge’s dependence on Exhs D1 & D17 for the appointment of Plaintiff as Oluo, learned Counsel to the Appellant submitted that while the Plaintiff sought his 1st declaration in his first relief that he had been so appointed by the kingmakers Exhs D1 & D17 were documents emanating from the government of Kwara State which Plaintiff never made the foundation of his case. Learned Counsel referred to the defects in both exhibits – neither being public document was certified, hence inadmissible; hence all references to them go to no issue. D1 derived its potency from D17. If D17 is proved not to exist, Exh D1 becomes useless, secondly Exh D17 being a Draft White Paper instead of a final White Paper has little or no probative value and lastly Exh D17 cannot override the provisions of the Chiefs Law of Northern Nigeria applicable to Kwara State as well as Chiefs Appointment and Deposition law of Kwara State which confer the right to appoint install or consent to the appointment of a Chief on the 2nd Defendant. In the light of the foregoing, learned Counsel to the Appellant submitted that the finding of the learned trial judge at page 104 of the records on paragraphs 111-113 that based on Exhs D1 & D17 which he regarded as valid and upon which the Plaintiff/had been appointed as Oluo has no basis in evidence and law. Learned Counsel urged this court to resolve this issue in favour of the Appellant.
By way of reply at page 1 of the 2nd & 3rd Defendant /Respondent’s brief Learned Counsel to the 2nd & 3rd Defendant/Respondent’s adopted the submission of learned Counsel to the Appellant on all the issues raised in the Appellant’s brief. It is therefore necessary to examine the Plaintiff/Respondent/Cross-Appellant’s reply to the above submissions.
Learned Counsel to the Plaintiff/Respondent/Cross-Appellant by way of summary at page 7 of the/Respondent’s brief urged the Court to dismiss this appeal in its entirety because:
i. the trial Court was right to have declared the Plaintiff/Respondent as the Bale/Oluo of Oke-Oyi considering the totality of the evidence adduced by both parties.
ii. The trial Court was right to have relied on Exh D17 which was pleaded by the 1st -3rd Defendant/Appellant and tendered by consent by the 1st Defendant/ Appellant. That through a Draft it binds the pleaders and tenderer (1st-3rd Defendants) hence trial Judge was right to have classified it as an important draft document in his judgment.
iii. The trial Court was right to have given any probative value to Exhs 3 & 9.
iv. The trial Court limited itself to the evidence before it in arriving at its judgment.
Learned Counsel to the Plaintiff/Respondent/Cross Appellant at page 6 of the Respondent’s brief submitted that the number of Ruling houses was an issue in the case since the 1st Defendant/Appellant’s Counsel cross-examined the Plaintiff/Respondent at page 37 lines 7-17 of the record on same. Similarly it was a major issue in Exh D17 pleaded by all the Defendants and tendered by 1st Defendant /Appellant by consent.
Learned Counsel submitted that it was lawful coincidence which the court was under a duty to consider. Learned Counsel referred in support of this submission to the case of OREPEKAN & 7 ORS V N.O. AMADI & 2 ORS (1993) 11 SCNJ 68. Learned Counsel also referred to paragraphs 14-18 at page 9 of the record where 1st Defendant pleaded that there were 4 Ruling houses in Oke-Oyi as well as his evidence on this on page 41 lines 20-26 of the record. Learned Counsel also referred to the evidence of 1st Defendant at page 41 lines 24-28 where the 1st Defendant referred to the 4 ruling houses founded by the founder of Oke-Oyi named Oluo and that the Plaintiff does not belong to any of the 4 Ruling houses but lives at Ajayi Ruling house which is Ile Bale Isale.
I have considered the submissions of learned Counsel to the parties on the above Issues vis-a-vis the records and the prevailing law. I shall now give my views on the points canvassed by learned Counsel on the issue in their briefs. As to whether or not issues were joined on the number of ruling houses, I have considered the submissions of Learned Counsel to the parties on this issue. It is trite law that the burden is placed on the Plaintiff to prove his case on a preponderance of evidence or balance of probabilities. In the circumstance the Plaintiff ought to plead the number of ruling houses in Oke-Oyi and lead evidence on same.
The question to answer here is whether this was done in the present case. I have gone through the printed record vis-a-vis the submission of the Learned Counsel to the parties, it is clear that the Plaintiff /Respondent did not plead anything on the number of ruling houses.
Learned Counsel to the Plaintiff/Respondent in his submission also confirmed this in his submission when he stated that the number of ruling houses was an issue in this case since the 1st Defendant /Appellant Cross-examined the Plaintiff/Respondent on same. He also confirmed that this was a major issue in Exh D17 pleaded by all the Defendants and tendered by the 1st Defendant/Appellant by consent. All these go to show that the Plaintiff did not plead the number of ruling houses in Oke-Oyi. Learned Counsel to the Plaintiff/Respondent in his submission contended that the court was justified to consider evidence tendered on ruling houses as it did. I find this submission by learned Counsel to the Plaintiff contrary to the prevailing law. It is clear that at page 37 lines 7-17 of the record Plaintiff, under cross-examination by the 1st Defendant’s Counsel gave evidence on this issue. What then is the legal effect of such evidence? The law is simply that evidence given on a fact that is not pleaded goes to no issue and same should be disregarded. See OLALERE IGE & ANOR V OYEKUNLE AKOJU & ORS (1994) 4 SCNJ 288; ABRAHAM OLABANJI & ANOR V SALAMI A. OMOKEWU & ORS (1992) 7 SCNJ 266; ORUBOKO V ORUENE (1996) 7 NWLR (Pt 462) 555 CA, LADIPO v AJANI 8 NWLR (Pt 517) 356 SC. It needs to be emphasized that the position is the same in law where these facts not pleaded by the Plaintiff are pleaded by the Defendants as in the instant case. In such a situation the Plaintiff only needs to adduce evidence in rebuttal of those facts as he did not raise them in his pleadings. See MICHAEL NWACHUKWU & ORS V NNAMDI ONUOHA & ORS (1995) of NWLR (Part 421) 603. It can be observed from the finding of the learned trial judge in this case that these rules relating to evidence based on unpleaded facts were not observed and I so hold.
On the issue of King makers and their role under Customary law on the appointment of Oluo of Oke-Oyi, I have considered the submissions of learned Counsel to the parties on this important point canvassed in their briefs as well as in their submission before us vis-a-vis, the records and the prevailing law. Their submission boils down to the role of kingmakers under Customary law in the appointment of Oluo of Oke-Oyi. In this regard the starting point is to assert that customary law is regarded as a fact which must be pleaded and proved by evidence as a fact unless it is notorious. See CHUKWUNA OKWUDILI UGO V. AMANCHUKWU OBIEKWE & ANOR (1989) 2 SCNJ 956; JOSHUA OGUNLEYE V. BABATAYO ONI (1990) 4 SCNJ 65; RABIU V. ABASI (1996) 7 NWLR (Pt462) 505 SC. It follows therefore that if it is the Customary law of Oke-Oyi that when an Oluo or Bale passes on the title moves in rotation to another ruling family such a fact or practice must be pleaded and proved. In the instant case the Plaintiff should have pleaded that on the death of a Bale or Oluo the title goes to another ruling family in Oke-Oyi. I have gone through the records as reiterated supra and observed that the Plaintiff did not plead trial fact, in spite of this learned trial Judge held thus:
“Assuming only for purpose of argument that the Ile Tuntun is a Ruling House in view of the well established rotational arrangement, it might be easier for the camel to pass through the needle’s eye than for Issa Akano to succeed his father directly.”
In paragraph 1 of the statement of Claim the Plaintiff pleaded as follows:
“The Plaintiff was appointed Oluo of Oke-Oyi by the Oke-Oyi kingmakers who are the traditional appointers for the office of Oluo.”
The 1st Defendant/Appellant in his statement of Defence specifically traversed this averment in paragraphs 19 & 20 therein in the following terms:
“19 The 1st Defendant avers that as a result of the vacant stool of Bale of Oke-Oyi since 17/6/88 and having been recommended and nominated by the Ile Tuntun Family and Kingmakers he applied on 24/10/88 to the Emir of Ilorin who is the head of the Ilorin Emirate Council for the appointment as the Village head (Bale) of Oke-Oyi.
20 The 1st Defendant states that the 5 kingmakers in Oke-Oyi namely Elemonso, Akogun, Jagun, Baba, Gbodu and the Balogun recommended him to the 2nd Defendant as the Bale of Oke-Oyi.”
From the state of pleadings, the Plaintiff/Respondent should have called the kingmakers whom he claimed to have appointed him Bale of Oke-Oyi to give evidence. This is moreso since he claimed to have enjoyed the support of two of the four kingmakers he claimed to be the majority. This evidence of a kingmaker, since it is the case of the Defendants that the Plaintiff was never at any time appointed by the kingmakers as laid down by the Customary law in Oke-Oyi, is very vital. Although it is trite that the law does not fix any number of witnesses that a party should call to prove a point, it is clear from the state of pleadings that the part played by kingmakers in appointment a Bale for the town is very vital. They ought to have been called in the circumstances of this case if only to give direct evidence of the role they played in the appointment of the Plaintiff as the Bale of Oke-Oyi. See IBRAHIM V BARDE (1996) 9 NWLR (Pt.474) 513 SC; OLAGBEGI V OGUNOYE 11(1996) 5 NWLR (Pt 448) 332 CA; YAKTOR V GOV PLATEAU STATE (1997) 4 NWLR (Pt 498) 216 CA; FRAMO NIG LTD V SHAIBU DAODU (1993) 3 NWLR (Pt 281) p.372; A-G KWARA STATE & ANOR V CHIEF JOSHUA ALAO (Unreported Appeal No CA/IL/20/99 delivered by this panel of the Court of Appeal on 29.3.2000).
In the light of the foregoing authorities, it is clear that the Plaintiff/Respondent failed to call evidence in proof of his appointment as Baale of Oke-Oyi by the kingmakers or the majority of same (obviously 2 cannot be a majority of 4 as the Judge held). In such a situation, the consequential order to have been made by the learned trial judge was that of dismissal of the claim of the Plaintiff/Respondent and I so hold.
See ONYIOHA V AYASHE (1996) 2 NWLR (Pt.432) 567 CA; ALOR V THE STATE (1997) 4 NWLR (Pt 501) 511 SC; ESIKA V MEDOLU (1997) 2 NWLR (Pt 485) 54. This issue is resolved in favour of the Appellant.
On the Plaintiff’s dependence on Exhs D1 & D17 for his appointment as Oluo of Oke-Oyi and the learned trial Judge’s finding thereon, I have considered the submissions of learned counsel to the parties vis-a-vis the records and the prevailing law. It is necessary to give my views on the submissions. Before doing so it is necessary to reiterate briefly the event leading to Exhs 1 & D17. This will lead us to a brief history of the case. The succession dispute to the vacant stool of Bale of Oke-Oyi in Kwara State had been a subject matter of law suits between the Appellant’s family and Plaintiff/Respondent which culminated in the Supreme Court’s judgment in JOSHUA ALAO V GBADAMOSI AKANO (1988) 1 NSCC 329.
This judgment led to the turbanning of the 1st Defendant/Appellant’s father Mallam Gbadamosi Akano as the Bale of Oke-Oyi. He died shortly after thereby making his reign a very short one. His death sparked off once again the succession imbroglo, this time between the Plaintiff/Respondent and the deceased Bale’s son, the 1st Defendant/Appellant herein. Both claimed they were appointed by the kingmakers of Oke-Oyi. As a result of these conflicting claims, the then government of Kwara State appointed an administrative panel under the Chairmanship of Mr. M.F. Oye to look into these claims after taking evidence from the parties and their supporters, the panel submitted its report to the government.
After the receipt of the report the then Deputy State Governor Mr Ojo Fadumile wrote a letter Exh 1 to both the Chairman, Ilorin East local government Oke-Oyi and the Secretary Ilorin Emirate Council, Ilorin which went stated thus:
“APPOINTMENT OF OLUO (BALE) OF OKE-OYI
……………………………………………….
……………………………………………….
- Based on the report of the panel and the Government White Paper on the report, the Kwara State Governor after seeking legal advice hereby approves the appointment of Mr. Joshua Alao not Joshua Akano as the Olu (Bale) of Oke-Oyi with effect from 1st September, 1993 with full rights and privileges attached to the stool.
- ………………………………….
SGD
Prince Ojo Fadumile
Deputy Governor
Kwara State”
This letter provoked negative reaction from the Governor’s office such that the Secretary to the State Government issued a letter No. S/POO1/38A/23 of 15/10/93 denying that the Executive Governor of Kwara State approved the appointment and, also on his nomination by the kingmakers. The 1st Defendant/Appellant, on the other hand claimed that after the death of his father, his family recommended him for appointment as the Bale of Oke-Oyi. In view of the two Claimants to this same stool, the Emir of Ilorin as the prescribed authority for the stool set up a panel to enquire into the two conflicting claims. This, the panel did and reported back its findings to the Emir in Council. The 1st Defendant/Appellant was consequently recognized and turbanned as the Bale of Oke-Oyi on 20/11/90.
Consequent upon the letter of the Secretary to the State Government referred to supra, the Plaintiff/Respondent brought the present action against the 1st Defendant/Appellant, the 2nd & 3rd Defendants Respondents respectively for the declarations contained on page, 1 of this judgment. It needs to be stated here that Exh D17 is the Draft Government White Paper on the Report of the M.F. Oye Panel while Exh 1, the letter written by the Deputy Governor, is based on the Draft White Paper Exh D17.
On Exhs 1 & D17 learned Counsel to the Appellant on page 10 of the Appellant’s brief submitted that it was the trial court’s reliance on Exhs 1 & D17 that led the learned trial Judge to hold that the Plaintiff/Respondent had been appointed as Oluo or Bale of Oke-Oyi. On the validity of these documents and the probative value attached to them leading to the holding that the Plaintiff/Respondent was properly appointed as Oluo, learned Counsel to the Appellant on page 10 of the Appellant’s brief submitted that the basis on which the Plaintiff/Respondent sought his declaration in his first relief was that he had been appointed by the kingmakers. Learned Counsel contended that since Exhs 1 & D17 are documents emanating from the Government of Kwara slate, the Plaintiff never at any time made those documents the foundation of his relief. On the validity of both documents as held by the trial Judge, learned Counsel to the Appellant submitted that the learned trial Judge was in error for the following reasons:
That both documents as public documents, not being certified become inadmissible not withstanding their being tendered without objection or by the defence. Learned Counsel relied for this submission on SS. 92 (1), 109 & 113 of the Evidence Act.
UGOH V BSLGSC (1995) 3 NWLR (Pt 383) 288; KONYE V OFFUME (1985) 2 NWLR (Pt.5) 1; UKANA V COP (1995) 8 NWLR (Pt 416) 705.
Learned Counsel to the Appellant submitted in consequence that all references to both exhibits go to no issue and that since Exh D17 is not proved to exist, then Exh 1 which derives its existence from Exh D17 become useless. Learned Counsel to the Appellant highlighted other defects in both exhibits – Exh D17 being signed by nobody (no author); D17 is stated to be a draft instead of a final document, D17 cannot override the Chiefs Law of Northern Nigeria applicable in Kwara State as well as the Chief’s Law of Kwara State which confer the right to appoint, install or consent to the appointment of a Chief on the 2nd defendant.
As highlighted supra, learned Counsel to 2nd & 3rd Defendant/Respondents agreed with the above submission of learned Counsel to the Appellant.
By way of reply, learned Counsel to the Plaintiff/Respondent/Cross-Appellant submitted on page 5 of the Plaintiff/Respondent/Cross-Appellant’s brief on the above points that since the Draft White Paper on M.F. Oye’s Panel Exh D17 was tendered by the 1st Defendant/Appellant and admitted by consent, all the contents are pieces of evidence to be used in the determination of a case. Learned Counsel further submitted that Exh D17 has made the complaints reiterated supra by learned counsel to the 1st Defendant/ Appellant a non issue as they are based on incredible and unbelieved evidence, proffered by the 1st Defendant/and his comrades in the conflict. Learned Counsel pivoted his submission on the cases of D.P. AYINDE & ANOR V ALAHAJA B. SALAWU (1989) 5 SCNJ 133 and N. NWANZOKE V THE STATE (1988) 2 SCNJ 344.
I have considered the submissions of Learned Counsel to the parties on this sub issue of reliance by the learned trial/judge on Exhs 1 & D17 vis-a-vis the records and the prevailing law. I shall now give my views on both documents. Learned Counsel to the parties agree that Exh 1 is based on or derived from Exh D17 – marked “draft white paper.”
The poser here is whether ‘a Draft White Paper’ occupies the same position in law as the original or final white paper. I have considered the submissions of Learned Counsel to the parties on this poser vis-a-vis the records and the prevailing law. Black’s Law Dictionary 6th Edition at pages 493 defines a ‘draft’ as follows:
“A tentative, provisional, or preparatory writing out of any document (as a will, contract, lease, etc.) for purposes of discussion and correction, which is afterwards/to be prepared in its final form.”
From the above legal definition, it is clear that a draft White paper is not the same thing nor can it assume the position of ‘the White paper.’ See A-G KWARA STATE & ANOR V. CHIEF JOSHUA ALAO & ANOR (supra) p.11.
Reacting to the defects highlighted by learned Counsel to the 1st Defendant/Appellant concerning Exh D17 – a public document neither certified nor signed and yet admitted by consent – learned Counsel to the Plaintiff/Respondent/Cross Appellant submitted that since same had been admitted by consent all the contents are pieces of evidence to be used in the determination of the case. This submission of Learned Counsel to the Plaintiff/Respondent/Cross Appellant seems to tally with the learned trial Judge’s holding on the document in his judgment which went thus:
“Exh D17 is an important document. It is the White Paper on M. F. Oye’s Panel report. It is one of the 18 documents tendered by the defence.”
The poser raised here is whether an uncertified copy of an original document or a draft which is unsigned is admissible or whether a document inadmissible in law under any circumstance and within the competence of a Court or by consent be made admissible by the defence. Before answering this poser, it is pertinent to observe that Exh D17 being a draft that it is, cannot rank as original copy of a final draft as laid down in S.94 (4) of the Evidence 1990 which stipulates thus:
(4) Where a number of documents have all been made by one uniform process, as in the case of printing of the lithography or photography, each shall be primary evidence of the contents of the rest; but where they are all copies of a common original, they shall not be primary evidence of the original.”
In the light of the foregoing, Exh 17 being a draft copy does not have an original or final copy from which certified copies could have been made as laid down in S.111 (1) of the Evidence Act 1990.
It is trite that such a document is not admissible in law.
What is more the second leg of the poser had been settled by the apex court in the land to the effect that where a document is made inadmissible by law under any circumstance, it is not within the competence of the Court or the parties in the suit to admit, the document, by consent.
Thus, the law as it is today is that documents which are by law inadmissible in any event, the Court has no power to exercise any discretion in the matter. The failure to object or even consent by the parties is immaterial in such a circumstance. The Court of Appeal is entitled to reject such documents if admitted by the lower Court as in the instant case as such document cannot be the pivot of a valid judgment. See OBA GORIOLA OSENI & A ORS V YAKUBU DAWODU & ORS (1994) 4 SCNJ 197; MRS ELIZABETH N. ANYAEBOSI V R.T. BRISCOE (NIG) LTD (1987) 6SCNJ 9.
In the light of the foregoing authorities I hold that the learned trial Judge erred in law to have received Exh D17 as well as Exh 1 based on same in evidence and to have attached such probative value to them despite the fact that same were tendered by the defence or by consent and I so hold. This point is also resolved in favour of the Appellant.
Having disposed of Exh D17 upon which Exh 1 is based can it be said that the Learned trial Judge was right when he held that the Plaintiff was properly appointed Baale of Oke-Oyi by the Kingmakers and approved by the Kwara State Governor based on these documents. This is the plank on which issue No.2 contained in both the Appellant’s and the Cross-Appellant’s brief rest. For ease of reference, I quote both issues again:
Appellant’s Issue No. 1:
Whether the learned trial judge was right when held that the Plaintiff was properly appointed. (This has been resolved in favour of the Appellant supra)
Cross-Appellant Issue No.2:
Could the Emir disregard a Chief whose appointment has been made by Kingmakers and approved by the Kwara State Governor?
It is pertinent to point out that the first leg of this issue had been resolved supra in favour of the Appellant, we are only left with the issue of approval by the Kwara State Governor and the Emir’s role in such appointment as in issue 1 of the Cross-Appellant’s brief.
Learned Counsel to the parties has addressed us copiously on this sub issue of the principal issue. The question here to answer is whether the Governor approved the appointment of the Plaintiff/Respondent/Cross-Appellant as contained in Exh 1 issued by the Deputy Governor. I answer this in the negative based on the two letters Exhs 3 & D9 issued by the Secretary to the Government, the mouth piece of the Governor or Government on such issue which I shall reproduce after Exhibit 1 in reaction to the said letter Exh 1. For ease of reference I shall reproduce here again Exh 1 and show the Governor’s Exhibit 1 reads in part as follows:
“Based on the report of the panel and the Government White Paper on the report, the Kwara State Government after seeking legal advice hereby approves the appointment of Mr Joshua Alao and not Joshua Akano as the Oluo (Bale) of Oke-Oyi with effect from 1st September, 1993, with full rights and privileges attached to the stool.”
In a swift reaction to the above, the Secretary to the State Government on receipt of Exhibit 1 wrote Exhibit D9 to the Emir of Ilorin via the Emirate Council and it reads thus:
“Appointment of The Village Head (Bale) of Oke-Oyi
I am to refer to letters Ref. Nos.MLG/S/CHI/GEN/320/S.4/340 of 27/9/93 from the Office of the Deputy Governor of Kwara State and that of the Emirate Council, Ilorin, Ref.No.EC/32/311/365 of 22/9/93 respectively, and to inform you that the Executive Governor of Kwara State had earlier taken a decision that the issue of the Bale of Oke-Oyi should be referred to your Emirate Council which is vested with powers to handle such a case in line with the tradition and custom of the area.
- ……………………….
- Consequently, His Excellency, the Executive Governor of Kwara State has, therefore directed that the contents of this letter from the Office of the Deputy Governor referred to above should be disregarded.
Sgd.
Alhaji Shehu Abdul-Gafar
Secretary To The State Government,
Kwara State.”
In a further reaction to Exhibit 1, the Secretary to the State Government wrote another letter Exhibit 3 addressed to the Plaintiff/Respondent/Cross-Appellant and copied the Deputy Governor and other functionaries of government. It reads as follows –
“Mr Joshua Alao,
u.f.s.
Chairman,
Ilorin East Local Government,
Oke-Oyi.
I wish to refer to your letter dated 12th October,1993, addressed to His Highness the Emir of Ilorin and copied this office, on the above subject matter, the content of which deserves this office’s reaction which contains as follows –
(i) We wish to reiterate that His Excellency the Executive Governor of Kwara State, Alhaji Mohammed Shaaba Lafiagi never at any time approved your purported appointment as the Oluo (Bale) of Oke-Oyi as mentioned in your letter under reference.
(ii) You may wish to note that the appointing Authority for such a stool as Bale of Oke-Oyi rests entirely with the Emirate Council.
- The above statement therefore is aimed to clear any misinformation or misconception your letter under reference seems to portend.
Sgd.
(Musa Umar)
For: Secretary to The State Government.”
There is no doubt that the Executive Governor of Kwara State via Exhs 3 & D9 denied the purported approval by His Excellency on the appointment of the Plaintiff/Respondent/Cross-Appellant conveyed in Exh 1 written by the Deputy Governor. However, on this point, the learned trial Judge in his judgment ignored both Exhs 3 & D9 contending that since there was no evidence of a breakdown of communication between the Governor and his Deputy, Exhs 3 & D9 are worthless and of no probative value. On this rejection learned Counsel to the Plaintiff/Respondent/Cross-Appellant on page 5 of the Plaintiff/Respondent/Cross-Appellant’s brief submitted that Exh D9 at page 94 and Exh 3 at page 98 of the record were of no probative value since they were not in line with the State of the law. The learned Counsel Prince Ijaodola further submitted that the decision of a Governor which is illegal cannot be respected. He continued “There is no law which gives power of appointment of a Council. The two documents have no legal value, no effect. I therefore urge my Lords to hold that the learned trial judge rightly ignored the two ridiculous exhibits.” (Underlining is mine for emphasis)
Learned Counsel further submitted on page 4 of the Cross-Appellant’s brief that the Emir has no power to disregard a Bale appointed by Oke-Oyi kingmakers and approved by the Kwara State Governor. Learned Counsel referred to S.3 (1) of the Chief’s (Appointment and Deposition) Law in support.
By way of reply, learned Counsel to the Appellant/Cross Respondent Mr. Akintola at pages 3 & 4 of the 1st Defendant/Appellant/Respondent’s brief to Cross-Appellant’s brief referred to S.15 (1), (2) & (3) Of Edict No 3 of 1988 referred to by learned Counsel to the Cross-Appellant which refers to the approval of the Governor or the appointing authority in the appointment of a Chief and submitted that it is not true that the Governor of Kwara State approved the appointment of the Plaintiff/Cross-Appellant. Learned Counsel further submitted that “at least Exh D9 gives lies to this assertion.”
I have considered the submissions of the Cross-Appellants and the Cross-Respondent’s Counsel on this sub issue vis-a-vis the record and the prevailing law. In my view the poser raised from their arguments is whether the Executive Governor of a State having delegated his power to the Deputy Governor of the State on specified issue can withdraw such delegation either directly or by conduct as witnessed in Exh. 3 & D9 by the State Governor countering the Deputy Governor assertion in Exh1. This poser in my view falls within the ambit of S.162 of the 1979 Constitution….This Section on the creation of the post of Executive Governor of a State provides that every state of the Federation shall have a Governor who is the Chief Executive in that State.
On the powers of a Governor of a State and how such powers are to be exercised Sub-Section 5 provides thus:
“(2) Subject to the provisions of this Constitution the executive powers of a State
(a) shall be vested in the Governor of that State and may, subject as aforesaid and to the provisions of any Law made by a House of Assembly be exercised by him either directly or through the Deputy Governor and Commissioners of the Government of that State or officers in the Public service of the State.”
The above provision clearly emphasizes that the Governor is the Chief Executive of the State. This provision of the Constitution was given judicial recognition by the Court in the case of SHITTU V SOLICITOR GENERAL OF KWARA STATE (1984) 5 NCLR 661 p.665 where the court held thus:
“S.162 (2) of our Constitution clearly settles the point by providing that ‘The Governor of a State shall be the Chief Executive of that State’. The maxim expressio unius est exclusio alterius’ (i.e. the express mention of the one thing implies the exclusion of the other) is a basic principle of interpretation. If the Constitution had intended delivering the State into the hands of the two persons it would easily have provided that the Governor and the Deputy shall be the Chief Executives of the State”.
The Court went further on the interpretation of S.172 (1) of the Constitution which provides that the Deputy Governor shall hold office of Governor of the State if the office of Governor becomes vacant by reason of death, resignation or removal of the Governor from office in accordance with S.170 of the 1979 Constitution to liken the relationship of both in the following words:
“The Governor …is like a soccer player with his Deputy as the ‘reverse’: the two of them being deliberately placed by the Constitution to ensure that there is no period of “inter-regnum” in the running of Governmental affairs of a State.”
See also STATE V IVORY TRUMPET & ORS (1984) 5 NCLR 736 P. 754.
The above provision of the Constitution had come for interpretation by this Division of the Court of Appeal in the sister case to the instant appeal to the effect that a Governor of a State can either exercise the executive powers vested in him by the Constitution or delegate the powers to his deputy or other government officials. See KWARA STATE & ANOR V CHIEF JOSHUA ALAO (supra). On the withdrawal of the power assigned to the deputy Governor or other officials by the Governor it was held by the court at page 9 of the judgment per Amaizu JCA thus:
“He (the Governor) has also in my considered view, the power to withdraw such powers assigned by him to his deputy or any official at any time.
Such withdrawal may be expressly made or by implication. A withdrawal by implication arises where a Governor acts in consistent with the continuance of the assignment of such a power to an official.”
I cannot but agree with the above judgment of the Court which I participated in. Consequently, I hold that Exhs 3 & D9 had countered Exh 1 dealing with the purported approval of the Plaintiff/Respondent/Cross-Appellant’s appointment by the Governor. One interesting thing to observe in the arguments of Counsel on this sub-issue is that while Learned Counsel to the Plaintiff /Respondent/Cross-Appellant Prince Ijaodola argued in one breath that the Governor lacks the power of approval in the said appointment, the same learned Counsel went further on page 4 of the Cross-Appellant’s brief to submit that the Emir has no power to disregard the Bale appointed by Oke-Oyi Kingmakers and approved by the Kwara State Governor. Be that as it may, even if the Deputy Governor was charged with the responsibility of Chieftaincy matters in the State, the Governor of the State still had the final say on Chieftaincy matter. Learned trial Judge was in error to have rejected Exh 3 & D9 in arriving at its judgment. Be that as it may, since as shown supra that the Governor of Kwara State did not approve the appointment of the Plaintiff/Respondent/Cross-Appellant as Bale of Oke-Oyi, in the circumstance it cannot be said that the Emir disregarded any Governor’s directive on same. In consequence, Issue 2 in the Cross-Appellant’s brief is resolved in favour of the Appellant and against the Cross-Appellant.
As regards Issue 1 of the Cross-Appellant’s brief dealing with the role of the Emir or Emirate Council in the appointment of the Bale or Oluo of Oke-Oyi, both Learned Counsel to the Cross-Appellant and the Cross-Respondent addressed us copiously on this issue. I have considered the submissions of Learned Counsel to the parties on this issue vis-a-vis the record, and the prevailing law. I shall now give my views on them. For ease of reference Issue 1 in the Cross-Appellant’s brief reads:
“Was it right for the learned trial judge to have made the commendation or entreaty when neither side Sought for it nor the Emir was not a party to the proceedings.”
On this issue learned Counsel to the Cross-Appellant on page 4 of the Cross-Appellant’s brief submitted that neither party sought for the order in the last paragraph of the trial Court’s judgment at page 113 of the record. Learned Counsel contended on page 4 of the Cross-Appellant’s brief paragraph D that it is settled law that a Court is not competent to give a party what he does not seek for. Learned Counsel relied on the cases of D.C.IMOLOAME V. WAEC (1992) 11-12 SCNJ 121 & HON. JUSTICE A. ADEMOLA V.CH1EF H. SODIPO & ORS (1992) 7 SCNJ 4 in support of this submission. Learned counsel further submitted that an order must not be made against a non-party to a proceeding which in the instant case is the Emir of Ilorin. Learned Counsel urged the Court to resolve this issue in favour of the Cross-Appellant. By way of reply, learned Counsel to the Appellant/Cross-Respondent on pages 2-4 of the 1st Defendant/Appellant/ Respondent’s brief to Cross-Appellants brief conceded that it is trite law that a Court does not give to a party what he did not ask for. Learned Counsel cited the cases of SPACO VEHICLE PLANT HIRE CO V. AERAINE (NIG), LTD (1995) 8 NWLR 1 and NWODO V. NWODO (1995) 1 NWLR (Part 370) 203 on this submission. Learned Counsel to the Cross-Respondent went further to submit that the Emir of Ilorin being the Chairman of Ilorin Emirate Council which is a defendant in the instant suit filed by the Cross-Appellant, and being a personification of the Emirate Council, the Emir is by necessary implication a party to the suit.
Learned Counsel further submitted that since it was the report of the panel set up by the Emir to which both parties submitted themselves and which did not favour the Cross-Appellant that led to the institution of the present action, it would be wrong for the Cross-Appellant to say that the Emir was not a party to the action. By way of further reply, Learned Counsel to the Cross-Appellant submitted on pages 1 & 2 of the Cross-Appellant’s reply that there is no law in Nigeria which says a Chairman of a Corporate Body is a necessary party to the proceedings against a corporate body. Learned Counsel therefore submitted that the argument of the Cross-Respondent in that regard is “anti Law”.
Learned Counsel further submitted that the Cross-Respondent misconceives the meaning and intention of S.15 (1),(2) & (3) of Edict No 3 of 1988 which he claimed is not an Enabling Law as it does not create any right or power. Learned Counsel submitted that the Cross-Respondent has based his arguments on disbelieved evidence. In essence learned Counsel submitted that the above Edict No 3 of 1988 did not make Ilorin Emirate Council an appointing authority for the office or stool of Bale or Oluo of Oke-Oyi as S.15 (1), (2) & (3) is a quasi taxation law which must be restrictively interpreted.
I have considered the submissions of learned counsel to the parties on this issue vis-a-vis the records and the prevailing law. In my view the poser here is principally whether Ilorin Emirate Council is an appointing authority and after clearing that whether the Emir is a party to the suit at the lower Court to warrant the commendation and entreaty showered on him by the Court.
Both Learned Counsel to the Cross-Appellant and the Cross-Respondent had addressed the 1st segment of this principal issue. Learned Counsel to the 2nd & 3rd Defendants/Respondents in his brief on their only issue which is similar to this issue also submitted on same at page 3 of their brief by way of summary that the 2nd Defendant/Respondent as an appointing authority was acting within the confines of its powers by appointing, turbaning and coronation of the Appellant as the Bale of Oke-Oyi which is under his jurisdiction.
I shall therefore take the 2nd & 3rd Respondents only issue along with Cross-Appellant’s Issue No 1. For ease of reference this issue goes thus:
“Whether the 2nd Defendant/Respondent the Ilorin Emirate Council acted Ultra vires its power by confirming the appointment, turbanning and. coronation of the Appellant as the Baale of Oke-Oyi following the recommendation made to it via Exh D4 by the Oke-Oyi kingmakers.” (This relates to ground 17 & 20 of the Appellant’s Additional Grounds of appeal).
The starting point of my consideration of the submissions by learned Counsel to the parties is the poser “whether 2nd Defendant/Respondent is an appointing authority?” All learned counsel to the parties referred to S .15 (1) (2) & (3) of Edict No 3 to argue for or against this poser. In order to be able to do justice to that submission it is necessary to examine the provision of S.15 of Edict No 3 to determine whether or not 2nd Defendant/Respondent is an appointing authority to a vacant Chieftaincy Stool within its area of authority more so when the learned trial judge held that 2nd Defendant Respondent not being an appointing authority in the area was wrong to have appointed the Appellant as the Baale or Olu of Oke-Oyi. For ease of reference . I reproduce hereunder the provision of S.15 (1) (2) (3) of Edict No 3 of 1988. They are as follows:
“Where the Military Governor or the appointing Authority has approved the appointment of a person as a Chief, any person who intends to challenge the validity of such appointment shall first deposit with the state Accountant General a non refundable sum of Ten thousand Naira.”
Section 15(2) provides:
“Where the Military Governor or the Appointing Authority has not approved any appointment to a vacant Chieftaincy Stool any aggrieved person who institute any court action in connection with the vacant Chieftaincy Stool and join the state Government or any of its agency as a party to any such court action shall first deposit with the state Accountant General a non refundable fee of Ten Thousand Naira.”
Section 15(3) provides
“In this section, “the appointment Authority shall include the traditional Council having jurisdiction in the area concerned.”
A cursory look at Edict No 5 of 1976 cited by the 2nd & 3rd Defendant/Respondent Counsel show that under the then Moro Local Government, Oke-Oyi was a village under the 2nd Defendant/Respondent, a fact which was undisputed before the trial Court. Thus by Section 15(1), (2) & (3) of the Edict No.3 of 1988, the 2nd Defendant/Respondent as a traditional Council having jurisdiction in the area concerned, is an appointing Authority to a vacant Chieftaincy Stool within its area of jurisdiction which encompasses Oke-Oyi is an appointing authority for Oke-Oyi. Consequently, from the evidence before the trial Court that Exh D4 was duly written and signed by the Oke-Oyi kingmakers after their deliberations, recommendations and election were passed to the 2nd Defendant/Respondent for appointment, turbanning and coronation of 1st Defendant/Respondent which were the roles lawfully/assigned to it by the law and I so hold. See S.78 of the Local Government Law of Kwara State, AMUDA V. ADELODUN (1997) 5 NWLR (Pt 506) 480 SC. This first leg of the 1st issue in the Cross-Appellant’s brief which approximates to the only issue of the 2nd & 3rd Defendant is accordingly resolved in favour of the 1st Defendant/Appellant.
On the second leg of the 1st issue dealing with the propriety of the commendation or entreaty made by the learned trial Judge, when neither side sought for it and the Emir is not a party to the proceedings, I agree with both learned Counsel to the parties on the principle of the law on this sub-issue cited by them that it is trite that a court is not competent to give a party what he does not seek for. Be that as it may it is necessary to find out whether this entreaty added or removed will affect the judgment. To settle this poser it is necessary to examine the said commendation or entreaty on the Emir contained in the last paragraph of the judgment on page 113 of record.
It goes thus:
“One sincerely hopes that irrespective of their creed, the philosopher king His Royal Highness the richly endowed jurist of impeccable record, profound learning, unique exposure and sagacity would be favourably disposed to viewing with fatherly love all the indigenes of Oke-Oyi as his children and the Emir as their loving/royal father will pay due regard to his children’s principled stand sensitivities on major issues affecting them in the much needed effort to restore normalcy, promote peace, harmony concord and tolerance in that troubled community within the Ilorin Emirate.”
I have gone through the above commendation and entreaty of the learned judge and I agree that in law and having regards to the fact that the Emir was not a party to the suit at the lower Court the learned trial Judge was not competent to make such a statement. On the other hand I hold that with or without this statement of commendation or entreaty the judgment would still remain in principle as it is. In sum the whole statement of commendation/Entreaty becomes an academic exercise rather than an order. The Court has in several decisions of the Apex Court been advised not to render an advisory opinion nor deal with a matter which is speculative and academic as the Court is entitled to do with life issues. It is for this reason that I will leave this issue undecided. This is particularly based on the recent decision of the Supreme Court in LAWANI ALLI & ANOR V CHIEF GBADAMOSI ABASI ALESHINLOYE (2000) 6 NWLR (Part 660) 177 p.213 para C where the court held per IGUH JSC thus:
The law is firmly settled that where a question before the Court is entirely academic, speculative or hypothetical, the appellate Court in accordance with the well established principle of this Court must decline to decide the point. See NKWOCHA V GOVERNOR OF ANANMBRA STATE (1984) 6 SC 362, (1984) 1 SCNLR 634; GOVERNOR OF KADUNA STATE V DADA (1986) 4 NWLR (Pt 38); RICHARD EZEANYA & ORS V GABRIEL OKEKE & ORS (1995) 4 NWLR (Pt 388) 142.
In the light of the foregoing authorities, I will therefore decline to resolve this issue in favour of any of the parties. What is more, the resolution of Issue No 1 in the Cross appeal as highlighted above has nothing to do with the substantive appeal. I want to briefly deal with issues 4 & 5 touching on the conduct of the Plaintiff in seeking a declaratory relief in this case as well as whether the approach of the learned trial Judge in this case was proper.
On both issues, learned Counsel to the 1st Defendant/Appellant by way of summary on page 17 paragraph 10.01 (6) & (7) of the 1st Defendant/Appellant’s brief submitted that the conduct of the Plaintiff in seeking a declaratory relief in this case is unconscionable, the matter having been submitted to a panel before whom he has also appeared. Learned counsel further submitted that the judge’s approach in this case is wrong as he had dealt with and destroyed 1st Defendant’s case before considering the Plaintiff’s case. By way of reply learned Counsel to the Plaintiff/Respondent/Cross Appellant at page 6 of the Plaintiff/Respondent’s brief submitted that the submission of the learned Counsel to the 1st Defendant/Appellant are totally misconceived as there was no finding of the learned trial judge which was not supported by credible evidence. Learned Counsel further submitted that the attack on the approach of the learned trial Judge is most unjustified as the learned judge considered all the materials before him as well as all prior judicial decisions on the subject. He did justice to every piece of evidence placed before him. I have considered the submissions of both learned Counsel to the parties on these two issues vis-a-vis the records and the prevailing law. It is clear from the records that both parties in this Suit attended and gave evidence before the panel set up by the 2nd Defendant/Respondent and it was the Plaintiff’s disagreement with the outcome of the panel that led to the present suit. I hold that it is unconscionable for/the Plaintiff to approach the Court for adjudication on the same matter. It is in my view equally wrong for the Court to have granted a relief on it in view of these materials. See OHAERI V AKABEZE (1992) 2 NWLR (Pt 220) 1 pp. 23-24.
On the approach of the learned trial judge, it is trite that a Court must consider the proof of the case by the Plaintiff in a Chieftaincy matter before considering the case of the Defendant and not other wise. See JOKONOLA V MIL.GOV. OYO STATE (1996) 5 NWLR (Pt 446) 1 SC; FEDLATTAH V AREWA LTD (1997) 8 NWLR (Pt 518) 546 SC; OTUO V NTEOGWUILE (1996) 4 NWLR (Pt.440) 56 CA.
In sum issues 4 & 5 are resolved in favour of the 1st Defendant/Appellant.
Having disposed of the principal issues by the 1st Defendant/Appellant the 2nd & 3rd Defendant/Appellants as well as the Plaintiff/Respondent/Cross-Appellant we are only left with the question of costs whether the award of N12, 000.00 as Costs was not excessive and punitive which is the last issue on the Appellant list. On this, learned counsel to the 1st Defendant/Appellant on pages 16 and 17 of the 1st defendant/appellant’s brief submitted that the award of costs in the instant case is not based on any recognized principle such as out of pocket expenses coupled with number of appearances. Learned counsel contented that from the records, the out of pocket expenses of the plaintiff came to N67.00 only as per the endorsement on the processes filed in writ of summons, the statement of claims and the Reply to the statement of defence. Learned counsel also contended that the learned trial judge took into consideration the non refundable deposit of N10, 000.00 which the Plaintiff paid to enable him institute the action and which as its name sounds is not refundable. Learned Counsel submitted that the learned trial judge was in error to have taken this into consideration. Learned trial judge was in error to have taken this into consideration. Learned counsel argued that since the learned trial judge failed to give reason for the award other than that peace is required in Oke-Oyi should be set aside. Learned Counsel submitted that even though a cost follows the event and it is at the discretion of the Court this case requires that no order be made as to Costs. Learned Counsel cited in support the cases of DURU V NWOSU (1989) 4 NWLR (Pt.113) 24 P.35; UBN V NWAOKOLO (1995) 6 NWLR (Pt 400) 127.
By way of reply, learned Counsel to the Plaintiff/Cross-Appellant at page 6 of the Respondent/Cross-Appellant’s brief submitted that the N10,000.00 non-refundable deposits was recoverable under Order 53 Rule 7 of the High Court (Civil Procedure) Rules 1989 as a necessary expense that the Plaintiff had to incur before he could be granted access to Court. Learned Counsel therefore submitted that the award of N12,000.00 costs in favour of plaintiff was reasonable and purely correct in the circumstance of this case.
I have considered the submission of both learned Counsel to the parties on this issue vis-a-vis the records and the prevailing law. Learned trial judge stated that peace is required in Oke-Oyi. If this statement is followed by the learned trial judge he would discover that this is the/basic reason why nominal or no cost is usually awarded in Chieftaincy matters in order to activate peace after the bitterness created by Chieftaincy disputes, at least to promote reconciliation.
In the instant case, from the records, the out of pocket expenses of the Plaintiff was N67. The parties on the whole made seven appearances before the learned trial judge. As highlighted supra, the suit is a Chieftaincy dispute crying for reconciliation among the parties. In consequence, I hold that the award of N12, 500.00 to the Plaintiff/cross-Appellant/ is excessive and cannot be Justified. Consequently, I order that the parties should bear their expenses.
In sum, since the issues formulated by the 1st Defendant/Appellant, the 2nd & 3rd Defendant/Respondents and the Cross-Appellants which should be treated by the Court are all resolved in favour of the 1st Defendant/Appellant, this appeal succeeds and it is allowed. The Cross-appeal fails and it is dismissed. Consequently, the judgment of Gbadeyan J in suit No.KWS 185/94 delivered on 24th November, 1995 is hereby set aside. I make no order as to costs.
Other Citations: 2002)LCN/1169(CA)
