Alhaji Jimoh Arowolo V. Jimoh Oluwole Akapo & Ors (2002)

LawGlobal-Hub Lead Judgment Report

ONALAJA, J.C.A.

The plaintiff commenced this action by an ex-parte motion at the High Court of Ogun State Ota Judicial Division holden at Ota High Court wherein he sought and was granted leave to file the suit in a representative capacity for and on behalf of Adegun Atole Family against the 1st, 2nd and 3rd defendants. Consequential to the grant of the prayer to sue in a representative capacity, the plaintiff issued the writ for and on behalf of Adogun Atele Family against the 1st, 2nd and 3rd defendants who were served individually and personally. After services, the plaintiff and defendants exchanged pleadings which were delivered and amended. At the conclusion of trial pleadings were based on the amended statement of claim, 2nd further amended statement of defence for the 1st defendant and amended statement of the 3rd defendant. All the amended pleadings are referred to in this judgment as statement of claim. The statement of defences for the 1st, 2nd and 3rd defendants.

Adopting the rule in Lahan v. Lajoyetan (1972) 6 SC 190, (1972) 1 All NLR (Pt. 2) page 217, followed and adopted in Adebayo v. O.A. U.T.H.B. (2000) 9 NWLR (Pt. 673) 585 CA. Fasanya v. Adekoya (2000) 15 NWLR (Pt. 689) 22 CA, Oyewole v. Lasisi (2000) 14 NWLR (Pt. 687) 342 CA, A.-G., Edo State v. Jessica Trading Co. Ltd. (1999) 5 NWLR (Pt. 604) 500 CA, Ndigwe v.Nwude (1999) 11 NWLR (Pt. 626) 314 SC, Guda v. Kitta (1999) 12 NWLR (Pt. 629) 21 CA, Ecobank (Nig.) Plc. v. Gateway Hotels (Nig.) Ltd. (1999) 11 NWLR (Pt. 627) 397 CA, Onyero v. Nwadike (1996) 9 NWLR (Pt. 471) page 231 CA, J. Durojaiye Adetoro & 2 Ors. v. Ogo Oluwa Kitan Trading Co. Ltd. & Anor. (2002) 9 NWLR (Pt. 771) 157 CA, (2002) 9 WRN 149 CA, Nigeria Breweries Plc. v. Adetoun Oladeji (Nig.) Ltd. (2002) 15 NWLR (Pt. 791) 589, (2002) 18 WRN 87 CA, that the particulars of claims set out in the statement of claim supersede the particulars of claims in the writ of summons and must itself disclose a good cause of action. Therefore, the claims of the plaintiff are as averred in the concluding paragraph of the statement of claim with paragraph 43 as follows:-

“whereupon the plaintiff claims as per writ of summons.”

The claims of the plaintiff as endorsed in the writ of summons are set out in the judgment of the learned trial Judge at page 61 of the record of appeal as under:-

“a. DECLARATION that under the hereditary customs and traditions of Itele town in Ota, Ogun State, only the Adogun-Atele family comprising four ruling houses namely:- Imidawo ruling house, Ogunrombi ruling house, Osa ruling and Alagbeji Ruling House is eligible to hold the chieftaincy title of Oba of Itele first held by the plaintiff’s ancestor i.e. Adogun-Atele the founder of the town and which title is now classified as part II title under the Chief’s Law of Ogun State, 1978.

b. DECLARATION that the 1st defendant not being a descendant of Adogun-Atele within any of the four ruling houses is ineligible to hold the title of Oba of Itele.

bb. DECLARATION that Ado Odo/Ota Local Government was designated by an order to be the competent council for the Oba of Itele chieftaincy title and all acts of the council pertaining to the appointment without registered declaration and installation of the 1st defendant as Oba of Itele were illegal, null and void.

c. DECLARATION that the letter CHM.2/27/172 of 25th March, 1992 addressed to the Chairman of Ado-Odo/Ota Local Government by the 2nd defendant to process appointment papers in the Oba of Itele title and all steps taken pursuant thereto including selection, appointment, approval of appointment and installation of 1st defendant as Oba of Itele were illegal, null and void under sections 3, 4, 5, 6, 7 and 8 of the Chief’s Law Cap. 20, Laws of Ogun State, 1978 and have violated the customary hereditary rights of over one hundred years of the plaintiff’s family.

d. ORDER that the installation of the 1st defendant as the Oba of Itele carried out by the 2nd defendant on 29th August, 1992, the next day that previous suit No. HCT/25/92 was struck out, without a valid selection, appointment and approval and without holding the customary three months Ipebi ceremony was illegal, null and void.

e. INJUNCTION restraining the 1st defendant from occupying the stool of Oba of Itele and from exercising the powers or performing the duties attached to the chieftaincy title of Oba of Itele.

To support plaintiff’s case he pleaded and averred in some paragraphs of the statement of claim at pages 4 to 9 of the records of appeal as follows:-

1. The plaintiff is a farmer and lives at Aiyetoro, Itele, Ado-Odo/Ota Local Government, Ogun State.
2. The plaintiff is a descendant of Adogun-Atele the founder and first Oba of the Itele Town in Ota, Ogun

State.

3. The plaintiff has been authorised to bring this action to ensure that the hereditary rights of descendants of Adogun-Atele to the title of Oba of Itele are preserved and to stop the further violations of those rights. The minutes of the meeting of Adogun-Atele family o.f29th August, 1992 will be tendered.
4. Itele town is about six kilometres to Ota and was founded by Adogun-Atele some 300 years ago. He as

a hunter and blacksmith who came from Benin to found the town where he became the first Oba.

5. Adegun-Atele brought the following deities and Crown to Itele viz: (Ogun Agbede; (b) Ogun Alase; (c) Ogun Oko; (d) Orisa Owo; (e) Crown. The river in the town called River Owo was named after the deity called Orisa Owo.
6. Adogun-Atele had four children namely:- (i) Imidawo (ii) Orisa (Osa) (iii) Ogunrombi (iv) Alagbeji.
7. Imidawo begat Ladejo lsagboa, Owolabi and Ladejo begat Yenumi, Dada Ebiye and Adeyemi (later an Oba).
8. Orisa (Osa) begat Bale and Eigba. Eigba begat Eile-Ebe and Dada-Aya. Eile -Ebe begat Amusa and Kolawole, Dada-Aya begat Sadiku Ajoboye (later a Bale).
9. Ogunrombi begat Okoku, Ogungbemi and Onbo, Ogugbemi begat Oshio.
10. Alagbeji begat Aina-aka and Ekidau; Aina-aka begat Asade, Abere, Oyekan Taiwo and Alaba Aina, Ekidan begat Odebudo and Amosu.
11. The plaintiff states that the Obas who had reigned in succession in Itele Town since it was founded 300 years ago were as follows:-

(i) Adogun-Atele (the founder of the town)

(ii) Elewo (the junior brother of Adogun-Atele)

(iii) Amosu (grandchild of Adogun-Atele)

(iv) Bala (grandchild of Adogun-Atele) and son of Osa) Bala begat Alaba, Alaba begat Alimi Akpo who begat Jimoh Oluwole Akapo (the plaintiff who is about 80 years old.

(v) Adeyemi (grandchild of Adegun-Atele and son of Imidawo)

(vi) Oyekan (grandchild of Adegun-Atele) and son of Alagbaji).

12. Ogabi seized the throne by force after the death of Oyekan and he was expelled from the throne by Osiyo a grandchild of Adogun-Atele to Feru village near Itele where he died.
13. The plaintiff states that the following ruling houses had become established in Itele for over a period of more than two hundred years of the Obaship system namely:

(i) Imidawo ruling house (sometimes called Ijagona Ruling House).

Osa Ruling House (sometimes called Isuba Ruling House).

(iii) Ogunrombi ruling house (sometimes called Idotele ruling house).

(iv) Alagbeji ruling house (sometimes called Ipotobo/Ilogun ruling house).

14. The plaintiff states that there is no Olaforikan ruling house known under the customs and history of Itele and it is a violation of S. 4(4) of the Chiefs Law, Cap. 20, Laws of Ogun State for the 2nd defendant to have recognized such Olaforikan ruling house.
15. The plaintiff states that the 1st defendant is not a descendant and as such he or any member of his family is not eligible for consideration for appointment as Oba of Itele.

The plaintiff knows when the 1st defendant was born some 55 years to 60 years ago and states emphatically that he does not belong to the Adogun-Atele family.

16. The plaintiff states that 1st defendant’s grandfather’s name was Fagbemi Arowolo. Fagbemi was brought from Totowu near Igbesa to Itele by Ogbe the wife of Oworunmi (grandchild of Adogun-Atele who was the Bale of Itele at the time Fagbemi was brought). It was the Baleship system that was in vogue then. Ogbe the wife of Owofumi brought Fagbemi to Itele when his father Okulupo died. Fagbemi was given land to farm in Itele by Owofunmi the Bale and was paying ‘Ishakole’ annually.
17. The plaintiff states that the 1st defendant’s father was Abudu and he was not a relation of Owofunmi the Bale of Itele. There was no Obaship system in vogue at the time 1st defendant’s grandfather migrated from Totowu to Itele and Ogbe the wife of Owofunmi who brought him to Itele had no child for Owofunmi.
18. The plaintiff states that the following people became the Bale of Itele after the introduction of the Baleship system:-

(i) Owofunmi (grandchild of Ogunrombi who was a direct child of Adogun-Atele) died at about the age of 120 years.

(ii) Ajose (grandchild of Alagbeji who was a direct child of Adogun-Atele).

(iii) Sadiku Ajiboye (grandchild of Osa who was a direct child of Adogun-Atele).

19. The plaintiff states that Owofunmi grandchild of Ogunrombi belonged to the Ogunrombi ruling house

sometimes referred to as Idotele ruling house and the 1st defendant is not a descendant of Ogunrombi ruliung house. The name ‘Arowolo’ was a nick name given to Fagbemi by the housewives in the household of Owofunmi because he used to spend generously hence he was called Fagbemi Aroworolo.

20. The plaintiff states that after Sadiku Ajiboye as Bale of Itele, Chief Raufu Ilo who is not a descendant of Adogun-Atele was imposed by the Olota of Ota Oba T. T. Dada on Itele. The Adogun-Atelefamily protested by a letter dated 12th October, 1977 sent to the Olota of Ota by the family’s solicitor Mr. Adegoke Aibinu. The letter will be tendered. The said Chief Ilo hails from Maba-Odu quarters in Ota and since he does not belong to Adogun-Atele family, the shrines and paraphernalia of the Chieftaincy title of Bale were not released to him by the plaintiff and other descendants of Adegun Atele keeping the shrines.
21. Chief Raufu Ilo father’s name was Ilo-Aka. His grandfather’s name was Dada-Oro and he migrated from Ota to Itele. Dada-Oro was received in Itele by Apateko. Apateko himself was a guest of Asade who was the father of Ajose (later Bale of Itele) Dada-Oro was granted land for farming by Asade and he was paying Ishakole annually. Dada-Oro was not a descendant of Adogun-Atele.
22. The plaintiff heard the news that the 1st defendant forwarded a letter through his solicitor Chief R. O. A. Oriade dated 21st May, 1991 to the 2nd defendant’s predecessor in office. In the letter to which a sworn declaration was attached, the 1st defendant made many misrepresentations about the customs and traditions and ruling houses entitled to ascend the throne of Oba of Itele. The 1st defendant swore on Oath in the document that he has been appointed as Oba of Itele and prayed for the Governor’s approval. The 2nd defendant will be requested to produce the said letter dated 21st May, 1991 for tendering.
23. The 2nd defendant’s predecessor in office replied the 1st defendant’s solicitor letter of 21st May, 1991 by a letter Ref. CHM.2/27/129 dated 17th June, 1991. The 1st defendant will be requested to produce the letter for tendering.
24. The plaintiff instructed his solicitor to forward a letter to the 2nd defendant’s predecessor-in-office to inform him about the ruling houses entitled to ascend the throne of Oba of Itele and the customs pertaining to it and he did by.
25. The plaintiff expects that the following steps would be taken by the 2nd defendant once it has agreed to resuscitate the Obaship of Itele namely:-

(a) That an order designating the Ado-Odo/Ota Local Government would be published as required by law but this was not done.

(b) That the Ado-Odo/Ota Local Government would establish a committee of the council which would hold a public inquiry into the customs and traditions pertaining to the appointment of an Oba of Itele and later the inquiry would produce a declaration containing the number and identity of ruling houses and persons that may be eligible for the title declaration will be submitted to the 2nd defendant for approval and registration, but this was not done.

An example of registered declaration will be tendered.

(c) That a public notice will be issued by the designated Local Government to the ruling house but this was not done.

29. When the plaintiff did not see the procedure enumerated in paragraph 28(a)-(c) above adopted and was hearing rumours that the 2nd defendant has approved the 1st defendant’s appointment as Oba of Itele elect the plaintiff filed suit i. e. HCT/25/92 in Ota High Court.

A certified copy of the suit and the statement of claim will be tendered.

32. The letter No. CHM.2/27/172 of 25th March, 1992 will be tendered at the trial of this action.
33. The plaintiff states that the 2nd defendant proceeded to ensure wrongly that the 1st defendant was imposed as Oba of Itele without waiting for the outcome of suit HCT/25/92 which challenged the eligibility of the 1st defendant to the stool. The letter of 25th March, 1992 and the meeting of the officials of Ado-Odo/Ota Local Government with a non-existent ruling house confirmed the steps taken whilst the suit was pending. The letter of approval given during the pendency of the suit was not made public.
34. The plaintiff’s family was deprived of the right to make a protest against the purported appointment and approval as enshrined in S. 20 of the Chiefs Law because the approval was not made public by the 2nd defendant.
35. According to the customs of Itele, after the appointment of Oba of Itele, he will be led into the Ipebi House located at Isalu by the kingmakers and at Isalu Ipebi House, many rituals lasting three months will be performed and the Oba elect will not step out until the completion of the rituals. The rituals comprise sacrifices for the Oba’s Eden, sacrifices for (i) Ogun Alase, Ogun Oko, Ogun Agbede etc. The last sacrifice will be the Owo shrine brought from Benin by Adogun-Atele. The plaintiff is now in charge of the Owo shrine and he never made any such sacrifice for the 1st defendant because custom forbids it to be done for anyone who is not a descendant of Adogun-Atele. All past Obas in Itele performed the sacrifice because it was a mark of being Oba of Itele.
36. The 1st defendant did not perform any Ipebi ceremony as demanded by customs and traditions of Itele and he was installed on 29th August, 1992 the following day that suit No. HCT/25/92 was struck out.
37. The plaintiff will contend that the Chiefs Law, Cap. 20, Laws of 0gun State was not applied to the filling of the stool of Oba of Itele by the 2nd defendant and consequently the appointment, approval and installation of the 1st defendant as Oba of Itele was unlawful, illegal, malafide, and consequently null and void.
38. The plaintiff will contend that non-designation of Ado-Odo/Ota Local Government as the competent council in respect of the Oba of Itele Chieftaincy title by order in accordance with S. 3(b) of the Chiefs Law, Cap. 20, Laws of Ogun State, 1978 rendered its role in processing appointment attendance at non-existent ruling house meetings and forwarding certificate of nomination and appointment null and void and consequently rendered the appointment of the 1st defendant as the Oba of Itele null and void.
39. The plaintiff will also contend that all acts of the Ado-Odo/Ota Local Government in respect of the purported installation of the 1st defendant on 29th August, 1992 as the Oba of Itele were null and void.

(The Italicising are mine)

The first defendant averred in his statement of defence in some of the paragraphs as follows:-

2. The 1st defendant admits paragraphs 23, 33 and 36 of the amended statement of claim
3. The first defendant denies paragraphs 2, 3, 4, 5, 6, 7, 8, 9,10,11,12,13,14,15,16,17,18,19,20,21,22,27,

30,34,35,38,39,40,41,42, and 43 of the amended statement of claim.

4. The 1st defendant denies paragraphs 1, 24, 25, 26, 28, 31, 32 and 43 of the amended statement of claim and puts the plaintiff to the strictest proof thereof.
5. The plaintiff who is not a member of the Royal family in Itele or anywhere in Nigeria has distorted the history of Itele by pleading that his ancestor was one Adogun-Atele whereas there was no such name in the history of Itele, Ogun State, Nigeria.
6. The 1st defendant is Oba of Itele, Ado-Odo/Ota, Ogun State, Nigeria with effect from 29th August, 1992.
7. The 1st defendant is the descendant of Alagbeji who founded Itele land over three centuries ago. He was the 1st Oba of Itele.
8. Alagbeji, a prince migrated from Ile-Ife with his twins children called Olaforikanre and Aro to escape their being killed as it was a taboo at that time for any person in Ile-Ife to have twins. He settled at Itele as a blacksmith and fisherman. He came with his beaded Crown, Ogun Oba, Aale, and other deities.
9. Olaforikanre begat Ilogun, Idomo, Idotele and Isalu, Ilogun begat Ajiboye, and Oke and Omobose. Ajiboye was the father of Sadiku.
10. Itele has two ruling houses namely: Olaforikanre and Aro.
11. The 1st defendant is a member of Laforikanre otherwise known as Oloforikanre ruling house of Itele Ogun State, Nigeria with Chief Hassan Edun Arowolo as the head of Olaforikanre ruling house.
12. The seven Obas who reigned at Itele are Alagbeji, Olaforinkanre, Amosu, Amore, Olufela, Oyekan and Ogabi.
13. Ajose and Ajiboye of Itele before Chief Raufu Ilo was the Bale until the coronation of Alayeluwa Oba Jimoh Arowolo on the 29th day of August, 1992 as the Oba of Itele.
14. Jimoh Oluwole Akapo, the plaintiff him self was born at Itele town despite the fact that his grandfather, Mr. Osuro, was an Egun man who came from Imore village near Ojo town, Lagos State, Nigeria to Itele, Ogun State, Nigeria over a century ago.
15. The plaintiff was not correct when he instructed his counsel, A. Adenekan, Esq. of No.1 6, Oyinsola Close, Obantoko, Abeokuta, Ogun State Nigeria to write a letter dated 6th January, 1992 to inform the Ado-Odo/Ota Local Government that the four ruling houses in Itele were:

(1) Idotele family, (2) Ijagonna family, (3) Isunba family and, (4) Ipotobo/Ilogun family

32. The defendant states that the Aro of Itele is the traditional High Priest of the gods and goddess of Itele and paraphernalia pertaining to the Obaship of Itele including the Edan used at installation ceremonies.

(a) The 1st defendant states that Ilegbede begat Ogungbayi and Sangotolu. Ogungbayi begat Ogisanyi who begat Abadatu Oke(f) and Abereijo. Abadatu Oke begat Jinwh Aminu Ojubamire the present Aro of Itele.

(b) The 1st defendant states that Oduntan was the first Aro of Itele, other Aros were Ileola, Odu-Ebiye, Aminu Gbaiye Adekola the predecessor of Jimoh Am,inu Ojubamire the present Aro of Itele.

(c) The 1st defendant states that the Asalu family of Itele are the descendants of 1salu otherwise called Asalu, a child of Olaforikanre

33. The defendant also states that the original crown of Alagbeji the founder and 1st Oba of Itele has for all times been in the possession of his descendants i.e. the Olaforikanre and Aro ruling houses of Itele.
34. That it is contrary to the custom of Itele that a non Chief can be a High Priest or have anything to do with the propitiation of the shrines and other customary institutions of Itele.
35. The 1st defendant avers that he performed the Ipebi ceremony as required by the customs and traditions of Itele, Ogun State, Nigeria and that the procedure in the Chief Law, Cap. 20 of Ogun State of Nigeria, 1978 was applied before him, the 1st defendant was nominated, selected and installed the Oba Onitele of Itele on the 29th day of August, 1992.
36. There was no official Chieftaincy declaration for the Onitele of Itele, Ogun State, Nigeria before the 25th day of March, 1992 when the Ogun State executive council resuscitated the Obaship of Itele as the Onitele of Itele as confirmed in a letter of the same date and also made an order that (Pt. 2) of the Chiefs Law, Cap. 20 of Ogun State of Nigeria should be applied to Onitele of Itele as a recognised Chieftaincy.
37. The Ogun State Government Executive Council, under the Executive Governor Osoba, directed sometime in 1992 that the Ado-Odo/Ota Local Government as the competent council, should commence proceedings leading to the nomination, selection and appointment of a qualified candidate as the Oba Onitele of Itele, Ogun State, Nigeria.
38. The two ruling houses of Itele are Olaforikanre and Aro and the eight kingmakers of the land are:

(1) Oluwo of Itele, (2) Asaju, (3) Balogun, (4) Akogun, (5) Amuludun, (6) Alaagba, (7) Majeobaje and

(8) Ajana of Itele, Ogun State, Nigeria.

46. The secretary of the Ado-Odo/Ota Local Government in pursuance of the directive of the Ogun State Government, issued a public notice dated the 24th day of April, 1992 that the Laforikan otherwise called

Olaforinkanre ruling house of Itele should nominate a candidate for selection and installation as the Onitele of Itele.

47. The Olaforikanre Ruling House held a meeting on the 30th day of April, 1992 at ldotele compound, Itele, Ogun State in the presence of T. O. Abiola, Esq., the Secretary of Ado-Odo/Ota Local Government and B. Agbeyangi, Esq., the Assistance Executive Officer of the Local Government as observers when Mr. Ganiyu Dada who was seconded by Mr. Yinusa, nominated the 1st defendant as the candidate to be considered with other candidates for selection as the Oba elect of Itele, Ogun State, Nigeria. (The Italicising are mine)
48. The eight kingmakers met on the 6th day of May, 1992 and unanimously selected the 1st defendant as the Oba Onitele of Itele because no other candidate was nominated for consideration of the kingmakers.
49. The plaintiff, apart from writing petitions to raise objections about procedure that was followed in the nomination and selection of the 1st defendant as the Onitele of Itele, did not nominate any other person as a candidate and he was not presented as a candidate to be considered by the eight kingmakers of Itele before the 1st defendant was elected and installed on 29th August, 1992.
50. Chief Osoba, the Executive Governor of Ogun State approved the selection and appointment of the 1st defendant by the eight kingmakers as the Onitele of Itele before the 1st defendant was accordingly installed at the coronation of the 29th day of August, 1992.
51. WHEREOF, the 1st defendant avers that the action of the plaintiff is frivolous, vexatious, speculative and an abuse of the process of this honourable court and that it should be dismissed with substantial costs.

The 2nd defendant averred in some paragraphs of the statement of defence as follows:-

1. The 2nd defendant admits paragraphs 23, 33, and 36 of the statement of claim.
2. The 2nd defendant denies paragraphs 1,2,3,4,5,6, 7, 8,9, 10, 11,12, 13, 14, 15, 16, 17, 19,21, 26, 27, 28,

30,34,35,37,38,40,41,42, and 43 of the statement of claim and puts the plaintiff to the strictest proof thereof

3. The 2nd defendant avers that the Onitele of Itele is now a recognised Chieftaincy to which (Pt. 2) of the Chiefs Law, 1978 is applicable.
4. The 2nd defendant avers that on 27th of December, 1991 the Ogun State Executive Council approved the resuscitation of Obaship to Itele as Onitele of Itele.
5. On 23rd of March, 1992, the 2nd defendant confirmed the resuscitation of Obaship to Itele and directed that customary law should be applied in making appointment to the chieftaincy consequent upon which letter No. CHM/2/27/172 of 25th of March, 1992 was issued to the chairman of the 3rd defendant.
6. The 2nd defendant avers that the Onitele of Itele has no Chieftaincy declaration.
7. According to the Customary Law pertaining to Onitele of Itele Chieftaincy, there are two ruling houses entitled to produce candidates, in succession, to fill any vacancy in the Chieftaincy, namely Olaforinkanre also called Laforikan) and Aro.
8. The 2nd defendant avers that sequel to the resuscitation of Obaship in Itele, it became the turn of Laforikan ruling house to produce a candidate to fill the stool of Onitele.
9. With reference to paragraph 27 of the statement of claim the 2nd defendant avers that the Ogun State Government directed the secretary of Ado-Odo/Ota Local Government to supervise the appointment exercise conducted in 1992 to fill the then vacant stool of Onitele of Itele.
10. The 2nd defendant avers further that on 6th of May, 1992 the kingmakers of Itele met and also unanimously selected Jimoh Arowolo as Onitele.
11. The 2nd defendant avers that the holders of the following titles are the kings makers of Itele.

(a) Oluwo of Itele, (b) Asaju of Itele, (c) Balogun of Itele, (d) Akogun of Itele, (e) Amuludun of Itele, (f) Alaagba of Itele, (g) Majeobaje of Itele, (h) Ajana of Itele

15. The 2nd defendant avers that the Ogun State Executive Council approved the appointed Oba Jimoh Arowolo as the Onitele of Itele on 12th August, 1992.
16. With reference to paragraph 28 of the statement of claim, the 2nd defendant avers that all the necessary steps required by law were followed before the Ogun State Executive Council approved the appointment of Oba Jimoh Arowolo as the Onitele of Itele.
17. The 2nd defendant admits that letter No. CHM 12/27/172 of 25th March, 1992, referred to in paragraph 32 of the statement of claim, was issued to the chairman, Ado/Odo/Ota Local Government.
18. With reference to paragraph 39 of the statement of claim, the 2nd defendant admits only that the 1st defendant was installed as Onitele of Itele on 29th of August, 1992 but denies any other allegation of fact in the said paragraph.
19. The 2nd defendant shall contend at the trial of this suit that the appointment and installation of Ota Jimoh Arowolo as Onitele of Itele are valid in law.
20. The 2nd defendant shall rely on all public notices, certificate of nomination, minutes of meetings, letters and all other relevant documents in support of the averments contained herein at the trial of this suit.

(The Italicising are mine)

The statement of the 3rd defendant are at pages 18 to 20 of the record of appeal as it had a joint legal representation with 2nd defendant many of the averments are similar and repetitive where the paragraph is necessary for emphasis it shall be reproduced.

It is pertinent to state that plaintiff did not file replies to the statements of defences.

To establish his claims plaintiff testified as the 1st plaintiff’s witness very much in line with the averments in the statement of claim. He tendered the minutes of the meeting of ADOGUN ATELE FAMILY of 29th August, 1992 wherein he was mandated to institute the present action now on appeal in a representative capacity for himself and on behalf of SADOGUN ATELE FAMILY, the minutes was admitted in evidence and marked as exhibit A. Armed with exhibit ‘A’ he sought and was granted leave of the High Court as stated above to issue and commence the action in a representative action as stated above.

1st PW testified about his genealogy that his progenitor ADEGUN ATELE, a blacksmith and hunter migrated from Benin City to found and settle at ITELE town about 300 years ago as at the time he testified and became the OBA of ITELE town. From Benin City, he brought along a crown and six Ogun deities namely AGBEDE, OKO, ALASE, ORISA, OWO AND EDAN.

1st PW testified further that Adogun Atele had four children namely IMIDAWO, OSA (otherwise called (Orisa), OGUNROMBI and ALAGBEJI and these four constituted the ruling houses which had been established for a period of about 200 years as at the time he testified. He traced the family tree named the grand children of ADOGUN ATELE who reigned as Oba of Itele but ADOGUN ATELE was succeeded by his brother ELEWO WHO WAS succeeded by Adogun’s grand children AMOSU and OYEKAN. One BALE was the grandfather of 1st PW. The four ruling houses in ITELE are – ISUNBA (otherwise known as OSA) IJAGANNA, IPOTOBO (otherwise known as ALAGBEJI and IDOTELE established as stated above as at when he testified. 1st PW denied emphatically the existence in Itele why other ruling houses and rejected the existence under cross-examination of Olaforikan and ARO ruling houses being the twin children of OBA ALAGBEJI the ancestor of 1st defendant who was alleged to have migrated from ILE IFE whilst 1st PW and plaintiff’s progenitor hailed from Benin City to found ITELE. The traditional history revealed that OBASHIP ceased in ITELE and the people resorted to BALESHIP with OWOFUNMI from OGUNROMBI ruling house as the first Bale. SADIKU AJIBOYE a descendant of ADOGUN ATELE from ALAGBEJI’S ruling house who traced his lineage to AJOSE who succeeded OWOFUNMI as Bale. His family resisted vehemently the imposition of RAUFU ILO by the OLOTA of OTA. The chieftaincy remained a minor chieftaincy until through letter from the 2nd defendant dated 25th March, 1992 addressed to the 3rd defendant admitted as exhibit ‘M’ resuscitated Obaship to Itele because of its importance the content reads thus:-

“Our Ref. No.CHM.2/27/172 , Date 25th March, 1992 The Chairman, Ado-Odo/Ota Local Government, Ota.

Attention: Secretary to the Local Government: Resuscitation of Obaship to Itele

With reference to correspondence on the above subject, resting with your letter No. AOLG.377/Vol. 1/21

of 24th Feb., 1992, I am directed to inform you that the Executive Governor of Ogun State, Chief Olusegun Osoba has graciously approved:

(i) Resuscitation of Obaship to Itele as Onitele of Itele; and

(ii) That customary law be applied in making appointment to the chieftaincy.

2. You will please take steps to process appointment into the chieftaincy in line with the approval and forward the appointment papers together with the curriculum vitae for the selected candidate for further necessary action.
3. Thank you.

Sgd. …. Alhaji D. A. Sunmola FOR: Deputy Government.”

The plaintiff’s family was kept in the dark about the resuscitation of OBASHIP, until all the clandestine steps were blown open, with strong protests from plaintiffs family as soon as they got wind of it. 1st PW testified that his family swung into action to denounce the clandestine actions of 3rd defendant and 1st defendant. The unheeded protests made his family to institute actions at the High Court over the matter. That it was whilst praying for an injunction against the 1st, 2nd and 3rd defendants that 1st defendant marked as exhibit ‘M’ in his counter-affidavit, the letter marked exhibit ‘M’ in suit No. HCT/25/92. As 1st defendant continued to parade himself as OBA of Itele an injunction was prayed for in court to restrain the defendants. The motion was struck out the following day 1st defendant was installed by the other defendants as OBA of Itele hence the institution of the action now subject of appeal in this court. 1st PW testified that he was the custodian of all their deities and 1st defendant never performed the rituals at their Ipebi.

1st PW named the 7 kingmakers of Itele as Ajani, Odofin, Oluwo, Balogun, Osunbu, Asalu and not Akogun, Asaju, Amuludun and Majeobaje as they held no traditional titles.

1st PW was subjected to rigorous cross-examination by learned counsel for the 1st defendant and agreed that his honest father was neither nominated nor presented as a candidate for the Baleship or Obaship as each time in his lifetime there was vacancy it was not the turn of his ruling house to produce the Bale or Oba. He denied that he was a descendant of Imidawo and that Osuru whom he did not know was his grandfather. He rejected the suggestion that for a period of eighty years no member of his family was Bale or Oba of Itele contrary to the fact SADIKU AJIBOYE a descendant of ADOGUN ATELE was made Bale of Itele two years after Timothy Fedina was appointed the OLOTA of Ota, through Bale Ajose a descendant of ASADE of Alagbeji branch was immediate Bale before Sadiku Ajiboye.

He agreed that there was delay in filing the action challenging the installation of 1st defendant by members of his family because 1st defendant falsely charged criminal actions against them which led to their detentions in prisons in Ikeja and Ota and were later discharged and acquitted through criminal judicial processes.

As 2nd and 3rd defendants had joint legal representation 1st PW was cross-examined by their counsel. 1st PW stated that the last Bale was Raufu Ilo before 1st defendant was installed the Oba of Itele.

He stated apart from family meetings held about the installation of 1st defendant as soon as they were aware they protested to the 3rd defendant through their solicitor. 3rd defendant by letter of 4th October, 1991 to plaintiff’s letter to the then Military Governor of Ogun State dated 19th August, 1991 marked exhibit 4.

1st PW reiterated that Adogun Atele migrated from Benin to Itele and only knew of the chieftaincy committee in OTA, as shown in exhibit B.

2nd PW testified substantially in line with the evidence of 1st PW, he confirmed the genealogy of Adogun Atele family and confirmed that OWOFUNMI was the 1st Bale followed by Ajose and Sadiku Ajiboye, whom he grew to know as Bale before he was born as at when he died about 30 years ago when he testified. This was extracted during cross-examination by learned counsel for 2nd and 3rd defendants he rejected the suggestion that his family received authentic information about the procedure for the appointment and installation of OBA ITELE.

The 3rd PW confirmed the family tree as stated by 1st and 2nd PW, that the previous OBAS and BALE all hailed from Adogun Atele family. The exceptions were OGABI who forcibly made himself an Oba but was later expelled and Raufu Ilo imposed by Olota on them. Laforikanre and Aro were not ruling houses in Itele. 1st defendant was not from his ruling house whose ancestry was Oturupo a native of Totowu in Igbessa. 3rd PW was cross-examined by learned counsel for the defendants. As 4th PW was not cross-examined by learned counsel to the defendants, I called the summary of his evidence by the learned trial Judge from page 70 of the record of appeal as follows:

“Rasaki Gbadamosi, the Olori Agbopa and the Head of Isalu family gave evidence as the 4th PW. He testified that there are kingmakers of Itele, whom he named as Asalu, Ajana, Balogun Odofin, Osunba, Ajaguna and Oluwo. He testified that he is the Asalu and he is a kingmaker. He said that he belongs to the Alagbeji section of Adogun Atele family. He testified that Alagbeji was the father of Aina Aka. He testified that Ekidan begat Odebudo and Amosu. Although he could not specifically state how long ago he has been a kingmaker, he stated that he must have been a kingmaker for about sixty years now. He gave his age as about 80 years. He testified on the steps to be taken after the nomination of a successor in respect of the Ipebi rituals. He testified that as the Asalu, it is his duty to make sacrifices to the Ogun Agbede at the Ipebi. He testified that neither himself nor any other person took the first defendant to the Ipebi nor performed any other customary rites or sacrifices for the 1st defendant, who, according to him, is a stranger in Itele. He testified that the 1st defendant is not entitled to succeed to the throne of Itele. He was not cross-examined on his evidence by either counsel for the 1st defendant or counsel for the 2nd and 3rd defendants.”

The 5th PW testified as the last plaintiff’s witness. He confirmed the evidence about the genealogy of Adogun Atele like the other plaintiff’s previous witness. Many descendants were tendered mostly without objections through 5th PW. He identified exhibit 9 the record of proceedings and judgment in suit AB/35/68, Asorota v. Summonu & Ors. so also exhibit ‘F’ suit No. 17/43 Alimi Akapo & Owotolu v. D. D Olukogbon, the letter of protest by his family exhibit ‘H’. The plaintiff’s sworn declaration and 1st defendant’s solicitor marked as exhibits L-L. 5th PW also identified the letter of protest wrote by their deceased solicitor which was admitted as exhibit N.

Under cross-examination by learned counsel for 1st defendant, he stated that within the last sixty years SADIKU AJIBOYE a member of OSA ruling house of Adogun Atele family had ruled in Itele as Bale. When Raufu Ilo was imposed on Itele his family put up and nominated MOLIKI SALAMI from Alagbeji ruling house as the Bale to OLOTA who rejected him but imposed Raufu Ilo on the family.

5th PW stated further under cross-examination by learned counsel for 1st defendant that his family could not have presented or nominated a candidate when 1st defendant was presented for approval because the plaintiff and himself were in jail in respect of the complaints of the 1st defendant. Other members of the family could not take steps as many of them had several criminal charges against them initiated at the instance of 1st defendant. He denied any connection with Imore Village. He stated that his father with OWOTOLU prosecuted the action admitted as exhibit F on behalf of themselves and Itele people so also suit HCT/25/92 was instituted by his family on the strong rumour that the 1st defendant’s candidature as OBA of ITELE had been approved by 2nd defendant.

He concluded his testimony under cross-examination by the learned counsel for the 2nd and 3rd defendants that the appointment of the 1st defendant was done secretly as public notices were not published thereby his family was not informed despite their enquires and protests to the 2nd and 3rd defendants. He denied the existence of LAFORIKANRE FAMILY.

With this witness plaintiff concluded and closed his case.

The 1st defendant then opened his case by calling the 1st defence witness (1st DW) who testified that 1st defendant became the present Oba of Itele on 29th August, 1992 whilst the first Oba of Itele was one OGUNGBEMI ALAGBEJI who founded and came to Itele from Ile He, he begat two children namely twins OLAFORIKANRE and ARO, the defendant descended from Alagbeji there were 7 Obas of ITELE before 1st defendant. He named six of them as OLAFORINKANRE, ARO, AMOSU, AMORE, OLUFELA, OYEKAN and OGABI, who forced his way to the throne. After OGABI, Itele was ruled by Bales. The first was Ajose followed by SADIKU AJIBOYE, and Raufu Ilo. The plaintiff’s family does not belong to the two ruling houses in Itele as plaintiff hailed from Imore.

Under cross-examination by learned counsel for plaintiff, he agreed one Alhaji Sunmonu Bamiseyi was his uncle and that his uncle gave evidence in court in a previous suit in which he stated that the father of the defendant was not from Itele he tried to explain it that his uncle testified in that manner because of a dispute. He stated that 1st defendant was a descendant of Alagbeji. 1st DW testified at first that Idotele, Ilekeme and Ilegbede are names of compounds in another breathe later he stated that Idotele, Ilekeme and Ilegbede were names of human beings and changed again that they were only names of compound. In answer to further questions in cross-examination, he denied knowledge of land dispute between plaintiff and 1st defendant but later changed that he knew and was aware of the land in dispute between them but which was on behalf of Itele people.

He named the OBAS produced by Olaforikanre was Amore whilst Aro ruling house produced Amosu, Olufela and Oyekan. Ogabi did not belong to either of the two Ruling Houses. Also that Owofunmi was never Bale at Itele.

It was stated in 1st DW’s cross-examination that the appointment of the 1st defendant as the Oba was announced publicly in November, 1991. The announcement was by the kingmakers so also by the governor of Ogun State but would not know when the announcement was made.

He testified that throughout the period suit No. HCT/25/92 was pending in court 1st defendant was in Ipebi which he entered on 6th May, 1992 and left on 12th August, 1992. 1st defendant’s appointment had been approved before he entered the Ipebi. He rejected the suggestion that 2nd defendant approved the appointment only on 12th August, 1992.

1st defendant testified personally as a 2nd defence witness. He stated that OGUNGBEJI ALAGBEJI was the first person to settle in Itele having migrated there from Ile-Ife, some 300 years ago as at when 2nd DW testified. Alagbeji had a set of twins as children they were OLARIKANRE and ARO. He named the seven previous Oniteles before him being ALAGBEJI OLAFORIKANRE, AMOSU, AMOLE, OLUFELA, OYEKAN and OGABI. He traced his lineage to IDOTELE branch of OLAFORIKANRE ruling house, traced his genealogy from Idotele THROUGH IKUDORO, OMBOSE SUBERU and OMOYELE, Suberu begat Abudu Arowolo his own father. He confirmed that there are only two ruling houses of namely OLAFORIKANRE and ARO, with the former and Amore from his own ruling house. No member of the plaintiff’s family ruled as OBA or Bale in Itele. Plaintiff ancestry was through OSURO who was employed as the town crier of OBA ITELE, whilst plaintiff’s father was Alimi Akapo. He was aware of suit No. 17/43 between Alimi Akapo & Anor v. D. D. Olukogbon.

Under cross-examination by plaintiff’s learned counsel, he admitted he swore to a declaration before a magistrate he had been appointed OBA of Itele in exhibit ‘L’ which he identified as the declaration. On 30th April, 1992 his Ruling House nominated him following the request of the Local Government for nomination of candidate. As at 20th May, 1991 his ruling house had nominated him the 2nd defendant had not approved his nomination. Owofunmi was not the first Bale when Obaship ceased in Itele though Owofunmi attempted to make himself Bale which his family the Ruling House resisted. Even after learned counsel read pages 25 to 26 and 33 of exhibit ‘F’ to him he still maintained that Owufunmi was never a Bale as during his life time somebody else was made Bale of Itele and not him (Owofunmi). He denied that Kudoro was his grandfather and not Okulupo. He denied that his grandfather was not born at TOTOWU but at Idotele compound. When the testimony of his father was read to him in exhibit ‘G’ wherein his father was born at Totowu 1st defendant knew was that he was a native of Itele.

He maintained that there were only two ruling houses already mentioned by him and rejected flatly the suggestion that Imidawo Osa, Ogunrombi and Alagbeji were the real Ruling Houses and not the two mentioned by him. He denied that Ajose and Sadiku AJIBOYE were from Alegbeji and Osa ruling houses.

1st defendant denied he was the person referred to in suit AB/67/76. Between Chief Raufu Ilo and Ors v. Jimoh Akpo so also he denied knowledge of suit OTB/14CV/73 between Jimoh Akapo v. Ogidiolu and that he did not give evidence in the said case He was aware of suit HCT/25/92 Jimoh Akapo v. Jimoh Arowolo

(2) Chief Raufu Ilo and (3) Governor of Ogun State, that throughout the period application was made in HCT125/92 he was not present in court, he was at his 12 Simbi St., SOGUNLE resident. As at when the deponents swore on 22/7/92 to exhibit ‘E’ he was in Itele.

1st defendant tendered exhibit ‘O’ and ‘P’ as the documents concerning his appointment and approval. His appointment had already been approved before upgrading the Chieftaincy to (Pt. 11). He was persistent that Owofunmi was not accepted as Bale despite the deposition in paragraph 22 of exhibit ‘L’ to which he was a party.

1st defendant stated that his appointment was published in a gazette of Ogun State Government he could not remember the date.

1st defendant admitted that he was the 4th defendant in land dispute in HCT/7/89 between Oluwole Akapo and Anor. v. Odutala & 7 Ors. At first he testified he attended court on 18/5/92 and 4th June, 1992 as representative of Itele community he withdrew the statement that he could not remember when he appeared in court in that he had forgotten the dates when he appeared in court. His attention was drawn to the court proceedings he insisted that he could not remember attending the court on 18/5/92 and 4/6/92, the court proceedings was admitted and marked exhibit Q. He proceeded further to state he could not remember the date when he was at Ipebi but he insisted he was in Ipebi.

Under cross-examination of the learned counsel for 2nd and 3rd defendants he testified that he was unanimously nominated by LAFORIKANRE ruling house on 30th April, 1992 whilst all the kingmakers of Itele also unanimously selected 1st defendant as Onitele of Itele on 6th May, 1992. He concluded his evidence that the institution of OBASHIP of Itele was resuscitated in 1991 but before the reconciliation of Obaship Raufu ILO was the Bale.

The 3rd witness was nephew to 1st defendant by virtue of which he belonged as a member of OLAFORIKANRE ruling house which selected his uncle 1st defendant on 30th April, 1992 at a meeting of the family held for the selection of a candidate to fill the vacant stool of Onitele. Ganiyu Dada nominated by a motion that 1st defendant to fill the vacant stool which was seconded by him and unanimously supported after which the nomination was forwarded to the kingmakers.

Under cross-examination by learned counsel for the plaintiff he stated that his mother was a sister to 1st defendant but denied any knowledge that his mother and the 1st defendant were natives of TOTOWU or that his maternal grandfather Fagbemi Arowolo came to ITELE through Ogbe the wife of Owofunmi. Although he learnt that there had been eight Obas who had occupied the stool from the two ruling houses of Olaforikanre and Aro he did not know their names. 1st defendant’s name was forwarded to kingmakers which were namely Aro, Oluwo, Asaju, Akogun, Ajana, and others but could not state the date, the name was dispatched to the kingsmakers.

The 4th defence witness stated that he was Aro of Itele. As Aro, it was his duty to perform certain traditional rites. He was in-charge of all traditional shrines of Itele brought down by their ancestor Alagbeji. The dieties under his care are namely ALE ODUA, AJE, EDAN OBA, OGBONI, SANGO, EGUNGUN, OBALUAYE, EIGBA, AGEMO, ELEKU and ORO. Edan Oba, Ogun Oba and Oro deities were all within the Oba’s palace. He propitiated the original CROWN of ITELE. 4th DW tendered an object which he claimed was the original crown which was tendered as exhibit ‘R’ but was to be retained by witness but mutually agreed to be brought to court at each sitting of the court. The learned trial Judge stated that exhibit “R” was never brought to court and was not part of the evidence handed to the exhibits’ keeper of the Court of Appeal. He testified he was the fifth Aro of Itele. He furnished the names of his predecessors and concluded his evidence as to the rituals to be performed and observed at the Ipebi ceremony of the Oba elect.

Under cross-examination by learned counsel to the plaintiff he denied swearing to a counter affidavit wherein he described himself as MOJEOBAJE of Itele. When 4th DW was confronted with exhibit ‘E’ he admitted his signature as No.7, in the exhibit. He denied exhibit “R” was “IGE ORI” EGUNGUN (Headgear) of Egungun masquerade. When shown another crown by the plaintiff’s counsel as the original crown he denied it. He also denied that Owofunmi lived in Idotele or that he was Bale of Itele. He further asserted that it was the children of Alagbeji alone who could claim Obaship of Itele and not children of Adogun Atele who were Ipotobo.

He claimed he became Aro of Itele when Raufu ILO became Bale of Itele.

On question posed by the court, he admitted he joined others to swear to the counter affidavit exhibit “E”. He said it might be true or not be true that the same person would be the priest of ORO and Egungun but he insisted he was the chief priest in charge of the two deities. The learned trial Judge gave counsel of both parties liberty to examine or clarify from the witness as a result of the questions put by the court no questions were asked by counsel to the parties.

The 5th defence witness testified that 1st defendant was now the OBA of Itele from 29th August, 1996 and plaintiff was just a citizen of Itele. He confirmed the testimonies other witnesses of 1st defendant about his ancestry that the plaintiff hailed from Imore near Ojo Badagry through OSURO, who came to Itele over 100 years ago when he testified and Osuro was palace messenger and bell ringer. DW identified 4th DW as the Aro of Itele and chief priest and co-ordinator of all the deities in Itele. When 1st defendant was crowned the original Crown was left in custody of 1st defendant.

The plaintiff had no link with any of the traditional chieftaincies of Itele.

Under cross-examination by learned counsel for the plaintiff he admitted he was secretary of Itele progressive union between 1976 and 1982 in that capacity he gave evidence in suit No. AB/67/76 Chief Raufu Ilo & Drs. v. Jimoh Akapo & 3 Ors. and agreed that his mother was 1st defendant’s aunt, and also that Suberu Fagbemi Arowole was his maternal grandfather but denied the suggestion that he hailed from TOTOWU. He denied also that Adogun Atele, Elewo Bala and Adeyemi had been OBAS of Itele. He agreed that Ajose and Sadiku Ajiboye were Bales of Itele but not Owofunmi, even when exhibit ‘L’ was shown to him he maintained that Owofunmi was not a Bale of Itele. An Oba elect enters Ipebi immediately the kingmakers appointed the Oba whilst waiting for Government approval.

Under cross-examination by learned counsel to 2nd & 3rd defendants he stated his traditional title of Itele as Osunba. In answer to question from the court, he said Aro was not a kingmaker but an ABORE (Traditional Priest). From the question the learned counsel for 2nd & 3rd defendants and as a result of question from 5th DW that the present holder of Aro was not a kingmaker but he could be by any other title. With this witness 1st defendant concluded and closed his case.

The 6th defence witness testified on behalf of 2nd and 3rd defendants.

He testified being a civil servant in Ogun State Civil Service.

He held the position of principal personnel officer attached to chieftaincy matters in the then Military Administrator’s Office with schedule of processing of appointment of OBASHIP in OGUN STATE to which (Pt. II) of the Chief’s Law is applicable. The Onitele of Itele was a recognised, chief to which (Pt. II) of the Chief’s Law is applicable. On 27th December, 1991 the ONITELE of ITELE along with others were resuscitated and upgraded to (Pt. II) of Chief’s Law. The resuscitation was confirmed by the Executive Council on 23/3/92. After the confirmation the Secretary of Odo/Ota Local Government was notified about the resuscitation and directed to put into action the machinery for filling the stool by letter of 26/3/92 with request that he should apply the customary law attached to the chieftaincy of ONITELE of ITELE. He identified the letter as exhibit ‘M’ already reflected above in this judgment. As the chieftaincy had no existing declaration he testified that the customary law was to be applied.

On 19th May, 1992 from record the Secretary informed his department of actions taken when he forwarded the minutes of the ruling house to the kingmakers’ meeting, with certificate and observation notes. The letter of dispatch was admitted in evidence and marked exhibit ‘S’. After exhibit ‘S’ the Government processed the selection and gave approval on 12th August, 1992. He acknowledged in his office the receipts of exhibit ‘L’ and ‘H’ whilst exhibit ‘J’ emanated from his office.

Under cross-examination by learned counsel for the plaintiff he admitted that exhibit ‘M’ was not a public notice designating Ado/Odo/Ota Local Government as the competent council for the Onitele Chieftaincy though it was so designated. He stated that it was not compulsory that chieftaincy stool could be filled. He was not aware that the approval had been published in any gazette. Exhibit ‘P’ was dated 28/8/92 but made effective from 27th December, 1991.

From the cross-examination of the learned counsel for 1st defendant he tendered Ogun State legal notice No.2 of 1992 which designated Ado-Odo/Ota Local Government Council as the competent council of the Onitele Chieftaincy it was admitted in evidence and marked exhibit ‘T’.

With this witness 2nd and 3rd defendants concluded their cases and closed same.

Learned counsel to all the parties addressed the learned trial Judge extensively and copiously. The learned counsel to 2nd and 3rd defendants in his closing address formulated two issues for determination in the action thus:-

“(1) Whether having regard to the pleadings and evidence and record the plaintiff had established that the ruling house which had previously been producing OBAS and BALES are (1) IMIDANO (2) OSA (3) OGUNROMBI and (4) ALAGBEJI

(2) If the answer to the first issue was in the negative whether the plaintiff had the Locus Standi to challenge the appointment of the 1st defendant as the ONITELE of ITELE”.

After the addresses of learned counsel to the parties the learned trial Judge took time for consideration of the judgment which he delivered on the 16th day of June, 1995 recorded at page 61 to 95 of the record of appeal.

After a summary of the evidence and exhibits tendered in the case the learned trial Judge observed as follows:

at pages 81 and 82 of the record of appeal:-

“From the evidence adduced by the parties the following facts were agreed by all the parties namely that:-

(1) ITELE was founded some 300 years ago

(2) From the founding of Itele it was ruled by Obas and later by Bales.

(3) One Ogabi attempted to seize the throne and rule as an Oba but the attempt was resisted and he was expelled from Itele.

(4) Prior to the appointment which is now the subject-matter of this action the Onitele Chieftaincy had been a Pt. III Chieftaincy.

(5) Since it was resuscitated it was elevated to a Pt.II Chieftaincy by the Government of Ogun State.

(6) There is no registered declaration of the Onitele Chieftaincy.

The principal area of divergence in the case of the parties is in the traditional history of who was the founder of ITELE and the identity of the ruling houses. Another area of difference is the relationship of the plaintiff and those he represents on the one hand and that of the 1st defendant to the THRONE of ITELE. There is the other issue of regularity or otherwise of the process of appointment.”

The learned trial Judge reviewed the evidence of the parties and resolved them at pages 82, 83, 84, 85, 86, 87, 88 and 89 of the record of appeal with portions of the judgment wherein the learned trial Judge observed as follows:- “It is trite law that what the customary law is a question of fact to be established by evidence except where it is so notorious as to warrant the court taking judicial notice of it. Learned counsel for the 1st defendant has pointed to what he considered as inconsistencies in the pleadings and the evidence shown in exhibit H1 in respect of the names of the Ruling Houses”.

“Exhibit ‘L’ is the declaration sworn to by those persons who described themselves as “kingmakers” members of “The Council of Chief’, Itele and made between them and the 1st defendant which was presented to the 2nd defendant when they were seeking the resuscitation of the Obaship of Itele. The said paragraph stated as follows:

“22. That the people appointed in succession as the Bale of Itele in the 20th century Owofunmi, Ajose, Ajiboye and chief Raufu Ilo who is the present and officially recognised Bale of Itele.”

This categorical assertion was shown to the 1st defendant and 5th defendant witnesses under cross-examination but they still denied that Owofunmi was ever a Bale of Itele. There is no explanation from them as how they have included his name as Bale in paragraph 22. I can only describe the denial as mean and mischievous. That denial in my view show that the 1st defendant and his witnesses are either confused about their traditional history or are desperately seeking to deny any link between the plaintiff and his people and Onitele title. The 1st defendant and his witnesses have attempted to relegate the relationship to the plaintiff of Itele to that of the grandchild of a stranger to Itele. They have all acknowledged that the father of the plaintiff together with one Owotolu were the plaintiffs in suit No. 17/43 which involved a litigation over the entire Itele land and which were prosecuted by them as representatives of Itele community.

It is significant that the 1st defendant even in his pleadings admitted that the plaintiff’s father prosecuted that action as a representative of Itele people. It is not usually in Yoruba land that members of community

would abdicate the defence or protection of their land to stranger especially by a court action which he may use as a point of reference in future. In my view that admission by them reinforced the claim of the plaintiff that Itele town was founded by his ancestor Adogun Atele. Indeed the 1st defendant who has denied any connection between the plaintiff and Itele in answer to a question under cross-examination said as follows:

‘In fact both the plaintiff and myself have sold large portions of the land of Itele and we have both signed the documents of sale jointly as vendors.’

The 1st defendant has denied both in his pleadings and in his evidence and the evidence of his witnesses that his grandfather was born at Totowu but when he was confronted with the evidence of his father in exhibit G at page 6 as to the place of birth of his grandfather, he prevaricated and said:

‘I have heard what you read as the evidence of my father as to the place of birth of his own father, I now say that I do not know whether or not my father was born at Totowu, all I know is that I am a native of Itele.’

The 1st defendant does not strike me as a person who has regard for the truth. There were more instances of his prevarication even on matters which are not of much relevance to the validity of his appointment. For example, he was asked questions on date when he attended the court in a land suit when he was suppose to be at Ipebi, he admitted attending the court on 18/5/92 and 4/6/92 but he immediately said he had forgotten the dates when he attended the court even when he was shown the proceedings in which he was recorded as present as the 4th defendant, he still said that he did not remember attending the court on those days. (The Italicising are mine)

The issue of who the kingmakers are was raised by the 1st defendant. I think it is for him to prove that. The 4th PW witnesses Rasaki Gbadamosi who described himself as the Asalu from Alagbeji ruling house, gave evidence that there are seven kingmakers namely Asalu, Ajama, Balogun, Odofin, Osunba, Ajaguna and Oluwo.

That evidence agrees with the evidence of the 1st PW.

If by the pleadings in paragraph 45 the 1st defendant seeks to establish that the kingmakers named form part of the customary law concerning the Onitele chieftaincy, I have no hesitation in saying that when all the evidence before me on that issue is reviewed that part of the 1st defendant’s traditional evidence is as confusing as it is inconsistent. In paragraph 45 of his 2nd further amended statement of defence, the names of eight persons were stated as kingmakers. In exhibit L it named 5 persons as the kingmakers of Itele. In exhibit ‘S’, nine persons were named as the kingmakers by 3rd defendant. The 3rd DW could only give the names of five of the kingmakers. The 4th defendant who described himself as a kingmaker in exhibit ‘L’ gave such evidence at the trial. Infact, the 5th DW said that the 4th defendant by virtue of his title of Aro is not a kingmaker. I shall have more to say about this inconsistency in number of kingmakers later.

Applying the principles enunciated in the two recited cases on the evaluation of traditional evidence and after a sober and calm consideration of the evidence offered by the parties especially in respect of events in recent years such as the succession of the Baleship of Itele by descendants of Adogun Atele and having regard to the admission of the 1st defendant in exhibit ‘L’ that Owofunmi was the first Bale of Itele, and the fact the plaintiff has traced his ancestry to one of the children of Adogun Atele having regard to the evidence of the plaintiff and his witnesses that Raufu Ilo, who was put up by the 1st defendant as the last Bale of Itele from his own ancestor, Alagbeji before became an Oba, was forced upon the people of Itele which evidence has not been challenged nor contradicted. I have come to the conclusion that traditional evidence of the plaintiff is more probable, concise and consistent. The first issue is therefore resolved in favour of the plaintiff. The resolution of that issue in favour of the plaintiff makes it unnecessary for me to consider the second issue raised by the 2nd and 3rd defendant’s counsel as the issue was predicated on the question of whether the plaintiff has sufficiently established any link with the Onitele Chieftaincy through Adogun Atele.

“I therefore hold that the plaintiff and those he represents are entitled to the first declaration sought in their claim. It follows from thefirst declaration which I have granted that the 1st defendant who by his pleading and evidence had denied any link or blood relationship with the Adogun Atele family cannot claim entitlement to the throne of Itele through the Adogun Atele family. He has not, by his evidence, shown that Alegbeji was the first Oba of Itele.”

Finally, at pages 94 and 95 of the record of appeal the learned trial Judge concluded his judgment as follows:-

“Having regard to the evidence before me and after putting the totality of the evidence adduced by both sides on an imaginary scale I am satisfied that the probative value of the evidence adduced by the plaintiff

and his witnesses is heavier in favour of the plaintiff and on the balance of probabilities, the plaintiff has

proved his case. it is therefore the judgment of this court that the plaintiff’s claim partly succeeds and I therefore:-

(a) Declare that under the hereditary customs and traditions of Itele town, Ogun State only the Adogun-Atele family comprising Imidawo, Ogunronbi, Osa and Alagbeji ruling houses are eligible to hold the chieftaincy title of the Oba of Itele which title is now classified as part 2 chieftaincy under the Chief’s Law, Cap. 20, Laws of Ogun State.

(b) Declare that the defendant not being a descendant of Adogun-Atele or belonging to any of the said ruling houses is not entitled to hold the title of Oba of Itele.

(c) Declare that the letter CHM 2/27/172 of 25th March, 1992 directing the 3rd defendant to process the appointment to fill the vacant stool of Oba of Itele and all steps taken pursuant thereto including the selection, appointment, approval and installation of the 1st defendant as Oba of Itele is null and void.

(d) Dismiss the plaintiff’s claim in (bb) in so far as it affects the none designation of the 3rd defendant as a competent council.

(e) Dismiss claim (d) of the plaintiff’s claim in so far it concerns non-observance of the Ipebi ceremony

but allow the claim in respect of other matters contained therein and,

(f) It is ORDERED and DIRECTED that 1st defendant be restrained and an injunction is hereby granted restraining him from occupying the stool of Oba of Itele and from exercising the powers and or performing the duties appertaining thereto.”

Dissatisfied with the above judgment 1st defendant henceforth referred to in this judgment as appellant. With the leave of court, appellant sought and was granted leave to further amend his notice of appeal at page 96 to 99 of the record of appeal.

Appellant caused the further amended notice of appeal to be served on the plaintiff now called or referred to as the 1st (first) respondent in this judgment.

Similarly, appellant caused to be served on 2nd and 3rd defendants are from henceforth referred to in this judgment as the 2nd and 3rd respondents respectively.

In the further amended notice of appeal, appellant formulated and raised in its paragraph 3, SEVEN GROUNDS OF APPEAL and in accordance with the Court of Appeal Rules, 2002. Appellant supplied and furnished the particulars. After service of the further amended notice of appeal on the respondents in accordance with the said Court of Appeal Rules, 2002 based on the said practice and rules of this court. Appellant filed his brief of argument on 25th July, 2001 which was deemed to be validly filed and served on 23rd October, 2001.

Based upon the rules and practices of this court that the issues in appellant’s brief of argument must be based and correlate with the grounds of appeal. Appellant distilled from the grounds of appeal the under mentioned issues as arising for determination in this appeal:-

At page 10 paragraph 3.0 appellant’s brief of argument stated thus:-

“3.0 Issues for determination:

The appellant submits that the issues for determination in this appeal could be set out as follows:-

1. Whether the plaintiff had the necessary locus standi to bring the action in the court below challenging the 1st defendant’s appointment as Oba of Itele?;
2. Whether the learned trial Judge was right in holding that the plaintiff had successfully established that there were only four –

(4) Ruling Houses (the descendants of Adogun-Atele) under the hereditary customs and traditions of ITELE town that are eligible to hold the chieftaincy title of Onitele of Itele and that the 1st defendant was not such a descendant and/or entitled thereto?.

3. Whether the learned trial Judge was right in his application of sections 35(1), (2) and (3) of Chiefs Law, Cap. 20, Laws Ogun State in holding that the nomination, selection and appointment of the 1st defendant was irregular, null and void?.”

Appellant served his brief of arguments on the 1st, 2nd and 3rd respondents. 1st respondent with leave of court filed 1st respondent’s brief of argument in this court on 1st March, 2002. In accordance with the rules of brief writing of this court, that like appellant’s issues for determination must be based on the grounds of appeal the same rule applies to a respondent. In compliance, 1st respondent at page 5 of his brief of argument distilled from the grounds of appeal the issues for determination as follows:-

“Issues for determination:

A. Whether the plaintiff and his witnesses proved the claims before the lower court by preponderance of oral and documentary evidence?.

– Ground 1,2, & 3.

B. Whether the plaintiff’s locus as a member of Adogun-Atele family did not entitle him to file the action on behalf of the family and whether it was not proved that the 1st defendant/appellant is a stranger in Itele and a non-member of Adogun Atele family that is not entitled to ascend the throne of Onitele of Itele?. – Grounds 4 & 5.

C. Whether the lower court was not right in holding that non-compliance with S. 35 of the Chief Law rendered the nomination, appointment and approval of the 1st defendant/appellant as Onitele of Itele as null and void?. -Ground 6

D. Whether the plaintiff/respondent’s case was not based on Ss. 3,4,5,6,7,8, and 35(3)(a) of the Chiefs Law as revealed by the amended statement of claim and the evidence thereon rather than exclusively on Ss. 3,4,5,6,7, and 8 of the Chiefs Law as argued in the 1st defendant/appellant’s brief?. -Ground 7.

2nd and 3rd respondents were served with appellant’s brief of argument, they have not filed 2nd and 3rd respondents’ brief. Applying Order 6 rule 10, Court of Appeal Rules, 2002, the 2nd and 3rd respondents for failure to file respondents’ briefs of argument were automatically not heard in oral argument as no leave of court was sought in this court in any event the real gladiators involved in this appeal are appellant and 1st respondent.

Upon the matter coming up for argument on appeal both the learned counsel for appellant and respondent relied and adopted appellant’s brief of argument and 1st respondent’s brief of argument.

After careful consideration of appellant’s brief of argument and 1st respondent’s brief of argument, I adopt the issues raised by appellant as more germane for the issues in this appeal. This adoption is without prejudice that 1st respondent’s issues shall be considered along in this appeal.

Issue 1 in appellant’s brief of argument raised the issue whether the 1st respondent had the locus standi to bring the action whereby he challenged the nullification by declaring the appointment, and selection of the 1st defendant/appellant as OBA OF ITELE. Issue 1 in appellant’s brief is similar to issue B raised in 1st respondent’s brief of argument as to his Locus Standi to institute this action in a representative capacity to challenge the appointment of the appellant as OBA OF ITELE not being a member of Adogun Atele family with the four ruling houses claimed by 1st respondent as the authentic and legitimate ruling houses entitled to produce the OBA OF ITELE.

It is trite law that once there is a challenge to the locus standi of plaintiff under our adversarial system of jurisprudence it must be considered first before taking any other step as locus standi goes to the jurisdiction and competency of the proceedings being an unquestionably a threshold issue as to whether competent parties are before the court Madukolu v. Nkemdilim (1962) 2 SCNLR 341, Chief Boniface Amadi Ogbuehi & 3 Ors v. The Governor of Imo State & 3 Ors. (1995) 9 NWLR (pt. 417) 53, CA, Oba Oyewunmi Ajagungbade III & 2 Ors. v. Gabriel Afolabi Laniyi & 2 Ors. (1999) 13 NWLR (Pt. 633) 92, CA Adebayo Sosanya v. Engineer Adebayo Onadeko & 5 Ors. (2000) 11 NWLR (Pt. 677) 34 at 58 CA, Boni Guda & 2 Ors. v. Jumbo Kitta (1999) 12 NWLR (Pt. 629) 21 at 48 CA, Alhaji Abudu W. Akibu & 2 Ors. (for themselves and on behalf of the Dosunmu family) v. Alhaja Munirat Oduntan & 6 Ors. (2000) 13 NWLR (Pt. 685) 446 at 467,481 SC, Josiah Kayode Owodunmi v. Registered Trustees of Celestial Church of Christ & 3 Ors. (2000) 10 NWLR (Pt. 675) 315 at 338,357, SC, Elendu v. Ekwoaba (1995) 3 NWLR (Pt. 386) 704 at 737, 739 and 750, 751 CA, confirmed and approved in Elendu v. Ekwoaba (1998) 12 NWLR (Pt. 578) 320 at 331,332 SC.

What is locus standi is not easy to define but succinctly put locus standi or standing to sue is the legal right of a party to an action to be heard in a litigation before a court of law or tribunal.

The term entails the legal capacity of instituting, initiating or commencing an action in a competent court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever. In other words, locus standi is the right of appearance in a court of justice or before a legislative body on a given question. Adesanya v. President Federal Republic of Nigeria (1981) 2 NCLR 358. In addition the person must be able to show that his civil rights and obligations have been or are in danger of being infringed. Thus, the fact that a person may not succeed in an action does not have anything to do with whether or not he has standing to bring the action Ogbuehi v. Governor of Imo State (supra), Guda v. Kuta (supra).

The guiding principle on the right of a plaintiff to sue in a chieftaincy contest was laid down in the locus classicus case of M. A. Eleso v. The Government of Ogun State & 4 Ors. (1990) 2 NWLR (Pt. 133) page 420 at page 444 wherein the Supreme Court held:-

“(9) The right of a plaintiff to sue in a chieftaincy contest may arise in two different ways, viz:-

(a) the plaintiff may by his statement of claim and evidence show that the right that is being asserted is that of his family by reason of, say, their hereditary interest. In this type of case, it is the family, usually through their representative, who can bring the action on the premise that it is the civil right of the family that has been pleaded.

(b) The plaintiff may assert his own right to the chieftaincy stool. What is required in such a case, is that his statements of claim and evidence – if evidence has been called – should show the nature of his interest and his entitlement of the stool. In such a case, he has locus standi, by virtue of section 6(6)(b) of the 1979 Constitution.

(Momoh v. Olotu (1970) 1 All NLR 117 at 123, Senator Adesanya v. President of Nigeria (1981) 2 NCLR 358, (1981) 1 All NLR 1; Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669 referred to) applied in Ogbuehi v. Govt., Imo State (supra), Daramola v. A. -G., Ondo State (2000) 7 NWLR (Pt. 665) page 440 CA, Owodunni v. Reg. Trustees of CCC (2000) 10 NWLR (Pt. 675) 315 SC. Ajagungbade III v. Laniyi (1999) 13 NWLR (Pt. 633) 92 CA”

The acid test for determining the locus standi was stated in A.G., Kaduna State v. Hassan (1985) 2 NWLR (Pt. 8) page 483 SC “There are two tests used in determining the locus standi of a person:-

(a) The action must be justiciable and (b) There must be a dispute between the parties.”

Which are determinable only from the writ of summons and statement of claim alone. The statement of defence is irrelevant when considering the issue of locus standi based upon the principle of the rule of pleadings that a statement of claim will on the face of it show whether the plaintiff has or lack sufficient legal interest to grant him the locus standi.

Though not raised by the parties the manner of reference in the statement of claim by 1st respondent that whereof he claims as per the writ of summons” does not find favour in the Supreme Court and this court as decided in the case of M. A. Enigbokan v. American International Insurance Co. Nig. Ltd. (1994) 6 NWLR (Pt. 348) 1 at 19 SC applied in Hamza Lawal & Anor. v. Kafaru Oke & 4 Ors. (2001) 7 NWLR (Pt. 711) 88 at 107, 110 CA that- “The methodology whereby at the conclusion of the statement of claim the plaintiff therefore claims as per writ of summons” is a lazy way of pleading, inelegant and should be discouraged, in my understanding is a procedural irregularity and does not amount to substantial miscarriage of justice that would ordinarily vitiate the proceedings.”

The appellant filed, delivered and amended his statement of defence several times even the last amendment was close to the end of trial before addresses, so appellant was not misled or suffered injury as to the conclusion of reference in the statement of claim that 1st respondent claimed as per the writ of summons.

It is trite law that both the court and the parties are bound by the pleadings.

At page 61 of the record of appeal, the learned trial Judge set out the claims in the amended writ of summons. Prior to this 1st respondent sought and was granted leave to institute the action in a representative capacity. In paragraphs 3, 4,6,7,8,9,10,11,12, and 13 already referred to in this judgment and underlined 1st respondent filed the action for and on behalf of Adogun Atele family, pleaded the founding of ITELE by his ancestor ADOGUN ATELE about 300 years ago then. He pleaded the genealogy and that they had four ruling houses as averred in paragraphs 6 and 13 (supra) of the statement of claim as italicise.

It is an indepth look of the writ of summons and statement of claim that is the guide to establish whether 1st respondent averred legal sufficient interest to grant him locus standi or lack of it.

Having stated above the principles as to what is locus standi and the applicable rule to grant or refuse it with source of sufficient legal interest and whether the legal interest is justiciable and existence of dispute between the parties are/all derivable as pleaded in the statement of claim.

Appellant in support of his argument in respect of the issue argued in paragraph 4.00 to paragraph 4.8 at pages 11 to 17 of appellant’s brief of argument predicated and the fulcrum of his argument on appellant’s statement of defence and referred extensively and copiously at pages 11, 12 and 13 of appellant’s b11ef of argument and the evidence of 1st plaintiff’s witness and that of 1st DW, 2nd DW and 5th DW. That a comparison of the evidence of plaintiff’s witnesses with the above mentioned DWs left many unchallenged pieces of evidence of DWs highlighted in argument which unchallenged pieces of evidence if considered properly by the learned trial Judge should have left to no other conclusion that 1st respondent lacked the locus standi thereby for this court to allow the appeal learned trial Judge referred to legal authorities to support his argument in particular Ogbuehi v. Governor of Imo State (supra).

That the learned trial Judge was wrong to have predicated his finding on the four ruling houses was whether 1st respondent had sufficiently established on the question of whether the plaintiff/1st respondent sufficiently established any link with the ONITELE Chieftaincy through Adogun Atele.

Issue B in 1st respondent’s brief of argument was based on issue of locus standi which was argued at pages 11 to 14 of respondent’s brief. He relied on the averment in paragraphs II (iv) and 12 of the statement and support them with evidence of 1st PW to 5th PW that based on the pleadings and Eleso v. Government of Ogun State (supra) the plaintiff/1st respondent established his locus standi which the learned trial Judge rightly upheld. The submission by appellant that 1st respondent lacked locus standi be rejected and the appeal dismissed on this issue.

The contention of appellant as highlighted above was based on wrong principle approach of what constitutes locus standi by basing attack of the judgment on the averments of the statement of defence instead of the writ of summons and statement of claim.

Applying the authorities of Eleso v. Government of Ogun State, (supra) Owodunni v. Registered Trustees of CCC that in dealing with the locus standi of a plaintiff is determinable from a totality of all averments in his statement of claim as it is the statement of claim that has to be carefully scrutinised with a view to ascertaining whether or not it had disclosed his sufficient legal interest and how such interest has arisen in the subject matter of the action.

After proper scrutiny of the statement of claim, I am bold to state that it disclosed sufficient legal interest that he sued in a representative capacity after grant of representation by leave of court and averred same in the statement of claim. That there was a justiciable issue as between the 1st respondent and appellant with disputation as to whether only the four ruling houses of the 1st respondent or the two ruling houses of appellant that could produce the ONITELE and whether appellant was validly selected, nominated and appointed the Onitele. From the foregoing, 1st respondent established his locus standi to institute the action and was rightly sustained and upheld by the learned trial Judge. The contention of appellant based on the statement of defence of appellant to challenge the locus standi of 1st respondent was based on wrong premises, misconceived, unmeritorious and lacking in substance, thereby rejecting appellant’s submission that 1st respondent lacked locus standi and to state without equivocation that 1st respondent established his locus standi in averments of the statement of claim. Issue 1 is therefore resolved against appellant while issue B in 1st respondent’s brief is resolved in favour of the respondent.

Issue 2 in appellant’s brief raised the issue of evaluation of the evidence of 1st respondent finding of fact that he had successfully established there were only four ruling houses in Itele town with descendants of Adogun Atele as the only ones eligible to the exclusion of the two ruling houses of the appellant.

By paragraphs 4,9, to 4.19 at pages 17-28 of appellant’s brief of argument, appellant submitted that the learned trial Judge did not evaluate the evidence adduced by the 1st respondent in accordance with the burden of proof to be established by 1st respondent who was seeking declaratory and injunctive orders in a chieftaincy matter under section 135 Evidence Act, properly thereby the finding of facts in favour of 1st respondent be reversed with proper evaluation by this court and reject the finding of facts by the learned trial Judge by setting aside the judgment of the lower court with dismissal of 1st respondent’s claims having failed to discharge the burden of proof placed on the 1st respondent.

The learned trial Judge had no credible evidence to believe and preferred the testimonies of 1st respondent and his witnesses without giving valid reasons for believing the 1st respondent and his witnesses. The mere use of the belief was not sufficient the learned trial Judge’s findings of facts were perverse and should be set aside by allowing the appeal with dismissal of all the claims of 1st respondent as was rightly done in partial dismissal of all the claims of 1st respondent. The credibility of 1st respondent and his witnesses was without reason for the belief.

In conclusion this honourable court should resolve issue 2 in appellant’s favour by allowing the appeal. Appellant supported his submission with many legal authorities which have assisted the court in the consideration of this appeal.

Issues A and C in 1st respondent’s brief of argument raised similar issues on the burden of proof, evaluation of evidence and findings of facts by the learned trial Judge. The arguments in support of issue A cover pages 6 to 10 of 1st respondent’s brief of argument summarily put is whether the learned trial Judge evaluated the evidence properly under the rule in Mogaji v. Odofin (1978) 4 SC 91.

Issue C in 1st respondent’s brief of argument was argued at pages 15 and 16 of 1st respondent’s brief of argument predicated on compliance with the burden required in chieftaincy matter as decided in the case of Eleso v. Government of Ogun State (supra).

1st respondent contended and submitted that based on the pleadings and evidence adduced on it, the learned trial Judge set up the imaginary scale, evaluated the evidence properly which included the disbelief of appellant and his witnesses as untruthful witnesses and gave reasons for disbelieving them. The findings of facts were properly evaluated which included credibility of the witnesses as appellate court should not disturb the findings of facts based on the credibility of witnesses more so when the learned trial Judge gave reasons why he disbelieved the appellant and his witnesses.

Issue 2 of appellant’s brief of argument be rejected as lacking in substance whilst upholding issues A and C in respondent’s brief of argument thereby to dismiss appellant’s appeal as frivolous.

1st respondent who sought leave of High Court which was granted commenced the action that led to this appeal in a representative capacity wherein he claimed declaratory and injunctive orders set out supra. The burden on a plaintiff seeking declaratory and injunctive orders are as set out in sections 135, 136 and 137 Evidence Act, Cap. 112, Laws of Federation of Nigeria, 1990 judicially interpreted in Kodilinye v. Odu (1935) 2 WACA 336 PC, Adesanya v. Aderonmu (2000) 9 NWLR (Pt. 672) 370 SC, Olowoake v. Salawu (2000) 11 NWLR (Pt. 677) 127 CA, Cobblah v. Gbeke (1947) 12 WACA 294 that plaintiff seeking declaratory order must succeed on the strength of his own case and, not the weakness of the defendant’s case whose burden when he has not set up a counterclaim is just to defend the action no more no less. The exception to this rule is where the fact in a defendant’s case supports the fact in plaintiff’s case the later can use that fact which supports plaintiff’s case to establish his own case. Akintola v. Oluwo (1962) 1 SCNLR 352, Sosanya v. Onadeko (supra).To grant or refuse the declaration the trial Judge has a judicial discretion to be exercised judicially and judiciously. It is trite law that where parties testify before a trial Judge before accepting or rejection of evidence in the evaluation and ascription of evidence, the trial Judge under the rule in Mogaji v. Odofin (supra) is enjoined to set up imaginary scale by putting the pieces of evidence adduced by the plaintiff on one side of the imaginary judicial scale and put that of the defendant on the other side of imaginary judicial scale and weigh both together by ascription of probative value not by the number of witnesses called by either side by qualitative and probative value to see where the evidence tilts is what is expressed in legal parlance that civil case is decided based on balance of probability.

The learned trial Judge at page 94 of the record of appeal already stated above observed after a review of the evidence thus:-

“Having regard to the evidence before me and after putting the totality of the evidence adduced by both sides on an imaginary scale, I am satisfied that the probative value of the evidence adduced by the plaintiff and his witnesses is heavier in favour of the plaintiff and on the balance of probabilities, the plaintiff has proved his case.

It is therefore the judgment of this court that the plaintiff’s claim partly succeeds.”

At page 88 of the record of appeal the learned trial Judge reviewed the evidence adduced on traditional evidence

“The issue of who the kingmakers are was raised by 1st defendant. I think it is for him to prove that … I have no hesitation in saying that when all the evidence before me on that issue is reviewed that part of 1st defendant’s traditional evidence is as CONFUSING as it is INCONSISTENT.”

At page 86 of the record of appeal whilst reviewing evidence of the appellant the learned trial Judge observed as follows:-

“The 1st defendant/appellant has denied both in his pleadings and in his evidence and that evidence of his

witnesses that his grandfather was born at TOTOWU but when he was confronted with the evidence of father in exhibit G at page 6 as to the place of his birth of his grandfather, he prevaricated and said:-

“I have heard what you read as the evidence of my father as to the place of birth of his own father, I now say that I do not know whether or not my father was born at TOTOWU, all I know is that I am a native of ITELE.

The 1st defendant does not strike me as a person who has regard for the truth. There were more for instances of his prevarication even on matters which are not of much relevance to the validity of his appointment. For example he was asked questions on the dates when he attended the court in a land suit when he was supposed to be at Ipebi, he admitted attending the court on 18/5/92 and 4/6/92 but he immediately said he had forgotten the dates when he attended the court even when he was shown the proceedings in which he was recorded as present as the 4th defendant, he still said that he did not remember attending the court on the days.” (already Italicise (supra) – reproduced for emphasis)

At page 88 of the record of appeal referred to supra the learned trial Judge applied the privy council case of Kojo v. Bonsie II (1957) 1WLR page 1223 at 126 per Lord Denning to evidence adduced on the traditional evidence of Obaship and Baleship until resuscitation to Obaship again the learned trial Judge after a review, evaluation and ascription to the evidence adduced before him on the traditional evidence and concluded at page 88 thus:-

“I have come to the conclusion that traditional evidence of the plaintiff is more probable, concise and consistent.”

Ajagungbade III v. Laniyi (supra).”

As stated above issue 2 in appellant’s brief of argument and issues A and C in 1st respondent’s brief of argument raised the issues of evaluation of evidence and credibility of witnesses by the learned trial Judge hence the analysis of the evidence before the learned trial Judge and after review and ascription his findings of facts which were attacked by appellant whilst same were defended by 1st respondent.

Evaluation of evidence is primarily the function of the trial court as in the instant appeal. It is only where and when it fails to evaluate such evidence properly or at all that an appellate court can intervene and itself re-evaluate such evidence otherwise, where the trial court has satisfactorily performed its primary function of evaluating evidence and correctly ascribing probative value to it, an appellate court has no business interfering with its finding on such evidence Ebba v. Ogodo (1984) 1 SCNLR 372, Nwokoro v. Nwosu (1994) 4 NWLR (Pt. 337) 172, Elendu v. Ekwoaba (supra), Bunyan v. Akingboye (1999) 7 NWLR (Pt. 609) 31 SC Rotimi v. Faforiji (1999) 6 NWLR (Pt. 606) 305 CA, Gurara See; & Fin. Ltd. v. T. I. C. Ltd. (1999) 2 NWLR (Pt. 589) 29 CA, Iordye v. Ihyambe (2000) 15 NWLR (Pt. 692) 675 SC, Akande v. Alagbe (2000) 15 NWLR (Pt. 690) 353 CA, Wilson v. Oshin (2000) 9 NWLR (Pt. 673) 442 F SC. Daniyan v.Iyagin (2002) 7 NWLR (Pt. 766) 346, (2002) 8 WRN 44 CA, Oba Jimoh Oladunmi Oyewunmi Ajagungbade III v. Oba Samuel Adegboyega Osunbande Adeyelu II & 6 Ors. (2001) 16 NWLR (Pt. 738) 126 CA, (2001) 9 WRN 92. From the foregoing, the learned trial Judge undoubtedly evaluated the evidence and ascribed probative value properly in my assessment. An appellate court loathes disturbing the findings of fact made by a trial court. An appellate court will however interfere with a finding of fact by a trial court where such finding is perverse or wrong. In the instant case after a careful and indepth review of finding of facts by the learned trial Judge, I found the findings of facts to be borne out from the pleaded facts and evidence adduced based on them which are in my judgment are sound, cogent, and not perversed thereby there is no legal basis or justification to disturb or interfere with the findings of the learned trial Judge. Woluchem v. Gudi (1981) 5 SC 291, Akinloye v. Eyiyola (1968) NMLR 92, I.M.B. Ltd. v. Dabiri (1998) 1 NWLR (Pt. 533) 284 CA, Iriri v. Erhuhobara (1991) 2 NWLR (Pt. 173) 252, Nwokoro v. Nwosu (1994) 4 NWLR (Pt. 337) 172 CA. As the evidence and finding of fact was based on credibility of witnesses the appellate court is also handicapped to interfere or disturb findings based on credibility of witnesses unless the appellate court was satisfied that the learned trial Judge failed to take advantage of having heard, seen and watched the demeanours of the witnesses thereby this appellate court has no legal basis or justification to disturb or interfere with the findings of facts based on the credibility of witnesses Elendu v. Ekwoaba (supra).

At page 95 of the record of appeal, the learned trial Judge granted declaratory Orders a, b, c, and injunctive order of which were based on exercise of judicial discretion by the learned trial Judge. The attitude of appellate court to exercise of judicial discretion is well settled. Except upon grounds of Law, an appellate court will not reverse a discretionary order of a trial court merely because it would have exercised the discretion differently. But if on other grounds the order will result in injustice being done or if the discretion was wrongly exercised in that due weight was not given to relevant consideration or weight was given to irrelevant or unproved matter the order may be reversed. In the instant appeal, there was no wrongful exercise of judicial discretion by the learned trial Judge of the trial court, the attacks by the appellant against the exercise of judicial discretion in granting reliefs a, b, c, and f lacked merit, unmeritorious and substance University of Lagos & Anr: v. M. I. Aigoro (1985) 1 NWLR (Pt. 1) 143 SC, Elendu v. Ekwoaba (1995) 3 NWLR (Pt. 386) 704 CA confirmed by the Supreme Court (supra) Adebayo v. O.A.U.T.H.B. (2000) 9 NWLR (Pt. 673) 585 CA, Guda v. Kitta (supra).From the forgoing, from all angles issue 2 raised by appellant lacked substance, and unmeritorious it is hereby resolved against appellant with the consequential dismissal of the appeal based on the resolution of issue 2 in appellants brief of argument against the appellant.

Issue THREE in appellant’s brief raised the point whether the learned trial Judge was right in his application of sections 35(1)(2) and (3) Chiefs Law, Cap. 20, Laws of Ogun State in holding that the nomination, selection and appointment of the 1st defendant/appellant was irregular, null and void.

Appellant submitted in paragraphs 4.20 to 4.23 at pages 28 to 32 of appellant’s brief of argument that a review of the evidence that the 1st respondent did not adduce cogent and concrete evidence to contradict the evidence of 2nd and 3rd defendants. 2nd and 3rd respondents in support of the steps taken by 2nd and 3rd defendants in the nomination, selection and installation of the appellant as the Onitele of Itele, it was baseless and supportable for the learned trial Judge to have concluded that the said process was contrary to and not in line with sections 35(1)(2) and (3) Chiefs Law, Cap. 20 of Ogun State and for him to have declared the same null, void and of no effect.

Appellant contended that as the learned trial Judge held that sections 3, 4, 5, 6, 7 and 8 Chiefs Law, Cap. 20 were not applicable he should have refused the reliefs sought by 1st respondent and should not have gone on voyage of discovery to see under what order was applicable by so doing he made a case for the 1st respondent contrary to his case thereby was no longer an unbiased court as decided in Adigun v. A.-G., Oyo State (1987) 1 NWLR (Pt.55) 678, Olowu v. Olowu (1985) 3 NWLR (Pt. 13) 372. For the above reasons the learned trial Judge interpreted section 35 of Chiefs Law Ogun State wrongly, his decision based on declaring the selection, installation and appointment of appellant as invalid be set aside and uphold that appellant was validly appointed the ONITELE of ITELE by resuscitation to OBASHIP.

Contrary to the above 1st respondent by issue D in his brief of argument at pages 17 and 18 submitted that the case of 1st respondent as pleaded with evidence adduced on pleadings was based on sections 3, 4, 5, 6, 7, and 8 and 35 (3)(a) Chiefs Law, relying on the cases of Ajakaiye v. Idehai (1994) 8 NWLR (Pt. 364) 504 at 526, Falobi v. Falobi (1976) 9-10 SC 1, (2002) 30 WRN 50 SC the learned trial Judge applied section 35(1)(2)(3) Chiefs Law, Cap. 20 of Ogun State Law properly and rightly declared the selection, installation and appointment of appellant invalid. Appellant’s appeal be dismissed. Section 35(1)(a)(b) and 2(a)(b)(c)

(a) The vacancy shall be filled in accordance with the customary law applying to that chieftaincy;

(b) The executive council may approve the person so appointed or set aside the appointed.

(2) Any person- (a) Whose appointment is approved under sub-section (1) of this section; or

(b) Whose appointment to any recognised chieftaincy was approved under the appointment and deposition of Chiefs Ordinance and who holds that chieftaincy immediately before the commencement of this law; or

(c) Who is notified by the executive council by notice in the Gazette to have been the holder of any chieftaincy immediately before the application to it of part 2 of this law;

Shall be deemed to have been approved in his appointment under the provisions of part 2 of this law.”

At pages 90 and 91 of record of appeal, the learned trial Judge considered the application of sections 3,4,5,6,7, and 8 or sections 35(1)(a) and (b), and 35(3) and that in view of exhibit ‘M’ that the -word “MAY” was interpreted to be mandatory and without holding an inquiry at which the claim of 1st respondent’s family would have been ventilated but proceeded to approve appellant’s appointment, the denial amounted to flagrant breach of natural justice which rendered the action of the 2nd and 3rd defendant null. As the two families were claiming entitlement to the Throne and improper to invite appellant’s family alone without an enquiry. The learned trial Judge warned himself that he was to confine himself to the case of the parties as put before him but as the court is to do substantial justice as decided in Falobi v. Falobi (supra) as where a person is entitled to a remedy but the party applied under the wrong law the important thing was whether the party was entitled to the remedy based on the legal maxim ubi jus ibi remedium and concluded that an inquiry ought to have been made before the nomination, appointment, approval and installation was made as no mandatory inquiry was made the learned trial Judge nullified the nomination, selection, appointment and installation of appellant as OBA ONITELE of ITELE as void and of no effect.

My understanding of the issues raised is the interpretation of section 35, Chiefs Law of Ogun State. The interpretation of statute or law is well settled and it is to discover the intention of the legislator through the actual words used in the law. It is trite law that in the consideration to have a comprehensive intention of the legislator that the provisions of all sections be considered and not a particular section in isolation of other sections or out of con of the other sections. The learned trial Judge applied properly the consideration of the other sections and not section 35 alone out of con.

In the consideration and interpretation of a statute; is to see whether the words are clear, straightforward and unambiguous, where the words are unambiguous is to apply the ordinary, grammatical and natural meaning unless such meaning shall result in absurdity then one would apply the cannons of interpretation. The three most popular being the mischief rule or the rule in Heydons case, the literal rule and the Golden rule. Chief Awolowo v. President Shagari (1979) 6-9 SC 51, 79, 90-91, 92 Salami v. Chairman, L.E.D.B. (1989) 5 NWLR (Pt. 123) 539 at 555 SC, Toriola v. Williams (1982) 7 SC 27 at 47-48; Ifezue v. Mbadugha (1984) 1 SCNLR 427 at 471-472, Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377 at 402, A.-G., Ondo State v. A.-G., Federation and 35 States of Nigeria (2002) 27 WRN 1 SC, (2002) 9 NWLR (Pt. 772) 222 SC; Chime v. Ude (1996) 7 NWLR (Pt. 461) 379 SC.

Applying the above authorities to the interpretation of section 35 Cap. 20, Chiefs Law of Ogun State after careful consideration of the wordings and along with other provisions of Cap. 20 (supra) and not construing it alone and out of con but the entire provisions.

I hold that the wordings are not ambiguous thereby leading to giving it the ordinary grammatical, natural meaning and it has not resulted in absurdity therefore there was no need to apply the cannons of interpretation. In the con in which the word “MAY” was used by the learned trial Judge to interpret in this con to be mandatory or directory see Adesola v. Abidoye (1999) 14 NWLR (Pt. 637) 28 SC, Obioha v. Dafe (1994) 2 NWLR (Pt. 325) 157 SC.

In Nigeria Engineering Workers Ltd. v. Denap Ltd. & Anor. (1997) 10 NWLR (Pt. 525) 481 CA it was held on interpreting that word “MAY” in a statute as follows:-

“To interpret the word “MAY” where it appears in a statute the con in which the word appears must be looked into as this is the controlling factor whether it is mandatory or directory”.

Applying the authorities to the con of the entire provisions of Cap. 20, Chiefs Law of Ogun State especially section 35 the con in which the word “MAY” was used is mandatory and not directory as submitted by appellant, it is my view that the learned trial Judge was right that in the con in which the word “MAY” was used is mandatory and non compliance strictly with the provision of section 35 Cap. 20 rendered the step taken for non compliance nugatory, so the learned trial Judge was right to declare the appointment, selection and installation of appellant as nugatory therefore, null and void and of no effect.

Issue 3 in appellant’s brief of argument from the above consideration of the argument proffered by the appellant is unconvincing and unmeritorious therefore resolved against the appellant with the consequential order of the dismissal of the appeal whilst the issue is resolved in favour of the 1st respondent.

All the issues raised by appellant having been resolved against him from all angles pointedly to the dismissal of his appeal which is hereby dismissed for the reasons given and advanced above in this judgment.

Applying the Court of Appeal Rules, 2002 as the appeal was dismissed acting judicially and judiciously as costs follow the event the 1st respondent is entitled to the cost of this appeal which I fix at N7,500.00 (Seven thousand five hundred Naira) in favour of 1st respondent against the appellant.

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Other Citations: (2002)LCN/1301(CA)