Attorney-general, Kwara State & Anor V. His Royal Highness Oba Michael D. Oyedele Ariwajoye I. & Anor (2000)

LawGlobal-Hub Lead Judgment Report

ONNOGHEN, J.C.A. 

This is an appeal against the judgment of Hon. Justice D J. Adeniyi in suit No. KWS/OM/24/92 delivered on the 27th day of February, 1997, against the appellants and 2nd respondent then as defendants.

The facts of the case, as can be gathered from the record, include the following:-

On the 5th day of October, 1992, the 1st respondent in this appeal issued a writ of summons in which he claimed the following reliefs against the 2nd respondent to wit:

“1. A declaration that Araromi, Ekiti Local Government Area is within Isolo-Opin land in Ekiti Local Government Area, Kwara State, and not a separate and distinct community.

2. A declaration that the plaintiff’s authority as a Traditional Ruler is over the entire Isolo-Opin land including Araromi, Ekiti Local Government Area.
3. A declaration that the title “Olu of Araromi-Opin” is without historical antecedent and incompetent as there cannot be two traditional rulers over Isolo-Opin land.
4. An order restraining the defendant from styling and parading himself as the “Olu of Araromi-Opin” in any manner and at any gathering whatever.”

On the 31st day of March,1994, learned Counsel for the 1st respondent, then plaintiff filed a motion for an order inter alia to join the present appellants and the Federal Attorney-General which application was subsequently granted by the lower court. However on the 22nd day of May, 2000, upon a motion by Counsel for the Attorney-General of the Federation, the name was struck out by this court thereby leaving the 1st and 2nd respondents.

By leave of the court below, the 1st respondent amended his statement of claim to include a fifth relief to wit:

“5. A declaration that the due and proper name of the site of the Headquarters of Ekiti Local Government, Kwara State is Isolo-Opin.”

It is the 1st respondent’s case, as plaintiff in the lower court that Opin land was founded by Madewa Adetula who migrated from IIe-Ife. That Opin land is made up of twelve villages named after the twelve sons of Madewa Adetula, one of the villages being Isolo-Opin. These villages are:

1. Owuatun – Opin
2. Isola – Opin
3. Aare – Opin
4. Ilode – Opin
5. Oiwi – Opin
6. Ihaye – Opin
7. Igemo – Opin
8. Owa Odo – Opin
9. Idemorun – Opin
10. Isare – Opin
11. Osi – Opin, and
12. Epe – Opin

That these twelve children were born of three wives – the first one producing five children, the second had four while the third had three. These children are therefore referred to in groups as Ikerun, lkerin and Iketu.

That the 2nd respondent is from Aofini Araromi Compound in Isolo-Opin which is not one of the 12 children of Madewa Adetula and is not entitled to the suffix “Opin”.

That there are eleven compounds in Isolo – Opin named after the eleven sons of Isola to wit. Aofini Araromi, Oke-Awoeli, Oke-Ora, Oke Mogun, Ile Olomunjo, Ile Asaha, Odo Orite, Ijagba, Igbein, Odo Awor and Ijegbemute.

That during the advent of inter-tribal wars, the Isolo-Opin people moved and established their village uphill for security purposes. That following the cessation of inter tribal wars, there was no need for them to continue to stay uphill so they decided to come down to the Isolo-Opin land by the main road. That the people agreed on this project and chose Arusi which was a farmland allocated by the Asolo to the people of Ora Compound of Isolo-Opin as the site of the settlement by the road side.

That contrary to the agreement by the people that the movement down hill was to be led by the Asolo of Isolo-Opin, one Lawani Anisulogun the then Lemomu or Imam of Isolo-Opin and a member of Aofin and one Pa Ayeni of Oke Mogun Compound led their people Opin to the agreed site before the then Asolo; by name Fasoro Osegunjoye who thereby became very infuriated by the breach and refused to move down. After much entreaties and pledge of continued loyalty, the Asolo later moved down. That since the first batch of those who moved down were largely of Aofin Compound, the name Aofin became inter-changeable with Araromi Compound being the new name of the new settlement down hill. That the people remained part of Isolo-Opin under the authority of the Asolo of Isolo-Opin, the office now occupied by the 1st respondent. That the movement of Aofin took place in 1937, while the rest of the Isolo-Opin people moved down in 1954.

That Araromi has been existing in Isolo-Opin as a compound under the Asolo of Isola – Opin since then until sometime in the 1980s when the 2nd respondent started to call himself the Olu of Aroromi-Opin a title that, has no historical antecedent in Isolo – Opin or Opin land.

On the other hand, the present appellants i.e Attorney-General of Kwara State and Ekiti Local Government, Kwara State, rely on the traditional history as put forward by the 2nd respondent in this appeal; they not being natives of Opin land.

The case of the appellants and the 2nd respondent are that Araromi-Opin is a distinct village and not a Compound in Isolo-Opin as claimed by the 1st respondent. That the people of Araromi-Opin were formerly known as Arusi who, during inter-tribal wars moved up the hill with some strangers who had settled with them before the wars. That the people were at that time led by Oolema a son of Madewa Adetula, who led them to a place called Iso-Olo which was a stonny place. That after the tribal-wars the Arusi people came back to their land down hill and continued to maintain a separate identity from Iso-Olo people. That the first Oba of Arusi was Madewa Adetula who was succeeded by his son Oolema. That by 1937 when Arusi people came down the hill they were led by Oba Lawani Anisulogun to their former settlement. That it was the Iso-Olo that was later shortened to Isolo. That on seeing how comfortable the settlement was Oba Anisulogun changed the name of Arusi to Araromi – Opin. That in 1955, the remaining strangers who did not leave Iso-Olo with Oba Anisulogun left and settled as Isolo-Opin.

That by 1982 the Government of Kwara State created Ekiti Local Government and named Araromi-Opin as the Headquarter. This was followed by the Federal Government which re-created the said Local Government vide Decree No.14 of 1991, with the headquarters still at Araromi Opin. That the 2nd respondent had since 1981 become the Olu of Araromi – Opin which title was recognised by the government of Kwara State.

At the conclusion of the trial, the learned trial Judge, in a considered judgment granted all the reliefs of the 1st respondent. Dissatisfied with that judgment, the appellants have appealed to this court on seven grounds vide a notice of appeal to be found at pages 469 to 572 of the record. Out of the said seven grounds of appeal learned Counsel for the appellants S.A. Mohammad, Esq, has formulated six issues for determination in a brief of argument deemed filed on 22/5/2000. The issues are as follows:

“1. Whether the learned trial Judge was right to have assumed jurisdiction?.

2. Whether having regards to (sic) totality of the evidence both oral and documentary by parties:

(a) the plaintiff/respondent has shown sufficient locus standi to entitle him to the reliefs sought.

(b) the plaintiff/respondent has proved his root to entitle him to the Araromi – Opin (Arusi) so as to entitle him to claims endorsed in the statement of claim?

3. Whether the judgment is in line with the pleadings and evidence adduced by all parties?
4. Whether it was not wrongful of learned trial Judge to have rejected the maps of Nigeria, Kwara State and Ekiti Local Government Area of Kwara State respectively which could have assisted the court to ascertain the separate and distinct entity of Araromi- Opin and Isolo-Opin from one another?
5. Would it not have been proper for the learned trial Judge to have suo motu call for a visit to the locus sin (sic) quo?”

On the other hand, learned Counsel for the 1st respondent, J.S. Bamigboye, Esq., in a brief of argument filed on behalf of his client on 6th July, 2000, formulates six issues to wit:

“1. Whether the appellants are not on the exhibit and decided case estopped from asserting the existence of Araromi-Opin as separate village from Isolo-Opin as a separate village from Isolo-Opin and asserting the existence of any traditional Head for it apart from the Isolo-Opin?.

2. Whether the High Court of Kwara State presided over by Honourable Justice D. I. Adeniyi, has jurisdiction to have tried this case?.
3. Whether the 1st respondent has the locus standi to prosecute this case?.
4. Whether the 1st respondent established his case in the trial High Court to entitle him to all the reliefs sought and evidence properly evaluated?.
5. Whether the rejection by the trial Court of the map and survey plan sought to be tendered by the appellants was right in law?.
6. Whether the trial Court can suo motu order a visit to the locus in quo?.”

I must say that apart from the 1st respondent’s issue No.1 (supra), the other issues are substantially the same with the ones formulated by the learned Counsel for the appellants and they arise from the grounds of appeal filed in this matter. The same cannot be said of the 1st respondent’s issue No.1 (supra). It is trite law that in an appeal, issues are formulated based on the grounds of appeal filed – see the following cases Salzgilter Stahl GMBH v. Aridi Ind. (Nig.) Ltd. (1996) 7 NWLR (Pt.459) 170; Ebo V. N. T.A. (1996) 4 NWLR (Pt.442) 314; Otuo V. Ntegwuile (1996) 4 NWLR (Pt.440) 56.

It is also trite that a respondent cannot formulate issues outside the grounds of appeal filed by the appellant, asin this case. – see Chia v. State (1996) 6 NWLR (Pt455) 465; Nnaji v. Ede (1996) 8 NWLR (pt.466) 332 etc. etc. etc.

In this appeal, the grounds of appeal are at pages 469 to 472 of the record and are reproduced hereunder as follows:-

‘Ground of Appeal

1. That the decision is against the weight of evidence adduced before the trial Court.
2. The learned trial Judge erred in law by summing jurisdiction and trying the case in the first instance when the subject-matter of the claim borders on Government policy and decision backed up with the Decree and an Edict (viz:- Decree No.41 of 1991 and Edict No.6 of 1982.

Particulars of Error.

(i) The States (Creation and Transitional Provisions) (No.2) Decree No.41 of 1991, named Araromi-Opin as the Headquarters of the Ekiti Local Government of Kwara State and not Isolo-Opin.

(ii) The Kwara State Government had first established said Ekiti Local Government in 1982 vide the Local Government Establishment (Amendment) Edict No. 6 of 1982, the Edict named Araromi-Opin as the Local Government Headquarters and not Isolo-Opin.

(iii) Section 2 of the third and fourth colums (sic) of Decree No. 41 of 1991, confirm Araromi-Opin as the Local Government Headquarters of Ekiti Local Government of Kwara State.

3. The trial Judge has no jurisdiction to set aside or annul a Decree by which the Ekiti Local Government Area was created in 1991.

Particulars of Error.

(i) The combined provision (sic) of the State (Creation and Transitional Provisions) (No.2) Decree No. 41 of 1991, Constitution (Suspension and Modification) Decree No.13 of 1984, the jurisdiction of the trial Court has been ousted from determining issues of changing the name of the Ekiti Local Government headquarters from Araromi-Opin to any other name including Isolo-Opin.

(ii) Section 74(1) (a) of the Evidence Act was not considered by the learned trial Judge in his decision.

4. The learned trial Judge erred in law when he failed to hold that the plaintiff/respondent has no locus standi to institute this action.

Particulars of Error.

(i) By the provisions of Order II rule 7 (1) of the Kwara State High Court (Civil Procedure) Rules, 1989, the plaintiff/respondent ought to show the court in what capacity he was instituting the action.

(ii) Isolo-Opin is a town comprising of Eleven Compounds.

(iii) The plaintiff/respondent never obtained any leave of the lower court before instituting the action on behalf of the whole town.

(iv) The decision of the lower court does not apply to the plaintiff/respondent alone but the whole town.

(v) The plaintiff/respondent ought to seek leave of the court to enable him have locus standi in the action.

5. The learned trial Judge erred in law when he did not consider (sic) the evidence adduced by the appellants at the trial.

Particulars of Error.

(i) The appellants filed their further, further and further amended statement of defence dated 27th September, 1996 (containing 27 paragraphs) called 4 witnesses and tendered 8 Exhibits a (sic) trial of which 3 exhibits were rejected. (i.e. Exhibit D….)

(ii) Evidence was led to prove the averments in the further, further and further amended statement of defence of the appellants.

(iii) DW1, DW2, DW3 and DW4 were all witnesses called by the appellants and they gave uncontradicted and admissible evidence and were not shaken under cross-examination.

(iv) Evidence not contradicted nor challenged must be accepted and act (sic) upon by the trial Court.

(v) This approach of the trial Court not considering and evaluating the evidence of the witnesses called by the appellants has occasioned miscarriage of justice in that fair hearing of this matter was compounded by the trial Court.

6. The learned trial Judge erred in law when he wrongfully rejected an admissible document in evidence.

Particulars of Error.

(i) The issue (sic) before the lower court are issues relating to two separate and distinct towns namely: Araromi-Opin and Isolo-Opin.

(ii) The map of Kwara State in pleaded in paragraph 16 of the further, further and further amended statement of defence of the appellants dated 27th September, 1996.

(iii) To case the issue of evidence of boundaries of the two distinct and separate towns the appellants sought to tender the map of Kwara State showing various towns and villages of the State of which both Araromi-Opin and Isolo-Opin were shown thereof.

(iv) The lower court wrongfully rejected the map twice from evidence.

(v) Admission of the three rejected maps could have assisted the trial Court in arriving at a just and fair decision of this case.

(vi) The rejection of the three maps have cause miscarriage of justice in this case.

(vii) The wrongful exclusion of these two maps have adversely affected the case of the appellants at the lower court.

7. The learned trial Judge misdirected himself infact when he held as follows:-

“I accepted the evidence that Isolo-Opin and Araromi – Opin is separate by one road of about 12ft wide.”

Particulars of Error

(i) There is no where in the pleadings of the parties and the evidence adduced that can support the above the (sic) findings of the lower court.

(ii) The evidence that could have assisted the lower court on the issue of the distance between both Araromi- Opin and Isolo -Opin were Exhibit D, and Exhibit D which were the wrongfully rejected maps of Kwara State”.

From the above grounds of appeal it is very clear that 1st respondent’s issue No.1 does not flow from any of the grounds of appeal; as I have earlier stated. I have carefully gone through the pleadings of the 1st respondent and have not found where he pleaded the issue of estoppel against the appellants – the amended statement of claim is at pages 66 to 71 of the record. Also not pleaded is the judgment in suit No.KWS/OM/7/93 allegedly delivered on 27th July, 1994 and relied upon against the 2nd appellant neither was the certified true copy of same tendered and admitted as an exhibit at the trial. The trial Court did not also pronounce on the matter. In short, it is my view that 1st respondent’s issue No.1 is not competent in law and is consequently discountenanced. It came before us through the back door.

However, the 2nd respondent filed no brief in this appeal, his learned Counsel, Aliyu Salman, SAN, having informed the court during oral arguments of this appeal on 19th October, 2000, that the 2nd respondent associates himself with the submissions of learned Counsel for the appellants.

Turning now to the proper issues for determination, it is my considered view that the appellants issues Nos. 1 and 2 dealing with jurisdiction and locus standi can be conveniently taken together as both deal with periphery matters and if upheld will substantially dispose of the appeal.

In his arguments in the appellants brief, learned Counsel for the appellants submitted that by the combined effects of the provisions of Decree No.14 of 1991, the Constitution (Suspension and Modification) Decree No.13 of 1984, being the applicable law to the matter the jurisdiction of the trial Court was ousted from determining issues challenging the name of the Headquarters of Ekiti Local Government of Kwara State. That by the operation of section 74(1)(a) of the Evidence Act as amended by Decree No.61 of 1991, the learned trial Judge ought to have taken judicial notice of the above enactments. That a judgment delivered without jurisdiction is a nullity for which submission learned Counsel referred the court to the cases of Tukur v. Government of Gongola State (1987) 4 NWLR (Pt.117) 517 at 545; Mustapha v. Government of Lagos State (1987) 2 NWLR (Pt.58) 539, (1987) 55 SCNJ 143.

That the 1st respondent did not show his root of title to Araromi-Opin land. That the 1st respondent does not personally own Isolo-Opin which belong to eleven compounds. That the 1st respondent said the land belong to Ora Compound to which he is no member. That the 1st respondent has not told the court how his right has been infringed by the appellants in making Araromi- Opin the Local Government Headquarters. That the 1st respondent did not establish the capacity in which he instituted the action. That he ought to have obtained leave of the trial Court before instituting the action on behalf of either the people of Ekiti Local Government Area or Isolo-Opin – which he failed to do. That this is fatal to the action. Learned Counsel then referred to Order II rule 7(1) of the Kwara State High Court (Civil Procedure) Rules, 1989.

That locus standi deals with the standing of the party seeking to get his complaint before the court and not on the issues that he wishes to have adjudicated upon – see Adesanya v. The President (1981) 2 NCLR 358, (1981) 1 All NLR 32 at 274; Thomas v. Olufosoye (1986) 1 NWLR (pt.18) 669, (1986) 2SC 325 at 350.

That the 1st respondent did not show how he was personally affected by the acts of the appellant in naming Araromi-Opin as the Headquarters of Ekiti Government and in recognising the 2nd respondent as the Olu of Araromi-Opin.

That, it is not the duty of the court to allow any stranger or any body or professional litigant access to the courtS. Learned Counsel then urged the court to strike out the case of the 1st respondent for lack of jurisdiction in the trial Court and lack of standing in the 1st respondent in instituting same.

In his reply, learned Counsel for the 1st respondent submitted that it is the plaintiff’s claim that determines the jurisdiction of a court entertaining same – for this Counsel referred the court to Akinfolarin v. Akinola (1994) 3 NWLR (Pt.325) 659, (1994) 4 SCNJ 30, 32 at 43. That from the reliefs claimed the course of action is the 2nd respondent’s desecration of the native law and custom of Isolo-Opin by carving out his compound, the Aofin/Araromi Compound from the others etc. That it touches on chieftaincy issues and the High Court has jurisdiction on the authorities of sections 6(6) and 236 (1) of the 1979 Constitution. That the fundamental issue is whether the 2nd respondent is competent to be called the Olu of Araromi-Opin.

That the combined effect of sections 1(1);6(6)(b) and 236 of the 1979 Constitution is to restore to the High Court the exercise of jurisdiction in Chieftaincy matters.

That neither Decree No.1 of 1984 nor No.4 of 1991 changed this position; for this learned Counsel referred to Labiyi v. Anretlola (1992) 8 NWLR (Pt.258) 139,148 and 164.

That the jurisdiction of the court that is ousted by section 1(1) and (2) of Decree No.1 of 1984 is “the competence to pronouce on the question as to whether or not a Decree or an Edict has been validly made.”

That this suit does not challenge the validity of any Decree or Edict, or anything done or purported to be done under any Decree.

On the naming of Araromi-Opin as headquarters, learned Counsel submitted that the relief is merely declaratory and it is in consonance with the supervisory powers of the courts provided under section 6(6)(b) and section 236(1) of the 1979 Constitution.

That Decree No.41 of 1991 does not transform Araromi from being a compound to a village, nor does it create a non-existent traditional institution for the village.

On the issue of locus standi, learned Counsel submitted that the capacity of the 1st respondent in instituting the action is endorsed on the writ of summons. That the cause of action is that the 2nd respondent constituted his compound into a village over which, in direct challenge to the authority of the 1st respondent, he made himself a ruler an “Olu” and started debasing tradition, and conveying Isolo-Opin land. That an Oba is the owner of his communal properties and the custodian of their custom and tradition, though the ownership of the communal properties mean no more than a trustee, he can however sue in defence of those properties, movable or immovable and to restrain desecration of their sacred tradition, custom and territorial integrity – relying on Tijani v. Secretary of South em Province (1921) 1 AC 399, Sunmonu v. Disu Raphael (1927) AC 881, 884.

That from the evidence at page 380 lines 18-22 it is clear that the Ora Compound land spoken of was allocated to Ora people by the Asolo of Isolo-Opin which shows that Ora people are mere occupiers so the 1st respondent can still maintain the action learned Counsel further submitted. He then urged the court to resolve the issues against the appellants.

I had earlier in this judgment reproduced the reliefs claimed by the 1st respondent at the lower court which were duly granted in the judgment. However, for the purpose of clarity, I will repeat then here – there are only five to wit:

“(1) A declaration that Araromi, Ekiti Local Government is within Isolo-Opin land in Ekiti Local Government Area, Kwara State, and not a separate and distinct community.

(2) A declaration that the plaintiffs’ authority as a traditional ruler is over the entire Isolo-Opin land including Araromi, Ekiti Local Government Area.

(3) A declaration that the title of “Olu of Araromi-Opin” is without historial antecedent and incompetent as there cannot be two traditional rulers over Isolo-Opin land.

(4) An order restraining the defendant from styling and parading himself as the “Olu of Araromi-Opin in any manner and at any gathering whatever.

(5) A declaration that the due and proper name of the site of the Headquarters of Ekiti Local Government, Kwara State is Isolo Opin.”

It is trite law that it is the claim of the plaintiff that determine the jurisdiction of a court entertaining same. See Akinfolarin v. Akinola (1994) 3 NWLR (pt.335) 659, (1994) 4 SCNJ 30, 32 and 43 etc.From the submission of learned Counsel for the appellants it is clear that the complaint of the appellants on the issue of jurisdiction is hinged on relief No.5 reproduced (supra).

In other words, the appellants are not challenging the jurisdiction of the court below in determining reliefs Nos. 1, 2, 3, and 4 (supra) from the brief of argument. That being the case, it is my view that the appellants concede that the High Court of Kwara State has the jurisdiction to hear, determine and grant reliefs Nos. 1, 2, 3, and 4 (supra) since these had not been attacked in the grounds of appeal nor arguments proferred to challenge them. That being the case it means that what is to be determined is whether the court below had jurisdiction to grant relief No.5 (supra).

Learned Counsel for the appellants has submitted that it had none while Counsel for 1st respondent contends that it has.

Relief No.5 speaks for itself. It is a declaratory relief. It seeks to establish the fact that the proper name of the site of Ekiti Local Government Headquarters of Kwara State is Isolo-Opin. It is my considered view that relief No.5 does not seek to change the name of the Headquarters of Ekiti Local Government of Kwara State from Araromi-Opin to Isolo-Opin as canvassed by learned Counsel for the appellants. That being the case, it is my considered view that a grant of that relief did not violate the provisions of Decree No.41 of 1991 as canvassed by learned Counsel for the appellants. It is therefore my view that the lower court has jurisdiction to hear and determine all the issues raised before it and to grant reliefs claimed; in particular relief No.5 as formulated. Relief No.5 does not attack the validity of the making of any Decree or Edict neither can it be said that Decree No.4 1 of 1991 is the source of the creation of Araromi as a village nor did it create a Traditional Ruler with the title of “Olu of Araromi-Opin” which would have invoked the provisions of Decree No.13 of 1984 as contended by the appellants. On the issue of locus standi of the 1st respondent, it is very clear from the pleadings and evidence before the lower court that the 1st respondent is His Royal Highness, the Asolo of Isolo-Opin, a traditional ruler.

In paragraphs 1, 3, 5, 13, and 25 of the amended statement of claim, the 1st respondent pleaded as follows:

“1. The plaintiff is the traditional ruler of Isolo-Opin, Ekiti Local Government Area, and by virtue of that position he controls and manages all Isolo-Opin land…

3. The plaintiff avers that Isolo-Opin land over which he exercises control and management in his capacity as the Asolo of Isolo-Opin is a wide expanse which includes Araromi, which with the siting of Ekiti Local Government Headquarters is now generally but misnormally referred to as Araromi-Opin …..
4. The plaintiff avers that in 1982 after it was resolved by prominent Ekiti sons and daughters that the Headquarters of Ekiti Local Government created by Alhaji Adamu Atta will be sited at Araromi in Isolo-Opin land, it was the Asolo of Isolo-Opin in his capacity as the customary owner of the land by virtue of his office that gave out the site for the Local Government Headquarters to the Government.
5. The plaintiff avers that at all times since the existence of Araromi, the Asolo had always exercised authority over the members in the settlement has his subjects and has always exercised control over the entire Araromi land as Isolo-Opin land, in his capacity as the Asolo ….
6. The plaintiff avers that these actions of the defendant is a serious embarrassment to him and members of his community, and sacrilegious of the native law and custom of Isolo-Opin.

It is clear from the pleadings and the facts of this case as revealed by evidence that though it is not expressly stated that the 1st respondent instituted the action in a representative capacity, the action was actually fought in that capacity. It is true that the 1st respondent is the Asolo of Isolo-Opin and that he is the customary owner of Isolo-Opin land by virtue of his office. There is also evidence to the effect that Isolo-Opin includes Araromi which is said to be a compound in Isolo-Opin.

From the reliefs claimed in this action, it is also clear that the 1st respondent did not institute the action in his personal capacity.

It is settled law that whilst an individual who has an absolute title in any piece of land may have a right of action against anyone who trespasses on his land, the right of action or defence in respect of communal land or family land lies in the Head – see Nwangwu v. Nzekwu (1957) SCNLR 61, (1957) 2 FSC 36. In the present action, the 1st respondent sued as the Oba or Head of Isolo-Opin and it is my view that he can do so in law – he has the locus standi to institute the action as he did.

It is settled law that an “OBA” is the owner of his communal properties and the custodian of their custom and tradition, though the ownership of the communal properties mean no more than ‘1 trustee, he can however sue in defence of those properties. movable or immovable and to restrain discretion of their sacred tradition, custom and territorial intergrity – see Tijani v. Secretary of Southern Province (1921) 2 AC 399; Summonu v. Disu Raphael (1927) AC 881 at 884.

On the issue of the land presently occupied by Araromi belonging to Ora Compound and the 1st respondent not being a member of, that compound hence lacks capacity to institute the action it is clear from the record at page 380 lines 1822 that the ownership of the land still resides in the 1st respondent as the Asolo of Isolo-Opin who originally allocated same to the compound. The 1st respondent stated the position as follows:

“The land which Aofin called Arusi is not their family land. The peice of land belong to Ora Compound. This land is also called Igbo Avinrin Oko. It was Asolo of Isolo-Opin that allocated the piece of land to ora people to use it to farm.”

(emphasis supplied by me.)

It is clear from the above that learned Counsel for the appellants did not quote the passage in full. If he did it would have become clear that the 1st respondent as the Asolo of Isolo-Opin is the owner of that land and does have the right to sue on it. It is therefore not correct that 1st respondent did not trace his title to the land as alleged by learned Counsel to the appellant in his brief of argument.

It is however trite law that the rule permitting representative action is a rule of convenience and as such ought not to be treated with any rigidity but as a flexible tool of convenience in the administration of justice – see Anatogu v. A.-G., East Central State (1976) 11 SC 109.

Therefore if the writ of summons is defective only in its failure to state the capacity in which the plaintiff has brought the action, the court can order amendment – see Tottenham v. Tottenham (1896) I Ch. 628 – either at the court of trial or in appeal court in order to do substantial justice between the parties – see Divisional Chief Gbogbolulu of Vakpo v. Head Chief Hodo of Anfoega Akukome (1941) 7 WACA 164.As regards the submission of learned Counsel concerning the provisions of Order II rule 7(1) of the Kwara State High Court (Civil Procedure) Rules, 1989, of the 1st respondent in this action it is instructive to bear in mind the provisions of Order 2 rule 1 of the said Kwara State High Court (Civil Procedure) Rules, 1989.

The said Order provides thus:

“1 (I) Where in the beginning or purporting to begin any proceedings, or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect to time, place, manner form or content or in any other respect, the failure may be treated as an irregularity and if so treated will not nullify the proceedings, or any document, judgment or order therein.”

It is thus my view that having regards to the relevant facts failure to sue in a representative capacity does not vitiate the proceedings and or judgment.

This is trite and is supported by Order 2 rules 1(1) reproduced (supra)

In short, I hold that the 1st respondent has the locus standi to institute and maintain the action giving rise to this appeal. That being the case the issue is resolved against the appellants.

On issue No. 3, learned Counsel for the appellants submitted that the learned trial Judge failed to evaluate or consider the evidence adduced by the appellants. That the appellants called four witnesses and tendered eight exhibits out of which three were rejected. That the failure of the learned trial Judge to weigh the evidence of both sides before arriving at the decision in the matter has occasioned a miscarriage of justice. Learned Counsel then referred the court to the case of Odofin v. Mogaji (1978) 11 NCSS 275 at 277.

That Exhibits D1, D2 and D3 which were admitted through the 1st respondent clearly spelt out the exclusive existence of Araromi-Opin independent of any other town or village including Isolo-Opin.

That Exhibits D7(i) to D7(xiii) are tax assessment notices of 1968/69 which show that Araromi-Opin is treated as a separate village in conformity with the testimony of DW2 to the effect that notices of assessment are given to village heads and not compound heads.

That where a trial Court failed to evaluate evidence before it the appellate court has a duty to do so in order to come out with a just decision. For this, learned Counsel referred to the case of Okolo v. Uzoka (1978) 4 SC 77 at 86; Salako v. Donsumu (1997) 8 NWLR (pt.517) 447, (1997) 51 LRCN 1870 at 1901.

That the subject-matter of the case circles around that land or Araromi-Opin which is a settlement founded since 1938.

That the dispute is “the actual owner of the land Arusi”. That the 1st respondent never called the people of Ora Compound as witnesses for his case. That the 1st respondent failed to discharge the burden placed on him by law.

That where there is a conflict in traditional history the conflict is not resolved by believing one version at the expense of the other but by reference to the facts in recent years as established by evidence to see which version is credible. He then urged the court to resolve the issue in favour of the appellants.

In his reply ,learned Counsel for the 1st respondent submitted that the learned trial Judge did evaluate the evidence of the parties before coming to the conclusion in the case.

That the appellants agree with the case of the 1st respondent that the progenitor of all towns in “Opin – land” was Madewa Adetula. He referred the court to the evidence of DW2 at page 391 of the record. That the 2nd respondent also agreed that there are twelve villages in Opin-Land though he added Araromi Opin in place of Owaatun-Opin – See paragraph 15 of 2nd respondents pleadings at page 175 of record.

That the evidence of the appellant is full of contradiction which make their case unreliable. That though it is agreed that the progenitor of Opin land is Madewa Adetula, the appellant’s gave conflicting evidence as to his children. That DW1 said in one breath at page 368 that Adetula had many children but at page 389 that the people who left Arusi to Iso-olo are called Aofin but at page 391 DW2 said that it is not true that Arusi people were the ones who moved to Isolo. That Arusi people had nothing to do with Iso-olo.

That no reasonable tribunal can rely on such evidence.

That the appellants pleaded a previous judgment as res judicata on the issue of independence of Araromi-Opin of Isolo – Opin in paragraphs 13 and 25 of their pleadings but failed to tender same in evidence. Learned Counsel then urged the court to invoke the provisions of section 149(d) of the Evidence Act against the respondents.

That the principles in Kojo v. Bonsie applies where the traditional histories are probable. That where, as in this case, the evidence of traditional history by 1st respondent is consistent and in line with the pleadings and that of the appellants is riddled with material contradictions and a failure to produce an alleged previous suit which would have settled the case, the principle does not apply.

That in evaluating evidence, it is not for the court to pick and deal with the exhibits one after the other. That it is sufficient that the learned Judge shows a grasp of the crucial issues for determination which trial Judge did in this case; in any way, learned Counsel contended that Exhibits D1 and D2 are minutes of meetings which were never adopted. That 1st respondent who wrote Exhibit D3 said in his testimony that it is a compound welfare association as is common in Isolo-Opin. That this was not challenged. That the exhibits do not further the appellants case.

That Exhibit D4 is against the appellant’s case as it shows that Lawani Anisulogun never claimed independence of Isolo-Opin throughout his life. That Exhibits D7, D13 and D14 being tax assessment notices are not exclusive to villages but also apply to wards within a village. He then referred to the evidence of DW2 at page 403. That tax assessment notices do not prove the existence of a village.

That Exhibits D14 and D17 A are all against the appellants. That these show that in all correspondence concerning Lawanl Anisulogun whom the appellant’s claim to be their first Oba, he never claimed that status.

That in Exhibits P16 and P16A, he begged for land in their present location from the Asolo. That this is not the posture of independence.

That there is no iota of evidence showing the historical evolution and antecedent of the title of “Olu of Araromi-Opin”. The claim that Lawani Anisulogun assumed that titled fails on the face of Exhibits P 14 – P 17.

Learned Counsel then urged the court to resolve the issue against the appellants.

It is the law that findings of fact and ascription on probative value to evidence are primarily that of the trial Court which saw and heard the witnesses. An appellate court will only interfere where there are special circumstances justifying such or where the findings are unsound – See Omoregie v. Idugiemwanye (1985) NWLR (Pt.5) 41 at 42.

It is also settled law that where the trial Court has failed to properly evaluate the evidence before it as a result of which it reached a decision which is perverse the Court of Appeal has a duty, by way of rehearing to evaluate as if it were a trial court, the evidence that has been adduced – See Adegoke v. Adibi (1992) 5 NWLR (Pt.242) 410; Ebba v. Ogodo (1984) 1 SCNLR 372; Onwugbufor v. Okoye (1996) NWLR (Pt.424) 252; Effa v. State (1999) 8 NWLR (Pt.613) 1.

Therefore, where a judgment of the lower court is attacked on the ground of being against the weight of evidence or where the finding or non-finding of facts or evaluation of facts is questioned, the Court of Appeal, in its primary role in considering – finding of facts is questioned will seek to know the following viz:

(i) The evidence before the trial court.

(ii) Whether it accepted or rejected any evidence upon the correct perception?.

(iii) Whether it correctly approached the assessment of the value on it?.

(iv) Whether it used the imaginary scale of justice to weigh the evidence on either side?;

(v) Whether it appreciated upon the preponderance of evidence which side the scale weighed having regard to the burden of proof – See Agbonifo v.Aiwereoba (1988) 1 NWLR (Pt.70) 325; M.I.S.R. (Nig.) Ltd. v. Ibrahim (1975) 5 SC 55 at 62; Egonu v. Egonu (1978) 11-12 SC 111 at 129; Odofin v. Mogaji (1978) 11 NSCC 275 at 277, etc., etc

It is very important to note that the appellants did not call evidence in support of their traditional history as to the origin of Araromi-Opin village and the traditional title of “Olu Araromi-Opin” which they pleaded copiously. Evidence of the appellants’ witnesses are to be found at pages 395 to 412 of the record.

DW1 is Lamidi Oyebode, a surveyor in the office of the Surveyor-General. He sought to tender two maps – one for Kwara State and the other for Ekiti Local Government Area which were objected to, admitted and marked rejected. DW2 is Olarewaju Onifade, a treasurer with Ekiti Local Government, He told the court that he authorised payment etc. He knows the parties. He prepares salary vouchers to pay Obas and Chiefs in Ekiti Local Government Area which was created in 1981. He tendered Exhibit D15 – payment voucher.

Under cross-examination by learned Counsel for 1st respondent, DW2 said that  the title of Olu of Araromi is not stated in Exhibit D15. He did not know that Lawani Anisulogun who appeared against Araromi in Exhibit D15 was at the time the Olopin. That the Olu of Araromi was not being paid and that he never knew if he was ever paid. That payment in exhibit D15 is not limited to village heads since lesser Chiefs in some towns were paid based on assessment. That notices of Assessment were given to village heads to be distributed toward heads not compound heads.

DW3 is Adegboyega Bolaji, a civil servant of the Bureau of Local Government and Chieftaincy Affairs Ilorin.He told the court that on the 15/10/92, the Ifelodun/Irepodun/Ekiti Traditional Council recommended the 2nd respondent as the next Olu of Araromi-Opin. He tendered exhibits D16 and D17.He also tendered exhibit D18 which is a letter conveying the approval of the appointment of 2nd respondent as Olu of Araromi-Opin.

Undercross-examination, DW3 admitted not knowing the history of Araromi or Isolo.

DW4 is Olarewaju Afolabi – a civil servant in the capacity of Secretary of Irepodun/Ifelodun/Ekiti Traditional Council. He knows the parties. He recorded minutes of meetings of the council. He was present when the issue of Olu of Araromi was dealt with by the council- the 1st respondent was absent at the meeting. He said the 2nd respondent was reommended for the office of Olu of Araromi. He identified exhibits D17 and D18.

Under cross-examination DW4 said that the issue of Olu of Araromi did not come before the council prior to 24/9/92 being the day there commendation was made. That the traditional council did not invite the 1st respondent to the meeting neither did it seek representation from Isolo.

This is the case of the appellants as testified to by their witnesses.

However, the 2nd respondent witnesses did testify to the history of Araromi-Opin and “Olu of Araromi-Opin.”

The case of the 1st respondent is that the progenitor of Isolo-Opin was Madewa Adetula who migrated from the Ile-Ife to settle at what is known as “Opin Land”. He had three wives. The first wife had five children name Owatun, Isole, Aare, Ilode and Oiwi which are also referred to in ground as Ikerun.

The second wife had four children by name Ihaye, Owa, Odo, Igemo, and Idemorun which are collectively called Ikerin group.

The third wife had three children to wit: Isaro, Osi and Epe – the Iketa group. That Adetula thus has twelve children and he had settlements named after all the twelve children. These villages also use the suffix “Opin” in their respective names. The 1st respondent also said that Araromi is a compound in Isolo-Opin land and gave details of the boundaries of Isolo-Opin land. He testified that there is no traditional ruler in Opin land by the title of “Olu of Araromi-Opin”. That his office as Asolo of Isolo-Opin covers the land and people of Araromi. That there is no village known as Araromi-Opin in Opin land.

On the other hand, the 2nd respondent on whose traditional history the appellants rely since none of their witnesses reproduced (supra) in this judgment testified to that effect agree that the progenitor of all towns in “Opin land” was Madewa Adetula. At page 391 of the record, DW2 stated thus:

“Formerly, there were 12 villages in Opin land…All the towns mentioned earlier were related to Adetula”.

One of the villages DW2 mentioned is Araromi. On the issue of the number of children, Adetula had DW1 at page 368 stated thus:

“Adetula had children, many children but the one we can talk about is Oolema. He had children. First was Alogogo Ide. We only know him as Alagogo Ide.”

However, at page 389 the witness state thus:

“Adetula had one child. He had a child. His only child was Oolema.”

It is the story of the 2nd respondent that the people of Aofin originally settled at Arusi from where they migrated uphill following inter tribal wars and settled at a place called Iso-Olo from whence they returned in 1938 and settled at Araromi – Opin. Thus at page 369, DW1 testified as follows:

“The people that left Arusi to Iso-Olo are called Aofin, they were called Aofin because they were kings.” However, DW2 contradicted this assertion when he stated at page 391 thus:

“It is not truth (sic) that Arusi people were the ones who moved to Isolo-Olo. Arusi people had nothing to do with Iso-Olo.”

In evaluating the traditional history of the people as given by both parties the learned trial Judge had these to say at page 440 of the record:

“What the plaintiff has established to the satisfaction of this court by preponderance of evidence is that Madewa Adetula was the common progenitor of all Opin-Lands. He settled his 12 children on Opin land and in particular and beyond any peradventure allocated land to the first Asolo. That first Asolo to whom Isolo-Opin was given grew on the Isolo-Opin land to eleven family compounds that include Aofin where the plaintiffs father and mother lived and died.”

At page 438, the learned trial Judge found as follows:

“Isolo-Opin land includes Aofin was founded in favour of Asolo by Madewa Adetula who never partitioned Isolo – Opin. I believe that Oolema was not one of the Madewa Adetula’s children and no Isolo-Opin land or any part of it by what name called was settled in Oolema’s favour as contested by the defendants. I hold on evidence that no Asolo partitioned the Isolo – Opin land. Consequently, no part of it could belong to Oolema whom Araromi Compound claimed to have founded Arusi – land in their favour It seems to me that Oolema became Olopin of Opin land as an indigene of Isolo -Opin, Lawani Anisulogun also held the title of Olopin of Opin land as an indigene of Isolo-Opin.”

Going further at page 549, the learned trial Judge stated thus when assessing the case of the parties.

“…so I accord greater weight to PW I evidence inspite of the high office DW2 alleged he had held in Isolo-Opin. Based on the pleadings and the testimonies of the various witnesses called by both sides, the various exhibits tendered, the veracity of comportment of the witnesses called, I had the opportunity of seeing both sides and have not been left in any doubt whatsoever that the plaintiff’s case which is more in line with the pleaded history and tradition of Opin land is far more credible then that of the defence which appears deliberately calculated to force issues and mislead in view of the exhibits tendered. The defence case does not land itself to any credibility and must therefore be disbelieved and rejected.”

It is therefore very clear that the trial Court did consider the case of each party and evaluated the evidence before it including the exhibits tendered though he did not refer to the exhibits one by one. It is my considered view that the findings of the learned trial Judge on the traditional history of the parties is supported by the evidence before the court and is therefore unassailable. Lawani Anisulogun who is alleged to be the predecessor of the 2nd respondent in respect of the title of Olu of Araromi-Opin is not shown on the exhibits to have held that title. In the documents, he wrote or cause to be written he gave his address as Isolo which would have been unlikely if Araromi-Opin was ever a village over which he was the head.

That apart, the said Anisulogun applied to the Asolo for land which would not have been the case if Araromi had ever been an independent village with its own land as canvassed by the appellants.

On issue of Olu of Araromi-Opin, the learned trial Judge found at page 442 that:

“Olu of Araromi-Opin has no historical antecedent, for the 1st defendant was challenged in 1986 at the time he started to parade and style himself Olu of Araromi -Opin.”

The trial Judge gave the following reasons for so holding to wit:

“(i) Lawani Anisulogun the 1st defendant’s own father like his predecessor in Exhibit D4 specifically called himself an indigene of Isolo-Opin.

(ii) The fact that Araromi-Opin was by Decree made headquarters of Ekiti Local Government Area will not give any right to the 1st defendant to become the Asolo because the Isolo-Opin land has not been partitioned neither has any of eleven family compounds of Isolo-Opin.

(iii) Lawani Anisulogun the father of the 1st defendant had declared himself as an indignene of Isolo-Opin in Exhibit D4 and or was so recognised in another exhibit. Therefore the purported titled of Olu of Araromi-Opin is incompetent.”

It is therefore not correct to say that the trial Judge treated the case as if the appellants did not participated in it. The appellants case is very much tied up with that of the 2nd respondent and was only considered as clearly shown from the passages quoted (supra).

I agree with the trial Court that villages are not founded by Decree or Edicts that the fact that Araromi -Opin is by Decree named the headquarters of Ekiti Local Government Area does not add to the traditional status of Araromi in Isolo-Opin.

I will add that notices of tax assessments also do not create villages and village heads. These are not conclusive evidence that those that are named therein as villages are historically and by the customs and traditions of the people villages.

I will want to observe that the creation of Local Government Area is intended to bring development to the grassroots. It is a very good thing. So is the siting of the Headquarters of such Local Government. Traditionally, the people know themselves both as individuals and communities they know their status.

It must be noted that no society is static -this includes the customs and traditions of the people. So, as things continue to develop and change there is need to keep abreast with developments. The best way to do this is in my considered view, by peaceful means not be distortion of history or by force or creation of confusion; it is by negotiations. When we try to rewrite our history by falsehood we get condemned by the very history we want to rewrite. The Government should not encourage confusion because it does not bring peace and progress. The fact that the headquarters of a local Government is sited in a village does not confer a traditional status or institution which was hitherto unknown to the custom and traditions of the people.

As observed by the learned trial Judge, the fact that Oja Oba, Ilorin (Emirs Market, Ilorin) is the headquarters of Ilorin West Local Government, the compound head of that area can not claim to be independent of the traditional ruler of the town in this case the Emir of Ilorin.

On issue No.4, learned Counsel for the appellants submitted that the trial Judge erred in rejecting the three maps tendered by the appellants and that the rejection has occasioned a miscarriage of justice since the documents were relevant.

In his reply, learned Counsel for the 1st respondent submitted that for a document to be admissible it must not only be relevant but must satisfy all statutory requirements. That the first survey plan was rejected for non-compliance with section 3(1) of the Survey Laws, Cap. 129, Laws of Northern Nigeria, 1963, as applicable to Kwara State. That the document neither bore the counter-signature of the Director nor of the Surveyor-General and no reason was given for the failure.

That the two maps were rejected for non-compliance with the provisions of Order 39 rule 5 of the Kwara State High Court (Civil Procedure) Rules, 1998 and there was no reason for the non-compliance. That there was no appeal against the rejection. He then urged the court to resolve the issue against the appellants.

I have gone through the record of proceedings and briefs of arguments. It is trite law that for a document to be admissible in evidence, it must be relevant, pleaded and satisfy all statutory requirements for admissibility. Section 3(1) of Cap. 129, Laws of Northern Nigeria, 1963, as applicable to Kwara State at the time relevant to this case, provides inter alia, as follows:

“3(1) No map, plan, or diagram of land…shall save for good cause being shown to the court, be admitted in evidence in any court unless the map, plan or diagram:

(i) has been prepared and signed by a surveyor or is a copy of a map, plan or diagram so prepared and sign and certified by a surveyor as being a true copy; and

(ii) has been examined by the surveyor Department and bears the counter-signature of the Director or the Surveyor General.”

The appellants have not told us that the survey he tendered satisfied these requirements of the law. However, the record show that it does not. It is therefore my opinion that the survey plan was rightly rejected.

It must be noted that the order rejecting the survey plan is an interlocutory order or decision which is subject to interlocutory appeal. There is no such appeal before us neither has our attention be drawn to any application for leave or extention of time etc. to appeal against that order.

As regards the rejection of the maps under Order 39 rule 5 of the Kwara State High Court (Civil Procedure) Rules, 1989, which provides as follows:

“Unless, at or before the trial, the court or a Judge in chambers for special reasons otherwise orders or directs, no plan, photograph or model shall be received in evidence at the trial of an action unless at least ten years before the commencement of the trial the parties other than party producing it, have been given an opportunity to inspect it and to agree to the admission thereof without further proof.”

The record shows that the maps sought to be tendered were pleaded by amendment that morning and they were not deposited in compliance with the rules of Court. There is no reason on record why the rules of court were not compiled with. There is also no appeal against the rejection. It is my considered view that the lower court was right in rejecting the maps.

Learned Counsel has argued in his brief that the documents rejected were Maps, not plans as envisaged by the rules but has not told us the difference between the two. I hold that Order 39 rule 5 (supra) applies to both plans and maps. In any event, there is no appeal against the rejection.

On issue No.5, learned Counsel for the appellants submitted that having regards to the conflicts in evidence as to t he distance between Isola – Opin and Araromi-Opin, the learned trial Judge ought to have suo motu, ordered a visit to the locus in quo to prevent a miscarriage of justice. That it is the duty of the trial court to so order.

That the visit would have removed any doubt as to the ownership of the land in dispute and the distance between the two towns.

In his reply, learned Counsel for the 1st respondent submitted that a trial court cannot suo motu order a visit to the locus in quo. That there was no application to that effect by either party. That a court lacks power to suo motu order a visit to locus. For this, Counsel referred the court to Anyanwu v. Mbara (1992) 5 NWLR (Pt.242) 386, (1992) 6 SCNJ 22, 25 and 35.

That in any event, a visit to the locus cannot salvage the contradictory case of the appellants. He then urged the court to answer the issue in the negative and dismissed the appeal.

I must confess that I find the complaint of the appellants in this issue very novel and strange having regard to the adversary system of administration of justice which we operate in Nigeria. A Judge has always been an impartial observer in a trial situation. He has no interest in the subject-matter of litigation. He is not allowed to descend into the arena of litigation.

It is in the light of this that the belated invitation of learned Counsel to the appellants to the trial Judge is not only unacceptable but a negation of the principle of our adversary system.

In the case of Anyanwu v. Mbara (1992) 5 NWLR (Pt.242) 386, (1992) 6 SCNJ 22, 25 and 35 the Supreme Court held inter alia as follows:

“The power of a Judge to visit the locus in a land case is derived from the provisions of section 76(c) of the Evidence Act and the second proviso to that section, it is implicit in the adversary system of administration of justice which we operate that all material evidence shall be called by the parties themselves. The position of the trial Judge is that of an impartial umpire and he lacks the power to call any witness or evidence without the consent of parties.”

That apart, I do not see any doubt that has not been resolved by the learned Judge in this matter. He has accepted the evidence of the 1st respondent and his witnesses as being the true facts of the case. That is the end of the matter.

In conclusion, it is my considered view that this appeal lacks merit and is accordingly dismissed. The judgment of Hon. Justice D.1. Adeniyi delivered on 27th February, 1997, in suit No. KWA/OM/241/92 is hereby affirmed. I make no order as to cost.

Appeal dismissed.

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Other Citations: (2000)LCN/0918(CA)