Attorney General Of Ekiti State & Ors V. Prince Michael Daramola & Ors (2003)
LAWGLOBAL HUB Lead Judgment Report
O. AYOOLA, J.S.C.
The appellants were the defendants in an action commenced in the High Court of the then Ondo State against them by the present respondents who were plaintiffs. For convenience the appellants are referred to as “the defendants” and the respondents as “the plaintiffs” in this judgment.
The plaintiffs’ claim in the High Court as contained in the further amended statement of claim was as follows:
“(a) a declaration that the Arojojoye Ruling House of the Ajero of Ijero-Ekiti Chieftancy consists of seven stocks: Odogun, Odo Idara, (Aminmin) Akere, Kumuyi, Akata, Adewa/Aderuku and Akutupu.
(b) a declaration that the plaintiffs are authentic members of the Akata stock of the said Arojojoye Ruling House,
(c) a declaration that the selection and presentation of third defendant by second defendant to the kingmakers and/or third, fourth, fifth, sixth and seventh defendants (as Warrant Chiefs) is against the history, native law and custom of Ijero-Ekiti and hence wrongful, illegal unconstitutional, null, void and of no effect whatsoever,
(d) a declaration that the purported appointment by the government of first defendant of fourth, fifth and sixth and seventh defendants as Warrant Chiefs to appoint a new Ajero of Ijero-Ekiti is illegal, wrongful, against the native law and custom and tradition of Ijero-Ekiti, unconstitutional null, void and of no effect whatsoever,
(e) a declaration that the purported appointment of third defendant as the new Ajero of Ijero-Ekiti by fourth, fifth, sixth and seven defendants is illegal, wrongful, against the native law, custom and tradition of Ijero-Ekiti, unconstitutional, null, void and of no effect whatsoever,
(f) a declaration that the purported approval of the appointment of third defendant as Ajero of Ijero-Ekiti by the government of first defendant is wrongful, illegal, unconstitutional, null void and of no effect whatsoever,
(g) an order nullifying the aforesaid appointment, the approval of appointment and installation of the third defendant as the Ajero of Ijero-Ekiti as same is against the history, native law and custom of Ijero-Ekiti and hence wrongful, illegal, null, void, unconstitutional and of no effect whatsoever,
(h) an order restraining third defendant from parading, calling, and styling himself as the Ajero of Ijero-Ekiti and from enjoying any salary, remuneration or perquisites appertaining to the title,
(i) an order restraining the government of first defendant from recognising the third defendant as the Ajero of Ijero-Ekiti in any manner whatsoever,
(j) a declaration that the appointment by the kingmakers of second plaintiff as the new Ajero on 9th May, 1991 is valid while the order of the government of first defendant nullifying same is wrongful, illegal, unconstitutional, null, void, and of no effect whatsoever,
(k) an order on the government of first defendant to consider the said appointment with a view to approving of same.”
The action arose when the vacancy which occurred in the stool of Ajero of Ijero sometime in 1990 came to be filled by a candidate presented by the Arojojoye Ruling House and appointed by the kingmakers subject to the approval of the Governor. The Arojojoye Ruling House presented the 3rd defendant, Prince Joseph Adewole, to the kingmaker as their sole candidate but the kingmakers refused to accept his candidature but rather preferred the 2nd plaintiff, Prince Adeola Ajidahun. The government intervened to annul the selection. It appointed the 4th – 7th defendants as Warrant Chiefs. The Warrant Chiefs appointed 3rd defendant to fill the vacant stool. The appointment was subsequently approved by the Executive Council in accordance with the Chiefs Law.
By their action the plaintiffs challenged the presentation by the 2nd defendant, selection by the 4th – 7th defendants, and the subsequent approval of the appointment by the Government of the then Ondo State of the 3rd defendant as the Ajero of Ijero. The plaintiffs claimed to be entitled to bring the action by virtue of their membership of the Akata family which they claimed was a stock of the Arojojoye Ruling House of Ajero of Ijero Ekiti Chieftaincy. Whether they were right in their claim or not thus became the threshold issue. It is evident that if their claim to membership of the Arojojoye Ruling House could not be sustained, their right to challenge the nomination of the 3rd defendant or the appointment of Warrant Chiefs by the government would be non-existent.
The trial Judge rejected the plaintiffs’ claim that the Akata stock was a stock of the Arojojoye Ruling House. He commented on the absence in the pleadings of the parties, or in evidence, of their respective family trees showing their Connection to the founding ancestor. He said:
“Nobody, for instance told this court how they came by either 5 or 7 stocks. Who begat whom before you now have 5 stocks or seven stocks. Who was the ancestor of each stock and how he was connected with the apex ancestor.”
He held that the burden was on the plaintiffs who asserted that they were related to the Arojojoye Ruling House to prove these facts. The trial Judge commented on the deficiency in the evidence in support of the plaintiffs’ case thus:
“Even though paragraph 9(a) – (g) of the further amended statement of claim lists the head and the founder of each of the seven stocks and paragraphs 13 – 15 attempt to link these with Eiyebiokin whom the plaintiffs call the apex ancestor, yet evidence was not called on these…… The only available evidence on the part of the plaintiffs is the evidence of 1st and 3rd plaintiffs who merely said Abulalasogun was the first son of Eiyebiokin and that Awodola was the son of Abulalasogun while Awodola was the father of Akata. They did not link Awodola with any of the other six stocks, nor did they say how many sons Eiyebiokin had and their names and how eventually the seven stocks became established.”
Turning to the inconclusiveness of conflicting traditional history, the trial Judge considered evidence of facts in recent times relied on by the plaintiffs. These were, mainly, chieftaincies alleged to be exclusively reserved for princes which members of Akata family have held, and the interaction of the Akata family with the rest of the ruling family, such, for instance as sharing a goat whenever anybody dies. The trial Judge found that no Akata had been given a ‘princely chieftaincy’ and rejected the assertion of interaction. On the other hand, there were the facts found by the trial Judge that none of the descendants of Abulalasogun who was said to be the first son of Eyebiokin had ever contested the Ajero Stool, let alone being an Ajero; that Abulalasogun who was said to be the 1st son of Eiyebiokin was himself granted land; that there was no mention of any time any members of the Akata family held any position either as Elerebi or Secretary in Arojojoye Ruling House nor was any specific occasion recalled when the Akata family joined the other members of the Arojojoye Ruling House to do anything.
In conclusion, the trial Judge found as follows:
“On the whole on this issue I hold that the plaintiffs have not satisfied me that they are entitled to the declaration that there are seven stocks in Arojojoye Ruling House and hence I hold that they have no locus standi to challenge the appointment and installation of the 3rd defendant.”
In the event he dismissed the suit in its entirety. The plaintiffs appealed to Court of Appeal.
Onnoghen, JCA, who gave the leading judgment of the Court of Appeal put the pleadings at the forefront of his consideration of the issue of fact concerning the relationship of Akata family to the Ruling House. He referred to paragraphs 22-29 of the further amended statement of claim where the plaintiffs averred that members of Akata stock held, at various times, chieftaincy titles, all described as “princely titles.” The learned Justice was of the opinion that it was clear that the trial Judge did not evaluate that aspect of the plaintiffs’ case and did not consider the effect of the admission of all these averments in the further amended statement of the 2nd and 3rd defendants. He said:
“It is important to note that the admission concerning the princely titles held by members of Akata family were without qualifications.”
He went further to hold that:
“It is my considered view that the 2nd and 3rd respondents having made these admission cannot be heard to say otherwise.”
In regard to the evidence of the witnesses, the learned Justice was of the opinion that the way the trial Judge treated the evidence of some of the witnesses of the plaintiffs left much to be desired. The specific witnesses were PW4, who described himself as a prince of Arojojoye Ruling House from Adewa stock and, PW7 who was the head of the Kumuyi section of the Arojojoye Ruling House. The court below criticised the use of the evidence of the 3rd defendant to discredit PW4 on a point on which the witness was not cross-examined. It found that the trial Judge was wrong to have made use of the facts which PW7 was not confronted with in cross examination. It was of the opinion that the trial Judge’s evaluation of the evidence of PW8 was lacking in that “his evidence was not considered at all by the trial court in the judgment.” The court below criticized the judgment of the trial Judge in regard to the inference he drew from the fact that the plaintiffs’ ancestor, one Abulalasogun, claimed by the plaintiffs to be the son of Eiyebiokin, took a grant of land. It was of the view that the fact that the ancestor of the plaintiffs was granted land was blown out of proportion by the trial Judge.
In conclusion, the court below found that the plaintiffs “proved that there are seven stocks in that family. They did prove that Akata stock is one of the stocks in Arojojoye ruling family from the totality of the evidence before the court.” From this finding it inevitably followed, as put in the leading judgment of the court below, that the nomination of the 3rd defendant was vitiated by the exclusion of the plaintiffs from the family meetings at which he was nominated. In the event, the court below set aside the judgment of the High Court and granted several of the reliefs sought by the plaintiffs.
The defendants’ appeal from the decision of the court below raised several issues. The plaintiffs also cross-appealed. However, the issue relevant to the relationship of the plaintiffs to the Ruling House which is decisive of all the appeals is the third issue raised by the 2nd and 3rd defendants as follows:
“Considering the totality of the evidence adduced before the trial High Court and the painstaking way and manner the said trial High Court reviewed the said evidence and arrived at its judgment, whether or not the lower court was not in grave error by disturbing or setting aside the said judgment.”
Mr. Olanipekun, SAN, counsel for the 2nd and 3rd defendants, argued that the court below usurped the role of the trial Judge and descended into the arena by assessing witnesses and ascribing probative values to their evidence. It was argued that the court below was wrong in the view it held that the defendants should have specifically confronted the plaintiffs with the facts they relied upon in their defence. It was submitted that, in any event, the defendants “elaborately led evidence” which was believed rightly by the lower court that the plaintiffs are not related to them and are not members of their Ruling House. Mr. Olanipekun, though not conceding that the defendants made the admissions pointed out in the judgment of the court below, argued that even if they did make such admissions, a declaratory relief could not be granted on mere admissions.
For his part, Mr. Akanle, SAN, counsel for the plaintiffs, defended the judgment of the court below largely on the grounds on which the trial court had proceeded. He submitted that the judgment of the court below was perverse: (i) because of the admission by the defendants of paragraphs 22 to 29 of the further amended statement of claim; (ii) because the evidence of pw 4, pw 7 and pw 8 given by other stocks of the Ruling House supported the plaintiffs’ case but was discredited by the trial Judge in an ‘unorthodox’ manner; (iii) because the trial Judge did not weigh the evidence of both sides as to the origin of the plaintiffs’ family put forward by the defendants but unsupported by evidence; and (iv) because witnesses testified for the plaintiffs as against two from the defendants.
It is by now a well known principle of our law that it is not the function of an appellate court to substitute its own views for those of a court of first instance with respect to facts found by the court and based on a dispassionate appraisal of the evidence before it.In Kasunmu & Anor. v. Abeo (1972) NSCC 145 this court said at p 149:
“It is not, as we have always said, the function of a Court of Appeal to substitute its own views for those of a first instance tribunal with respect to facts found by that tribunal on a dispassionate appraisal of the evidence before it. But, equally clearly a Court of Appeal would be failing in its duty if by adopting the attitude of over restraint it allows facts found by such tribunal or inference not arising from facts found by such tribunal, to stand.”
However, where findings of fact are a result of inferences drawn from facts primarily found by the trial court, the appellate court is at liberty to form its own opinion. The legal position is succinctly encapsulated in the headnote of Okpiri & Ors. v. Jonah & Ors. (1961) 1 SCNLR 174; (1961) 2 NSCC 84 thus:
“In the case of finding of facts which are really inference drawn from facts specifically found the appellate tribunal will more readily form an independent opinion than in the case of a finding of specific fact which involves the evaluation of the evidence of witnesses particularly where the finding could be founded on their credibility or bearing.”
In this case the fundamental flaw in the judgment of the court below is that that court proceeded on the erroneous footing that the defendants admitted the averments relating to some chieftaincies held by members of the plaintiffs’ family and alleged to be exclusively “princely titles” pleaded in paragraphs 22-28 of the further amended statement of claim. The court below had focused on the admission of these paragraphs in paragraph 1 of the further amended statement of defence of the 2nd and 3rd defendants, but had over-looked paragraph 11 of the further amended statement of defence where it was specifically averred in regard to paragraphs 20 – 28 of the further amended statement of claim as follows:
“With reference to paragraphs 20, 21, 22, 23, 24, 25, 26, 27 and 28 of the further amended statement of claim, while admitting that some of the titles stated in those paragraphs are princely titles, the 2nd and 3rd defendants say as follows:
(a) That not all the titles are princely titles.
(b) Egbedi Chieftaincy is not a princely title but a title reserved for the head hunter, and can be given to any hunter of prowess who deserves it in any family in the Community.
(c) Only the Odogun Chieftaincy is a princely title peculiar only to the princes.
(d) Onigemo Chieftaincy can be given to any Omo Osa (Prince) or any preferred associate of princes.
(e) Elewere Chieftaincy is a title of no or title (sic) importance and is for the head of the workforce or youths in the palace, particularly for communal labour.
(f) The fact that anyone holds any of these titles in paragraphs 20-28 does not ipso facto qualify him or make him a Prince by blood in Ijero.”
In regard to paragraph 29 of the further amended statement of claim, which was also admitted in paragraph 1 of the further amended statement of defence of the 2nd and 3rd defendants, it was averred specifically in paragraph 13 of the said defence as follows:
“In answer to paragraph 29 of the further amended statement of claim, the defendants say that even though some members of Akata Family may participate in funeral ceremonies of deceased members of Ijero Royal Family, contributing food, drinks and money, defendants say that this is because of their long association as palace domestic and friends of members of the Royal family. This is usual in any Communities. There is a reciprocation of gifts at funeral ceremonies and festivals.”
Infelicitous as the drafting of the further amended statement of defence may have been, such infelicity of drafting does not justify the conclusion of the court below ignoring the specific averments denying the paragraphs in question and raising germane issues in defence. It is no longer a recondite principle of our system of pleading that either party may include in his pleading inconsistent sets of material facts. However, in this case there were no inconsistent averments in the defence in question if the further statement of defence is read as a whole and not disjointedly. The further amended statement of defence should have been read as a whole. Paragraphs 11 and 13 of the further amended statement of defence when read with paragraph 1 shows the limited extent to which the 2nd and 3rd defendants were prepared to admit the relevant paragraphs of the further amended statement of claim. It is evident that several averments of fact in the paragraphs in question were clearly denied, albeit in a later part of the pleading of the 2nd and 3rd defendants. Had the court below adverted to paragraph 11 of the further amended statement of defence of the 2nd and 3rd defendants it would not comfortably have come to the conclusion which it did, that:
“The admission concerning the princely titles held by members of Akata family was without qualifications.”
And, also that:
” … the 2nd and 3rd respondents having made these admission cannot be heard to say otherwise.”
The learned trial Judge was within his rights to have received and relied on evidence adduced in denial of facts pleaded by the plaintiffs in paragraphs 22- 29 and to have come to the conclusion, on the evidence before him, that “no Akata has been given a princely chieftaincy”.
The witnesses whose evidence the court below said the trial Judge did not properly evaluate were specifically identified in the leading judgment of the court below. First, is the evidence of PW4 about which the trial Judge said:
“The evidence of PW4 Johnson Adenigba who described himself as a transporter from Adewa family cannot be relied upon. He merely said ‘I am related to the plaintiffs who are from the Akata family’. He could not tell me any details of the relationship; who begat whom and how they came to have seven stocks. In fact all his evidence on the chieftaincies that are exclusively reserved for princes and which the Akata family had held before it was faulted by other witnesses………….”
In a later part of his judgment the trial Judge said about PW4:
“It was this Johnson Adenigba that the 3rd defendant said was not a member of Arojojoye Ruling House because he was brought by his mother from somewhere else and so could not be a competent witness of the geneaology of the Arojojoye Ruling House. The 3rd defendant’s assertion on this was not debunked by the plaintiffs.”
Onnoghen, JCA, who delivered the leading judgment of the court below cited, as instance of lack of proper evaluation of the evidence of PW4, the fact that that witness was not cross-examined as to his membership of Arojojoye and that 3rd defendants’ witness evidence to that effect came only during cross-examination and not in chief.
Although no question was asked the PW4 about his membership of Arojojoye family, the evidence was let in by the cross-examination of the 3rd defendant and thus became evidence which the trial Judge was entitled to rely on. The plaintiffs could probably have sought leave to rebut the evidence, but they did not. That was why the trial Judge said that the 3rd defendant’s assertion was not debunked.
The court below ignored the fact that several reasons were contained in the passage quoted above from the judgment of the trial Judge for rejecting the evidence of PW4 other than and before the “post-script” reference to the assertion of the 3rd defendant later in the course of the judgment. The court below did not consider those other reasons which were on their own cogent enough.
Second, is the evidence of PW7 in regard to which the criticism of the court below was that PW7 was not confronted in cross-examination with the fact which emerged in the evidence of DW3 that Kumuyi stock of Arojojoye Ruling House ceased to meet in PW7’s house due to disagreement over the chieftaincy issue. However, in the con of the totality of the evidence led in the case the issue made out of this criticism was out of proportion to what was material in resolving the issue of plaintiffs’ membership of the Ruling House. The short evidence of PW7 which consisted of the bare assertion that: “The Ajidahun are my paternal relations. They are from the Akata section”, hardly carried the plaintiffs’ case any further. In the same vein is the rather inconsequential statement which was not in issue and was not denied by anyone, contained in the evidence of PW7, that: “We Arojojoye Ruling House do things in common e.g. burial, chieftaincy, marriage etc.” The bare assertion carried no weight, because the trial Judge having determined that the case would turn on events in recent times, the latter statement could not have been of any use when the issue was whether or not the plaintiffs were members of Arojojoye Ruling House and the statement fell short of amounting to evidence that the plaintiffs did participate in the events enumerated by the witness.
Finally, on the question of evaluation of the evidence of specific witnesses, the court below criticized the trial court’s judgment on the ground that PW8’s evidence was not considered at all by the trial court in its judgment. Apart from merely saying that “Akata was a prince. Akata begat Ajidahun”, PW8’s evidence was directed at the appointment of the 3rd defendant, about which he said he knew nothing, and the default of the 2nd defendant in performing “according to the family wish” in regard to the nomination of the 3rd defendant. In cross-examination he said he could not relate the origin of the seven branches of the Ruling House.
The learned trial Judge extensively stated the evidence of PW8 in his judgment on pages 340 -341 of the record. It seems evident, from the following findings which he made, first, that no evidence was called by the plaintiffs to link the claimed seven stocks with Eiyebiokin whom the plaintiffs called the apex ancestor, and, secondly, that the case fell to be determined by recourse to events in recent times, that he did not make any special mention of the evidence of PW8 seems inconsequential since that witness did not provide evidence of the link of the plaintiffs to the seven stocks they alleged, and he did not give evidence of recent events in regard to the question of the plaintiffs’ membership of the Arojojoye Ruling House. That the trial Judge extensively narrated the evidence of that witness showed that he was not unmindful of it.
The court below criticized the use made of the admission by 3rd plaintiff that their ancestor was granted land between Obalogbo’s land and the palace and the inference he drew from that admission as follows: “if the claim that Abulalasogun was the 1st son of Eiyebiokun was true then it was he that should grant land to other people by virtue of his position as heir to the Oba Eyiobiokin.” Considering that it is for the plaintiffs to establish their case and the fact that the plaintiffs must rely on the strength of their case and not on the weakness of the defence, juxtaposing the admission made as above with the evidence of DW4 that their ancestor Obaleyahin begged for land from Olorisa as the court below did, did not carry the plaintiffs’ case any further.
It is clear that the grounds on which the court below came to the conclusion that the trial Judge did not properly evaluate the evidence on the issue of family relationship was either mistaken or misconceived. The trial Judge made a painstaking review of the evidence, related it to the issues and in an open and even-handed manner gave reasons in support of his findings. He made it clear early in his judgment that the pleadings of the plaintiffs were deficient as to the family tree needed to buttress their claim and the failure to lead evidence on such. He had recourse to evidence of recent facts to test the probability of competing traditional history. At the end of the day, he found that he was “more persuaded by the story of the defendants than the plaintiffs’ story which was not supported by acts of recent times”. He found that the plaintiffs have not discharged the onus on them. I venture to think that it was rather unfair to the learned Judge, and, with respect, tends to portray a lack of appreciation of his painstaking efforts and reasoning to hold, as the court below did, that:
“However, from the totality of the evidence before the court particularly the way the learned trial Judge handled the appellants’ case, it is obvious that even if the appellants had called a Bishop, the learned trial Judge would still not have accepted his (sic) evidence.”
It is pertinent to be reminded that where primary findings made by a trial court are supported by evidence preferred by that court, such findings cannot be held perverse merely because an appellate court would have been disposed, had it been the trial court, to prefer another set of competing evidence. Furthermore, a piece of evidence is of little or no value in determining an issue, that the trial court ignored such evidence or wrongly rejected or accepted it would make no difference to the conclusion.
In my judgment, the court below was in error in holding that the trial Judge did not properly evaluate the evidence of the plaintiffs. His finding that the plaintiffs, not being members of the Arojojoye Ruling House, had no locus standi to challenge the appointment and installation of the 3rd defendant was available to him on the evidence he preferred. The court below should have upheld that finding.
Since I have upheld the finding by the trial Judge that the plaintiffs lacked standing to institute the action, that is sufficient to dispose of the appeals and the cross-appeal of the plaintiffs and it is not necessary to consider such other several issues raised in the appeal of the 1st, 4th – 7th defendants and in the cross-appeal of the plaintiffs predicated on an assumption that the plaintiffs had a standing to institute the action. When a plaintiff had been found not to have a standing to sue, the question whether other issues in the case had been properly determined or not does not arise.
However, I comment further, albeit briefly, on the first issue in the cross-appeal, which is: “Whether or not the lower court was, in view of the evidence led, right in holding that cross-appellants failed to prove that the Arojojoye Ruling House comprises, seven stocks, which is their claim (a)”. It is evident that the main question, and one of substance, in the case was whether Akata was a member of the Arojojoye Ruling House or not. It was not a matter of arithmetic at all as the plaintiffs’ counsel would seem to have wanted to make it. It is clear that once the crucial finding is upheld that Akata was not a member of the Arojojoye Ruling House the number of stocks making up the Ruling House could not remain seven as claimed by the plaintiffs. The finding by the trial Judge that the plaintiffs were not authentic members of that Ruling House was enough to settle the matter. The second issue in the cross-appeal touched on the court below to restrain the first defendant from recognising the 3rd defendant as the Ajero of Ijero. As already stated that issue falls with the finding as to the lack of standing of the plaintiffs.
In the result, I allow the defendants’ appeal and dismiss the plaintiffs’ cross-appeal. I set aside the judgment of the court below and restore the judgment of the High Court dismissing the plaintiffs’ suit in its entirety together with the costs awarded by that court. The defendants, now appellants, are entitled to cost of this appeal and cross-appeal which I order to be N10,000 to each set of appellants and N5,000.00 each in respect of the appeal in the court below.
SC.100/2000
