Chief Adenigba Afolayan Vs Oba Joshua Ogunrinde (1990)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C.

On the 27th day of November, 1989, after considering the submissions of counsel for the appellant and respondents made to the court in their briefs in writing and orally before us in this court, I dismissed the appeal with N500.00 costs to the respondents and reserved my reasons for the judgment till today. I now give them.

Proceedings in this matter were commenced in the Ilorin Judicial Division of Kwara State High Court by a writ of summons filed by the plaintiffs/respondents as plaintiffs against the defendant/appellant as defendant claiming therein:

“1. a declaration that the defendant being a ward head of Inishan within Oko village in Kwara State is not entitled under Oko native law and custom to wear any crown without the consent and approval of the Oloko of Oko and his chiefs;

2. an order of injunction on the defendant not to wear any crown without the consent and approval of Oloko of Oko and his chiefs.

Pleadings were filed and served and at the close of pleadings, the issues joined came up for hearing and determination before Oyeyipo, J. (as he was then). At the conclusion of the hearing of the evidence of witnesses and addresses of counsel, the learned trial Judge gave a well considered judgment in favour of the plaintiffs/respondents granting the declaration sought.

In his concluding paragraph, the learned trial Judge said:

“From the plethora of evidence adduced by the plaintiffs in this case and which evidence I accept, I am satisfied that the plaintiffs herein have amply proved their case against the defendants. It is trite law that before granting a declaration, a court must be satisfied that it will serve a useful purpose (Attorney-General v. Colchester Corporation (1955) 2 Q.B. 207) and that it will terminate the controversy which gave rise to the proceedings. (A. G. v. Dean and Chapter of Ripon Cathedral (1945) Ch. 239). I am satisfied that the granting of the declaration hereby sought by the plaintiffs will settle the issues in controversy among the parties herein as it will restore the status quo which in the light of the evidence I have accepted in this case has always existed between an Oloko of Oko and an Enishan of Inishan ward in Inishan Oko. It is this status quo which the defendant has sought to destroy in his defiance of the hallowed native law and custom of Oko as regards the issue of wearing a crown. In short, the plaintiffs have amply proved their case on the preponderance of evidence against the defendant and accordingly, I hereby grant the plaintiffs the declaration sought by them as per their writ of summons.”

The defendant was dissatisfied with the decision and by notice of appeal dated 1st day of April, 1981 appealed to the Court of Appeal on 8 grounds. Briefs of arguments were filed in the Court of Appeal and when the appeal came up for hearing, counsel adopted the submissions in their briefs expatiating on only a few issues. Mr. Ijaodola expatiating on the question of sustainable cause of action submitted that since the plaintiff failed to claim that they would lose anything materially, there was no sufficient cause of action.

Replying Olorunnisola for the respondents, submitted that, as the action was for a declaratory judgment, a cause of action need not be shown or disclosed beyond the claim. After the hearing, the Court of Appeal (Coram Wali, Akpata and Ogundere, JJ .C.A.) gave a considered judgment dismissing the appeal unanimously. Akpata, J.C.A., in his lead judgment with which the other learned Justices agreed, said he found no merit in all the grounds of appeal filed and argued (i.e. grounds 1, 2, 3, 4, 5, 6, 7 and 8) and dismissed the appeal.

Still dissatisfied, the defendant has appealed against the decision of the Court of Appeal to this court on 4 original grounds of appeal and two additional grounds. The grounds of appeal without their particulars are as follows:

1. The learned Justices of the Court of Appeal erred and/or misdirected themselves in law and in fact in dismissing the appellant’s appeal when the respondents herein who were the plaintiffs at the Ilorin High Court did not plead, let alone establish that they would lose anything if the appellant herein who was the defendant at the trial Ilorin High Court should wear a crown.

Particulars

i. ………………………………..

ii. ………………………………..

iii. ………………………………..

iv. ………………………………..

2. The learned Justices of the Court of Appeal erred in law in holding that they could not reverse the decision of the Ilorin High Court which was based on the demeanour of witnesses

Particulars

i. ………………………………..

ii. ………………………………..

iii. ………………………………..

3. The learned Justices of the Court of Appeal erred and misdirected themselves in law and in fact in confirming that the appellant’s village was a ward in Oko village when a respondent’s witness agreed that Inishan-Oko was at least one mile away from Oko village and there were other factors to the contrary.

Particulars of Error and Misdirection in Law and in Fact

i. ………………………………..

ii. ………………………………..

iii. ………………………………..

4. The learned Justices of the Court of Appeal erred on the facts by not setting aside the trial court’s decision that the Enishan should not wear a crown despite the fact that the name of the ancestor of the defendant (appellant herein) was Tewogbade which literally means “Accept the Crown with your palm

Particulars of Errors on the Fact

That name (Tewogbade) suggests that the defendant was a descendant of Oduduwa and that he was entitled to wear a crown as claimed by him.

The additional grounds of appeal are:

1. The learned Justices of the Court of Appeal erred in law in not setting aside the decision of the High Court to the effect that Inishan was part of Oko village when Inishan was not a party to the proceedings at the High Court.

Particulars of Errors of Misdirection in law-

i. ………………………………..

ii. ………………………………..

iii. ………………………………..

2. The learned Justices of the Court of Appeal erred and misdirected themselves in law in not making it clear in their judgment that Inishan community was not bound by the High Court decision since Inishan community was neither a party nor a privy to the High Court’s decision and it cannot be said that the Inishan community was guilty of the doctrine of “standing by”.

Particulars of Error and Misdirection in Law-

i. Only parties and their privies are bound by a court’s decision

ii. The Inishan community was not guilty of “standing by” and was not bound by the High Court’s decision that Inishan is part of Oko village.

The above grounds of appeal are essentially a repeat of the grounds of appeal filed and argued before the Court of Appeal. Leave to file the grounds raising issues of mixed law and fact and of facts was sought and obtained.

Parties filed their briefs and set out the issues for determination in this appeal. The issues formulated by the appellant in his brief are five fold and read as follows:

“1. Whether or not the plaintiffs had a cause of action;

2. Whether or not an appellate court could reverse findings of fact of a trial court based entirely on demeanour;
3. Whether or not Inishan is a ward in Oko village and
4. Whether or not it was in line with the custom of Inishan for the defendant’s family to wear a crown as suggested by the name of the defendant’s ancestor, Tewogbade.
5. Whether or not the action was properly constituted in view of the fact that Inishan community was not a party at the Ilorin High Court or alternatively whether or not the Inishan community was bound by the decision that Inishan was a ward of Oko village.

Mr. J.O. Ijaodola appeared as counsel for the appellant and Chief P.A.O. Olorunnisola appeared for the respondents. Learned counsel for the appellant dealt with all the issues formulated in his brief and at the oral hearing he amplified some aspects of his submissions.

On issue no. 1 above, he submitted that “there must be a loss or gain before a person can have a valid cause of action”. He cited in support the case of Adanji v. Hunvoo 1 N.L.R. 74 at 78. He referred to the dictum of Speed, Ag. C.J. that a chieftaincy is a mere dignity that the court had no jurisdiction to decide upon it. He submitted that section 236 of the constitution of the Federal Republic of Nigeria, 1979 does not alter the position that a plaintiff must derive some benefit from the action before a cause of action can be said to arise. He then submitted that the plaintiffs have disclosed no cause of action against the defendant. He also referred to the case of Olawoyin v. Attorney-General of Northern Nigeria (1961) NRNLR 84; (1961) 2 SCNLR 5. He submitted that the facts pleaded in paragraph 13 of the statement of claim to wit:

“All the Chiefs, senior to the defendant and those junior to him are against the defendant crowning himself because it is untraditional and it has no customary law or practice to support it.”

On issue no.2, learned counsel for the appellant submitted that although there had been concurrent findings by the two courts below that the Inishan is part of Oko village, the decision is perverse there being evidence that

(1) There are 3 wards in Inishan

(2) Inishan is about one mile between Inishan and Oko and

(3) Inishan village community has its own sub chiefs.

He then submitted that the findings of fact by the High Court being perverse the Court of Appeal erred in not setting the decision of the High Court aside. He submitted further that there is evidence to support a finding that the two villages Inishan and Oko are separate and distinct villages.

On issue no.3, learned counsel for the appellant submitted that the issue of Inishan being called Inishan-Oko was not raised in the pleadings and ought not to have been relied upon by the 2 courts below. He conceded that the defendant/appellant “had a lot of contact with the government in his capacity as the agent for collection of taxes”.

On issue no.4, learned counsel for the appellant submitted that the ancestor of the appellant was called Tewogbade and that the significance of the name lies in its meaning which is “open your palm to obtain a crown”. He then contended that the name presupposes that the defendant’s ancestor was a crown wearer. He debunked the argument that the Enishan was not entitled to wear a crown because Oloko and other Oko Chiefs do not wear a crown. He submitted that there is no statutory or customary law prohibiting the appellant from wearing a crown. He then relied on the dictum of Osborne, C.J. in the case of Lewis v. Bankole (1908) 1 N.L.R. 81 at 100-101 on adaptability of West African native custom to altered circumstances.

On issue no.5, learned counsel submitted that the action filed at the High Court was not properly constituted as all necessary parties were not brought before the court. He contended that Inishan community was a necessary party which should have been joined, and cited the case of B. Oloriode & Ors. v. S. Oyebi & Ors. (1984) 5 S.C. 1; [1984] 1 SCNLR 390 in support. He contended that not being a party, the Inishan community is not bound by the decision of the Court of Appeal.

Learned counsel for the respondents formulated two issues for determination in this appeal. The first issue reads:

“Whether a declaratory order can be made without a cause of action”

This issue is identical in substance with issue no. 1 formulated by the appellant. The second issue reads:

“Whether or not the plaintiffs proved their native law and custom with respect to the wearing of crown by the chiefs in Oko wards and in accordance with their claim on issues which were joined.”

This issue, though cast in different terms is essentially the same as issue no.4 of the issues formulated by the appellant. This issue formulated in the respondents’ brief brings out forcibly the real issue for determination in this appeal. Its determination will form the cornerstone of the success or failure of this appeal by the appellant.

Replying to the submissions of counsel, learned counsel for the respondents submitted that there is a cause of action disclosed in the claim filed. He pointed out that the statement of claim sufficiently pleaded the interest of the respondent, the customary law regulating the wearing of crown in Oko village and the violation and threat of continued violation of the custom of the Oko community in regard to the wearing of crowns.

Learned counsel for the respondents further contended that the respondents have a right and duty to protect and preserve the custom inviolate and maintain the relative position, status and hierarchy of chiefs in Oko land.

Turning to the provision of section 236 of the constitution of the Federal Republic of Nigeria, 1979, learned counsel submitted that the provision of the section gives right of action to every person who claims or contends that the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue. He contended that the existence of legal right, right of the appellant to wear a crown is in issue. Also in issue is the duty of the respondents to protect and preserve their custom which prevents the appellant from wearing a crown. He then submitted them a declaratory action need not disclose any cause of action if consequential reliefs are not claimed.

Turning to the issue whether it was proved that Inishan is part of Oko, learned counsel for the respondents submitted that the fact that Inishan is a part of Oko was pleaded and that it was proved by abundant evidence adduced by witnesses called by the plaintiffs/respondents.

The issues raised on the pleadings are all issues arising from a chieftaincy matter. When then the appellant submitted that the claim and pleadings filed disclose no cause of action, he must be questioning not only the absence of facts constituting the elements of chieftaincy but also the competence of the High Court to hear and determine the matter.

Cause of action has been defined by this court in many decisions of this court. See

Adogan & Anor. v. Aina (1964) NSCC (Vol. 3) 87

Adimora v. Ajufo (1988) NSCC (Vol. 19 (Pt.1) 1003, 1005; (1988) 6 S.C.; (1908) 3 NWL.R. (Pt.80) 1

Thomas v. Olufosoye (1986) 1 N.W.L.R. (Pt. 18) p. 669

Bello v. Attorney-General, Oyo State (1986) 5 N. W.L.R. (Pt.45) 825.

In its simplest terms, I would say that a cause of action means

(1) A cause of complaint;

(2) A civil right or obligation fit for determination by a court of law;

(3) A dispute in respect of which a court of law is entitled to invoke its judicial powers to determine.

It consists of every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment Cooke v. Gill (1873) L.R. 8 C.P. 107; Read v. Brown (1889) 22 Q.B.D. 128. When facts establishing a civil right or obligation and facts establishing infraction of or trespass on those rights and obligations exist side by side, a cause of action is said to have accrued. See Adimora v. Ajufo (1988) 1 NSCC 1005, 1008; (1988) 3 N.W.L.R. (Pt.80) 1.

It appears that this issue was raised in the Court of Appeal and the High Court without its being expressly determined, dealt with or answered. It is necessary to emphasise that once an issue is raised howsoever either on the pleadings or in the grounds of appeal and it is a proper one for determination, it is the legal duty of the learned trial Judge or appeal Justices to determine it. The contention of the learned trial Judge and the Justices of the Court of Appeal that a claim for a declaratory judgment need not disclose a cause of action where no ancillary relief is claimed, is no answer. This failure to answer the question gives the impression that the pleadings particularly the statement of claim filed by the plaintiffs/respondents were not examined. This statement of claim discloses that the facts pleaded in paragraphs 1, 2, 3,4,7,8 and 11 are facts which disclose a cause of action. These paragraphs read:

“1. The 1st plaintiff is the Oba Oko, the Oloko of Oko in Irepodun Local Government of Kwara State.

2. The Oloko of Oko is the only Oba in Oko land and under the Oloko are the following chiefs in order of seniority

(a) The Esa of Odo Oko ward who is the second plaintiff;

(b) Aro of Irapa ward who is the third plaintiff

(c) Odofin of Inishan ward

(d) Asanlu of Owaro ward

(e) Ipetu of Irapa ward

(f) Oye of lwoye ward

(g) Oye of Odo Oko ward

(h) Edemorun of Idomorun ward – the fourth plaintiff

(i) Enishan of Inishan ward – the defendant

(j) Olowa of Owaro ward

(k) Onigbin of Odo Aba ward

3. The Enishan of Inishan ward is the tenth in order (sic) to seniority of the Oba and Chiefs in Oko
4. There are seven wards in Oko made up as follows:

(a) Oko Isale or Okerigbo consisting of Irapa, Inishan and Iwoye

(b) Four other wards at Oke-Oko

7. By the tradition and custom of Oko people of which Inishan is part, no chief ever wears a crown
8. In contravention of age long tradition of Oko people and in defiance of the Oloko, the defendant has made several attempts to crown himself.
9. In September, 1978 the defendant made an attempt to crown himself and he was reported to the Irepodun Local Government and the Omu-Aran police command.
10. The 1st plaintiff has sovereignty over all the wards comprising Oko.
11. All other chiefs senior to the defendant and those junior to him are against the defendant crowning himself because it is untraditional and it has no customary law to support it.”

The facts pleaded above clearly establish a cause of action. They establish the hierarchy of the Oba and the Chiefs in Oko land and the order of precedence. They establish the customary law regulating the same and the prohibition of the wearing of crown by the chiefs. They establish the attempt by the defendant in contravention of the tradition and in defiance of the Oloko to crown himself when he is a chief under the Oloko of Oko. In Bello v. Attorney-General, Oyo State (1986) 5 N.W.L.R. (Part 45) p.828 a “cause of action” was defined as ‘the factual situation’ which entitles one person to obtain a remedy from another person in court. Dealing with the meaning of cause of action in his judgment in the above case, Karibi-Whyte, J.S.C., said at p.876:

“The proposition that a plaintiff has no cause of action merely because the defence has a valid defence is clearly not acceptable. I think a cause of action is constituted by the bundle or aggregate of facts which the law will recognise as giving the plaintiff a substantive right to make the claim against the relief or remedy being sought.

Thus, the factual situation which the plaintiff relies to support his claim must be recognised by the law as giving rise to a substantive right capable of being claimed and enforced against the defendant. In other words, the factual situation relied upon must constitute the essential ingredients of an enforceable right of claim. See:Trower & Sons Ltd. v. Ripstein (1944) A.C. 252 at p.263;Read v. Brown (1889) 22 Q.B.D. 128;Cooke v. Gill (1873) L.R. 8 C.P. 107;

Sugden v. Sugden (1957) All E.R. 300;Jackson v. Spittal (1871) L.R. 5 C.P. 542. Concisely stated, any act on the part of the defendant which gives the plaintiff his cause of complaint is a cause of action.”

It is clear from what I have said above that the defendant has given the plaintiffs their cause of complaint to the court. The contention of the appellant that the respondents did not plead or prove that they would lose anything is incorrect. The transgression of the native law and custom by the defendant and his defiance of the authority of he 1st plaintiff, Oloko of Oko by crowning himself and wearing a crown amount to a wrong against the plaintiffs which could if not remedied, cause the village loss of stability, peace and harmony.

The case put forward by the appellant that Inishan is distinct and separate from Oko and that he is not under the Oloko of Oko and entitled to wear a crown is evidence of what the plaintiffs would lose by the defendant wearing a crown. There is therefore no substance in ground 1 and the issue whether the claim disclosed a cause of action must be answered in the affirmative.

Turning to issues nos. 2, 3 and 4 raised in grounds 2, 3 and 4, I find that the questions raised in these grounds are questions of mixed law and fact. It is the law that appeal courts must not substitute their own views of the facts of a case for the views of the trial court which had the advantage of seeing and hearing the witnesses testify when the decision of the trial court is based on the credibility and demeanour of the witnesses. See Chief Frank Ebba v. Chief Ogodo (1984] 1 SCNLR 372, Okafor v. Idigo (1984] 1 SCNLR 481, Watt or Thomas v. Thomas (1947) A.C. 484

Ben Max v. Austin Motors Co. Ltd. (1955) A.C. 370

It is only where the question does not affect the issue of credibility of witnesses that an Appeal Court is in as good a position as the trial court to evaluate the evidence given and come to a proper decision which may or may not accord with that of the trial court.

The Court of Appeal has therefore in the instant case, correctly restated the law and adopted the correct attitude by refraining from interfering with the findings made by the High Court. The court’s disinclination to reverse the findings of fact made by the trial court is dictated by law and the overwhelming evidence on record in support of those findings.

There is overwhelming evidence which established that Inishan is a ward in Oko village and that Inishan community is a constituent part of Oko community. The evidence of 2nd plaintiff, 3rd plaintiff, 4th plaintiff and plaintiff’s 1st witness accepted by the learned trial Judge established these facts. There is therefore no substance in grounds 2 and 3.

The facts sought to be reversed by this court are concurrent findings made by the High Court and the Court of Appeal. This court has said repeatedly that it will not interfere with or set aside and reverse concurrent findings of facts which have not been proved to be perverse or arrived at in violation of some principles of law or procedure. The appellant has, in my view, failed woefully to discharge the burden of proving that those findings were perverse or arrived at in violation of some principles of law or procedure as required by law so as to persuade this court to interfere with those concurrent findings. See Enang v. Adi (1981) 11-12 S.C. 25 at 42, Okagbue v. Romaine (1982) 5 Sc. 133 at 170-171, Lokoyi v. Olojo (1983) 8 S.C. 861 at 68-73; [1983] 2 SCNLR 127, Ojomu v. Alao (1983) 9 S.C. 22 at 53; [1983] 2 SCNLR 156, Alade v. Alemuloke (1988) 1 NW.L.R. (Pt.69) 207 at 212, I therefore hereby affirm the findings for the third time.

Grounds 2 and 3 fail and are dismissed. Ground 4 appears to be a huge joke. It is never the rule of law and practice in our courts that facts to be proved are proved by reference to the meaning attached by the party to his ancestors name or title. The submission that the meaning of “Tewogbade” the name of appellant’s ancestor establishes that the defendant was a descendant of Oduduwa and that he was entitled to wear a crown as claimed is totally without foundation and untenable and I hereby reject it and dismiss the ground as misconceived and frivolous.

Turning to the issue raised in the additional ground 1, i.e., whether the action is properly constituted having regard to the fact that Inishan community was not made a party; I can find nothing either in the pleadings or evidence on record to suggest that members of the community have breached the native law and custom of Oko village. The appellant’s defence that he inherited the crown and was entitled to wear it as his fathers before him cannot found a cause against Inishan community. There being no cause of action against the Inishan community the action is properly constituted and additional ground 1 fails.

Additional ground 2 is, in the light of the above, misconceived and frivolous. Apart from the appellant, no member of the community has claimed to be entitled to wear a crown. It was for the above reasons that I dismissed the appeal on the 27th day of November, 1989.

NNAMANI, J.S.C.: This appeal came before this court on 27th November, 1989. Having read the record of proceedings, and after hearing learned counsel to the appellants learned counsel to the respondents having not been called, I was satisfied that the appeal was devoid of merit and dismissed it. I indicated that I would give my reasons for that judgment today. I now give the reasons.

I have before now had advantage of reading the reasons for judgment just delivered by my learned brother, Obaseki, J.S.C. I agree with these reasons and adopt them as my own.

The main bone of contention was the attempt to wear a crown. The respondents had sued for a declaration that:

“1. The defendant being a ward head of INISHAN within Oko village in Kwara State is not entitled under Oko native law and custom to wear a crown without the consent and approval of the Oloko of Oko and his Chiefs.

2. The defendant should not wear any crown without the consent and approval of the Oloko of Oko and his Chiefs. Both in their pleadings and evidence, the respondents established that INISHAN was a ward within Oko and that the appellant was 10th in order of seniority of the Oba and Chiefs in Oko. This was as against the pleading and evidence of the appellant that INISHAN was a separate community from Oko founded by a prince from Ishan-Ekiti and that the Enitshan of INISHAN had always worn a crown during festivals. Oyeyipo, C.J., who heard the case found as follows:-

“Having carefully reviewed and reflected on the evidence in this case, I am satisfied that the preponderance of probability is definitely in favour of the plaintiff’s contention that Inishan is a ward in Oko and that the defendant is a sub-chief under the Oloko and probability is always a safe guide to sacred sanctuary of belief. I accept their testimony that under Oko native law and custom no Oloko ever wears a crown and a fortiori no sub-chief who is subordinate to Oloko can ever wear a crown under that custom. I also find as a fact from the evidence of the plaintiffs and only witness and which evidence I accept in entirety that Inishan is a ward in Oko hence it is called Inishan-Oko. I also find as a fact that the defendant is a ward head in Oko.”

These findings were confirmed by the Court of Appeal. The appellant has shown no special circumstances that would justify disturbing them. It was for this reason and the more detailed reasons in the lead judgment that I dismissed the appeal.

UWAIS, J.S.C.: I have had the privilege of reading in draft, the judgment read by my learned brother, Obaseki, J.S.C. As it was for the same reasons that I agreed, on the 27th day of November, 1989, that the appeal should be dismissed with N500.00 costs to the respondents. I adopt the reasons as mine and do not wish to add anything more.

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Other Citation: (1990) LCN/2442(SC)