Chief Ayoola Adeosun V. The Governor Of Ekiti State & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This is an appeal and a cross appeal against the judgment of the court of Appeal, Holden at Benin City in appeal No. CA/B/155/93 delivered on the 22nd day of March, 1996, in which the court allowed the appeal and dismissed the cross appeal against the judgment of the High Court of Ondo State Holden at Akure, in Suit No. AK/62/88 in which the court declared the registered Olupoti Chieftaincy Declaration null and void, etc.

At the trial court, the original plaintiff/appellant, Joseph Adebayo Osaguna instituted the action against the defendants/respondents in which he claimed the following reliefs:-

1. The declaration purportedly made under Section 5(1) of the Chiefs’ Edict 1964 as the Customary Law Regulating the selection of the Olupoti of Ipoti Chieftaincy approved on 24th December, 1987 registered on 26th December, 1987 is defective, faulty and objectionable and it is not a true reflection/codification of the Customary Law regulating the selection of a person to be the holder of the Olupoti Chieftaincy and should, therefore be null and void and of no effect whatsoever.
2. All actions purported to have been taken by:

a. the so called head of the Onidasa Ruling House namely Chief Aduramola Adesuyi, the Ejisun,

b. the so called Kingmakers of the Olupoti of Ipoti Chieftaincy namely Chief Ihurin Abinoye, Arowolo Elemkin and Kauni Ejesu respectively and

c. the secretary of Ijero Local Government in the purported nomination and selection of one Mr. Elijah Oladele Ayeni under the provision/authority of the said declaration is meaningful, null and void and of no effect whatsoever.

3. The purported selection of Mr. Elijah Oladele Ayeni an Olupoti elect by the said so called kingmakers is unlawful, null and void and of no effect whatsoever.
4. The Asso Emila and Ejemu families/branches, otherwise known as Amilede houses of the Onidara Ruling House are the only and truly the sons (Princes) of the Onidasa Ruling House of Ipoti-Ekiti and the only and truly the families/branches of the said Ruling House that can lawfully nominate a candidate(s) for selection into the vacant stool of the Olupoti of Ipoti by the true kingmaker namely the Iwaraja Mefa (the inner council) excluding the Olupoti of Ipoti namely chief Odofin of Ipoti, Sajiyan Ejiyan, Odofin Ejiyan, Ajana Owa and Odofin Owa in accordance with the customary Law of the Ipoti-Ekiti Community.
5. The proper and true Head of the Onidasa Ruling House is Chief Asao and not Chief Ejisun.
6. The Aworos namely chief Aworokin, Aworojasin and Asalu are the true and only accredited channel of consultation with the Ifa Oracle in the nomination and selection process(es) of a person to fill the vacant stool of the Olupoti of Ipoti Chieftaincy.
7. The plaintiff, namely prince Joseph Adebayo Osagawnwa having been unanimously, properly, duly and jointly nominated by the Asao Emila and Ejowu (Amilede) families/branches of the Onidasa Ruling House for the vacant stool of Olupoti be approved by the Ondo State Government.
8. An order compelling the Executive Council of Ondo State to direct the committee of the Ijero Local Government charged with the making of declarations under S.1 of the Chief Edict, 1984 to amend the said Olupoti Chieftaincy Declaration or make a new declaration to reflect the true customary Law regulating the selection of a person to be holder of the Olupoti Chieftaincy.
9. AN INJUNCTION:

i. restraining the 1st, 2nd and 3rd defendants by themselves or their servants and or agents or otherwise however from implementing or giving effect to the purported nomination and or selection of the 4th defendant, namely Elijah Oladele Ayeni as the Olupoti or Oba-elect;

ii. restraining the 4th defendant, namely Elijah Oladele Ayeni from parading or holding out himself as the Olupoti of Ipoti-Ekiti and from exercising any of the Olupoti royal functions.

The original plaintiff and appellant in this court was a prince of the Onidasa Ruling House of Ipoti-Ekiti and one of the three contestants to the stool of Olupoti of Ipoti-Ekiti the others being the 4th defendant/respondent and one Joseph Ajewole Ogunsola.

The 1st to 3rd respondents are Ondo State Government functionaries with roles to play in the execution of the provisions of Ondo State Chiefs Edict No. 11 of 1984 as regards the appointment and approval of the occupant of the stool of OLUPOTI of IPOTI.

The original 5th, 6th and 7th respondents are chiefs of Ipoti who performed the functions of kingmakers in the selection of the 4th respondent as the Olupoti elect, whilst the 8th respondent was Chief Ejisun who functioned as the head of Onidasa Ruling House but was challenged at the trial.

By Exhibit “U” the 5th-7th defendants/original respondents, as kingmakers selected the 4th respondent and recommended his appointment as the new Olupoti of Ipoti-Ekiti which appointment was challenged by the original plaintiff/appellant, on the following grounds:-

a. That the 4th respondent was not qualified to be a candidate for election/selection to the stool of Olupoti of Ipoti-Ekiti because he was not a Prince of the Onidasa Ruling House neither was he a descendant of any of the previous ten (10) occupiers of that stool.

b. That the 5th-7th defendants who acted as kingmakers were not lawful kingmakers under native law and custom of Ipoti-Ekiti and none of the lawful kingmakers -the Iwarefa – were consulted on the selection.

c. That the 8th defendant as Chief Ejisun was not a member of the Onidasa Ruling House and acted contrary to Ipoti-Ekiti customary law in presiding over the meeting of the Princes of the Onidasa Ruling House and as the head of the said ruling house.

d. That the custom of the people which required that Ifa Oracle be consulted by the Ipoti Aworos was not complied with in the selection.

On the 13th day of January, 1993, the trial Court entered judgment for the plaintiff/appellant in the following terms:-

” Finally, I hold on the evidence before the court:

1. That the Ruling House entitled to produce the Olupoti of Ipoti is called Onidara Ruling House.
2. The Head of Onidasa Ruling House is Ejisun.
3. The families or branches making up the Onidasa Ruling House are:-

a. Asao

b. Olomo

c. Emila

d. Ejemu

e. Ejisun

4. The names of the candidates if not disqualified are by customary law sent to the Aworo for consultation with Ifa Oracle.
5. That the kingmakers are Odofin Ipoti, Inurin, Eisinkin, Eisaba and Ejemu.
6. That the Olupoti Chieftaincy Declaration purportedly approved and registered on 24th December, 1987 is defective in that:-

i. it omitted some of the important customary laws of Ipoti Community as indicated in this judgment,

ii. it was not published so much so that the contestants claimed not to know of its contents,

iii. above all it was not approved by the appropriate authority as required by law.

It is hereby declared that the Olupoti Chieftaincy Declaration purportedly approved and registered on 24th December, 1987 is null and void. Consequently, all actions taken in pursuant to the Chieftaincy Declaration are null and void and of no effect whatsoever.

The 1st, 2nd and 3rd defendants by themselves and their agents are hereby restrained from giving effect to the nomination or selection made under the defective Olupoti Chieftaincy Declaration.

The 4th defendant Elijah Oladele Ayeni is hereby restrained from parading himself and exercising any of the Olupoti Royal functions because of the defect in the instrument of his appointment.

As neither the plaintiff nor the defendant can claim total victory over the other, I will make no order as to costs.”

The 4th- 7th defendants were dissatisfied with the judgment and appealed against same, particularly the grant of reliefs (4) and (6) in the judgment supra i.e that the names of candidates who are not disqualified by customary law are sent to the Aworos for consultation with Ifa Oracle and that the Chieftaincy Declaration was defective and consequently null and void, while the plaintiff/appellant cross appealed on the finding/holding of the trial court that:-

(a) there was only one Ruling Housing, the Onidasa, and that the said House consists of five branches with Chief Ejisun as its head; and

(b) that the kingmakers are Odofin, Ipoti, Chief Inurin, Chief Eisaba and Ejemu.

The Court of Appeal allowed the appeal and dismissed the cross-appeal resulting in the instant appeal before this court. The issue for the determination of which has been identified by learned counsel for appellant OWOSENI AJAYI, ESQ in the amended brief of argument deemed filed on 7th February, 2011, as follows:-

“Having held that there had been a violation of the native law and custom of the Ipoti-Ekiti in the selection of the 4th defendant, was the Court of Appeal entitled to uphold the validity of the said selection upon a ground (which was founded upon a case) which was completely contrary to the case made by defendants in the court below”.

At this stage, it is important to mention the fact that the 4th – 6th respondents have also cross appealed against the judgment of the lower court delivered on the 22nd day of March, 1996, which incidentally and funny enough, allowed the appeal of the instant 4th – 6th respondents against the judgment of the trial Court.

However, the issues for determination of the cross-appeal have been identified by learned Counsel for the 4th – 6th respondents/cross appellants, NIRAN DISU, ESQ in the amended 4th – 6th respondents/cross appellant brief filed on 22nd November, 2010 as follows:-

“1. Whether the Court of Appeal was right when it held that it could not make any pronouncement on the issue of whether or not paragraphs F(a), F(f) and F(g) of the Chieftaincy Declaration, Exhibit “D”, are consistent with the provisions of the 1984 Chiefs Edict.

2. Whether the inclusion of sub-paragraph F(a), F(f) and F(g) in the Registered Declaration for the Olupoti Chieftaincy Exhibit “D” is ultra vires S.1(3)(a)(v) of the 1984 Chiefs Edict of Ondo State”

Another important point to be mentioned is the fact that learned Counsel for the 1st and 2nd respondents OKWUDILIO AGBO, ESQ filed a Notice of Preliminary Objection on the 16th day of July, 2010 against the appeal on the following grounds:-

“1. The appellants Further and Further Amended Statement of Claim on which the trial judgment and the subsequent appeal upon which this appeal is predicated was signed by a law firm “W.A ALADEDUTIRE & CO” and not by a legal practitioner known as law (pp. 3-9 of Record).

2. The said Further and Further Amended Statement of Claim was null and void ab initio.
3. All subsequent process filed in response to the void Further and Further Amended Statement of Claim as well as the trial judgment and all other proceedings premised thereon are null and void ab initio.
4. The sole issue raised and argued by the appellant in his brief of argument is incompetent for not flowing from the grounds of appeal raised.
5. The entire appeal is grossly and incurably incompetent.
6. This Honourable Court lacks jurisdiction to entertain or hear this appeal”.

The objection was argued in the 1st and 2nd respondents brief of argument deemed filed on the 7th day of February, 2011. However, on the 24th day of October, 2011, when the appeal was heard learned Counsel for the 1st and 2nd respondents DAYO AKINLAJA, ESQ, Hon. Attorney-General of Ekiti State withdrew the first arm of the argument on the objection dealing with the competence of the Further Amended Statement of Claim as a result of which the same was struck out by the Court leaving arguments on the validity of the sole issue formulated by counsel for appellant for the determination of the appeal.

On the surviving ground of objection, it is the submission of learned Counsel that there was no ground of appeal in which a complaint is raised to the effect that the decision of the lower court upholding the validity of 4th respondent’s selection was based on a case contrary to that made by the respondents; that issues for determination must flow from the grounds of appeal failure of which the issue(s) must be disregarded, relying on Bhojsons Plc vs Daniel – Kalio (2006) 5 NWLR (Pt.973) 330 at 355 – 356: Ekek vs Ogbonda (2006) 18 NWLR (Pt.1012) 506 at 522; that since there is no valid issue formulated from the grounds of appeal, the grounds be deemed abandoned and consequently struck out, particularly as an omnibus ground of appeal cannot support an issue.

Learned Counsel urged the court to uphold the preliminary objection.

On his part, it is the submission of counsel for appellant that the submission of his learned friend supra is misconceived as the issue is supported by the grounds of appeal.

I have carefully read through the seven grounds of appeal together with their particulars and I am satisfied that the sole issue raised therefrom for the determination of the appeal is adequately covered by the grounds of appeal. I need not reproduce all the grounds herein as the objection is obviously designed to waste the time of the court. It is lacking in substance and is consequently dismissed by me.

In arguing the issue, learned Counsel for appellant referred to paragraphs 33 and 34 of the Further Amended Statement of Claim where appellant pleaded the custom of consultation of Ifa Oracle by the Aworos before the selection of Olupoti of Ipoti-Ekiti and the denial of the said paragraphs by the 4th – 8th defendants in their paragraph 25 of the Further Amended Statement of Defence; that the trial Court found the non-compliance proved and held that the same was contrary to paragraph F(f) of Exhibit “D” – the Chieftaincy Declaration.

It is the further submission of learned Counsel that the above finding by the trial Court was affirmed by the lower Court in its judgment at page 321 of the record but that instead of stopping there the lower Court erroneously went on to reverse the trial Court on the point by holding that the failure to consult Ifa Oracle was not substantial enough to render the selection of the 4th respondent invalid; a finding/holding which is contrary to the case put forward by the 4th – 8th defendants at the trial and urged the Court to resolve the issue in favour of the appellant and allow the appeal.

On his part, learned Counsel for the 1st, 2nd and 3rd respondents submitted that the lower Court was right in its holding that the failure complained of was cosmetic as the same is based on the case as presented and contested by the parties particularly the resolution of issue 2 formulated by the 4th – 7th appellants before the lower Court (the present 4th – 6th respondents); that the issue of consultation with Ifa Oracle being a condition precedent to the selection of the Olupoti was not pleaded by the appellant but “cropped up in the judgment of the trial Court….”; that the question of the effect of the failure to consult Ifa Oracle is that of interpretation of Exhibit “D” paragraph F(f) thereof, which is within the province of the Court to do relying on Bunge vs Gov. Rivers State (2006) 12 NWLR (Pt. 995) 573 at 629 and urged the Court to resolve the issue against appellant and dismiss the appeal.

On his part, learned Counsel for the 4th – 6th respondents stated that the trial Court only found that there was an omission to consult Ifa Oracle in the selection process without going further to find on the consequences of that omission thereby making the 4th – 6th respondents to challenge the decision and argued that the omission was not substantial enough to invalidate the selection of the 4th respondent and that the lower Court was competent to re-examine the issue which was really raised by the trial Court in its judgment; that the conclusion by the lower Court that consultation with Ifa Oracle by the Aworos is of no consequence is in the nature of a consequential order which the Court is empowered to make.

It is the further submission of learned Counsel, which I take to be in the alternative; that if the holding by the lower Court on the effect of the omission to consult Ifa Oracle is considered as made in error by this Court, such an error has not resulted in a miscarriage of justice and urged the Court to resolve the issue against appellant and dismiss the appeal.

There is no doubt that appellant pleaded consultation with Ifa Oracle by the Aworos as a condition precedent to the selection of Olupoti of Ipoti-Ekiti and that the 4th – 6th respondents denied that fact in their Further Amended Statement of Defence as follows:-

In paragraphs 33 and 34 of the Further Amended Statement of Claim the plaintiff/appellant averred thus:-

“33. The plaintiff avers that it is the prevailing custom in respect of the Olupoti Chieftaincy for the Ifa Oracle to be consulted by the accredited Ipoti Aworos.

34. The plaintiff avers that the Aworos, namely Chief Aworokin, Aworojasin and Asalu are from time immemorial the only accredited channel of consultation with the Ifa Oracle in the matters of nomination and selection of a candidate to fill the vacant stool of the Olupoti and there was no time that they were consulted by anybody on the existing vacancy to the Olupoti Stool. The plaintiff will rely on the written complaint of the Aworos dated 13th September, 1988.”

In reaction to the above averments, the 4th – 8th defendants stated in paragraph 25 of the Further Amended Statement of Defence as follows:-

“25. The 4th – 8th defendants deny paragraphs 33 and 34 of the Further Amended Statement of Claim and state that the Ipoti Aworos do not have any pre-installation functions to perform in the nomination/selection processes of an Olupoti of Ipoti”.

From the pleadings supra, it is clear that issues were joined by the parties as to whether by the customs of Ipoti people relating to the stool of Olupoti of Ipoti, the Ifa Oracle must be consulted on nomination and selection of candidate for the stool.

While the plaintiff insists that it is the custom of the people, the 4th – 8th defendants contend that the Aworos have no pre-installation functions to perform. What the trial Court was, in the circumstance, called upon to determine was which of the two versions is the correct statement of the customary law or custom of the people of Ipoti-Ekiti in relation to their relevant chieftaincy stool.

In addition to the pleadings of the parties, the Registered Chieftaincy Declaration of the State (Ondo State) constitutes a statement of the customs/traditions and/or customary law of the people as it relates to the chieftaincy to which the declaration relates. It is also settled law that where a Registered Declaration exits in relation to a chieftaincy, it constitutes a complete statement of the relevant customs/traditions and/or customary law applicable to the said chieftaincy and the Court and parties are not allowed to go outside it in deciding the applicable customary law except where there is evidence that the said chieftaincy declaration is fundamentally defective or does not contain the real custom/customary law of the people applicable to the stool in question, etc.

In the instant case, Exhibit “D” is the chieftaincy declaration relating to Olupoti chieftaincy and it provides in paragraph F(f) as follows:-

“(f) the kingmakers shall meet within fourteen (14) days of receiving the name or names of the candidate or candidates nominated and consider his or their suitability according to custom. Unless a candidate suffers a disqualification in accordance with the Chief Edict, his name shall be submitted by the kingmakers for consultation of Ifa by a person appointed by them for the purpose:

where however there is no unanimity by the kingmakers, the kingmakers shall decide the candidate by a simple majority of votes”.

Emphasis supplied by me.

The next question is what is the finding/holding of the trial Court in relation to the issue as joined in the pleadings and the evidence on record The answer is in the judgment of that Court at page 107 of the record where the Court found as follows:-

“DW4 Chief Daramola Ejisun admitted under cross-examination that the names of the candidates were not sent to Ifa Oracle.

Whereas paragraph F(f) of the purported Registered Declaration is to the effect that unless a candidate suffers a disqualification in accordance with the Chiefs Edict his name shall be submitted to the kingmakers for consultation of Ifa Oracle by a person appointed by them for that purpose. This is a substantial omission in the selection process of 4th defendant i.e Elijah Oladele Ayeni.”

From the above and by the rules and procedure of the Court the issue in controversy had been resolved in favour of the plaintiff/appellant’s version of the applicable custom of the people to the relevant process leading to the nomination selection of Olupoti of Ipoti-Ekiti. The trial Court did not only find that consultation with Ifa Oracle is a condition for the nomination/selection process but that its omission is a substantial omission.

What was the reaction of the lower Court to the above finding of fact by the trial Court This can be found at page 321 of the record where the court held as follows:-

“So one can say from the forgoing that the 4th – 7th appellants had admitted that the names of the candidates were never sent to the Aworos for consultation with Ifa Oracle, their reason being that such was not the custom. That being the case the plaintiff/respondent had no duty to call evidence to rebut or prove what was admitted. Our law is that “facts admitted need not be proved (5.75) of Evidence Act 1990”.

It is very clear from the above passage from the judgment that the lower Court agreed with or affirmed the finding of the trial Court on the procedure for the nomination/selection of the 4th defendant/respondent.

There is the argument of counsel for the respondents that the trial court relied on the evidence DW4 in making its finding on the issue of consultation with Ifa Oracle and not the evidence by the plaintiff. It is my considered view that the submission is misconceived in that the fact in dispute was pleaded and issue joined therein in the pleadings of the parties; Exhibit “D” paragraph F(f) was also in evidence and is relevant to the issue in question and finally, it is settled law that evidence elicited from the cross-examination of a defence witness which is in line with the facts pleaded by the plaintiff forms part of the evidence produced by the plaintiff in support of facts pleaded in the Statement of Claim and can be relied upon in proof of the facts in dispute between the parties. It follows therefore that, the admission of DW4 was not only an admission against interest, it also goes to prove the averment of the plaintiff that consultation with Ifa Oracle was required but not done in relation to the nomination/selection of the 4th respondent.

However, the lower Court went on, after affirming the finding of the trial Court that there was no consultation with Ifa Oracle as required by the customs of the people, to hold that the omission or non-compliance did not result in a miscarriage of justice as the same was not substantial, and that appellant failed to satisfy the Court that the failure to consult Ifa Oracle nullified the entire nomination exercise by reference to decided authority.

I agree with the submission of counsel for appellant that the lower Court was in error in so holding.

It is settled law that cases decided on pleadings are decided on the issues as joined in the pleadings, the purpose being to avoid surprise at the trial.From the pleadings earlier reproduced in this judgment, it is very clear that the issue before the Court is simply whether or not in the nomination/selection process of an Olupoti of Ipoti-Ekiti, the name or names of candidates must be sent for consultation with Ifa Oracle prior to nomination/selection of a candidate which both courts resolved in the affirmative. The issue of omission to comply with that requirement being substantial or not never arose from the pleadings and was, therefore, very irrelevant in the determination of the case as no party put such a case before the Court.

It should be remembered that Exhibit “D” is the codified customary law relating to the nomination/selection of an Olupoti of Ipoti-Ekiti and in paragraph F(f) thereof the word “shall” is employed in relation to the need of consultation with Ifa Oracle and that the trial court had found the omission to comply therewith to be “a substantial omission in the selection process….”

The finding by the trial Court is very much in accord with paragraph F(f) which used the word “shall” which has, in cases such as this, been interpreted to mean mandatory, not permissive or discretionally in nature.

In short, I find merit in the sole issue under consideration and therefore resolve same in favour of the appellant and consequently allow the appeal.

In relation to the cross appeal, the issues for the determination had been identified in the Amended Cross-Appellant brief filed on 22nd April, 2010, to be as follows:-

“1. Whether the Court of Appeal was right when it held that it could not make any pronouncement on the issue of whether or not paragraph F(a), F(f) and F(g) of the Chieftaincy Declaration, Exhibit “D”, are consistent with the provisions of the 1984 Chiefs Edict.

2. Whether the inclusion of sub-paragraph F(a), F(f) and F(g) in the Registered Declaration for the Olupoti Chieftaincy Exhibit “D” is ultra vires S.1(3)(a)(v) of the 1984 Chief Edict of Ondo State”.

In arguing the issues, learned Counsel for cross appellants stated that leave of the lower Court was sought and obtained to raise the issue but that court failed to resolve the issue in its judgment now on appeal and urged the court to now determine the issue, which is whether or not paragraphs F(a), F(f) and F(g) of Exhibit “D” are consistent with the provisions of 1984 Chiefs Edict in line with the principle laid down by this court in Ukwunnenyi vs State (1989) 4 NWLR (Pt. 114) 131 at 144: that a subsidiary legislation which conflicts with the provisions of its paramount legislation must be cut down and that the part of the subsidiary legislation which seeks to extend the content and application of the paramount legislation is a nullity; that since paragraphs F(a), F(f) and F(g) of Exhibit “D” seek to extend the provision of Section 1 (3) (a)(v) of the 1984 Chiefs Edict of Ondo State, they are invalid and consequently null and void.

Learned Counsel urged the Court to hold that there is therefore no legal provision for the consultation of Ifa Oracle in the process of appointing a candidate for the Olupoti of Ipot-Ekiti Chieftaincy and allow the cross appeal.

In his reaction to the cross appeal, learned Counsel for Appellant/cross respondent, in the amended respondents’ brief to the cross appeal deemed filed on 7th February, 2011, submitted that the cross appeal be dismissed in that:-

(a) having made out a case at trial that the 4th defendant’s selection had been properly made in accordance with the procedure prescribed by the Chiefs Edict of 1984 and the guidelines set out in the registered declaration, it is no longer open for the 4th – 7th defendants/respondents to contend that the guidelines were ultra vires and consequently null and void, and

(b) that the provisions in the registered declaration were properly inserted pursuant to the provisions of Section 8 of the Chiefs Edict, 1984 relying on the case of Adetoun Oladije vs N. B Plc (2007) 5 NWLR (Pt. 1027) 415 at 441.

It is the further submission of counsel that the cross appellants cannot in one breath contend that the 4th respondent was lawfully appointed in accordance with the guidelines and turn round, after being defeated on the issues to contend on appeal that the very same provisions were ultra vires and consequently null and void, relying on Oredoyin vs Arowolo (1989) 4 NWLR (Pt. 114) 172: Mafimisebi vs Ebuwa (2007) 2 NLWR (Pt. 1018) 385 at 428 – 429 and urged the Court to dismiss the cross appeal.

In the reply brief filed on 22nd April, 2010, learned Counsel for cross appellant submitted that since the law is that the main purpose of a cross appeal is to correct an error which is standing in the way of a respondent in the main appeal, it is therefore proper for the Court to be called upon to determine whether paragraphs F(a), F(f) and F(g) of Exhibit “D” are in conformity with the enabling law; that the cross appellant can invite the Court at any stage in a proceeding to determine the validity of any legal documents to be used in the course of the proceeding, etc.

It is not in dispute that the issues in the cross appeal were fresh issues raised, with leave of the lower Court but that the Court failed to pronounce on them.

The pivot of the plaintiff’s case as can be gleaned from the record rests on relief N0. 1(i) which is:

“The declaration purportedly made under S.5(1) of the Chiefs Edict 1984 as the customary law regulating the selection of the Olupoti of the Ipoti Chieftaincy approved on 24th December, 1987 registered on 24th December, 1987 is defective faulty and objectionable and it is not a true reflection/codification of the customary law regulating the selection of a person to be the holder of the Olupoti Chieftaincy and should, therefore be null and void and of any effect whatsoever.”

I had earlier reproduced the averments of the plaintiff in paragraphs 33 and 34 of The Further Amended Statement of Claim while dealing with the main appeal which deal with the requirement of consultation with Ifa Oracle on the issue of nomination or selection of Olupoti of Ipoti-Ekiti. The reaction to the said paragraphs of the Statement of Claim and captured in paragraphs 24 and 25 of the Further Amended Statement of Defence of the 4th -7th defendant where the pleaded thus:-

“24. The 4th – 8th defendants deny paragraphs 31 and 32 of the Further Amended Statement of Claim and state that the nomination/selection of the 4th defendant was in accordance with Ipoti Native Law and Custom as well as the procedure prescribed in the Chiefs Law and Guidelines set out in the registered declaration relating to the Olupoti of Ipoti”.

25. The 4th – 8th defendants deny paragraphs 33 and 34 of the Further Amended Statement of Claim and state that the Ipoti Aworos do not have any pre-installation functions to perform in the nomination/selection process of the Olupoti of Ipoti”.

The above paragraphs of the pleadings constitute the fundamental/pivot of the case of the parties in relation to Exhibit “D” which includes paragraphs F(a), F(f) and F(g) now sought to be declared null and void by the 4th – 6th respondents/cross appellants.

It is very clear that the present stand of the cross appellants is completely the opposite of their case on the pleadings and as presented at the trial court. It is the case of the cross appellants that they obtained leave of the Court to raise the issue as a fresh point of law at the lower Court but the question is whether the leave so granted in the circumstances allows the cross appellant to change their case at will and from one Court to the other. The answer cannot be far fetched. It is a big NO. A leave to raise fresh issue limits the issue to be so raised to the case of the parties as pleaded, the evidence on record in support of their contending positions and the judgment of the Court thereon. The issue cannot be at large otherwise it will constitute an instrument of ambush against the opponent.It is very improper of counsel who contented at the trial that the 4th defendant was lawfully appointed in accordance with the guidelines, Exhibit “D”, and was defeated in that contention to now turn round on appeal to this Court to contend that the very provisions which constituted the pivot of his case at trial was ultra vires, null and void and expect the court to take him serious. If the approach of the cross appellants is encouraged then there will be no certainly in the case a party is to meet in the Court which will erode the right to fair hearing. A party’s case in any proceeding cannot be like a chameleon

which changes its colours depending on its mood and environment.

The very tactic deployed by the cross appellants in the cross appeal is what they used at the lower Court when they argued that the plaintiff did not contend nor give evidence to show that the non-compliance with the provisions of paragraph F(f) of Exhibit “D” was substantial enough to nullify the nomination/selection of the 4th respondent and the lower Court, unfortunately agreed with them despite the facts pleaded by the parties, the evidence on rotation record which incidentally included paragraph F(f) of Exhibit “D”.

While it may be the law that a party “can invite the Court at any stage of the proceeding to determine the validity of any legal document that will be used in the course of the proceeding” the invitation would be proper only if the legal validity of the said legal document is put in issue in the pleadings of the parties before the Court. If not the invitation is of no moment, as in this case.In short, I find no merit whatsoever in the cross appeal, which is accordingly dismissed by me.

In conclusion, I find merit in the main appeal which is accordingly allowed by me. The judgment of the lower Court delivered on the 22nd of March, 1996, setting aside the judgment of the trial Court is hereby set aside, while the judgment of the trial Court in suit no. AK/62/88 delivered on the 15th day of January, 1993, is hereby restored and affirmed by me with N50,000.00 costs from each set of respondents to the appellant.

It is further ordered that the cross appeal by the 4th – 6th respondents be and is hereby dismissed for lacking in merit with N50,000.00 costs against the cross appellants in favour of the appellant/cross respondent.

Appeal allowed, cross appeal dismissed.

---

SC.19/1997