Chief D.A. Odusole V. The Military Governor of Ogun State & Ors. (2002)

LawGlobal-Hub Lead Judgment Report

ONALAJA, J.C.A. 

The plaintiff now referred to in this judgment as appellant, issued a writ of summons against the 1st to 6th defendants hereinafter called the 1st to 6th respondents at Ijebu Igbo Judicial Division High Court, Ogun State, holden at Ijebu Igbo High Court, wherein appellant endorsed the writ of summons with the particulars of claim as follows:-

“The plaintiff’s claim is for

(1) A declaration that the appointment of the plaintiff as the Olorilu of Ojowo in 1988 made by the Orimolusi of Ijebu Igbo, in the lawful exercise of his duty as the prescribed authority for the appointment of minor chiefs, whose chieftaincy are associated with the native community in the area traditionally associated with Ijebu Igbo, under section 22(1) of the Ogun State Chiefs Law 1978, and confirmed on the 22nd December, 1990, is valid, legally and constitutionally subsisting.

(2) A declaration that the purported appointment of one Chief Mr. David Adebayo Kuyeba, as the new Olorilu of Ojowo made by the Executive Council of Ogun State, purportedly made on 18th November, 1991, is arbitrary, meddlesome, unlawful and unconstitutional.

(3) An order of perpetual injunction restraining the defendants, their agents and or privies from appointing any other person as the Olorilu of Ojowo other than the plaintiff.”

The writs of summons were served individually on 1st to 6th defendants. The 1st to 6th defendants had a joint legal representation whilst the 6th defendant was represented by a learned Counsel. After services of the writ of summons on all defendants/respondents, pleadings were filed, delivered and exchanged, the trial was concluded on appellants’ statement of claim at pages 3 and 4 of the record of appeal and reply to the defendants/respondents’ statement of defence at pages 58 and 59 of the record of appeal.

The 1st to 5th respondents filed a joint statement of defence at pages 51 to 53 of the record of appeal.

Originally 6th respondent filed a statement of defence in the course of trial he sought and was granted leave to amend the statement of defence as recorded at pages 85 to 87 of the record of appeal.

The appellant averred in the undermentioned paragraphs of the statement of claim as follows:-

“(8) The plaintiff avers that in 1988, he was appointed as the Olorilu of Ojowo by the Orimolusi of Ijebu Igbo, in the lawful exercise of the authority vested in him by law.

(9) The plaintiff states that the said appointment was duly communicated to the Executive Council of Ogun State and to the office of the Governor of Ogun State.

(10) The plaintiff contends that his said appointment was generally acceptable to the entire indigenes of Ijebu Igbo and particularly the natives of Ojowo.

(11) The plaintiff states that the said appointment was subsequently confirmed on the 5th October, 1991, the plaintiff will at the trial rely on the –

Address delivered by Oba Adetayo Kupakude IV. The Orimolusi ofIjebu Igbo on Saturday, 5th October, 1991.

(12) The plaintiff contends that the entire indigenes of Ijebu Igbo particularly the natives of Ojowo expressed their unreserved satisfaction at his appointment as the Olorilu of Ojowo.

(13) The plaintiff further states that since his appointment in 1988 neither the Executive Council nor the Governor nor any authority whatsoever had accused him of any wrong doing.

(14) The plaintiff avers that to his chagrin, on 18th November, 1991 the Executive Council purportedly appoints one Mr. David Adetayo Kuyeba as the new Olorilu of Ojowo.

(15) The plaintiff contends that the appointment of another Olorilu of Ojowo was most unwarranted as he is still the incumbent Olorilu of Ojowo.

(16) The plaintiff will at the trial contend that the appointment of another Olorilu of Ojowo made by the Executive Council of Ogun State is arbitrary, unlawful, unconstitutional, misuse of power and therefore null, void and of no effect.

(17) Whereof the plaintiff claims as per his writ of summons (The underlinings are mine).

The 1st to 5th respondents averred in the underlisted paragraphs of the statement of defence thus:-

(3) The defendants aver that the Olorilu of Ojowo chieftaincy is a minor chieftaincy with an approved and registered declaration.

(4) The defendants averthat the last Olorilu of Ojowo Chief S. Banjo died on 23/8/87.

(5) The defendants aver that following the death of Chief Banjo, the then Secretary to the Military Government wrote the secretary of Ijebu North Local Government to advise the Orimolusi of Ijebu Igbo, who was the prescribed authority to proceed with the appointment exercise for the filling of the vacant stool.

(6) The defendants aver that while the appointment exercise was being carried out by the said prescribed authority, the Governor of Ogun State received petitions complaining against the process. An example of the petitions received by the Governor’s office is that written by the Ojowo Chieftaincy Committee dated 10th April, 1988.

(6a) The defendants will found on this petition at the hearing of the suit.

(7) The petitions contained allegations of certain irregularities in the appointment exercise in respect of the vacant Olorilu of Ojowo chieftaincy which caused threat to peace and security to lives and property in the Ojowo Community of Ijebu Igbo.

(8) The defendants aver that the receipt of petitions in respect of the said appointment exercise was communicated to the prescribed authority, Oba Adebayo Kupakude IV, the Orimolusi of Ijebu Igbo by the Governor’s office.

(9) The defendants aver that following the receipt of petitions in respect of the chieftaincy title in dispute, the Governor appointed an investigation panel consisting of one Alhaji B. A. Adekanbi to look into the filing of the vacant stool.

(10) The defendants aver further that a press release was issued by the Governor’s office on 12/5/88 in respect of the chieftaincy title in dispute. The defendants will rely on the said press release.

(11) The defendants aver that it was directed by the Governor that in the interest of peace and good government, the Orimolusi of Ojowo chieftaincy stool should remain vacant pending the outcome of the investigations being conducted into the appointment exercise.

(12) The defendants aver that Alhaji Adekanbi submitted the report of the administrative enquiry into the filling of the vacant stool of Olorilu of Ojowo chieftaincy on 8/8/88. The defendants will rely on the said report which recommended that the purported appointment of the plaintiff should be nullified and that the whole process should be commenced de novo.

(13) The defendants aver that in order to restore peace to Ijebu Igbo Community, the State Government gave some directive to the then prescribed authority, the Orimolusi of Ijebu Igbo regarding the Olorilu chieftaincy.

(14) The defendants aver that the said directives were not carried out which led to the revocation of the appointment of the Orimolusi of Ijebu Igbo in the Ijebu North Local Government Area of Ogun State as a prescribed authority under section 26(3) of the Chief of Law, 1978.

(14a) The defendants plead the supplement to Ogun State of Nigeria extraordinary gazette No. 45 Vol. 16 7th November, 1991 – Part B – OG. S. L. N. 6 of 1991, which carries the notice in respect of the said revocation.

(15) The defendants state that following the revocation of the appointment of the Orimolusi of Ijebu Igbo as prescribed authority in respect of the Olorilu chieftaincy, the State Executive Council approved the appointment of the 8th defendant as the Olori Ilu of Ojowo in November, 1991.

(16) The defendants aver that the said appointment of the 8th defendant was published at page 3 of the Daily Sketch of November 16th, 1991. The defendants will rely on this publication at the hearing of the suit.

(17) The defendants will contend that the revocation of the appointment of the Orimolusi of Ijebu Igbo as prescribed authority is lawful; and that the subsequent approval of the appointment of the 6th defendant as the Olori Ilu of Ojowo by the State Executive Council is also lawful. (The underlining are mine)

At pages 85 to 87 of the record of appeal 6th respondent pleaded in some paragraphs of his amended statement of defence as follows:-

3. With regard to paragraphs 7 and 14 of the said statement of claim, 6th defendant avers that the appointment of 6th defendant was only approved by the Executive Council after the Odosenbadejo family of Ojowo, Ijebu Igbo, had nominated and appointed 6th defendant as Olori Ilu as required by the tradition and laws pertaining thereto.
4. The 6th defendant will contend at the trial that the approval of his appointment as Olori Ilu Ijebu Igbo, by the Executive Council of Ogun State is not illegal but lawful.
5. There are four quarters in Ojowo part of Ijebu Igbo entitled in provide candidate for the title of Olori Ilu of Ijebu Igbo.
6. The quarters are:-

(a) Etitale quarters

(b) Aledo quarters

(c) Amutebu quarters

(d) Odosenbadejo quarters

7. The first three quarters, Etitale, Aledo and Amutebu have provided candidates in turn in the past respectively as Olori IIu.
8. It is now the turn of Odosenbadejo to nominate the candidate for Olori Ilu to the exclusion of any other person or quarters.
9. The 6th defendant was unanimously nominated along with one Mr. Emmanuel Adebajo as Ideko about March, 1991, by the entire members of Idokan Family, who are entitled to do so at Odosenbadejo Ojowo Ijebu-Igbo, under the leadership of Chief Gabriel Adeyesi the Oloritun of Idokan and the nomination was promptly communicated to the 5th defendant.
10. Plaintiff was not nominated and has not been nominated up to date by any person in Idokan family of Odesenbadejo quarters, Ijebu Igbo.
11. The 6th defendant will contend at the hearing that the appointment or approval of plaintiff as Olori Ilu was wrongful, null and void and of no effect hence the timely cancellation of same by the Ogun State Executive Council.
12. After the nomination of 6th defendant and Emmanuel Adebajo as Ideko their names were sent to the Kingmakers headed by Chief Mustapha – Odejayi (Alias Gbebolaja), the Oliwo of Ojowo for their own duty.
13. The kingmakers later screened the two candidates and unanimously approved the nomination of 6th defendant, whose name was then forwarded to the Ijebu North Local Government for onward transmission to the State Executive Council which later confirmed the approval of 6th defendant.
14. The 6th defendant will tender and rely on the letter Ref. No. IBLG/59/135 of 18th November, 1991, signed by the Secretary to the Ijebu North Local Government and addressed to the 6th defendant in support of his case and also on all other papers that have transpired between all parties.
15. The 6th defendant will urge the court to hold that plaintiff’s case is not justiciable or at least premature and ought to be dismissed on points of law.
16. The 6th defendant will show at the hearing that the nomination, appointment and subsequent approval of the appointment of 6th defendant as Olori Inu of Ojowo, Ijebu Igbo, enjoyed the blessing and full support of all the kingmakers entitled to consent thereto. The 6th defendant will finally urge the plaintiff’s case be dismissed as frivolous, vexatious and as constituting an abuse of court process. (The underlinings are mine)

To substantiate his claim appellant testified for himself and testified in the line of his averment in the statement of claim. On 29th day of March, 1988, the Senior Olori Ilu of Odosenbadejo called the general meeting of Odosenbadejo at which meeting attended by him, himself and 6th respondent were nominated for selection as Olori Ilu Ojowo. The Senior Olorintun’s name was Mustapha Williams. After the general meeting he received a letter of invitation dated 5th April, 1988, inviting him to the Town Hall Ijebu-Igbo to appear before the selection committee the letter was admitted and marked exhibit 1 after the learned trial Judge overruled the objection to its admissibility. The committee of selection was made up of 9 people who interviewed appellant. After the interview he was served with the copy of a letter by Oba Orimolusi addressed to the Secretary of Ijebu North Local Government that the selection committee had reported to him and he was appointing him as the Olori Ilu of Ojowo the letter was admitted as exhibit 2 which was confirmed by the Orimolusi of Ijebu Igbo in his letter to him on 9th October, 1991, which letter was admitted and marked exhibit 3. After receipt of exhibit 3 himself and his people proceeded to thank the Oba Orimolusi. The appointment was flashed in the mass media on radio and television. No government, individual or any institution ever accused appellant since his appointment by Oba Orimolusi as Olori Ilu Ojowo of any misdoing, also his attention was not drawn against any petition or complaints made against his person or his appointment by any person, his people as the Olori Ilu of Ojowo, nobody invited him to give evidence before or at any administrative inquiry. He was never informed that Oba Orimolusi has appointed any other person as Olorilu of Ojowo apart from him.

On 18th November, 1991, appellant overheard that the Ogun State Government has appointed the 6th respondent David Adebayo Kuyeba as the Olori Ilu of Ojowo. To his personal knowledge it was only Oba Orimolusi that had authority to appoint Olori Ilu of Ojowo, which powers he exercised previously by appointing four others, so also was the deceased his predecessor Chief Fowokan Banjo who died in 1987.

Under rigorous cross-examination by learned Counsel for 1st to 5th respondents he denied vigorously that at the time of his appointment there was threat to peace and unrest in the quarters. He was unaware that many petitions were written about unrest to the Governor’s office. He did not know of the press release by the Government that declared the stool vacant on 12th May, 1988. He did not know that the prescribed authority of Orimolusi to appoint Olori Ilu was revoked on 5th November, 1991. He agreed that it would be incompetent of Oba Orimolusi to have appointed him after the withdrawal of his prescribed authority status. He heard that on 18th November, 1991, the 6th respondent was appointed as the Olori Ilu of Ojowo. Appellant heard about 6th respondent’s appointment on the radio not in the newspapers.

The learned Counsel for 6th respondent in cross-examination of appellant made him to agree he was close to the Orimolusi and that like 6th respondent they belonged to Idokan Family of Odosenbadejo which made 6th respondent also eligible to contest the position. The 6th respondent and Pa C.A. Adeyimi, the Oloritun of Idokan jointly instituted a court action against him which, was later withdrawn. He was not aware that they withdrew the action because of an on going inquiry on the matter. He heard about the 6th respondents’ appointment on 18th November, 1991.

Oba Orimolusi has the responsibility to elect the selection committee, that shall report the selection of Olori Ilu to him. There were no kingmakers at Ojowo but had only selection committee.

Respondent knew Gbebolaja but not as Oluwo of Ojowo as the last holder died early in 1987. He agreed that there was a chieftaincy declaration at Ojowo, which was enacted in 1958 by the then old Western Region.

At the time when he was appointed the Apena of Ojowo was Pa Asafa Ige. Before a person was appointed Olori Ilu the approval by Oloritun Odosenbadejo was not needed, as this had been done by the selection committee. He concluded that he did not present himself before Kabiyesi for appointment because he was the Bobaseye.

In re-examination, he stated there were 14 Olorituns apart from Oliwo and Apena. With Oloritun Senbadejo as the most Senior Oloritun at Odosenbadejo.

The 2nd PW was Chief Mustapha Williams the Oloritun for Odosenbadejo that after the death of Fowokan Banjo, the Secretary Ijebu North Local Government wrote to them to present another Olori Ilu, which made him to invite the people of Isenbadejo to select Olori Ilu Ojowo. At the meeting the appellant and 6th respondent were duly nominated to fill the vacant position. The two names were dispatched to the Secretary of the Local Government, who then wrote back that they should summon the whole of Ojowo Community. The meeting was held at the town hall with 3 people, who represented the Ojowo people through the Olorituns and as Pampa he mentioned those present and those absent but could not explain or account for those who were absent because of the composition of the selection committee. He was not aware that the government appointed an inquiry into the meeting they held at the town hall, after the selection was made. He did not know Alhaji Adekanbi, he met him after the meeting. Witness stated he never appeared before any government official where he called himself Ishola Williams. He could not remember all the Pampas of Ojowo Community during the reign of the last Olori Ilu. To his knowledge, there was no civil unrest after the appointment of the appellant by the meeting, there was also no rancour.

When cross-examined by learned Counsel for 6th respondent, he denied knowledge of the cancellation of appellant’s appointment by the Government and not aware that 6th respondent was appointed by Government in place of appellant.

Oloritun Idokan was the next in seniority now witness as Oloritun of Ojowo. He did not receive any letter in March, 1991, because due to illness between February and April, 1991, he was ill as a result he could not function effectively as Oloritun. At the town hall meeting 12 persons ought to have been present, nobody came from the Local Government. It was only the appellant that was interviewed with emphasis on what he had done to the community. No other person was interviewed after appellant. Appellant and 6th respondent were from Idokan Family. After the meeting, they informed Oba Orimolusi that appellant was the person chosen as Olori Ilu Ojowo. The Apena declined to vote because he said he was related to the two contestants. He concluded the cross-examination that he was 90 years old.

Under cross-examination, by learned Counsel for 1st to 5th respondents he admitted was also called Ishola and also Ishola Williams. On membership of the selection committee he testified they should be 12 and not 14. He mentioned the Olorituns who ought to be present at the meeting. He denied knowing Alhaji Adekanbi and denied flatly that he appeared before any government official where he described himself as Ishola Williams. There was no civil unrest after the appointment of appellant by the meeting.

The 3rd PW remembered attending the meeting of 8th April, 1988, which was selection committee meeting of Ojowo to select a new Olori Ilu of Ojowo, the committee comprised 14 members and enumerated them with their seniority, but it was 9 members who attended the meeting of 8th April, 1988. As it was the appellant alone who was present he was directed to go out and shout for the name of 6th respondent several times. The meeting was suspended for 30 minutes with further directive after it to go out and shout for the name of the 6th respondent again still without response. After this the meeting concluded its deliberations and forwarded appellant’s name to Oba Orimolusi of Ijebu Igbo by a letter and copy to Secretary of Ijebu North Local Government, Ijebu Igbo. He functioned at the meeting of the selection committee as Asiwaju Pampa of Amutebu I, to which position he was appointed in 1985.

When cross-examined by learned Counsel for 1st to 5th respondents, he stated that since appellant was appointed by the selection committee on 8th April, 1988, he had been acting. He would not say categorically whether appellant was still in acting capacity. He did not know if sometime in 1988, there was a break down of law and order in Ojowo Community because he was not in Ojowo throughout 1988. 6th respondent was not present at the selection committee meeting. He also did not know of breakdown of peace and order following the revocation of the prescribed authority of Orimolusi of Ijebu Igbo, or that after the revocation the appointment exercise commenced afresh. Owing to the cost of newspapers he was no longer reading newspapers so it would not surprise him that the appointment of 6th respondents was published in the newspaper. He disagreed with learned Counsel for 6th respondent that Chief Okubanjo was appointed as Asiwaju Pampa of Amutebu. He concluded his testimony that they only recommended appellant to Oba Orimolusi and he did not know whether he was appointed. Since 1988, there had been no Olori Ilu of Ojowo and nobody had been acting as Olori Ilu since 1988. The meeting he attended in April, 1988, was called “The selection committee.”

The 4th plaintiff/appellant’s witness was the late Oba Orimolusi of Ijebu Igbo Daniel Adetayo Sani Ikupakude IV. He testified that he was the prescribed authority for all minor chiefaincies in Ijebu Igbo. The Olori Ilu of Ojowo was a minor chieftaincy under his prescribed authority. After the demise of Chief Fowokan Banjo, the Olori Ilu of Ojowo on 23rd August, 1987, he appointed the appellant as successor to Fowokan Banjo. He communicated the appointment to Secretary Ijebu North Local Government, Ijebu Igbo. He identified exhibit 2 and the copy to appellant. Since the appointment of appellant, he had not appointed another person as Olori Ilu Ojowo.

He stated that his prescribed authority was withdrawn on 6th November, 1991, which was after he had already appointed appellant. The letter of withdrawal of prescribed authority was admitted as exhibit 5. The prescribed authority was later restored with effect from 27th December, 1991, the letter of restoration was marked exhibit 6.

That since he appointed appellant as the Olori Ilu of Ojowo, the Ogun State Government had not given him any notice of his removal as Olori Ilu of Ijebu Igbo. From his personal knowledge he had never been accused of any misdemeanour by any citizen in Ojowo. He concluded his evidence-in-chief by identification of exhibit 3 as the letter he wrote to appellant.

He confirmed when cross-examined by learned Counsel for 1st to 5th respondents that he ratified the appellant’s appointment in 1988. He was not aware that law and order broke down at Ojowo in Ijebu Igbo after the appointment of appellant in 1988. Law and order did not breakdown in Ojowo in Ijebu Igbo. He did not know why his prescribed authority was revoked on 6th November, 1991. He was informed that the appointment of appellant as Olori Ilu of Ojowo was cancelled, he did not know why it was cancelled. He did not know why this action was filed. He was not aware of any press release of 12th May, 1988.

He stated that appellant did not act as Olori Ilu, since his appointment in obedience to the order of the Governor that both appellant and the 6th respondent should desist from parading themselves as Olori nu of Ojowo was answered under cross-examination by learned Counsel for 6th respondent this order was before the withdrawal of his prescribed authority. The position was vacant before the withdrawal of his prescribed authority because of the government directives of parading appellant and 6th respondent as Olori Ilu of Ojowo. In spite of the Governors order Orimolusi confirmed that his appointment of appellant as Olori Ilu of Ojowo was still valid. He did not appoint another Olori Ilu because there was no need to do so as he had confirmed the appointment of appellant as the Olori Ilu which was confirmed on 9th October, 1991. He was aware the 6th respondent had been appointed by the Ogun State Government rightly or wrongly this was why appellant instituted this action to challenge the appointment of 6th respondent.

4th PW Oba Orimolusi, concluded his evidence in re-examination that he was still the prescribed authority, when the government appointed the 6th respondents as the Olori Ilu of Ojowo.

The 5th P.W. Otunba Sola Akinyemi, testified being the Otunba Odosenbadejo of Ojowo. On 29th March, 1988, they gathered at Olorituns compound to nominate candidate for the vacant stool of Olori Ilu ofOjowo, the gathering was at the Senior Oloritun Pa Ishola Williams compound. At this meeting, the Secretary to the Local Government, who was present explained the procedure for nominating candidate for the vacant stool after which he called for nomination. Two persons namely appellant and 6th respondent were nominated and that the two names would be sent to the selection committee. The committee recommended appellant to Oba Orimolusi, the 4th PW who was the prescribed authority in this capacity he appointed appellant. The people of Odosenbadejo including 5th PW, congratulated appellant as Olori Ilu of Ojowo. To the best of his knowledge, no other person had been appointed as no allegation of misdoing was made against appellant.

Under cross-examination by learned Counsel for 1st- 5th respondents, 5th PW stated he was not aware that the nomination by the selection committee and appointment were cancelled, so also the suspension of 4th PW for appointment of minor chiefs. As he put the event behind him he did not know the executive council appointed the 6th respondent.

5th PW was cross-examined by learned Counsel to the 6th respondent, that 6th respondent had been parading himself as Olori Ilu of Ojowo. Olori Ilu is a minor chieftaincy with the holder paid stipend, such title was not gazetted. There was no uprising in Ojowo after the appointment of appellant as Olori Ilu of Ojowo. To the best of his knowledge, no enquiry was held at Ojowo concerning the Olori Ilu. 6th respondent hailed from Idokan Family of Odesenbadejo and cousin to 5th PW, he had right to become the Olori Ilu of Ojowo. With this witness appellant concluded and closed his case.

A civil servant, Safuraini Ibitayo Alausa, a principal personal assistant in chieftaincy matters at the Governor’s office testified as 1st DW. The chieftaincy in dispute and vacant was Olori Ilu of Ojowo of Ijebu Igbo and was vacant from 23/8/87 as a result of the death of the holder Chief Banjo. He referred to untendered letters exchanged between his office and the secretary Ijebu North Local Government. At the commencement of the processes his office received series of petitions from Ojowo Community, it was the then Military Governor’s Office that received the petitions. He recognized a petition admitted as exhibit 7. Upon receipt of the petition the Military Governor ordered that a press release be issued which press release was admitted in evidence as exhibit 3. In addition an enquiry was set up the report was admitted as exhibit 9. The report recommended annulment of first selection and a new exercise to start de novo.

1st DW testified further that 4th PW was the prescribed authority in respect of minor chieftaincy matters this prescribed authority of 4th PW was revoked on 7/1/91. It was revoked because Oba Orimolusi failed to comply with directive from the Governor’s office. The revocation was gazetted in Gaz. No. 45 Vol. 16 of 7/11/91 admitted and marked exhibit 10. The authority was reinstated on 27th December, 1991.

The learned Counsel to 6th respondent cross-examined 1st DW, he stated that appointment of 6th respondent came up after the revocation of prescribed authority power of 4th PW. Since 6th respondent was appointed, there were no petitions against his appointment. It was the Secretary to Ijebu North Local Government that was informed about 6th respondent’s appointment.

1st DW was subjected to rigorous cross-examination by learned Counsel of appellant and repeated his evidence in chief mainly. He readily denied any correspondence with appellant and given notice to produce original letter dated 9th October, 1991, which after arguments was admitted, was marked exhibit 11. He could not state whether or not the Olori Ilu of Ojowo was hereditary. He could not state how many quarters form Ojowo. He did not know the procedure for appointment of the Olori Ilu of Ojowo, and did not know whether or not appellant was invited to Adekanbi’s administrative enquiry exhibit 9 the report was not published.

2nd DW was Secretary to Ijebu North Local Government, which position he assumed on 21st March, 1991. Olori Ilu of Ojowo was a minor chieftaincy which became vacant after the death of the holder in 1987. It was the duty of the Secretary to inform government about Olori Ilu of Ojowo chieftaincy. He narrated and confirmed the procedure to appoint and fill the vacancy. Appellant and 6th respondent were nominated at a mass meeting of Ojowo people. Their names were forwarded to the selection committee according to record kept in his office. There were disagreements within the selection committee, notwithstanding the disagreement appellant was approved. His name was sent to Oba Orimolusi. After the exercise by the selection committee there were protests from Ojowo people. Then he wrote to inform the State Government. It was his report that culminated in Adekanbi’s administrative inquiry into the chieftaincy matter. The government thereafter, decided that the selection should start de novo. The attitude of 4th PW was that having validly elected appellant he was not prepared to set the machinery in motion to select another candidate.

2nd DW was cross-examined by learned Counsel to 6th respondent. Letter was admitted and marked exhibit 12 through him. He admitted seeing exhibit 8 (the press release). He could not say categorically whether stipend was paid to appellant. 6th respondent was later selected and appointed.

Through cross-examination of 2nd DW by learned Counsel to appellant the customary declaration about Olori Ilu of Ojowo was admitted as exhibit 13. The said meeting of 1991, in which 6th respondent was selected was not summoned by the senior Oloritun of Odosenbadejo. The witness named the members of the selection committee that appointed 6th respondent by their chieftaincy titles, rank and seniority. The new selection committee did not send their nomination to Orimolusi. Later he was informed by letter dated 26th February, 1991, which was admitted as exhibit 14.

6th respondent did not testify personally but called 3 witnesses covered at pages 101 to 104 of the record of appeal.

The first 6th respondent’s witness was the Oloritun of Idokan Family, which family received letter of 21st February, 1991 from the government to make preparation for the appointment of Olori Ilu of Ojowo. The meeting was not held in Mustapha Williams house, who was the most senior Oloritun. At the meeting, it was 6th respondent and Emmanuel Adebajo Osideko that were nominated and forwarded to 2nd DW the Secretary of Ijebu North Local Government.

In cross-examination by learned Counsel to appellant that the meeting was not held in the house of Mustafa Williams being the most senior of the Olorituns, they went to Mustafa Williams house but met his absence.

2nd witness to 6th respondent was Mustafa Odejayi and also known as Gbeboloja, the Oliwo of Ojowo to which he was appointed about 1 1/2 years, when he testified and concluded his evidence under cross-examination by learned Counsel for the appellant as follows:-

“I know I was the kingmaker because my name was called first. There are kingmakers. Ours is not the first. They also have in other quarters. Apart from Orimolusi, Kuyeba is an Oba. The meeting we held was to appoint Olokinne as the Oba of Ojowo. The meeting chaired by Oliwo (Kuyeba is the Olokinne Oba of Ojowo). We sent his name to the Secretary Local Government as the Olokinne Oba of Ojowo.”

(The underlinings are mine).

The 3rd witness to 6th respondent, Adebisi Abimbola testified as the head of Oloritun of Ojowo. He was one of the four Olorituns, whose right was to appoint Olori Ilu of Ojowo. Adebayo Kuyeba was the Olori Ilu of Ojowo.

On 18/3/91, he received a letter from the Ijebu North Local Government as one of those to appoint Olori Ilu. Mustafa Gbebolaja, Oliwo of Ojowo, 2nd witness for 6th respondent, this was at the town hall on 2/4/91 at the meetings two names were put up for nomination, being 6th respondent and Emmanuel Onadeko were sent in for consideration. It was the 6th respondent that was appointed, appellants’ name was not put up.

I reproduce in part his testimony under appellant’s cross examination as follows:-

“I attended meeting of 2nd April, 1991, of which Gbebolaja presided. The meeting was to appoint Olokinne, the Oba of Ojowo. I am not from Odosenbadejo in Ojowo. I am from Etitale in Ojowo. I am the Senior Oloritun of Etitale. As the Senior Oloritun of Etitale, if there is anything to be done at Etitale, I should first be consulted. As the Senior Oloritun in Etitale, it is my duty to inform people at Etitale by ringing a bell around the town about any meeting. It is the custom that the most senior Oloritun in the quarters should ring the bell to inform people of any meeting in his quarter.” (The underlining is mine)

With this witness, 6th respondent concluded and closed his case. After the closure of the cases of the parties and conclusion of trial, the learned Counsel for the parties addressed the learned trial Judge extensively and exhaustively after which the learned trial Judge on 14th December, 1993, delivered his considered judgment at pages 116 to 139 of the record of appeal wherein he stated and found at pages 130, 131, 132, 134, 135, 136, 137, 138 and 139 of the record of appeal.

“I accept the press release (exhibit 8) made by the Government as sufficient evidence. I take judicial notice that because of the importance of the chieftaincy in the community, particularly because it has been a hotly contested one as revealed from the evidence before the court, the plaintiff knew of the press release. If he had not been around to listen to the release himself, his admirers should have hinted him of it.

I said earlier in this judgment that I did not believe the plaintiff, when he told the court he was not aware of any crisis about his selection even though he was congratulated by the Orimolusi in 1988, after he had been selected, but the appointment was not confirmed by the Orimolusi until 1991.

From the date the stool was declared vacant and the order that nobody should parade himself as the Olorilu of Ojowo, the selection of the plaintiff in the first exercise ceased to subsist.

It is nowhere said that a report of enquiry into chieftaincy matter should be published and formally dated. The failure to date or publish the report, cannot affect the authenticity of the report since it has been sufficiently identified as the report of an enquiry set up to investigate irregularities complained of in the selection of Olorilu of Ojowo. The request to reject exhibit 9 is misconceived. Exhibit 9 is accepted by the court. At page 12 paragraph J of the report. it was recommended that to be fair and just to all concerned with the matter of Olorilu of Ojowo, the purported appointment of Mr. David Odusole, the plaintiff should be nullified and that the whole process should be commenced de novo. It was also recommend that only the confirmed and well accepted (sic) selection committee of the two factions handle the selection.

Instead for the Orimolusi to comply on the same day, 9th October, 1991, the Orimolusi wrote the plaintiff (see exhibit 3) congratulating him on his appointment as the new Olorilu of Ojowo. The plaintiff referred to exhibit 3 in his evidence as a confirmation of his appointment as the Olorilu in 1988.

I cannot agree with the learned Counsel for the plaintiff that the prescribed authority of Orimolusi was revoked malafide. It is inconceivable that the Government should stand by whilst its arrangement to maintain law and order in the community is being frustrated.

It was argued and submitted that the Oluwo, who presided over the appointment or selection of the 6th defendant was not capped at the time the selection committee selected him (6th defendant) and so the selection was invalid. This is more so when the Oluwo said that the meeting over which he presided appointed Olokine, Oba of Ojowo and not Olorilu of Ojowo. Based on the above reasons, the learned plaintiffs counsel submitted that the executive council had nothing to approve.

At p. 2 of exhibit 9 the said Oluwo had told the inquiry that prior to the selection exercise, the Orimolusi had summoned the members of the selection committee (including himself) to a series of meeting during which he warned them to select his own candidate otherwise the kingmakers which included the Oluwo might be disciplined. The Oluwo had earlier told the inquiry he went to the hall during the first selection process in which the plaintiff was purportedly selected with intent to take part in the selection but he was turned out. He had wanted to go and vote for the selection of the 6th defendant. The Apena too, one Asafa Ige told the inquiry that the Orimolusi tricked him to sign a paper selecting the plaintiff as the Olorilu of Ojowo. Chief Gbebolaja’s title who had been an Oluwo for seven years was declared vacant. Some Olorituns too were threatened with a sack by the Orimolusi if his own (Orimolusi)’s choice was not selected. Eight Pampas who were incumbent before the appointment exercise started, spoke and confirmed the allegation that the Orimolusi installed some pampas on the 21st March, 1988, for the purpose of selecting his own choice of Olorilu (see exhibit 9). It can be inferred from the circumstances in this case that the failure to cap the Oliwo, the declaration that his title was vacant, the sacking and appointment of new chiefs by the Orimolusi was a ploy by the Orimolusi to ensure the selection of his own candidate (the plaintiff). There is an element of bad faith in the sacking of some chiefs and the appointment of new ones to replace them just a few days to the selection of the plaintiff as Olorilu of Ojowo. The Executive Council must be right to have ordered another selection process to be carried out and to have upheld the recommendation that only certain chiefs should constitute the selection committee (see pp. 2-3 and 12 of exhibit 9). The Executive Council has the power to do this under the provision to section 23 of Ogun State Chiefs Law. As a result of the above, I hold that failure to cap or the fact that Oliwo was not capped should not be allowed to vitiate the good intention of the government when it reconstituted the selection committee over which the Oliwo presided.

I hold that the defence does not have to tender all the petitions written in as much as only petition tendered is admissible, credible and cogent. There has been no objection against the only petition tendered. There has been no suggestion that the only petition tendered lacked credibility or weight.

The above can only mean that without the intervention of the police, the signatories have been able to calm down the people and calling on the Governor to intervene to avoid bloodshed. The petition does not state that police had gone into the matter. There is no need to call the police as a witness.

It was submitted that the author of exhibit 15 letter titled “Re: Nomination to the vacant title of Olori Ilu of Ojowo in Ijebu Igbo” was not called as a witness. I do not believe it is necessary to call him as the addressee was the witness, that tendered the letter and there has been no suggestion that the exhibit was not written to the addressee by the Secretary, to the Ijebu North Local Government.

They gave evidence of the record of events which they have concerning this suit in their offices. They can refresh their memories that the 6th defendant was unanimously nominated by Idokan family and in another breadth it was submitted that the nomination of Olorilu of Ojowo was a community affair.

In the face of the submission of the learned Counsel for the 2nd-5th defendants as regards the selection and approval of the selection by the Executive Council, I hold that the contradiction in the submission of the learned Counsel for the 6th defendant is immaterial.

This court, in view of the evidence before it is unable to hold that the plaintiff was validly nominated by the kingmakers in that it was acknowledged by the Orimolusi that there was crisis. After a calm view of the facts and evidence before me, I hold that there was a likelihood of breakdown of law and order at the selection of the plaintiff in this suit and that as a result of that the Executive Council revoked the prescribed authority of Orimolusi because he failed to co-operate with the Executive Council. I hold that the Executive Council was in order when it nullified the selection of the plaintiff as the Olori Ilu of Ojowo and was justified at the subsequent approval of the 6th defendant as Olori Ilu of Ojowo. This suit by the plaintiff is dismissed in all its entirety.”

As appellant claims were dismissed in all its entirety he was obviously dissatisfied and timeously at page 141 of the record he filed the notice of appeal and by paragraph 3 formulated 13 grounds of appeal and furnished the particulars in accordance with the rules of this Court. The notice of appeal was served on all respondents after which appellant filed on 17th March, 1995, appellant’s brief of argument which was relied upon at the hearing of this appeal.

At page 5 paragraph 3 sub paragraphs 3.1 to 3.6 appellant formulated the issues for determination as follows:-

“3. Issues for Determination

3.1 Whether the learned trial Judge was right in using the evidence given by witnesses at the Adekanmbi Inquiry i.e. exhibit 9 to come to a decision in this case before him.

3.2. Whether the learned trial Judge was right to have raised the issue as to whether or not the evidence of Gbebolaja was a slip on his own and to proceed to determine that issue without calling on the counsel for the parties to address him on the issue.

3.3. Whether the appointment of the 6th defendant/respondent as the Olorilu of Ojowo by the Ogun State Government could be valid when his nomination and selection were not in accordance with the customary law regulating the nomination and selection to the Olorilu of Ojowo chieftaincy.

3.4. Whether it is proper to treat the document titled “Press Release” exhibit 8 as proper notice to the world of its content without any proof that same was published either to the plaintiff or in any newspaper or electronic media.

3.5. Whether oral evidence of the contents of a document not tendered could be relied upon in the determination of a case before the court.

3.6. Whether it is proper to treat allegations of fact contained in a document i.e. exhibit 7 as true without evidence in proof of such allegations.

The 1st – 5th respondents after service of appellant’s brief of argument on them on 22nd September, 1999, filed with leave of court their respondents’ brief of argument wherein at page 4 paragraph 3.1 the issues for determination are reproduced.

“3.1 Issues for Determination

The 1st – 5th respondents adopt the issues to be determined in this appeal as formulated by the appellant in his brief of argument.”

At the hearing of this appeal learned Counsel for 1st to 5th respondents relied and adopted the said brief.

For the 6th respondent he relied on his brief of argument filed on 1st July, 1996, wherein at page 4 paragraph 4 the issues for determination are set out as follows:-

4.0 Issues for Determination

4.1 Whether or not it was right for the lower court to make use of the evidence in another proceeding tendered before it and the effect on the whole judgment?

4.2. Whether or not the lower court was right to describe the calling of the chieftaincy in question as Olokine Oba of Ojowo by the respondent’s 2 witness as a slip and whether the description had led to a miscarriage of justices?

4.3. Whether or not the appointment of the respondent was lawful and valid?

4.4. Whether or not the lower court was right to impute notice of the press release exhibit 8 to the appellant?

4.5. Whether or not the failure to call the former secretary to the local government who complained in writing to government on the irregularities in the appointment of the appellant and the non-tendering of the said letter led to a miscarriage of justice?

4.6. Whether or not the lower court was right to rely on exhibit 7?

From the foregoing, the issue for determination by 1st to 5th respondents virtually adopted appellant’s issues.

Though the 6th respondent formulated his own issues they raised similar issues. As a result I prefer and adopt appellant’s issue for determination as more germane and the crux of this appeal. This is without prejudice and liberty that in the consideration of the arguments based upon them, appellant’s argument shall be married with the arguments of the respondents in their briefs of argument.

Issue 1 appellant’s brief complained about reliance by the learned trial Judge on the evidence given by witnesses at the Adekanbi Inquiry admitted as exhibit 9. That after quoting profusely from the testimonies of witnesses before Adekanmbi Inquiry reflected at page 135 lines 23-31 of the record of appeal referred to in this judgment in respect of the underlining above, the learned trial Judge concluded that:

“It can be inferred from the circumstances in this case that the failure to cap the Oliwo, the sacking and appointment of new chiefs by the Orimolusi was a ploy by the Orimolusi to ensure the selection of his candidate (the plaintiff). There is an element of bad faith in the sacking of some chiefs and the appointment of new ones to replace them just a few days to the selection of the plaintiff as the Olorilu of Ojowo.

Appellant submitted that there was no evidence of bad faith where the evidence of bad faith could be inferred. There was no evidence that the 2nd DW had become an Oliwo for 7 years in 1988 when appellant was selected by the selection committee that appointed the Olorilu of Ojowo when contrary to the evidence of 2nd DW he was not Oliwo when appellant was nominated, selected and appointed the Olorilu in 1988 and was only 11/2 years old as Oliwo when 6th respondent was nominated, selected and appointed by the Executive Council of Ogun State directly. That the Orimolusi 4th PW refused to cap 2nd DW in order to ensure the selection of appellant did not arise as no suggestion of bad faith was led in evidence.

Throughout the trial no evidence of the harassment of the members of the selection committee by the Orimolusi as Orimolusi was by-passed and was never involved in the nomination, selection and appointment of 6th respondent. No evidence was adduced before the learned trial Judge by any of the witnesses that Orimolusi sacked and appointed chiefs few days to the selection of appellant in 1988, the Apena did not testify before the lower court that the Olorituns were threatened with a sack by Orimolusi if his nominee or choice was not selected.

The learned trial Judge based his findings of bad faith on the above non-existing evidence the findings were perverse and the jurisdiction of the meddlesomeness of the Executive Council in the selection of appellant by 4th PW the prescribed authority empowered with the statutory duty to appoint the Olorilu. The finding of the learned trial Judge on bad faith against Oba Orimolusi could be gleaned from the review of the evidence of witnesses made by Adekanmbi in his report exhibit 9. By section 10 of the Commission of Inquiry Law, Cap. 24, Laws of Ogun State provides as follows:-

“No evidence taken under this law shall be admissible against any person in any civil or criminal proceedings whatsoever.”

The evidence adduced before Adekanmbi Inquiry therefore, was inadmissible for or against 4th PW Oba Orimolusi and appellant Ogunbadejo v. Owoyemi (1993) 1 NWLR (Pt. 271) p. 517 SC.

Further, it is trite law that evidence given in previous proceedings cannot be used as evidence against the party later except for the purpose of cross-examination as to credit Romaine v. Romaine (1992) 4 NWLR (Pt. 238) p. 650 SC, consequently evidence obtained at the Adekanmbi inquiry could not be used as evidence as done by the learned trial Judge, more also where it was common ground that both appellant and 4th PW Oba Orimolusi did not testify before the Adekanmbi Inquiry and having not appeared there appellant could not have cross-examined witnesses that testified before it.

In the light of the above submissions appellant urged the court to resolve and answer issue 1 in the negative and entered judgment for appellant by allowing the appeal.

The 1st to 5th respondents on issue one contended in paragraphs 4.1 and 4.2 at page 4 of their respondents’ brief accepted and conceded the decision in Ogunbadejo v. Owoyemi (supra) except by section 12 for the offence of perjury. The pertinent issue in the instant case was whether the evidence in question was used as the basis for any decision by the learned trial Judge of the lower court.

Learned Counsel submitted that by “Decision” as defined in section 277, 1999 as interpreted in Abiola v. F.R.N. (1995) 1 NWLR (Pt. 370) p. 155 the complaints of appellant being conclusion and inference never formed the basis of the decision by the lower court. Without admission that issue 1 be resolved in the negative the legal consequence is the expungement of the offending piece(s) of evidence from the courts record, this is not enough ground to set the judgment of the lower court aside as there were untainted and uncontroverted evidence still in support of the judgment of the lower court. So the contention of appellant be rejected and unsustainable.

6th respondent in paragraph 5.00 of his respondent’s brief of argument raised by way of preliminary objection that grounds 1, 2, 3, 4, 7, 9, 10 and 12, of the grounds of appeal be struck out as they were couched as misdirection and error of law contrary to Order 3 rules 2(2), 2(3) and 2(4) Court of Appeal Rules therefore, they were incompetent also that were argumentative as decided and relied upon the case of Duruji v. Azie (1992) 7 NWLR (Pt. 256) p. 688 at 696/97. The short answer is the recent judgment of the Supreme Court in Alhaji Salami O. Aderounmu & Anor v. Emmanuel Olajide Olowu (2000) 4 NWLR (Pt. 652) p. 253 at 272, that the courts misapplied wrongly the decision of the Supreme Court in Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67 p. 718, that the couching of grounds of appeal as misdirection and error of law do not render the ground automatically incompetent, but the court should look closely at the pith and substance of the particulars whether the ground offends against Order 3 rule 2(3), the Aderounmu case distinguished Nwadike v. Ibekwe (supra) and shall proceed to consider the similar issues raised in 6th respondent’s brief.

Issue 1 in 6th respondent’s brief raised similar issue as issue 1 in appellant’s brief of argument. Learned Counsel for 6th respondent conceded thus:-

“There is no doubt that the lower court referred to part of the evidence before Adekanmbi Inquiry, which was wrong in law. However the area allegedly affected according to appellant has been highlighted by the appellant. It is pertinent to state that exhibit 9 was tendered to show that the government reacted to the series of complaints part of which was exhibit 7.

On the treatment of this issue, it is essential to examine whether the reference to part of the evidence in exhibit 9 has led to miscarriage of justice.”

Learned Counsel submitted without the part referred to in exhibit 9 by the lower court. There was abundant evidence on record for the trial court to come to the conclusion of bad faith or, the part of the Orimolusi and the need for the government to intervene in the appointment of the Olorilu for Ojowo when the prescribed authority refused to co-operate with the government. Reliance was placed on Akinloye v. Eyiyola (1968) NMLR 92 and; Akpabio v. The State (1994) 7 NWLR (Pt. 359) p. 635 at 662.

The point raised and canvassed was that as learned trial Judge relied and quoted copiously from the evidence of Adekanbi Inquiry by witnesses that testified before the said inquiry, the report of which was admitted as exhibit 9 the learned trial Judge used extrinsic evidence not adduced before him to found and make findings of fact which findings because of the extra-judicial evidence rendered his findings of fact to be perverse, contrary to the rule of law that you can only use the evidence given at a previous proceedings to contradict a witness under cross-examination as to credit no more no less.

Exhibit 9 was the report of Adekanbi Inquiry set up by Executive Council of Ogun State, the terms of reference and order of setting up the administrative inquiry was not tendered in evidence before the lower court, it was the report that was admitted as exhibit 9.

Being a document though, its admissibility was first challenged by learned Counsel for appellant at page 91 of the record of appeal but the objection was withdrawn.

It is common ground that exhibit 9 is a document under section 91(1) Evidence Act, Cap. 112, Laws of the Federation of Nigeria and the maker was not called as a witness. That witnesses were called as recorded in exhibit 9. That at pages 136, 138 and 139 of the record of appeal the learned trial Judge not only referred copiously to pages in exhibit 9 but also based his findings of facts on them as referred to above in this judgment but also based his findings of facts on them. The guide and competence on use of evidence in previous proceedings in a later case was commented upon by the Court of Appeal in the case of Njoku v. Dikibo (1998) 1 NWLR (Pt. 534) p. 496 at 518 it was held that:

“15. Evidence given in a previous case can never be accepted as evidence given by the court trying a later case except where section 34 of the Evidence Act applies. However, evidence given in an earlier case by persons who also testify in a later case may be used for cross-examination as to credit but it is of no higher value. In the instant case, the use to which the trial court made of the evidence of 1st appellant in the previous case was erroneous and gross enough to vitiate the judgment (Alade v. Aborisade (1960) SCNLR 398; Ajide v. Kelani (1985) 3 NWLR (Pt. 12) p. 248; Ariku v. Ajiwogbo (1962) 2 SCNLR 369 referred to) Bayol v. Ahemba (1999) 10 NWLR (Pt. 623) p. 381 SC.

16. The Court of Appeal is loathe and generally shall not disturb the findings of fact of trial court unless such finding is perverse or arrived at by misapplication or misunderstanding of the law. In the instant case as there was no proof of valid sale of the land in dispute, the finding of fact of sale made by the trial court was erroneous (Ebba v. Ogodo (1984) I SCNLR 372, Oro v. Falade (1995) 5 NWLR (Pt. 396) p. 385 SC referred to).”

It is common ground and thread running throughout that the learned trial Judge made reference to the evidence adduced in exhibit 9 copiously, he based the extra judicial evidence in Exhibit 9 treated and accepted the evidence adduced before him, though 4th PW the Orimolusi testified before him no evidence of bad faith was made against him the learned trial Judge departed from the evidence against him but rely on the pieces of evidence to find bad faith against 4th PW, the findings of facts based on them were perverse therefore an exception to the general rule that the appeal court shall not interfere generally with the findings of facts by the lower court.

Both sets of respondents conceded but the reliance by the learned trial Judge on the pieces of evidence adduced in exhibit 9 as the basis of his findings of bad faith and the reason for annulment of the selection of appellant by the first selection committee were based on petitions with only exhibit 7 tendered and the reason by government to withdrawal of prescribed authority of 4th PW were erroneous, but respondents contended that they did not amount to miscarriage of justice the consequence was to expunge the pieces of evidence still with sufficiency of evidence to uphold the said findings.

Applying Njoku’s case and the authorities referred to therein the use to which the learned trial Judge made use of the evidence of witnesses in exhibit 9 an evidence before him was grossly erroneous thereby making his findings perverse which respondents conceded but that it did not result in miscarriage of justice. After cool calm consideration, I rule that the findings of facts were not only perverse but also led him to substantial miscarriage of justice. The attack on the judgment of the lower court in issue one of appellant’s brief of argument is well founded substantial and convincing, leading me to resolve the issue in favour of appellant and that the appeal is allowed on this issue and meritorious.

As issue 5 in appellant’s brief of argument raised the issue of a letter relied on by the learned trial Judge not tendered before him that 2nd DW’s predecessor, wrote to the State Government which culminated in the setting up of Adekanmbi Administration Inquiry into Olori Ilu of Ojowo chieftaincy matter in the said letter it informed the State Government that the selection committee was improperly constituted. The letter was not tendered, the writer was also not tendered yet the lower court found that the annulment of the selection committee that selected the appellant was faced with irregularities and not properly constituted, so applying Bamgbose v. Jiaza (1991) 3 NWLR (Pt. 127) p. 64 at 74 C.A that the failure to grant prayer 1 of the claim, based on the contents of a document not tendered before the learned trial Judge be set aside and declare the said appointment of the appellant as the Olori Ilu of Ojowo Ijebu Igbo.

1st to 5th respondents contended on issue 5 at page 9 of their brief of argument that, he agreed that the position of the law is that oral evidence of a document not before the court is inadmissible, in the instant case the evidence complained about by appellant was not relied upon by the lower court in its judgment. He preferred the same argument as he did in respect of issue 1.

In arguing issue five in 6th respondent’s brief of argument at page 8 paragraph 5.11 reference was made to the evidence of 2nd DW at page 97 lines 13-25 thus:-

“According to the record in my office, there were disagreements over the membership of the selection committee. The selection committee nevertheless held their meeting and David Odusole was approved and his name was sent to the Orimolusi. There were protests thereafter from some people of Ojowo. The Secretary to the Local Government then wrote to the State Government that the selection committee was improperly constituted. It was the report of the Secretary to the Local Government that culminated in the setting up of Adekanbi Administrative Inquiry into the chieftaincy matter.”

6th respondent contended that this piece of evidence was unchallenged under cross-examination. He submitted further that 1st DW testified that apart from exhibit 7 there were series of petitions from Ojowo Community, who complained about the irregularities. The petitions were directly forwarded to the government upon which the government acted or could have acted. There was no where in the judgment where the lower court hold that the action of the government was based solely on the evidence in question. Even if the lower court so held it could not have led to miscarriage of justice as there was abundant evidence on record to support the same stand. The issue should be resolved in favour of the respondent.

It is trite law that the court does not form the habit of speculating on the contents of a document not tendered or produced before it. Gbajor v. Ogunburegui (1961) All NLR 853, Oparaji v. Ohanu (1999) 9 NWLR (Pt.618) SC. The appellant did not show which part of the judgment the learned trial Judge based his judgment about the annulment of the selection committee’s selection of appellant as Olori Ilu of Ojowo on the untendered document, the testimony of 2nd DW, the Secretary Ijebu North Local Government was glorification of his predecessor in office was not supported in the judgment of the learned trial Judge, this issue lacked substance it is frivolous and is hereby resolved against appellant leading to the dismissal of this appeal on issue five in appellant’s brief of argument.

The appellant raised at page 8 paragraph 4.2 in appellant’s brief of argument whether the learned trial Judge was right to have held suo motu that the evidence of 3rd DW, as per the pleading of 6th respondent was the selection committee to appoint 6th respondent as Olokineoba of Ojowo as pleaded, and not as Olori Ilu of Ojowo as stated at page 103 last line and page 104 lines 1-4 thus;

“Kuyeba is an Oba. The meeting we held was to appoint Olokine as Oba of Ojowo.”

At this meeting of 2nd April, 1992, they selected 6th respondent as Olokine of Ojowo, which was not selection of Olori Ilu of Ojowo. On this matter the learned trial Judge noted-

“The meeting chaired by Oliwo (Kuyeba is the Olokine Oba of Ojowo) and by emphasis that we sent his name to the Secretary Local Government as the Olokine Oba of Ojowo.”

The other witness of 6th respondent Adebisi Abimbolu, who was a member of the new selection committee and who was also present at the meeting of 2nd April, 1991, chaired by Gbeboloja stated.

“I attended the meeting of 2nd April, 1991, of which Gbeboloja presided. The meeting was to appoint Olokine, the Oba of Ojowo.”

Appellant contended that the two witnesses of 6th respondent were emphatic that the meeting was to appoint 6th respondent as Olokine Oba of Ojowo. The said evidence turned against the defendants against 6th respondent who called him as a witness. The learned trial Judge went on a voyage of discovery of his own to raise the issue of whether or not the evidence of Gbeboloja was a slip and concluded it was a slip. The learned trial Judge did not advert his mind to the evidence of Abimbolu also a witness of 6th respondent who gave evidence that the meeting of 2nd April, 1991, was to select 6th respondent as Kuyeba Olokine Oba of Ojowo contrary to the pleading of 6th respondent to have tested this contradiction and conflict in the pleading as a slip runs contrary that parties are bound by the pleadings when the learned trial Judge raised the issue of slip he ought under the rule of law to have given opportunities to the parties by calling on them to have addressed him on the matter as none of the parties raised the issue of slip Okonkwo v. Kpajie (1992) 2 NWLR (Pt. 226) p. 656 S.C. In Piedmont Plywood (Nig.) Ltd. v. Goldeal (Nig.) Ltd. (1992) 8 NWLR (Pt.260) 481 C.A. at 490 it was decided that in a civil case a court could not make a case which the party did not make for himself. The 6th respondent did not make the case that the evidence about the selection of 6th respondent as Olokine Oba of Ojowo on 2nd April, 1991 was a slip; see Adejumo v. David Hughes & Co. Ltd. (1989) 5 NWLR (Pt. 120) p. 146 C.A., Adeosun v Babalola (1972) 5 SC 529 and finally Commissioner of Works, Benue State & Anor v. Devcon Development Consultants Ltd & Anor (1988) 3 NWLR (Pt. 83) 407 SC.

In view of the above contention and submission be answered in the negative and the decision of the court below that the evidence of Gbebolaja was a slip be set aside and held that the 6th respondent was selected by the selection committee as Olokine, the Oba of Ojowo and not as Olori Ilu of Ojowo.

On issue two the 1st to 5th respondents at pages 5 and 6 of their brief of argument submitted that the contention of appellants was to make a mountain of a mole hill. Learned Counsel conceded that the 2nd and 3rd witnesses of 6th respondent referred to him as the Olokine of Ojowo in their evidence other pieces of evidence abound in the testimonies of other witnesses for appellant and respondents that 6th respondent was referred to as Olori Ilu of Ojowo. Appellants had just isolated the evidence of 2nd DW by making an issue of it by ignoring the totality of the other pieces of evidence before the court. In the course of evaluation of evidence trial Judges do slip but the slip should not be so profuse as to affect the entirety of his findings Udo v. Okupa (1991) 5 NWLR (Pt. 191) p. 365 at 381-382. The reference by the learned trial Judge that evidence of 2nd DW about 6th respondent’s selection as Olokine Oba of Ojowo on the selection committee was rightly held to be a slip having regard to the surrounding circumstance of the totality of the evidence before the learned trial Judge, the stance of the lower court had the support of late Jurist Hon. Justice Aguda in his book “The Law and Practice relating to Evidence in Nigeria page 176 with reliance on the case of Johnson v. Todd (1843) 5 BEAU 597, 49 ER 70. This was an issue exclusively within the judicial discretion of the learned trial Judge, but the contrary by the learned trial Judge was abandoning his judicial responsibility of evaluation of evidence in the case. This honourable court should discountenance appellant’s contention as merely drawing red herrings thereby leading to affirmative of the holding of the learned trial Judge, who rightly held that 2nd DW’s evidence of referring to the meeting of selection of 6th respondent as Olori Ilu of Ojowo.

On issue two at page 6 in 6th respondent’s brief, paragraph 34 the lower court described the calling of the appointment of the 6th respondent on “The Olokine Oba of Ojowo” as a slip was wrong. The effect is to consider the totality of the evidence and that it did not lead to miscarriage of justice.

It is trite law that both the courts and the parties are bound by pleadings, where there is conflict or contrary evidence to the pleaded facts such evidence is treated as not established before the court NIPC Ltd v Thompson Organisation Ltd. (1969) 1 NMLR p. 99; Oyinloye v. Esinkin (1999) 10 NWLR (Pt. 624) p. 540 SC.It is common ground that the meeting held and pleaded was for the selection of Olori Ilu of Ojowo. But contrary to the testimonies of 2nd and 3rd DWs, who were 6th respondent’s witnesses were that the 6th respondent was selected as Olokine Oba of Ojowo and not Olori-Ilu of Ojowo the learned trial Judge having found this material contradiction as to the selection of 6th respondent not as Olori-Ilu of Ojowo but Olokine Oba of Ojowo, suo motu treated the conflict as slip which 6th respondent conceded was wrong but having regard to the totality of the evidence the selection committee was scaled to select the Olori Ilu of Ojowo and not Olokine Oba of Ojowo, but that the error did not amount to miscarriage of justice.

The contradictory and conflicting evidence was that the selection committee of 2nd April, 1991, did not select 6th respondent as the Olori Ilu of Ojowo but as Olokine Oba of Ojowo thereby, making the finding of the learned trial Judge that 6th respondent was appointed as Olori Ilu of Ojowo and the contrary evidence that he was appointed as Olokine Oba of Ojowo was a slip rendered the finding to be perverse. As an appellate court gives me liberty to interfere with the finding of fact that is perverse, I therefore hold that the 6th respondent was not selected as the Olori llu of Ojowo on 2nd April, 1991, the holding of the learned trial Judge that he was so selected was perverse.

Having not been selected validly on 2nd April, 1991, there was no base or foundation upon which his subsequent appointment by the Executive Council was constitutional. Lord Denning in the Privy Council case of Macfoy v. UAC Ltd (1962)AC 158, stated that you cannot build something on nothing such building is bound to collapse, in the instant appeal the selection of 6th respondent as Olori llu of Ojowo being illegal and unconstitutional showed that the subsequent selection by Executive Council was bound to collapse and I so declare it. The error of the learned trial Judge involved a substantial miscarriage of justice I reject the contention of 6th respondent that it did not amount to miscarriage of justice. Issue 2 is therefore resolved in favour of appellant as meritorious the contrary contentions by respondents lack substance and rejected. The appeal is allowed on issue 2.

Issue 3 in appellant’s brief submitted that exhibit 13 made by virtue of section 9 Chiefs Law, Cap. 20, Laws of Ogun State dec1ared the approved and registered chieftaincy declaration in respect of the Olori Ilu of Ojowo chieftaincy and sets out the numbers of quarters, the order of rotation in which every quarter specified is entitled to provide a candidate. It also sets out the number and identity of the persons entitled to select the holder of the chieftaincy with the method of nomination from the quarter whose turn it is to provide a candidate. For essential validity there must be strict compliance with the conditions set out with his nomination in accordance with paragraph (d) of exhibit 13 to wit:-

(i) he must be nominated at a mass meeting of the quarters whose turn it is to provide a candidate;

(e) the mass meeting must be under the direction of the Senior Oloritun of the quarter whose turn it is to provide a candidate.

Appellant fulfilled and satisfied all the conditions he was appointed at a mass meeting by Odoesenbadejo quarters under the approval by Senior Oloritun of Odosenbadejo, who dispatched the name to 4th PW as the final prescribing authority approved appellant as the Olori Ilu of Ojowo which appointment was confirmed before the suspension of the prescribed authority status of 4th PW. The appointment of appellant was not set aside validly in any gazette or government notice or statutory instrument, exhibit 8 the press release was directory not mandatory and did not constitute valid notice in law.

On the contrary, the nomination of 6th respondent was not in compliance with the conditions set out in exhibit 13. By the pleading 6th respondent was nominated by Idokan family and not at mass meeting of Odosenbadejo people but by Idokan Family, under the leadership of Oloritun Idokan and not the most Senior Oloritun, Chief Mustafa Williams. The selection committee was headed by Gbebolaja who was not an Oliwo, when he presided at the selection committee for the appointment of 6th respondent as Kuyeba Oba Ojowo and not as Olori Ilu of Ojowo. The selection committee of 2nd April, 1991, upon which the executive council without setting aside appellant’s position as Olori Ilu of Ojowo made by the prescribed authority was an exercise in futility by the executive council of Ogun State and this court should apply the case of Moss v. Kenrow (Nig.) Ltd. (1992) 9 NWLR (PT. 264) p. 207 SC.

The appointment of 6th respondent was not in conformity with exhibit 13 therefore, it should be annulled. Issue 3 in appellant’s brief be resolved in appellant’s favour.

On issue 3 the 1st to 5th respondents submitted at page 7 of their respondent’s brief that section 8 of Cap. 20, Chiefs Law of Ogun State, was inapplicable as the chieftaincy in dispute was a minor chieftaincy whilst section 9 covers recognised chieftaincy under part 2 of Cap. 20 supra.

Exhibit 13 was no longer in operation as at the time of trial of this case before this lower court by virtue of the recognized chieftaincies (Revocation and Miscellaneous Provisions) Order 1976 as contained in Laws of Ogun State of Nigeria, 1978 with judicial backing as decided in the cases of Lipede v. Sonekan (1995) 1 SCNJ 184 at 199, (1995) 1 NWLR (Pt.374) p. 668 at 689-699; Alese v. Aladetuyi (1995) 6 NWLR (Pt. 403) 527 at 539. To rely on exhibit 13 appellant should have led evidence to prove it for failure by appellant it should be discountenanced it is invalid and incompetent it should be dismissed as it goes to no issue.

The 6th respondent at pages 6 and 7 of 6th respondent’s brief of argument contended that paragraphs 4. (3).(10)-4.(3)(14) do not relate to issue 3 and should be ignored, as there was substantial compliance with exhibit 13. The first nomination exercise later cancelled by government produced the appellant and respondent from Idokan Family of Odosenbadejo in Ojowo. The government wrote to the Odosenbadejo quarters to prepare for the appointment of Olori Ilu of Ojowo with the head of that quarters intimated but on the appointed day was ill when he testified thus at page 70, lines 19-31 of the record:-

“Between February and April, 1991, I was ill. As a result I could not function as Oloritun because of illness.”

Learned Council submitted that Idokan was part of Odosenbadejo and as Mustafa Williams, the most Senior Oloritun was ill, it was right to have appointed somebody else so the selection nomination committee was validly constituted and should be discountenanced as lacking in substance.

With respect to learned Counsel to 1st to 5th respondent’s contention that exhibit 13 was revoked by the Recognised Chieftaincies (Revocation and Miscellaneous) Provisions Order of 5th 1976, Cap. 20, Chiefs Law Ogun State page 280 Laws of Ogun State, 1978, applied to recognised chieftaincies and not minor chieftaincies. The chieftaincy is within Chiefs Law, Cap. 20 and on common ground a minor chieftaincy with delegation of functions on minor chieftaincy delegated to the Prescribed Authority which serial 61 the Prescribed Authority as the Orimolusi of Ijebu Igbo with the area traditionally associated with Ijebu-Igbo. So the prescribed authority for this chieftaincy in authority is the Orimolusi of Ijebu-Igbo. Cap. 20 is an existing law under section 274(1) 1979 Constitution (now section 315(1) 1999 Constitution) Chief R.O. Nkwocha v. Governor of Anambra State (1984) 6 SC 362-419, (1984) 1 SCNLR 634. The Chiefs Law, Cap. 20 being an existing law within the meaning and intendment of 1979 Constitution, the Executive Council acted ultra vires in appointing 6th respondent under the Chiefs Law, Cap. 20, Ogun State Law, 1978 a minor chieftaincy matter when the 4th PW, the Orimolusi of Ijebu Igbo the prescribed authority validly elected appellant before the suspension of his prescribed authority between November, 1991 and 27th December, 1991. It was during the suspension of the prescribed authority status without annulling legally and constitutionally the appointment of appellant could not be done by exhibit 8, the press release which does not come under section 74 Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990, Sylvester Johnson Mayaki v. Lagos City Council Care Taker Committee (1977) 7 SC 81.

The onus was on respondents to prove by preponderance of evidence that appellant had notice of exhibit 8 when there was no evidence that it was published in the gazette or the mass media the learned trial Judge found as a fact as follows:

“I accept the press release exhibit 9 (sic) 8 made by the government as sufficient evidence. I take judicial notice that because of the importance of the chieftaincy in the community, particularly because it has been a hotly contended one as revealed from the evidence before the court. He knew of the press release. If he had not been around 10 listen to the press release himself his admirers should have hinted him.”

I have considered the arguments on exhibit 8 by appellant and respondents and applying the law exhibit 8 did not fall within the provisions of section 74(1) Evidence Act supra. The finding about appellant being informed by his admirer was not borne out from the evidence this finding is perverse, this gives me liberty as an appellate court to disturb this finding as wrongful inference. Having stated that the exercise of the appointment of 6th respondent by executive council was contrary to existing law, with exhibit 8 the press release as not covered under section 74(1) Evidence Act supra the learned Judge was grossly in error to have taken judicial notice of exhibit 8 with perverse finding that appellant’s admirers should have intimated him made me to reject the arguments of respondents on issues 3 and 4 as unpersuasive and unconvincing unlike the arguments of appellant on issues 3 and 4 in appellant’s brief which were cogent, and substantial resulting in resolving issues 3 and 4 in appellant’s favour and allowing the appeal on this issue.

Issue 6 in my view has been subsumed in the consideration of the other issues and needs no further consideration but to state that after further cool and calm consideration of the arguments offered by appellant and respondents exhibit 7 was used in exhibit 9 as the basis for setting up exhibit 9. Since I have already declared that by virtue of section 10 of the Commission of Inquiry Law, Cap. 24, Laws of Ogun State evidence given or taken at a Commission of Inquiry shall be inadmissible against any person in any civil or criminal proceeding except for perjury based on the false evidence adduced by the person on oath before the inquiry under section 12 of Cap. 24 aforesaid that exhibit 7 is of no evidential value moreso when the selection committee of the 6th respondent based on it was declared a nullity as having not been commenced by appropriate authority issue 6 is therefore ruled in favour of appellant as meritorious.

From the foregoing issues 1, 2, 3, 4 and 6, in appellant’s brief are resolved in appellant’s favour for the reasons advanced above in this judgment. Issue 5 is resolved against appellant.

As a result, judgment of Hon. Justice S.O.O. Sodeke delivered on 14th December, 1993, is hereby set aside. After a cool calm view of the evidence adduced in the lower court as shown in the Printed evidence in the record of appeal being declaratory reliefs 1 and 2, and injunction the onus on appellant is to succeed on the strength of his own case and not the weakness of respondent’s case being the judicial interpretation of sections 135, 136 and 137 Evidence Act, Cap. 112, LFN, 1990.

To grant or refuse declaratory orders, the court has judicial discretion to be exercised judicially and judiciously Elendu v. Ekwoaba (1995) 3 NWLR (Pt. 386) p. 704 CA.; Elendu v. Ekwoaba (1998) 12 NWLR (Pt. 578) p. 320 Sc.; Guda v. Kitta (1999) 12 NWLR (Pt. 629) p. 21 CA. Acting judicially and judiciously appellant from the printed evidence discharged the burden on him and entitled to be granted the declaratory reliefs 1 and 2, and relief 3 for perpetual injunction against respondents as claimed by appellant, judgment is therefore, entered in favour of appellant as claimed against all the respondents accordingly.

Having allowed the appeal and judgment entered in favour of appellant, the cost of N2,500.00 awarded by the lower court is hereby set aside, instead the cost of N2,500.00 is awarded jointly and severally against all the respondents in the lower court.

Acting judicially and judiciously that costs follow the event and awarded to compensate the successful party and not to punish the unsuccessful party the sum of N5,000.00 (five thousand naira) is awarded as costs in this appeal against all the respondents jointly and severally in favour of appellant.

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Other Citations: (2002)LCN/1071(CA)