Chief Israel Aribisala & Anor. V. Talabi Ogunyemi & Ors (2005)

LAWGLOBAL HUB Lead Judgment Report

OGUNTADE, J.S.C.

The dispute leading to this appeal arose out of succession to a minor chieftaincy in the old Ondo State (now Ekiti State). The present appellants (who are hereinafter described as the plaintiffs) commenced the suit on 20-6-90 at the Ikole-Ekiti High Court where they claimed against the three respondents (hereinafter described as the defendants) for the following:

“(a) A declaration that the first defendant is not and cannot ever be the Onisemo of Ikoyi-Ekiti under the native law and custom of Ikoyi-Ekiti.

(b) An order on the first defendant never to parade or hold himself out as the Onisemo of Ikoyi-Ekiti and on the second and third defendants never to recognize first defendant as the Onisemo of Ikoyi-Ekiti or allow him to function in that post in any manner whatsoever.”

The parties filed and exchanged pleadings after which Akinyede, J. heard the case. The plaintiffs called four witnesses. Each of the 1st and 2nd defendants testified in support of the defence case. The trial Judge on 21-9-94 gave judgment in the matter. In the judgment, the trial Judge held that his court had no jurisdiction to hear the suit. He had only evaluated a part of the evidence called as enabled him to decide the issue of jurisdiction. The trial court reasoned that the plaintiffs needed to have followed the procedure prescribed under section 22 of the Chiefs Law of Ondo State before resorting to litigation. Plaintiffs’ suit was accordingly, struck out.

The plaintiffs were dissatisfied with the judgment. They brought an appeal against it before the Court of Appeal sitting at Ilorin. That court (Coram: Okunola, Amaizu and Onnoghen, JJCA) in a unanimous decision given on 6-7-2000 dismissed the plaintiffs’ appeal. The plaintiffs have now come on a further appeal to this court. In their appellants’ brief, the issues for determination in the appeal were identified by their counsel as the following:

“(a) Whether or not the claim before the trial court is a chieftaincy matter not justiciable under the 1963

Constitution.

(b) Whether or not the claim of the appellants should first have been referred to the Commissioner for Chieftaincy Affairs before making a resort to court under section 22 of the Chiefs Law of 1978.

(c) After holding that the trial court should have allowed appellants to withdraw the document they wanted to tender to perfect the condition for admissibility and then re-present same, whether or not it accords with justice for the lower court to allow appellants to do the necessary things to the document, re-tender it for the trial court to admit it and use it in coming to judgment

Or Alternatively

Send the matter back to the trial (court) to perform the retrials of admitting the document and thereafter send the case back to the lower court for completion.

Or Alternatively

Send the whole matter back to the lower court to be tried de novo before another Judge.