Chief James Ogunlusi & Ors V. Alhaji Brimoh Adedipe & Anor (1995)
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IGE, J.C.A.
This is a chieftaincy case. In the court below the 2 respondents in this appeal were plaintiffs in Suit No. HID/18/89. They sued the defendants/appellants to court claiming the following reliefs on behalf of the Olaso Ruling House of Abodi of Iremo Chieftaincy:-
- A declaration that under the Native law and custom of Odo Ado, in Ado Ekiti the Abodi of Iremo a minor chieftaincy is a ruling house chieftaincy with two ruling houses viz:
(a) Olaso and Upon; the order of rotation and the identity of the ruling houses are: Olaso and Upon and it is the ruling house next entitled to present candidates that can select candidate within its ruling house and present the same to the Kingmaker the sole kingmaker is not entitled to act arbitrarily nor without the consent of the other chiefs in his council nor entitled to appoint a candidate from ruling house not entitled to nominate and that the Ewi is the Prescribed Authority to the Chieftaincy.
- An order declaring as null and void the nomination and appointment of the 2nd defendant (Pius Talabi Fajuyi) as the Abodi of Iremo being contrary to the native law and custom and the appointment of the 2nd defendant made by the 1st defendant as sole kingmaker on 27/3/89 without the advice consent or concurrence of the Aremo in council as required under native law and custom.
- An injunction restraining the 1st defendant from forwarding the appointment to the 3rd defendant for approval or taking any further steps in the process of appointment leading to installation.
- A perpetual injunction restraining the defendant from acting as Abodi of Iremo or parading himself as the Abodi of Iremo or wearing any of the regalia of office of an Abodi of Iremo or attending the council of chiefs meeting in Iremo or performing any of the functions of the Abodi of Iremo. And ask for judgment in his favour.
Pleadings were ordered and filed. The 1st and 2nd defendants/appellants also filed their statement of defence containing 31 paragraphs.
After taking evidence from the parties and their witnesses, and after counsel for the parties had addressed the court, the learned trial Judge gave judgment in favour of the plaintiffs/respondents. The defendants/appellants are dissatisfied with this judgment delivered on 11/2/91 and have now appealed to this court against it.
The appellants filed 4 grounds of appeal and formulated the following 2 Issues for determination.
(a) Whether or not the trial court was right in granting reliefs not claimed by the plaintiff?
(b) Whether the trial court was justified in holding that the plaintiffs have proved their case and consequently giving judgment in their favour in view of the contradictory nature of the plaintiffs’ evidence vis-a-vis their claim, the paucity of evidence adduced in support thereto and the improper evaluation of such evidence?
The respondents also formulated two Issues for determination of the Appeal thus:-
- Whether or not the issue between the parties were once and for all settled by the court.
- Whether the defendants case and weight was stronger than that of the plaintiffs more so when the 2nd defendant did not give evidence thereby leaving all the plaintiffs evidence against him unrebutted.
Before going into the issues involved in this appeal I shall set out the facts of the case briefly.
The plaintiffs/respondents’ case is that they belong to the Olaso Ruling House of Abodi Iremo Chieftaincy and were entitled to select the next candidate for the post of Abodi which is a minor chieftaincy. That under the native law and custom of Odo Ado in Ado Ekiti, the Abodi Chieftaincy has 2 Ruling Houses i.e. Olaso and Upon to which the 2nd defendant/appellant belonged. They have also contended that the 1st defendant who is the kingmaker acted arbitrarily by rejecting the candidature of 2nd plaintiff/respondent from the Olaso faction and appointing the 2nd defendant/appellant as the next Abodi on 27/3/89.
The defendants/appellants’ case is that there was no Abodi known as Olaso hence the question of their nominating a candidate to fill the stool of Abodi did not arise. According to them the first Abodi was Olomola who begat Upon and Upon begat Fajuyi (2nd defendant/appellant). The 1st defendant/appellant who is the appointor or shall I say Kingmaker then went on to appoint 2nd defendant on 27/3/89 as opposed to 2nd plaintiff who was nominated by his own faction of the Olaso Ruling House.
It is this appointment which gave rise to the action in Suit No. HAD/18/89 which was decided in favour of the respondents. The appellants are dissatisfied with the judgment and have appealed to this court against it. I shall now deal with the 1st issue which touches on the question of whether or not the trial court was right in granting reliefs not claimed by the plaintiffs.
It is true that a trial court should never grant a relief or an award which a party did not ask for – See: the cases of Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172; Odusote v. Odusote (1971) I NMLR p. 228; Emaphil Ltd. v. Odili (1987) 4 NWLR (Pt. 67) 915.
But there is nothing wrong in a court, in the exercise of its inherent power granting a party a relief which he is entitled to in the circumstances of the case, doing so, the Court must however make sure that it does not grant more than what the party claims.
I have set out the claims of the plaintiffs/respondents earlier on in this appeal hence there is no need to repeat them here. In his judgment delivered on 11/2/91 the learned trial Judge granted the plaintiffs/respondents the following reliefs:-
I. It is hereby declared that under the custom of Odo Ado, Ado-Ekiti, the Abodi of Iremo is a minor chieftaincy title and the ruling house of the chieftaincy title is that of Olomola, the first Abodi. Olaso and Upon were descendants of the said Olomola and that the present plaintiffs being descendants of Olaso are entitled to be nominated and installed as Abodi. Although, the 2nd defendant is also entitled to be nominated and installed as an Abodi since he too is a descendant of Abodi Upon, however as the last two Abodis were from his side of family, equity demands that preference should be given to the plaintiffs’ side of the family over and above the 2nd defendant. Enough evidence has not been adduced in support of the plaintiffs’ claim that there are now two ruling houses of Olaso and Upon in respect of the title. I will therefore not make an order to that end.
- As it is clear from the evidence adduced before me in this case that the installation of the 2nd defendant as an Abodi has not been completed, and the procedure followed by the 1st defendant in rejecting the nomination of the 2nd plaintiff was improper in that no reasons were given, it is therefore ordered that the nomination and the process of appointment and all the steps taken so far regarding the appointment of the 2nd defendant is hereby declared null and void.
- The 1st defendant, his agents or privies are restrained from taking further steps regarding the installation of the 2nd defendant as the Abodi and an order is hereby made that the whole process should be started de novo and the plaintiffs are entitled to their costs in this case assessed at N250.00.
I have examined carefully the Reliefs granted the plaintiffs/respondents by the learned trial Judge vis-a-vis their claims in their writ of summons and statement of claim, I do not see any radical extra award made by the Judge which the plaintiffs never pleaded. As a matter of fact the learned trial Judge granted them something lesser than what they asked for.
The plaintiffs/respondents asked for declaration that under native law and custom of Odo Ado in Ado Ekiti, the Abodi of Iremo a minor chieftaincy is a ruling house chieftaincy with 2 ruling houses i.e. Olaso and Upon in order of rotation.
The learned trial Judge granted them a declaration that under the custom of Odo Ado, Ado Ekiti the Abodi of Iremo is a minor chieftaincy title and the Ruling house of the Chieftaincy title is that of Olomola from which the plaintiffs descended.
It is true the court did not grant the plaintiffs their declaration in the form of two ruling houses succeeding to the throne of Abodi but Olomola has been found to be a common ancestor of both the Olaso – Plaintiffs’ family and Upon defendants’ family. The learned trial Judge based his findings on the evidence before him that the ruling house is Olomola and he did not find any evidence to support the plaintiffs’ claim that there are now 2 ruling houses of Olaso and Upon.
It is my view that the learned trial Judge was right in limiting the declaration or relief granted to the plaintiffs as he did in Relief 1.
The plaintiffs succeeded partly on their claim land failed partly. This part failure in my view does not essentially prejudice the plaintiffs’ claims under the other reliefs hence the court proceeded to grant the other reliefs. The title of Abodi being a minor chieftaincy title in Ondo State does not call for formal declaration of customary law as is done in cases of recognised chieftaincy titles.
I have also looked through the Chiefs Edict of 1984 of Ondo State and the Chiefs Law of On do State, there is no provision for making declarations in respect of minor chieftaincy titles.
The only portion of the applicable law which is relevant to this case is section 13(2) of the Ondo State Chiefs’ Edict of 1984 which reads thus:-
13(2) “Where a person is appointed, to fill a vacancy in the office of a minor chief by those entitled by customary law so to appoint and in accordance with customary law the prescribed authority may approve the appointment.”
The learned trial Judge in his judgment has ruled and quite rightly too from the available evidence before him that the two plaintiffs were descendants of the first Abodi Olomola through their great grandfather, and their grandfather Okoloko and are also natives of Odo Ado Ekiti. This is sufficient evidence to establish their claim to the throne of Abodi. The Court has rejected the story of the defendants/appellants which attempted to oust the claims of the plaintiffs to the succession to the throne of Abodi on the ground that they were non-indigenes of Odo-Ado. The court also ruled that the Ewi of Ado is the prescribed authority. The first issue is therefore resolved in favour of the respondents.
Now to go to the second issue of whether the trial Judge was justified in holding that the plaintiffs have proved their case and consequently giving judgment in their favour.
The appellants complained of the contradictory nature of the plaintiff’s evidence vis a vis their claim, the paucity of evidence adduced in support of plaintiffs’ claim and the improper evaluation by the trial court of such evidence.
I have examined carefully the submission of both the counsel for the appellants and that of the respondents with respect to the second issue. I have also considered the relevant findings in the judgment of the learned trial Judge. It is my view that the learned trial Judge had done a proper evaluation of the evidence before him on both sides and has arrived at a most reasonable conclusion.
The procedure adopted by the 1st defendant/appellant in appointing 2nd defendant/appellant as new Abodi has been criticised as wrong, even from the evidence of his own witness DW1Chief Yesufu Akinweye. The correct procedure is that the family would meet to pick a candidate whom they would present to Chief Aremo i.e. 1st defendant. Chief Aremo would then summon all the Eloma Chiefs, Ewi Chiefs, and Elegba Chiefs to a meeting. It is at the meeting that the swearing in of the newly elected Abodi would take place and a date for the installation would be announced. On that day of the installation traditional leaves would be given to the new Abodi. He would then be deemed to have been fully installed. It is after all these conditions have taken place that all the Odo Ado Chiefs headed by the 1st defendant will then present the new Abodi to the Ewi of Ado Ekiti – the prescribed authority.
This has not been done in this case by the family of Abodi and the 1st defendant and his chiefs, hence the purported appointment of 2nd defendant/appellant and all the steps so far taken regarding the appointment of 2nd defendant are declared null and void. The 1st defendant set up an investigating committee to advise him. The Court was not told anything about its recommendations whether or not the interest of the 2nd plaintiff was considered. Exhibit A is a meaningless document as far as the court was concerned. The maker of Exhibit A was not called, neither was Exhibit A written in English – the language of the court or translated into same.
The learned trial Judge was right to declare the steps taken by 1st defendant as null and void. Having declared the appointment and proposed appointment of the 2nd defendant null and void, it was right to restrain the 1st defendant/appellant, his agents or privies from taking further steps regarding the installation of the 2nd defendant as the Abodi.
The learned trial Judge in my view was also right in making a consequential order that the whole process should be commenced de novo. The second issue is also resolved in favour of the respondents.
In the final analysis I hold that this appeal lacks merit and is hereby dismissed with N1,000.00 costs to respondents.
Other Citations: (1995)LCN/0222(CA)
