Ezekiel Oyinloye V. Babalola Esinkin & Ors. (1999)

LAWGLOBAL HUB Lead Judgment Report

O. EJIWUNMI, J.S.C.

This appeal is from the judgment of the Court below following an appeal to that Court from the High Court of Kwara State in the Omu-Aran judicial Division. In that Court the plaintiff, who is now the appellant, sought for a declaratory order that he is the rightful Ejemu of Rore and for an injunction prohibiting the second to fifth defendants/respondents from appointing or installing the first defendant/respondent as Ejemu of Rore.

At the trial Court pleadings were ordered, filed and served, and with the leave of the Court, the appellant amended his claim. In the course of the trial, the appellant did not himself testify, but he called three witnesses in support of his claim. For the respondents five witnesses testified in support of their case. At the end of the hearing and addresses by learned counsel, the learned trial judge dismissed the claim of the appellant. As he was not satisfied with that decision, he appealed to the Court of Appeal. As his appeal was dismissed in that Court, he has now appealed to this Court.

Pursuant to his appeal to this Court, his learned counsel filed six grounds of appeal. I do not deem it necessary to reproduce them here as they are sufficiently reflected in the issues framed in the appellant’s brief for the determination of the appeal.

The issues are follows:-

“3.02(i) Whether the learned Justices were right to have classified grounds 2, 3 and 5 of the appeal to the Court of Appeal as being omnibus in nature.

3.03. Whether the learned Justices were right to have speculated on any issue of Native Law and Custom.”

These issues have been criticized by learned counsel for the respondents in the respondent’s brief on the ground that they have not been formulated in general practical terms and tailored to the real issues in controversy. I do not think that the criticism should necessarily invalidate the issues formulated, though the respondents have also in their own brief formulated two issues for the determination of the appeal. I will consider the merits of this appeal upon the issues identified in the Appellant’s brief. I must observe that at the hearing of this appeal, both parties and their learned counsel were absent. The appeal was therefore treated as having been argued in accordance with Order 6 rule 8 of the Rules of this Court.

The facts that gave rise to this appeal deserve to be stated though briefly, for a better understanding of the argument proffered by learned counsel for the parties upon the issues raised in the appeal. It is common ground between the parties that the appellant belonged to the Idii-Orii Eledidi family and the 1st respondent a member of Olowo-Okere family. The appellant’s case appears to be that the Chieftaincy title to Ejemu of Rore was founded by his ancestor, Adeoye Asola before he went to Ajo and that Dada, son of Adeoye Asola, ascended the stool at Ajo. He then claimed that on the death of Dada, the stool was lent to Fasenu of Makin Oro compound. Fasenu reigned for about 3 (three) months. Because of the brief period of his reign, it is alleged that his son, Bamigbewu succeeded him, and he reigned for some 50 (fifty) years. After the reign of Bamigbewu, it is claimed that the stool was lent to Timothy Aworinde of Olowo-Okere compound. That compound, it is further claimed, had no Chieftaincy title. The appellant also claimed that when Aworinde, who in the pleadings is also referred to as Ajiboye was lent the stool, it was with agreement that the stool, would be returned to the appellant’s house thereafter. However, on the demise of Ajiboye the appellant was not nominated to ascend the stool of Ejemu of Rore. Rather, the 2nd – 5th respondents, surprisingly nominated the 1st respondent for the stool. This, he claimed, was in spite of the fact that they had received from his family the sum of N100.00 being the customary title fee.

For the respondents, their case may be put thus – The 1st respondent was alleged to be the head of Ayimola Akara family now known as Olowo-Okere family while the second respondent is the Oba of Irore, otherwise called Onirore of Irore and he hailed from Idii-Orii ward from Ile Oba Ile Olowu compound. The third respondent hailed from Idii-Orii ward and also from Ile Oba Ile Olowu compound. The fourth and fifth respondents hailed respectively from Makin Oro and Meja-Oba wards, both in Rore. It is the contention of the respondents that the first Ejemu of Rore was Ayimola Akara, a title he held from when he was in Oyo. It was when Chief Elemu Ayimola Akara and his followers were coming from Oyo through Rore that he was persuaded to stop at Rore with his followers. He was then given the honorary title of Essa of Rore for agreeing to stay at Rore. It is alleged that under the Native Law and Custom of Rore a Chieftaincy title could be loaned by a family to another family provided the title is not held by any one. Bogunjoko Ibu Olasi later became the head of Ayimola Akara family following the death of Essa Emeso who had earlier succeeded Ayomola Akara. Bogunjoko Ibu-Olasi, as the head of the Olowo-Okere family married Madam Faponle, the daughter of Loyoofe who hailed from Idii-Orii Eledidi. Later as it was the custom that a person who had no Chieftaincy title could not be given a ceremonial burial in Rore, the title of Ejemu was loaned to Loyoofe the father of Faponle so that his Children could give him a decent funeral. And as Chief Ejemu Osopo of Makin Oro held the title for a brief period of three months, his son Bamigbewu was allowed to succeed him as Ejemu. He held the title until he died sometime in 1964 or 1965. Following his death, a misunderstanding apparently developed between the Makin Oro family and the Olowo Okere family, both in Rore as to whose right it was to present a candidate for the Ejemu Chieftaincy title that then became vacant. The respondents claimed that the dispute was resolved with the appointment of Chief Timothy Ajiboye or Ajiboye from Olowo-Okere family as the Ejemu of Rore in 1968, and he occupied the stool until he died in 1985. The respondents denied that they received the sum of sixty naira (N60.00) and forty naira (N40.00) customary title fee from the appellant or from anyone in Idii-Orii Eledidi family.

As had been stated previously in this judgment, the learned trial Judge held that the appellant’s claim was not made out. The Court below also came to that conclusion and affirmed the judgment of the trial court.

In this Court, the first issue argued for the appellant is that the Court below wrongly classified grounds 2, 3 and 5 of the appeal before the Court as omnibus grounds. It is therefore argued for the appellant that with regard to the case for the appellant, the wrong classification of his grounds of appeal had occasioned a miscarriage of justice.

It is further contended for the appellant that each of grounds, namely 2, 3 and 5 raised specific questions of law and of facts which demanded individual consideration by the Court below. For instance, it is argued that the 2nd ground was for the Court to consider whether it was proper for the learned trial Judge to have disbelieved the evidence of the 3rd defendant (respondent) which clearly supported the appellant’s case. And the Court below, in the view of learned counsel for the appellant, cannot ignore evidence favourable to the appellant when considering the merits of the appellant’s appeal. In support of his contention, the learned counsel for the appellant referred to the following cases – Anachina Anyaoke & ors. v. Dr. Felix Adi (1986) 3 NWLR (Pt. 31) 731 at 742; Umeojiako v. Ezenamuo (1990) 1 NWLR (Pt. 126) 253 at 273.

With regard to the 3rd grounds, it is submitted for the appellant that the ground is certainly not omnibus. What it seeks to portray is that it was improper for the learned trial judge to resort to the original pleading when same has been amended. In support of that submission, reference was made to Salami v. Oke (1987) 4 NWLR (Pt. 63) 1. And in respect of ground 5 of the appellant’s ground of appeal in the Court below, it is submitted for the appellant that the question raised in that ground was a question of law.