His Highness Oba L. B. Omoborinola Ii V. The Military Governor Of Ondo State & Ors. (1998)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C.

The plaintiff sued the defendant in the High Court of Justice of Ondo State holden at Akure. His claims against the defendants are contained in paragraph 60 of his amended statement of claim as follows:-

“1. Declaration that the Asin is the traditional Oba, head chief and paramount ruler of Oka in the Akoko South Local Government Area,

2. Declaration that the findings and recommendations of the Ogunleye Judicial Commission of Inquiry into the headship tussle between the Olubaka and the Asin of Oka are contradictory. against Oka native law, custom and tradition and are therefore against the rules of natural justice, illegal null and void.
3. Declaration that the Ondo Stale Government White Paper based on it is therefore illegal, null and void,
4. An injunction restraining the defendants, their servants and or agents from acting on the report, findings, recommendations and White Paper of any chieftaincy declaration based thereon in appointing and installing a new Olubaka of Oka.”

After the filing and exchange of pleadings the case proceeded for trial. The plaintiff gave evidence and called two other witnesses while five witnesses, including the 4th defendant personally, testified for the defendants. A number of documentary exhibits were also tendered in evidence from both sides.

At the conclusion of evidence counsel on both sides addressed the court. In a reserved judgment the learned trial Judge carefully considered the evidence before him and dismissed the plaintiff’s claims in their entirety. Said he-

“The judgment of this court therefore, is that all the legs of claim in the amended writ of summons and amended statement of claim having failed, the whole claim fails and it is hereby dismissed.”

Not satisfied with the judgment of the High Court the plaintiff appealed to the Court of Appeal holden at Benin City. The 4th defendant also cross-appealed. The Court of Appeal in a unanimous judgment delivered on the 23rd June 1995 dismissed both the plaintiffs appeal and the 4th defendant’s cross-appeal.

Aggrieved by the decision of the Court of Appeal the plaintiff has further appealed to this court. Parties filed and exchanged briefs of argument in accordance with the rules of court. These were adopted at the hearing during which time additional oral submissions were made by counsel.

In the plaintiffs brief six issues were formulated for determination as follows:-

“i. Whether or not the lower court was right in dismissing the appellant’s appeal and affirming the judgment of the trial High Court, having rightly held that the trial High Court was wrong to have invoked the rule in Kojo v. Bonsie- Ground 1.

ii. Considering the fact that the trial High Court never held that the appellant did not prove his case or that the evidence adduced by him was weak, whether the lower court was right in holding that appellant’s case ought to have been dismissed outrightly for his inability to prove same – Ground 3 & 4.

iii. Whether or not the lower court was right in construing the appellant’s case as that of a stolen paramountcy, necessitating it, like all criminal cases, to be proved or established beyond reasonable doubt – Ground 2.

iv. Having regard to the state of evidence on record, was the lower court right in holding that appellant did not provide independent witness or witnesses to the fact that the 4th defendant deceived the European District Officer by collecting the staff or office meant for him (appellant) – Grounds 5 & 6.

v. Were the findings of the Ogunleye Commission of Enquiry and the recommendations thereof contradictory and even if they were not, could the report be legally acted upon – Grounds 7 & 8

vi. Considering the totality of the evidence adduced by the plaintiff, inclusive of Exhibit N, whether or not the plaintiff was not entitled to judgment.”

It may be noted that in the Court of Appeal the plaintiff formulated seven issues for determination which are not entirely dissimilar to the issues above. The Court of Appeal rightly in my view reduced them to three thus-

“(1) Whether it was possible for the learned trial Judge to have resolved the question of usurpation of paramountcy, without recourse to the rule in Kojo II v. Bonsie (1957) 1 WLR 1233 at 1226.

(2) If the answer to issue (1) above is in the affirmative, whether the final verdict would have been in favour of the plaintiff.

(3) Whether, from the pleadings and evidence adduced, the learned trial judge was right of holdings that both the report of the Ogunleye Commission of Enquiry and the White Paper on it were valid.”

I have carefully analysed the issues formulated by the plaintiff above, and find that issue (i), (ii), & (vi) all complain about whether or not the plaintiff’s case was properly or rightly dismissed, having regard to the evidence and the applicable law, issues (iii) & (iv) relate to the usurpation of paramountcy, while issue (v) is about the findings and recommendations of Ogunleye Commission of Enqury. I will therefore consider the issues in the manner outlined above.

Before delving into the issues, it will be proper to summarise very briefly the facts of the case. The plaintiff is the Asin of Oka. Asin is the traditional name for Oba of Oka from time immemorial. The first Asin who came from Ile-Ife founded and settled in the area traditionally associated with and named Oka today. He in fact settled at Oka Odo on arrival. It was very late afterwards that Oke-Oka people came and settled at Ibaka quarters. Their leader known as Olu-Ibaka was made an emissary between the Asin and the Colonial District Officer, then stationed at Kabba, because Oka then formed part of Kabba province. That sometime in 1918 or 1919, the then Asin was misled by the then Olubaka into believing that the District Officer would be coming to Oka to punish the Asin for an undisclosed offence. When the Asin did not come out to receive the District Officer the latter gave the staff of office meant for the Asin to the Olubaka who then became the Oba and paramount ruler of Oka. The plaintiff claimed that his predecessors-in-title and his people protested to the District Officer but to no avail. When Oka was transferred to Owo in then Western Region of Nigeria, the protest continued which resulted in setting up two administrative commissions of inquiry whose findings were inconclusive. Finally, the Ondo State Government set up the Ogunleye Commission of Inquiry into the matter who report and recommendation were also not acceptable to the plaintiff because the over-lordship of Olubaka over the Asin was further endorsed. Consequently, this action was instituted.

On the other hand, the 4th defendant who is the present Olubaka of Oka contended that Oka was founded by Okikan the first Olubaka who came from Ile-Ife with a crown. That Asin’s quarter in Oke-Ode is just one of the fifteen (15) quarters or settlement forming the Oka of today. He said the Olubaka as of right received the staff of office from the Colonial District Officer from Kabba in 1904 or 1905 and thus became the paramount ruler. In an unbroken chain of succession the Olubakas have reigned as paramount rulers in Oka over thirty-five minor chiefs where the ancestors of the plaintiff have ranked third (3), after the Olusin of Owalusin who is second (2nd)in command to the Olubaka. He said the protests of the Asins and their people were lacking in merit hence they were always dismissed by all the authorities before whom the issue had been placed. Enough of the fact and back to the issues.

Issues (i), (ii), & (vi)

As indicated above these issue will be treated together. The following submission were made on behalf of the plaintiff.

1. That the Court of Appeal having agreed that it was inappropriate for the learned Judge to have invoked the rule in Kojo v. Bonsie in resolving the contradictory traditional evidence in the case, it should have allowed the appeal and thereafter make appropriate consequential order,. and not to have resorted to exploring other grounds not relied upon by the parties to affirm the judgment.
2. That the Court of Appeal not being a court of first instance was wrong to have observed that the plaintiff did not prove his case or that the evidence adduced by him was weak, when he failed to call any witness about the alleged wrong doing when the staff of office was given to the Olubaka by the Colonial District officer or that there was no evidence showing that people in Oka paid taxes to the Asin either as a final authority or for transmission to Colonial District officer, or that there was no evidence that the Asin had any direct dealing with the District Officer before the handing over of the staff of office to the Olubaka.
3. That proper consideration was not given w Exhibit “N” as well as Exhibit “C-C1” which would have tilted the scale in favour of the plaintiff.

Many authorities were cited including amongst others the following-

Olabode v. Salami (1985) 2 NWLR (Pt. 7) 282

Sanusi v. Moda (1994) 5 NWLR (Pt. 347) 732

Union Beverages Ltd. v. Pepsi Cola Int. Ltd (1994) 3 NWLR (Pt. 330)1.

Akanbi v. Alao (1989) 3 NWLR (Pt. 108) 118

Ikabala v. Ojosipe (1988) 4 NWLR (Pt. 86) 119

Udo v. Okupa (1991) 5 NWLR (Pt. 191) 365

Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360

The 1st, 2nd & 3rd defendants who filed a joint brief of argument responded thus-

(a) The decision of the Court of Appeal properly understood was that, it was unnecessary for the High Court to have resorted to the rule in Kaja v. Bonsie, there being no evidence on the part of the plaintiff to sustain any of the reliefs claimed by him. In other words there was no evidence on record which if believed would have tilted the scale in favour of the plaintiff. That while it may be unnecessary for the High Court have resorted to the rule in Koja v. Bonsie, it was not out of place for that court to have made reference to events since 1905 event of the handing over of the staff of office to the Olubaka to the present day which show his superiority over the Asin/plaintiff.

(b) The Court of Appeal did not dismiss plaintiff’s case on grounds other than those found by the trial High Court. It only expressed its views as to the type of evidence needed by the plaintiff to have succeeded but which were lacking.

(c) On the totality of evidence, documentary and otherwise, adduced by the plaintiff in the High Court, he did not make out any case against the defendants.

The authorities cited include –

Imonikhe v. Attorney-General of Bendel State (1992) 6 NWLR (Pt. 248) 396.

Eguamwense v. Amaghizemwen (1993) 9 NWLR (Pt. 315) 1

Kodilinye v. Odu (1935) 2 WACA 336.

Eholor v. Osayande (1992) 6 NWLR (Pt. 249) 524.

On behalf of the 4th defendant, it was submitted that the Court of Appeal was right when it said that the High Court should have dismissed the case of the plaintiff outright on the basis that the plaintiff who asserted did not prove, and that there was no need for it to have resorted to the rule in Kojo v. Bonsie. It was also submitted that the Court of Appeal did not confirm the decision of the High Court on grounds other than those relied upon and decided by the High Court which properly evaluated the evidence led before it including Exhibits C-C1 and ‘N’ amongst others. It was stressed that the plaintiff failed woefully because he led no evidence on the alleged usurpation of paramountcy by the Olubaka in or about 1905.

As I said already the question to be answered here is whether or not the plaintiff’s case was properly dismissed having regard to the evidence and the law. I have carefully considered all the arguments of the plaintiff. There is no doubt that as a plaintiff he had the onerous duty of establishing his claim before the court, while the defendants in the absence of a counter-claim, had no duty to answer more that what was pleaded: see Kodilinye v. Odu (supra); Eholor v. Osayande (supra). It is clear from the pleadings of the parties that all that the plaintiff is claiming is a declaration that as between the Asin of aka (plaintiff) and the Olubaka of Oka (4th defendant), the Asin is the superior or paramount ruler. This should be so because the plaintiff’s ancestor, the Asin, was the first to arrive and settle in Oka. In contrast the ancestors of the 4th defendant the 1st Olubaka arrived much later and he became a “palace domestic” to the Asin. As a palace domestic the Asin used to send him on errands between the Asin and the Colonial District Office in Kabba. Sometimes between 1918 and 1919 the Olubaka or palace domestic twisted the message sent to the Asin by the District Officer and collected the staff of office meant for the Asin from the District Officer thereby becoming a superior or paramount ruler over and above the Asin.

The record shows that the learned trial Judge in his judgment on pages 203 – 204 made the following findings when he said:-

“Having dealt with these legal issues, I will now go to the facts of the case. I have painstakingly read the statements of claim and defence and the evidence adduced in support.

1. I find as a fact that both the plaintiff and the 4th defendant came from Ile-Ife;
2. I also find as a fact that they came at different times;
3. I find as fact that they settled in different parts of the hilly areas called Oka;
4. I also find as a fact that the whole of the area was under the administration of Kabba province.
5. I find as a fact that both the Asin and Olubaka came from Ife with their crowns;
6. I find as a fact that when Asin came he settled at a place called Odo-Iju now ado-aka, but I do not accept the story that Olubaka was a palace domestic to the Asin just as I do not believe that Olubaka was the one who land to Asin;
7. I find as a fact that Olubaka came with his people and settled at Oke-Oka.
8. As I said somewhere in this judgment the evidence of D.W.3 is not at variance with paragraph 8 of the statement of defence.
9. I have considered Exhibit A-A3 which according to the plaintiff was obtained from the archives at Ibadan… Firstly, it was not signed by the maker secondly it was not dated … In view of the above I am unable to place any reliance on the exhibit.”

There was no appeal against any of the above findings of the trial High Court. It should have been clear to the learned trial Judge by now that after the above findings which were all unfavourable to the plaintiff, that the bottom had been knocked out or the plaintiffs case. In other words the edifice on which every other thing was placed had collapsed. The Court of Appeal was therefore absolutely right in my view when it said in its judgment that –

“Plaintiffs case therefore should have been dismissed outright without invoking the principle in Kojo II v. Bonsie (supra) .”

It is pertinent to observe too that it was after making the findings set out above that the learned trial Judge proceeded on page 204 of the judgment to state thus –

“All am saying is that the evidence of both the plaintiff and the 4th defendant and their witnesses about the traditional history of Oka is so contradictory to each other on no rational basis can the evidence be resolved one way or the other . I have no alternative than to invoke the Kojo II v. Bonsie principle in finding out which of the two conflicting traditional facts in recent years as established by evidence.”

The learned trial Judge had probably forgotten that he had before now made findings which clearly made the story told by the 4th defendant and his witnesses more probable than that narrated by the plaintiff and his witnesses. So that the plaintiff having failed to prove his case, the learned trial Judge had no alternative but to have dismissed the claims in their entirety, Again the Court of Appeal was right when it said:-

“In other words, that there was sufficient evidence (or lack of evidence) to have enabled the learned trial Judge decide the case one way or the other without recourse to the rule in Kojo II v. Bonsie (supra) ..’

There is nothing on record to show that the Court of Appeal confirmed the judgment of the High Court on grounds other than those relied upon by the trial court Admittedly, the Court of Appeal made comments or expressed views on one in the case but which he did not do, But they were merely comments or views which in no way affected what the learned trial Judge had done, which was dismissing plaintiffs claims based on the evidence before him. I think the Court of Appeal was right.

These findings were clearly justified when it is observed that the learned trial Judge later in the argument accepted what he referred to as recent happenings:

(i) The evidence of the defendant that Olubaka was the president of the Native Court.

(ii) That Olubaka is the prescribed authority for the whole of Oka land.

(iii) That Oluboka represents Oka in the former Council or Chiefs in the old Western Region and now represent aka in the Council of Obas in Ondo State.

(iv) That Olubaka is listed No.1 out of the eleven Obas in Akoko South Local Government while the plaintiff Asin is not listed as one of the Obas – Exhibit ‘J’.

(v) That the plaintiff Asin is a kingmaker to the Olubaka chieftaincy Exhibit ‘K’.”

The answer to issues (i), (ii) & (vi) combined is therefore clear and unambiguous. It is that the plaintiffs case was properly dismissed by both the trial High Court and the Court of Appeal having regard to the evidence and the applicable law. Having arrived at this conclusion I wonder whether there is any further necessity of treating the remaining issues (iii), (iv) & (v) which to me are components of this conclusion. Nevertheless I intend to deal with them albeit briefly.

Issues (iii) & (iv)

As stated above. these are about the “usurpation of paramountcy” by the Olubaka. The Court of Appeal called it “stolen paramountcy”. Now, paragraphs 24-35 of the plaintiff’s amended statement of claim read as follows:-

“24. The Asin became very old and in most cases he used to send the Olubaka to various places to deliver messages for him.

25. Oka was then administered with the Northern Region of Nigeria from Kabba where the District Officer resided and had his office.
26. On one occasion the District Officer sent the Olubaka to the Asin saying that he should meet him at Oke, Oka.
27. In actual fact, the District Officer wished to present to the Asin the staff of office as the paramount ruler of the Oka people.
28. When the message was delivered to the Asin he said he could not climb to Oke Oka because of his age (which was over 95 years) at that time and he said as the guest, it was the District Officer who should come and meet his host-the Asin – in his home at Ebinrin (now Oka Odo).
29. The Olubaka twisted this message. This was between … 1918 to 1919. The Olubaka the Asin that the District Officer said he was coming to punish the Asin for an ‘imaginary’ offence. He then advised the Asin to go into hiding.
30. As the Asin was afraid of being punished for an offence which he did not commit he decided to stay in his house and not to meet the District Officer.
31. The Olubaka on his own prepared to meet the District Officer with great pomp and pageantry at Oke-Oka.
32. When the District Officer asked for the Asin at Oke-Oka, the Olubaka replied that he had refused to meet the District Officer and to accept the staff of office.
33. The District Officer then grew annoyed and presented the staff of office to the Olubaka instead of the Asin to whom he had earlier prepared to present it.
34. From that time, any message that was meant for the Asin from the District Office was sent to the Olubaka who then began to act as the paramount ruler of Oka.
35. The plaintiff will at the trial lead documentary evidence both from the archives Ibadan and Kaduna to confirm this point.”

There is no doubt that the gist of the plaintiffs case against the fourth (4th) defendant was that between 1918 and 1919 the Olubaka the ancestor of the fourth (4th) defendant, unlawfully obtained a staff of office meant for the plaintiffs ancestor (Asin) by lying against the Asin before the Colonial Administrative Officer from Kabba. In my view even though the staff of office might not literally have been stolen, it would appear to have been obtained wrongfully or unlawfully. The plaintiff who raised the issue, however, led no evidence whatsoever in proof thereof. That issue must therefore be deemed to have been abandoned. So that since the plaintiff led no evidence on that aspect of his case, whatever the Court of Appeal said thereon went to no issue. The Court of Appeal merely made comments and did not base its decision on those comments. The fourth (4th) defendant on the other hand called an eye witness in the person of D.W.3 to the effect that the Olubaka was, as of right, given the staff of office by the District Officer. Issues (iii) & (iv) are therefore not relevant for a just decision of this appeal. Consequently, they are struck out.

Issue (v)

On the Ogunleye Commission of Inquiry the learned trial Judge said in his judgment thus –

“The fifth point is that learned counsel for the plaintiff had complained that the findings and recommendations of Ogunleye Commission of Inquiry are contradictory. One cannot treat this issue without looking into the terms of reference of the Commission as contained in Exhibit ‘F’. The last paragraph of the terms of reference provides ‘The Commission shall make such recommendations as he may think fit in ensuring peace and order in the affected community.’ The Commission found as a fact that Asin was the first to settle in Oka but that there was no overall head (overlord) over Oka until about 1904 when the Olubaka was presented with the staff of office. Judging from the last paragraph or the terms of reference quoted above it does not appear to me that his finding and recommendations are in conflict bearing in mind that the terms of reference is not on who first came to Oka and the Commission was empowered to make recommendations for ensuring peace and order in the affected community.”

The Court of appeal for its part had this to say –

“In view of the foregoing exclamation and the fuller of the White Paper already reproduced in this judgment, it becomes very clear that there was no contradiction whatsoever either between

the findings and recommendations of the Ogunleye Judicial Commission of Inquiry inter se or between them and the Oka native law & customs as already expounded in the body of this judgment.”

I agree completely. I need hardly say that nothing stops Oyo/Ondo State Government from acting on its White Paper Exhibit B-B1, based on the Ogunleye Judicial Commission of Inquiry which it had accepted. Issue (v) also fails.

All the issues having been resolved against the plaintiff, this appeal fails. It is accordingly dismissed with N10,000.00 costs against the plaintiff and in favour of each of the two sets of defendants, that is the 1st, 2nd & 3rd defendants jointly and the 4th defendant alone, respectively.

---

SC.158/1995