Lawrence Adebola Oredoyin & Ors. V. Chief Akala Arowolo & Ors. (1989)

ESO, J.S.C.

An appeal has been filed against the judgment of the Court of Appeal [Ademola, Uthman Mohammmed and Owolabi, JJ.C.A.]. The majority judgment, which was the judgment of the court, was written by Owolabi Kolawole, J.C.A., with which Adenekan Ademola, J.C.A., concurred, with Uthman Mohammed, J.C.A., dissenting.

It was a chieftaincy matter and the claim of the plaintiffs, Chief Akala Arowole, Chief Salawu Soberu and Chief Bakare Okobale for themselves and as representatives of all members of Osugbo and other cults in Imota, except the first to third defendants, was as follows:

(i) A declaration that the appointment of the 1st defendant Lawrence Adebola Oredoyin as the Ramodu Imota is unlawful and ought to be set aside.

(ii) An order setting aside the said appointment;

(iii) An order restraining the 1st defendant from holding himself out as the Ramodu of Imota or performing any of the customary functions of the said Chieftaincy.

(iv) A declaration that the 3rd defendant is not qualified to hold the office of Olisa of Imota and accordingly his purported appointment to that office is null and void and

(v) An injunction restraining the 3rd defendant from holding himself out as the Olisa of Imota or performing any of the customary functions of the said Chieftaincy.”

The learned trial Judge, Martins, J., took evidence, and after a close examination of the facts, made some findings of fact. It is necessary that I set them out hereunder:

“The third defendant, J. K. Okelarin was appointed the Olisa of Imota on 7th June, 1978. There was no dispute surrounding his appointment, and both parties to this action, agreed that he was appointed as such Olisa by the late Oba named Adejo that is, the predecessor in title of Lawrence Adebola Oredoyin who is the first defendant to this suit. The dispute surrounding the third defendant was that while the plaintiffs claimed an Olisa must belong to one of the ruling houses the contention of the defendants was that this needed not be so. The Judge resolved the issue as follows –

“On a calm view of these submission, on the evidence available before me, I am of the view that the third defendant is the present Olisa of Imota, he having been duly elected or appointed by late Oba Adejo, the predecessor in title of the first defendant. The plaintiffs themselves in their evidence did not deny his being the Olisa at Imota now. Some of them took part in his installation as the Olisa sixth, P. W. in particular who is the first plaintiff. It was contended that the Olisa must be from the Ruling Houses, the plaintiffs themselves could not confirm that all Olisas were from the Ruling Houses. The learned Judge further found that the Lagos State Government, by Gazette No. 15 of 7th October, 1981, acknowledged the appointment of the Olisa as having been made under the Chiefs Law.”

Now, there has not been an appeal against this finding of fact. No such appeal was lodged to the Court of Appeal and obviously, no such appeal could have been lodged, nor in fact, was lodged to this court. The Judge dismissed the case against the third defendant.

As regards the first defendant, the contention of the plaintiffs was that an appointment of Ramodu of Imota, by balloting, was contrary to native law and custom which only permitted consultation with Ifa Oracle.

The defendants however relied upon legislation, that is, the Oba and Chiefs Law 1981 No.6, which of course, permits no place for the Ifa Oracle. The Chieftaincy Declaration, which was made in 1957, and under which the 1st defendant was appointed, says nothing about consultation with Ifa Oracle. The learned trial Judge in regard to the Ifa Oracle held –

“The plaintiffs must be living in a different world whenever they talk about Ifa Oracle in the selection of Ramodu or they are behind time or they do not move with the time.”

The learned trial Judge therefore dismissed the plaintiffs’ claim in its entirety.

Plaintiffs appealed to the Court of Appeal. In that court the questions for determination were –

“(1) Whether the Chieftaincy Declaration Exhibit J permitted the Senlu Ruling House to present three candidates to the Kingmakers or it was required to present only one

(2) If the Senlu Ruling House was required to present only one candidate to the Kingmakers, whether the Kingmakers could legitimately make any selection from the three presented

(3) If both the Senlu Ruling House and the Kingmakers or either of them acted contrary to Exhibit J, whether such acts were illegal and vitiated the whole process”

However, the point which really came for determination in that court, and which though the court regarded as a new point, yet permitted the same to be argued, was whether or not the Kingmakers must deliberate upon one candidate or could deliberate upon more than one, having regard to the Declaration, Exhibit J. But what does Exhibit J, say It provides-

“(i) There are four Ruling Houses and the identity of each such ruling house is:-

1. Oyemade House
2. Senlu House
3. Olugayan House
4. Lasademo House

The order of rotation in which the respective ruling houses are entitled to provide candidates to fill successive vacancies in the chieftaincies shall be:-

1. Senlu House
2. Olugayan House
3. Lasademo House
4. Oyemade House (present ruling house)

(iii) The persons who may be proposed as candidates by a ruling house entitled to fill a vacancy in the chieftaincy shall be:-

(a) Members of the ruling house

(b) of the male line; provided that succession may devolve on the female line where there is no qualified candidate of the male line.

There are seven Kingmakers as under:-

1. Olisa
2. Oluwo
3. Apena
4. Ogbeni-Odi
5. Ogbeni-Oja
6. Alakan
7. Gbasemo

(v) The method of nomination by each ruling house is as follows:-

The Ruling House whose turn it is to provide a candidate shall nominate at a family meeting to be summoned by the family head a candidate for the chieftaincy to be presented by the family head to the kingmakers at a meeting of the Kingmakers to be summoned by the leader of the Kingmakers. Made by the Ikosi District Council which has been designated as the competent council by Western Region Legal Notice No. 352 of 1955 as amended by Western Region Legal Notice 222 of 1956, and sealed in accordance with Standing Orders dated 31st day of August, 1956.

Seal.”

Now Court of Appeal held that by virtue of section 11 of the Oba and Chiefs Law, Exhibit J is the customary law regulating the selection of Ramodu of Imota, and, as Exhibit J has provided that –

“the Ruling House whose turn it is to provide a candidate shall nominate at a family meeting to be summoned by the family head a candidate…..”

and further, as Exhibit J never spoke of “candidates,” then the court held that until there is a process of amendment, all authorities, bodies and persons must comply, to the letter, with the provisions of the exhibit.

Owolabi Kolawole, J .C.A., held further-

“I am satisfied that the Chieftaincy Declaration Exhibit J did not permit the Senlu Ruling House to present three candidates to the Kingmakers. The customary law which regulates the selection of the Ramodu of Imota Chieftaincy provides for the presentation of one candidate to the Kingmakers. It was therefore contrary to the customary law as enacted in the Registered Chieftaincy Declaration Exhibit J to deliberate over the three candidates presented by Senlu Ruling House”

The Court of Appeal, as I have earlier stated, allowed the appeal and it was on the point aforesaid that the court granted the plaintiffs the declaration sought, setting aside the appointment of Lawrence Adebola Oredoyin as the Ramodu of Imota, and restraining the said Oredoyin from holding himself out as the Ramodu or performing any of the customary functions of the said chieftaincy.

In a powerful dissenting judgment, Uthman Mohammed, J.C.A., disagreed with the lead judgment on both the introduction of a fresh point of law which was never canvassed at the trial court and the submission of learned counsel for the appellants as regards the Registered Declaration on the Ramodu Ruling House Chieftaincy Ex. J. The learned Justice of the Court of Appeal, made copious reference to the contents of Exhibit J and held that the plaintiffs never pleaded the exhibit nor compliance thereto, either directly or by implication. Indeed, what they pleaded was the native law and custom which was based upon Oshugbo and other cults which demanded consultation with Ifa Oracle. Uthman Mohammed. J.C.A.. held further –

“I strongly believe that if the attention of the learned trial Judge had been drawn to the new meaning being given to exhibit J. either through pleading or oral submissions he would have made a finding on the provisions of the document. It is therefore fundamental that such a new point of law could only be raised at the court below. For the above reasons I hold a strong view that the point of law being raised now is not within the exception to the rule. that points raised for the first time, in an appeal court, will not be adduced in respect of this case to explain the purport in exhibit J, if the issues had been joined by the parties at the lower court.”

As regards the interpretation given to Exhibit J, the learned Justice disagreed that it should be construed to provide for the presentation of only one candidate by the Ruling House. He held that the Declaration was badly drafted, but notwithstanding, it could not be construed as the plaintiffs had submitted. He dismissed the plaintiffs’ appeal.

The defendants who lost, as per the majority judgment of the Court of Appeal have now appealed to this court. We are obliged to all learned counsel in this case for the lucidity of their briefs.

Chief G.O.K. Ajayi, S.A.N., who appeared for the 1st defendant/appellant in this court raised the issue of locus standi of the plaintiffs upon the ground that none of the two candidates who had been defeated by the Kingmakers’ decision has challenged the result of the election and neither has been a party to these proceedings. He relied upon the case of Abraham Adesanya v. The President of the Federal Republic of Nigeria (1981) 2 N.C.L.R. 358.

Learned counsel, thereafter, referred to the case before the trial court which was two fold that is-

(1) That the election of the 1st defendant as Ramodu was void because the 3rd defendant participated and voted as Olisa of Imota while he was not the due holder of the title.

(2) That the selection of the 1st defendant made by ballot was against native law and custom.

There was no appeal against the finding of the learned trial court, counsel contended, on the first issue, that is, that the 3rd defendant was the due holder of the Olisa of Imota title, and that the case was one of a straight fight between the Chieftaincy Declaration and the Ifa Oracle. The contention Oil the Chieftaincy Declaration, by the plaintiffs, in the Court of Appeal was “a complete turn about from their case on the pleadings and the evidence,” counsel concluded. The plaintiffs had abandoned the Ifa Oracle issue, in the Court of Appeal, and in that court now maintained that the Declaration was relevant but was not complied with to the letter.

Learned counsel also relied upon a brief which had earlier been filed for the 1st defendant by Chief Alokolaro, and which brief was mainly on the acceptance of the Registered Declaration as governing the selection as opposed to the Ifa Oracle.

Mr. E. O. Sofunde, S.A.N., appeared for the plaintiffs/respondents and formulated the issues which he regarded arose for determination as follows-

“1. Whether it is open to the appellant to contend in this Honourable Court that the issue as to non-compliance with Exhibit ‘J’ was an issue which the Court of Appeal ought not to have allowed the plaintiffs to canvass before them

2. If the answer to question (1) is yes, whether the said issue was an issue which the Court of Appeal ought not to have entertained
3. If the answers to questions (1) and/or (2) are in the negative, whether Exhibit ‘J’ permits the presentation of more than one candidate to the Kingmakers for selection and
4. If the answer to question (3) is in the negative, whether the presentation of three candidates instead of one to the Kingmakers vitiated the selection and appointment of the 1st defendant”

Counsel submitted that the motion for leave to argue the proposed grounds of appeal was granted without objection by counsel for the defendants in the Court of Appeal and that as a result thereof, it was too late to raise any objection in this court. He relied upon the decision of this court in Fadare & Ors. v. Attorney-General of Oyo State (1982) 4 S.C. 1. He further submitted that the defendant was caught by the rule of estoppel and argued in his brief that-

“An estoppel is thus created, because the rule of law is that it is not only issues which were decided that cannot be raised again, but also issues which ought properly to have been raised and decided.”

As regards the case of Kate Enterprises Ltd. v. Daewoo Nigeria Ltd. (1985) 2 N. W.L.R. (Pt.5) 116, which Uthman Mohammed, J.C.A., relied upon in his dissenting judgment, Mr Sofunde submitted that in that case, leave to appeal was obtained in the Court of Appeal, but that this court had held in Fadare & Ors. v. Attorney-General of Oyo State (1982) 4 S.C. I that the proper court to obtain leave to argue a fresh point was the court to which the appeal lay. Learned counsel then argued –

“In so far as leave to amend the grounds of appeal in the case herein was granted by the Court of Appeal to which the appeal lay, and which court was the proper court to grant leave to argue a point not raised in the trial court. Mohammed, J.C.A… was wrong to have relied on the Kate Enterprises cases. What he did is similar to what the learned trial Judge did in Lawal v. Dawodu (1972) 1 All N.L.R. (Part 2) 270 OR (1972)7 S.C. 83 by first admitting a document during trial, and later in his judgment rejecting it because it was inadmissible.”

Counsel then took great pains to examine Exhibit ‘J’ and submitted that if it is examined with section 20 of the Chiefs Law [Cap. 20] Laws of the Lagos State, though the Kingmakers have power by law to select a candidate from one or more, depending on the number presented. the number presented must depend on the provision of the Declaration. In this case, Exhibit J, requires the presentation of only one candidate.

Mr. Sofunde then treated Exhibit J as an existing law, under section 274 of the Constitution, and submitted that an infringement of the exhibit by selecting only one of three is illegal. I suppose on the logic of learned counsel, the Chiefs Law as an existing law requires more than one candidate and as the Declaration, also as an existing law requires one candidate, there is a conflict. Mr. Sofunde did not advert his mind to this and so could not have told us which of the two “existing” legislation should be followed!

The 2nd defendant/appellant – the Attorney-General of Lagos State was represented by Mrs. Dolapo Akwsanya. She argued and very brilliantly too, in her brief, for I would wish to put this specially on record, having regard to the fact that she was the only non-Senior Advocate in this case, that plurality of candidates is permitted and section 17 of the Chiefs Law would in any event override Exhibit J even if Exhibit J does not permit of plurality.

As regards the case which was put forward by the plaintiffs in the trial court, Mrs. Akinsanya’s argument supported Chief Ajayi. She contended that there could be no estoppel on the issue of the lower court allowing the motion in which leave was sought to argue additional grounds of appeal. She asked for the appeal to be allowed in line with the Chief Ajayi’s contention.

In their oral argument, all the learned counsel adopted their briefs.

Now the issue of locus standi has been raised, not for the first time, in this court. It was also raised in the Court of Appeal. There is no doubt that the issue, which really goes to jurisdiction, could be raised at any stage, and certainly, there would be nothing wrong with its being raised, even for the first time, here. However, this being a chieftaincy matter, which deals with a fundamental custom of the people and which is so important in their culture especially in this part of the country, I would prefer to deal with the issue of locus standi, if and only if the appellants could not succeed on the other substantive issues which go to the foot of the appointment and which issues have pervaded the case right from the court of trial to this court. For, if they succeed

on those issues, then it would be more satisfying to all the parties herein and also the community over which the chieftaincy reigns or is to reign, than what might appear to them, (though, constitutionally it is not), as a mere technical issue.

I would therefore proceed to examine the point raised by Chief Ajayi that the plaintiffs could not change their stand on appeal and the issue of estoppel with which Mr. Sofunde countered it, in his brief. There is no doubt, as Chief Ajayi had submitted, that the case, of the parties in the trial court was one of a straight fight between the Chieftaincy Declaration and the Ifa Oracle. That was the case the trial court examined, and that was the case he decided upon. It was in the Court of Appeal that the plaintiffs raised, for the first time ever, non-complaince with Exhibit J which exhibit they maintained in the trial court not to be applicable to this chieftaincy.

Mr. Sofunde’s brief argued that the Court of Appeal was right to have allowed the issue of Exhibit J to be canvassed. The plaintiffs in that court, before arguing the point, brought a motion to the court under Order 3, Rule 2(5) and 16 of the Court of Appeal Rules, granting them leave to amend their grounds of appeal by substituting new grounds. It was the schedule to that motion that brought in an examination of the provisions of Exhibit J. When on 25th March 1987, the motion was moved, the two counsel representing the defendants severally raised no objection.

The question which was raised by the plaintiffs/respondent, and which must be answered is whether this has created an estoppel. Learned counsel, in his brief, referred to the dictum of Aniagolu, J.S.C., in Aro v. Fabolude (1983) 2 S.C. 75 at pp.84 to 85 when the learned Justice of the Supreme Court said-

“the principle (estoppel) has been applied, in the public interest of the desirability of seeking an end to litigation, to an accommodation of a wider spectrum not only to points upon which the court was actually required by the parties to form an opinion which properly belonged to the subject-matter of litigation and which the parties exercising reasonable diligence might have brought forward at the time”

I think, with utmost respect to learned counsel, this case is authority against the position they have now assumed. They were aware of the Chieftaincy Declaration. It was pleaded by their opponents. The plaintiffs themselves referred to it in their Reply but maintained it did not apply. Are they, then, not estopped from raising it in the Court of Appeal or in this court if they are to apply the decision in Aro v. Fabolude I think, the Court of Appeal ought not to have granted leave to introduce those new grounds of appeal, but then having done so, they should not have proceeded to “try” a case which was opposed to the one put up in the trial court. This was definitely not put up as an alternative, but, the plaintiffs regarded it (is a point which was to be aborted at the trial.

But even assuming there is an estoppel, and that the plaintiffs/respondents could rely on Exhibit J, what would be the construction to be placed upon the Exhibit

The pertinent words for construction are “The Ruling house shall nominate a candidate……”, and the question is: must the ruling house be tied down only to providing one candidate, in which case the provision for Kingmakers in the exercise, is merely cosmetic, or could they provide candidates as it would appear they could, on a proper construction of the words, in the same Declaration;

“The persons who may be proposed as candidates by a ruling house…….”

The use of the “candidate” would appear to me to be an inelegant draft by the Draftsman. But even then, the High Court was never permitted to decide on this, as the point never arose before that court. As Chief Ajayi has rightly submitted, and I agree, the two issues-

(1) 3rd defendant being the present Olisa of Imota; and

(2) selection of Ramodu by Ifa Oracle

which were the only issues before the trial court ended with that court. No issue was raised by the plaintiffs on the compliance or not with the Customary law which is now the Chieftaincy Declaration, nor could have been joined by the defendants as it was never raised by the plaintiffs, and if joined, then it could have been argued that section 20 of the Chiefs Law (Cap. 25) Laws of the Lagos State 1973 permits the ruling house to submit more than one candidate from whom the Kingmakers could make a choice of one.

But more importantly is the making of the Court of Appeal or this court the venue for such decision, having regard to the case of the plaintiffs in the trial court. In his address in the trial court, learned counsel for the plaintiffs put the following up as the case for the plaintiffs-

“I now come to the case of the plaintiffs against the 3rd defendant. See the averments in plaintiffs Reply. The 1st and 3rd defendants in this action did not aver in this action that the Oshugbo cult is not the paramount cult in Imota and that they have the last say after consultation with the Ifa Oracle as to who will be the RAMODU of Imota. Full regard must be given to Ifa Oracle in respect of the choice of RAMODU.”

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………………………………………….

“I now come to the case of the plaintiffs against the 1st defendant. It was the part played by the 3rd defendant in the appointment of the 1st defendant as RAMODU that forced the plaintiffs to bring the 1st and 2nd defendants into court. If the 3rd defendant had not acted in the way he had done the 1st and 2nd defendants may not be in court. But for the facts that issue of appointment of RAMODU affects the 1st and 2nd defendants they have to be joined hence they are in court in this action as far as Native Laws and Customs are concerned. Native Laws are not codified it is common knowledge and adhered to strictly by those who have maintained the law. There could not be any documentary evidence in respect of Native Law and Custom. We have proved to this Hon. Court that the Oshugbo cult is the custodian of Native Law and Custom of Imota.”

(Italics mine for emphasis)

And if the case of the plaintiffs was that there was no documentary evidence in respect of Native Law and Custom, and no codification of Native Law and Custom which is the other word for Declaration, how could they now stage what Chief Ajayi has rightly termed “a complete turn-around.” I agree with learned Senior Advocate when he said-

“In the Appeal Court they now ABANDONED their case based on the Ifa Oracle and conceded that (as maintained all along by the defendants) the choice was indeed governed by the Ramodu of Imota Chieftaincy Declaration but now contended that the Court of Appeal should give them judgment on the basis that:

(a) It was the Chieftaincy Declaration that was applicable and

(b) The provisions of the Chieftaincy declaration had not been complied with.

This is precisely what the Court of Appeal did. They gave judgment for the plaintiffs on the basis of the exact opposite of their case on the pleadings and evidence and upon a point which the defendants never fought or contested on the pleadings and evidence.”

(Italics mine)

The Court of Appeal could not rightly do this. Uthman Mohammed, J.C.A., was right in his analysis and I humbly adopt his reasoning to wit:

“It is evidently clear that the appellants did not plead exhibit J, nor did they-plead non compliance with it, either directly or by implication. As a matter of fact what was pleaded was the native laws and custom based on Oshugbo and other cults. Most of the witnesses for the appellants described the method of appointing a Ramodu of Imota under their native law and custom to be through consultation with Ifa Oracle and Oshugbo cult. Paragraph 6 of the Amended Statement of Claim even mentioned that membership of Oshugbo cult was required by the native law and custom and that such practice had been embodied in the registered declaration relating to the appointment of Ramodu of Imota. It was in the respective amended statements of Defence of the 1st, 2nd and 3rd respondents that the Registered Declaration, exhibit J, was pleaded. The learned trial Judge made a thorough review of the evidence adduced, including the application of the Registered Declaration, exhibit J, and dismissed the appellants’ claim. He made no comment on the new legal point being advanced, that exhibit J provided for the nomination of only one candidate instead of the three presented to the Kingmakers. There was no need to comment on it because it was not an issue canvassed before him” (again italics mine)

This court has decided in Fadiora v. Gbadebo (1978) 3 S.C. 219 that-

However, the law is that where a point of law which has not been taken in the court below is put forward by an appellant for the first time in a court of appeal that court ought not to decide in his favour unless it is satisfied beyond doubt:

(a) that it has before it all the facts bearing on the new contention as completely as if it has been raised in the lower court (i.e.) court of first instance), and

(b) that no satisfactory explanation could have been given in the court below if it had been so raised…”

As regards raising such point in the court of last resort, this court held –

“The other point, however, for our consideration is that this court is a court of last resort and the rule of practice is that when a question of law is raised for the first time in a court of last resort it is generally not only competent but expedient in the interest of justice for the court to entertain the question (see Connecticut Fire Insurance Co. v. Kavanagh (1892) A.C. 473 P.C.1. This rule of practice, however, is subject to the qualification that the court of last resort may refuse to entertain the question of law sought to be raised for the first time if it is satisfied that the court below would have been in a more advantageous position to deal with the matter)”

(italics mine)

In Mogaji & Ors. v. Cadbury Nigeria Ltd., & Ors., Bello, J.S.C. (as he then was) followed this decision and said-

“I may only add that this court has discretionary power and is competent to entertain a point of law raised for the first time before it but it may be emphasized that no point which has not been taken in the court below will be allowed to be raised for the first time before this court except in special circumstances.”

This too must apply to the Court of Appeal. The Court of Appeal should not have permitted what happened, and I so hold, and they were in serious error in their majority decision. There is in fact nothing that could be referred to herein in this case as special circumstances.

What happened in the Court of Appeal was not really taking an appeal against the judgment of the High Court. Section 220 of the 1979 Constitution provides for an appeal against the decisions in any civil or criminal proceedings before the High Court. The decision in this case, of the High Court, was that Ifa Oracle was not applicable, the Customary law has been reduced to writing and it is as contained in the Chieftaincy Declaration. The plaintiffs were no doubt, aware of the existence of this Chieftaincy Declaration right from the beginning, for the 2nd defendant pleaded it as follows –

“In further reply to paragraph 5, the 2nd defendant avers that there is a Chieftaincy Declaration made by the Ikosi District Council being the then designated and competent council on the 31st August, 1956, approved by the Minister of Justice and Local Government (the accredited officer of Government then) on the 26th November, 1957 and registered on the same day by the Permanent Secretary of that Ministry under Section 4(2) of the Chiefs Law 1957 of Western Region of Nigeria as the customary law relating to the selection to the stool of Ramodu of Imota.

Under the said declaration, there are seven kingmakers and their order of standing was as follows-

1. Olisa
2. Oluwo
3. Apena
4. Ogbeni-Odi
5. Ogbeni-Oja
6. Alakan
7. Gbasemo”

Indeed the plaintiffs in their Reply to this pleadings did not deny these paragraphs but instead they averred positively-

“The plaintiffs plead that at all material time and from time immemorial the Oshugbo cult is the custodian of all native law and custom at Imota and only they alone have the last say after consultation with the Ifa Oracle as to who would be a Ramodu and full regard must be given to the Ifa Oracle in respect of the choice of candidate.”

………………………………………….

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“The plaintiff averred also that prior to 1956 Chieftaincy Declaration, names of positive candidates to fill the vacancy of a Ramodu must be put before the Ifa Oracle and the Ifa Oracle has the last say in deciding. Even if only one name is sent the oracle can reject the person and that is final another person must be looked for and further put before the Oracle, if not rejected he then becomes the new Ramodu if rejected, the exercise goes on until Ifa Oracle is satisfied.”

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“The plaintiffs further averred that there are certain rituals to be performed by the Oshugbo cult before and after a Ramodu is appointed and this has not been done for the 1st defendant and therefore he is precluded from calling himself the Ramodu of Imota. The plaintiffs averred further that the purported appointment of the 1st defendant as Ramodu offends against the principles of Natural Justice and also Native Law and Custom as his nomination was tainted with political manoeuvering for the Ifa Oracle was consulted and the Ifa Oracle refused his candidature and only the person whose nomination was approved by the Ifa Oracle could validly become the Ramodu.”

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“The plaintiffs averred that all material times in the history of Imota no Ramodu has ever been appointed by balloting for balloting is contrary to Imota Native Law and Custom because Ifa Oracle must always be consulted and Ifa Oracle is the last abiter. The Oshugbo are the keeper of the Town’s Erindinlogun and these are the ones to be used after a babalawo is called to interpret.”

And so, it was not a case of the issue of Chieftaincy Declaration escaping the attention of plaintiffs. It was a case of their awareness of the Declaration and outright rejection thereof!

This issue having been decided against the plaintiffs in the High Court, their posture in the Court of Appeal is completely contrary to that in the High Court and what the Court of Appeal did was to try a completely new case, different from the one in the trial Court, as if they were a court sitting at nisi prius. This is absolutely unconstitutional. They have no right to do this, and with respect, no amount of application to bring the new case into that court, by way of grounds of appeal, would confer jurisdiction on the Court of Appeal.

When was the decision given by the trial court that the letter or spirit of the Chieftaincy Declaration was not followed Who complained at the trial Certainly, with respect, justice cannot be attained by this sort of a back-door approach!

Having said all this, I am of the considered view that the majority judgment went on a voyage of illegality, channelled for them by the respondents (appellants in that court) by way of motion, into which channel they jumped, aimlessly, without the paddle of law or justice.

It is certainly not now necessary to deal with the issue of locus standi, for even if the plaintiffs had locus they had failed woefully in their venture.

The appeal succeeds and it is hereby allowed. The judgment and order of the Court of Appeal are hereby set aside. The order of the High Court is restored. And for the avoidance of doubt, the Order is –

The first appellant, Lawrence Adebola Oredoyin, has been lawfully and duly appointed the Ramodu of Imota on 29th October, 1981.

All the claims of the plaintiffs against all the defendants are dismissed in their entirety.

The Ist and 2nd appellants are each entitled to costs assessed at N500.00 in this court against the appellants being costs in this court, and each entitled to costs assessed at N1,250.00 being costs in the Court of Appeal.

UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother, Eso, J.S.C. I entirely agree that the appeal succeeds and that it should be allowed.

I wish only to comment further on the reason expressed by the majority judgment of the Court of Appeal on whether a new point not raised in the High Court could be raised on appeal in that court. In considering the point, the lead judgment (per Kolawole, J.C.A.) stated as follows-

“But assuming that the issue (of raising new point on appeal) calls for determination as a preliminary point, the Supreme Court recently restated the conditions under which new points on law can be taken and considered on appeal. Uwais, J.S.C., said –

“The conditions under which new points of law can be taken and considered on appeal have often been stated. These are

(i) That the point of law raised will be argued on the same facts as were relied upon in the court below:

(ii) That the point if argued in the court below would have been decisive.

It is for these reasons that the issue of jurisdiction is allowed to be argued at any stage of the trial or appeal.”

(See Abaye v. Ofili & Anor. (1986) 1 S.C. 231 at p.306-307; Salati v. Shehu (1986) 1 N.W.L.R. (Pt.15) 198 at p.203)”

With due respect, although I was a member of the panel of this court that determined the appeal and in fact wrote the majority judgment in Abaye’s case, the above quotation which appears on pp.306-307 of (1986) 1 S.C. 231 is not my dictum. My judgment will be found on pages 257 to 283 of the Report and my exact words on the point, which are stated on pages 269 to 270 thereof, read thus-

“It is now settled that this court; as a court of last resort, will allow a fresh point of law to be taken before it, even if such point was not taken in the court below – See Stool of Abinabina v. Enyimadu 12 W.A.C.A. 171 at p.173; Djukpan v. Orovuyovbe & Anor. (1967) 1 All N.L.R. 134 at pp. 136-139; Fadiora v. Gbadebo & Anor. (1978) 1 L.R.N. 97 at p.108-9, and Ejiofodomi’s case (supra) at pp.113-6. However such leave is subject to the conditions that – (1) We have before us all the evidence which is needed to completely support the new contention and (2) no satisfactory explanation could have been given by the respondents in the lower courts to counter the contention, see Fadiora’s case (supra) on pp.108-9.’-

Again the citation of the case of Salati v. Shehu (1986) 1 N.W.L.R. (Pt. 15) 198 at p.203 cannot be attributed to me. That is not to say that I was not in agreement with the remark therein, which will be found in the lead judgment of my learned brother, Nnamani, J.S.C. What was said by him on pp.202 to 203 thereof, and with which I still associate myself, is-

“It was the additional prayer to raise a new matter not raised in the three lower courts that merited closer examination. The attitude of this court has been that it will not allow a party on appeal to raise a question not raised in the court of trial or grant leave to a party to argue new grounds not canvassed in the lower courts except where the new grounds involve substantial points of law substantive or procedural which need to be allowed to prevent an obvious miscarriage of justice. See K. Akpene v. Barclays Bank of Nigeria Ltd. (1977) 1 S.C. 47, Debesi Djukpan v. Rhorhadjor Orovuyovbe & Anor. (1967) 1 All N.L.R. 134, 137; Re Cowburn ex parte Firth, (1881-85) All E.R. 987, 991; Agness Deborah Ejiofodomi v. H.C. Okonkwo (1982) 11 S.C. 74 at 96-98, 109; United Marketing Co. Ltd. v. Kura (1963) 1 W.L.R. 523.

Idigbe, J.S.C., in Fadiora v. Gbadebo 1 L.R.N. 97, 108 touched on the other points which this court takes into consideration. The learned and revered late Justice said –

“However, the law is that where a point of law which has not been taken in the court below has been put forward by an appellant for the first time in a Court of Appeal that court ought not to decide in his favour unless it is satisfied beyond reasonable doubt –

(a) that it has before it all the facts bearing on the new contention as completely as if it has been raised in the lower court (i.e. court of first instance) and

(b) that no satisfactory explanation could have been given in the court below if it had been so raised (See Tasmania (Owners) and Freight Owners v. Smith, etc. City of Corinth (Owners) (1890) 15 App. Cas. 223”)

It is obvious from the foregoing excerpts from the cases of Abaye and Salati that if the majority in the Court of Appeal had allowed the pronouncements of the principles, made therein, to properly guide them they would not have allowed the application of the plaintiffs (now respondents) to raise the new point on which they (Court of Appeal) overturn the decision of the trial court.

The issue tried and considered by the High Court which was the court of first instance, was whether-

(1) The election of the 1st defendant as Ramodu was void because the 3rd defendant participated and voted’ as Olisa of Imota while he was not due holder of the title, and

(2) The selection of the 1st defendant made by ballot was against native law and custom.

But the Court of Appeal allowed the plaintiffs to raise the point and argue that the selection of the 1st defendant (now 1st appellant) as Ramodu was not in compliance with exhibit J, which is the Declaration of the Customary Law Regulating the selection of the Ramodu of Imota. The Declaration was made by virtue of the provisions of Section 4 sub-section (2) of the Chiefs Law, 1957 (Cap.19 of the Laws of Western Region of Nigeria, 1959).

This was not an issue that was before the trial court and is not an issue as fundamental as a constitutional or jurisdictional point so as to justify the Court of Appeal allowing it to be raised and consequently relying on it to set aside the decision of the High Court – See Obikoya v. The Registrar of Companies etc. (1975) 4 S.C. 31 at pp. 32-35 and Oloriode v. Oyebi (1984) 1 S.C.N.L.R. 390 at p.407F; (1984) 5 S.C.1 at pp.32-33. The new point entirely changed the face and character of the action brought by the plaintiffs in the High Court and consequently subverted the successful defence which the defendants relied on in that court against the original cause of action. The indulgence which the majority in the Court of Appeal granted the plaintiffs to raise the new point is clearly erroneous and had, in my opinion, occasioned miscarriage of justice. On this ground alone the appeal must succeed. It is not necessary, therefore, to consider the other grounds argued on behalf of the appellant by Chief Ajayi, learned Senior Advocate.

I am, indeed, in full agreement with the judgment read by my learned brother, Eso, J.S.C., and I too hereby allow the appeal and set aside the decision of the Court of Appeal. In its place I hereby restore the decision of the High Court as set out in the said judgment. I also endorse the order as to costs as stated therein.

KARIBI-WHYTE, J.S.C.: I have the opportunity to read the judgment of my learned brother, Kayode Eso, J.S.C., in this appeal. I agree entirely with his reasoning on the various issues argued and the conclusion that the appeal should be allowed. I too, will allow the appeal for the same reasons. I however, only wish to make some comments of my own in amplification of the reasoning on that aspect of the judgment which dealt with the exercise by the Court of Appeal of jurisdiction to allow appellant to raise and argue grounds of appeal in respect of a matter on which issues were not joined at the trial, and which was not the issue on which the plaintiff had sought for the decision of the court.

The facts have been set out in the lead judgment of my learned brother, Kayode Eso, J.S.C. In the interest of clarity and for the understanding in its true perspective of what I wish to say hereafter. I shall refer to the claim and pleadings and to the evidence by the plaintiffs to accentuate the crux of the issue between the parties which fell for determination before the trial Judge, and against which the plaintiff can validly appeal.

The claim which is in respect of a Chieftaincy matter challenging the appointment of Lawrence Adebola Oredoyin, the 1st defendant in the action as the Ramodu of Imota was framed as follows-

“1. A declaration that the appointment of Lawrence Adebola Oredoyin as the Ramadu of Imota is unlawful and ought to be set aside;

2 An order setting aside the said appointment;

3. An order restraining the 1st defendant from holding himself out as the Ramodu of Imota or performing any of the customary functions of the said Chieftaincy;
4. A declaration that the 3rd defendant is not qualified to hold the office of Olisa of Imota and accordingly his purported appointment to that office is null and void; and
5. An injunction restraining the 3rd defendant from holding himself out as the Olisa of Imota or performing any of the customary functions of the said Chieftaincy.”

The action was brought by the plaintiffs for themselves and as representing all members of the Oshugbo and other cults of Imota, except the 1st-3rd defendants.

In their statement of claim, the plaintiffs relied entirely on the native law and custom of Imota, as the only relevant law to be considered in the appointment of the Ramodu of Imota. There is an averment in paragraph 2 of the statement of claim which states as follows –

“2. The 1st defendant is a person who claims to be the Ramodu of Imota whilst the 2nd defendant is sued as representative of the Government of Lagos State which has granted or purported to grant recognition to the 1st defendant. The 3rd defendant claims to be the Olisa of Imota.”

Relying on the non-observance of native law and custom of Imota in the appointment of the 1st defendant, paras. 14, 15, 16 of the statement of claim averred as follows –

“6. At all material times to this action the office of the Olisa has not been duly filled because the candidate, who is the third defendant is not a member of the Oshugbo cult as required by native law and custom embodied in the registered declaration relating to the appointment of Ramodu of Imota and because, as pleaded hereafter, he is not qualified for the said office.

14. Contrary to the requirements of native law and custom the said 3rd defendant purported to participate in the appointment of a candidate in the person of the 1st defendant to fill the vacant office of Ramodu of Imota.
15. In accordance with native law and custom, the proper person to preside over a meeting of the Kingmakers was the Oluwo.
16. By reason of the irregular participation of the 3rd defendant in the appointment of the 1st defendant to fill the vacancy in the office of Ramodu of Imota, the said appointment was null and void.”

These averments were denied in paragraphs 4, 6, 8 of the statement of defence of the 1st and 3rd defendants. After specifically averring in paragraph 9 that 3rd defendant was duly nominated and appointed by the then prevailing Native Law and Custom of Imota the 1st and 3rd defendants pleaded at paragraphs 17, 18 as follows-

“17. The 1st and 3rd defendant state that in accordance with native law and custom the 3rd defendant as the duly recognised Olisa presided over the meeting of the Kingmakers where, the 1st defendant, having passed through all the preliminary stages, was approved as the next Ramodu of Imota in conformity with the Registered Declaration of the Ramodu Ruling House.

18. The 1st defendant further states that consequent to his approval as the next Ramodu of Imota by the Kingmakers he has received a letter No. IRLG. 197/21 dated 15th January, 1982 which contains the approval and recognition from the Lagos State Government, of his selection as the Ramodu of Imota. The 1st defendant shall rely on this document at the trial.”

It is clear from these averments that plaintiffs were relying entirely on the Native Law and Custom of Imota for the invalidity of the appointment of 1st defendant as the Ramodu of Imota. There was only an oblique reference to the Declaration of Native Law which as will be shown later was not relied upon. In fact in the Reply to the averments in the statement of defence of the 1st and 3rd defendants, the plaintiffs came out more forcefully and unequivocally for their reliance on the unwritten native law and custom of Imota, and the appointment dictated by the Ifa Oracle: to aver in paragraphs 3, 7, 8, 10, 11, 12, 16 as follows-

“3 The plaintiffs plead that at all material times and from time immemorial the Oshugbo cult is the custodian of all native law and custom at Imota and only they alone have the last say after consultation with the Ifa Oracle as to who would be a Ramodu and full regard must be given to the Ita Oracle in respect of the choice of candidate.

7. The plaintiffs further aver that from time immemorial according to native law and custom of Imola no Imora Ramodu has ever been chosen by ballot for all requirements of native law and custom must be strictly adhered to and only person approved by the Ifa Oracle be appointed.
8. The plaintiff aver also that prior to 1956 Chieftaincy declaration names of positive candidate to fill the vacancy of a Ramodu must first he submitted to the Oshugbo and these names must be put before the Ifa Oracle and the If a Oracle has the last say in deciding. Even if only one name is sent the oracle can reject the person and that is final another person must be looked for and further put before the Oracle if not rejected he then becomes the new Ramodu if rejected the exercise goes on until Ifa Oracle is satisfied.
9. The plaintiffs further aver that there are certain rituals to be performed by the Oshugbo cult before and after a Ramodu is appointed and this has not been done for the 1st defendant and therefore he is precluded from calling himself the Ramodu of Imota.
10. The plaintiffs aver further that the purported appointment of the 1st defendant as Ramodu offends against the principles of Natural Justice and also Native Law and Custom as his nomination was tainted with political maneuvering for the Ifa Oracle was consulted and the Ifa Oracle refused his candidature and only the person whose nomination was approved by the If a Oracle could validly become the Ramodu.
11. The plaintiff aver that on selection after due consultation with the Ifa Oracle the Oba elect is then brought into the Oshugbo Iledi where coral beads are thrown on his neck and certain rituals are performed he is then for the first time hailed as the Alaiyeluwa the Ramodu of Imota. After initiation he is then taken to Ipebi where he would reside for sometime and after that the Ramodu then comes out and he would be crowned with pump and pagentry.
12. The plaintiffs aver that at all material times in the history of Imota no Ramodu has ever been appointed by balloting for balloting is contrary to Imota Native law and custom because Ifa Oracle must always be consulted and Ifa Oracle is the last abiter. The Oshugbo are the keeper of the Town’s Erindinlogun and these are the ones to be used after a babalawo is called to interpret.”

This was the State of the pleadings when the matter was set down for trial. It is not in dispute, on the pleadings as settled, that issues were joined on whether the validity of the appointment of the 1st defendant as Ramodu of Imota depended on the observance of the Native Law and Custom of Imota as governed by the Constitution of Ifa Oracle. It was the case of the plaintiffs that the Ifa Oracle governed. The 1st and 3rd defendants pleaded the contrary, and relied on the Ramodu of Imota Chieftaincy Declaration 1957, Exhibit J. At the trial, plaintiffs gave evidence in support of their pleading. For instance, the 4th P.W., Michael Dosunmu in his evidence said, at p.178, lines 18-20-

“If Oba is to be elected in our place, Imota, Ifa is the 1st thing to be consulted. Oshugbo is to consult the Ifa Oracle…”

Again. the 5th P.W. under cross-examination also said.

“Ramodu is never elected in the open place of the palace. It is done in the enclosure where If a Oracle is consulted.” at p.186 more detailed account was given by the 6th P.W. at p.191, when he gave evidence as follows-

“We requested the Senlu Ruling House to present their man to be the Oba. The Senlu Ruling House presented 3 candidates name the 1st defendant Layinka, Adebogun and Oyenuga. We the Oshugbo, The Apena, Olotu Iwarefa and myself consulted Ifa Oracle in accordance with native law and custom, the 1st candidate and Ifa took a stone, the 2nd candidate Ifa look a bone, the 3rd candidate Ifa took Osan and the Babalawo told us that the 3rd candidate would be the best to be elected Oba. We took the information to the Senlu Ruling House. To our surprise we heard the announcement that Governor of Lagos State has appointed the 1st defendant as the Ramodu of IMOTA.”

After considering the pleadings and the evidence, before him and submissions of counsel, the learned Judge considered the provisions of the Chieftaincy Declaration made in 1957 on the method of choosing the Ramodu through the Ifa Oracle. He then held.

“I am of the firm view that by the Chieftaincy Declaration in respect of the Ramodu of Imota under the Declaration made under section 4(2) of the Chiefs Law of 1957 of the customary law regulating the selection to the Ramodu of Imota Chieftanincy 1957, by this the consultation of Ifa Oracle has been definitely eliminated. The overriding provision is what is spelt out in the Declaration of 1957. There is nothing in the Ramodu of Imota Chieftaincy Declaration that Ifa Oracle must be consulted. Therefore the plaintiffs’ must he living in a different world whenever they talk about Ifa Oracle in the selection of Ramodu or they are behind time or they do not move with the lime.”

This is no doubt an unequivocal rejection of the plank on which plaintiffs rested their action. Even a cursory examination of the pleadings and evidence of the plaintiffs reveals that they did not for their case rely on the Ramodu of Imota Chieftaincy Declartation 1957. In fact apart from relying on the Ifa Oracle in compliance with native law and custom there was no alternative pleading challenging compliance with the 1957 Declaration. The argument was centred on the non-compliance with the Ifa Oracle or nothing.

It is interesting to observe that counsel to the plaintiffs in address submitted that the case of the plaintiffs was that Ifa Oracle was the means for selecting the Ramodu of Imota and that the native law and custom relating thereto are not codified.

The learned Judge rejecting the claim of the plaintiffs held that the 1st defendant could not be said not to have been validly appointed when all the provisions relating to the appointment of the Oba and Chiefs Law of Lagos State had been carefully complied with. Thus the contention of the plaintiffs that native law and custom of the Imota people in the selection and appointment of the Ramodu was by Ifa Oracle, was rejected in favour of the native law and custom embodied in the Ramodu of Imota chieftaincy Declararion 1957.

Plaintiffs appealed to the Court of Appeal. The original ground of appeal filed merely challenged the view that the Chieftaincy Declaration ousted the customary law method of appointing a candidate. This clearly suggests the contention by plaintiffs that the selection and appointment of the Ramodu of Imota by the Ifa Oracle could still co-exist pari passu with the Chieftaincy Declaration, Exhibit J. It was however the amendment to the notice and grounds of appeal brought by the appellants before argument that has made all the difference. The amendment which was not opposed by the respondents and was allowed by the Court of Appeal raised the issue whether Kingmakers could deliberate upon one candidate or upon more than one candidate having regard to the Ramodu of Imota Declaration of Chieftaincy, 1957 Exhibit J

The Court of Appeal having allowed the issue to be argued. Proceeded also to found its decision on it. There is no doubt that from what I have already said in this judgment this was not an issue raised in the pleadings or indeed by the plaintiffs in evidence as part of their case. It is conceded that it is the ground on which decision was given against the plaintiff. Thus it is the case of the defendants that they are relying on Exhibit J. The question therefore is whether plaintiffs having contested their claim without reliance on Exhibit J, the Ramodu of Imota Chieftaincy Declaration, 1957 and lost the action on that ground can turn round on appeal to reject their claim at the trial court and to rely on Exhibit J and that 1st defendant was not validly elected because of violation of provisions of Exhibit J

The Court of Appeal seems to have answered the question in the affirmative. The first argument relied upon by the Court of Appeal that the respondents did not raise objection to the application to argue the new ground of appeal ignores the elementary proposition and fundamental rule that parties cannot merely by consent confer jurisdiction on the court where it could exercise none.

The questions for determination in the Court of Appeal were formulated by the appellants thus –

“(1) Whether the Chieftaincy Declaration Exhibit J permitted the Senlu Ruling House to present three candidates to the Kingmakers or it was required to present one.

(2) If the Senlu Ruling House was required to present only one candidate to the Kingmakers, whether the Kingmakers could legitimately make any selection from the three candidates presented

(3) If both the Senlu Ruling House and the Kingmakers or either of them acted contrary to Exhibit J. whether such acts were illegal and vitiated the process”

The Court of Appeal agreed with the learned Judge that Exhibit J, and not the uncodified native law and custom as suggested by the plaintiffs in the court below, contained the customary law regulating the selection of the Ramodu of Imota. In its judgment the Court of Appeal held, (Ademola, Kolawole, JJ.C.A” Uthman Mohammed, J.C.A” dissenting)

“…….the Chieftaincy Declaration Exhibit J did not permit the Senlu Ruling House to present three candidates to the Kingmakers. The customary law which regulates the selection of the Ramodu of Imota Chieftaincy provides for the presentation of one candidate to the Kingmakers. It is therefore contrary to the customary law as enacted will the Registered Chieftaincy Declaration Exhibit J, to deliberate over three candidates presented by the Senlu Ruling House.”

It seems to me from this dictum that the Court of Appeal was not correcting the errors of the trial Judge in his judgment of the claim made by the plaintiffs in the court below. The plaintiffs relied on the Ifa Oracle for the native law and custom in the court of trial. Tile Court of Appeal would seem to be deciding an entirely new case formulated before it arising from the same circumstances as the first case, but not constituted by the same facts.

In his dissenting judgment, Uthman Mohammed, J.C.A.., pointed out, and I agree with him, that the appellants as plaintiffs never pleaded Exhibit J either directly or by implication, As I have already pointed out, he said, the case of the appellants was based on the native law and custom of the Imota people which was based on the requirement of consultation of the Ifa Oracle for the validity of the appointment of the Ramodu of Imota, Uthman Mohammed, J.C.A., then made this most pertinent and valid observation,

“I strongly believe that if the attention of the learned trial Judge had been drawn to the new meaning being given to Exhibit J” either through pleading or oral submission he would have made a finding on the provision of the document. It is therefore fundamental that such a new point of law could only be raised at the court below. For the above reasons I hold a strong view that the point of law being raised now is not within the exception to the rule that points raised for the first time, in an appeal court will not be adduced in respect of this case to explain the purport in Exhibit J; if the issues had been joined by the parties at the lower court. (See p, 438, lines 4-17), I hold that the ground of appeal is not ripe for consideration here.”

Uthman Mohammed, J .C.A., did not agree that Exhibit J, should be restrictively construed to limit the Kingmakers to consideration of only one candidate. In his view, after considering the words used, and the words in sections 4, 17 of the Obas and Chiefs Law of Lagos State, 1981, he declared:-

“The procedure laid down in section 17 (ibid) allows for the nomination and presentation by the Ruling House of one or more candidates to the Kingmakers for selection of one chief. It will be absured and contrary to natural justice, in my view, for in law, even customary. to provide for nomination and presentation of only one candidate among many contestants for the Chieftaincy for the determination of Kingmakers.” – (p.444 lines 22-28).

He then asked “Does it mean that if the Kingmakers reject the only one candidate the Ruling House must meet and send another one and so on and so on It is difficult to believe that that is the intention of those who prepared and registered Exhibit J.” (see p.444 lines 28-32)

This judgment is not concerned with the construction of Exhibit J, which is relevant for consideration only when it is an issue in respect of which the court can properly and validly exercise jurisdiction. That point has been very ably considered in the lead judgment.

The defendants have come before us on appeal against the judgment of the Court of Appeal. Four original grounds of appeal were filed. Before hearing, an additional ground was by leave filed challenging the locus Standi of the plaintiffs on the ground that none of the plaintiffs is any of the defeated candidates at the election. The original grounds raised the issues whether Exhibit J was an existing law, the construction of Exhibit J, and the issue I am here concerned with is that

“the learned Justices of the Court of Appeal erred in law by basing their decision on a NEW point raised by the respondents regarding the legal effect of Exhibit J vis-a-vis the appointment by the Kingmakers of the 1st defendant/appellant as the Ramodu.”

Among the issues for determination in the briefs formulated by counsel are the questions whether-

“the Court of Appeal was right to have allowed the respondents to canvas before it the issue of non-compliance with Exh. J. which was not raised at the High Court having regard to the issues joined on the pleadings

“Whether the appellants were estopped from raising an objection in their briefs, the points taken to determine the appeal which was not pleaded at the High Court and which did not come within those exceptions allowed by this court merely because the motion to argue additional grounds in substitution not opposed.”

Chief G.O.K. Ajayi, S.A.N., submitted that the respondents who relied on the violation of the unwritten customary law of Imota for the invalidity of the appointment of the 1st defendant as the Ramodu of Imota, cannot in the Court of Appeal rely on the customary law of Imota as declared in the Ramodu of Imota Chieftaincy Declaration, Exhibit J. which they considered inapplicable at the court of trial. As counsel pointed out that plaintiffs cannot be allowed to make a complete turn-round from the case on their pleadings.

It was submitted that the case of the parties in the trial court was one of the invalidity of the appointment of the 1st defendant, based on the noncompliance with Ifa Oracle as contended by plaintiffs and the Chieftaincy Declaration Exh. J, as the applicable law as contended by the defendants. It was submitted that the Court of Appear gave judgment to the plaintiffs on the basis of the exact opposite of their case on the pleadings and evidence and upon a point which the defendants never fought or contested.

Mrs. Akinsanya, learned Director of Civil Litigation in the Ministry of Justice, for the Attorney-General of Lagos State argued on the same lines. She submitted that the point taken did not fall within the recognised exceptions in Chinwendu v. Mbamali (1980) 3-4 S.C., Fadiora v. Gbadebo & Anor. (1978) 3 S.C. 219, Ejiofodomi v. Okonkwo (1982) 11 S.C. 74, Ajide v. Kelani (1985) 11 S.C. 124.

In his reply to the submissions, Mr. Sofunde, S.A.N., relied on the doctrine of estoppel, that appellants having not raised objection in the court below when during argument for the application to raise the new point, they were estopped from raising it in this court. He submitted that it is not only issues which were decided that cannot be raised again, but also those which ought properly to have been raised and decided but were not raised due to inadvertence or any other cause. He cited and relied on Aro v. Fabolude (1983) 2 S.C. 75 at 84 to 85, and S.B.N. (Nigeria) Ltd., v. Ikomi (1972) 1 All N.L.R. (Pt.1) 4 at 13 to 14

Mr. Sofunde referred to Kate Enterprises Ltd., v. Daewoo Nigeria Ltd. (1985) 2 N.W.L.R. (Pt.5) relied upon by Uthman Mohammed, J.C.A., in his dissenting judgment in striking out the additional ground of appeal, he argued that in the instant case the Court of Appeal being the proper court to which appeal lay leave to argue the new point of law could be validly granted, since the proper court to grant leave to argue a fresh point is the court to which appeal lies. Hence the grant of leave by the Court of Appeal could not be said to have covered leave to argue the fresh point in Kare Enterprises Ltd. v. Daewoo Nigeria Ltd. (supra). It was submitted Uthman Mohammed, J .C.A., was therefore wrong to have relied on the Kare Enterprises Ltd. case. He relied on Lawal v. Dawodu (1972) 1 All N.L.R. (Pt.2) 270

Finally, Mr. Sofunde submitted that since exhibit J was before the court, and the material facts and evidence were before the court, the Court of Appeal was right in allowing the point to be argued. He relied on Chinwendu v. Mbamali (supra); Peenock Investment Ltd. v. Hotel Presidential Ltd. (1982) 12 S.C. 1 at 55-57; Interland Transport Ltd. v. Adediran (1986) 2 N.W.L.R. (Pt.20) 78 at 87-88; Seismograph Service (Nigeria) Ltd. v. Eyuafe (1976) 1 F.N L.R. 162, 170 & 171; Oloriode & Ors. v. Oyebi & Ors. (1984) 1 S.C.N.L.R. 390 at 401.

The issue of entertaining points on appeal not taken in the court below has been the subject-matter of several decisions in our courts going back to the 1930s. The locus classicus of the principles governing the situation is the case of Fadiora & Anor. v. Gbadebo & Anor. (1978) 3 S.c. 219 at p.247, where Idigbe, J.S.C., stated the principles with his characteristic lucidity as follows:-

“The law is that where a point of law which has not been taken in the court below is put forward by an appellant for the first time in a Court of Appeal that court ought not to decide in his favour unless it is satisfied beyond doubt:-

(a) That it has before it all the facts bearing on the new contention as completely as if it has been raised in the lower court (i.e. court of first instance) and,

(b) That no satisfactory explanation could have been given in the court below if it had been so raised (see Tesmanian (Shipowners) v. Smith etc. City of Corinth (Owners) (1890) 15 App. Cas. 223)”

It could be seen from the above guiding principles that the inference is that the party raising the new point on appeal is relying on the same case as he made in the court below, hence it is always held that the new point will be allowed to be raised if it is founded on the same facts as were relied upon for the case in the court below, and if the point had been raised on those facts no satisfactory explanation could have been given in the court below.

It is necessary to point out that the rationale of the appeal process, the exercise of right of appeal being entirely statutory, is that the appellant court should have the benefit of the views of the trial court from which the appeal emanates. In United Marketing Co. v. Kara (1963) 1 W.L.R. 523, the Judicial Committee of the Privy Council expressed the view that the court will not readily allow a fresh point of law to be argued without the benefit of the judgments of the Judges in the courts below. Again in North Staffordshire Railway Co. v. Edge (1920) A.C. 254 at p.263-264, Lord Birkenhead, L.C.. had elaborated on the rational basis of the attitude when he said,

“The efficiency and authority of a Court of Appeal, and especially a final Court of Appeal, are increased and strengthened by the opinion of learned Judges who have considered the matters below. To acquiesce in such attempt as the appellants have made in this case is in effect to undertake decision which may be of the highest importance without having received any assistance at all from the Judges in the court below. Decisions of this house have laid it down that in every exceptional cases, and in spite of the considerations above referred to, new matters may be considered by your Lordships. See the judgment of Lord Halsbury in Sutherland v. Thompson (1906) A.C. 51 and the judgment of Lord Watson in Connecticut Fire Insurance Co. v. Kavannagh (1892) A.C. 473.”

These cases have been discussed and applied in the recent judgment of this court in A-G, Oyo State v. Fair Lakes Hotel Ltd. (1988) 12 S.C.N.J. 1.; (1988) 5 N.W.L.R. (Pt. 92) 1

In Orku Sawa v. Chief Jim George Amachree (1933) 11 N.L.R. 82 the full court on appeal refused to allow a plea of res judicata to be raised, the pica having not been raised in the court below.

In all the above cases the reasoning was that the Appeal Court is entitled in the ordinary case to the benefit of the opinion of the court from which it receives an appeal since it is the judgment of that court that is under consideration. It is however different where the point raised affects the jurisdiction of the trial Court.

In Ejiofodomi v. Okonkwo (supra), where the parties, as in the instant case fought the case on a totally different question whether the property in dispute was residential premises subject to jurisdiction of the Rent Control Law, 1977 and by S.12 thereof to the exclusive jurisdiction of the Rent Control Tribunal. Plaintiffs’ contention is that it was Business premises within the meaning of the law and came under the jurisdiction of the District Court. This was a specific point within the general issue of jurisdiction. Aniagolu, J.S.C. said:

“…..I cannot see that this court should now allow the appellant to jettison before this court, the issue on which the parties fought their case all the way to the Appeal Court – issue on which she lost all the way. To do so would amount to our allowing her to commence an entirely new case before this court. There must, in the public interest, be an end to litigation (interest rei publicae ut sit finis litium) and it is my view that to allow this new Issue, under section 39 of the Land Use Act, to be raised at this later state, is not to further, but to hinder, that public interest.”

In this category is the case of Abaye v. Ofili (1986) 1 S.C. 231 I shall now apply the principles enunciated above to the facts of this case. The first and fundamental consideration is that the exercise of appellate jurisdiction is entirely statutory – See Ikeakwu v. Nwamkpa (1967) N.M.L.R. 224. The Court of Appeal can only exercise appellate jurisdiction in respect of matters vested in it by statute; and cannot exercise original jurisdiction – see S.220 Constitution, 1979. Thus every matter coming before it must emanate from the High Court or such other courts over which it exercises appellate jurisdiction. Analysis of the facts on which the appellant in the Court of Appeal relied clearly discloses that the question whether the Ramodu of Imota Chieftaincy Declaration 1957 was applicable to the determination of the validity of the appointment of 1st defendant as the Ramodu of Imota was not part of the case of the plaintiff at the court of trial. The parties joined issue on the question whether the validity of the appointment of 1st defendant as Ramodu of Imota was determined by compliance with the Imota unwritten native law and custom i.e. by Ifa Oracle.

The issue now raised calling for the determination of the application of the Ramodu of Imota Chieftaincy Declaration 1957, Exhibit J to the validity of the appointment is an entirely new case made by the plaintiff in respect of which the Court of Appeal requires the benefit of the views of the trial Judge.

The Court of Appeal would have been in a proper position to allow the point to be taken if it was shown that the facts in support of the new contention was part of the case of the appellant in the court of trial, or on the facts the defendants could not have had a defence if the point was on the facts raised in the court of trial. These conditions were not satisfied.

It is trite law that plaintiff can only succeed on the facts in support of his claim. – See Akpapuna v. Obi Nzeka II (1983)7 S.C. 25. A plaintiff must establish on the pleadings and evidence in support of his case, the declaration he is seeking. The action will fail where he is unable to do so. As soon as it was clear in the judgment having considered the pleadings and the evidence that plaintiffs have failed to establish the invalidity of the appointment of 1st defendant by relying on their claim for a declaration that the Ramodu of Imota can only be appointed in accordance with the unwritten native law and custom of Imota, i.e. by Ifa Oracle, quaesito cadit. The question whether the Ramodu of Imota Chieftaincy Declaration 1957 not being part of their case is not open to consideration in their favour. It can only operate against them since they have not relied on it.

There is no doubt that the new case made in the ground of appeal allowed to be raised completely altered the nature of the case between the parties. I think Mrs. Akinsanya was quite right in the contention that the effect of allowing the ground of appeal to be argued will be the introduction of new evidence not already called by the plaintiff in the court of trial. Such are matters more advantageous for the determination of the court of trial.

The practice of the courts as can be adduced from the decided cases is that where there is merely an omission to raise a legal proposition which can be supported by the facts as found by the court of trial without the assistance of additional evidence, the appellate court will, in the exercise of its discretion and in the interest of justice and for the finality of litigation, not ignore the argument to raise the point at that stage. – See Alhaji Adisa & Anor. v. Soleh Boneh (Nigeria) Ltd. (1975) 1 N.M.L.R. 364, Sonekan v. Smith (1964) N.M.L.R. 59. But where the new point raised is such as to consist of a variation in the admitted or proved facts, or any addition to them would affect the argument in support of the new point, then the court will be very reluctant, if ever, it will allow the argument to be put forward.

The Court of Appeal, in this case, ought to have refused the ground of appeal which unarguably was raising a new ground of law in respect of which issue was not joined by the parties in the court of trial. The judgment of Uthman Mohammed, J.C.A., striking out the ground of appeal was right.

The Court of Appeal cannot exercise original jurisdiction to hear the issue of the applicability of the Ramodu of Imota Chieftaincy Declaration 1957 to the appointment of 1st defendant as the Ramodu of Imota. This is in my opinion what the exercise of jurisdiction in this case amounts to. No such right constitutional, statutory or inherent exists.

The additional ground of appeal admitted without jurisdiction is hereby accordingly struck out.

I agree with all the other reasons given in the judgment of my learned brother, Kayode Eso, J.S.C.

The appeal succeeds and it is hereby allowed. The judgment and order of the Court of Appeal are hereby set aside. The order of the High Court is restored.

All the claims against all the defendants are dismissed in their entirety.

The 1st and 2nd appellants are each entitled to costs assessed at N500 in this court, and each to N1,250 as costs in the Court of Appeal.

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SC.68/1988