Mallam Mohammed Shaaba Adeogun & Ors V. Oladosu Ekunrin & Ors (2003)

LawGlobal-Hub Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.C.A.

This is an appeal against the judgment of Hon. Justice M.A. Akoja of the Kwara State High Court of Justice in suit No. KWS/OM/2/98 delivered on 18th day of January, 2002.

By a statement of claim to be found at pages 38 to 40 of the record, the appellants as plaintiffs claimed against the defendants who include the present respondents as follows:

“12. Wherefore the plaintiffs pray for judgment as follows:

(i) a declaration that the 8th defendant is the sole king-maker for Oke-Ode;

(ii) a declaration that the 1st – 6th defendants are not king-makers for the stool/throne of Elesa (Oba) of Oke-Ode;

(iii) a declaration that it is the turn of the plaintiff’s ruling house to produce a new Elesa (Oba) of Oke-Ode; and

(iv) a perpetual injunction prohibiting the 1st – 6th defendants or the 8th defendant from presenting the 7th defendant to the 9th and 10th defendants as the new Elesa (Oba) Oke-Ode and prohibiting the 9th and 10th defendants from acting on such nomination.”

The facts of the case include the following:

Sometime in 1985 the 5th respondent was nominated by his ruling family by name Layoofe ruling family of Oke-Ode being one of the four ruling families in the town to the kingmakers known as Iwerejes for consideration as Elesa (Oba) of Oke-Ode following the demise of Late Oba Bello Owolabi. The other three ruling families for the Elesa stool or throne are Maku, Agbera and Adeogun. The appellants in this appeal are from the Adeogun ruling family.

Following the said nomination a family which styled itself as Ote Olowu ruling house or family put forward one Yusuf Amuda also for consideration by the said kingmakers. It is common ground that the Chieftaincy titles that make up the kingmakers are Esa, Balogun, Bale, Asanlu, Elemosho, Alade and Odofin. In 1985, when the nominations were made only three of the offices of kingmakers had occupants while the other four were vacant. In the course of the consideration by the kingmakers between the 5th respondent and Yusuf Amuda, two of the three surviving kingmakers supported the 5th respondent while one – Elemosho – supported Yusuf Amuda.

Instead of appointing the 5th respondent, the kingmakers rather referred the appointment to the Irepodun/Ifelodun/Ekiti Traditional Council which then appointed the 5th respondent as Elesa of Oke Ode

and recommended him to the Ifelodun Local Government for approval and subsequently to the Governor of Kwara State for installation and presentation of staff of office. Yusuf Amuda being dissatisfied with the said appointment instituted a suit in the High Court of Kwara State claiming inter alia as per paragraph 7 of his amended statement of claim as follows:

“7. Wherefore the plaintiff’s claim against the defendants both jointly and/or severally is for:

(i) a declaration that the plaintiff is the rightly (sic) Oba Elesa of Oke-Ode having been so appointed by the Oke-Ode kingmakers under the native law and custom of Oke-Ode;

(ii) a declaration that the appointment of the 1st defendant by the Military Governor of Kwara State as from 1st May, 1985 as evidenced by letter Ref: No. IFLG/S/89/S.3/79 of 18/5/85 is null and void as it was not made by the Oke-Ode kingmakers and it is contrary to section 3 of the Chiefs (Appointment and Deposition) Law Chapter 20 of the Laws of Northern Nigeria 1963, now applicable in the kwara State of Nigeria; and

(iii) a perpetual injunction prohibiting the 1st defendant from acting, or parading himself as the Elesa of Oke-Ode and the 2nd defendant and other agents and/or servants of the Government of Kwara State from treating the 1st defendant as the Elesa of Oke-Ode”. – see exhibit 1.

The 1st defendant in the above suit is the 5th respondent in the present appeal. Yusuf Amuda lost the case both at the High Court and on appeal to the Court of Appeal. However on a further appeal to the Supreme Court that court affirmed the concurrent findings of the lower courts that Ote Olowu is not a ruling house in Oke-Ode and consequently the candidacy of Yusuf Amuda was incompetent; that Layoofe ruling house to which the 5th respondent belongs is a ruling house in Oke-Ode but reversed the appointment of 5th respondent on the ground that under the native law and custom of Oke-Ode it was the kingmakers that have the power to appoint a candidate into the throne of Elesa of Oke-Ode and not the Traditional Council.

Consequently, the 5th respondent’s appointment was declared null and void and he was restrained from parading himself as Elesa.

Following the judgment of the Supreme Court, the stool of Elesa of Oke-Ode became vacant once again and fresh efforts were made to fill it which resulted in the kingmakers writing to the four ruling houses for nominations – see exhibits 4 to 8. By exhibit 9 the ruling houses nominated the 5th respondent as their common candidate for the Elesa of Oke-Ode stool. After that the appellants’ family resiled from the common decision taken by the four ruling houses and rather claimed that it was their turn to fill the Elesa of Oke-Ode vacancy and instituted the present action the reliefs of which I had earlier reproduced in extenso. While the appellants claim that appointment to the stool is by rotation among the four ruling houses the respondents, particularly the 1st to 5th contend that the stool is not rotational but is always contested for by candidates from all the ruling houses whenever it became vacant.

At the conclusion of trial, the learned trial Judge entered judgment against the appellants. They are not satisfied with that judgment hence the appeal to this court on fifteen (15) grounds of appeal out of which learned counsel for the appellants Prince J.O. Ijaodola has formulated eight (8) issues for determination as contained in the appellants’ brief of argument filed on 6th May, 2002 and which he adopted in argument of this appeal on 15th day of January, 2003. The said issues are as follows:

(i) Whose version was right out of the two versions of the contest – is it the Oba who appoints a Chief or the Chief’s family? (Ground 2).

(ii) Whether or not the judgment was right in the light of the evidence preferred by the two parties? (Grounds 1, 5,6,7,10,12 and 14).

(iii) Whether or not the plaintiffs had any cause of action against the 9th and 10th defendants, who are the 6th and 7th respondents in this appeal? (Grounds 3,4).

(iv) Whether it was right or wrong for the learned trial Judge to hold that the appointment of the 1st – 6th defendants were valid when they did not counter-claim? (Ground 8).

(v) Whether or not the learned trial Judge properly interpreted exhibit? 1 (Ground 9).

(vi) Whether or not the learned trial Judge rightly viewed the case of the 8th defendant? (Ground 11).

(vii) Whether or not it was right to hold that Ramotu Eleran was the head of Adeogun ruling house? (Ground 13) and

(viii) Whether or not the learned trial Judge was right in holding that the appointment of the 7th defendant was valid when none of the defendants had counterclaimed for such a declaration and the letter of appointment was not signed by the 8th defendant? (Ground 15).

On the other hand, learned counsel for the 1st – 5th respondents J.S. Babmigboye, Esq., has submitted four issues for determination also based on the fifteen grounds of appeal in the 1st to 5th respondents’ brief of argument deemed filed by the court on 29/10/02. The issues are as follows:

1. Whether the scope of exhibit 1, the judgment of the Supreme Court of Nigeria prevents the 5th respondent from nomination and appointment as Elesa of Oke-Ode.
2. Whether the appellants proved their case before the trial court as to entitle them to judgment.
3. Whether the trial court awarded the 1st -5th respondents relief(s) not claimed.
4. Whether the trial High Court rightly struck out the 6th and 7th respondents from this suit for lack of cause of action against them.”

The Honourable Attorney-General of Kwara State T.O. Ashaolu, Esq., in his brief of argument filed on behalf of the 6th and 7th respondents also submitted four issues for determination out of the fifteen grounds. The issues are as follows:

Issue 1:

Whether from the totality of evidence adduced before the trial court, the appellants’ claim discloses any cause of action against the 6th and 7th respondents?. (Relates to grounds 3 and 4 of the appellants ground of appeal).

Issue 2:

Whether from the evidence before the trial court the appellants are entitled to any relief. (This relates to grounds 1,5,7,10,23 (sic) and 14).

Issue 3:

Whether on exhibit 1, the 7th defendant is precluded from appointment as the Elesa of Oke-Ode. (This relates to grounds 9, 6).

Issue 4:

Whether from the totality of evidence led by the plaintiffs before the trial court the plaintiffs are entitled to judgment?. (This relates to grounds 2, 8, 11, 13 and 15).”

From the above reproduction of the issues for determination arising from the grounds of appeal, it is obvious that the issues formulated by learned counsel for the 1st to 5th respondents and the Honourable Attorney-General for the 6th and 7th respondents are almost the same. However, when compared with the eight issues formulated by learned counsel for the appellants, I am of the view that the issues formulated by learned counsel for the 1st to 5th respondents be preferred since they are not repetitive and clearly bring out the substance of the complaints of the appellants in the grounds of appeal. I therefore adopt the issues in determining this appeal.

On issue No.1 which is: Whether the scope of exhibit 1, the judgment of the Supreme Court of Nigeria prevents the 5th respondent from nomination and appointment as Elesa of Oke-Ode:

which the appellants’ counsel treated as his issue No.5, learned counsel for the said appellant submitted that the learned trial Judge misconstrued exhibit 1 or chose to distort it. That the trial Judge was under a duty to give every word in exhibit 1 its natural meaning relying on the case of Ibrahim v. Judicial Service Commission (1998) 14 NWLR (Pt. 584) 1, (1998) 12 SCNJ 255; Berliet Nigeria Ltd. v. Kachalla (1995) 9 NWLR (Pt. 420) 478, (1995) 12 SCNJ 147 and Oviawe v. Integrated Rubber Products (Nig.) Ltd. (1997) 3 NWLR (Pt. 492) 126, (1997) 3 SCNJ 29. Learned counsel then urged the court to resolve the issue in favour of the appellants.

In arguing the issue under consideration learned counsel for the 1st – 5th respondents submitted that the claims that led to the judgment in exhibit 1 is what is relevant to the determination of the issue. Counsel then referred to the claim as contained in exhibit 1 (which I had earlier reproduced in this judgment) and submitted that the force of exhibit 1 is to declare null and void the 1985 appointment of the 5th respondent and to prohibit the said 5th respondent from parading himself as Elesa of Oke-Ode because the appointment was not made by Oke-Ode kingmakers. That the Supreme Court did find that Layoofe ruling house from which 5th respondent hails is a legitimate ruling house in Oke-Ode and that the said 5th respondent did not suffer any disability from ascending the stool. That that being the case; learned counsel further submitted, the judgment in exhibit 1 is without prejudice to his recontesting the stool as he did when the kingmakers declared same vacant in line with exhibit 1. That the said exhibit 1 does not also preclude the unanimous nomination of the 5th respondent by all the ruling houses as borne out by exhibit 9 etc. That the said exhibit 1 does not prevent the 5th respondent from recontesting the stool and urged the court to resolve the issue in favour of the 1st – 5th respondents.

On his part, the learned Attorney-General for 6th and 7th respondents treated the issue as No.3 in his brief of argument and submitted that by the express contents of exhibit 1 the 5th respondent is not precluded from appointment as the Elesa of Oke-Ode. That the interpretation sought to be placed on the said exhibit 1 by the appellants is extraneous and that by the operation of section 132(1) of the Evidence Act, the judgment speaks for itself. That exhibit 1 does not operate as a permanent bar on the 5th respondent whose family was found by that judgment to be a ruling house in Oke-Ode.

That the said 5th respondent can still recontest the stool if all customary requirements are met, learned Attorney-General further submitted and urged the court to resolve the issue against the appellants.

I have carefully gone through the record of proceedings including the pleadings and judgment of the lower court in this appeal. In his reply brief filed on 29/10/2002, learned counsel for the appellants submitted that a close study of exhibit 1 leads to only one legitimate conclusion that the 5th respondent is estopped from “acting or parading himself as the Elesa of Oke-Ode and the 2nd defendant from treating him as such.” That by exhibit 1 the 5th respondent is permanently barred from acting or parading himself as the Elesa of Oke-Ode as far as exhibit 1 is concerned. It is clear from the submissions of counsel for the parties on the issue under consideration that it has to do with the proper interpretation of the judgment of the Supreme Court of Nigeria as contained in exhibit 1. Does the said exhibit 1 permanently barred the 5th respondent from contesting the stool of Elesa of Oke-Ode or does the bar relate only to the facts of the case as contained in exhibit 1; that is as long as the facts stated in the said exhibit 1 continue to exist or subsist. I agree with the submission of learned counsel for the 1st to 5th respondents that to resolve the issue it is necessary to look at the claim before the court in exhibit 1. This is because whatever order that was made at the end of the case is usually based on the claim before the court. I am compelled to reproduce hereunder the claim as contained in exhibit 1 even though I had earlier done so in this judgment. This is because it is necessary to keep the claim in focus while resolving the issue. The claims are as follows:

“7. Wherefore the plaintiff’s claim against the defendants both jointly and/or severally is for:

(i) a declaration that the plaintiff is the rightly (sic) Oba Elesa of Oke-Ode having been so appointed by the Oke-Ode kingmakers under the native law and custom of Oke-Ode;

(ii) a declaration that the appointment of the 1st defendant by the Military Governor of Kwara State as from 1st May, 1985 as evidenced by letter Ref: No. IFLG/S/89/S.3/79 of 18/5/85 is null and void as it was not made by the Oke- Ode kingmakers and it is contrary to section 3 of the Chiefs (Appointment and Deposition) Law Chapter 20 of the Laws of Northern Nigeria 1963, now applicable in the kwara State of Nigeria; and

(iii) a perpetual injunction prohibiting the 1st defendant from acting, or parading himself as the Elesa of Oke-Ode and the 2nd defendant and other agents and/or servants of the Government of Kwara State from treating the 1st defendant as the Elesa of Oke-Ode”.

It is very clear that relief No. (iii) is grounded on the grant of relief No. (ii) that is if the court finds that the appointment of the 5th respondent by the Military Governor of Kwara State is null and void because “it was not made by Oke-Ode kingmakers and it is contrary to section 3 of the Chiefs (Appointment and Deposition) Law …”

The question is, what did the Supreme Court decide in exhibit 1 as regards the claims as reproduced above? Hon. Justice Uthman Mohammed, JSC, in his consenting judgment in exhibit 1 stated thus, inter alia:

From the facts, it is clear that the 1st respondent has been appointed as the Elesa of Oke-Ode by the Governor of Kwara State following a recommendation forwarded to him by the Traditional Council. The council has no power under the Local Government Law of Kwara State, 1976, to nominate a candidate and forward his name to the Governor for approval. The power is fully vested in the kingmakers. Since the action in appointing him is void.

On his part, Hon. Justice Y. O. Adio, JSC said, inter alia:

“The powers conferred upon the Traditional Council by the Local Government Law did not include the power to appoint or select a candidate as a Chief. That power was conferred upon the kingmakers. In the circumstance there was no legal basis for the recommendation of the 1st respondent for appointment made by the Traditional Council. In the same way, the Governor could not legally approve the appointment”.

Hon. Justice M. E. Ogundare, JSC, who wrote the lead judgment in exhibit 1, put the matter thus, inter alia:

“It would appear however that the two courts below failed to give proper consideration to claims (ii) and (iii). The evidence showed that the three kingmakers of Oke-Ode who met to consider appointment to the vacancy in the Elesa Chieftaincy voted two to one in favour of the plaintiff”. In effect, the kingmakers did not appoint the 1st defendant. It was the Traditional Council to whom the dispute was referred that finally recommended the 1st defendant to the Governor for the approval of his appointment. I think this is wrong. True enough paragraphs (j) and (k) of subsection (1) of section 78 of the Local Government Law No.8 of 1976 of Kwara State …. empowered the traditional council to determine questions relevant to Chieftaincy matters and control of traditional titles and to determine customary law and practice of all matters governed by customary law.

The Local Government Law did not empower the traditional council to make an appointment; that was and it still the function of the kingmakers … The traditional council having disqualified the plaintiff ought to have remitted the matter to the body of kingmakers, that is, the council of Iwerejes of Oke-Ode to make an appointment. It acted without jurisdiction when it recommended the 1st defendant to the Governor for approval and the Governor’s approval based on that recommendation is consequently void.

With this conclusion, I must hold that the plaintiff appeal succeeds to that extent and the judgment of the court below, as well as that of the trial High Court, in so far as it relates to claims (ii) and (iii), are hereby set aside. I hereby grant plaintiff’s claims (ii) and (iii) and declare:

(a) that the appointment of the 1st defendant by the Military Governor of Kwara State as Elesa of Oke-Ode is null and void; and

(b) I hereby grant an injunction restraining the 1st defendant from acting and parading himself as the Elesa of Oke-Ode and the 2nd defendant and other agents and servants of the Governor of Kwara State from treating the 1st defendant as the Elesa of Oke-Ode.

The question which naturally follows is what did the learned trial Judge inter-prete exhibit 1 to mean? The answer is at pages 177 and 178 of the record where the trial Judge stated. inter alia, as follows:

From the foregoing, it has not been said or held by the Justices that the 1st respondent, now 7th defendant before this court, is not from any of the four ruling families of Oke-Ode; it has also not been held that he was not qualified to have vied for the stool of Elesa because of any other reason or disability.

I am of the view, and as held by the Justices that the only reason for voiding his appointment was because

wrong bodies or authorities did the exercise which ought to have be done by the kingmakers or the Iwerejes of Oke-Ode. I am therefore of the view that the judgment of the Supreme Court has not in anyway precluded the 7th defendant in this case from further contesting or vieing for the stool of Elesa (Oba) of Oke-Ode. I accordingly hold that the 7th defendant is a competent or proper party to contest the stool of Elesa Oke-Ode having come from one of the ruling houses in Oke-Ode…

Finally on this issue, I would want to believe strongly that the perpetual injunction ordered by the Supreme Court only affects the appointment of 1st May, 1985 which was voided on 30th May, 1997. I so hold.

(italics are mine).

Having gone through exhibit 1 and the judgment of the learned trial Judge as well as the briefs of argument of counsel I am of the firm view that the learned trial Judge is very correct in the interpretation of exhibit 1. It is absurd to interprete the order of injunction granted in exhibit 1 as having placed a permanent bar on the 5th respondent from recontesting and being appointed to the stool of Elesa of Oke-Ode as urged by learned counsel for the appellants. It is trite law that relief (iii) (the order of injunction) which is an ancillary claim or relief is based on the main claim in (ii). That being the case it cannot act independently of claim (ii)which is specially directed at the appointment of the 5th respondent made on 1st May, 1985. There is absolutely nothing in exhibit 1 that precludes the 5th respondent from being re-appointed by the appropriate authorities provided the traditional norms and customs of Oke-Ode people and the relevant laws in that regard are complied with. To hold otherwise is to do violence to the spirit and letter of exhibit 1. I therefore hold the view that issue 1 be and is hereby resolved against the appellants.

On issue No.2 which is whether the appellants proved their case before the trial court as to entitle them to judgment; which the learned counsel for the appellants treated as his issue Nos. 1 and 2, learned counsel for the appellants submitted that the correct version of the case between the parties is that it is the Elesa who appoints his sub-chiefs as told by the appellants. That the version of the respondents would lead to chaos because there may be multiplicity of occupants to each chieftaincy title such as Esa, Asanlu, Odofin, Balogun, Alade and Elemosho except that of Bale. That it is a matter of common knowledge that in all Yoruba land it is the Oba who creates and fills all chieftaincy titles. Learned counsel then referred the court to sections 14(1) and 74(1) of the Evidence Act as being applicable to this case.

That the number of witnesses a party calls is irrelevant relying on Abeke Onafowokan v. The State (1987) 3 NWLR (Pt. 61) 538, (1987) 7 SCNJ 238; Adelumola v. The State (1988) 1 NWLR (Pt. 73) 683, (1988) 3 SCNJ 68; Oguonzee v. The State (1998) 5 NWLR (Pt. 551) 521, (1998) 4 SCNJ 226; Musa v. Yerima (1997) 7 NWLR (Pt. 511) 27, (1997) 7 SCNJ 109; Emoga v. The State (1997) 9 NWLR (Pt. 519) 25, (1997) 7 SCNJ 518; Rabin v. Abasi (1996) 7 SCNJ 53; Lipede v. Sonekan (1995) 1 NWLR (Pt. 374) 668, (1995) 1 SCNJ 184; Oladele v. Aromolaran II (1996) 6 NWLR (Pt. 453) 180, (1996) 6 SCNJ 1.

That PW 1 has no vested interest in the outcome of the case and therefore qualifies as an independent witness. That all the witnesses for the defence have interests in the outcome of the case.

That the evidence of PW 1 together with exhibit 1 is sufficient to give probative value to the case of the appellants and thereby earn them success at the trial.

That reliefs being sought are not a matter of evidence since they are prayers which may be stated by a party if he gives evidence.

That it is wrong for the learned trial Judge to hold that it was obligatory for PW1 or any other witness for the plaintiffs to give evidence as per paragraph 12 of the statement of claim. That there is no rule or statute which enjoins a party to give evidence in his case relying on Buraimoh v. Esa (1990) 2 NWLR (Pt. 133) 406, (1990) 4 SCNJ 1.

That the plaintiffs did not claim that the stool or throne of Elesa of Oke-Ode was being rotated. That exhibits 2 to 14 are of no probative value. That exhibit 15 tendered by the 2nd defendant who testified as DW3 supports the case of the appellants because it shows what the appellant’s meant by their claim that it was their ruling house’s turn.

That the case of Oyediran v. Alebiosu II (1992) 6 NWLR (Pt.249) 550, (1992) 7 SCNJ 187 was misconstrued by the learned trial Judge. That the evidence of PW1 on the fact that it was Oba who appoints his sub-chiefs in Oke-Ode did not need any buttressing since the learned trial Judge ought to have taken judicial notice of that fact in view of the authorities cited to the court. Learned counsel then urged the court to resolve the issue in favour of the appellants.

On his part, learned counsel for the 1st – 5th respondents submitted that the issue in contention in the case is the native law and custom of Oke-Ode in the appointments of chiefs particularly as it concerns the seven principal chiefs constituting the body of kingmakers otherwise known as the council of Iwerejes. That the appellants’ assertion in that respect is denied by the respondents thereby bringing to play the decision of the Supreme Court in the case of Oyediran v. Alebiosu II supra in resolving the issue. That the only witness for the appellants on such a fundamental native law and custom on appointment into chieftaincy offices of kingmakers is a youth leader whose credentials are a scout master and president of Student Union. That he admitted he is not a chief in Oke-Ode neither is he a member of any of the ruling houses in Oke-Ode. He is also not a member of Elesa-in-council.

That section 14 of the Evidence Act does not support the case of the appellants and that the judgments tendered by the learned counsel for the appellants at the address stage are not relevant since they are not authorities that it is the Oba who appoints chiefs. That it was not pleaded nor was evidence given that the principal chiefs in Oke-Ode or any chief at all in the community was a creation of the Oba. That the evidence is that they belong to the respective families who also fill them whenever vacant. That an Oba can only appoint chiefs to stools created by the Oba.

That the 1st – 5th respondents on the other hand called three witnesses who testified to the effect that in Oke-Ode chieftaincies belong to the respective families and that it is these families that appoint candidate to the chieftaincies whenever vacancies exist. That such appointees are later presented to the Elesa-in-council to notify them of the appointment.

That the argument of counsel for the appellants that since there are many houses entitled to some of the chieftaincies if they install one of their own there may be chaos is baseless and not supported by the evidence. That the evidence is that all the families entitled to a particular chieftaincy hold a joint meeting at which a candidate is appointed by them. That DW3 testified to the fact that there had never been a dispute on any of the chieftaincies in the history of Oke-Ode. That since the appellants are not contesting the right of the respondents to their respective chieftaincies not being from the families concerned, they cannot challenge the performance of the duties of their respective offices one of which is kingmaking. Learned counsel urged the court to resolve the issue in favour of the respondents.

On his part, learned Attorney-General for 6th and 7th respondents who treated the issue as his issue No.4 submitted that a plaintiff must succeed on the strength of his case and not on the weakness of the defence. That since the issue in contention between the parties is the mode of appointment of Iwerejes in Oke-Ode the mode of appointment asserted to by the appellants and testified to by PW 1 being evidence of traditional history requires corroboration as required by Oyediran v. Alebiosu II supra. That there was no corroboration of the evidence of PW 1 on the matter. He urged the court not to disturb the findings of the lower court on the issue particularly as the appellants failed to prove every material averment in their pleadings relying on Monley Const. (Nig.) Ltd. v. Orede (1978) 1 NCAR 80; Ellas v. Omobare (1982) 5 SC 28 at 46 -47. He finally urged the court to resolve the issue against the appellants.

To begin with learned counsel for the appellants has submitted that reliefs sought in an action are not a matter of evidence but prayers which may be stated by a party if he testifies. That “it is palpably wrong of the learned trial Judge to hold that it was obligatory for PW1 or any other witness for the plaintiff, if any, to give evidence as per paragraph 12 of the statement of claim. There is no provision in any statute or rule of procedure which enjoins a party to give evidence of his/her reliefs …” It is obvious that the above submission is premised on the findings of the learned trial Judge at page 197 of the record where he stated inter alia thus:

“I am satisfied that there was nowhere where the reliefs pleaded in paragraph 12 of the statement of claim were ever proved by evidence. By the authorities earlier cited that paragraph 12 could be said to have been abandoned and it is so held.”

Now I have gone through the grounds of appeal, contained in the notice of appeal including the additional grounds of appeal to be found at pages 199 to 204 of the record which are fifteen (15) grounds in all and it is clear that there is no ground of appeal attacking the above finding by the learned trial Judge. There being no ground of appeal on the said finding it is wrong for learned counsel to attack that finding in his brief of argument and such practice by counsel should not be encouraged.

I am of the firm view that the finding of the learned trial Judge means in law that there is no relief before the court to be considered even if the appellant did prove his case against the respondents. That being the case, it is my view that the effect of that finding has rendered this appeal an exercise in futility. Since there is no appeal against the particular finding by the trial court it means in law that the appellants accept same as being the correct statement of the law by the lower court and the consequence of that is that this court being an appeal court has nothing to do about it.

However, looking at the issue under consideration, it is necessary to look at the pleadings of the parties so as to know the case put forward. The appellants in their statement of claim to be found at pages 38 to 40 of the record pleaded inter alia as follows:

“1. The plaintiffs are head and principal members of Adeogun ruling house of Oke-ode in Ifelodun Local Government Area of Kwara State of Nigeria.

2. Under Oke-Ode native law and custom an Oba (Elesa) of Oke-Ode appoints all Oke-Ode Chiefs while the 7 principal Chiefs (Bale, Esa, Balogun, Asanlu, Elemosho, Alade and Odofin) constitute the body of kingmakers whenever the stool/throne of Oke-Ode is vacant.
3. The aforesaid 7 principal Chiefs constitute the council of Iwereje immediately an Oba (Elesa) passes on.
4. On 30/5/97, the Supreme Court of Nigeria voided the 1985 appointment of the 7th defendant as the successor to Elesa (Oba) Bello Oyinloyo Owolabi and granted a perpetual injunction prohibiting Alhaji Abdulkadir Adelodun from acting or parading himself as the Elesa of Oke-Ode … in Yusuf Amuda v. Abdulkadir Adelodun & Anor. (1997) 5 NWLR (Pt. 506) 480, (1997) 5 SCNJ 266 which the plaintiffs plead and shall found upon under section 74 of the Evidence Act.
5. The 7th defendant appointed the 1st – 6th defendants into their respective family chieftaincy titles during his voided reign.
6. Only the 8th defendant was appointed into his chieftaincy title of Elemosho by the Late Elesa (Oba) Bello Oyinloye Owolabi.
7. The plaintiffs shall contend that the 8th defendant is the only validly appointed kingmaker for Oke-Ode i.e. the sole kingmaker.
8. The plaintiffs shall contend that the appointments of 1st – 6th defendants into their family chieftaincy titles, which would have qualified them as kingmakers, are null and void since their appointer’s (7th defendant’s) appointment had been voided by the Supreme Court on 30/5/97.
9. Wrongly believing that the council of Iwereje was properly constituted the 1st plaintiff on behalf of their family wrote a letter dated 14th July, 1997 prayed for consideration. The plaintiffs plead the said letter of 14/7/97 and notice is given to 1st – 6th and 8th defendants to produce it at the hearing of this suit. Otherwise the plaintiffs shall tender a copy thereof.
10. It is only fair that the plaintiffs ruling house be given another chance to occupy the stool/throne of Elesa (Oba) of Oke-Ode as it is their turn.”

In the joint statement of defence of 1st- 5th and 7th defendants to be found at pages 57 to 63 of the record they pleaded inter alia as follows:

1. The 1st – 5th and 7th defendants deny paragraph 1 of the statement of claim to the extent that Alhaji Ramotu Eleran, the eldest member of Adeogun ruling house has always been representing all members of Adeogun ruling house, inclusive of the plaintiff as the head of the ruling house and all and sundry including Ifelodun Local Government Area have always dealt with her as such. Document in respect of these dealings by Ifelodun Local Government Area are pleaded and will be relied upon at the trial of this suit.
2. Further to paragraph 1 of the statement of claim, the 1st to 5th and 7th defendants aver that the averment in the paragraph is absurd as all the three plaintiffs cannot be head and principal members of the family at the same time.
3. The 1st -5th and 7th defendants deny paragraph 2 of the statement of claim to the extent that the appointment of all traditional chiefs in Oke-Ode are done by the respective families entitled to such traditional chieftaincy titles, and not by the Elesa of Oke-Ode.
4. The 1st – 5th and 7th defendants admit that the chieftaincy titles of Bale, Esa, Balogun, Asanlu, Elemosho, Alade and Odofin collectively call council of Iwerejes constitute the body of kingmakers for the appointment of Elesa of Oke-Ode.
5. The 1st – 5th and 7th defendants aver that being part of the council of Iwerejes or kingmakers for the appointment of an Elesa of Oke-Ode is just one of the functions of the seven traditional titles referred to in paragraph 4 above, and whoever is appointed by the respective families entitled to any of the seven traditional titles cannot be denied of the function of kingmaker.
6. The 1st – 5th and 7th defendants say that paragraph 5 of the statement of claim is mischievous and designed to mislead the court, the clear and unambiguous judgment of the Supreme Court of Nigeria is that the appointment of the 7th defendant as Elesa of Oke-Ode in 1985 was irregular because it was done by the Irepodun/Ifelodun traditional council as against the Oke-Ode kingmakers, but the judgment of the Supreme Court is without prejudice to the Oke-Ode kingmakers regularizing the appointment of the 7th defendants since he was held entitled to the office of Elesa of Oke-Ode as he is from recognized ruling house, unlike Yusuf Amuda who was held not to be from any of the ruling houses in Oke-Ode and can never ascend the stool of Elesa of Oke-Ode.
7. The 1st – 5th and 7th defendants deny the averment in paragraph 6 of the statement of claim as absolute

falsehood to the extent that it aver that the 7th defendant appointed the 1st – 6th defendants into their respective traditional chieftaincy titles.

9. The 1st – 5th and 7th defendants however admit that the traditional chieftaincy titles held by the 1st – 6th defendants belong to their respective families in Oke Ode.
10. The 1st – 5th and 7th defendants deny paragraph 7 of the statement of claim as totally false, indeed the Late Elesa Oba Bello Oyinloye never appointed any traditional title holder in Oke-Ode during his reign as such an action would be against the native law and custom of Oke-Ode which gives unfettered right to the respective families entitled to a chieftaincy title to appoint the holder of the title from amongst themselves…
11. The 1st – 5th and 7th defendants aver that paragraph 8 of the statement of claim is not only false but an affront there can never be a sole kingmaker in Oke-Ode and more particularly since all the other traditional titles constituting the Oke-Ode kingmakers are not vacant.
12. Paragraph 9 of the statement of claim is totally false as the 1st – 6th defendants having been appointed by their respective families who won their respective titles in accordance with native law and custom validly assumed their respective titles and are by virtue of their traditional offices legitimate kingmakers or members of the council of Iwerejes in Oke-Ode.
13. Paragraph 10 of the statement of claim is an after thought and the 1st – 5th and 7th defendants shall contend that the paragraph is unworthy of any credit. The letter of 14/7/97 is adverse to the claim and interest of the plaintiffs and the 1st – 5th and 7th defendants shall contend that it is admission against the plaintiffs’ interest.
14. The 1st – 5th and 7th defendants aver that the stool of Elesa of Oke-Ode has never been (sic) rotational, it is open to every eligible member of the four ruling houses, viz; Layoofe, Maku, Agbera and Adeogun, and it is the height of falsehood for the plaintiffs to claim it is the turn …”

From the above quoted paragraphs of the pleadings, it is obvious that the parties joined issues as to the headship of Adeogun ruling house, the mode of appointment of the traditional chiefs who also constitute the kingmakers for the Elesa stool, the purport of the judgment of the Supreme Court on the competence of the 7th defendant to the stool of Elesa, the sole kingmakership of the 8th defendant etc. It is very important to note that both parties relied on the native law and customs of Oke-Ode in putting forward their respective positions as to who appoints the traditional chiefs who also act as kingmakers when the stool of Elesa becomes vacant while the appellants said it is the Elesa acting upon the recommendation of the families that own the chieftaincies, the respondents maintain that it is the families that appoint and only informs the Elesa-in-council.

No where has the general custom of the Yoruba as regards the appointment of chiefs been pleaded by the appellants nor issue joined thereon unless the appellants are saying that the version pleaded by them is also the general Yoruba custom. If so they did not plead it that way. That being the case, it is my view that the relevant point to be considered is whether by the customs of Oke-Ode it is the Elesa that appoints or the families. This point is supported by the holding of the learned trial Judge at page 182 of the record when he said:

“I entirely agree with both learned counsel that this issue essentially requires evidence to establish the native Jaw and custom as it relates to appointment of chiefs in Oke-Ode community.”

What then are the findings of the learned trial Judge on the matter? At page 183 the learned trial Judge continued thus:

“The onus, is on the plaintiff who asserted to prove their case that it is the Elesa who appoints all chiefs in Oke-Ode.

This is because customary law in the present context of our legal system is a matter of fact and must be proved by cogent evidence. In Giwa v. Erimilokun (1961) 1 SCNLR 377, (1961) All NLR 294 at 296 the Supreme Court of Nigeria laid down the law on this point as follows:

“It is well established principle of law that native law and custom is a matter of evidence to be decided on the facts presented before the court in each particular case, unless it is of such notoriety and has been so frequently followed by the courts that judicial notice would be taken of it without evidence required in proof.”

It is however to be noted that in a fairly recent decision of the case of Oba R. A. A. Oyediran of Igbonla v. H. H. Oba Alebiosu II & Ors. (supra), courts are warned that it will be unsafe to accept the statement of the only person asserting the existence of a custom as conclusive.

This court is bound by this decision of the apex court of the land.”

I agree with the learned trial Judge’s restatement of the law as laid down by the apex court.

In view of the state of the pleadings the burden of proof is squarely on the appellants to prove their version of the mode of appointment. The question is whether they did discharge that burden?

To answer that question, the trial court found as a fact that the decided cases that were cited by learned counsel for the appellants as regards appointment of chiefs by the Oba did not help his case.

After reviewing the cases he came to the following conclusion at page 185 of the record:

In all therefore, it could be seen that none of the authorities cited by the plaintiffs’ counsel support their

case.”

The learned trial Judge then concluded the consideration of the case of the parties thus at pages 185 and 186 of the record:

“Having weighed the evidence given by the three defence witnesses against the sole evidence of the plaintiff witness I am inclined to prefer that of the defence since the evidence of the sole witness remained

unsubstantiated and uncorroborated.

In the circumstance therefore, I hold that under Oke-Ode native law and custom, the Elesa has nothing to do with the appointment of any traditional chief including the 1st – 6th and 8th defendants in this case.

I also hold that the Elesa in council cannot appoint any traditional chief for any affected family … I finally

hold that it is the respective families that have powers to appoint their respective chiefs as and when necessary”.

Having gone through the pleadings and evidence before the lower court I confirmed that the learned trial Judge is very correct in holding as above. The findings are supported by evidence on record.

The only witness called by the appellants is a 40 year old youth leader who later admitted that he was 36 years old under cross examination who does not belong to any of the four ruling houses nor does he belong to any of the families that produce the kingmakers whose mode of appointment is in issue. He equally does not belong to the Elesa-in-council. That apart the appellants did not call any evidence to support his assertion as to the mode of appointment of the chiefs in Oke-Ode.

On the other hand, the defence proved their version of the appointment of the chiefs as pleaded by calling DW1, DW2 and DW3. I know it is trite law that the success of the plaintiff does not depend on the number of witnesses he calls but that general rule admits of an exception. That exception is as stated by the Supreme Court per Kutigi, JSC, in the case of Oyediran v. Alebiosu II supra at pages 193 to 194 of the report thus:

“In areas of customary law and traditional evidence it is good law that it is desirable that a person other than the person asserting it should also testify in support thereof. This is only common sense because native law and custom must be strictly proved.”

It will therefore be unsafe to accept the statement of the only person asserting the existence of a custom as conclusive.”

It is unfortunate that learned counsel for the appellants did not consider it necessary even to call any of the appellants to testify in support of their case. Even the 8th defendant who is alleged to be the sole kingmaker and who did not file a defence did not testify at the trial in prove of his mode of appointment as pleaded by the appellants.

Turning now to the sub-issue of rotation learned counsel for the appellants has said that by his use of the turn in the pleadings and the evidence to that effect he did not mean rotation as understood by the respondents and the court. In other words, he agrees that the principle of rotation of chieftaincy as we know it does not apply to this case. If that be the case it follows that the stool of Elesa is contested for by all the four ruling houses whenever vacant as pleaded and testified to by the respondents and found by the learned trial Judge in his judgment. This is because it is my view that you cannot talk of your turn to do something or occupy a stool which belongs to four people when there is no rotation amongst those four who are so entitled to the stool. To that extent I agree with the conclusion of the learned trial Judge at page 188 of the record to the effect that:

“In the circumstance and with the reasons asserted before me by the defendants, I hold that the stool of Elesa of Oke-Ode is not rotated between the four ruling families but is being vied for whenever the stool becomes vacant”.

It should be remembered that while considering issue No.1 supra, it was found that the learned trial Judge is right in holding that exhibit 1 does not admit of the interpretation placed on it by the appellants which is part of the case put forward by the said appellants.

So considering the totality of the evidence before the lower court it is my considered view that issue No.2 be and is hereby resolved against the appellants.

On issue No.3 which is whether the trial court awarded the 1st – 5th respondents reliefs not claimed since there was no counterclaim before the court, which learned counsel for the appellants treated as his issue Nos. 4 and 8, learned counsel for the appellants submitted that the learned trial Judge was in error in so holding since the defendants did not counter-claim for such a relief relying on Okobia v. Ajanya (1998) 6 NWLR (Pt. 554) 348, (1998) 5 SCNJ 95; Owena Bank (Nig.) Plc. v. Nigerian Stock Exchange Ltd. (1997) 8 NWLR (Pt. 515) 1, (1997) 7 SCNJ 160.

That it was wrong for the lower court to also declare the appointment of the 7th defendant by the 1st – 6th defendants as valid when the defendants did not counter-claim and the 8th defendant did not sign the appointment letter. That a party can only be awarded what he asked for relying on Order 25 rule 12 of the High Court (Civil Procedure) Rules, 1989; Union Beverages Ltd. v. Owolabi (1988) 1 NWLR (Pt. 68) 128, (1988) 1 SCNJ 122. That the non signing of the letter of appointment of the 7th defendant was fatal to that appointment and that exhibit 1 dealt a fatal blow on the appointment of 1st – 6th defendants who in turn appointed the 7th defendant, learned counsel further submitted. He then urged the court to resolve the issue in favour of the appellants.

Reacting to issue No.3 learned counsel for the 1st – 5th respondents submitted that cases before the trial court are tried on the issues that arise from the pleadings relying on Obodo v. Ogba (1987) 2 NWLR (Pt. 54) 1 SC, (1987) 3 SCNJ 87 at 83. That from the pleadings the issue is whether the kingmakers were appointed into their respective chieftaincy offices by the 5th respondent as Elesa of Oke-Ode or by their respective families, and whether their appointment of the 5th respondent as Elesa in their capacity as kingmakers of Oke-Ode is proper.

That the trial court is duty bound to make findings on these issues so as to decide the dispute between the parties. Learned counsel urged the court to resolve the issue against the appellants.

The learned Attorney-General for the 6th and 7th respondents did not deal with this issue in this brief of argument.

It is trite law that one of the functions of pleadings is to enable the parties join issues on matters in controversy between them. I had earlier in this judgment reproduced some relevant paragraphs of the pleadings of the appellants and 1st – 5th respondents. From those paragraphs, it is very clear and I hereby hold that the issues in controversy as thereby joined include whether the kingmakers were appointed by the Elesa (Oba) who was said to be 5th respondent or by their respective families and also whether the appointment of the 5th respondent as Elesa of Oke-Ode by the said kingmakers is proper.

There is also the issue as to whether the 8th defendant is the sole kingmaker which the learned trial Judge resolved by answering in the negative.

It is my considered view that it is the duty of the learned trial Judge to resolve these issues having regards to the evidence before him and thereby decide on the dispute between the parties. In resolving the issues the trial court must of necessity make findings of fact based on the evidence before it, that is the only way known to law by which it is done. In the present case on appeal the learned trial Judge in discharging his constitutional duties of resolving the issues in contention between the parties made specific findings of fact based on the issues before him. He found that the appointment of 1st – 6th defendants were valid having been made by their respective families which, in accordance with the native law and custom of Oke-Ode have the responsibility to so appoint them as against the assertion of the appellants to the contrary. By the same token the learned trial Judge found as a fact that the appointment of the 5th respondent by the kingmakers of Oke-Ode is proper. It is my considered view that without these findings of fact it is impossible to resolve these issues in controversy between the parties and that the findings so made by the lower court cannot reasonably be construed in law to mean making an award to a party who has not counter-claimed as contended by learned counsel for the appellants.

It does not matter that the 8th defendant never signed the letter of appointment of the 5th respondent as Elesa since the other kingmakers did sign and there is evidence which the trial Judge accepted that the appointment of the 5th respondent by the kingmakers was unanimous. I therefore resolve issue No.3 against the appellants.

On the final issue which is whether the trial court rightly struck out the 6th and 7th respondents from this suit for lack of cause of action learned counsel for the appellants submitted that the learned trial Judge erred in so holding. That in view of exhibit 1 the 6th and 7th respondents are necessary parties to the suit within Order 11 rules 3 and 5 of the Kwara State High Court (Civil Procedure) Rules.

1989. That a reasonable person will not wait for a damage to occur before he takes a proceeding to prevent havoc. Counsel then referred to section 3(1) of the Chiefs (Appointment and Deposition) Law and urged the court to resolve the issue in favour of the appellants.

On his part, learned counsel for the 1st – 5th respondents submitted that there is nothing in the pleadings and evidence disclosing a cause of action against the 6th and 7th respondents. That the action of the appellants against the 6th and 7th respondents is speculative since the Governor never exercised any power under the law. He urged the court to resolve the issue against the appellants.

On his part, the learned Attorney-General for the 6th and 7th respondents submitted that the appellants claim discloses no cause of action against the 6th and 7th respondents. That cause of action is the sum bundle of aggregate facts which the law will recognize as giving the plaintiff a substantive right to make the claim in respect of the relief or remedy being sought, relying on Ogbimi v. Ololo (1993) 7 NWLR (Pt. 304) 128, (1993) 7 SCNJ 447 at 454; Adekoya v. F.H.A. (2000) 4 NWLR (Pt. 652) 215 at 221. That looking at the pleadings of the appellants and the evidence before the court no cause of action has been disclosed against the 6th and 7th respondents. That the role of the 6th and 7th respondents can only be actionable when the 7th respondent exercises the executive powers conferred on him by section 3(1) of the Chiefs (Appointment and Deposition) Law relying on the case of Okafor v. Attorney-General of Anambra State No.2 of (1992) 2 NWLR (Pt. 224) 396, (1992) 2 SCNJ 219 at 233 and 234. Learned Attorney-General then urged the court to resolve the issue against the appellants.

Learned counsel for the appellants has submitted that the action against the 6th and 7th respondents is pre-emptive. By section 6(6)(b) of the Constitution of the Federal Republic of Nigeria, 1999, (hereinafter referred to as the 1999 Constitution) the courts of record in Nigeria are vested with judicial powers to determine any question as to the civil rights and obligations of any person. It follows that for a person to invoke the provisions above referred to by instituting an action in the courts, he must have a cause of action against the party to be sued. The term cause of action has been variously defined by the courts but simply put it is the fact or facts which gives a person a right to judicial relief. In other words, the entire set of circumstances giving rise to an enforceable claim – see Oduntan v. Akibu (2000) 13 NWLR (Pt. 685) 446, (2000) 7 SC (Pt. 11) 106.

I have gone through the statement of claim of the appellants which constitutes the foundation of their case against the respondents and I have not seen where the 6th and 7th respondents are alleged to have done anything wrong against the appellants or their interest.

In fact, the statement of claim does not even describe the 6th and 7th respondents so as to enable one to know their relevance in the action.

However in paragraph 12(iv) of the statement of claim the appellants pleaded as follows:

“12. Wherefore the plaintiffs pray for judgment as follows:

(iv) a perpetual injunction prohibiting the 1st – 6th defendants or the 8th defendant from presenting the 7th defendant to the 9th and 10th defendants as the new Elesa (Oba) Oke-Ode and prohibiting the 9th and 10th defendants from acting on such nomination”.

It must be noted that relief 12(iv) is an ancillary relief and it does not contain any averment that the 6th and 7th respondents are under any legal obligation to act in any way under any law so as to call in aid the injunctive relief. I agree with the findings of the learned trial Judge at page 170 of the record to wit:

“From the plaintiff’s pleadings there was nowhere anything relating to the powers of any of the two defendants was pleaded except at the relief paragraph.

It is my view that the powers of the 9th and 10th defendants which entitled the plaintiffs to the relief(s) being sought against them, ought to have been specifically pleaded at least in one of the paragraphs of the two statement of claim to constitute a cause of action against them”.

Apart from the pleadings, there is no evidence at all on record touching and concerning the 6th and 7th respondents. It must also be remembered that I have earlier found that there is no appeal against the finding by the lower court that the failure of PW 1, the only witness who testified on behalf of the appellants to give evidence as to the reliefs claimed is fatal to the case of the appellants. That being the case it means paragraph 12(iv) of the statement of claim remains at the realms of pleadings which in law is no evidence. Therefore, there being no evidence to support the averments in the said subparagraph (iv) of paragraph 12, it is deemed abandoned and therefore grounds to no issue.

So in whatever way one looks at it, it is very clear that the appellants have not disclosed any cause of action against the 6th and 7th respondents and it is my view that the learned trial Judge is right in striking out the names of the 6th and 7th respondents from this suit. The issue is therefore resolved against the appellants.

In conclusion I find no merit in this appeal which is accordingly dismissed. The judgment of Hon. Justice M. A. Akoja in suit No. KWS/OM/2/98 delivered on 18th day of January, 2002 is hereby affirmed. I award the sum of N5,000.00 cost against the appellants in favour of the 1st – 5th respondents.

Appeal dismissed.

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Other Citations: (2003)LCN/1359(CA)