Nathaniel Olaoye Oyediran & Ors V. Jimoh Oyeyemi Olayede & Ors (2007)
LawGlobal-Hub Lead Judgment Report
ALFRED P.E. AWALA, J.C.A.
This is a Chieftaincy Appeal matter from the High Court of Justice of Oyo State of Nigeria holden at Ogbomoso presided over by Abimbola J in Suit No. HOE/56/96 whereat the Plaintiffs/Appellants sued the Defendants/Respondents claiming the following reliefs:
“(a) A Declaration that the kingmakers or Aresa of Iresa-Adu Chieftaincy having not met to consider, screen and select one of the nine (9) candidates sent to the 2nd Defendant, the 1st Defendant, has not been validly or lawfully selected or nominated by the kingmakers to fill the vacant Chieftaincy of Aresa of Iresa-Adu,
(b) An injunction restraining the 2nd and 3rd Defendants from presenting the name of the 1st Defendant to the Soun of Ogbomoso Land and/or the Military Administrator of Oyo State as consenting authority as the person validly or lawfully -nominated-or selected by the kingmakers of the Aresa of Iresa-Adu Chieftaincy to fill the vacant stool of Aresa of Iresa-Adu.
For an apt understanding of this appeal it is pertinent to tell the background story as can be gleaned from the transcript record. It is as follows:-
The Aresa-adu of Iresa-Adu Chieftaincy has two Ruling Houses namely (1) Emiolu Ruling House and (2) Oshunbiyi Ruling House. Oba Jacob Oladepo Emiolu having joined his Ancestors from the former Ruling House; it was the turn of Oshunbiyi ruling House to present a candidate to fill the vacant stool of Aresa of Iresa-Adu, in Surulere Local Government of Oyo State.
Pursuant to the provision of section 15 of the Chiefs Law of Oyo State, 1978, Vol.1 Cap 21, the Secretary of Surulere Local Government, of Oyo State, the 2nd Defendant, wrote a letter to the Head (Mogaji) of Oshunbiyi Ruling House to present a candidate or candidates to fill the vacant stool of Aresaadu of Iresa-Adu. The said Mogaji in consequence called a family meeting to nominate a candidate to fill the vacant stool. At the meeting nine (9) members (Princes) of the family indicated their interests in the vacant stool. The meeting instead of nominating one, recommended all nine names to the family head/Mogaji, who in turn sent the nine names to the kingmakers for the Aresaadu Chieftaincy stool to select one. The 1st Defendant as their choice name was sent to the said 2nd Defendant for necessary action in line with the said law section 15 Cap 21, Vol. 1 laws of Oyo State, 1978.
The other eight candidates cried fowl. They sued the chosen candidate Prince Jimoh Olayede, as first defendant, the Secretary of the council, as 2nd defendant and the council itself – Surulere Local government, as the 3rd Defendant. Parties filed and exchanged pleadings. Between 16/12/1999 and 3/3/2000 the case was heard and counsel for the parties addressed court the same day that is to say 3/3/2000. On 14/4/2000 judgment was delivered and it was in favour of the defendants.
Aggrieved, the Plaintiffs appeal to this court by a Notice of Appeal dated 28/4/2000. The Notice of Appeal was amended, approved by this court on 15/3/ 02 therein the Appellants formulated ten Grounds of Appeal. As per the Rules of this court parties Learned Counsel files and exchanged their respective Briefs of Arguments namely Appellants’, 1st Respondents and 2nd & 3rd Respondents’ Briefs of Arguments. No Reply Brief was filed by the Appellants.
The appellants distilled five issues for the determination out of the ten Grounds. The 1st Respondent’s counsel adopts the five issues as could by the appellants while the 2nd and 3rd Respondent raised two issues.
Before I proceed to reproduce the five issues couched by the Appellants and adopted by the 1st Respondent’s counsel together with the two issues formulated by the 2nd and 3rd Respondents, I shall dispose of 1st respondent preliminary objection he raised in his Brief of Argument at page (1) one thereof it reads:
“Preliminary Objection:- At the hearing of this appeal, the Appellants (sic) the 1st respondent shall object to.
(a) The filing of Grounds of Appeal without stating the Particulars of the grounds.
(b) The jumbling up of issues for determination by the Appellants.
As noted above, no Reply Brief was filed by the Appellants. It is now trite where an Appellant fails to file a Reply Brief where it is necessary to do so, as it is my view it is necessary to do so here especially as the 1st Respondent I had raised a Preliminary objection, the Appellants should have replied to it. It is now well established they are deemed to have conceded to the Issues raised In the preliminary objection. See Okoye v. Nigerian Construction & Furniture Co. Ltd. (1991) 6 NWLR (pt 199) 501. Orah v. Nyam (1992) 1 NWLR (pt 217)271. Popoola v. Adeyemo (1992) 8 NWLR (pt 275).
The objection is therefore upheld. What is the effect of this upholding? In my view it adds nothing to the 1st Respondent’s defence because as I stated earlier in this judgment he (the 1st Respondent adopted) “the jumbled” five issues couched by the Appellants from their Amended Notice of Appeal dated 15/3/02 wherein as I can see that it is only Grounds 1 and 3 out often that had no particulars.
Having disposed of the 1st Respondent’s preliminary objection, I will now reproduce the Appellants’ five issues and the 2nd and 3rd Respondents’ two as follows:-
Appellants’ five Issues:-
(1) Whether the non-joinder of the kingmakers parse vitiated the proceeding in the trial court and what is the consequence of determining such a serious dispute without the inclusion of the proper and necessary parties? (This issue is derived from Ground 2)
(2) Whether the trial judge acted firmly impartially and in observance of the judges duty to protect the Plaintiffs/Appellants’ constitutional right to fair hearing when he made use of the Aresa-Adu Chieftaincy Declaration without affording the Appellants the opportunity of reacting to the issue that was clearly unfavourable to them. (This is covered by Ground 9)
(3) Whether the learned trial judge properly evaluated the evidence adduced by both sides and rightly held that the 1st Respondent had been duly appointed as Aresa of Iresa-Adu in accordance with the Customary Law relating to the Chieftaincy. (This covered by Grounds 6&7).
(4) Whether in utilizing Exhibits A and D in reaching his decision to discuss the Plaintiffs’ case, the learned trial judge was not wrong and if it did not occasion a miscarriage of Justice (This is covered by Ground 4).
(5) Whether the learned trial judge properly evaluated the evidence adduced by both sides and rightly held that the 1st defendant/Respondent had been duly appointed as Aresa of Iresa-Adu in accordance with the Customary Law relating to the chieftaincy (this issue relates to Ground 7)
The Two Issues Raised By The 2nd & 3rd Respondents.
(1) Whether the Plaintiffs/Appellants by their claims, pleadings, and their evidence, they have discharged the onus of proof imposed on them by sections 135, 136 and 137 (1) of the Evidence Act 1990 tow arrant the learned trial judge’s finding for them in his well considered judgment and conclusion.
(2) Whether there is anything in the case to vitiate the Nomination, Selection, Approval and Installation of the 1st Defendant/Respondent as the Oba Aresa-adu of Iresa-Adu, Surulere Local Government of Oyo State.
I prefer the 2nd and 3rd Respondents’ counsel’s two issues distilled from the ten grounds. They are apt and germane for the just resolution of this appeal having regard to the two claims earlier produced above.
Issue One-
On Issue one, the Appellants’ counsel asked a question, what are the claims, the pleadings and the evidence of his clients (the Plaintiffs/Appellants) which by the provisions of the Evidence Act (supra) places the burden of proof on them to prove their case on a preponderance of evidence’?
The claims are as reproduced above. They need no repetition. As for the pleadings, I reproduce paragraphs 13,15 to 20 which in my view are pertinent for the just determination of this appeal; thus:-
“13 the 11th day of October 1996 the 2nd and 3rd Defendants requested the Head of Oshunbiyi Ruling House to present the name(s) of candidate(s) to fill the chieftaincy to the committee of Kingmakers.
15 The Kingmakers have not met for deliberation, screening and consideration of any of the candidates listed at paragraph 14 (9 candidates).
16 The Plaintiffs aver that it is paramount and fundamental that the committee of Kingmakers must conduct an oral interview of each of the candidates before deciding to pick anyone of them.
17 The maiden meeting of the council of Kingmakers was fixed for the 20th day of December 1996.
18 Before the date fixed for the maiden meeting however, that is on the 13th day of December 1996, a letter was purportedly written by the kingmakers giving the name of the 1st Defendant as the candidate selected by the kingmakers.
19 Upon investigation conducted by the Plaintiffs, it was discovered that the purported letter was not and/or signed by the kingmakers out of their free volition but due to undue influence, intimidation, threat and/or duress.
20 Upon the receipt of the letter referred to at the paragraphs 18 and 19 above, the 2nd Defendant wrote a letter with reference No. SLE/161/150 dated the 17th day of December 1997 to the Soun of Ogbomoso land seeking his consent to forward the name of the 1st Defendant to the Military Administrator for further necessary action.
What was the evidence in support of the above pleadings? The Plaintiffs called 4 witnesses.
PW1, Chief Sunmonu Aremu, a kingmaker. He testified they were seven kingmakers two died, five living.
That on 20/12/96 they were to meet to select a candidate as mandated. Five days before that date at 12 midnight somebody he does not know brought a letter to his house to sign which I signed on duress and on the advice of his mother. He was cross-examined.
PW2, Prince Nathaniel Oyediran a member of Oshunbiyi Ruling House. He testified 9 candidates were nominated including the 1st Defendant and their names sent to the kingmakers. He was cross-examined.
PW3, Chief Michael Adedigba, a kingmaker that he signed a minutes of an alleged meeting of the kingmakers on threat by the 2nd Defendant that he would be removed from the committee of kingmakers if fails to sign. He was cross-examined.
PW4, Mr Adedigba Aderogba, the Director of Personnel Management of the council on subpoena to tender two documents, a letter from Soun of Ogbomoso land addressed to the 2nd Defendant, Exhibit ‘C’ conveying the name of the 1st Defendant as duly selected for approval: minutes of the kingmakers meeting of appointment is Exhibit’ A’.
In Defence, the 1st Defendant, testified as DW1, and called 4 other witnesses including Salami Bara Amoo a kingmaker who testified that his house was where the 1st Defendant was chosen and then all thumbprint Exhibit ‘A’ the letter of appointment of 1st Defendant sent by the 2nd Defendant.
The learned trial judge at page 128 of the record held:
“I shall rely heavily on exhibit ‘A’ letter of appointment to hold that there were three meetings and that the 1st Defendant was appointed”
Appellants’ counsel arguing Issue one following the above position taken by the learned trial judge submits that is not mindful of the fact that issue had been joined as to whether or not meetings were held at which the 1st Defendant was appointed. He cites Ugo Chukwu v Cooperative Bank Ltd (1996) 7 SCNJ 22. Guiness Nig. Ltd v. Aguna (1992) 7 NWLR (pt.257) Another complaint counsel had with another part of the judgment is at page 126 of the record wherein the trial judge held:-
“By whatever means the kingmakers come up with the appointment they have done their duties as per the Declaration”.
Counsel submits that that holding is Contrary to the decision of the Supreme Court ill Lipede v. Sonekan (1995) 1 SCNJ 184 and submits that the use of the Declaration (registered) ‘fished out’ by the trial judge gave the Defendants massive advantage to the detriment of the plaintiffs, that that makes the trial unfair. He cites Kenon v Tecam (2001) 11 SCM 138.
Yet another quarrel with Exhibit ‘A’ and ‘D’ is that Exhibit ‘A’ (the letter appointing 1st Defendant by the kingmakers) are in Yoruba language, not translated into English the language of the court. Moreover, the kingmakers are all illiterates and there are no illiterate jurats on both documents, which tilted the scale in favour of the 1st Defendant.
Contending further Appellants counsel submits that both documents being inadmissible evidence in law and relied on by the lower court in arriving at its decision results in miscarriage of justice and this court being a Court of Appeal should interfere.
He cites (I) Sanusi v. Amoyegun (1992) 4 NWLR (pt 237) 1.
(2) Comptoir Commercial Industrial SPR Ltd v. Ogun State Water Corporation (2002) 7 SCM 35.
Yet another complaint the Appellants’ counsel had against the Judgment appealed against is the non-joinder of the kingmakers as necessary parties to the case by the trial judge suo moto. He referred to Order 11 Rule 5 (1) of the High Court (Civil Procedure) Rule of Oyo State 1988 which provide thus:
“If it shall appear to the court, at or before the hearing of the suit, that all the persons who may be entitled to or who claim some share or interest in the subject matter of the suit, or who may be likely to be affected by the result, have not been made parties, the court may adjourn the hearing of the suit to a future day, to be fixed by the court that such person may be made either plaintiff or Defendant in the suit, as the case may be. (emphasis by counsel)
The Appellants counsel then argued that it was the learned trial judge that ought to have joined the kingmakers suo moto so as not to rob the court of jurisdiction to entertain the action. He cites Green v. Green (1987) 3 NWLR (Pt.61) 480, Oloriode v. Oyebi (1984) 1 SCNLR 220, Ekpere v. Aforivje (1972) 1 All NLR 220 and Oyeyemi v. Okurubi (1996) NMLR 50.
Appellants’ counsel therefore urges it onus to resolve issue one in favour of the Appellants and against the Respondents.
In reply the 1st counsel submits as follows:
(1) That the Appellants complaints are mere peripherals. They had nothing to do with the trial court dismissing the Appellants main claim in its entirety. That the trial court did not “fish out” the law he is the repository of the law whether pleaded or not. The reason why the Appellants said main claim failed is because the plank upon which it stood fell; that is to say, the oral evidence on custom was unsubstantiated. The learned trial judge held in this regard at page 123 of the record as follows:
“If a Declaration exists and it is registered pursuant to section 8 (1) and (2) of the chief law, then it is deemed a customary law”
He added at page 124 of the record thus:
“I therefore hold that the provision of the customary declaration is the customary law to the exclusion of any other usage or custom in relation to appointment or filling the vacant stool of the Aresaadu of Iresa-adu.”
At page 132 the learned trial judge concluded “The totality of my reasoning is that I hold that the issue formulated above would be answered in the positive, that is to say, that the 1st Defendant having been validly and lawfully selected or nominated by the Oshunbiyi Ruling House and the kingmakers having appointed him in compliance with the Registered Declaration of the Aresaadu Chieftaincy he has been validly appointed and the Declaration sought in relief one is hereby refused” [emphasis by counsel]
1st Respondents’ counsel then submits that the above underlines are the main reasons why the claim was refused, What are the submissions of the 2nd and 3rd Respondent in Reply?
They are as follows:-
(1) That the onus of proving their main claim, a declaratory relief is on the Appellants as Plaintiffs to prove on a preponderance of evidence their main claim (see sections 135, 136 and 137 of the Evidence Act 1990)
What is the main claim? It is as follows:
“A Declaration that the kingmakers of Aresa of Iresa-Adu Chieftaincy having not met to consider, screen and select one of the nine (9) candidates sent to it by the 2nd Defendant, the 1st Defendant has not been validly or lawfully selected or by the kingmakers to fill the vacant Chieftaincy of Aresa of Iresaadu.” [emphasis by counsel]
The 2nd, is an injunctive relief which depends entirely on the success or otherwise of the main relief claimed.
The question therefore is this, did the Appellant discharge the burden placed on them by the Evidence Act? The Respondent counsel’s answer is in the negative. For example, the Appellant agreed that each of the nine candidates were qualified. No problem there. They did not suggest anywhere that the 1st Defendant was disqualified. Their main quarry is that the kingmakers did not meet. Out each of the five living kingmakers agreed they signed Exhibit ‘A’ but by threat. DW1 denied ever threatening to remove any kingmaker if he fails to sign. PW3 said he signed in his living room and he signed in day light (pages 81-85). The pieces of evidence or DW2, DW3, DW4 and PW5 all the kingmakers put together all agreed they held three meetings to select 1st Respondent. (See pages 81 to 95 of the transcript record).
The 2nd and 3rd Respondents’ learned counsel then concluded his argument by submitting thus:
“That it is not the provision of the Chiefs law of Oyo State that the kingmakers must conduct oral interview of each of the princes applying to be installed before installing him”.
[emphasis by counsel]
Finally 2nd and 3rd Respondents’ counsel submit that the Plaintiff’s/Appellants did not tender any credible evidence beyond reasonable doubt to that effect that they were forced and the burden is on them a criminal burden to so prove. In the totality the plaintiffs failed to prove their case, He cites Yaktor v. Governor of Plateau State (1997) 4 NWLR (pt 498) 216. Ovewumi v. Ogunesan (1990) 3 NWLR (Pt. 137) 182. Okonkwo v. Okagbue (1994) 9 NWLR (pt 368) 334.
The learned trial judge ended his judgment thus:-
“The totality of my reasoning is that the Plaintiffs case fails in its entirely and it is hereby dismissed”
Respondents learned counsel (both of them) then urged us to resolve issue one in favour of the Respondents and against the Appellants as they failed to discharged the onus placed on them by law to prove their main claim either on a preponderance of credible evidence as the Plaintiffs or prove threat.
Issue two is based on the Appellants’ learned counsel injunctive relief.
He did not argue this issue in his Brief of Argument? There is no where in his Brief except, in his summary and conclusion portion of it where he submitted thus:
“The learned trial judge having found that there are no necessary parties before him he ought to have struck out the Plaintiffs’ claim and not to have dismissed it” [emphasis by counsel]
The 1st Respondent’s counsel did not do any better. He did not also touch the second issue distilled by the 2nd and 3rd Respondents as reproduced earlier above.
However in his reply to the summary by the Learned Appellants’ counsel submission reproduced and underlined by me above, the 1st Respondent’s counsel argued in reply in his concluding page 9 of his brief thus:-
“The parties had fought the case in the belief that all necessary parties were before the court. Neither the plaintiffs nor the Defendants complained. Both parties consented to the procedure adopted. Too late to complain about improper constitution of the case. [emphasis by counsel]
Thus the 1st Respondents’ counsel joined issue with the Appellants.
However, the 2nd and 3rd Respondents’ learned counsel is none committal on issues two. He submits that there is nothing to vitiate the nomination, selection, approval and installation of the 1st Defendant as the Aresa of Iresaadu of Surulere Local Government of Oyo State and therefore the claim for declaration failed. The second claim being an ancillary injunctive relief sought by the Plaintiffs/Appellants, he submits, also failed because the acts had already been done even before the judgment was appealed against. It is now trite law a court can not stop what has been done by injunction. That the second Relief claimed by the Plaintiffs’ should therefore be dismissed.
Now what are the acts that had already been implemented? In my view from the record, they are:
(I) The Secretary of the Local Government had complied with the provisions of the Chiefs law of Oyo State Vol. 1 Cap 21 section 15.
(2) The Head of Oshunbiyi Ruling House had called the necessary family meeting where nine princes applied to fill the vacant stool of Oba Aresaadu.
(3) The Head of family (Mogaji) had submitted nine names to the kingmakers who picked the 1st Defendant to fill the vacant stool of Aresa of Iresaadu and that he forwarded the name of Jimoh Olayede, the 1st Defendant to the appropriate authorities for further necessary actions.
(4) The council’s secretary the 2nd Defendant had submitted the name of Jimoh Oloyede to the appropriate authorities for approval and installation as the Aresa of Iresaadu.
(5) The 1st Defendant had since been installed as the Oba Aresa of Iresaadu.
(6) All things have been done and done well in the circumstances of the case in my view.
(7) The learned trial judge rightly did all he was enjoined to do in law and came to a rightful conclusion in dismissing the Plaintiffs/Appellants’ claims.
(8) There is nothing therefore in law and in fact to warrant this Honourable Court of Appeal to interfere with the Judgment of the trial court.
Having found the judgment unimpeachable what is the role of the Court of Appeal in that situation? It is now a well settled principle of law that an appellate court in its primary role in considering a judgment on appeal in a civil case in which the finding or non finding of facts is in question will seek to know the following:-
(1) The nature of the evidence before the Court.
(2) Whether the court accepted or rejected any evidence upon correct Perception.
(3) Whether it correctly approached the assessment of the evidence before it and it place the right probative value on the evidence.
(4) Whether it used the imaginary scale of justice to weigh the evidence on either side.
(5) Whether he appreciated the preponderance of evidence to which side the scale is weighed having regard to the burden of proof.
See (1) Agbonifo v. Aiwereoba (1988) 1 NWLR (pt 70) 325 Per Nnamaka-Agu JSC at page 339.
(2) Nisa (Nig)Ltd. v. Mallam v. Ibrahim (1975) 5 SC 55 Per Coker JSC at 62,
(3) Edward Egonu v. Eziamaka Egonu (1978) 11-12 SC III Per Obaseki JSC at 129.
(4) Mogaji v. Odofin (1978) 1 LRN 213.
I could as well end this judgment at this juncture, but I am of the view it is Important to put in a word or two on the issues formulated by the Appellants and wholesomely adopted by the 1st Respondent counsel and turned round to castigate them as ‘jumbled’ in his preliminary objection? The 2nd and 3rd Respondents’ counsel two couched issues are what I utilized to resolve this appeal with slight modification by me. I take cover under the Supreme Court case (Per Karibi-Whyte JSC) of Labiyi v. Anretiola (1992) 2 NWLR (pt 258) 139 at 152 ratio 15 states that this court can reformulate issues in the interest of Justice. Said Karibi-Whyte JSC at page 139 of the Report thus:-
“The Court of Appeal is free either to adopt the issues formulated for determination by it or to formulate such issues as are consistent with the Grounds of Appeal. It was in observance of this principle in pursuit of the proper administration of Justice that the Court Of Appeal in the instant case considered an appropriate formulation of the issue consistent with the Grounds of Appeal filed when it observed that although that the grounds of appeal were inelegant’” drafted, the complaints therein were unequivocally clear. In that wise, the Court of Appeal was right” [emphasis mine]
See also (1) Engineering Enterprises of Niger Contractor Co. v. AG Kaduna State (1987) 2 NWLR (pt 57) 381.
(2) Egbe v Justice Adefarasin (1987) 1 NWLR (pt 47) 1.
In the final analysis the appeal lacks merit. It is accordingly dismissed.
I award N4,000.00 in favour of the Respondents and against the Appellants.
Other Citations: (2007)LCN/2485(CA)
