Prince Michael Daramola & Ors V. The Attorney General of Ondo State & Ors (2000)

LawGlobal-Hub Lead Judgment Report

ONNOGHEN, J.C.A.

This is an appeal against the Judgment of Hon. Justice S. Kunle Ajayi of the High Court of Justice, Ondo State holden in Ijero-Ekiti in Suit No. HCJ/35/91 delivered on the 31st day of March, 1995 in which he dismissed the claim of the Appellants, then as Plaintiffs.

By a writ of summons filed by the appellants at the High Court, the Plaintiffs claimed against the defendants, now respondents, as follows:

“(a) a declaration that the purported appointment by the Government of first defendant, third, fourth, fifth and sixth defendants as warrant chiefs to appoint a new Ajero of Ijero-Ekiti is illegal, wrongful, against the native law, custom and tradition of Ijero-Ekiti, unconstitutional, null and void and of no effect whatsoever.

(b) a declaration that the purported appointment of second defendant as the new Ajero of ljero-Ekiti by third, Fourth, fifth and sixth defendants is illegal, wrongful, against the native law, custom and tradition of Ijero-Ekiti, null, void and of no effect whatsoever.

(c) a declaration that the purported approval of the appointment of second defendant as Ajero of Ijero-Ekiti by the Government of first defendant is wrongful, illegal, unconstitutional, null, void and of no effect whatsoever.

(d) an order nullifying both the aforesaid appointment and the approval of appointment of second defendant as Ajero of Ijero-Ekiti.

(e) An order restraining the second defendant from parading, calling and styling himself as the Ajero of Ijero-Ekiti and from enjoying any salary, remuneration or perquisites appertaining to the title.”

However, in the further Amended Statement of Claim at pages 208 – 223 of the record of proceedings the claim was amended to read:

“(a) a declaration that the Arojojoye Ruling House to the Ajero of Ijero-Ekiti Chieftaincy consists of seven stocks: Odogun, Odo-Idara, (Aminnin), Akere, Kumuyi, Akata, Adewa/Aderuki and Akutupu.

(b) a declaration that the plaintiffs are authentic members of the Akata stock of the said Arojojoye Ruling House.

(c) a declaration that the selection and presentation of the third defendant by the second defendant to the kingmakers and/or third, fourth, fifth, sixth and seventh defendants as warrant chiefs is against the history, native law and custom of Ijero-Ekiti and hence wrongful, illegal, unconstitutional, null, void and of no effect whatsoever.

(d) a declaration that the purported appointment by government of first defendant, of fourth, fifth, sixth and seventh defendants as warrant chiefs to appoint a new Ajero of Ijero-Ekiti is illegal, wrongful, against the native law and custom and tradition of Ijero-Ekiti, unconstitutional, null, void and of no effect whatsoever.

(e) a declaration that the purported appointment of third defendant as the new Ajero of Ijero-Ekiti by fourth, fifth, sixth and seventh defendants is illegal, wrongful, against the native law, custom and tradition of Ijero-Ekiti, unconstitutional, null, void and of no effect whatsoever.

(f) a declaration that the purported approval of the appointment of the third defendant as Ajero of Ijero-Ekiti by the government of the first defendant is wrongful, illegal, unconstitutional, null, void and of no effect whatsoever.

(g) an order nullifying the aforesaid appointment, the approval of appointment and installation of the third defendant as the Ajero of Ijero-Ekiti as same is against the history, native law and custom of Ijero-Ekiti and hence wrongful, illegal, null, void, unconstitutional and of no effect whatsoever.

(h) an order restraining third defendant from parading, calling, and styling himself as the Ajero of Ijero-Ekiti and from enjoying any salary, remuneration or perquisites appertaining to the title.

(i) an order restraining the government of first defendant from recognising the third defendant as the Ajero of Ijero-Ekiti in any manner whatsoever.

(j) a declaration that the appointment by the kingmakers of second plaintiff as the new Ajero on 9th May, 1991 is valid while the order of the government of first defendant nullifying same is wrongful, illegal, unconstitutional, null, void and of no effect whatsoever.

(k) an order of the government of first defendant to consider the said appointment with a view to approving same.”

It is trite that a statement of claim in this case, a further amended statement of claim – supercedes the writ. That being the case, the claim of the appellants before the trial court is as contained in the further amended statement of claim reproduced in extenso supra.

The facts of the case are that there are three ruling houses in Ijero-Ekiti namely: Arojojoye, Okeruku and Oyinyo. On the 24th of October, 1990, the last Ajero of Ijero-Ekiti died. By the customs and traditions of Ijero-Ekiti people, the next Ajero was to have been nominated by the ruling house three months after the death and burial rites of the last Ajero.

Both parties agree that ascendancy of Ajero throne in Ijero-Ekiti is rotational among the three ruling houses. Both parties also agree that following the death of the last Ajero, it was the turn of Arojojoye Ruling house to produce the next Ajero. Both parties also agree that it is the duty of the ruling house concerned to meet with their accredited family head and nominate a candidate or candidates from those who indicate interest in that office to the kingmakers who will then select or elect the new Ajero of Ijero-Ekiti.

However, while the appellants contend that Arojojo House consists of seven stocks vis: Odogun, Odo Idara, Kumuyi, Akata, Adewa and Akutupu; the 2nd and 3rd respondents maintain that it is made up of five stocks to wit: Odogun, Gangana-Riran Branch comprising Odo-Idara and Odo-Iwaro (Akutupu); Akere and Akata are not part of the stocks in the Arojojoye ruling House.

However both parties agree that the appellants are members of Akata Family of Ijero-Ekiti. That all the meetings held by Arojojoye Ruling House to select the new Ajero did not include members of Akata family. The reason for this, according to the 2nd and 3rd Respondents, is that, Akata family is not related by blood to Arojojoye Ruling House. However, there is evidence that the 2nd respondent, the head of the ruling house, did not also invite members of other two or three branches of the ruling house which he agrees are part of the ruling house.

Many candidates presented themselves to the Ruling house as contestants for Ajero stool or throne but the 2nd Respondent sent the name of only the 3rd Respondent to the kingmakers. This resulted in his being deposed but later reinstated.

While he remained out of office, a majority of the ruling house met and sent the names of six candidates that were vying for the title to the kingmakers who then appointed the 2nd appellant by four votes to one against the third Respondent.

However the state government set aside the said appointment and appointed warrant chiefs in place of the traditional kingmakers, who then appointed the 3rd respondent as the new Ajero of Ijero-Ekiti.

Meanwhile, following the exclusion of the appellants from the meetings of the ruling house, the appellants filed Suit No. HCJ/17/91 against the 2nd Respondent.

When the appellants got to know, the state government planned to appoint warrant chiefs in place of the kingmakers, the appellants filed Suit No.HCJ/24/91 in which the government was restrained from appointing warrant chiefs.

Finally, when the government approved of the appointment of the 3rd respondent, the appellants filed the present suit No.HCJ/35/91 which in effect includes the previous suits.

The appellants however lost the case and being dissatisfied with that judgment which dismissed their claim, they have appealed to this court vide a Notice and grounds of appeal to be found at pages 369 – 373 of the record of proceedings. The appellants raised six grounds of appeal out of which learned counsel for the appellants has formulated six issues for the determination of the court in their brief of argument.

The issues are as follows:

(a) Whether the lower court did justice to the plaintiffs and their case when in summarising the evidence and submissions of counsel in the judgment, the court refused to say anything about four hour plus address of plaintiffs’ counsel together with the authorities cited while it did the opposite to those defendants’ two counsel (ground 1).

(b) Whether the trial court properly evaluated the evidence of the plaintiffs before deciding against them as to their being part and parcel of Arojojoye Ruling House (ground 2).

(c) Whether the court was right in holding that the third defendant was properly selected as sole candidate for the vacant Ajero title in the circumstances (ground 3).

(d) Whether the government acted legally in appointing warrant chiefs instead of the traditional kingmakers to appoint the third defendant as Ajero and consequently whether the appointment of the third defendant was legal (ground 4).

(e) Whether the non-approval by the state government of the appointment of second plaintiff and the approval the government gave to the appointment of the third defendant were legal (ground 5).

(f) Whether the decision of the trial court is justified having regard to the evidence led before it (ground 6)

On issue No.1 learned counsel for the appellants A. O. Akanle Esq. referred to some pages of the record to show that the trial court reviewed the final submission of counsel for the other parties except that of the appellants which he was duty bound to do.

That apart, learned counsel complains that the record or proceedings is incomplete having regards to the non-inclusion of most of the submission of learned counsel for the appellants. He then swore to an affidavit challenging the record.

Learned counsel concedes that in certain cases, address of counsel may not be necessary but submits that in the present case it is in the reverse.

In any case, learned counsel submitted that once the addresses of both counsel to defendants were fully recorded and made use of in the judgment, the same ought to have been done to that of the plaintiffs. That failure to do this is unfair which has led to a miscarriage of justice. That the effect this has on the appellant’s case is that it virtually demolished their case by keeping silent on submissions on their behalf while dwelling at length on those of the respondents. For this learned counsel cited and relied on the case of Nwankpu v. Ewulu (1995) 7 NWLR (Pt.407) 269 at 303. He then urged us to resolve the issues in favour of the appellants.

In his reaction, Lawrence Ojo Esq. learned counsel for the 1st, 4th – 7th respondents in his brief of argument submitted that there is no law making it compulsory for the judge to write down everything said by any counsel to any of the parties in his final address. That the judge has absolute discretion as to the points that are relevant to the issues in the case. That the purpose of address is to assist the Judge in considering the legal issues involved in the case.

That every Judge has his style of writing judgment and the fact that another Judge may have adopted a different style in writing the judgment does not make the style of the trial Judge faulty or vitiate the judgment if it is otherwise sound. For this learned counsel referred to the case Opara v. State (1998) 2 NWLR (Pt.536) 108 at 118-119.

On the sub issue as to whether the record of proceedings is correct, learned counsel submitted that “there is always a presumption that the record of proceedings in the case is deemed to be correct and that the appeal court should consider the appeal on the basis that the record is correct”. For this learned counsel referred to the following cases: A.C.B. Plc v. Emostrade Ltd. (1998) 2 NWLR (Pt.536) 19 at 32: Ehikioya v. C. O. P. (1992) 4 NWLR (Pt.233) 57 at 74 and Ojeme v. Momodu (1994) 1 NWLR(Pt. 323) 685 at 697. Citing the case of Mokwe v. Williams (1997) 11 NWLR (Pt.528) 309 at 321, learned counsel submitted that an affidavit challenging the correctness of the record has been held not to be enough to satisfy the court as to the incorrectness of the record.

That the affidavit ought to have been supported by an exhibit containing the record of the correct proceedings as taken by learned counsel for the appellants. That this has not been done. Urges the court to reject the sub-issue.

Submitting further, learned counsel stated that “even if it is true that the address of counsel was not properly recorded and that it was also not properly considered, the effect of this cannot be to nullify the judgment. What the appeal is concerned with is whether the evidence led by the parties justified the conclusions arrived at by the court in its judgment.”

That the argument or address of counsel to a party however brilliant, cannot form or be valued as evidence in favour of a party or take the place of evidence which is lacking in the case. For this, learned counsel cited the case of Ishola v. Ajiboye (1998) 1 NWLR (Pt.532) 71 at 87: Chukwujekwu v. Olalere (1992) 2 NWLR (Pt.221) 86 at 93: Bello v. N.B.N (1992) 6 NWLR (Pt.246) 206 at 214; and Ugorji v. Onwuka (1994) 4 NWLR (Pt.337) 266 at 238.

That the court can dispense with the address of counsel referring to Ogugu v. State (1990) 2 NWLR (Pt. 134) 339 and Chukwu v. Ossai (1994) 4 NWLR (Pt.339) 461 at 473.

That the case of Nwankwu v. Ewulu cited supra by his learned friend does not apply since it deals with failure to review evidence as opposed to failure to consider legal submissions of counsel. He then urged the court to dismiss issue No.1.

In his response learned counsel for 2nd and 3rd respondents in a brief filed by Ayodeji Daramola Esq. agrees “with the counsel to the appellants that his address before the trial court was not reproduced in the body of the judgment as was done of that of counsel to the respondent… ”

Learned counsel then submitted that despite the lapse, the trial Judge made reference to that address seven times in his judgment while the court referred to the address of counsel for 2nd and 3rd respondents only once and that of 1st, 4th – 7th respondents three times.

Learned counsel however submitted that addresses of counsel cannot replace or be a substitute to the evidence profferred by the parties. He cites the case of Niger Construction Ltd. v. Okugbemi (1987) 4 NWLR (Pt.67) 787: R.E.A.N. v. Aswani iles Ind. (1991) 2 NWLR (Pt.176) 639 at 674; Okefi v. Ogu (1996) 2 NWLR (Pt.432) 603 at 618.

He then urged the court to resolve the issue against the appellants particularly as the facts of this case are straightforward and addresses of counsel not really necessary or can be dispensed with.

In his reply brief, learned counsel for the appellants submitted that mere making of passing reference to the address of counsel in the judgment is not enough. That the submission ought to be fully recorded and critically read and the case and laws cited looked into. That even if the trial court does not need the cases and law, a higher court may need them.

That a court’s record can only be attacked by affidavit while the only additional condition is that a copy of the affidavit must be served on the trial Judge: which was done in this case: referring to Mokwe v. Williams supra.

That neither counsel to the respondents nor the trial Judge swore to a counter affidavit to deny the deposition in the affidavit of appellants’ counsel. He then submitted that there is no doubt that some injustice was done to the case of the appellant and urged us to so hold.

Learned counsel to the parties are unanimous that the learned trial Judge not only failed to record in full the address of learned counsel to the appellants but also failed to reproduce same in his summation of that case for the parties in his judgment. I have gone through the record of proceedings and the judgment of the lower court and have confirmed the complaint of the learned counsel for the appellants as being well founded in fact. The learned trial Judge did not summarise the address of learned counsel for the appellants despite the fact that he reproduced the addresses of learned counsel for the 1st, 4th – 7th respondents and 2nd and 3rd respondents, he totally blacked out that of learned counsel for the appellants who were plaintiffs at the trial court.

However, the question that fails to be decided is whether the failure of the learned trial Judge in this regard has occasioned any injustice to the appellants or resulted in any miscarriage of justice.

Before dealing with that issue it is necessary to deal with a periphery matter relating to amendment of record of proceedings.

Learned counsel for the appellants has challenged the correctness of the record of proceedings at the trial court, particularly with reference to the address of learned counsel before that court. He has complained that his submissions were not fully recorded even though he spent four and half hours in making same. He has sworn to an affidavit to that effect. The affidavit was sworn at the High Court, Ado-Ekiti on the 31st day of July, 1996 and is for service on Hon. Justice S. K. Ajayi and the Registrar High Court, Ijero-Ekiti. The affidavit in question referred to legal authorities cited etc. It is important to note that there is no counter affidavit from either His Lordship or the Registrar of the High Court concerned. It is equally important to note that learned counsel for both the 1st, 4th – 7th Respondents and 2nd and 3rd respondents are not disputing the facts deposed to in the affidavit in question. However, learned counsel for 1st, 4th – 7th respondents has submitted that it is always presumed that the record of proceedings in cases is correct and that the appeal court will consider the appeal on the presumption that the record is correct.

That to disprove this presumption, it is not enough for learned counsel to swear to an affidavit challenging this record without more. He cited the case of Mokwe v. Williams (1997) 11 NWLR (Pt.528) 309 at 321.

To begin with it is my view that both counsel having agreed that the judgment of the learned trial Judge did not contain the address of counsel to the appellants, it follows that the record is to that extent incomplete or incorrect. I agree with learned counsel for both respondents that it is not the duty of the court to record everything said by learned counsel but it is my considered view that having reproduced the addresses of the other counsel he ought to have done so to that of the learned counsel to the appellants.

That being as it may, the question is: What is the proper procedure in challenging the record of proceeding. Both counsel i.e. for appellants and 1st, 4th – 7th respondents have cited and relied on the case of Mokwe v. Williams supra. At page 321 of the report, Tobi J.C.A. has these to say on the procedure for challenging the record of proceedings.

“By the practice of the court, the affidavit challenging the record of proceedings ought to have been served on the judge who then could have exercised his legal right to defend himself.”

While I agree with learned counsel for the 1st, 4th – 7th respondents that the correctness of the record of proceedings is always presumed and that the appeal court will always consider the appeal on the basis that the record is correct. It does not apply where the record of proceedings is challenged, as in this case. From the decision of this court in Mokwe v. Williams supra per Tobi J.C.A., it is clear that the proper procedure in challenging the record of proceedings has always been by a sworn affidavit which must be served on the judge and/or the Registrar of the court concerned. This was done in the case under consideration. As noted earlier, there is no counter affidavit either from the trial Judge or the registrar nor has learned counsel for either 1st, 4th – 7th respondents or 2nd and 3rd respondents deemed it fit to dispute the affidavit challenging the record – that affidavit is also attached to the appellant’s brief of arguments.

Going back to the main issue under consideration, can it be said that the failure of the learned trial Judge has resulted in injustice to the appellants or occasioned a miscarriage of justice?

I totally agreed with the proposition that addresses of counsel may not be necessary if the facts of case are clear and straight forward. See R.E.A.N v. Aswani (1991) 2 NWLR (Pt.176) 639 at 675: Okefi v. Ogu (1996) 2 NWLR (Pt.412) 603 at 618.

It is also the law that addresses of learned counsel are designed to assist the court in arriving at a just decision in the case but they are no substitute for cogent and credible evidence proffered by the parties on the issues that call for determination – see the following cases: Niger Construction Ltd. v. Okugbemi (1987) 4 NWLR (Pt.67) 787: R.E.A.N v. Aswani iles Ind. (1991) 2 NWLR (Pt.176) 639 at 675; Okefi v. Ogu (1996) 2 NWLR (Pt.432) 603: Ishola v. Ajiboye (1998) 1 NWLR (Pt.532) 71 at 87; Chukwujekwu v. Olalere (1992) 2 NWLR (Pt.221) 86 at 93; Bello v. N.B.N (1992) 6 NWLR (Pt.246) 206 at 214: Ugorji v. Onwuka (1994) 4 NWLR (Pt.337) 226 at 238 etc, etc.

The position of the law on the matter being what it is, it is my considered view that what is important is the consideration of the evidence produced by the parties at the trial and the law on which addresses of counsel are supposed to be based, not the addresses of learned counsel simpliciter, since such addresses are no substitute for credible and cogent evidence. It is therefore my view that the omission to record in detail all the submission of learned counsel and the non-reproduction of the submission when summarising the case for the parties though undesirable, may not necessarily lead to injustice or a miscarriage of justice if the trial court duly considers and evaluates the evidence produced by the parties at the trial and comes to a right decision.

This necessarily takes us to a consideration of the second issue in the appeal to wit:-

“Whether the trial court properly evaluated the evidence of the plaintiffs before deciding against them as to their being part and parcel of Arojojoye Ruling House (Ground 2).

Learned counsel for the appellants submitted that the learned trial Judge did not evaluate the fact that paragraph 22, 23, 24, 25, 26, 27, 28 and 29 of the Statement of Claim are admitted in paragraph 1 of the Statement of Defence of second and third defendants. That this admission establishes the relationship of the Akata stock with the other stocks of Arojojoye Ruling House. That the learned trial Judge almost totally ignored the effect of the evidence of P.W.4, P.W.7 and P.W.8 who belongs to other stocks of the Ruling house but gave evidence in support of the plaintiffs. That the court refused to consider the evidence of P.W.4 which supports the case of the appellants because the third respondent said that P.W.4 is a bastard but that this fact was never put to P.W.4 under cross-examination at the time he testified. That the same applied to the evidencc of P.W.7, who is the head of Kumuyi stock. That the court erred in preferring the evidence of D.W.3 to that of P.W.7.

That P.W.8 from Akutupu stock gave evidence in support of the appellants but his testimony was brushed aside by the court even though his evidence was not attacked by the respondents.

That the question of grant of land to that ancestor of appellants was given unnecessary negative prominence by the court and blown out of proportion, nor was consideration given to the fact that appellants farm on many royal lands as of right, and DW4 under cross-examination said that their ancestor Obaleyakin (Oyinyo Ruling House) begged for land from Olorisa of the same Okelogbo and DW4 himself built on Solotun’s land.

That 2nd Respondent admitted that he does not farm on royal land yet he is head of his ruling house.

That the respondents did not produce any cogent evidence in proof of the fact that the appellants originate from Uro as alleged. That without pleading of evidence from either side the trial court found it curious that none of the descendants of Abulasogun ancestors of the appellants, ever contested the Ajero stool let alone be Ajero, but failed to advert its mind to the fact that only Adewa Aderuku stock disowns Akata stock of the appellants and that the first born of an Oba (Abilagba) was never made an Oba (Ajero) up till the Morgan Chieftaincy Commission (around 1980) in which case there is nothing curious in the descendants not being Oba till now, learned counsel further submitted. Learned counsel then cited the case of Apostolic Faith v. James (1987) 3 NWLR (Pt.61) 556 at 547; Abibu v. Binute (1988) 1 NWLR (Pt.68) 57 at 67 – 68; Duru v. Nwosu (1989) 4 NWLR (Pt.113) 24 at 39; Ekwealor v. Obasi (1990) 2 NWLR (Pt.131) 231 at 260 and Nwaoba v. Ihebie (1990) 2 NWLR (Pt.134) 589 at 596, on the issue of improper evaluation of evidence and submitted that is fatal to the judgment and urged the court to resolve the issue in favour of the appellants.

In his argument learned counsel for 1st, 4th – 7th respondents submitted that evaluation of evidence is primarily the function of the trial Judge. That it is only where and when he fails to evaluate such evidence that a court of appeal can intervene and re-evaluate same. He then submitted that the trial court properly evaluated the evidence of the appellants vis-a-vis that of the respondents before dismissing the appellants’ claim. That the evidence of PW4, PW7 and PW8 was unreliable and was properly so treated by the court which had the opportunity of watching their demeanour at the trial.

That farming or building on the royal land does not confer princely title particularly as the Ajero has the prerogative of granting land to strangers or any other interested person. That it is in evidence that the head of Arojojoye ruling house and the head of Oyiyo ruling house had no farm on the royal land.

That there is ample evidence to show that the appellants are strangers to the Arojojoye ruling house and the entire royal families of Ajero. That the issue of Abilagba raised by appellants is a figment of their imagination. Learned counsel however agrees that there is a long social relationship between the appellants and the royal family in the area of marriage and farming. He then urged the court to hold that the trial court properly evaluate the evidence led at the trial and relied on the case of Narumal & Sons Nig. Ltd. v. Niger Benue Transport Co. Ltd. (1989) 2 NWLR (Pt.106) 730 at 742; Baba v. Nigeria Civil Aviation Training Centre Zaria (1991) 5 NWLR (Pt.192) 388 at 422 and Mogaji v. Odofin (1978) 4 SC 91 at 94 – 96, in support of his submission.

The nearest submission of the learned counsel for 2nd and 3rd respondents to the issue under consideration is his submission under his issue No.IV Locus standi of the appellants. Learned counsel submitted that the trial court had the opportunity of seeing the calibre of the witnesses and their veracity. That the respondents’ witnesses were all community leaders and principal members of the Ruling Houses at Ijero-Ekiti. That all the ruling house denied the appellants who have failed to trace a direct descendancy to an Oba in living memory apart from the nebulous and generalised reference to a distant Oba Eiyebiokin.

That the evidence of PW4, PW7 and PW8 was unreliable because they were suborned. That they let the trial Judge no room to credit them with any credibility.

That the so called admission by the 2nd and 3rd respondents in paragraph 1 of their statement of defence is no admission or at best a qualified one. That if paragraphs 22, 23, ,24, 25, 26, 27, 28 and 29 is put side by side with paragraphs 11, 12 and 13 of the Statement of Defence it becomes clear that there is no material admission.

That there is also an irrefutable evidence that the title of Elewere which was bestowed on the Akata chief was later withdrawn following a protest and bestowed on yet another alleged stranger – this time from Oyo, and later withdrawn. That the appellants proffered no credible evidence on the basis of which the trial court could have granted the declarations sought by them. That the trial Judge weighed the evidence properly and rightly rejected the appellants’ claim and therefore reached a correct decision learned counsel further submitted.

I have gone through the pleadings, the evidence and the judgment of the learned trial Judge.

The law is settled to the effect that where a judgment of the lower court is attacked on the ground of being against the weight of evidence or where the finding or non-finding of facts or evaluation of facts is questioned, the court of appeal, in its primary role in considering a judgment on appeal in a civil case in which the finding or non-finding of facts is questioned, will seek to know the following, namely:

(a) The evidence before the trial court;

(b) Whether it accepted or rejected any evidence upon the correct perception:

(c) Whether it correctly approached the assessment of the value on it:

(d) Whether it used the imaginary scale of justice to weigh the evidence on either side;

Whether it appreciated upon the preponderance of evidence which side the scale weighed having regard to the burden of proof. See the following cases: Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt.70) 325 at 33a. Misr (Nig.) Ltd. v. Ibrahim (1975) 5 SC 55 at 62; Egonu v. Egonu (1978) 11 – 12 SC 111 at 129 etc.

Based on these legal authorities, it is necessary to examine the judgment of the trial court so as to resolve the issue under consideration. It is however very necessary to note that the issue under consideration is closely related to issue No. (f) which deals with weight of evidence. The present issue is treated having the issue on weight of evidence in view.

What then is the case of the parties as put before the trial court?

The case of the appellants as stated in the pleadings and evidence before the lower court is that the appellants are members of Akara stock of Arojojoye Ruling House of Ijero-Ekiti, which is one of the three ruling houses in Ijero-Ekiti. That Arojojoye Ruling House consists of seven stocks including Akata. That following the death of the last Ajero of Ijero-Ekiti it became the turn of Arojojoye Ruling House to produce the next Ajero but that the Head of Arojojoye ruling house and other members refused to invite the appellants to the family meeting to nominate and elect the new Ajero to be presented to the kingmakers inspite of repeated demand resulting in the meeting of a majority of the members of Arojojoye ruling house which deposed the then head of family – 2nd respondent and appointed another head who then forwarded the names of six candidates who are interested in the Ajero stool to the kingmakers. The names sent included that of the 2nd appellant who was eventually elected by the kingmakers as the new Ajero of Ijero Ekiti. The appellants state that they are members of Arojojoye Ruling House through Akata who was the son of Late Awodola, who was in-turn the son of Adegbuyi Abulalasogun. That Abulalasogun is the son of the Oba Eyebiokin who was an Ajero of Ijero-Ekiti; that late Oba Eyebiokin is also the father of Agbelaja Odindun. That Agbalaja Odindun is the father of late Oba Aderuku Arojojoye from whom Adewa/Aderuku stock took its name and from where the Morgan Chieftaincy Review Commission took the name of Arojojoye Ruling House. That Oba Aderuku Arojojoye is the father of Adewole Aderuku the father of the 3rd Respondent and that both Adewal Aderuku and Akata stocks have common ancestry in Eyebiokin. That some members of Akata stock did hold certain chieftaincy titles peculiar to princes.

The Akatas also farm on royal farm lands. That the first son of an Oba was never elected or installed Ajero until recently: that is why the Akatas have not produced an Ajero.

That the election of the 2nd appellant by the kingmakers was set aside by the government, represented by 1st Respondent, who appointed warrant chiefs despite an order of interim injunction restraining it from so doing. That the warrant chiefs then proceeded to appoint the 3rd Respondent, Ajero of Ijero-Ekiti. That the recommendation and appointment of 3rd respondent is contrary to the custom and tradition of the people etc. That the installation of the 3rd Respondent is equally null and void since it was done contrary to the customs of the people.

On the other hand, the case of the respondents before the trial court is that Akata stock is not part of Arojojoye Ruling House since it has no blood relationship with it. They admitted that members of Akata stock were not invited to the meeting of Arojojoye Ruling House convened for the nomination and election of a new Ajero because they are not members of that family.

That Akata was not a native of Ijero but came from Uro and was a guest of Oba Agbaleja who instructed one of his chiefs … to settle him on a land near the Oba’s palace.

That at best the relationship between Akata stock and Arojojoye Ruling House is that of in-laws. That the chieftaincy titles claimed by the appellants are not exclusive preserves of princes and that the appellants have never held the exclusive princely titles. That the appellants have never produced an Ajero.

That the 3rd Respondent was duly nominated Ajero and his name forwarded to the kingmakers who refused to appoint him but the 2nd appellant. That thereafter and following the refusal of the kingmakers to reconsider the matter the 1st Respondent appointed warrant chiefs who then appointed the 3rd respondent as the Ajero of Ekiti.

That the appointment of the 3rd respondent is in accordance with the custom and tradition of the people. That the 3rd Respondent was also installed as the Ajero in accordance with the custom and tradition of the people. The respondents admitted that the appointment of the warrant chiefs who appointed the 3rd Respondent was done despite an order of interim injunction restraining the 1st Respondent from so doing – I will return to this aspect later in this judgment.

In dealing with the facts of the case, it is necessary to look at the pleadings. In paragraph 1 of the further Amended Statement of Defence of the 2nd and 3rd Defendants at page 228 of the records the said defendants admitted inter alia. paragraph 22, 23, 24, 25, 26, 27, 28, 29 etc of the further Amended Statement of claim. These paragraphs state as follows:-

“22. Late Chief Afolabi Ajidahun, grandson of Oguntomiloye Akata and senior brother of second plaintiff was in 1963 made chief Eleware, traditional leader of the young princes of Ijero-Ekiti, he

relinquished the post in 1978 to take a higher title.

23. Late John Dada Arowolo, grandson of Akata, was until 1984 Chief Egbechi, a princely title ..whose holder is the traditional head of the hunters of the town who are regarded as personal bodyguards of the Ajero.
24. Late Papa Owolawi Popoola, a grandson of Akata, held title of Sajuku another princely title until 1950 when he was promoted to Agba-Igemo.
25. Late Papa Bariowo, a grandson of Akata, held the title of Olukorun Omo Ajero, a princely title of Agba Igemo, until his death in 1943.
26. The following members of Akata stock currently hold the following princely titles:-

(a) ….

(b) ….

(c) ….

(d) ….

27. ….
28. ….
29. Plaintiff’s Akata stock participates fully in funeral ceremonies of deceased members of Ijero Royal family like the burial, the Ita and Ije ceremonies contributing money, food, drinks, goats, kolanuts, ram and fried Akara balls.

Another issue that was not contested by the Respondents is that of order of interim injunclion. In paragraphs 60, 61, 62, 63, 64 and 65 of further Amended Statement of Claim the appellants pleaded as follows:

“60. Early in December, 1991 plaintiffs got to know that government of first Defendant had decided to appoint another set of warrant chiefs to appoint a new Ajero.

61. Plaintiffs then sought for, and obtained an order of court restraining the Ondo State Government from appointing any warrant chiefs to appoint a new Ajero.
62. The said order is hereby pleaded.
63. On or about 14th December, 1991 the said government appointed fourth, fifth, sixth and seventh defendants and one chief Oladipupo Balogun, the Adara as warrant Chiefs to appoint a new Ajero.
64. On 14th December, 1991, on the day of the Gubernatorial and State Assembly Election the said live chiefs were locked inside the conference room of the Ijero Local government, Ijero-Ekiti to appoint a new Ajero.
65. Fourth, fifth, sixth and seventh defendants signed the document and on 17th December 1991, the Ondo State Government announced third defendant as Ajero of Ijero-Ekiti. The said Chief Adara, however, refused to sign.”

These paragraphs had been admitted either expressly or by omission in paragraphs 2 and 11 of the Amended Statement of Defence of 1st, 4th – 7th Defendants at pages 284 – 286 of the records. In fact paragraphs 63. 64 and 65 are expressly admitted while paragraphs 60. 61 and 62 are admitted by omission – they refused to say anything about the facts pleaded in those paragraphs. It is trite law that what is not denied is deemed admitted.

Funny enough, while in paragraph 2 the said Respondents said that the facts in paragraph 6 are within the personal knowledge of the appellants – which is impossible – they went on to admit same in paragraph 11. Again while the said Respondents denied paragraphs 64 in their paragraph 3, they went ahead in paragraph 11 to admit same.

Despite the state or the pleadings and law on burden of proof to the effect that what is admitted needs no proof, evidence was adduced at the trial to prove the facts.

Looking closely at the record of proceedings particularly the judgment of the trial court, it is clear that the trial judge did not evaluate this aspect of tile appellants case. In fact the did not consider their effects at all. It is important to note that the admission concerning the princely titles held by members of Akata family were without qualifications.

The 2nd and 3rd Respondents expressly admitted that Akata stock has three princely titles and that the reason why Chief Afolabi Ajidahun, the then Elewere, relinguished the post in 1978 was to take a higher title – see paragraph 22 of the Further Amended Statement of Claim. Also admitted is the fact that Papa Owolawi Popoola’s relinquishing of the title Sajuku Ewere was due to promotion to the title of Agba-Igemo.

It is my considered view that the 2nd and 3rd Respondents having made these admissions cannot be heard to say otherwise. The lie in the allegation that Chief Afolabi Ajidahun was compelled to relinquish the title of Elewere because he was not from a royal house is proved in the fact that the Oba who allegedly took it from him for that reason gave it to yet another stranger, this time from Oyo, Haba. The issue of disobedience of lawful court order was not considered at all by the court.

While still on evaluation and weight of evidence it is my view that the way the court treated the evidence of some of the witnesses for the appellants leaves much to be desired. For example PW4 a Prince of Arojojoye Ruling House from Adewa Stock testified in favour of the appellants particularly as to their membership of Arojojoye Ruling House. He was cross-examined and no question was asked as to his membership of that family. However, when the 3rd Respondent testified, he said nothing about that in his evidence-in-chief Under-cross-examination, the witness said “PW 4 is not from Arojojoye Ruling House as he was brought by his mother from somewhere else.” He did not say where he was brought and who his real father or family is. However, the learned trial Judge used this evidence to discredit the testimony of the witness.

This is very unfortunate; having regards to the fact that at that stage in the proceedings the appellants who had closed their case had their hands tied. It is most unfair to refuse to consider that evidence.

Another witness is PW7, the Head of Kumuyi Stock of Arojojoye Ruling House. He confirms that Akata stock is part and parcel of Arojojoye Ruling House. He also told the court that the other branches of the Ruling House did not know how 3rd Respondent became the Ajero. He was cross-examined by learned counsel for 2nd and 3rd Respondents and he confirmed that the appellants were members of the ruling house. He was not cross-examined as to whether or not he was removed as head of his family following the crisis resulting from the Ajero issue or the reasons for his alleged removal. However the Respondents called DW3 a female member of Kumuyi stock who came in to say that they have ceased to meet in PW7’s house due to disagreement over the chieftaincy issue. She however admits that “PW7 is the head of our stock i.e. Kumuyi stock”, In his judgment the learned trial Judge discredited the evidence of PW7 because of what DW 3 said. As staled earlier, when PW7 testified he was not confronted with the facts which were later used by the court to discredit his testimony. 1am of the firm view that the trial Court is wrong in this regard.

PW 8. the head of Akutupu stock also testified in favour of the appellants’ membership of the ruling house. His evidence was not considered at all by the trial court in the judgment.

On the issue of alleged grant of land to the ancestor of the appellant the court said :

“Another point of note is the admission of the 3rd plaintiff that Abulalasogun their ancestor was granted land between Olalogbo’s land and the palace. If the claim that Abulalasogun was the first son of Eiyebiokin was true then it was he that should grant land to other people by virtue of his position as heir to the Oba Eiyebiokin. In fact this piece of evidence supports the defendant’s story that Abulalasogun was granted land at Odo Ogode by Obalogbo and that they farm on Olotin’s land…

However, this finding does not take into consideration the fact that the appellants do farm on many royal lands as of right. DW4 even admitted under cross- examination that their ancestor Obaleyakin of Oyinyo Ruling House begged for land from Olorisa for the same Okelogbo. DW4 equally admitted that he built his house on Salolun’s land. See page 108 where DW 4 had these to say:

‘Our ancestor, Obaleyakin begged for land from Olorisa. It was our ancestor who before he became the Ajero, that begged for land at Okelogbo. I have my building on Salotun’s land but not at Okelogbo…

It is important to note that DW4 is a prince and Head of Oyinyo Ruling House. Now does the fact that his ancestor begged for land and he himself got land from someone else on which he put up his building make his ancestor and himself less royal? I am of the firm view that the fact that the ancestor of the appellants was granted land was blown out of proportion by the learned trial Judge.

It is also my view that the appellants proved that they are members of Arojojoye ruling family even though they have not proved that there are seven stocks in that family. They did prove that Akata stock is one of the stocks in Arojojoye ruling family from the totality of the evidence before the court.

On the other hand, the 2nd and 3rd Respondents who alleged that the appellants’ ancestor came from the Uro failed to establish same by positive evidence. No member of the family the appellants are alleged to come from in Uro was called to trace their relationship with the Akata family of Ijero.

In conclusion it is my considered view that the trial Judge did not properly evaluate the evidence of the appellants. In fact, he did not evaluate the impact of the admissions made by the Respondents in their pleadings. In fact, I state without fear of contradiction that the admission as to the appointment of the warrant chiefs to appoint the 3rd Respondent contrary to an existing lawful order of court made by competent court completely destroyed the case of the defence. Yet the learned trial Judge made no mention of that at all throughout his judgment. The facts of the case being what they are it is my considered view that this is an appropriate case for the Court of Appeal to intervene on the facts.

On issue No.5 viz: selection of third defendants, learned counsel for the appellants submitted that both parties have agreed that no member of Akata family was invited to the meeting of the ruling house which selected the 3rd respondent. That the custom and traditions of Ijero people does not allow for the submission of a single candidate to the kingmakers as evidenced in Exhibit A1, Intelligence Report. That following the failure of 2nd Respondent to call a family meeting of all members of the ruling house as directed he was deposed and another head of family appointed who forwarded necessary contestants to the Ajero stool to the kingmakers.

Apart from this, that other stocks of Arojojoye ruling family, apart from Akara stock was not present at the meeting that nominated the 3rd Respondent; and as such his appointment is wrongful learned counsel submitted. He urged us to set aside the sole candidature of the 3rd Respondent.

On his part, learned counsel for the 2nd and 3rd Respondent admitted that the procedure for the selection and appointment of the Ajero of Ijero-Ekiti is governed by customary usage of customary law: that the Chiefs Edict 1984, as amended has provided for codification of such customary usage. That once codification is made it becomes the recognised or prescribed procedure or customary law for making the appointment – for this, learned counsel referred to Section 5(1) of the Chiefs Edict 1984. Adefulu v. Oyesile (1989) 5 NWLR (Pt.122) 377 at 403 and Uwegba v. A.G. Bendel State (1986) 1 NWLR (Pt.16) 303

That since Exhibit Q, the Chieftaincy Declaration, is a subsidiary legislation the court cannot set it aside and replace same with another custom.

However, that evidence supports the contention that either a candidate or candidates can be forwarded to the kingmakers. That Exhibit E – the nomination of 3rd Respondent- was submitted by the accredited head of the ruling family and that any purported appointment by the kingmakers of a person not nominated by the ruling house was an exercise in futility – for this counsel relied on Adefulu v. Oyesile supra.

On his part, learned counsel for the 1st, 4th – 7th Respondents submitted that the selection of the 3rd Respondent by the Arojojoye ruling house was properly done and in accordance with the tradition and custom of Ijero-Ekiti. That the custom of the people does not forbid the sending of one name to the kingmakers.

That since the appellants are not members of Arojojoye ruling house their absence from the meeting that selected the 3rd respondent does not vitiate that Section. That nomination of a single candidate is not made a condition for disqualification by the Chiefs Edict, learned counsel further submitted.

The custom and tradition of Ijero people that the appellants are relying upon is said to be that stated at page 17 of Exhibit A1 – Intelligent Report: It is headed “method of selection of the Ajero”, For the purposes of clarity and to put the issue in proper perspective I reproduce paragraph 28 of Exhibit A1 hereunder:

“Method of selection of the Ajero”.

28. The candidate for the title was chosen by the Iwarefa-Mefo of Ijero from the Ikoro family of which there were three branches:- (1) Oyiyo (2) Okeruku (3) Aloia. The Oyiyo and the Okeruku branches were named after the sons of Ogbe, the first Ajero, the Arojojoye branch after the son of Ogbe’s younger brother, Otutu. The present Ajero belong to the Oyiyo branch; candidates are selected from these families in strict rotation. It was usual to choose two or three candidates, who were the sons of a previous Ajero born while his father was Oba and by recognised wives of that Oba. The names of the candidates were then put to the Ira oracle and the one whose portents were most favourable was selected. The name of the candidate was then announced by the Iwarefa-Mefa to the town. The selected man was taken to the Obanla’s house where he stayed for three months. He was allowed to be seen by the towns people who came to salute him. He was taken to Sade’s house where he spent one night and from there to the Afin where he took an Oath to be good to his subjects.

On the same day he was taken to the Olotin”s house where he was crowned by the Adara and the Olotin. The next three months he spent in the Odorin’s house and during this time the people from the village are allowed to come in to salute him. He was not permitted to leave the house but might receive visitors. He then finally took up residence in the Afin.”

The italics are mine: to bring out what the appellants are emphasizing.

The appellants arc complaining or the sole candidature of 3rd Respondent which they say is against the custom or the people as evidenced in the passage quoted above. However, the appellants arc not complaining that the 3rd Respondent was not the son of a previous Oba born while his father was on the throne.

The question that should now be answered is: What is the effect of Exhibit Q – the registered chieftaincy declaration – on the customs and traditions of the Ijero people as stated in Exhibit A1.

Now the Chiefs Edict 1984 empowers the making of Declaration of Customary Law relating to selection of chiefs. Section 1(3) of the said Edict provides that:

“(3) In the case of a ruling house chieftaincy the declaration shall include:

(a) a Statement of the customary law relating to the following matters:-

(i) the number of ruling houses and the identity of each such ruling house.

(ii) where there is more than one house, the order of rotation in which the respective ruling houses are entitled to provide candidates to fill successive vacancy in the chieftaincy.

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

(iv) the number and identity of the kingmakers; and

(v) the method of nomination by each ruling house..”

Both parties agree that Exhibit Q is the chieftaincy declaration made in relation to the Ajero of Ijero-Ekiti chieftaincy and that it contains the necessary information and is duly registered.

Paragraphs F (b) of Exhibit Q provides as follows:-

“(b) The head of the ruling house involved shall summon a meeting of the ruling house, composed according to the local tradition to select a candidate or candidates who will be presented to the kingmakers.”

It follows therefore that while Exhibit A1 talks of “two or three candidates”, Exhibit Q talks of “a candidate or candidates”. Exhibit Q is supported by Section 8(1)(b) of the Chiefs Edict 1984.

However, Section 5(1) of the Chiefs Edict. No.11 of 1984 provides as follows and I quote:

“5(1). where a declaration in respect of a recognised chieftaincy is registered under this part, the matters therein stated including any recommendation under paragraph (b) of sub-section (3) of section 1 shall be deemed to be the customary law regulating the selection of a person to be the holder of that chieftaincy to the exclusion of any other customary usage or rule.”Emphasis provided by me.

This court has held in many cases on similar facts that once a declaration has been made and will add, registered in respect of native law and custom or customary law with regard to any subject, that declaration becomes the native law and custom to the exclusion of all other laws and practices and the court’s only duty is to enforce it – see Governor of Kwara State v. Eyitayo (1997) 2 NWLR (Pt.485) 118 at 129 per Ogebe, J.C.A.

See also Awode v. The Military Governor of Ogun State (1993) 8 NWLR (Pt.309) 111 where it was decided inter alia that a registered chieftaincy declaration has as its purpose, the embodying in a legally binding written statement, the customary law of a particular area setting out clearly the method regulating the nomination and selection of a candidate to fill a vacancy in the chieftaincy of that area.

Thus any custom, tradition or usage that is alleged to have existed but is not found in the registered declaration may generally be presumed to have been disregarded or excluded from such custom and tradition required for the selection and appointment of anyone to any office under the Chiefs Edict.

However where a party is aggrieved by a registered declaration which he believes does not reflect the customary law of the people he has to get the Executive Council of the State to cause an amendment to be made to the declaration – see Section 5(2) of the Ondo State Chiefs Edict NO. 11 of 1984.

Therefore having regards to the law as it stands it is my view that the customary law applicable to the selection of Ajero is as stated in Exhibit Q i.e. the ruling house has the power to nominate either a candidate or candidates to the kingmakers for appointment as Ajero.

However, in view of the fact that this court has held that Akata stock is part of the Arojojoye ruling house and that the appellants’ were excluded from the family meetings that nominated the 3rd Respondent coupled with the fact that the 2nd appellant is very much interested in the Ajero stool and wanted to contest but was not allowed to participate in the nomination exercise, the nomination of the 3rd Respondent under the circumstances is vitiated.

On issue No. (d) dealing with the appointment of third respondent, learned counsel for the appellants submitted that since Exhibit B restrained the Government from appointing warrant Chiefs to appoint a new Ajero but it went ahead to do so that action amounts to a blatant, brazen and impudent act of disobedience to and contempt of court and amounts to executive lawlessness.

For this learned counsel cited and relied on Balogun v. Adejobi (1995) 2 NWLR (PT 76) 131 at 155: Ibrahim v. Emein (1996) 2 NWLR (Pt.430) 322 at 334; Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt.18) 621 at 633 – 634; Odogwu v. Odogwu (1992) 2 NWLR (Pt.225) 539 at 557 – 558.

That after nullifying the appointment of the 2nd appellant the government should have ordered the ruling house to re-submit the name of 3rd Respondent for appointment.

That warrant chiefs can only be appointed to replace dead kingmakers. That the kingmakers did not default in their duties etc. In his own reaction learned counsel for the 1st, 4th – 7th Respondents submitted that no order of court was flouted by the respondents. That the service of the alleged order was disputed at the trial. That a party cannot be penalized for a breach of an order of court which he was ignorant of.

That the appointment of warrant chiefs was in order and according to law. That the kingmakers defaulted in their duties hence the appointment.

On his part, learned counsel for the 2nd and 3rd Respondents submitted that there are catalogues of the kingmakers’ default in the discharge of their duties after the nomination was submitted to them. That it is not correct that warrant chiefs are only appointed to replace dead kingmakers.

That the service of the alleged court order is disputed. He however admitted that the trial court ignored the issue of disobedience of that order and urged us to do same.

As stated earlier in this judgment the 1st – 4th – 7th Respondents who are directly affected by the complaint admitted in their pleadings that the appointment of the warrant briefs was done after having been restrained by an order of court.

It is also on record that the warrant chiefs so appointed did meet and appoint the 3rd Respondent while so incapacitated in law. It is trite law that parties are bound by their pleadings. Equally trite is the law that what is admitted needs no proof. It is my considered view that the respondents having clearly admitted flouting the order of a competent court of law with impunity, they cannot now be heard to deny same. The issue of service of the order is clearly an afterthought and not supported by the pleadings and legally admissible evidence.

The trial court omitted to consider this vital aspect of the case in his judgment. It is my view that this has resulted in a serious miscarriage of justice.

It is good law that a judgment of a court must demonstrate in full a dispassionate consideration of the issue properly raised and heard and must reflect the result of such an exercise. See Oro v. Falade (1995) 5 NWLR (Pt.396) 385 at 402: Okonji v. Njokanmma (1991) 7 NWLR (Pt.202) 131 at 151 – 155.

It is my considered view that the action of the Ondo State Government in proceeding to appoint Warrant Chiefs in disobedience to an existing valid order of competent court is blatant, brazen and impudent act of executive lawlessness bordering on contempt of court which ought not to be tolerated or encouraged – See Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt.18) 621. Odogwu v. Odogwu (1992) 2 NWLR (Pt.225) 539: Registered Trustees Apostolic Church v. Olowoleni (1990) 6 NWLR (Pt.158) 514.

It is on record that the warrant chiefs went ahead to act as kingmakers and appointed the 3rd Respondent. It is trite law that you do not put something on nothing and expect it to stand. The sub-issue as to whether the appointment of the warrant chiefs is in accordance with the provisions of the chiefs Edict 1984 as Amended becomes a mere academic exercise and also irrelevant in view of the findings that the appointment was done in disobedience of court order and therefore void. I will therefore not waste my time on that sub-issue.

On issue No.E – the legality of the non-approval of the appointment of second appellant and the approval of the 3d Respondent, learned counsel for the appellant’s submitted that the non-approval of the appointment of second appellant and the approval of the appointment of the third respondent should have come after twenty one days of the respective appointments relying on section 11 (2) of the Chiefs Edict 1984.

In his submissions, learned counsel for the 1st, 4th – 7th Respondents submitted that the appointment and subsequent approval of the third respondent was valid and in accordance with the enabling law while that of the 2nd appellant is invalid.

In his submissions, learned counsel for 2nd and 3rd Respondents submitted that the only valid nomination from the Arojojoye Ruling House before the kingmakers was Exhibit E and the name of the 2nd appellant was not in it. That the kingmakers cannot consider candidate or candidates not submitted to them by the accredited head of the ruling house – for this he referred to Exhibit E and Q and section 8(2)(i) and (ii) of the Chief Edict No.11 of 1984.

It has been held earlier in this judgment that the appointment of the warrant Chiefs who in turn appointed the 3rd Respondent contrary to court order is void. That being the case any purported approval of a non existent appointment is also void. No valid appointment having been made there was nothing for the government to approve.

The procedure to fill vacancies in ruling house chieftaincy is as provided for under section 8 of the Ondo State Chiefs Edict No.11 of 1984 as amended.

Section 8(1) provided as follows:

“8(1) where a vacancy occurs in a ruling house chieftaincy and a declaration has effect with respect to that chieftaincy:-

(a) The Secretary of the committee shall,

(i) within three months after the death, deposition or abdication of the incumbent so soon thereafter, announce the ruling house turn it is to present candidate; and

(ii) request such ruling house to present a candidate or candidates within fourteen days of such announcement.

(a) The head of the ruling house involved shall summon a meeting according to the Local Custom, to select a candidate or candidates who will be presented to the kingmakers.

(c) The Head of the ruling house shall be the Chairman at the meeting and shall call for nomination.

(d) The Head of the ruling house shall communicate the name or names of the nominated candidate or candidates to the kingmakers within three days of the meeting. A copy of the letter shall be sent to the Secretary of the committee.

(e) The kingmakers shall meet within fourteen days of receiving the name or names of the candidate or candidates nominated and consider his or their suitability in accordance with the provisions of sub-section (2) of section 7 and any prevailing custom in respect of the chieftaincy. It shall be lawful for the secretary of the committee and the head of the ruling house to attend as observers any such meeting of the kingmakers.

2(i) If the name of only one candidate is submitted who appears to the kingmakers to be qualified, the kingmakers shall declare him to be appointed.

(ii) if the names of more than one candidate are submitted who appear to the kingmakers to be qualified, the names of those candidates shall be submitted to the vote of the kingmakers and the candidate who obtains the simple majority of the votes of the kingmakers present and voting shall be declared appointed.

(iii) in voting upon candidates, the kingmakers shall have regard to the relative ability, character and popular support of each candidate.

(iv) if the name of only one candidate is submitted and it appears to the kingmakers that he is not qualified or if in the case of a chieftaincy in respect of which there is only one ruling house, no candidate is submitted to the kingmakers, the kingmakers shall inform the ruling house and the secretary accordingly and the ruling house shall further be entitled to submit a name or names within fourteen days being so informed and thereafter the procedure contained in paragraph (c) and (e) of sub-section (1) of this section shall apply.

(3) For the purpose of paragraph (a) of sub-section (1) of this section, an announcement shall be made:-

(a)(i) by delivering a notice in ruling house concerning: and

(ii) by publishing a notice in the manner required by the Local Government Law, for the publication of notice of a council; and

(iii) by giving notice in any manner required by customary law, within three months of the occurrance of the vacancy.

It has been held that Exhibit Q the Chieftaincy declaration is the prevailing customary law touching and concerning the selection, and election of an Ajero since it declares the customs and traditions of the people relating to that stool. That being the case the appellants ought to have attacked it and specifically asked that it be declared null and void as not being in conformity with native law and custom as evidenced in Exhibit A1 but they did not. I have gone through the reliefs in the Further Amended Statement of Claim and there is nothing like that.

That apart, I had earlier held that where a chieftaincy declaration does not truly reflect the customs of the people another way to correct it is by amendment by the executive as provided for in the Chiefs Edict NO.11 of 1984.

As at now the appointment of the 2nd appellant can only be valid and so declared if it was done in accordance with Exhibit Q and in compliance with section 8 of the said Chiefs Edict NO.11 of 1984: See Imonikhe v. A.G. Bendel State (1992) 6 NWLR (Pt.248) 396 at 410 – 411 per Nnameka-Agu JSC where he stated the law in a similar provision as follows:

“It follows that when such a Declaration is duly made and registered under section 11 of the law, it becomes the constitution and embodiment of the entire custom of the town with respect to chieftaincy matter, to the exclusion of any other customary rule or usage.”

From the facts of this case it is very clear and both parties agree that the name of the 2nd appellant was not sent to the kingmakers by the accredited family head of the Ruling House after nomination as required by law. See Adefulu v. Oyesile (1989) 5 NWLR (Pt.122) 377. That being the case it is not proper. Two wrongs cannot make a right. Both sides must go back and do the correct thing in the interest of peace and progress of their community. The fight has been on since 1991.

However, there is the issue of locus standi raised by learned counsel for the 2nd and 3rd respondent to the effect that the appellants have no standing to complain of any exclusion of their family in the selection process leading to the nomination of the 3rd Respondent in that their claim to membership of the Arojojoye ruling house was opposed and rejected by all the ruling houses at Ijero Ekiti. Secondly that the appellants cannot complain about whatever the kingmakers were not allowed to do, they not being kingmakers. That only the kingmakers can complain.

There are two tests in determining the Locus standi of a person, namely:

(i) Whether the action is justiceable, and

(ii) Whether there is a dispute between the parties. See A. G. Kaduna State v. Hassan (1985) 2 NWLR (Pt.8) 483.

In applying the tests, it is the averment in the statement of claim that is of paramount importance since both the courts and the parties are bound by the pleadings. The Statement of Claim must disclose that the plaintiff or plaintiffs has (have) sufficient legal interest in seeking redress in court. This is to keep away from the judicial process busy bodies or interlopers while persons who suffered wrong or have their civil rights and obligations threatened are allowed or encouraged to seek judicial remedy in the court of law. See Badejo v. Federal Ministry of Education (1990) 4 NWLR (Pt.143) 254.

The right of a person to sue on a chieftaincy matter may arise either (a) the plaintiff(s) may by Statement of Claim and evidence show that the right that is being asserted is that of his/their family for instance by reason of hereditary interest, as in this case. In that type of case, it is the family, usually through its representatives which can institute the action on the premise that it is the civil right of that family that has been threatened or breached. or (b) the plaintiff may assert his own right to the chieftaincy stool. What is required, in such a case, is that his statement of claim and evidence should disclose the nature of his interest and his right to the stool. He then has locus standi by virtue of Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1979 being the applicable Constitution when the cause of action arose in this case. See Ogbuechi v. Governor of Imo State (1995) 9 NWLR (Pt.417) 53; Eleso v. Government of Ogun State (1990) 2 NWLR (Pt.133) 420 at 442; Odeneye v. Efunuga (1990) 7 NWLR (Pt.164) C 618; Ajagungbade v. Laniyi (1999) 12 NWLR (Pt.633) 92.

In the present case, the appellants did not only plead and give evidence to the fact that they belong to one of the disputing families within Arojojoye Ruling House in the chieftaincy dispute, they have gone further to state how the personal interest of the 2nd appellant and their family – Akata – in the chieftaincy arises. See Seidu v. A. G. Lagos State (1986) 2 NWLR (Pt.21) 165 at 173.

It is important to note that the appellants never pretended to act on behalf of the kingmakers in this action. In so far as the appellants are convinced that the action of the respondents has affected adversely their interest in the subject matter of that action, they have the right to come to court to complain. Therefore, the issue of locus standi as raised by learned counsel for 2nd and 3rd Respondents is misconceived and so hold.

On application of the rule in Kojo v. Bonsie (1957) WLR 1223 which states that “where the dispute in a suit is on traditional history which had been handed down by word of mouth from one generation to another, it must be recognised that in the course of the transmission, mistakes may occur without dishonest motives. Witnesses of the most veracity may speak honestly but erroneously as to what took place a hundred or more years earlier. Where there is that conflict one side or the other must be mistaken, yet both may be honest in their belief. In such a case, demeanour is title guide to the truth. The best way is to test the traditional history by reference to facts in recent years as established by evidence to see which of the two competing histories is the more probable.”

The first question to be answered is whether this principle, which was enunciated in a land matter is applicable to this case. It has been held by this court in the very recent case of Ajagungbade v. Laniyi (1999) 12 NWLR (Pt.633) 92 at 115 that the principle is applicable generally to situation where the parties rely on inconclusive traditional history and is not limited to land cases on which the decision in Kojo v. Bonsie Supra was based.

The question then is what are the conflicting traditional history relied upon by the parties. I agree with the learned trial Judge that there is conflict in the traditional history of the parties. While the appellants say their ancestor was the first son of Oba Eiyebiokin, the respondents say that Abulalasogun, the appellants ancestor, come from Uro. This results, in law to what is called oath against oath. However, I do not agree that the conflict is irreconcilable.

Despite this, the 1st and 3rd appellants testified to the fact that their ancestor was the first son of an Ajero. There is also evidence to the effect that prior to the Morgan Commission, the first sons were not allowed to ascend the throne. It is very important to note that both parties agree that Eiyebiokin was an Ajero. They however do not agree that he was the father of Abulalasogun, the appellants’ ancestor; nor do they agree that Abulalasogun was his first son. However, Eiyebiokin is one of the founders of Arojojoye ruling house. If the appellants are not the descendants of the 1st son of Ajero Eiyebiokin as claimed, who are the descendants? They must exist in the Arojojoye ruling house. Why have they not challenged the appellant’s claim particularly when the respondents say that the ancestor of the appellants is a stranger to Ijero-Ekiti? The appellant’s claim is specific; it relates to the first son of an Ajero who is agreed to have existed in the ruling house. Does it mean that that particular Ajero did not have a first son?

Following Morgan’s report would the descendants of the first son of the original Ajero who had long been deprived of the right to the throne not have asserted their right? This, to my mind tilts the scale of conflicting history in favour of the appellants. None of the witnesses who testified for the respondents claimed to have come from the line of the original first son. It is note worthy that the dispute between the parties, particularly appellants and 2nd and 3rd respondents, is an intra family dispute i.e. within the same Arojojoye ruling family.

It is also important to note that the respondent who asserted that the ancestor of the appellants came from Uro did not prove it. They asserted the positive.

Rather the appellants proved that it was their auntie who was married to a prince from Uro.

That apart, the appellants called witnesses who confirmed that they are members of Arojojoye ruling house by blood See the evidence of PW4, PW7 and PW8. These are princes from the same Arojojoye ruling house. I am not unmindful of the attempt by the trial Judge to discredit the evidence of PW4 and PW7. That attempt is futile particularly as what was done, is clearly an afterthought. When the witnesses testified they were never confronted with what was later used to discredit them. I wonder how the trial Judge expected the appellants to have countered the assertion of the respondents at that stage.

In fact what the 3rd respondent said about PW 4 was not even in his evidence-in-chief. The court did say that the appellants should have called an independent witness to establish their relationship with Arojojoye ruling house. This is misconceived. Will an outsider know more about the family history of a ruling house than members of that family. PW 7 and PW 8 are the heads of their respective stocks of Arojojoye ruling house and should know better. In any event, the evidence of PW8 was not discredited by the judge yet he did not consider it at all in his judgment.

However, from the totality of the evidence before the court particularly the way the learned trial Judge handled the appellants’ case, it is obvious that even if the appellants had called a Bishop, the learned trial Judge would still not have accepted his evidence. This is very clear from his treatment of Exhibit 7 written by PW2 the Saade. The learned trial Judge at page 536 of the record had this to say.

“It is ultra vires the kingmakers to re-write the history of the ruling house for them. If the ruling house under an accredited Chairman decides that somebody is not from their ruling house, the kingmakers have no business to go into the veracity or otherwise of that assertion nor can the kingmakers force on the ruling house somebody they disown…”

It is important to note that PW2 is not a member of the ruling house but a kingmaker. He is therefore an independent personality. Here we are in a situation where evidence of members of the ruling house touching and concerning the blood relationship of Akata family with Arojojoye Ruling House are rejected on flimsy grounds as well as that of an outsider. Yet, the court wishes for evidence of an independent witness!!

The court having made up its mind not to interfere with the decision of the Chairman of the ruling house that Akata family is not part of that house as indicated in the passage quoted above, has abdicated its primary constitutional role in dispute resolution based on evidence adduced by the parties.

I also do not agree with the learned trial Judge that a recourse to events in recent times tilts the scale in favour of the respondents because as stated somewhere in this judgment, the respondents admitted certain paragraphs of the Further Amended Statement of Claim concerning princely titles held by the appellants or members of the Akata family, without qualifications. There is also evidence that members of the appellants family do own and farm on royal farm lands reserved exclusively for members of the three ruling houses in Ijero-Ekiti.

The learned trial Judge also said that none of the ancestors of the appellants had ever been an Ajero. That is understandable in view of the fact that the appellants, as descendants of the first son of an Ajero, were excluded from the throne until recently. This cannot operate against their right or interest.

The trial Judge also made heavy weather of the admission of the 3rd appellant that their ancestor was granted land between Obalogbo’s land and the palace. He then opined “if the claim that Abulalasogun was the 1st son of Eiyebiokin was true then it was he that should grant land to other people by virtue of his position as heir to the Oba Eiyebiokin”. I had already commented on this aspect while considering the issue of evaluation and weight of evidence.

In fact what is stated there also apply mutatis mutandis to this aspect of the case.

In conclusion, I am of the view that this appeal be allowed and the judgment of the trial court in Suit No. HCJ/35/91 delivered by Hon. Justice S. K. Ajayi on 31st March, 1995 be and is hereby set aside. In its place there shall be judgment for the appellants in the following terms:

1. That the appellants are authentic members of the Akata stock of Arojojoye Ruling House.
2. That the selection and presentation of third respondent by second respondent to the warrant chiefs is null and void as no member of Akata stock participated in the nomination exercise as required by custom and the law.
3. That the purported appointment of the 4th, 5th, 6th and 7th respondents as warrant chiefs by the Government of Ondo State represented by the 1st Respondent contrary to an Order of Court is null and void.
4. That the subsequent purported appointment of 3rd Respondent as the new Ajero of Ijero-Ekiti by the 4th, 5th, 6th and 7th Respondents is illegal, wrongful, null and void.
5. That the purported approval of the appointment of the 3rd Respondent as Ajero of Ijero-Ekiti by the Government of Ondo State represented by 1st Respondent is wrongful, illegal, null and void.
6. It is hereby ordered that the aforesaid appointment, approval of appointment and installation of the 3rd Respondent as the Ajero of Ijero-Ekiti be and are hereby nullified.
7. The 3rd Respondent is hereby restrained from parading, calling and styling himself as the Ajero of Ijero-Ekiti and from enjoying any salary, remuneration or per-quisities appertaining to that title.
8. It is further ordered that reliefs Nos. (a), (i) (j) and (k) on the Further Amended Statement of Claim at pages 221 and 222 of the record of proceedings be and are hereby refused.
9. There shall be cost in favour of the appellants against the Respondents which I fix at N5,000.00.

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Other Citations: (2000)LCN/0683(CA)