⦿ CASE SUMMARY OF:
Emmanuel Gbadebo Olusi & Anor v. Clement Sunday Obanobi & Ors. (2014) – CA
by NSA PaulPipAr
– Chieftaincy title;
– Tendering of historical documents;
1. Emmanuel Gbadebo Olusi;
2. Titus Oluwatayo Baale (for themselves and on behalf of the Other Members of Ayindu Ruling House Family of Olukakumo of Ikakumo Chieftaincy)
1. Clement Sunday Obanobi (for himself and other members of Ayanwa Ruling House Family of Olukakumo of Ikakumo Chieftaincy);
2. Simeon Ajayi Olunloyo (for himself and other members of Arepin Ruling House Family of Olukakumi of Ikakumo Chieftaincy);
3. Julius Olaitan Obaniyi (for himself and other members of Parisu Ruling House Family of Olukakumo of Ikakumo Chieftaincy);
4. The Governor, Ondo State;
5. The Attorney-general and Commissioner For Justice, Ondo State.;
6. The Secretary of Akoko North East Local Government
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Mojeed Adekunle Owoade, J.C.A.
* FOR THE APPELLANT
– Gani Asiru Esq.
* FOR THE RESPONDENT
– F.S. Akinnibosun Esq.
⦿ FACT (as relating to the issues)
Put succinctly, the case of the Plaintiffs is that under the Native Law and Custom of Ikakumo, there are four ruling houses in connection with the Olukakumo of Ikakumo Chieftaincy. The ruling houses are Ayanwa, Aparisu, Arenpen and Ayindu ruling houses. These ruling houses are shown in the 1960 Chieftaincy Declaration of the Olukakumo of Ikakumo Chieftaincy (Exhibit A).
The Plaintiffs further contended that the White Paper on the Morgan Chieftaincy Review Commission (Exhibit C) and the resultant 1988 Chieftaincy Declaration i.e. Exhibit D which approved one Ruling House i.e. Ayindu ruling house is contrary to the Native Law and Custom of Ikakumo people.
The defendants on the other hand claimed that there is only one Ruling House which is Ayindu Ruling House in connection with the Olukakumo of Ikakumo Chieftaincy under the Native Law and Custom of Ikakumo people. That Exhibit D reflects the correct native law and custom of Ikakumo and that Exhibit A is not the true position of the Native Law and custom of Ikakumo people with regards to the Olukakumo Chieftaincy.
After trial, the case of the Plaintiffs (herein Respondents) succeeded.
The defendant being dissatisfied have appealed to this Court of Appeal.
1. Whether the Learned Trial Judge was right in admitting and relying on exhibit “B” and in holding that Exhibit ‘B’ corroborated the evidence of PW1 and PW2.
2. Whether the Learned Trial Judge was right when he nullified Exhibit “D” in this suit on the ground that the Governor of Ondo State was wrong in promulgating it, whereas Exhibit “D” which was promulgated under an Edict was not in existence when this suit was instituted in the Court.
3. Whether the judgment of the lower Court was against the weight of evidence.
4. Whether the Learned Trial Judge was right to have received evidence from PW2 in Yoruba Language translated interpreted and recorded the same suo motu in English Language without the aid of an interpreter.
5. Whether the Learned Trial Judge was right when he held that the native law and custom regulating the appointment to the throne of the Olukakumo of Ikakumo Chieftaincy is that there are four (4) ruling Houses.
6. Whether the Learned Trial Judge was right to have given judgment jointly against the 5th Defendant (now 6th Respondent) a non-juristic person and the other Appellants/Respondents, and the Respondents/Respondents – juristic persons.
[CROSS-APPEAL – ISSUES]
i. Whether the learned trial judge was not divested of jurisdiction to try the matter.
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: ALLOWED, IN PART]
(In this appeal out of the 6 (six) issues considered, issue No 3 was struck out. Issues Nos. 1, 4 and 6 were decided against the Appellants while Issues Nos. 2 and 5 were decided in favour of the appellants. Consequently, the appeal succeeds in part. However, issues Nos. 2 and 5 that were decided in favour of the appellants are the crux of the appeal and the determinant issues in the appeal. Therefore, for the reason of the success of the appellants on issues Nos. 2 and 5, none of the reliefs, declarations, or orders granted by the learned trial judge could be sustained. Accordingly, the Judgment of P.I. Odunwo, J., in Suit HIK/2/88 is set aside in its entirety.)
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANTS BUT IN FAVOUR OF THE RESPONDENTS.
i. I do not agree with the Learned Counsel for the Appellants that Exhibit ‘B’ was not admissible or was wrongly admitted neither do I agree with counsel that the Learned Trial Judge used Exhibit B to establish the Native Law and Custom of Ikakumo on the succession to the throne of Olukakumo of Ikakumo. In the first place, Exhibit B does not belong to the category of documents that is made inadmissible by law under any circumstances. Exhibit B belongs to the category of documents which is admissible upon fulfillment of certain conditions. Exhibit B is a duly certified copy of a document retrieved from the National Achieves, thus it basically fulfilled the conditions of admissibility. In any event, even where evidence including documentary evidence which is admissible upon certain conditions has, either through in advertence or otherwise, been admitted without those conditions precedent being fulfilled, if such evidence as in the instant case, was admitted by consent of the parties or without objection then the trial Judge can properly make use of it in arriving at a decision in the case.
ii. The second misconception of the learned counsel for the Appellants in relation to Exhibit “B” is his view that Exhibit ‘B’ is a ‘treatise’ which admissibility is governed by the provision of the proviso to section 126 (d) of the Evidence Act. By way of correction, Exhibit ‘B’ is not a ‘treatise’ and its admissibility is not governed by the proviso to Section 126 (d) of the Evidence Act 2011. The 7th Edition of the Oxford Advanced Learner’s Dictionary at page 1576 defines ‘Treatise’ as a long and serious piece of writing on a particular subject”. Exhibit ‘B’ is not a treatise. Exhibit B titled Population Census of Nigeria 1973 List of Historical Events (for determination of individual ages) is a compilation of historical events in the old Western State dating back to the 19th Century. The document was compiled by Professor J.F. Ade Ajayi and Professor Ademola A. Igun and Published by the National Census Office, Western State of Nigeria.
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE APPELLANTS BUT AGAINST THE RESPONDENTS.
i. In the instant case, it seems to me that neither the exposition of the doctrine of the Rule of law as enunciated in the case of Governor of Lagos State v. Ojukwu (Supra) and other cases in that category nor the doctrine of Lis Pendens par se could debar the operation of the appropriate law making organ of Government from the legitimate process of law making even in the pendency of a suit. To hold otherwise, in my view will give a leeway to the law making arm of government to talk of “judicial recklessness” while those of us in the Judiciary talk of “executive lawlessness” Indeed, the doctrine of separation of powers would have been thrown into the winds if lawmakers cannot make laws in the pendency of a law suit. This is because, the principle behind the concept of separation of powers is that none of the three arms of government under the constitution should encroach into the powers of the other. The function of the Legislature is primarily to enact laws whilst that of the executive is to implement such laws passed by the legislature. The Judiciary, for its own part interprets and enforces such laws. Where, however, such separation of powers between the executive and the Legislature and the Judiciary is provided for by the constitution, neither organ may encroach upon the province of the other. However, the constitution being an organic law, the ground norm and the Supreme law of the land, may restrict the operation of this principle of separation of powers. Accordingly, the power of each arm may be restricted or expanded by an express provision of the constitution.
ii. Whichever way one looks at it, the nulliffication of Exhibit “D” in this suit by the learned trial judge on the ground that the Governor of Ondo State was wrong in promulgating it, whereas Exhibit “D” which was promulgated under an Edict was not in existence when this suit was institute in the Court below is an unjustifiable error in law.
3. ISSUE 3 WAS DECLARED AS SPECULATIVE BY THE TRIAL COURT.
i. Appellants Amended Grounds of appeal complained that the judgment of the learned trial Judge is against the weight of evidence, learned counsel for the Appellants formulated his Issue No. 3 on that ground and complained that there was “wrongful admission of copious evidence at the trial” without specifying any of the pieces of evidence that was wrongfully admitted. In these circumstances, Appellants Issues No. 3 is not open to us for a decision. Accordingly, Appellants ground 3 of the Amended Notice of Appeal and the said Issue No. 3 based on that ground are vague and are hereby struck out.
4. ISSUE 4 IS RESOLVED AGAINST THE APPELLANTS BUT IN FAVOUR OF THE RESPONDENTS.
i. In the instant case, the appellants have not shown that they suffered any miscarriage of justice consequent upon the self interpretation of the evidence of PW2 by the learned trial judge from Yoruba to English Language.
ii. In the instant case, I think the more important point made by the learned counsel for the Respondents is that the law is clear that a party who consents to wrong procedure at the trial cannot be heard to complain on appeal.
5. ISSUE 5 IS RESOLVED IN FAVOUR OF THE APPELLANTS BUT AGAINST THE RESPONDENTS.
i. The pertinent question in this portion of the appeal is whether the Respondents established that there are four ruling Houses in Ikakumo under native law and custom outside of the 1957 and 1960 Declarations. The answer to this question is in the negative. Indeed from the totality of the pronouncements of the learned trial judge in this case, there was no pretence that he relied solely on those ineffective Declarations to find in favour of the 1st to 3rd Respondents that the native law and custom of Ikakumo recognized four Ruling Houses. This is wrong.
6. ISSUE 6 IS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENTS.
i. I agree with the learned counsel for the Respondent that it is a settled principle of law that nonjoinder or misjoinder will not be fatal to an action and no proceedings shall be rendered null and void for lack of competence or jurisdiction simply because a plaintiff joins a party who ought not to have been joined.
1. ISSUE 1 WAS RESOLVED AGAINST THE CROSS-APPELLANT. The Court of Appeal stated, “I think the learned Judge was vested with jurisdiction to hear the case, confusion only set in by the amendment to the Cross Respondents pleadings which purportedly brought in Exhibit ‘D’ as a cause of action in the case and the subsequent improper nullification of the said Exhibit ‘D’ by the learned trial judge. If Exhibit ‘D’ did not create a cause of action in the suit it is only logical to say that outside of Exhibit ‘D’, the learned trial Judge had jurisdiction to try the case.”
The Court of Appeal stated while rounding-off the Cross-appeal, “The cross-appeal succeeds in part. However since Issues No. 2 and 3 that were resolved in favour of the cross-appellants are the key issues in the cross-appeal, none of the reliefs granted by the learned trial judge could be sustained. Consequently, the Judgment of Odunwo J., in suit No. HIW/2/88 is hereby set aside”.
⦿ SOME PROVISION(S)
Section 70 of the Evidence Act 2011 (S.59 Cap. 112 LFN 1990) which says: “In deciding questions of customary law and custom, the opinions of traditional rulers, Chiefs or other persons having special knowledge of the customary law and custom and any book or manuscript recognized as legal authority by people indigenous to the locality in which such law or custom applies, are admissible.”
⦿ RELEVANT CASE(S)
In the case of Obada v. Military Governor of Kwara State (1990) 6 NWLR (Pt. 157) P.482 at 496, this Honourable Court held on competence of Court to question validity of an Edict or decree thus: “No Court of Law has the competence to entertain any question as to the validity of any Edict or Decree, that is no Court has jurisdiction to entertain a question as to the Legislative capacity of a Governor to make an Edict or of president to enact a Decree. Further, by virtue of Decree No. 13 of 1984, anything done, purported or proposed to be done under an Edict or Decree is not subject to the jurisdiction of any Court of Law”.
Ojengbede v. Esan (Supra) at page 790, this Honourable Court held thus: “There can be no doubt that the official language of records in Nigeria is English and that if document written in any language other than English are to be tendered and properly used in evidence they must be duly translated into English either by a competent witness call by the party to the proceeding who needs them to prove his case or by the official interpreter of the court. A judge cannot on his own engage on the translation or interpretation of a document written in a language other than English since he is precluded from performing the role of witness and arbiter at the same time in the same proceedings”.
Similarly in Kankia v. Maigemu (2002) 6 NWLR (Pt. 817) 496 at 519, the Supreme Court held that: “The language of Courts in Nigeria is English language. Consequently, where a document is prepared in any other language, it ought to be translated to English language where it is not so translated it will not be admissible in evidence”.
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
As it is the case with evaluation of evidence a party complaining of wrongful admission of evidence must specify the evidence that was wrongfully admitted. It is not open to the Court of Appeal to embark on a voyage of expedition or the speculative task of searching for the appellants which evidence in the course of trial was wrongfully admitted and take a decision on non-existing facts. – Owoade, JCA. Gbadebo v. Obanobi (2014)
I agree with the learned counsel for the Respondent that it is a settled principle of law that nonjoinder or misjoinder will not be fatal to an action and no proceedings shall be rendered null and void for lack of competence or jurisdiction simply because a plaintiff joins a party who ought not to have been joined. – Owoade, JCA. Gbadebo v. Obanobi (2014)
Thus, where no objection is raised when a document is offered in evidence, the document will be admitted and acted upon and the opposing party cannot later complain on its admissibility unless the document is inadmissible by law. – Owoade, JCA. Gbadebo v. Obanobi (2014)
It is trite law that only a declaration that has been validly made in respect of a recognized Chieftaincy and registered which represents the applicable customary law regulating the selection and appointment of a candidate to a vacant Chieftaincy; and the provisions of such a registered declaration should prevail until amended and the amended Declaration is registered. – Owoade, JCA. Gbadebo v. Obanobi (2014)