Attorney-General of Kwara State & Ors v. Raimi Olawale

I have had a preview of the judgment of my learned brother Nnaemeka-Agu, J.S.C. in this appeal. I agree entirely with his reasoning, and the conclusion dismissing the appeal. I only wish to make some contribution to the principal issue litigated in this appeal, that is, the dispute culminating in the action having arisen sometime in 1971, the cause of action being a Chieftaincy matter. Accordingly in the light of the law of (he time the dispute arose whether the learned trial Judge had jurisdiction in respect of the matter before him. The claim before the learned trial Judge as endorsed in the writ of summons dated 7th January, 1986 issued and filed on the same date is as follows-

CLAIMS: ‘The plaintiff is the village head of Okanle and its environs under the title ‘Olokanle of Okanle’ and the descendant of Kosolu family the only recognised ruling house in Okanle. The first defendant is the Chief Legal Officer of the Kwara State Government; The second and third defendants are the Kwara State Local Government functionaries who on the advice of the first defendant purportedly/appointed the fourth defendant as Baale/ Village head of Okanle. 1. Whereof the plaintiff claims against the defendants jointly and severally as follows;

1. A DECLARATION that ‘Olokanle’ is the traditional head of Okanle and that Raimi Olawale is the Olokanle of Okanle, having been so elected from the only ruling house in Okanle (Kosolu ruling house) in accordance with the traditional and custom of Okanle people.

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A MANDATORY INJUNCTION against the first, second and third defendants compelling them, their agents/servants to recognise the plaintiff as the Olokanle of Okanle.

(i)   A DECLARATION that if Baale is meant to be the headship of Okanle, the plaintiff (Raimi Olawale) is the proper Baale in accordance with Okanle’s tradition and custom B and the recognition of the fourth defendant by the second and third defendants as Baale/head of Okanle is therefore null and void as the headship of Okanle has always by tradition been from Kosolu family to which the fourth defendant is unknown.

(ii)   A PERPETUAL INJUNCTION against the first, second and third defendants and their agents/and/or servants prohibiting them from recognising the fourth defendant as Baale/head of Okanle.

(iii)   A PERPETUAL INJUNCTION against the fourth defendant prohibiting him from parading himself and/or acting or holding himself out as Baale/head of Okanle.

(iv)   A MANDATORY INJUNCTION against the first, second and third defendants, their agents/servants compelling them to recognise the plaintiff as the Baale of Okanle. In his statement of claim Plaintiff averred as follows in paragraphs 3,15,16,23,24,25,26,27.

“3.   The Plaintiff is the recognised village head of Okanle under the title ‘Olokanle of Okanle’ in accordance with the tradition and custom of Okanle.” After tracing his pedigree and listing the reign of the past Olokanle he averred at paragraphs 15,16,23-27 as follows-

“15. The Plaintiff says that Oyewole died and was succeeded by Abioye who reigned between 1927 and 1933 before Oyebode succeeded him in 1933.

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16. The plaintiff also says that Oyebode died in 1981.
17. The Plaintiff says that Oyebode thus reigned as Olokanle of Okanle until his death in 1981 when the Plaintiff succeeded him.
18. The Plaintiff says that after the death of Buraimoh Oyebode as Olokanle of Okanle, the Okanle Kingmakers namely, Esa, Elemesho, Balogun, Akogun, The Babaloke, The Baba Isale Ojomun, selected the Plaintiff as successor of Oyebode as Olokanle of Okanle in  accordance with the tradition of Okanle.
19. The decision of the Okanle Kingmakers was communicated to the Ifelodun Local Government for approval vide their letter dated 28th November, 1981, which is hereby pleaded.
20. The Ifelodun Local Government in its letter addressed to the Plaintiff Ref. IELG/HEAD/3/S.1/l06 of 4th August, 1981 wrongfully declined jurisdiction and urged the Plaintiff to approach the Ifelodun/Irepodun Traditional Council. This letter is pleaded.
21. The Plaintiff says that in a dramatic turn, the agent of the second and  third defendants in Ifelodun Local Government wrote in his letter Reference ILG/S/88/S.7/80 of 3rd October, 1984 to say that the Plaintiffs’ ruling family coined the title ‘Olokanle’ for itself and that in any case the fourth defendant is the purported head of Okanle.

The original copy of this letter is lost and all efforts at locating it have failed. A photocopy of the said letter is hereby pleaded.” It is clear from the statement of claim that the question whether there can be an Olokanle is not in dispute. This is because the position though conceded

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to Respondent’s family by Igbomina Ekiti Central Administration is recognising the same position as the Baale. (See para 19 of the statement of claim). The issue in dispute is whether the Olokanle or the Baale is the head of Okanle. This is clearly brought out in paragraphs 17-22 of the statement of claim, where it was averred as follows:

“17.  The Plaintiff says that after the creation of Igbomina Ekiti Division in 1970 the then Igbomina Ekiti Central Administration of Igbomina Ekiti Division abrogated the title’ Alangua’ as being foreign to Igbomina Ekiti Division.

18. The Plaintiff avers that the Igbomina Ekiti Division in its letter ReferenceCA/EST/16/9 of 4th October, 1971 written to the Alangua wrote to terminate Oyebola as ‘Alangua’ This letter is hereby pleaded.
19. In 1972 the same Local Government ill its letter Reference DOIEI S/12/208 of 17th July, 1972 wrote another letter reappointing Oyebode as head of Okanle but under the title ‘Baale’ This letter  is pleaded.
20. The Plaintiff’s family being dissatisfied with the new title wrote a protest letter and made series of representations to the Igbomina Ekiti Division Central Administration Local Government Authority in their letter dated 14th August, 1972 which letter is hereby pleaded asking to be restored to their traditional title of ‘Olokanle’ of Okanle.”

The issue of jurisdiction has arisen because of the state of the law before October 1, 1979. Before October 1, 1979, the Courts were excluded by provision of the Constitution 1963 from exercising jurisdiction in respect of Chieftaincy disputes See S.161(3) of the Constitution of the

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Federation, 1963 No.20. This provision was omitted from the 1979 Constitution. The defendants also filed their statement of defence. The 1st set of defendants admitted paragraphs 17and 18of the statement of claim and generally traversed paragraphs 19, 20 and 21 putting the plaintiffs to strict proof. The 3rd defendant, who was originally the 4th defendant, pleaded as follows

“3. The defendant says that he (the 4th defendant) had been appointed as the Village Head of Okanle with the title of ‘Baale’ since about 1971 or 1972 and the other defendants had since recognised him as such.”

In addition to the issue of jurisdiction, the main issues for determination in the brief of learned Senior Advocate representing the plaintiff are as follows:

(i)   What is the proper title of the traditional head of Okanle i.e. is it Olokanle or Bale of Okanle?

(ii)   What is the procedure for appointing the Baale or Olokanle of Okanle?

(iii)   Is the plaintiff form Kosolu ruling house or is he entitled to the Olokanle Chieftaincy stool?

(iv)  Is the defendant, i.e. 4th, from the Kosolu family ruling house?

(v)   Has the plaintiff been appointed the Olokanle in accordance with native law and custom of Okanle people? (vi)Was the 4th Defendant imposed on the the people of Okanle as their Baale?

In his judgment the learned trial Judge made several findings of fact. He found that:

1. The title of the Village Head of Okanle is Olokanle when it was first founded. It was only changed to Alanguwar by the Fulani Dynasty after the conquest Ilorin

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Division including Okanle in the Fulani Wars in 1914-27.

2. That the title Baale of Okanle was given to the Head of Okanle on the creation of Igbomina Ekiti Division and after the abrogation of Alanguwar.
3. Buraimoh Oyebode was allowed to function as Baale of Okanle. He reverted to the title of Olokanle after he had been divested of the title of Baale.
4. Buraimoh Oyebode died in 1981.
5. Exhibit E did not name or appoint 4th Defendant as Baale of Okanle in place of Buraimoh Oyebode. Buraimoh Oyebode was Baale of Okanle up to 21st February, 1973.
6. 4th Defendant was not appointed Baale of Okanle between 1971 and 1972.
7. When the Ifelodun Traditional Council resolved that the 4th Defendant was the Baale of Okanle, he had in fact neither been appointed nor conferred with that title by the Okanle Community as the title did not then exist.

In addition the learned trial Judge found that the 3rd defendant could not by the custom of the Okanle people be appointed the Baale or the Olokanle, since he claims through the female line. Having held that the jurisdiction of the court was the ousted, he entered judgment for the plaintiffs in terms of his claim. Dissatisfied with the decision, the defendants appealed to the Court below. The Court below unanimously dismissed the appeal.

The Court considered two issues, namely,

1.”Whether the trial High Court had jurisdiction to determine who is the proper head of Okanle, which depends on when the dispute actually arose,”

2.”Whether or no1the decision of the learned trial Judge

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was right or perverse on merit.” In respect of the first issue, the learned Justice of the Court of Appeal referred to the contention of the parties relating to the date the cause of action arose. He referred to Izenikwe v Nnadozie (1952) 14 WACA, 361 in support of the proposition that “Jurisdiction is determined by the plaintiff’s demand and not defendant’s answer”. He went on to state as follows- “Therefore, in order to know whether the Court had jurisdiction to entertain the claim, all we have to do is to look at the writ of summons and or statement of claim to see when the cause of action was alleged to have arisen, without any recourse to the statement of defence.”

Akpabio J.C.A then examined the claim in the writ of summons, and then the statement of claim, and referred to paragraph 23 of the statement of claim where it was averred that:

“The plaintiff says that Oyebode thus reigned as Olokanle of Okanle until his death in 1981 when plaintiff succeeded him” It was from this averment and other averments in the statement of claim that the learned Justice of the Court of Appeal arrived at the conclusion that the cause of action arose in 1981.

The Court below therefore held, agreeing with the learned trial judge, that since the cause of action did not arise before 1981, the learned trial judge had jurisdiction to try the matter. On the second question whether or not the decision of the learned trial judge was right or perverse on merit, the learned Justice of the Court of Appeal referred to the evidence. He observed that Respondent not only gave evidence, he also called two witnesses; one of them,

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the head of the Okanle Kingmakers to testify on his behalf. The 3rd Appellant did not testify himself, and he did not call any witnesses.

The learned Justice of the Court of Appeal therefore concluded that the evidence led by the Respondent and his witnesses remained uncontradicted, and were rightly believed by the learned trial Judge. He went on to observe as follows:

“There was nothing to contradict the assertion of the respondent that the 3rd appellant was from a female line of descent, and so was not qualified to be selected or nominated as an Olokanle. There was nothing to say that the respondent was not unanimously selected by all the Kingmakers of Okanle at the time he was alleged to have been selected. There was also no indication as to whom the 3rd appellant succeeded. Under the circumstances, I am of the view that the learned trial judge rightly found in favour of the respondent. His decision was not perverse, but rather was founded on the only evidence available.”

All the three appellants gave notice of appeal against the decision of the Court of Appeal. The 3rd appellant gave notice on the 31st January, 1989 in which he filed three grounds of appeal. The grounds of appeal are as follows” Grounds of Appeal “1. The learned Justices of the Court of Appeal erred in law in holding that the part of the plaintiff’s case adjudicated upon by the trial Court which determines whether the trial Court had jurisdiction to try the case or not.

Particulars of errors-in-Law:

1. Before evidence i.e. if plea to jurisdiction is raised by way of preliminary objection, it is the plaintiff’s total case

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as stated in his statement of claim which determines whether a trial court lacks jurisdiction or not. After evidence has been taken, it is the total case before the trial Court which determines whether the trial Court lacks jurisdiction or not.

2. The learned Justices of the Court of Appeal erred in law in holding that the plaintiff/respondents cause of action arose after 1/10/79 despite the admissions made by the plaintiff/respondent and his witnesses and documentary evidence to the effect that the chieftaincy dispute arose before 1/10/79.

Particulars of error-in-Law:

79. The defendants were entitled to rely on the admissions made by the plaintiff and his witnesses that the dispute arose before 1/10/79. There was documentary evidence to the effect that the dispute arose before 1/10/79.
80. The Court of Appeal was under a duty to have held that the trial High Court decision was perverse.

3.The learned Justices of the Court of Appeal erred in law in not dismissing the plaintiff’s case against the 4th defendant when it held that the High Court was right in its view that the plaintiff’s cause of action related to the title of Olokanle when the 4th defendant never claimed at any time to be an Olokanle.

Particulars of error-in-law:

1. It is not obligatory for a party to give evidence or to call witnesses to give evidence in his favour once there was sufficient evidence in his favour from other parties in the case.
2. The evidence of the plaintiff and his witnesses supported the 4th defendant’s case that the chieftaincy dispute arose before 1/10/79.

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iii. The witness for 1st-3rd defendants also gave evidence to the same effect which the trial Court perversely rejected even though the plaintiff and his witnesses gave the same evidence that the chieftaincy dispute arose before 1/10/79.

1. A court cannot pick and choose what portion of evidence of a witness to believe or disbelieve. Other grounds may be filed on receipt of the record of appeal.”

The 1st and 2nd appellants filed two grounds of appeal in their notice of appeal dated 13th March, 1989. The grounds of appeal are as follows-

“1.   The Court of Appeal erred in law when it failed to consider and decide upon Grounds 5 and 6 of the grounds of appeal filed by the 1st and 2nd appellants and this has occasioned a miscarriage of justice.

Particulars of errors in law:

(i)  The learned Justices of the Court of Appeal dismissed the appeal without considering the two grounds;

(ii)  No other Grounds of Appeal encompass or overlap the two grounds.

(iii)  The consideration of the grounds would have affected the decision of the Court of Appeal.

2. The Court of Appeal misdirected itself in law by relying solely on the statement of claim to determine the issue of jurisdiction, and it has by this approach arrived at a wrong decision.

Particulars of errors in law:

“(i)  the pleadings of the Defendants show that the cause of action arose before 1st October, 1979.

(ii)  all the pleadings ought to be considered before the issue of jurisdiction is resolved,”

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All the parties filed and exchanged briefs of argument in this appeal. They also formulated issues for determination in this appeal.  Learned Counsel to the 3rd appellant; Mr, Ijaodola formulated what he regarded as issues for determination. They are as follows-

“1.  What is the cause of action?

2. What determines whether a Court of first instance has original jurisdiction or not?
3. Was it fatal to the 3rd Appellant’s case that he did not personally give evidence or call any witness to establish his appointment before 1/10/79 and
4. Was the decision of the Court of Appeal which affirmed the decision of the trial High Court right or wrong”

I consider it pertinent and useful to discuss the propriety of the above issues before turning to the formulation of issues by learned Counsel to the lst and 2nd appellants, and by the respondent. The issues (1) and (2) in 3rd appellant’s formulation do not seem to be related to any of the grounds of appeal from which they claim to have been derived. Neither the first ground of appeal which is not intelligibly framed, and seems to be incomplete even with respect to the issue of jurisdiction, nor the second ground which questions the determination of the cause of action, could be regarded as coming within the scope and purview of the two questions regarded as issues.

Observations have been made in several judgments in this Court that issues must be formulated in concrete terms. They must not only relate but must also arise from the grounds of appeal filed, – See Oje v Babalola (1991) 4 NWLR (Pt.185)267; Agbetoba v. L.S.E.C (1991) 4 NWLR

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(Pt.188) 664; Bamgboye v Olanrewaju (1991) 4 NWLR (Pt.184)132. It cannot be subject matter of argument that the question “What is a cause of action?” is not an issue. These questions by themselves raise issues. I should not be understood as postulating that in the determination of this appeal, I will not ask myself these questions. It may be necessary in the determination of the existence of a cause of action to consider what is a cause of action. Similarly is the issue as to jurisdiction. This exercise does not elevate the questions to issues in the case as arising from the grounds of appeal. Learned Counsel to the 1st and 2nd appellants filed two issues for determination, which read thus-

“(i)  Whether the Court of Appeal was right either in not considering or in not pronouncing upon the Appellants complaints in ground 5 and 6 of the grounds of appeal before them (Ground 1).

(ii)  Whether the Court of Appeal was right to have relied solely on the issue of jurisdiction in this case (Ground 2)”

The first issue as formulated raised a complaint that the court below did not consider certain grounds of appeal. Grounds 5 and 6 contain allegations of rejection of certified true copy of the minutes of the Ifelodun/lrepodun Traditional Council. It is however well settled, and section 226(2) of the Evidence Act is clearly in support of the proposition that wrongful rejection of evidence is not per se a ground for the reversal of a decision. It is therefore not an issue. It is a different consideration where it has been shown that had the rejected evidence been admitted, the result would have been different. In the instant case the mere allegation of non consideration of

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grounds of appeal cannot constitute an issue between the parties.

Learned Counsel to the respondent did not formulate any issues. He seems to have adopted the issues formulated by the appellants. It seems reasonable to consider the following issues hereunder stated as arising from the grounds of appeal filed. These are-

(i)  Whether the Court of Appeal was right to have held that on the facts before the learned trial Judge, he had jurisdiction to hear a matter which undoubtedly raised a chieftaincy question.

(ii)  Whether the Court of Appeal considered the case of the Plaintiff on its merit and reached a correct decision.

(iii) Whether the failure of 3rd appellant to personally testify or call any credible witness to establish his appointment before 1st October, 1979 was fatal to his case.

Before considering these issues, I shall deal with the preliminary objection raised by Alhaji Salman, S.A.N for the respondent. His submission was thai grounds 14 of 3rd appellants’ grounds of appeal are incompetent.

The grounds relied upon are that since they contain mixed law and facts and have been filed without leave. they have been filed in contravention of section 213(3) of the Constitution 1979. As these are the only grounds in the notice of appeal, the entire appeal is incompetent.

Mr. Sofola, S.A.N. in his reply submitted that all the grounds of appeal in the notice of appeal consist of undisputed facts. He pointed out that every conclusion of law is founded on facts. It is when the facts are disputed, that the question of mixed facts and law arises and which

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will require leave of the Court in compliance with section 213(3) of the Constitution 1979. He cited Ogbechie & Ors v. Onochie & Ors (1986) 2 NWLR (Pt.23) 484, Nwadike & Ors v. Ibekwe & Ors. (1987) 4 NWLR (Pt.67) 718. I agree entirely with this submission – See Metal Construction (W.A.) Ltd., v. Migliore; In re Ogundare (1990) 1 NWLR (Pt.126)299. I agree with this submission. The preliminary objection is misconceived. I now turn to the issues for determination. I will begin with the first issue which concerns the issue of the jurisdiction of the learned trial judge. The contention of the appellants is that the claim before the learned trial Judge raises a chieftaincy question. The dispute which has given rise to the action started in 1971 and at the time the dispute arose, the jurisdiction of the High Court was ousted, both under the provisions of the Constitution, and the relevant Chiefs’ Law.

Accordingly the jurisdiction remains ousted, notwithstanding the provisions of section 236 of the Constitution 1979 which confers jurisdiction. It was submitted that pleadings having closed, and evidence called, the Court could no longer properly rely on the writ of summons and statement of claim alone to determine the commencement of the cause of action. The whole case must be considered. Mr. Sofola submitted that admissions by the defendant clearly show the existence of the Chieftaincy dispute between the 3rd appellant and the father of the plaintiff/respondent long before October 1, 1979.

In his own submission, learned Counsel for the respondent submitted that evidence of P.W.3 shows that

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the 3rd appellant was never nominated for appointment by the Kingmakers of Okanle as against the respondent who was so nominated and duly appointed as the Olokanle of Okanle. The exercise by the Kingmakers was after the death of the respondent’s father in 1981. Alhaji Salman, for the respondent, submitted that the alleged admissions by some defence witnesses were not real admissions. He urged the Court to accept the, concurrent, findings of the two courts below on the fact that the dispute between the 3rd appellant and the respondent started in 1981.

It was finally submitted that whether a court has jurisdiction as well as when the cause of action began is determined by the averment in the statement of claim. This appeal hangs essentially on the important issue whether the Court of Appeal was right in holding that the jurisdiction of the Court of trial in this case was determinable on examination of the writ of summons and statement of claim. It is a well known proposition of law that jurisdiction is assumed when the person bringing the action and the subject matter of the action are properly before the Court. They are only properly before the Court when by the enabling statute or by its inherent jurisdiction it can exercise jurisdiction over the parties. A High Court is a court of unlimited jurisdiction. But the jurisdiction exercised can be regulated by the restriction of its plenitude either in terms of subject matter, in terms of the damages in civil causes or the punishment it can impose in criminal cases. Indeed its jurisdiction can be ousted by statute, by the Constitution as submitted in this case, either as to the subject-matter of the cause of action or as

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to the person who can bring the action. This now brings us to the question what is a cause of action. In this case the contention is that the High Court is precluded from exercising jurisdiction in respect of the subject-matter. This being a Chieftaincy dispute. What therefore is the cause of action? In Sanda v. Kukawa Local Government (1991) 2 NWLR (Pt.174) 379, this Court said that a cause of action is the factual situation which if substantiated, entitles the plaintiff to a remedy against the defendant. See also Bello & ors v. Attorney-General, Oyo State (1986) 5 NWLR (Pt.45) 828. Thus for the claim to establish a cause of action, there must be before the Court juristic or juridicial persons; who can make the claim and against who the court can make an enforceable order. Secondly, there must exist a factual situation which enables the Court to proceed on its inquiry – See Adimora v Ajufo (1986) 3 NWLR (Pt.80)

1. An action is commenced in our High Court by the filing of a writ of summons, bearing the name of the person making the claim called Plaintiff against who the claim is made called the Defendant, etc. and on which the claim against the person is endorsed. It is this document which summons the Defendant to answer to the claim against him. The appellants have contended that in a case of the like before us, the factual situation to enable the exercise of jurisdiction can be determined only after evidence had been called after the closure of pleadings. The contention is that it can only be determined on consideration of the whole case. Respondent on the other hand has submitted that examination of the endorsement on the writ of summons and averments in the statement of claim alone are sufficient.

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There is something to be said for either submission. There is no doubt the issue of whether a plaintiffs action is properly within jurisdiction or indeed justiciable can be determined even on the endorsement of the writ of summons, as to the capacity in which action was being brought, or against who action is brought. It may also be determined on the subject matter endorsed on the writ of summons, if this is not actionable.

The statement of claim when served before the statement of defence is ever filed, the defendant can bring an application to strike out the writ of summons on the same grounds. This is the position before trial. The issue can be determined on the papers already before the court, namely the writ of summons and statement of claim. On the other hand in this case which is after trial, and on appeal, it may be relevant to consider the findings of the trial Judge on issues raised before him. It is of crucial importance to bear in mind that the jurisdiction of the court is determined entirely on the issue submitted to the court by the plaintiff for determination. The court will not cease to have jurisdiction merely because the defendant has relied on a different defence to the action. Where the subject-matter of the claim of the plaintiff is within the jurisdiction of the court, the Court will assume jurisdiction. There may be situations, as in the instant case, when the Court will be required to determine the punctus temporis of the factual situations for the exercise of its jurisdiction. Of course where the precise period is in dispute and is in issue, it will be necessary to take evidence to determine that issue for the purpose of the exercise of jurisdiction. –

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See Barclays Bank of Nigeria Ltd. v. Central Bank of Nigeria (1976) 1 All NLR.409. It is however well settled that wherever the endorsement on the writ of summons, and the statement of claim are clear and unambiguous as to facts from which the issue of jurisdiction could be settled one way or the other, it is the proper material for determination of the issue. When this is done the issue is settled on the plaintiff’s pleading in his statement of claim and not on the defendant’s answer in his statement of defence – See Adeyemi & ors. v. Opeyori (1976)9-10 SC.31. Hence, when the issue of jurisdiction has been clearly established on the writ of summons and statement of claim, it is not necessary to consider the statement of defence. Jurisdiction already assumed cannot be divested on the strength of a valid defence to the action.

In the instant case there was the finding that the father oflhe respondent died in 1981. It was also found that the respondent was appointed Olokanle of Okanle by the Kingmakers of Okanle in 1981. These are the factual situations on which the respondent relied for issuing his writ of summons and seeking the declarations endorsed therein. The claim of 3rd defendant/appellant that he was appointed the Baale of Olokanle before 1979 was rejected by the learned trial Judge. It is therefore clear that the finding on the averment in the statement of claim stands uncontradicted. – See Kasikwu Farms Ltd. v. Attorney-General of Bendel State (supra). It is important to bear in mind that the position of Olokanle of Okanle became vacant only on the death of the incumbent in 1981. There was no evidence that the respondent disputed the position of Olokanle of Okanle with the appellant. The

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evidence before the Court was that the respondent’s father had a protracted dispute over the position with the 3rd Appellant.

Thus, as between the 3rd appellant and the respondent there was no dispute as to the chieftaincy till 1981, after the death of the respondent’s father. It was after this period that the respondent was selected and installed as the Olokanle. It was at this time that the factual situation which gave rise to the cause of action arose. I am of opinion that the Courts below came to a correct conclusion on the point. The jurisdiction was not ousted and any dispute about the Chieftaincy before 1981 did not concern the parties. I now turn to the second issue whether the court below gave its due consideration to the merit of the plaintiff’s case. It is clear from the dictum quoted hereunder that the Court below considered the case of the plaintiff on its merits.

In the judgment of Akpabio J.C.A., he held as follows:

“The respondent not only testified himself as P.W.1 but he called two olher witnesses one of whom was head of the Kingmakers of Okanle to testify on his behalf, and they did so convincingly. The3rd appellant on the other hand failed to even go into the witness box to testify himself. That meant that all the evidence of plaintiff/respondent as regards the Chieftaincy tradition of Okanle, stood uncontradicted, and were rightly believed by the learned trial Judge. There was nothing to contradict the assertion of respondent that 3rd appellant was from a female line of descent and so was not qualified to be selected or nominated as an Olokanle of Okanle. There was nothing to say (show) that respondent was not unanimously

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selected by all the Kingmakers of Okanle as an Olokanle of Okanle. There was nothing to show that respondent was not qualified to be selected. There was also no indication, whatsoever, to show whoever selected or nominated 3rd appellant as a Baale or Olokanle of Okanle. There was in fact no indication as to whom the 3rd appellant succeeded. Under the circumstances, I am of the view that the learned trial Judge rightly found in favour of the respondent. His decision was not perverse, but rather was founded on the only evidence available.” Alao v. Akano (1988)1 NWLR (Pt.71) 431 was cited and relied upon by Mr. Ijaodola in his brief of argument in support of the case of the 3rd Appellant. That case is distinguishable. In Alao v. Akano (supra). It was established at the trial that the defendant was selected and appointed the Baale of Oke-Oyi in 1972 and subsequently was turbanned by the Emir. Plaintiff unsuccessfully brought action in court to set it aside. After the plaintiff failed in Court, the defendant returbanned the defendant in 1981. Plaintiff brought another action in Court.

The Supreme Court held that the cause of action arose in 1972 when the defendant was first appointed and turbanned. This Court held that the cause of action must be determined from the substance of the case and that the cause of action arose in 1972 and not in 1981. So the case must be decided in accordance with the law at the time the cause of action arose. In the instant case, the Courts below found that the dates 1971 or 1972 or 1978 of the alleged appointment of the 3rd appellant as the Baale of Okanle was not proved. The Courts below held

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as one of the reasons for rejecting the claim of 3rd appellant to appointment as the Baale of OkanIe was that he did not testify in support of the case, three of his witnesses D.W.1, D.W.2, D.W.3, gave contradictory evidence as to the date 3rd appellant was alleged to have been appointed Baale of Okanle. In that state of the evidence the learned trial Judge was left with no alternative than to reject his claim – See Mogaji & Ors. v. Odofin & ors. (1978) 4 SC.91. In the circumstance, the plaintiff’s case standing uncontradicted and on the balance of probabilities was accepted. The Courts below gave the fullest consideration to the case of the 3rd appellant. They also on the evidence before them came to the right conclusion.

For the reasons I have given above, and in addition to the fuller reasons in the judgment of my learned brother Nnaemeka-Agu J.S.C., I will and hereby dismiss the appeal, all the issues raised on behalf of the appellants having failed. Each set of appellants as represented by Counsel is to pay N1,000.00 as costs to the respondent.

I have had a preview of the lead judgment of my learned brother, Nnaemeka-Agu, J.S.C . I entirely agree with his reasoning that the appeal lacks merit and it must therefore be dismissed. Based on the reasons given in the lead judgment which I hereby adopt as mine, I also dismiss the appeal with N1,000.00 costs against each set of the appellants in favour of the respondent.

P.41

I have had a preview of the judgment just delivered by my learned brother Nnaemeka-Agu, J.S.C. in this appeal. I agree with him that the appeal fails. He has set out the facts and there is no need to repeat them. On the issue of jurisdiction, it is noteworthy that the claim between the parties relates to the Olokanle of Okanle. The plaintiff/respondent pleaded and testified to the fact that his father Oyebode, reigned as Olokanle of Okanle until his death in 1981 when the plaintiff/respondent succeeded him. The trial court therefore had jurisdiction to try the case. The learned trial Judge never believed the third defendant/appellant that he had been installed as the Baale of Okanle because such an office never existed in the locality. On the other issues it suffices to say that the respondent showed clearly how he was selected by the Kingmakers according to custom and tradition. The 3rd appellant proved nothing because he was disbelieved along with his witnesses.

The appellants also failed to show how the rejected minutes of the Traditional Council would have affected the decision of the trial court in their favour since it is not every rejection of evidence that will affect the decision of the trial court or of a court of appeal (See generally section 226 sub-section 2 of the Evidence Act). For the above reasons and others contained in the lead judgment, the appeal is dismissed with costs as assessed.

 I have had the advantage of reading in draft the judgment of my learned brother Nnaemeka-Agu, J.S.C. just read. I agree entirely with the conclusion reached by him and the reasonings leading thereto. I have nothing more to add to the rather very lucid judgment. I too agree that the appeals of the two sets of appellants be dismissed and the judgment of the court below affirmed.
I subscribe to the order for costs made by him.

Appeal dismissed.