CHIEF GBADAWIYU AKANBI KABIAWU & ORS V ALHAJA NIMOTA ESU THOMPSON & ORS

CORAM

AKINTOLA O. EJIWUNMI , JUSTICE, SUPREME COURT.

PARTIES

CHIEF GBADAWIYU AKANBI KABIAWU(Head of Kosoko Chieftaincy Family)& ORS APPELLANTS

ALHAJA NIMOTA ESU THOMPSON & ORS RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Claimants/Appellants claimed that they are the descendants by blood of King Kosoko 1 and are entitled to succeed to the office of Olojo and Asajon of Lagos. They contended that the declaration made under the Obas and Chiefs Law of Lagos State 1981 by the Governor of Lagos State regulating the selection of the Oloja of Lagos does not represent the correct tradition, custom and historical facts of the Oloja Chieftaincy also, that the failure of the Lagos State Government views thereon infringe the fundamental rights guaranteed by Section 33 (3) of the 1979 Constitution. The case of the 1st – 5th, 7th and 8th Defendants is that King Kosoko 1 had only 9 children as contained in the Declaration of 3rd November, 1983. That the Claimants with the exception of the 1st Claimant are descendants of domestics and sojourners in the place of King Kosoko 1. The 6th Defendant’s case is that he is the one entitled to the stool of Oloja of Lagos having been nominated by the Akinsanya Oloja ruling house, the first ruling house entitled to present a candidate for the stool by virtue of the Declaration. The learned trial judge took evidence from all the parties and after the submissions of counsel on the issues, delivered judgment in favour of the Respondents. The Appellants being aggrieved by the judgment filed this appeal before this court.

HELD

Appeal Allowed

ISSUES

1. Whether on the finding of the court below the exhibit P14 was not comprehensive in relation to the customary law in respect of the Oloja Chieftaincy of Lagos the learned trial judge was in error in failing to grant the declaration sought by the Appellant having regard to the evidence before the court and the fact that exhibit P4 was made two years after exhibit P14 was registered.?

2. Whether the learned trial judge having admitted exhibit P5 or D1 was right to have refused to act on same on the basis of absence of an illiterate jurat thereon when the alleged absence of illiterate jurat was not pleaded and the exhibit was tendered by the claimants and the 1st – 8th Defendants and was by itself admissible in virtue of sections 39, 109, 111 and 123 of the Evidence Act as to the 35 children of King Kosoko pleaded by the claimants/Appellant.?

3. Whether the learned trial judge was right in using the contents of exhibit P14 as the basis for rejecting the evidence of the 3rd and 9th Claimants/Appellants when exhibits P14 was what was sought to be declared as not representing the customary law in respect of the Oloja of Lagos Chieftaincy?

4. Whether the Claimants/Appellant discharged the onus of proof on them in respect of their membership of their right of birth as members of the King Kosoko family having held that the allegation of the 1st – 8th Defendants/Respondents that the Appellant are descendants of royal domestics and sojourners were unsubstantiated.

RATIONES DECIDENDI

CHIEFTAINCY MATTERS

REGISTRATION OF A CHIEFTAINCY DECLARATION- IMPLICATION OF THE NON-REGISTRATION OF A CHIEFTAINCY DECLARATION
“Sections 9, 10 & 37 of the Obas and Chiefs of Lagos State Law (Cap.02) Laws of Lagos State which talks about the process of securing the Governor’s approval in respect of a Chieftaincy declaration and that no declaration shall come into effect until so registered.”

CHIEFTAINCY MATTERS

REGISTRATION OF A CHIEFTAINCY DECLARATION – IMPORTANCE OF THE REGISTRATION OF A CHIEFTAINCY DECLARATION
“Once a Chieftaincy declaration has been made or approved by the Governor. It is the registration of such Chieftaincy declaration that is of importance before validity could be given to it, rather than the publication in a white paper.”

LAW OF EVIDENCE

PRESUMPTION OF REGULARITY- APPLICATION OF THE PRESUMPTION OF REGULARITY
“Equally, Section 168 (i) Evidence Act 2011 (formerly Section 150 (i) Evidence Act (cap. E14) LFN 2004 which provides that-
When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that requisites for its validity were complied with.”

LAW OF EVIDENCE, PRACTICE AND PROCEDURE

ADMISSION – WHETHER ADMISSION REQUIRES FURTHER PROOF
“The Respondent as stated earlier on in this judgment has not cross-appealed on this point. This is a clear admission by the trial court itself. The Supreme Court in the case of Chief Chukwuemeka Odumegwu Ojukwu v. Dr. Edwin Onwudiwe & Ors (1984) 2 S.C. 15 at 88 stated as follows:
“Another principle deeply enshrined in our jurisprudence is that admissions made do not require to be proved for the simple reason among others that “out of the abundance of the heart the mouth speaketh” and that no better proof required than that which an adversary wholly and voluntarily owns up.”

ADMINISTRATIVE LAW

ILLEGAL EXECUTIVE ACTION- WHETHER A WRONGFUL OR ILLEGAL EXECUTIVE ACTION OUTSIDE THE PROVISIONS OF THE LAW CAN BE CHALLENGED
“The Supreme Court per Ogundare JSC (as he then was) in Odutan v. Akibu (2000) 7 SC (Pt. 11) 106 at 115 upheld the views of Tobi JCA (as he then was) as follows:
“It is not my understanding that the Respondents by their actions questioned the validity of any existing law made on or after 15th, January, 1966 as to the competence of any authority or person to make such law. On the contrary, they seem to question the validity of executive action. In my humble view there is a big wall demarcating the two. There is also a big world of difference between the two. A law which is validly promulgated or enacted could be wrongfully unlawfully or illegally executed. While the law remains sacrosanct its sacrosantity cannot cure a wrongful or illegal executive action outside the provisions of an enabling law, then the action is taken without jurisdiction and a court of law is entitled to pronounce such an act null and void. That, in my opinion is quite different from the competence of any authority or person to make any law. I therefore hold that section 6 (6) of the Constitution does not assist the Appellants.”

CHIEFTAINCY MATTER, COURT

CHIEFTAINCY DECLARATION – POWER OF COURT TO ORDER THE GOVERNMENT TO AMEND A DEFECTIVE REGISTERED DECLARATION
“The court has the power to order the Government in whose power it is to amend a defective or faulty registered declaration.”

CHIEFTAINCY MATTERS

POWER OF THE GOVERNOR – POWER OF THE GOVERNOR IN RELATION TO CHIEFTAINCY MATTERS
“The power of the Governor is as set out in Section 12 of the Obas and Chiefs of Lagos State Law cap 02, Laws of Lagos State, 2003 which in the following terms:
“1. Where the Governor is satisfied that a registered declaration
a) Does not contain a true or sufficiently clear statement of the customary law which regulates the selection of a person to be the holder of a recognized Chieftaincy or
b) Does not contain a sufficient description of the method of selection of the holder of such recognized chieftaincy; or
c) Contains any error whether as to its form of substance;
d) Is otherwise defective, faulty or objectionable having regard to the provisions of this law, the Government require the Chieftaincy Committee to amend such declaration in any respect that he may specify or to make a new declaration, according as he may consider necessary or desirable in each case.”
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COURT, APPEAL, PRACTICE AND PROCEDURE

ISSUES BEFORE THE COURT- DUTY OF THE COURT TO PRONOUNCE ON EVERY ISSUE BEFORE IT
“It is trite law that, the court must pronounce; and not take an evasive posture on issues joined before it for determination. On this, see the Supreme Court decision in Eke v. Okwaranyia (2001) 20 W.R N. 132 at 160; or (2001) 12 NWLR (pt 726) 181 at 213-214 per Ogwuegbu JSC (as he then was):
“I have no doubt that the court below misconceived the purport of “an issue” and “Joinder of issues”. This is manifest in the contradictory posture of that court. An “issue” is a disputed point or question to which parties to an action have narrowed their several allegations and upon which they desire to obtain a decision of the court. The issue may be that of law or fact. In one breath, the court below there was “joinder of issues” and in another, it said that the Defendants had evasive denial of the material issues. A “joinder of issue” operates as a denial of every material allegation of fact in the statement of claim or in the proceeding pleading which is not expressly admitted?”

COURT, APPEAL, WORDS AND PHRASES

ISSUE BEFORE A COURT – WHAT QUALIFIES AS AN ISSUE BEFORE A COURT?
“Also, as to what an issue is, before the court, see Chief P. U. Ejowhomu v. Edoke Eter Mandilas Limited (1986) 9 S.C. 41 at 102 – 103 per Karibi-Whyte, JSC (as he then was).
“An issue is the question in dispute between the parties necessary for the determination by the court. See Akintola v. Solano (1986) 2 NWLR 598. It is only that which the court is concerned.”

COURT, ACTION, PRACTICE AND PROCEDURE

HYPOTHETICAL QUESTIONS- ATTITUDE OF COURTS TO THE DETERMINATION OF HYPOTHETICAL QUESTIONS
“This court in the case of N.A.A. v. Orjiakor (1998) 6 NWLR (Pt. 553) 265 at 274 per Salami JCA (as he then was) stated on courts determination of hypothetical questions as follows:
“The Respondents’ brief is devoted mainly to argument that should have been proffered in the court below, in answering the Appellants’ preliminary objection to the action. These answers were not given to the court below and even, if they were, the leaned trial judge has not expressed her opinion thereon, therefore, this court cannot decide the matter. An Appeal Court is not a place where hypothetical question or questions set by counsel are answered this court answers life questions or issues see Akeredolu v. Aderemi (NO. 2) 1986) 2 NWLR (Pt. 25) 710, 725 S.C.; Ekperokun vs. University Of Lagos (1986) 4 NWLR (Pt. 34) 162, 177 S.C. if learned counsel for Respondent is desirous of an answer to that question, he is better advised to return to the court below to conclude his submission in preliminary points raised by learned counsel for Respondent. The learned trial judge would then give an answer, which would be the subject to appeal to this court.”

CASES CITED

Not Available

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria, 1999.

2. Evidence Act 2011

3. Obas and Chiefs of Lagos State Law, Cap 02, Laws of Lagos State, 2003

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