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In The Supreme Court of Nigeria

On Friday, the 23rd day of February 1990

SC 83/1987

 

Before Their Lordships

 

 

Andrews Otutu Obaseki

......

Justice, Supreme Court

Augustine Nnamani

......

Justice, Supreme Court

Muhammed Lawal Uwais

......

Justice, Supreme Court

Adolphus Godwin Karibi-Whyte

......

Justice, Supreme Court

Abdul Ganiyu Olatunji Agbaje

......

Justice, Supreme Court

 

 

Between

 

Chief Adenigba Afolayan 

......

Appellant

 And

Oba Joshua Ogunrinde

Chief Emmanuel Ajiboye

Chief Joshua Abodunrin

Chief James Aremu

.......

Respondents

 

Judgement of the Court

Delivered by

Andrews Otutu Obaseki. J.S.C.

 

On the 27th day of November, 1989, after considering the submissions of counsel for the appellant and respondents made to the Court in their briefs in writing and orally before us in this court, I dismissed the appeal with N500.00 costs to the respondents and reserved my Reasons for the judgment till today. I now give them.

 

Proceedings in this matter were commenced in the Ilorin Judicial Division of Kwara State High Court by a Writ of Summons filed by the plaintiffs/respondents as plaintiffs against the defendant/appellant as defendant claiming therein

 

1.     a declaration that the defendant being a ward head of Inishan within Oko Village in Kwara State is not entitled under Oko Native law and custom to wear any crown without the the consent and approval of the Oloko of Oko and his chiefs;

 

2.      an order of injunction on the defendant not to wear any crown without the consent and approval of Oloko of Oko and his chiefs.

 

Pleadings were filed and served and at the close of pleadings, the issues joined came up for hearing and determination before Oyeyipo, J. (as he was then).

 

At the conclusion of the hearing of the evidence of witnesses and addresses of counsel, the learned trial Judge gave a well considered judgment in favour of the plaintiffs/respondents granting the declaration sought. In his concluding paragraph, the learned trial Judge said:

 

From the plethora of evidence adduced by the plaintiffs in this case and which evidence I accept, I am satisfied that the plaintiffs herein have amply proved their case against the defendants. It is trite law that before granting a declaration, a court must be satisfied that it will serve a useful purpose (Attorney-General v. Colchester Corporation (1955) 2 Q.B. 207) and that it will terminate the controversy which gave rise to the proceedings. (A. G. v. Dean and Chapter of Ripon Cathedral(1945) Ch. 239). I am satisfied that the granting of the declaration hereby sought by the plaintiffs will settle the issues in controversy among the parties herein as it will restore the status quo which in the light of the evidence I have accepted in this case has always existed between an Oloko of Oko and an Enishan of Inishan Ward in Inishan Oko. It is this status quo which the defendant has sought to destroy in his defiance of the hallowed native law and custom of Oko as regards the issue of wearing a crown. In short, the plaintiffs have amply proved their case on the preponderance of evidence against the defendant and accordingly, I hereby grant the plaintiffs the declaration sought by them as per their Writ of Summons.

 

The defendant was dissatisfied with the decision and by notice of appeal dated 1st day of April, 1981 appealed to the Court of Appeal on 8 grounds. Briefs of arguments were filed in the Court of Appeal and when the appeal came up for hearing, counsel adopted the submissions in their briefs expatiating on only a few issues. Mr. Ijaodola expatiating on the question of sustainable cause of action submitted that since the plaintiff failed to claim that they would lose anything materially, there was no sufficient cause of action.

 

Replying Olorunnisola for the respondents, submitted that as the action was for a declaratory judgment, a cause of action need not be shown or disclosed beyond the claim. After the hearing the Court of Appeal (coram Wali, Akpata and Ogundere, JJ.C.A.) gave a considered judgment dismissing the appeal unanimously. Akpata, J.C.A., in his lead judgment with which the other learned Justices agreed, said he found no merit in all the grounds of appeal filed and argued (i.e. grounds 1,2,3,4,5,6,7 and 8) and dismissed the appeal.

 

Still dissatisfied, the defendant has appealed against the decision of the Court of Appeal to this court on 4 original grounds of appeal and two additional grounds. The grounds of appeal without their particulars are as follows:

 

1.      The learned Justices of the Court of Appeal erred and/or misdirected themselves in law and in fact in dismissing the appellants' appeal when the respondents herein who were the plaintiffs at the Ilorin High Court did not plead, let alone establish that they would lose anything if the appellant herein who was the defendant at the trial Ilorin High Court should wear a crown.

 

Particulars

 

i.      ……

ii.     …….

iii     ……..

iv.    ……..

 

2.     The learned Justices of the Court of Appeal erred in law in holding that they could not reverse the decision of the Ilorin High Court which was based on the demeanour of witnesses

 

Particulars

 

i.     …….

ii.    ……..

 

3.     The learned Justices of the Court of Appeal erred and misdirected themselves in law and in fact in confirming that the appellant's village was a ward in Oko Village when a respondent's witness agreed that Inishan-Oko was at least one mile away from Oko village and there were other factors to the contrary.

 

Particulars of Error and Misdirection in Law and in Fact

 

4.      The learned Justices of the Court of Appeal erred on the facts by not setting aside the trial court's decision that the Enishan should not wear a crown despite the fact that the name of the ancestor of the defendant (appellant herein) was Tewogbade which literally means "Accept the Crown with your palm?

 

Particulars of Errors on the Fact

 

That name (Tewogbade) suggests that the defendant was a descendant of Oduduwa and that he was entitled to wear a crown as claimed by him. The additional grounds of appeal are:

 

1.     The learned Justices of the Court of Appeal erred in law in not setting aside the decision of the High Court to the effect that Inishan was part of Oko Village when Inishan was not a party to the proceedings at the High Court.

 

Particulars of Errors of Misdirection in law

 

i.      ………

ii.     ………

iii.    ………

iv.   ………

 

2.     The learned Justices of the Court of Appeal erred and mis- A directed themselves in law in not making it clear in their judgment that Inishan community was not bound by the High Court decision since Inishan Community was neither a party nor a privy to the High Court's decision and it cannot be said that the Inishan community was guilty of the doctrine of "standing by".

 

Particulars of Error and Misdirection in Law

 

i.     Only parties and their privies are bound by a court's decision

 

ii.     The Inishan community was not guilty of "standing-by" and was not bound by the High Court's decision that Inishan is part of Oko village.

 

The above grounds of appeal are essentially a repeat of the grounds of appeal filed and argued before the Court of Appeal. Leave to file the grounds raising issues of mixed law and fact and of facts was sought and obtained.

 

Parties filed their briefs and set out the issues for determination in this appeal. The issues formulated by the appellant in his brief are fivefold and read as follows:-

 

1.     Whether or not the plaintiffs had a cause of action:

 

2.     Whether or not an appellate court could reverse findings of fact of a trial court based entirely on demeanour;

 

3.     Whether or not Inishan is a ward in Oko Village and

 

4.     Whether or not it was in line with the custom of Inishan for the defendant's family to wear a crown as suggested by the name of the defendant's ancestor Tewogbade.

 

5.     Whether or not the action was properly consitituted in view of the fact that Inishan Community was not a party at the Ilorin High Court or alternatively whether or not the Inishan Community was bound bv the decision that Inishan was a ward of Oko Village.

 

Mr. J.O. Ijaodola appeared as counsel for the appellant and Chief P.A.O. Olorunnisola appeared for the respondents. Learned counsel for the appellant dealt with all the issues formulated in his brief and at the oral hearing he amplified some aspects of his submissions.

 

On issue No.1 above, he submitted that there must be a loss or gain before a person can have a valid cause of action". He cited in support the case of Adanji v. Hunvoo I N.L.R. 74 at 78. He referred to the dictum of Speed, Ag. C.J., that a chieftaincy is a mere dignity that the court had no jurisdiction to decide upon it. He submitted that section 236 of the Constitution of the Federal Republic of Nigeria, 1979 does not alter the position that a plaintiff must derive some benefit from the action before a cause of action can be said to arise. He then submitted that the plaintiffs have disclosed no cause of action against the defendant. He also referred to the case of Olawoym v. Attorney-General of Northern Nigeria (1961) NRNLR 84; (1961) 2 SCNLR 5. He submitted that the facts pleaded in paragraph 13 of the statement of claim to wit:

 

All the Chiefs, senior to the defendant and those junior to him are against the defendant crowning himself because it is untraditional and it has no customary law or practice to support it.

 

On issue No.2. learned counsel for the appellant submitted that although there had been concurrent findings by the two courts below that the Inishan is part of Oko Village, the decision is perverse there being evidence that

 

(1)    there are 3 wards in Inishan

 

(2)    Inishan is about one mile between Inishan and Oko and

 

(3)    Inishan village communitv has its own sub-chiefs.

 

He then submitted that the findings of fact by the High Court being perverse the Court of Appeal erred in not setting the decision of the High Court aside. He submitted further that there is evidence to support a finding that the two villages Inishan and Oko are separate and distinct villages.

 

On issue No.3. learned counsel for the appellant submitted that the issue of Inishan being called Inishan-Oko was not raised in the pleadings and ought not to have been relied upon by the 2 courts below. He conceded that the defendant/appellant "had a lot of contact with the government in his capacity as the agent for collection of taxes".

 

On issue No.4, learned counsel for the appellant submitted that the ancestor of the appellant was called Tewogbade and that the significance of the name lies in its meaning which is "open your palm to obtain a crown". He then contended that the name presupposes that the defendant's ancestor was a crown wearer. He debunked the argument that the Enishan was not entitled to wear a crown because Oloko and other Oko Chiefs do not wear a crown. He submitted that there is no statutory or customary law prohibiting the appellant from wearing a crown. He then relied on the dictum of Osborne, C.J., in the case of Lewis v. Bankole (1908) N.L.R. 81 at 100-101 on adaptability of West African native custom to altered circumstances.

 

On issue No.5, learned counsel submitted that the action filed at the High Court was not properly constituted as all necessary parties were not brought before the court. He contended that Inishan community was a necessary party which should have been joined, and cited the case of Oloriode & Ors. v. S. Oyebi & Ors. (1984) 5 S.C. 1; [1984] 1 SCNLR 390 in support. He contended that not being a party the Inishan community is not bound by the decision of the Court of Appeal.

 

Learned counsel for the respondents formulated two issues for determination in this appeal. The first issue reads:

 

Whether a declaratory order can be made without a cause of action

 

This issue is identical in substance with issue No. I formulated by the appellant. The second issue reads:

 

Whether or not the plaintiffs proved their native law and custom with respect to the wearing of crown by the chiefs in Oko wards and in accordance with their claim on issues which were joined.

 

This issue though cast in different terms is essentially the same as issue No.4 pf the issues formulated by the appellant. This issue formulated in the respondents' brief brings out forcibly the real issue for determination in this appeal. Its determination will form the cornerstone of the success or failure of this appeal by the appellant.

 

Replying to the submissions of counsel, learned counsel for the respondents submitted that there is a cause of action disclosed in the claim filed. He pointed out that the statement of claim sufficiently pleaded the interests of the respondent, the customary law regulating the wearing of crown in Oko village and the violation and threat of continued violation of the custom of the Oko community in regard to the wearing of crowns.

 

Learned counsel for the respondents further contended that the respondents have a right and duty to protect and preserve the custom inviolate and maintain the relative position, status and hierarchy of chiefs in Oko land.

 

Turning to the provision of section 236 of the Constitution of the Federal Republic of Nigeria, 1979, learned counsel submitted that the provision of the section gives right of action to every person who claims or contends that the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue. He contended that the existence of legal right, right of the appellant to wear a crown is in issue. Also in issue is the duty of the respondents to protect and preserve their custom which prevents the appellant from wearing a crown. He then submitted that a declaratory action need not disclose any cause of action if consequential reliefs are not claimed.

 

Turning to the issue whether it was proved that Inishan is part of Oko, learned counsel for the respondents submitted that the fact that Inishan is a part of Oko was pleaded and that it was proved by abundant evidence adduced by witnesses called by the plaintiffs/respondents.

 

The issues raised on the pleadings are all issues arising from a chieftaincy matter. When then the appellant submitted that the claim and pleadings filed disclose no cause of action, he must be questioning not only the absence of facts constituting the elements of chieftaincy but also the competence of the High Court to hear and determine the matter.

 

Cause of action has been defined by this court in many decisions of this court. See

 

Adogan & Anor. v. Ama (1964) NSCC (Vol.3) 87

Adimora v. Ajufo (1988) NSCC (Vol. 19 (Pt.l) 1003, 1005; (1988)6 S.C.; (1988)3 N.W.L.R. (Pt.80) 1

Thomas v. Olufosoye (1986)1 N.W.L.R. (Pt.18) p.669

Bello v. Attorney-General, Oyo State (1986) 5 N.W.L.R. (Pt.45) 825.

 

In its simplest terms, I would say that a cause of action means

 

(1)     a cause of complaint;

(2)     a civil right or obligation fit for determination by a court of law;

(3)     a dispute in respect of which a court of law is entitled to invoke its judicial powers to determine.

 

It consists of every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment - Cook v. Gill (1873) L.R. 8 C.P. 107; Read v. Brown (1889)22 Q.B.D. 128. When facts establishing a civil right or obligation and facts establishing infraction of or trespass on those rights and obligations exist side by side, a cause of action is said to have accrued. See

Adimora v. Ajufo (1988)1 NSCC 1005, 1008; (1988)3 N.W.L.R. (Pt.80) 1.

 

It appears that this issue was raised in the Court of Appeal and the High Court without its being expressly determined, dealt with or answered. It is necessary to emphasise that once an issue is raised howsoever either on the pleadings or in the grounds of appeal and it is a proper one for determination; it is the legal duty of the learned trial Judge or appeal Justices to determine it. The contention of the learned trial Judge and the Justices of the Court of Appeal that a claim for a declaratory judgment need not disclose a cause of action where no anicillary relief is claimed, is no answer. This failure to answer the question gives the impression that the pleadings particularly the statement of claim filed by the plaintiffs/respondents were not examined. This statement of claim discloses that the facts pleaded in paragraphs 1,2, 3, 4, 7, 8 and 11 are facts which disclose a cause of action. These paragraphs read:

 

1.     The 1st plaintiff is the Oba Oko, the Oloko of Oko in Irepodun Local Government of Kwara State.

 

2.     The Oloko of Oko is the only Oba in Oko land and under the Oloko are the following chiefs in order of seniority

 

(a)    The Esa of Odo Oko ward who is the second plaintiff;

(b)    Aro of Irapa ward who is the third plaintiff

(c)    Odofin of Inishan ward

(d)    Asanlu of Owaro ward

(e)    Ipetu of Irapa ward

(f)    Oye of lwoye ward

(g)    Oye of Odo Oko ward

(h)    Edemorun of Idomorun ward - the fourth plaintiff

(i)    Enishan of Inishan ward - the defendant

(j)    Olowa of Owaro ward

(k)    Onigbin of Odo Aba ward

 

3.    The Enishan of Inishan ward is the tenth in order (sic) to seniority of the Oba and Chiefs in Oko

 

4.    There are seven wards in Oko made up as follows

 

(a)     Oko Isale or Okerigbo consisting of Irapa, Inishan and Iwoye

 

(b)     Four other wards at Oke-Oko

 

7.     By the tradition and custom of Oko people of which Inishan is part, no chief ever wears a crown

 

8.      In contravention of age long tradition of Oko people and in defiance of the Oloko, the defendant has made several attempts to crown himself

 

9.      In September, 1978 the defendant made an attempt to crown himself and he was reported to the Irepodun Local Government and the Omu-Aran police command.

 

11.    The 1st plaintiff has suzerainty over all the wards comprising Oko.

 

13.    All other chiefs senior to the defendant and those junior to him are against the defendant crowning himself because it is untraditional and it has no customary law to support it.

 

The facts pleaded above clearly establish a cause of action. They establish the hierarchy of the Oba and the Chiefs in Oko land and the order of precedence. They establish the customary law regulating the same and the prohibition of the wearing of crown by the chiefs. They establish the attempt by the defendant in contravention of the tradition and in defiance of the Oloko to crown himself when he is a chief under the Oloko of Oko. In Bello v. Attorney-General, Oyo State (1986)5 N.W.L.R. (Part 45) p.828 a "cause of action" was defined as 'the factual situation' which entitles one person to obtain a remedy from another person in court. Dealing with the meaning of cause of action in his judgment in the above case, Karibi-Whyte, J S.C., said at p.876:

 

The proposition that a plaintiff has no cause of action merely because the defence has a valid defence is clearly not acceptable. I think a cause of action is constituted by the bundle or aggregate of facts which the law will recognise as giving the plaintiff a substantive right to make the claim against the relief or remedy being sought.

 

Thus, the factual situation which the plaintiff relies to support his claim must be recognised by the law as giving rise to a substantive right capable of being claimed and enforced against the defendant. In other words the factual situation relied upon must constitute the essential ingredients of an enforceable right of claim.

 

See:

 

Trower & Sons Ltd. v. Ripstein (1944) A.C. 252 at p.263;

Read v. Brown (1889)22 Q.B.D. 128;

Cooke v. Gill(1873)L.R.8C.P. 107;

Sugden v. Sugden (1957) All E.R. 300

Jackson v. Spittal(1871) L.R. 5 C.P. 542;

 

Concisely stated, any act on the part of the defendant which gives the plaintiff his cause of complaint is a cause of action.

 

It is clear from what I have said above that the defendant has given the plaintiffs their cause of complaint to the court. The contention of the appellant that the respondent did not plead or prove that they would lose anything is incorrect. The transgression of the native law and custom by the defendant and his defiance of the authority of the 1st plaintiff, Oloko of Oko, by crowning himself and wearing a crown amount to a wrong against the plaintiffs which could if not remedied, cause the village loss of stability, peace and harmony

 

The case put forward by the appellant that Inishan is distinct and separate from Oko and that he is not under the Oloko of Oko and entitled to wear a crown is evidence of what the plaintiffs would lose by the defendant wearing a crown. There is therefore no substance in ground 1 and the issue whether the claim disclosed a cause of action must be answered in the affirmative.

 

Turning to issues Nos. 2, 3 and 4 raised in grounds 2, 3 and 4, I find that the questions raised in these grounds are questions of mixed law and fact. It is the law that appeal courts must not substitute their own views of the facts of a case for the views of the trial court which had the advantage of seeing and hearing the witnesses testify when the decision of the trial court is based on the credibility and demeanour of the witnesses. See

 

Chief Frank Ebba v. Chief Ogodo [1984] 1 SCNLR 372

Okafor v. Idigo [1984] 1 SCNLR 481

Watt or Thomas v. Thomas (1947) A.C. 484

Ben Max v. Austin Motors Co. Ltd. (1955) A.C. 370

 

It is only where the question does not affect the issue of credibility of witnesses that an appeal court is in as good a position as the trial court to evaluate the evidence given and come to a proper decision which may or may not accord with that of the trial court.

 

The Court of Appeal has therefore in the instant case, correctly restated the law and adopted the correct attitude by refraining from interfering with the findings made by the High Court. The court's disinclination to reverse the findings of fact made by the trial court is dictated by law and the overwhelming evidence on record in support of those findings.

 

There is overwhelming evidence which established that Inishan is a ward in Oko village and that Inishan community is a constituent part of Oko community. The evidence of 2nd plaintiff, 3rd plaintiff, 4th plaintiff and plaintiffs' 1st witness accepted by the learned trial Judge established these facts. There is therefore no substance in grounds 2 and 3.

 

The facts sought to be reversed by this court are concurrent findings made by the High Court and the Court of Appeal. This court has said repeatedly that it will not interfere with or set aside and reverse concurrent findings of facts which have not been proved to be perverse or arrived at in violation of some principles of law or procedure. The appellant has, in my view, failed woefully to discharge the burden of proving that those findings were perverse or arrived at in violation of some principles of law or procedure as required by law so as to persuade this court to interfere with those concurrent findings. See

 

Enang v. Adi (1981)11-12 S.C. 25 at 42

Okagbue v. Romaine (1982) 5 S.C. 133 at 170-171

Lokoyi v. Olojo (1983)8 S.C. 861 at 68-73; [1983] 2 SCNLR 127

Ojomu v. Alao (1983) 9 S.C. 22 at 53; [1983] 2 SCNLR 156

Alade v. Alemuloke (1988) 1 N.W.L.R. (Pt.69)207 at 212

 

I therefore hereby affirm the findings for the third time.

 

Grounds 2 and 3 fail and are dismissed. Ground 4 appears to be a huge joke. It is never the rule of law and practice in our courts that facts to be proved by reference to the meaning attached by the party to his ancestors name or title. The submission that the meaning of 'Tewogbade" the name of appellant's ancestor establishes that the defendant was a descendant of Oduduwa and that he was entitled to wear a crown as claimed is totally without foundation and untenable and I hereby reject it and dismiss the ground as misconceived and frivolous.

 

Turning to the issue raised in the additional ground 1, i.e., whether the action is properly constituted having regard to the fact that Inishan Cornmunity was not made a party, I can find nothing either in the pleadings or evidence on record to suggest that members of the community have breached the native law and custom of Oko village. The appellant's defence that he inherited the crown and was entitled to wear it as his fathers before him cannot found a cause against Inishan Community. There being no cause of action against the Inishan Community the action is properly constituted E and additional ground 1 fails.

 

Additional ground 2 is, in the light of the above, misconceived and frivolous. Apart from the appellant, no member of the community has claimed to be entitled to wear a crown.

 

It was for the above reasons that I dismissed the appeal on the 27th day of November, 1989.

 

 

Judgement delivered by

Nnamani. J.S.C.

 

This appeal came before this court on 27th November, 1989. Having read the record of proceedings, and after hearing learned counsel to the appellants learned counsel to the respondents having not been called, I was satisfied that the appeal was devoid of merit and I dismissed it. I indicated that I would give my reasons for that judgment today. I now give the reasons.

 

I have before now had advantage of reading the reasons for judgment just delivered by my learned brother, OBASEKI, J.S.C. I agree with these reasons and adopt them as my own.

 

The main bone of contention was the attempt to wear a crown. The respondents had sued for a declaration that:-

 

1.     The defendant being a ward head of INISRAN within Oko Village in Kwara State is not entitled under Oko Native law and custom to wear a crown without the consent and approval of the Oloko of Oko and his Chiefs.

 

2.     The defendant should not wear any crown without the consent and approval of the Oloko of Oko and his Chiefs

 

Both in their pleadings and evidence, the respondents established INISHAN was a ward within Oko and that the appellant was 10th in order of seniority of the Oba and Chiefs in Oko. This was as against the pleading and evidence of the appellant that INISHAN was a separate community Oko founded by a prince from Ishan-Ekiti and that the Enitshan of ISHAN had always worn a crown during festivals. Oyeyipo, C.J., who the case found as follows:-

 

Having carefully reviewed and reflected on the evidence in case, I am satisfied that the preponderance of probability is definitely in favour of the plaintiff's contention that Inishan is in Oko and that the defendant is a sub-chief under the Oloko probability is always a safe-guide to sacred sanctuary of belief. ……………..

 

I accept their testimony that under Oko native law and custom no Oloko ever wears a crown and a fortiori no sub-chief who is subordinate to Oloko can ever wear a crown under that custom I also find as a fact from the evidence of the plaintiffs and only Witness and which evidence I accept in entirety that Inishan is a ward in Oko hence it is called Inishan-Oko. I also find as a fact that the defendant is a ward head in Oko.

 

These findings were confirmed by the Court of Appeal. The appellant has shown no special circumstances that would justify disturbing them. It was for this reason, and the more detailed reasons in the lead judgment that I dismissed the appeal.

 

 

Judgement delivered by

Uwais. J.S.C.

 

I have had the privilege of reading in draft, the judgment read by my learned brother, Obaseki, J.S.C. As it was for the same reasons that I agreed, on the 27th day of November, 1989, that the appeal should be dismissed with N500.00 costs to the respondents. I adopt the reasons as mine and do not wish to add anything more.

 

 

Judgement delivered by

Karibi-Whyte. J.S.C.

 

On 27/11/89, after oral argument of counsel in this appeal, based on the briefs filed, and after considering the arguments and the record of appeal, I summarily dismissed the appeal of the appellants with N500.00 as costs to respondent and indicated that I will give the reasons for so doing today. This I proceed to do hereunder.

 

I have read the reasons for judgment of my learned brother Obaseki, J.S.C., in this appeal, with which I agree entirely. I only wish to state my own reasons which in certain respects are approached from a slightly different angle.

 

Respondents to this appeal, who are the plaintiffs in the action in the High Court, are all members of the Oko Community. They claim, and this was the finding of the trial Judge, affirmed by the Court of Appeal, that appellant, who is the head of the Inishan Community, is a member of the Oko Community. Appellant has denied this claim arguing that his village Inishan is different, and that they are autonomous and owe no allegiance to Oko

 

Oba Joshua Ogunrinde, the 1st plaintiff is the Head of all the Oko Community. The 2nd, 3rd and 4th plaintiffs are all subordinate Chiefs of the Oko Community, and owe allegiance to the 1st plaintiff. They all claim that the defendant is one of them being only the tenth in the hierarchy. The disagreement between the plaintiffs/respondents and the defendant/appellant, stems from the insistence of the appellant, regarded by the respondents as one of them and the tenth in the hierarchy, contrary to their custom to wear a crown. This is a privilege conceded to none of them, including the 1st plaintiff/respondent, the overall superior of all Oko Chiefs. When appellant could not be persuaded by his compeers to abide by the accepted native law and custom not to wear a crown, the plaintiff resorted to this expedient. They brought this action.

 

Plaintiffs/respondents commenced an action by writ of summons in the Ilorin High Court against the defendants, for

 

1.      declaration that the defendant being a ward head of Inishan within Oko Village in Kwara State is not entitled under Oko native law and custom to wear any crown without the consent and approval of the Oloko and his Chiefs;

 

2.      an order of injunction on the defendant not to wear any crown without the consent and approval of Oloko of Oko and his Chiefs.

 

The issue was determined by the trial Judge, Oyeyipo, J., after hearing, on the issue joined on pleadings. The trial Judge, in a well considered judgment granted both the declaration and the injunction asked for. In his judgment the learned trial Judge made the following findings of fact.

 

1.      That Inishan is a Ward in Oko hence it is called Inishan-Oko and that the defendant is a sub-chief under the Oloko.

 

2.      Under Oko Native law and custom no Oloko ever wears a crown and a fortiori no sub chief who is subordinate to the Oloko can ever wear a crown under that custom.

 

3.    That the defendant is a Ward Head in Oko.

 

4.    That the Oko Community accepts the hegemony of the Oloko. \

 

In granting the claims, the learned Judge observed.

 

I am satisfied that the granting of the declaration hereby sought by the plaintiffs will settle the issues in controversy among the parties herein as it will restore the status quo which in the light of the evidence I have accepted in this case has always existed between an Oloko of Oko and an Enitshan of Inishan Ward in Inishan-Oko.

 

It is this status quo which the defendant has sought to destroy in his defiance of the hallowed native law and custom of Oko as regards the issue of wearing a crown.

 

The defendant dissatisfied with this judgment appealed against it to the Court of Appeal. He filed eight grounds of appeal ranging from an attack on the findings of fact by the learned Judge, the issue of the parties being bound by their pleadings, and refusal to visit Inishan and Oko, and the grounds of law relating to the establishment of a cause of action.

 

Both Mr. Ijaodola for the appellant and Chief Olorunnisola for the respondent at the Court of Appeal filed briefs of argument, which they relied upon, in their oral argument before the court.

 

In his oral argument. relying on section 236 of the Constitution 1979, Mr. Ijaodola submitted that plaintiff's claim did not disclose any cause of action; having not indicated what plaintiffs would lose materially in the defendant wearing a crown. Mr. Olorunishola's reply was that a claim for a declaration need not show that plaintiff has a cause of action beyond the claim. He pointed out in answer that by wearing a crown defendant would be eroding the authority of the Oloko and thus "threatening the composite existence of the Unit". The appellant would be claiming a status higher than that of the Oloko in the hierarchy of traditional status in Oko village.

 

The Court of Appeal considered the findings of fact of the trial Judge and came to the conclusion that they were based on the observation of the witnesses and their demeanour, the appraisal of which is within the peculiar province of the Judge of the Court of trial who saw and heard them. The Court of Appeal was therefore in this case not in any position to interfere with the findings, since the conclusions and inference drawn by the trial IJudge flow naturally from the evidence before him. The Court of appeal pointed out that it will not disturb a finding of fact unless it was satisfied that such a finding is unsound. And in this case Akpata, J.C.A., said:

 

......I do not see how the trial Judge can be faulted. It is clear from the printed records that the learned trial Judge could not have come to a different conclusion. His decision was based to a large extent on the demeanour of witnesses and, in a small degree, on factors from which inference could be drawn. For instance, whether or not Inishan is a part of Oko because it is called Inishan-Oko was not, standing on its own, an issue that could be resolved on the demeanour of witnesses. I hold the view that the learned trial Judge drew the right inference in the circumstance of the case.

 

On the issue whether the plaintiffs had a cause of action, the Court of Appeal held that the question whether the appellant was entitled under native law and custom of the Oko people to wear a crown was not hypothetical, and it is not a matter in which the respondents have no vested interest. The trial Judge rightly exercised his discretion to grant the claim before him.

 

On the issue whether the trial Judge was in error in not going to visit both Oko and Inishan, the Court of Appeal argued that it was not a matter raised on the pleadings. It was also not a matter canvassed in evidence in court and was not an issue in the case. The trial Judge was therefore right not to have embarked on the exercise. All the grounds of appeal having failed, the appeal was accordingly dismissed.

 

Appellant still dissatisfied has now appealed to this court. There are six grounds of appeal. Four of the grounds of appeal, namely 2, 3 and 4 challenged the findings of facts of the two courts below. The only ground of law is ground 1 which relates to the existence vel non of cause of action in the plaintiffs. They are in reality a repetition of the grounds of appeal in the court below.

 

I do not consider it necessary to reproduce the grounds of appeal which have been adequately set out in the judgment of my learned brother, Qbaseki, J.S.C. I shall only summarise them for the purposes of the opinions I shall express in this judgment.

 

Counsel filed their briefs of argument on which they relied in their oral argument before us. Mr. Ijaodola, counsel to the appellants formulated five issues as arising from the grounds of appeal filed. Chief Olorunnisola formulated two issues which could conveniently fall within the first and fourth issues formulated by learned counsel to the appellant. The issues formulated are as follows -

 

1.     Whether or not the plaintiffs had a cause of action

 

2.    Whether or not an appellate court could reverse findings of fact of a trial court based entirely on demeanour;

 

3.     Whether or not Inishan is a ward in Oko Village and

 

4.     Whether or not it was in line with the custom of Inishan for the defendant's family to wear a crown as suggested by the name of the defendant's ancestor Tewogbade.

 

5.     Whether or not the action was properly constituted in view of the A fact tbat Inishan Community was not a party at the Ilorin High Court or alternatively whether or not the Inishan Community was bound by the decision that Inishan was a ward of Oko Village.

 

I shall now consider the arguments addressed to us on each of the above issues.

 

On issue No.1, Mr. Ijaodola learned counsel to the appellants relying on the old case of Adanji v. Hunvoo 1 N.L.R. 74 at p.78 submitted that since plaintiffs had not given evidence of any loss or gain or benefit to them by virtue of the action of the defendant complained, they have no cause of action. He likened this claim to that in Adanji v. Hunvoo (supra) where chieftaincy was defined as a mere dignity, a position of honour, of primary among a particular section of the native community, and therefore does not give rise to a cause of action. Learned counsel submitted that section 236 of the Constitution 1979 has not altered the legal position. He submitted further that the view by the Court of Appeal that the defendant wearing a crown without the authorisation of the 1st plaintiff was against the native law and custom of Oko; would erode the authority of the 1st plaintiff and "threaten the compoisite existence of the unit" was erroneous. Learned counsel then pointed out from paragraph 13 of the statement of claim why plaintiffs took the action. That is that all the other chiefs were opposed to the defendant wearing a crown because it is against their native law and custom.

 

Chief Olorunnisola learned counsel to the respondents submitted that respondents relied on their pleadings that the appellant was in violation of their tradition, and that such violation would adversely affect law and order of the Oko community and the hierarchy of the plaintiffs/respondents. Learned counsel submitted the plaintiffs/respondents have an interest to protect the hierarchy of authority in their community and the composite existence of the Oko community. It was also submitted the threat to or interference with this hierarchy of authority gave rise to the cause of action. Learned counsel submitted that this interest is protected under section 236 of the Constitution 1979. Accordingly the plaintiffs are not mere busy bodies who have no right of action. They have a locus standi.

 

Citing section 35 of the High Court Law of Kwara State and Order 15 Rule 16 RSC of England, it was submitted that the court can make a declaratory order even whether or not there is a cause of action. Several decided cases were cited in support of this proposition.

 

I think it is convenient to dispose of this issue before considering the others. The main thrust of this issue which is developed from ground 1 of the grounds of appeal is that since the claim to stop the appellant from wearing a crown is regarded as a chieftaincy dispute, which was in Adanji v. Hunvoo (supra) held to be a mere dignity which conferred no proprietary right respondents have no locus standi, since the right claimed did not give rise to a cause of action.

 

It is necessary to explain the misconception which has arisen from the old case of Adanji v. Hunvoo. In Adanji v. Hunvoo (supra), the claim was for the title of the Fiyento of Badagry, which undoubtedly is a mere dignity. The accompanying privileges and rights were not in issue. In the instant case, respondents are claiming the exercise of a right consistent with the native law and custom of Oko to restrain the appellant from conducting himself in a particular manner namely to wear a crown, contrary to their law and custom.

 

It seems to me that the gravamen of the issue lies in the nature of the claim of the respondents. The evidence before the court, and consistent with the statement of claim and found by the trial Judge was that by the native law and custom of the Oko people no chief is entitled to wear a crown. The 1st respondent is the paramount Chief of the Oko people to which the appellant belongs. It is in the interest of the 1st respondent and all the respondents that the custom is preserved and protected.

 

It seems to me indisuptable that the native law and custom of the Oko people has recognised the custom which prevents chiefs from wearing crowns. The same custom has recognised the right of the respondents as custodians of the laws and custom of the people to protect such rights. This custom has not been described as repugnant to natural justice, equity and good conscience. The policy of the legislation is that the courts will enforce the observance of native laws and custom in so far as they have not been varied or suspended by law - See Laoye v. Oyetunde (1944) A.C. 170. The courts are empowered under 5.34 of the High Court Law to enforce native laws and customs wherever they are applicable. Thus where the rights sought to be enforced arise from native law and custom, they came within the legal rights referred to in section 236 of the Constitution 1979 in respect of which the High Court has jurisdiction.

 

One then may ask what this right is? As I have said, it is an interest recognised and protected by the law. In this regard I will rely and adopt Salmond's description of a right. He says that every right involves a threefold relation in which the owner of it stands -

 

(i)    It is a right against some person or persons

 

(ii)   It is right to some act or omission of such person or persons

 

(iii)  It is a right over or to something to which that act or omission relates.

 

- See Salmond on Jurisprudence Tenth Edition at p.234. See also Paton - Jurisprudence 3rd Ed. p.250. Respondents are claiming the right to determine whether appellant or any other chief can wear a crown. This is a right in respect of the act over the right to wear a crown which appellant purports to claim. This interest of the respondents as I have already stated is recognised by native law and custom and protected by the Constitution. This is the characteristic mark. It is therefore a legal right accompanied by the power of enforceability by the instituting of legal proceedings.

 

The above analysis of the nature of the interests of the respondents in the claim of the appellant to wear a crown, and of the recognition and protection of such interest by the law, the respondents have a legally enforceable interest which confers upon them the right to bring the action. Counsel to the appellant is therefore clearly wrong to contend that respondents have no right to a cause of action.

 

In many recent decisions of this court, the expression "cause of action" has been defined. Quite simply put, "a cause of action" is the factual situation which enables one person to obtain a remedy from another in court with respect to an injury - See Att -General of Oyo State v. Bello & Ors. (1986) 5 N.W.L.R. (Pt.45) p.828. See also Thomas v. Olufosoye (1986)1 N.W.L.R. (Pt. 18) 669.

 

The cause of action of the respondents as pleaded in paragraphs 1,2,3, 4, 7, 8, 9, 11, 13 of their statement of claim are as follows -

 

1.    The 1st plalintiff is the Oba Oko, the Oloko in Irepodun Local Government of Kwara State.

 

2.    The Oloko of Oko is the only Oba in Oko land and under the Oloko are the following Chiefs in the order of their seniority:-

 

(a)    The Esa of Odo Oko Ward who is the second plaintiff

 

(b)    Aro of Irapa Ward who is the third plaintiff

 

(c)    Odofin of Inishan Ward

 

(d)    Asanlu of Owaro Ward

 

(e)    Ipetu of Irapa Ward

 

(f)    Oye of Iwoye Ward

 

(g)   Oye of Odo Oko Ward

 

(h)   Edemorun of Idemorun Ward - the fourth plaintiff

 

(i)    Enitshan of Inishan Ward, the defendant

 

(j)    Olowa of Owaro Ward

 

(k)   Onigbin of Odo Aba Ward.

 

3.     The Enitshan of Inishan Ward is the tenth in order of seniority of the Oba and Chiefs in Oko.

 

4.     There are seven wards in Oko made up as follows:

 

(a)    Oko Isale or Okerigho consisting of Irapa, Inishan and Iwoye

 

(b)    Four other wards at Oko-Oke.

 

7.     By the tradition and custom of Oko people of which Inishan is part no chief ever wears a crown.

 

8.     In contravention of age long tradition of Oko people and in defiance of the Oloko the defendant has made several attempts to crown himself.

 

9.     In September, 1978 the defendant made an attempt to crown himself and he was reported to the Irepodun Local Government and the Omu-Aran Police Command.

 

11.   The 1st plaintiff has suzerainty over all the wards comprising Oko.

 

13.    All the other chiefs, senior to the defendant and those junior to him are against the defendant crowning himself because it is untraditional and it has no customary law or practice to support it.

 

These averments established not only the hierarchy of authority in the Oko people as regards the wearing of crown by their chiefs. They above all established the attempt by the appellant to wear a crown in contravention of the native law and custom of the people and in defiance of the established hierarchy of authority.

 

These averments also show that the appellant has given respondents their cause of complaint to the court. The contention of learned counsel for the appellant that respondents did not plead or prove that they would lose anything by his conduct is clearly not correct. Chief Olorunnisola, learned counsel to the respondents has pointed out, and I entirely agree, that the conduct of appellant in flagrant disregard of established native law and custom and defiance of the 1st respondent by wearing a crown was potentially, if not stopped causing the Oko people loss of stability, peace and harmony, and particularly undermining the authority of the 1st respondent.

 

I therefore see no substance in ground 1, and the 1st issue is answered in the affirmative.

 

I now turn to issues 2, 3 and 4 which flow from grounds 2, 3 and 4.

 

It seems to me that the issues raised herein involve mixed law and fact. It is well settled law that issues of fact are best settled by the trial courts where issues of fact are largely decided. This is because the court of trial has had the opportunity of determining the credibility after seeing, hearing and observing the demeanour of the witnesses before them. Thus appellate courts which deal with the printed record and cold facts should be very wary in substituting their own views of the facts of a case for those of the trial court - See Ebba v. Ogodo  [1984] 1 SCNLR 372. However, this proposition does not affect issues relating to the evaluation of the evidence of witnesses. In such cases, the appellate court is in as much a favourable position as the court of trial - See Onowan v. Iserhein (1976) 9-10 S.C. 95; Shell-BP v. Pere Cole & Ors. (1978) 3 S.C. 183.

 

The Court of Appeal adopted the well trodden path of the courts by refraining from interferring with findings of facts based on the credibility of witnesses. There is overwhelming evidence that Inishan claimed by appellant as a separate autonomous village is a constituent part of Oko community. The evidence of native law and custom relating to the wearing of crown by chiefs in Oko Community remained uncontroverted. The innovation attempted by appellant to wear a crown has no precedent. These were clear findings by the trial Judge and accepted by the court below.

 

Thus the facts sought to be reversed are concurrent findings of facts in the two courts below. This court has repeatedly laid it down that it will not interfere with concurrent findings of facts, except where the findings are shown to have been perverse or were arrived at in violation of some principles of law or procedure. Appellant has not succeeded in discharging this burden however much he tried. This court will not therefore interfere with the findings on which the judgments of the courts firmly stand. The findings are therefore further affirmed - See Enang v. Adu (1981) 11-12 S.C. 25 at p42, Lokoyi v.Olojo (1983) 8 S.C. 61, [1983] 2 SCNLR 127; Alade v. Alemuloke (1988)1 N.W.L.R. (Pt.69) 207.

 

Grounds 2 and 3 are hereby dismissed.

 

Issue No.4 rests on the meaning of the name of the ancestors of the appellant as a claim to his right to wear a crown. Apart from the fact that this is unsafe ground to rely why appellants still live in a community where his ancestry is subordinated to some others in that community in the hierarchy authority, the political hegemony of a descendant of Oduduwa in that community was not established by any evidence before the learned trial Judge. The Courts below were right in rejecting the claim which I hereby also reject. It is a claim in rejecting the claim which I hereby also reject. It is a claim made without foundation and is clearly untenable. The ground of appeal is therefore misconceived.

 

I refer finally to the two additional grounds of appeal. The grounds tempt to fault the judgment on the ground that the action was not properly constituted since the Inishan Community, appellant’s community, was not made a party to the action. I regard this ground as a misunderstanding of the complaint of the respondents' and the nature of the declaration and the reliefs sought. No averment in the pleadings complained against the conduct of the Inishan Community. The complaint was against the appellant and his insistence and intransigence on wearing a crown in defiance of the hierarchy of the established and accepted native law and custom What the Oko Community has accepted is their law and custom. It will require the Community as a whole unanimously or by persuasion through the introduction of something different to change it. But before any such change it remains their law- See Lewis v. Bankole (l908) 1 N. L. R. 81.Since appellant is claiming the right to wear a crown, the onus is on him to satisfy the court that there is a modification of Oko native law and Custom to that effect and in his favour-See Eshugbayi Eleko v. Officer Administering the Government of Nigeria (~93I) A.C. 662. The Inishan Community has not been alleged to have violated the native law and custom of the Oko Community; only the appellant did. There is therefore only a cause of action against the appellant. It would have been wrong to have joined the Inishan Community. The action is therefore properly constituted. The additional ground 1 fails. In the light of this, ground 2 also fails since the Inishan community was not alleged to have made any claims for their Chief to wear a crown on their behalf contrary to the established custom of the Oko Community.

 

For the above reasons, I dismissed this appeal on the 27th November, 1989.

 

 

Judgement delivered by

Agbaje. J.S.C.

 

 

On 27th November, 1989 I dismissed the appellant's appeal summarily. I indicated then that I will give my reasons today for doing so. I now proceed to do so.

 

The appellant was the defendant in an action instituted against him by the respondents as plaintiffs in a Kwara State High Court holden at Ilorin. The plaintiffs, Oba Joshua Ogunrinde, the Oloko of Oko and three others sued the defendant Chief Adenigba Afolayan, the Enishan of Inishan ward, claiming against him as follows:-

 

The plaintiffs are seeking agaist the defendant a declaration that:-

 

1.     the defendant being a ward of Inishan within Oko village in Kwara State is not entitled under Oko Native law and custom to wear any crown without the consent and approval of the Oloko of Oko and his chiefs.

 

2.     the defendant should not wear any crown without the consent and approval of the Oloko of Oko and his chiefs.

 

Pleadings were ordered, filed and delivered. The case proceeded to trial before Oyeyipo, J. as he then was. Having heard the parties and their witnesses the learned trial Judge found in his judgment dated 31st March, 1981 for the plaintiffs. In his judgment he made the following findings:-

 

I accept their (plaintiffs') testimony that under Oko native law and custom no Oloko ever wears a crown and a fortiori no sub-chief who is subordinate to Oloko can ever wear a crown under that custom. I also find as a fact from the evidence of the plaintiffs and their only witness and which evidence I accept in its entirety that Inishan is a ward in Oko hence it is called Ile Inishan-Oko. I also find as a fact that the defendant is a ward head, in Oko. Clearly the evidence of the plaintiffs and their witness which I have accepted in this case leaves me in no doubt that Oko society is clearly monarchical in its political complexion and has fully evolved into a Chiefship in that all and sundry at Oko accepts the hegemony of the Oloko.

 

On the other hand I find the defendant and his only witness to be unreliable witnesses ………………………

 

I find the evidence of the defendant that he inherited his right to wear the crown from one Tewogbade to be unreliable and I reject that evidence ………………………

 

It is this status quo which the defendant has sought to destroy in his defiance of the hallowed native law and custom of Oko as regards the issue of wearing a crown. In short the plaintiffs' have amply proved their case on the preponderance of evidence against the defendant and accordingly I hereby grant the plaintiffs the declaration sought by them as per their writ of summons herein.

 

Judgment is accordingly entered in favour of the plaintiffs.

 

It is not contended before us that the findings of fact of the learned trial Judge were not supported by the Statement of Claim of the plaintiffs. Indeed a perusal of this document shows that the facts found by the learned trial Judge, each of them were supported by the plaintiffs' pleading. The main contention of counsel for the appellant before us and in the lower court appears to be that the plaintiffs had no cause of action against the defendant in the present action instituted by them against him. Halsbury's Laws of England Third Edition Volume 1 page 6 Article 9 tells us the meaning of the expression "Cause of Action": -

 

9.     Popular and strict meanings. The popular meaning of the expression "cause of action" is that particular act on the part of the defendant which gives the plaintiff his cause of complaint 

 

(a)    There may, however, be more than one good and effective cause of action arising out of the same transaction 

 

(b)    Strictly speaking, "every fact which is material to be proved to entitle the plaintiff to succeed, every fact which the defendant would have a right to traverse" 

 

(c)    forms an essential part of "the cause of action," which "accrues" upon the happening of the latest of such facts 

 

(d).   Consequently, in any particular case,"the cause of action," strictly so called can only be said to arise within a certain local area, in which case (as it is often stated somewhat tautologically) the "whole" cause of action so arises.

 

There can be no doubt in my view that on the facts pleaded and found proved by learned trial Judge the plaintiffs have established not only the particular act on the part of the defendant which gave them their cause of complaint against him, they have also established every fact which was material to be proved by them in order to succeed on their claims against the defendant. This being so, I am satisfied that the plaintiffs have a cause of action against the defendant.

 

There is also the point made by counsel for the defendant before us that this action between the plaintiffs and the defendant alone was not properly constituted in that a necessary party i.e. the Inishan Community, was not made a party to the proceedings by the plaintiffs. Counsel for the plaintiffs has not shown in what way the presence of Inishan Community before the court was necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the present action. For my part, I cannot sav that the presence of Inishan Community before the court is necessary before the claims of the plaintiffs against the defendant can be effectually and completely decided. In short I see no substance in this argument of counsel for the plaintiffs.

 

The findings of fact made by the trial court were affirmed by the Court of Appeal. I can find no justifiable reason to interfere with the concurrent findings of fact.

 

It is for the above reasons and the fuller reasons given in the lead judgment of my learned brother, Obaseki .J.S.C. which I have had the privilege of reading in draft, that I dismissed the appellant's appeal on 27th November, 1989.

 

Appeal Dismissed.

 

Counsel

 

J. O.  Ijadola

With Chief S. F. Odeyemi

  ........

For the Appellant

Chief P. A. O. Olorunnisola

  ........

For the Respondents