Supreme Court confirms Olubaka's paramountcy
Ayodele Ayetigbo
Ayodele Ayetigbo
Saturday, December 26, 1998
>From Banji Ayoola, Akure
THE Supreme Court has established the paramountcy of the Olubaka of Oka, Ondo State,
Oba Adebori Adeleye, thus laying to rest a 94-year-old chieftaincy tussle which had lingered
between the royal father and another traditional ruler, the Asin of Oka-Odo, Oba L.B.
Omoborinola.
In a lead judgment delivered by Mr. Justice Idris Legbo Kutigi on December 18, the court
upheld the earlier dismissal of an appeal filed by Oba Omoborinola the plaintiff, against the
dismissal of his claims by an Akure High Court.
The plaintiff had sued Oba Adeleye and three other defendants including the Military
Governor of Ondo State, the Attorney General and Commissioner for Justice and
Commissioner for Local Government and Chieftaincy Affairs before an Akure High Court.
In his statement of claims, the plaintiff sought declarations that:
The Asin is the traditional Oba, head chief and paramount ruler of Oka in the Akoko
South Local Government Area;
The findings and recommendations of the Ogunleye Judicial Commission of Inquiry
into the headship tussle between the Olubaka and the Asin of Oka are contradictory,
against Oka native law, customs and tradition and are therefore against the rules of
natural justice, illegal, null and void;
The Ondo State Government White Paper based on it is therefore illegal, null and
void; and
An injunction restraining the defendants, their servants and or agents from acting on
the report, findings, recommendations and White Paper of any chieftaincy declaration
based thereon in appointing and installing a new Olubaka of Oka."
But in a reserved judgment at the conclusion of evidence following which counsels on both
sides addressed the court, the trial judge dismissed the plaintiff's claims in their entirety.
The claims were dismissed on the ground that "all the legs of claim in the amended statement
of claim... failed."
However, not satisfied with the judgment of the High Court, the plaintiff appealed to the
Court of Appeal holden at Benin City. The Olubaka, hereinafter referred to as the fourth
defendant, also cross-appealed.
But in a unanimous judgment delivered on June 23, 1995, the Court of Appeal also dismissed
the plaintiff's appeal and the cross appeal by the defendant.
In the Court of Appeal, the plaintiff formulated seven issues for determination, which the
court reduced to three:
Whether it was possible for the learned trial judge to have resolved the question of
usurpation of paramountcy, without recourse to the rule in {Kojo II Versus Bonsie
(1957) IWLR 1223 at 1226};
If the answer to issue (1) above is in the affirmative, whether the final verdict would
have been in favour of the plaintiff; and
Whether, from the pleadings and evidence adduced, the learned trial judge was right
by holding that both the Report of the Ogunleye Commission of Enquiry and the
White Paper on it were valid.
Aggrieved by the decision of the Court of Appeal, the plaintiff further appealed to the
Supreme Court.
According to the facts of the case, as noted by Mr. Justice Kutigi, the plaintiff is the Asin of
Oka, a traditional name for the Oba of Oka from time immemorial.
The first Asin who came from Ile-Ife founded and settled in the area traditionally associated
with and named Oka today. He settled at Oka-Odo on arrival from Ile-Ife.
Thereafter, the Oke-Oka people came and settled at Ibaka Quarters. Their leader known as the
Olu-Ibaka was made an emissary between the Asin and the Colonial District Officer who was
then stationed at Kabba province as Oka then constituted a part of Kabba province.
But sometimes between 1918 and 1919, the then Asin was misled by the then Olubaka into
believing that the District Officer would be visiting Oka to punish the Asin for an undisclosed
offence.
With this, the Asin could not come out to receive the District Officer who instead gave the
Staff of Office, originally meant for the Asin, to the Olubaka who then became the Oba and
paramount ruler of Oka.
The plaintiff claimed that his predecessors-in-title and his people protested unsuccessfully to
the District Officer.
The protest continued until Oka was transferred to Owo in the then Western Region of
Nigeria, leading to the setting-up of two Administrative Commissions of Inquiry whose
findings were inconclusive.
Finally, the Ondo State government set up the Ogunleye Commission of Inquiry into the
matter. Again, its report and recommendation were also unacceptable to the plaintiff because
the commission further endorsed the over-lordship of the Olubaka over the Asin.
Consequently, the aggrieved plaintiff instituted this legal action.
On the other hand, the fourth defendant contended that Oka was founded by Okikan, the first
Olubaka who came from Ile-Ife with a crown.
He further contended that the Asin's quarter in Oke-Odo was one of the 15 quarters or
settlements forming the Oka of today.
According to him, the Olubaka as of right, received the staff of office from the Colonial
District Officer from Kabba in 1904 or 1905 and thus became the paramount ruler.
He continued that in an unbroken chain of succession, the Olubakas had reigned as paramount
rulers in Oka over 35 minor chiefs where the ancestors of the plaintiff ranked third after the
Olusin of Owalusi who is the second in command to the Olubaka.
He therefore affirmed that "the protests of the Asins and their people were lacking in merit
hence they were always dismissed by all the authorities before whom the issue had been
placed."
The following submission were made on behalf of the plaintiff:
"That the Court of Appeal having agreed that it was inappropriate for the learned
judge to have invoked the {Rule in Kojo Versus Bonsie} in resolving the
contradictory traditional evidence in the case, it should have allowed the appeal and
thereafter make appropriate consequential order and not to have resorted to exploring
other grounds not relied upon by the parties to affirm the judgment;
"That the Court of Appeal not being a court of first instance was wrong to have
observed that the plaintiff did not prove his case or that the evidence adduced by him
was weak, when he failed to call any witness about the alleged wrong doing when the
staff of office was given to the Olubaka by the Colonial District Officer or that; there
was no evidence showing that people in Oka paid taxes to the Asin either as a final
authority or for transmission to Colonial District Officer, or that there was no
evidence that the Asin had any direct dealing with the District Officer before the
handing over of the staff of office to the Olubaka;
"That proper consideration was not given to Exhibit "N" as well as Exhibit "C-C1"
which would have tilted the scale in favour of the plaintiff."
Many authorities were cited. They included: {Olubode Vs. Salami (1985) 2 NWLR (PT.7)
292; Sanusi Vs. Modu (1994) 5 NWLR (PT.347) 732; Union Beverages Limited Vs. Pepsi
Cola Int. Limited (1994) 3 NWLR (PT.330) 1; Bello Vs. Alao (1989) 3 NWLR (PT).108)
118; Ikabala Vs. Ojosipe (1988) 4 NWLR (PT.86) 119; Udo Vs. Ukupa (1981) 5 NWLR
(PT.191) 465;} and {Atolagbe Vs. Shorun (1985) 1 NWLR (PT.2) 360.}
On their own, the first, second and third defendants in their joint brief of argument responded
that:
...While it may be unnecessary for the High Court to have resorted to the {Rule in
Kojo Vs. Bonsie}, it was not out of place for that court to have made reference to
events since 1905 event of the handing over of the staff of office to the Olubaka to
the present day which should his superiority over the Asin/plaintiff;
"The Court of Appeal did not dismiss plaintiff's case on grounds other than those
found by the trial High Court. It only expressed its views as to the type of evidence
needed by the plaintiff to have succeeded but which were lacking;
"On the totality of evidence, documentary and otherwise, adduced by the plaintiff in
the High Court, he did not make out any case against the defendants."
Authorities cited included Imonikhe Vs. Attorney General of Bendel State (1992) 6NWLR
(PT.248) 396; Eguamwense Vs. Amaghizemwen (1993) 9 NWLR (PT.312); Kodilinye Vs.
Odu (1935) 2 WACA 336} and {Eholor Vs. Osayande (1992) 6 NWLR (PT.248) 524.}
On behalf of the fourth defendant, it was submitted that the Court of Appeal was right when
it said that the High Court should have dismissed the plaintiff's case on the basis the plaintiff
who asserted did not prove, and that there was no need for it to have resorted to the {Rule in
Kojo Vs. Bonsie}.
Besides, it was submitted that "the Court of Appeal did not confirm the decision of the High
Court on grounds other than those relied upon and decided by the High Court which properly
evaluated the evidence led before it including Exhibits C-C1 and "N" amongst others."
It was also stressed that "the plaintiff failed woefully because he led no evidence on the
alleged usurpation of paramountcy by the Olubaka in or about 1905."
Chief Wole Olanipekun (SAN), together with Mr. B. Ola Olanipekun, Mr. Segun Ogodo and
Mr. Femi Balogun stood in for the plaintiff appealant.
Mr. Oluwarotimi Akeredolu (SAN) the state Attorney General and Commissioner for Justice,
served as counsel to the first, second and third defendants.
On his own, the fourth defendant was represented by Chief C.O. Ihensekhien (SAN), Mr.
M.O. Ighodalo, Mr. A.A. Izinyou, Mr. N.I.R. Ihensekhun, Mr. G.O.K. Ebvur, and Mr.
Gbenga Ajisafe.
In determining whether or not the plaintiff's case was properly dismissed having regard to the
evidence and the law, Mr. Justice Kutigi, noted that the plaintiff had the onerous duty of
establishing his claim before the court, "while the defendants in the absence of a counter-claim,
had no duty to answer more than what was pleaded."
He endorsed the findings made by the trial judge that both the plaintiff and the fourth
defendant came from the Ife and that they came at different times. Besides, he corroborated
other findings by:
Both the plaintiff and defendant settled in different parts of the hills...
The whole of the area was under the administration of Kabba province;
Both the Asin and Olubaka came from Ile-Ife with their crowns;
When the Asin came, he settled at a place called Odo-Iju now Odo-Oka. But he
rejected the stories that the Olubaka was a palace domestic to the Asin or that the
Olubaka was the one who gave land to Asin;
The Olubaka came with his people and settled at Oke-Oka.
According to Mr. Justice Kutigi, since there was no appeal against any of the above findings
of the trial High Court, "it should have been clear to the learned trial judge by now that after
the above findings which were unfavourable to the plaintiff; that the bottom had been knocked
out of the plaintiff's ease."
He ruled: "In other words, the edifice on which every other thing was placed had collapsed,
the Court of Appeal was therefore absolutely right in my view when it said in its judgment
that "plaintiff's case therefore should have been dismissed outright without invoking the
principle in {Kojo II Vs. Bonsie}."
He further ruled that: "So that the plaintiff having failed to prove his case, the learned trial
judge had no alternative but to have dismissed the claims in their entirety."
Mr. Justice Kutigi further ruled that the Court of Appeal was right when it said: "In other
words that there was insufficient evidence (or lack of evidence) to have enabled the learned
trial judge decide the case one way or the other without recourse to the rule in {Kojo II Vs.
Bonsie}.
He said that there was nothing on record to show that the Court of Appeal confirmed the
judgment of the High Court on grounds other than those relied upon by the trial covert.
Also, he confirmed as justified the findings by the trial judge that:
The Olubaka was the president of the Native Court;
The Olubaka is the prescribed authority for the whole of Oka land
The Olubaka represented Oka in the former council of chiefs in the old Western
Region and now represents Oka in the Council of Obas in Ondo State
The Olubaka is listed number one out of the 11 Obas in Akoko South Local
Government while the plaintiff Asin is not listed as one of the Obas; and
The plaintiff Asin is a kingmaker to the Olubaka chieftancy.
According to him: "The plaintiff's case was properly dismissed by both the trial High Court
and the Court of Appeal having regard to the evidence and the applicable law."
Although Mr. Justice Kutigi noted that the staff of office appeared to have been wrongfully
or unlawfully obtained by the Olubaka from the then Colonial District Officer, yet, "the
plaintiff who raised the issue, however, led no evidence whatsoever in proof thereof." He
therefore considered the issue abandoned.
Also, he agreed completely with the judgment of the trial judge that "there was no
contradiction whatsoever either between the findings and recommendations of the Ogunleye
Judicial Commission of Inquiry inter se.... or between them and the Oka Native Law and
Customs as already expounded in the body of this judgment."
He ruled: "I agree completely, I need hardly say that nothing stops Oyo/Ondo State
government from acting on its White Paper Exhibit B-B1, based on the Ogunleye Judicial
Commission of Inquiry which it had accepted."
Mr. Justice Kutigi therefore dismissed the appeal and awarded N10,000 costs against the
plaintiff and in favour of each of the four defendants.
Four other justices of the court including Mr. Justice Muhammadu Uwais, (Chief Justice of
the Federation), Mr. Justice Anthony Iguh, Mr. Justice Sylvester Onu and Mr. Justice Bashir
Wali, who together with Mr. Justice Kutigi, heard the appeal also concurred with the lead
judgment.