ABOLAJI & ANOR v. CHAIRMAN IREPODUN LOCAL GOVT & ORS (2020)

ABOLAJI & ANOR v. CHAIRMAN IREPODUN LOCAL GOVT & ORS

(2020)LCN/14118(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Monday, March 02, 2020

CA/IL/165/2018

Before Our Lordships:

Ibrahim Mohammed Musa Saulawa Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

PRINCE GANIYU OYENIYI ABOLAJI 2. PRINCE TAJUDEEN OLASUNKANMI AIYEGUSI (SUING FOR THEMSELVE AND ON BEHALF OF THE ENTIRE MEMBER OF ILE OBA, OKE-OLA, ORO) APPELANT(S)

And

CHAIRMAN IREPODUN LOCAL GOVERNMENT 2. IGBOMINA,EKITI TRADITIONAL COUNCIL 3. COMMISSIONER FOR CHIEFTANCY AFFAIRS, KWARA STATE 4. ATTORNEY-GENERAL, KWARA STATE 5. THE GOVERNOR, KWARA STATE 6. ALHAJI RAFIU AJIBOYE 7. CHIEF MARTINS TEJUMOLA AFOLAYAN 8. CHIEF JOSEPH ADEBAYO 9. CHIEF LADI KAYODE AFOLABI IKUJENBOLA 10. CHIEF RAPHEAL OYENIYI BABATUNDE 11. CHIEF MOHAMMED ODEWOLE ATOYEBI 12. CHIEF SAMUEL AYODELE ADEWOYE 13. ELESA OF ORO RESPONDENT(S)

RATIO

WHETHER OR NOT NATIVE LAW AND CUSTOM MUST BE STRICTLY PROVED

It is trite that the Appellants who alleged that the 7th – 13th Respondents, before whom the 2nd Appellant appeared for consideration (selection) were not the proper Kingmakers known to Native Law and Custom of Oro Land, have an onerous duty to prove their allegation or assertion. See IROAGBARA VS. UFOMADU (2009) 6SCM 109; ARE VS. ADIDA (1967) ALL NLR 158 @ 161 – 126; MAXIMUM INSURANCE CO. LTD VS. OWONIYI (1994) 3 NWLR (Pt. 331) 178 @ 192; OBA R.A.A OYEDIRAN OF IGBONLA VS. H.H. OBA ALEBIOSU II (1992) 7 SCN 3, 187 @ 193 – 194, wherein the Apex Court aptly held: In areas of customary law and traditional evidence, it is good law that it is desirable that a person other than the person asserting it should also testify in support thereof. Thus is only common sense because native law and custom must be strictly proved. It will therefore be unsafe to accept the statement of the only person asserting the evidence of custom as conclusive.
See also OBA OYEBADE LIPEDE VS. CHIEF ADIO SHONEKAN (1995) 1 SCNJ 184 @ 200 – 201. PER SAULAWA, J.C.A.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.(Delivering the Leading Judgment): The present appeal is a fall-out of the judgment of the Kwara State High Court delivered on August 2, 2018 in suit No. KWS/OM/4/2002. By the judgment in question, the Court below, Coram S. M. Akanbi, J; dismissed the Appellants’ suit against the Respondents.

BACKGROUND FACTS
From the outset, the suit was instituted in the Court below against the 1st – 6th Respondents. However, on July 6, 2005, pursuant to the order of the Court below, the 7th-13th Respondents were joined as parties. By paragraph 36 (a) – (f) of the Amended Statement of Claim thereof, the Appellants claimed jointly and severally against the respective Respondents the following declaratory and injunctive reliefs:
a. A declaration that it is the rightful turn of the family of the Oba, Oke-Ola, Oro to produce Oloro of Oro after the demise of late Oba Micheal Alabi Ajiboye under Oro according to the customary law and traditions;
b. A declaration that any purported selection, recommendation, appointment or approval of any person including the 6th defendant as Oloro of Oro by

any of the person or persons including any of the 7th – 13th defendants without all the bonafide kingmakers or those of them alive participating and presided over by the chairman of the kingmakers in the selection before recommendation or approval is null and void and it is contrary to the native laws and customs of Oro land.
c. A declaration that since the 12th defendant is not a kingmaker and he is an ex-convict and the other 2 people who are not kingmakers participated in the selection of the 6th defendant as Oloro of Oro elect, their participation in the illegal selection of the 6th defendant as Oloro of Oro elect with the 8th defendant as the only kingmaker among them is null and void and it is contrary to the native laws and customs of Oro land since 1st defendant is a Baale and not Esa of Iludun Oro.
d. An order that all the bona-fide seven kingmaker or those of them alive in Oro land as stated in paragraph 17 of the amended statement of claim who have no any blemish by way of conviction should participate in the section or recommendation of Oloro of Oro elect.
e. A declaration that the purported selection and later recommendation,

approval, appointment and announcement jointly and severally by 1st – 5th defendants of Alhaji Rafiu Ajiboye Oyelaran as Oloro of Oro without all the seven kingmakers in Oro land or those of them alive participating in his selection, recommendation and later approval and appointment by 1st – 5th defendants is contrary to the customary laws and traditions of Oro land and it is therefore null and void.
f. An order of perpetual injunction restraining the 6th defendant, his servants, agents or privies from acting, parading himself or doing anything whatsoever as Oloro of Oro.

Parties filed and served the respective pleadings thereof. The suit proceeded to trial. At the conclusion of which the Court below delivered the vexed judgment thereof to the conclusive effect that the Appellants had not proved their case on the preponderance of evidence. That the Appellants did not satisfy the Court by cogent and credible evidence that they were entitled to all the reliefs sought thereby. Accordingly, the Court below dismissed the Appellants’ case.

The Appellants filed in the Court below two separate notices of appeal on 18/08/18 and 20/08/18

(page 577 – 621 and 602 – 626 of the Record of Appeal) respectively. However, the Appellants’ learned counsel has deemed it expedient (paragraph 4.01 page 4 of the Appellants’ Brief) to withdraw the first notice of appeal (18/08/18) and rely on the second notice of appeal (20/08/18). Thus, the said notice of appeal filed on 18/08/18 is hereby deemed withdrawn and accordingly struck out.

On December 3, 2019, when the appeal came up for hearing, the learned counsel argued same and adopted their respective briefs of argument. Thus, resulting in reserving judgment.

Most particularly, the Appellants’ brief, filed on 16/07/19 but deemed properly filed on 23/09/19, spans a total of 30 pages. At pages 4 – 5 thereof, a total of 9 issues have been couched Viz:
1. Whether the Honorable Trial Court was right in holding that the Appellants failed to prove their case with preponderance of evidence that the 7th – 13th Respondents are not proper kingmakers (Grounds 1, 7 and 18)
2. Whether the Honorable Trial Court was right in holding that the evidence of the 6th – 13th Respondent are unshaken under cross examination

and are more cogent, credible on the compliance of the kingmakers leading to the appointment of the 6th Respondent than that of the Appellants (Grounds 2, 5, 10, 13 and 17)
3. Whether the Trial Court was right in holding that newspaper do (sic) not always have evidential value except same is produced by Registrar in the publishers (sic) of same.
4. Whether the Honourable Trial Court was right in holding that the 2nd claimant is estopped from challenging the improperly constituted kingmakers which lead to selection and appointment of the 6th Respondent. (Grounds 4 and 8)
5. Whether the learned trial court was right to have held that the claimants failed to prove that one of the kingmakers who appointed the 6th Respondent is an ex-convict.
6. Whether failure by the Appellants to call the makers of Exhibit 6, 7, 9 and 10 & 2 to testify raised any presumption under section 167(d) of the Evidence Act.
7. Whether the Honourable Trial Court was right in holding that the Appellants did not proof that the appointment to the stool of Oloro of Oro is by rotation and that appointment of Oloro of Oro is by competition not by rotation.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Whether the learned trial Court was right to have held that the traditional history of the Claimants/Appellants are contradictory as to where their progenitor came from.
9. Whether having regard to the entire materials at its disposal the Honourable Trial Court was right to have held that the Claimants/Appellants have not satisfied the Court by cogent and credible evidence entitling them to all the reliefs claimed and whether the judgment of the Trial Court is not against the weight of evidence.

The issue 1 is argued at pages 5 – 9 of the brief, to the effect that the Court below failed to ascribe probative value to the testimonies of the Appellants and their witness and the documents tendered by them at the trial. That all that the Court below did to a recap of the testimonies of the witnesses. See pages 544 – 561 of the record.

It is argued, that what the Court below did clearly negated the laid down principles on evaluation of evidence and ascription of probative value thereto. See MOGAJI VS. ODOFIN (1978) 4 SC 91 @ 93.

Further argued that the Court below erroneously placed reliance on Exhibits D2 & D3, thereby

failing to assess the evidence of both parties by placing same on the imaginary scale to determine in whose favour the balance tills. See MOGAJI VS. ODOFIN (Supra); ANYAWU VS. UZOWUAKA (2002) ALL FWLR (Pt. 499) 411 @ 432 – 433; OJO VS. GOVERNOR OF OYO STATE (1989) 1 SCNJ 51 @ 61 – 63.
The Court is urged to so hold.

The issue 2 is canvassed at pages 9 – 11 of the said brief, to the effect that the Court below made several erroneous findings of fact that did not tender any document to support their supposed kingmakers except their viva voce evidence. Nor did the Respondents raise any objection to the credibility of the Appellants’ Exhibits, especially Exhibits 1, 5, 6 & 7 which listed the names of the proper Kingmakers.

It is argued that the DW2 did not give evidence, since he failed to adopt his written statement on oath. See NWAOGU VS. ATUMA (2013) ALL FWLR (Pt. 693) 1893 @ 1923; HAIDAR VS. SAI PLC (2015) ALL FWLR (Pt. 790) 1344 @ 1363; CYPRIAN VS. UZO (2016) ALL FWLR (Pt. 849) 859 @ 884 – 885.

Further argued that the selection, appointment and ratification of the 6th Respondent is illegal null and

void as same was done by non-kingmakers. SeeOJO VS. GOVERNOR OF OYO STATE (1989) 1 SCNJ 51 @ 62 – 63.
The Court is urged to so hold.

The issue 3 is argued at pages 11 – 14 of the brief, to the effect that Exhibit 2 tendered by the Appellants was supported by Exhibits 1, 5, 6 and 7 as to the names of the authentic king makers to the stool of Oloro of Oro. That Exhibit 2 is relevant to the issue in dispute. But the Respondents did not tender Newspaper with a different advert on the issue in dispute. Relevancy governs admissibility of document. See DAGGASH VS. BULAMA (2004) ALL FWLR (Pt. 212) 1660.

It is argued that Exhibit 2 being a certified public document, it can be put in evidence. SeeAGAGU VS. DAWODU (1990) 7 NWLR (Pt. 160) 56 @ 66 & 69;Section 86 of the Evidence Act (Supra).

The Court is urged to so hold and resolve issue 3 in favour of the Appellants.

The issue 4 is argued at pages 14 – 17 of the brief, to the effect that the Court below failed to evaluate the evidence before it.

It is submitted, that Exhibits 1, 2, 5, 6 & 7 are independent where compared with the evidence of the DW1 &

DW3 (6th – 13th Respondents’ witnesses).

The Court is urged to hold that the 6th – 13th Respondents’ claim (in paragraph 21 of the Amended Statement of Defence) that the 2nd Appellant voluntarily surrendered to the 7th – 13th Respondents as KINGMAKERS FOR THE Oloro Stool, is at variance with their evidence (DW2).

The Court is urged to treat the Respondents evidence as not credible and unreliable. See OKOKO VS. DAKOLO (2006) 7 SCNJ 248 @ 301 – 303; DOGO VS. THE STATE (2001) 5 NSQR 307 @ 325; DURU VS. NWOSU (1989) 4 NWLR (Pt. 113) 24 @ 35.
The Court is urged to resolve the issue 4 in favour of the Appellants.

The issue 5 is argued at pages 17 – 19 of the brief, to the effect that the Court below failed in its duty to look at the Appellants’ evidence alongside Exhibit 11 (the judgment of the upper Area Court of Kwara State sitting at Omu-Aran), was to the effect that the 12th Respondent (DW3) was convicted along with others for offence of criminal conspiracy and mischief and sentenced and bound over to 12 months. See paragraph 10(B) (VI) of the Amended Statement of Claim (page 162 – 173

of the Record).

Further argued that Exhibit 11 is relevant to the issue in dispute; it cannot be altered by oral evidence; it serves as a hanger from which to assess oral evidence before the Court. It has not been appeal against nor quashed on appeal. See Section 128(1) of the Evidence Act; OGUNLEYE VS. AGIRI (2009) 40 NSCQR427 @ 449 – 450; EYA VS. OLOPADE (2011) 5 SC (Pt. 11) 47 @ 81; SANUSI VS. AMEYOGUN (1992) 4 NWLR (Pt. 237) 524 @ 556.
The Court is urged to so hold and resolve the issue 5 in favour of the Appellants.

The issue 6 is canvassed at pages 19 – 21 of the brief to the effect that Exhibits 6, 7, 9 and 10 (especially 6 & 7), are relevant to the issue in dispute as to the names of the authentic kingmakers.

It is submitted in the main, that the most unpardonable failure of the Court below was its refusal to properly apprise the documents tendered by the Appellants, especially Exhibits 6, 7, 8, 9 & 10. That rather the Court the failure to call the makers of the said exhibits to testify raised presumption under Section 167 (d) of the Evidence Act (Supra).

The Court is urged to so hold, and resolve the

issue 6 in favour of the Appellants.

The issue 7 is canvassed at page 21 – 24, to the effect that the Court below made several findings of facts which are erroneous, and not stemming from any evidence before it. It was argued that had the Court below properly evaluated the Appellants’ evidence alongside Exhibits 10 & 13, it would not have fallen into a grave error in holding that the Appellants did not prove that the ascension to the stool of Oloro of Oro was by rotation and not by competition. See TSAUSAWA VS. HABIBA (1991) 2 NWLR (Pt. 174) 461; DURU VS. NWOSU (1989) 4 NWLR (Pt. 113) 24 @ 35; LEKO VS. SODA (1995) 2 NWLR (Pt. 378) 432 @ 444; OSUJI VS. EKEOCHA (2009) ALL FWLR (Pt. 490) 614 @ 644 – 645.

The Court is urged to so hold and resolve issue 7 in favour of the Appellants.

The issue 8 is argued at pages 24 – 26, to the effect that Exhibits 3 & 9 duly supported by the Appellants’ testimonies which cannot be altered or contradicted by any extraneous evidence. See MACAULAY VS. NAL MERCHANT BANK LTD (1990) 2 NSCC 433 @ 448 – 449; CAMEROON AIRLINES VS. OTUTUIZU (Supra); EYA VS. OLOPADE

(2011) 5 SC (Pt.11) 47 @ 81; ALADE VS. OGUNDELE (2014) ALL FWLR (Pt. 743) 2027 @ 2045.
The court is urged to so hold and resolve issue 8 in favour of the Appellants.

The issue 9 is argued at pages 26 – 28 of the brief. It is argued in a nutshell, that if the Court below had looked critically through the evidence placed before it, it ought to have held that the Respondents’ pieces of evidence were unreliable and discountenance them. See DOMA VS. INEC (2013) ALL FWLR (Pt. 706) 574 @ 596; IBRAHIM VS. SHAGARI (1983) 2 SCNLR (Pt. 176) @ 182 – 183.

Further argued that in the instant case, both parties argue that their progenitors came from Oyo. However, the Appellants claimed that their progenitors came from Ile-Ife as can be seen in Exhibits 3 and 9. Therefore the rule in KOJO VS. BONSIE (1957) 1 WLR 1223. See also ELIAS VS. OMOBARE (1982) ANLR 75 @ 87 – 88.
The Court is urged to resolve the issue 9 in favour of the Appellants.

Conclusively, the Court is urged to allow the appeal and set aside the decision of the Court below.

Contrariwise, the 1st – 5th Respondents’ brief, settled by J. A.

Mumini Esq, (DPP) on 15/10/19, spans a total of 18 pages. At pages 3 – 4 of the said brief, the learned DPP has deemed it expedient to raise four issues from the 20 grounds of the notice of appeal, viz:
1. Whether the Trial Court was not right in holding that the 7th to 13th Respondents are the king makers for the Oloro of Oro stool and the appointment of the 6th Respondent as Oloro of Oro by the 7th and 13th Respondent were completely constituted as kingmakers giving the participation of Bale of Iludun Oro, Shawo of Okerimi Oro and Bale of Ijomu. (Relates to grounds 1, 2, 3, 6, 7, 8, 10, 11, 13, 15, 17 and 18).
2. Whether the learned trial judge was not right when he held that the Appellants’ ruling house of Oke-Ola Oro having voluntarily participated in the appointment exercise conducted by the kingmakers and lost by a majority vote can now challenge the composition and decision of the kingmakers. (Relates to grounds 4 and 5).
3. Whether the Trial Court was not right in holding that the ascension into the stool of Oloro of Oro is by competition among the ruling houses and not by rotation. (Relates to grounds 12, 14 and 16).

Whether the Trial Court was not right in holding that the Appellants could not be able to establish their case with cogent and credible evidence and the appointment and installation of the 6th Respondent as Oloro of Oro by the 1st to 5th Respondents followed the due process and was in accordance with Oro Native Law and Custom. (Relates to grounds 9, 19 and 20).The issue 1 has been extensively argued at pages 4 – 10 of the brief. In a nutshell, it is submitted that the Court below was right to hold that the kingmakers that deliberated on the candidates for Oloro Stool which culminated in the appointment of the 6th Respondent as Oloro of Oro, were properly constituted having regard to the native law and custom of Oro Land. See Section 136 of the Evidence Act; OBIAZIKWOR VS. OBIAZIKWOR (2008) 8 NWLR (Pt. 1090) 550.It was argued, that the onus is on the Appellants to prove that the 7th – 13th Respondents were not the recognised kingmakers in Oro Land. See IROAGBARA VS. UFOMADU (2009) 6 SCM 109.Further argued, that the Appellants had impliedly admitted in paragraphs 2 and 3 of their statement of claim (page 3 of the record) the

fact that the 7th – 13th Respondents were recognised kingmakers in Oro Land. Therefore, the Appellants’ said admission bind them. See FEDERAL MINISTRY OF HEALTHVS. COMET (2009) 6 SCM 66; OSENI VS. BAJUJU (2009) SCM 11 – 12 (Pt.1) 190.

It was posited that the Appellants were inconsistent in their pleadings. And facts pleaded must be concise and not rigmarole. See ABUBAKAR VS. YAR’ADUA (2008) 12 SCM (Pt.2) 15.

The Court is urged to so hold and resolve the issue 1 in favour of the 1st – 5th Respondents.

The issue 2 is argued at pages 10 – 11 of the said brief, to the effect that by the unchallenged evidence before the Court, the Appellants actively participated in the deliberation of the 8th – 12th Respondents as kingmakers in acknowledgment and recognition of their status as such. See UBN PLC VS. LUOBAI (NIG) LTD (2008) 2 NWLR (Pt. 1071) 246; ADETORO VS. UBN (2008) 13 NWLR (Pt. 1104) 266; CHUKWUMA VS. IFELOYE (2008) 18 NWLR (Pt. 118) 211.

The Court is urged to so hold and resolve issue 2 in favour of the Respondents.

The issue 3 is canvassed at pages 11 – 14 of the brief, to the effect

that the Appellants are not conversant with the native law, Custom, and tradition of Oro Land. This much has been demonstrated by the PW2 under cross-examination. That PW1 is not a witness of truth as he knew nothing about native law and custom of Oro land. He admitted not knowing anything about the story of succession in Oro Chieftaincy Stool Sawo of Oro Land and Baale of Iludun Oro, despite the fact that all these were pleaded in their amended statement of claims. The Court is urged to disbelieve the evidence of PW1, as same is contradictory and speculative. See JIMO ADEKOYA ODUBEKO VS. VICTOR O. FOWLER (1993) 9 SCNJ 185 @ 196; et al.
The Court is urged to so hold and resolve issue 3 in favour of the Respondents.

The issue 4 is argued at pages 14 – 17 of the brief to the effect that the Court below was right to hold that the Appellants did not satisfy the Court by cogent and credible evidence to show that they were entitled to the declaratory reliefs sought. See OKOKO VS. DAKOLO (2006) 7 SCNJ 284 @ 303.
The Court is urged to so hold, and resolve issue 4 in fovour of the Respondents.

The Court is conclusively urged to dismiss

the appeal and affirm the judgment of the Court below.

The 6th – 13th Respondents’ brief was settled by Joseph S. Bamigboye, SAN on 18/10/2019. That brief spans a total of 28 pages. At page 6 of the said brief, a couple of issues have been couched:
1. Whether the Trial Court had jurisdiction to hear this suit haven regard to the Appellants’ failure to comply with the mandatory statutory requirement of reference of the dispute to the Governor of Kwara State for his enquiry before instituting a suit prescribed under Section 3(3) of Chiefs (Appointment and Deposition) Law Cap.28 Laws of Kwara State 1994 applicable to this suit.
2. Whether the Appellants’ case was rightly dismissed by the trial High Court.

The issue 1 is argued at pages 6 – 10 of the 6th – 13th Respondents’ brief. In a nutshell, it is submitted that there’s clearly no complaint or protest whatever referring this dispute to the Governor (5th Respondent) after he had appointed the 6th Respondent as Oloro of Oro on 07/02/2001 vide Exhibit D5. Therefore, the suit is incompetent and the Court below had no jurisdiction to entertain

See Section 3(3) of the Chiefs (Appointment and Deposition) Law CAP. 28, Laws of Kwara State, 1994; AG KWARA STATE VS. ALHAJI SAMA ADEYEMO (2016) 7 SC 149 @ 152; CHIEF F.A BAMISILE VS. FRANCIS OJO OSASUYI (2008) ALL FWLR (Pt. 423) 1300 @ 1337 – 1339; ALHAJI YUNUS BUKOYE ESSA OF OFFA VS. ALHAJI SAKA ADEYEMO, MAGAJI HEAD OF OLUGBENSE RULING HOUSE, OFFA (2017) ALL FWLR (Pt. 877) 338 @ 362 et al.It is posited by the learned silk, that although no leave of Court was sought prior to raising the instant issue, due to the fundamental nature of jurisdiction thereof, the issue can be raised as a fresh issue at any level without the leave of Court. Reliance is placed on AG KWARA STATE VS. ALHAJI SAKA ADEYEMO (Supra) @ 158 – 162.
The Court is urged to so hold and resolve the issue 1 in favour of the Respondents.The issue 2 is extensively argued at pages 10 – 23 of the said brief. In the main it is submitted that the Appellants’ evidence on the kingmakers for the Oloro Stool is riddled with material self-contradictions and damaging admissions that left their contention thereon frivolous and unproved.

Further submitted,

that the Appellants pointedly admitted in paragraphs 2 & 3 of the Amended Statement of Claim thereof, that the 7th – 13th Respondents are indeed kingmakers for the Oloro stool. Therefore, argued by the learned silk, the admission in paragraphs 2 & 3 of the Amended Statement of Claim is the best evidence which squarely binds the Appellants. See ADEYEMI OGUNNAIKE VS. TAIWO OJAYEMI (1987) 3 SCNJ, 69 @ 76; SEISMOGRAPH SERVICE (NIG) LTD VS. CHIEF KEKE OGBENEGWEKE EYUAFE (1976) 10 SC 135 @ 146 et al.

It was argued, that as the Appellants have not succeeded in impeaching the 7th – 13th Respondents as kingmakers, they have failed to prove their pleadings (case) even on their own evidence. See ALHAJI ADEBOLA OLAKUNLE ELIAS VS. CHIEF TIMOTHY OMOBARE (1982) 5 SC 25 @ 46 – 47.

What’s more, it is equally argued that paragraph 17 of the Amended Statement of Claim consists of falsehood, thereby leading to the inference and logical conclusion that their case lacks credibility therefore unproved, as the Appellants do not even know their nature law, custom and tradition. See IGBANUDE OBODO VS. EMMANUEL OGBA (1987) 3 SCNJ 82 @ 83.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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On the whole, it is posited, that the Appellants called no evidence of any worth in proof of their case, where the law requires strict proof, thus failing woefully to establish their case. The Court is urged to resolve issue 2 against the Appellants and in favour of the Respondents.
Conclusively, the Court is urged upon to accordingly dismiss the appeal.

In reaction to 1st – 5th Respondents’ brief of argument, the Appellants have filed a reply brief on 18/10/2019. It spans a total of 8 pages. Pages 3 – 5 (paragraphs 1.0 – 1.07) of that reply brief relate to 1st – 5th Respondents’ issue 1. Pages 5 – 7 relate to the issues 2, 3 and 4 of the 1st – 5th Respondents, respectively.

Conclusively, the Court is urged upon to discountenance the 1st – 5th Respondents’ submissions, allow the appeal in its entirety, and accordingly set aside the vexed judgment of the court below.

In reaction to the 6th – 13th Respondents’ brief, the Appellants have filed a reply brief on 23/10/2019. The said reply brief spans a total of 14 pages. Pages 3 – 8 relate to the 6th – 13th

Respondents’ argument on issue 1. By the said argument thereof, the Appellants have urged upon the Court to hold to the conclusive effect that they have complied with the provisions of Section 3 (3) of the Chieftaincy Law of Kwara State (Supra) before instituting the instant action in the Court below. Thus, the Court is urged to resolve the said 6th – 13th Respondents’ issue 1 against them and accordingly allow the appeal and set aside the vexed judgment of the Court below.

Pages 8 – 12 of the said reply brief relate to issue 2 of the 6th – 13th Respondents. By the argument thereof in question, the Appellants have urged upon the Court to resolve the issue 2 against the 6th – 13th Respondents and in favour of the Appellants’.

Conclusively, the Court is equally urged upon to strike out issue 1 of the 6th – 13th Respondents’ for being incompetent, allow the appeal and set aside the vexed judgment of the Court below.

I have critically albeit dispassionately considered the nature and circumstances surrounding the instant appeal, the submissions of the learned counsel contained in the respective

briefs of argument thereof vis-à-vis the record of appeal, as a whole.

In the present circumstance, I have deemed it expedient to adopt the 4 issues raised by the 1st – 3rd Respondents at pages 3 – 4 of the said brief thereof for the determination of the appeal on merits, anon.

ISSUE NO.1
The first issue raises the very vexed question of whether the Court below was right in holding that the Appellants failed to prove their case on preponderance of evidence that the 7th – 13th Respondents are not proper Kingmakers. The first issue is distilled from grounds 1, 7 and 8 of the notice of appeal. The Appellants’ issue No.1 relates to 1st – 5th Respondents’ issue No.1 and the 6th – 13th Respondents’ issue No.2.

With a view to establishing the case thereof to the effect that the 7th – 13th Respondents were not Kingmakers, the 1st Appellant testified and tendered 11 Exhibits. One Kayode Aroyehun from Iba Compound Ijomu Oro, equally testified for the Appellants. By virtue of paragraph 17 of the Amended Statement of Claim of the Appellants, the names of the Kingmakers to the stool of

Oloro of Oro were listed, Viz:
1. Baale of Oro Town (chairman of Kingmakers).
2. Asanlu of Oro Town.
3. Aro of Oro Town.
4. Esa from Kudun Oro.
5. Iba from Ijomu.
6. Asoni from Oke-Ola Oro.
7. Oniwo from Iddo Oro.
The Appellants equally tendered Exhibits 1, 2, 6 and 7 to show the lawful Kingmakers recognized under Oro Native Law and Custom for the selection of a candidate to fill the vacant stool of Oloro of Oro.
The Court below in the course of the vexed judgment held that the Kingmakers that deliberated upon the candidates for Oloro stood, which culminated in the appointment of the 6th Respondent as Oloro of Oro, were properly constituted having regard to the Native Law and Custom of Oro Land. See Section 136 of the Evidence Act; OBIAZIKWOR VS. OBIAZIKWOR (2008) 8 NWLR (Pt. 1090) 550.
It is trite that the Appellants who alleged that the 7th – 13th Respondents, before whom the 2nd Appellant appeared for consideration (selection) were not the proper Kingmakers known to Native Law and Custom of Oro Land, have an onerous duty to prove their allegation or assertion. See IROAGBARA VS. UFOMADU (2009) 6

SCM 109; ARE VS. ADIDA (1967) ALL NLR 158 @ 161 – 126; MAXIMUM INSURANCE CO. LTD VS. OWONIYI (1994) 3 NWLR (Pt. 331) 178 @ 192; OBA R.A.A OYEDIRAN OF IGBONLA VS. H.H. OBA ALEBIOSU II (1992) 7 SCN 3, 187 @ 193 – 194, wherein the Apex Court aptly held: In areas of customary law and traditional evidence, it is good law that it is desirable that a person other than the person asserting it should also testify in support thereof. Thus is only common sense because native law and custom must be strictly proved. It will therefore be unsafe to accept the statement of the only person asserting the evidence of custom as conclusive.
See also OBA OYEBADE LIPEDE VS. CHIEF ADIO SHONEKAN (1995) 1 SCNJ 184 @ 200 – 201.

Curiously, the Appellants have tacitly admitted under paragraphs 2 and 3 of the Amended Statement of Claim thereof to the fact that the 7th – 13th Respondents were indeed the Kingmakers for the Oloro Stool. The said paragraphs 2 and 3 are to the effect thus:
2. After the demise of Oba M. A. Ajiboye, late Oloro of Oro, the Claimants family nominated prince Tajudeen Olasunikanmi Aiyegusi – 2nd Claimant as their

candidate as Oloro – elect and forwarded his name to the Oloro Traditional Council of Chiefs for ownward selection, approval and appointment by the Defendants jointly and severally.
3. The Claimants aver that it is the turn of their family to nominate for selection, approval and appointment of the 2nd Claimant as Oloro of Oro by the Defendants jointly and severally after the demise of late Oloro of Oro Oba M. A. Ajiboye.

It is obvious from the foregoing paragraphs 2 and 3 of the said Amended Statement of Claim, that the Appellants have unambiguously admitted that the 7th – 13th Respondents, who are the Kingmakers erroneously referred to as the Oloro of Oro Traditional Council of Chiefs, have a role to play in the selection, approval and appointment of an Oloro of Oro, acting jointly and severally with the other Respondents. That singular admission in paragraphs 2 and 3 (Supra) is invariably the best form of evidence which fundamentally binds the Appellants. See OGUNNAIKE VS. OJAYEMI (1987) 3 SCN 1 690 @ 760; OBMIAMI BRICK & STONE (NIG) LTD VS. ACB LTD (1992) 3 NCNJ 35 @ 55.

In the circumstance, the first issue ought to be,

and same is hereby resolved against the Appellants.

ISSUE NO.2
The second issue raises the question of whether or not the Court below was right when he held that the Appellants ruling house of Oke-Ola Oro having voluntarily participated in the appointment exercise conducted by the Kingmakers and lost by a majority vote can now challenge the composition and decision of the Kingmakers. This second issue is distilled from grounds 4 and 5 of the notice of appeal. It relates to issue 2 and 4 of the Appellants.

It is crystally obvious on the face of the record (page 497) that 2nd Appellant was one of the candidates representing the various ruling houses that contested for the stool of Oloro of Oro, the 6th Respondent inclusive. Indeed, the Oke-Ola Ruling Houses duly presented the 2nd Appellant as their favourite candidate to the stool of Oloro of Oro. The Kingmakers comprised of the 8th – 12th Respondents, the 7th Respondent having chosen not to participate in the said selection process. Undoubtedly, the 2nd Appellant had at all material time duly recognised the 8th – 12th Respondents as the Kingmakers. He voluntarily submitted himself

to their jurisdiction and actively participated in the deliberations, the selection process.

As aptly posited by the counsel to the 1st – 5th Respondents by the unchallenged evidence before the Court below, the Appellants had actively participated in the deliberation of the 8th – 12th Respondents in recognition of their status as Kingmakers. Thus, by virtue of the trite fundamental principle, where as in the instant case, a person by his declaration act or omission, witfully caused or permitted another person to believe a thing to be true, and act on such belief, neither he nor his representative or agent in interest shall be allowed in any proceeding to deny the truth of that thing. Section 151 of the Evidence Act; UBN PLC VS. LUOBAI (NIG) LTD (2008) 2 NWLR (Pt. 1071) 246; ADETORO VS. UBN (2008) 13 NWLR (Pt. 1104) 260; CHUKWUMA VS. IFELOYE (2008) 18 NWLR (Pt. 118) 211.

Neither the Appellants nor the purported Ruling House thereof can challenge the composition of the 8th – 13th Respondents as King Makers for the traditional stool of Oloro of Oro. In the circumstance, the second Issue is hereby resolved against the Appellants.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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ISSUE NO. 3
The third Issue raises the question of whether or not the Court below was right in holding that the Appellants could not be able to establish their case with cogent and credible evidence and the appointment and installation of the Respondent as Oloro of Oro by the 1st to 5th Respondents, followed the due process and was in accordance with Oro Native Law and custom. The issue is distilled from Grounds 12, 14 and 16 of the Notice of Appeal.

By the pleadings thereof, most especially paragraphs 3 and 16 of the Amended Statement of Claim, the Appellants alleged that it’s the turn of their family to produce the Oloro of Oro, the stool of which is allegedly rotational among the ruling houses.
However, the PW2 under cross-examination, the PW2 has this to say:
PW2:
We have ruled for 12 times. We are the founder of Oro Kingdom…
We have 17 Oloro who had emerged; the 18th one is in dispute…
It (Oro chieftaincy title) is rotational.
Question – If you (sic) family produced 12 out of 19, it means you don’t understand what rotation means?
Answer: – I understand what rotational means, we have

separate places.
Question: – From your observation, a family can produce 3 subsequent candidate.
Answer: – It could be so.

The foregoing cross-examination duly confirms that the stool of Oloro of Oro is not rotational but rather by competition as postulated by the 1st to 5th Respondents’ learned counsel.

The PW1 claimed that there were only two Ruling Family Houses in Oro (page 484). However, the PW2 admitted under cross-examination there were indeed four (4) Ruling Houses:
i. Afin – Oro
ii. Agbeola Oro;
iii. Okerimi Oro; and
iv. Oke-Ola Oro

By the material contradictions, as manifested in the evidence of PW1 and PW2, the Court is obliged not to accord any semblance of credibility to the said evidence. See AYINDE VS. ABIODUN (1999) 8 NWLR (Pt. 616) 589; AHMED VS. THE STATE (1999) 7 NWLR (Pt. 612) 651, ODUBEKO VS. FOWLER (1993) 9 SCNJ 185 @ 196.

Thus, in the circumstance of the obvious contradictions inherent in the evidence of the Appellants, I am of the considered view that the Court below was right in holding that the Respondents have established that there were four ruling houses in Oro, and

that the ascension to the throne of Oloro of Oro is by competition among the contestants, and not by rotation as claimed by the Appellants.
In the circumstance, the third Issue is equally resolved against the Appellants.

ISSUE NO. 4
The fourth Issue raises the question of whether or not the Court was right in holding that the Appellants could not be able to establish their case with cogent and credible evidence, and the appointment and installation of the 6th Respondent as Oloro of Oro by the 1st to 5th Respondents followed the due process and was in accordance with Oro Native Law and Custom. This fourth Issue is distilled from Grounds 9, 19 and 20 of the Notice of Appeal.

At page 574, lines 11 – 15 of the Record, the Court below stated:
The evidence of 6th to 13th defendants coupled with the official government documents lent credence to the fact that appointment, installation of the 6th defendant is in accordance with the native law and custom of Oro, that by competition and not by rotation going by the evidence credibly given by the defendants.

The above finding is undoubtedly cogent and unassailably supported by the

pleadings and evidence on record. The law is crystally clear that by the provision of Section 3(1) of the Chiefs (Appointment and Deposition) Law of Kwara State 2007 as amended, the Governor of Kwara State is empowered to approve the appointment of any graded Chief in Kwara State consequent upon the recommendation thereto by the relevant authorities.

In the instant case, it’s the combined effect of the Exhibits D1 – D4 that led to the approval of the appointment of the 6th Respondent as Oloro of Oro. The Exhibits in question were duly eluded in the Statement of Defence of the 1st to 5th Respondents which have not been controverted or denied by the Appellants. Thus, the Exhibits are deemed admitted by the Appellants. See DOTUN FATILEWA VS. THE STATE (2007) ALL FWLR (Pt. 347) 695.
In the circumstance, the fourth Issue is hereby resolved against the Appellants.

Hence, against the backdrop of the resolution of all the Issues raised in the Appeal against the Appellants, there is no gainsaying that the appeal resultantly fails and it is hereby dismissed by me.

Consequently, the Judgment of the High Court of the Kwara State delivered on

August 2, 2018 in Suit No. KWS/OM/4/2002 is hereby affirmed.
Parties shall bear their respective costs of litigation.

IBRAHIM SHATA BDLIYA, J.C.A.: I agree

BALKISU BELLO ALIYU, J.C.A.: I agree

Appearances:

ISAUAH ADEYI, ESQ. For Appellant(s)

JIMOH ADEBIMPE ABDULMUMINI ESQ., DIRECTOR PUBLIC PROSECUTION (DPP), KWARA STATE MINISTRY OF JUSTICE – FOR 1ST TO 5TH RESPONDENTS.

JOSEPH S. BAMIGBOYE, SAN WITH HIM, J. S. MUHAMMED, ESQ. AND T. K. ABDULLAHI, ESQ. – FOR 6TH TO 13TH RESPONDENTS. For Respondent(s)