MALLAM SULIMAN BOLAKALE SALAMI V. ALHAJI ABDULRAHAMAN SULE AJADI (2011)

MALLAM SULIMAN BOLAKALE SALAMI V. ALHAJI ABDULRAHAMAN SULE AJADI

(2011)LCN/4593(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 1st day of June, 2011

CA/IL/26/2010

RATIO

CONTRADICTIONS IN EVIDENCE OF A WITNESS: CIRCUMSTANCES UNDER WHICH CONTRADICTIONS IN THE EVIDENCE OF WITNESSES WILL AVAIL THE OPPOSITE PARTY

As was rightly decided in Usibaifo V. Usibaifo (2005) 1 S.C. (pt. 11) 60 at 72. “It is the law that contradictions in evidence of witnesses can only avail the opposite party where they are material, substantial and affect the live issues in the matter, to the extent that they affect the fortunes of the appeal in favour of the party raising the issue. See Arechia v. The State (1974) 9 S.C. 1 (1974) 9 S.C. (Reprint) 1; Mogaji v. Cadbury Nigeria Ltd. (1985) 3 NWLR (pt. 7) 393. PER IGNATIUS IGWE AGUBE J.C.A

BURDEN OF PROOF: ON WHOM LIES THE BURDEN OF PROOF IN CIVIL PROCEEDINGS

…it is now trite that the general burden of proof in civil proceedings lies squarely on the party who would lose the case if on completion of pleadings no evidence is led in support of his case. See the dictum of the erudite emeritus Supreme Court Judicial icon Aniagolu, JSC: while pronouncing on this time-honoured principle of the law of evidence, in the celebrated case of Imana v. Robinson (1974) 6 S.C. 83, where he adopted the position taken by the learned authors of “Phipson on Evidence” 10th Edition at page 93 paragraph 92. See also Seldon v. Davidson (1965) 1 W.L.R. 1083; Elemo & Ors. v. Omolade & Ors. (1968) NMLR 359; Olugunleko v. Ikuemola (1993) 2 NWLR 17; Dawodu v. Solanke (1959) L.L.R. 1 and Saura Yusuf v. Adegoke (2007) 30 NSCQLR 269. It is also trite as was decided by the Supreme Court in the cases of Fadallah v. Arewa Textiles Mills Ltd. (1997) 7 S.C.N.J 202: Dakat v. Dashe (1997) 12 SCNJ 90 and Ehidimhen v. Musa (2000) 4 SCNJ 325 at 350, that the burden rests on the party who substantially asserts the affirmative before evidence is elicited and thereafter on the party who would lose if no further evidence is led. PER IGNATIUS IGWE AGUBE J.C.A

PLEADINGS: CONSEQUENCE OF A PARTY RELYING ON EVIDENCE THAT IS AT VARIANCE WITH HIS PLEADINGS

…it is clear on the authorities of Adebayo v. Ighodalo (1996) 5 MAC 101 and Odutola v. Sanya (supra) at 793-794: that the evidence of the traditional history of the Respondent ought to be rejected as being at variance with his pleadings. See also the case of Akanmu v. Adigun (1993) 7 NWLR (pt. 304) 218 at 235 para. H: Agbo v. The State (2006) All NWLR (pt. 309) 1380: Ndultte v. Ojiakor (2001) 14 NWLR (pt.734) and Ajibulu v Ajayi (2004) 11 NWLR (pt. 885) 458. PER IGNATIUS IGWE AGUBE J.C.A

DOCUMENTARY EVIDENCE: WHETHER WHERE THERE IS ORAL AS WELL AS DOCUMENTARY EVIDENCE, THE DOCUMENTARY EVIDENCE WILL SERVE AS THE BASIS TO TEST THE PROBABILITY OF THE ORAL TESTIMONY

…it is necessary to reflect on the dictum of Nnaemeka Agu J.S.C in Kimdey 4 Ors. v. The Military Governor of Gongola State & Ors. (1988) 5 S. C. 16 at 95, where His Lordship stated the position of the law on the effect of documentary evidence on oral evidence inter alia: “No doubt, the legal proposition that where there is oral as well as documentary evidence, documentary evidence should be used as hanger from which to assess oral testimony is a sound one. In Fashanu v. Adekoya (supra), Coker JSC put the principle very succinctly where he held at page 91-92: “Undoubtly, the duty of the court in ascertaining the truth in those circumstance is all but easy and the test of logic may as availing to one of the parties a large body of documentary evidence containing a number of letters and other documents and, as argued by learned counsel for the plaintiff, it is the duty of the learned trial judge in a case like the present to test the probability of the case of either of the parties by reference to relevant documents which represent evidence of some more or less permanent or perhaps unassailable character. PER IGNATIUS IGWE AGUBE J.C.A

DOCUMENTARY EVIDENCE: WHETHER DOCUMENTARY EVIDENCE IS KNOWN TO NATIVE LAW AND CUSTOM

This point was stressed by P.O Aderemi J.S.C, the emeritus and erudite Justice of the Supreme Court in Olubodun v. Lawal (2008) 35 NSCQR 570 at 602 that:- “It is well established principle of law that documentary evidence is unknown to native law and custom. See (1) Ajadi v. Olanrewaju (1995) 1 ALL NWLR 382 and (2) Egwu v. Egwu (1995) 5 NWLR (Pt. 396) 351. PER IGNATIUS IGWE AGUBE J.C.A

JUSTICES

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

Between

MALLAM SULIMAN BOLAKALE SALAMI Appellant(s)

AND

ALHAJI ABDULRAHAMAN SULE AJADI Respondent(s)

IGNATIUS IGWE AGUBE J.C.A (Delivering the Leading Judgment): By a Writ of Summons dated and filed on the 18th day of October, 2002 and an Amended Statement of Claim dated 17th day of January and filed on the 21st January, 2002 respectively; the Claimant/Defendant to Counter-Claim (now Respondent), sought for declaratory and injunctive reliefs in the following terms:-
“(1) A declaration that the Defendant not being a member of the Plaintiff’s Baale family of Sapati-Ile, is not entitled to aspire to the Baale of Sapati-Ile, Asa Local Government Area of Kwara State.
(2) A declaration that the Stool of Baale of Sapati-Ile is not vacant as the Claimant is the valid and subsisting Baale of Sapati-Ile.
(3) An Order of perpetual injunction restraining the Defendant from parading or holding himself out as the Baale of Sapati-Ile or purporting to perform the function of Baale of Sapati-Ile.”
The Defendant joined issues by filing his Statement of Defence and Counter-Claim which was Amended and by the Further Amended Statement of Defence and Counter-Claim, denied most of the paragraphs of the Amended Statement of Claim and counter-claimed in paragraphs 51 (1) to (7) thus:-
“(1) A declaration that the Defendant’s Ogundairo family, is the only family entitled to produce the Baale of Sapati-Ile in accordance with the native law and customs of Sapati-Ile.
(2) A declaration that the Defendant having been properly and duly appointed as the Baale of Sapati-Ile in 1991 is the authentic Baale of Sapati-Ile.
(3) A declaration that the Claimant’s Digunlese family is not entitled to produce Baale of Sapati-Ile under Native Laws and Customs of Sapati-Ile.
(4) A declaration that the purported appointment of the Claimant as the Baale of Sapati-Ile by the Ilorin Emirate Council vide its letters of 22/02/99 and 14/5/2001 purportedly confirming and re-affirming the Claimant as the Baale of Sapati-Ile, violates the native laws and customs of Sapati-Ile and Ilorin Emirate and is therefore (sic) non und void.
(5) An Order of the Court setting aside the said purported appointment and or confirmation and re-affirmation of the Claimant as the Baale by the Ilorin Emirate Council.
(6) A perpetual injunction restraining the Claimant from parading, presenting, portraying himself and or ascribing to himself the title of Baale of Sapati and or in any way or manner performing the functions, duties and responsibilities and or enjoying the benefits, rights and privileges appertaining to the Office of Baale Sapati-Ile.
(7) And for such further order(s) as the Court may deem fit to make in the circumstance.”
At the hearing of the case in the lower Court the parties testified and called two witnesses each in support of their respective positions after which Written Addresses were exchanged and in a reserved Judgment delivered on the 4th day of March, 2009, the lower Court granted all the reliefs sought by the Claimant/Defendant to Counter-Claim (now Respondent) and dismissed the Defendant/Counter-Claimant (now Appellant’s) Counter-Claim.
Aggrieved by the Judgment of the learned trial Judge, the Defendant/Counter-Claimant who shall henceforth be referred to as the Appellant, had on the 25th May, 2009, through Salman Jawondo Esq. of Counsel filed a Notice of Appeal dated the 4th day of May, 2009 which notice is predicated on a whopping fourteen (14) Grounds. See pages 239 – 248 of the Records.
Briefs were duly exchanged in this Honourable Court in line with our Rules following the transmission of the Record of Appeal hereto and in the Brief of Argument settled by Salman Jawondo Esq. on behalf of the Appellant, six issues as reproduced below were distilled for determination as follows:-

ISSUE NUMBER 1 OF THE APPELLANT
WHETHER OR NOT THE LEARNED TRIAL JUDGE WAS NOT WRONG IN DISCOUNTENANCING THE EVIDENCE OF DW1 AND DW2 IN THE CONSIDERATION OF THE APPELLANT’S CASE ON THE GROUND THAT THE EVIDENCE OF DW1 AND DW2 CONTRADICT THEIR EVIDENCE IN THE EARLIER PROCEEDINGS BEFORE HON. F. J. GBADEYAN, J, AS CONTAINED IN EXHIBITS R2, R3 AND R4 (I.E. PAGE 77 AND 79-81 OF THE RECORD OF ABORTED PROCEEDINGS OF THE SUIT).
GROUND 4.

ISSUE NUMBER 3
WHETHER OR NOT THE LEARNED TRIAL JUDGE WAS RIGHT IN HIS CONCLUSION THAT FROM EXHIBITS 6, 11 AND 12 AND THE EVIDENCE OF THE APPELLANT, THAT UP TO THE TIME OF THE APPOINTMENT OF THE RESPONDENT IN 1989 THERE WERE NO KING MAKERS IN SAPATI-ILE AND THAT LATE KOLAWOLE BALOGUN AREMU AND THE APPELALNT WERE APPOINTED BAALE DURING THE REIGN OF THE RESPONDENT BECAUSE LATE KOLAWOLE BALOGUN SIGNED EXHIBIT 6 (AND EXHIBIT (1) AS KOLAWOLE BALOGUN AREMU FROM ILE ARIDA AND NOT AS BAALE (GROUND 9).

ISSUE NUMBER 4
WHETHER OR NOT THE LEARNED TRIAL JUDGE WAS NOT WRONG IN HOLDING THAT IT WAS NOT IMPERATIVE FOR CLAIMANT/RESPONDENT IN THIS CASE TO PLEAD AND PROVE UNBROKEN CHAIN OF SUCCESSION AS A CLAIMANT IN THE LAND MATTER MUST DO HAVING REGARD TO THE CLAIMANT/RESPONDENT’S CLAIM OF EXCLUSIVE ENTITLEMENT AND PERPETUAL SUCCESSION TO THE STOOL OF BAALE OF SAPATI-ILE SINCE ITS FOUNDING. (GROUND 1).

ISSUE NUMBER 6:
WHETHER OR NOT HAVING REGARD TO THE ORAL AND DOCUMENTARY EVIDENCE BEFORE THE COURT PARTICULARLY EXHIBITS 1, 2 AND 8 AND EXHIBITS 13, 11, 15, 16, 17, 18, 19, 20, 21-27, THE LOWER COURT WAS NOT WRONG IN TREATING EXHIBIT 8 DATED 06/02/1996 AS EVIDENCE OF RECENT ACTS OF OWNERSHIP AND IN GRANTING THE RESPONDENT’S CLAIM AND DISMISSING THE APPELLANT’S COUNTER-CLAIM IN THE FACE OF CONTRADICTORY PLEADINGS AND EVIDENCE FROM THE RESPONDENT AS AGAINST THE STRAIGHT FORWARD CREDIBLE AND RELIABLE EVIDENCE OF APPELLANT ON THE GROUND THAT THE RESPONDENT’S EVIDENCE OF RECENT ACTS OF OWNERSHIP AND POSSESSION PREPONDERATED THAT OF THE APPELLANT? (GROUNDS 3, 5, 6, 7, 10, 11, 12, 13 AND 14).
On the part of the Respondent, K. B. A. Badmus Esq. who settled his Brief distilled only two issues as falling for the determination of the Appeal as follows:-
“1. WHETHER THE TRIAL COURT WAS CORRECT TO HAVE DISCOUNTENANCED THE
EVIDENCE OF DW1 AND DW2 ON THE GROUND THAT THEIR EVIDENCE CONTRADICT THEIR TESTIMONIES IN AN EARLIER PROCEEDING BEFORE GBADEYAN, J. AS CONTAINED IN EXHIBITS R2 AND R3; AND NOT TO HAVE ATTACHED PROBATIVE VALUE TO EXHIBITS 15, 16, 17 AND 18 ON THE GROUND THAT THEY ARE PUBLIC DOCUMENTS WHICH REQUIRED CERTIFICATION BUT ARE NOT CERTIFIED AND THAT THE DOCUMENTS WERE NOT TENDERED BEFORE THE PANEL SET UP BY THE ILORIN EMIRATE COUNCIL IN 1995 (GROUNDS 4 AND 8).
“2. WHETHER HAVING REGARD TO THE STATE OF PLEADING AND THE EVIDENCE BEFORE THE TRIAL COURT, THE LEARNED TRIAL JUDGE WAS RIGHT TO HAVE GRANTED THE RELIEFS OF THE RESPONDENT AND DISMISSED THE COUNTER CLAIM OF THE APPELLANT (GROUNDS 1, 2, 3, 5, 6, 7, 8, 9, 10, 11 – 14).”
Arguing Issue Number 1 of the Appellant on whether or not the learned trial judge was not wrong in discountenancing the evidence of DW1 and DW2 in the consideration of the appellant’s case on the ground that the evidence of DW1 and DW2 contradict their evidence in the earlier proceedings before Hon. F. J. Gbadeyan, J. as contained in exhibits R2, R3 and R4 (i.e. pages 77 and 79 – 81 of the record of aborted proceedings of the suit); the learned Counsel for the Appellant answered the above question in the affirmative arguing that the learned trial Judge was in serious error to have discountenanced the evidence of DW2 (Ganiyu Salami) on the grounds stated by the learned Judge in his Judgment. He conceded that where a witness’ evidence before a Court contradicts his previous statement, neither the witness nor the previous statement should attract any probative value adding that this position of the law is subject to some qualifications which is that the contradiction between the statement and evidence in Court must be real and not mere discrepancy.
For this proposition of the law he relied on the cases John Agbo v. The State (2007) 2 NCC 158 at 186 – 187; Erumeru v. Erumeru (1965) NMLR Page 411; Iwono Obade v. The State (1991) 6 NWLR (pt. 198) 43s at 456; Obiode v. The State (1970) 1 ALL NLR 35 at 40 and Sule v. The State (2009) MJSC (pt. 11) 70 at 85, on the nature of contradiction and the conditions under which such contradictory earlier statements and evidence in Court can be discountenanced since the trial Court would in certain circumstances accept part of the testimony of a witness and reject the rest where for instance a witness makes a statement covering several aspects of a case but only part thereof contradicts his previous statement.
The learned Counsel for the Appellant further submitted placing reliance on Adebowale Ajao v. The State (1954) 12 SC 1; that it is the law that the fact that the statement earlier made was not as full as the evidence in Court will not affect the witness’ credibility provided there is no inconsistency. It was his contention therefore that a careful comparison of the statement contained in Exhibits R2 (Page 67), R3 and R4 (Pages 77 and 79 – 81) of the Records of the Proceedings and the Evidence of DW1 in this case at Pages 207 lines 13, 19, 22 and 23 and DW2 at Page 209 lines 23-32 and Page 210 lines 8-12 of the Record of Appeal; would reveal that there is no contradiction between these pieces of evidence in the two proceedings.
He highlighted the evidence of the witnesses in the respective proceedings and cited the cases of Uwagboe v. The State (2008) ALL FWLR (Part 419) 425 at 447 and; Omopupa v. The State (2008) ALL FWLR (Part 445) 1648 at 1680 – 1681; to further reiterate that the learned trial Judge was in error to have discountenanced the evidence of the DW1 and DW2 on the bases of contradiction whereas in the case of the DW1 the only difference in the two sets of evidence is the explanation or reason why the Jumat Mosque became two instead of the original one.
In respect of the DW2, he maintained that from the reproduced versions, the Grounds of Appeal (Exhibits R3 and R4) merely confirm the evidence of the Appellant that he complained earlier on that the then trial judge rejected two of his documents tendered and refused his re-examination of DW3 (now DW2); and that assuming without conceding that the evidence contradicted each other, such contradiction was not enough to have discredited the Appellant moreso as the bone of contention thereat on the number of Jumat Mosques, the turbanning of the Appellant by the Emir of Ilorin, the time and place of migration of Dw2’s family to Sapati-Ile and the complaints in Exhibit R4 are insignificant parts of the evidence of DW1 and DW2. Again, the learned Counsel for the Appellant maintained that the areas of alleged contradiction do not relate to any of the live issues involved in the case and did not arise from the pleadings and this explained why the learned trial Judge did not furnish the particulars of the contradictions.
Relying again on the case of Usibaifo v. Usibaifo (2005) 1 S. C (Pt. 11) 60 at 72; still on the nature of contradictions which can avail a rival party, it was submitted that the furthest the learned trial Judge could go was to discountenance those parts of the evidence of DW1 and DW2 which contradict their earlier statements but nothing more. Obade v. The State (Supra) at 456 referred. This is more so, as the learned trial Judge relied on Exhibits 11-28 tendered by the Appellant through DW2 (pages 208 lines 16-34 and 209 lines 1-13) and accordingly the substantial portions of the evidence of DW1 and DW2 not affected by the alleged contradictions ought to have been accredited as they remained valid on the live issues in controversy. He therefore prayed that the Appeal be allowed on this issue taking into consideration the evidence of the DW1 and DW2.

ISSUE NUMBER 2
WHETHER OR NOT THE LEARNED TRIAL JUDGE WAS NOT WRONG IN NOT CONSIDERING AND ATTACHING PROBATIVE VALUE TO EXHIBITS 15, 16, 17 AND 18 ON THE GROUNDS THAT THE DOCUMENTS ARE PUBLIC DOCUMENT WHICH REQUIRED CERTIFICATION BUT NOT CERTIFIED AND THE DOCUMENTS WERE NOT TENDERED BEFORE THE PANEL SET UP BY THE ILORIN EMIRATE COUNCIL IN 1995. (GROUND 8)
The learned Counsel for the Appellant submitted that the learned trial Judge was in error not to have attached due probative value to Exhibits 15, 16, 17 and 18 on the erroneous ground that the documents are public documents which were not so certified and that the said documents were not tendered before the Panel set up by Emirate Council in 1995.
He submitted further that by Section 97 of the Evidence Act, the only classes of documents which require certification for their admissibility are secondary evidence/copies of public documents as defined in Section 109 of the Evidence Act, which Section was reproduced. Learned Counsel noted that a cursory look at the Exhibits in question reveals that they are documents addressed to Salami Ogundairo, Bale of Sapati-Ile from the Afon District Council, Asa Local Government Afon, and the Emir of Ilorin, Mallam Aliyu Abdulkadir respectively. Accordingly he took the view that those documents are private documents as defined by Section 110 of the Evidence Act, notwithstanding that they emanated from public institutions or figures. The case of Dale Power Systems Plc v. Witt & Busch Ltd (2007) ALL FWLR (pt. 394) 353 at 376 – 368; was cited in support of his submission maintaining further that, assuming the documents are public documents which is not conceded, they are originals and as such are admissible as primary evidence by virtue of Sections 93 and 94 of the Evidence Act on the authorities of Araka v. Egbue (2003) 7 S. C. 75 at 83 – 84; Daggashi v. Bulama (2004) ALL FWLR (Pt. 213) 1666 at 1718; Matori v. Bauchi (2004) ALL FWLR (Pt. 197) 1010 at 1057 C.A.
Thus, according to him, Exhibits 15- 18 as original documents/copies are primary evidence as envisaged by Section 96 of the Evidence Act and further that even if the said Exhibits are secondary evidence as defined by Section 95 of the Evidence Act, they not being public documents are not subject to certification and therefore were validly admitted.
Learned Counsel asserted still on these documents that they having not been objected to when tendered they are not absolutely inadmissible but conditionally admissible and cannot be ignored in the determination of, the case before the Court. On the authorities of Agbonavbare v. Ogbebor (2007) ALL FWLR (pt. 351) 1584 at 2599; Okere v. Fashawe (2006) 12 WRN, per Musdapher, J.S.C. he urged that those exhibits deserved ascription of probative value in the light of the facts and circumstances of the case.
On the holding of the Court below that the non-tendering of the Exhibits in question before the Panel of the Emirate Council rendered them worthless; it was learned Counsel’s submission that the learned trial Judge’s holding is legally and factually baseless. He then referred us to paragraphs 47, 48 and 49 of the Further Amended Statement of Defence and Counter Claim of the Appellant on pages 48-54 of the Records and the evidence of DW1-DW3 in paragraph 25 on page 97, paragraph 24 on page 98, paragraph 25 on page 104 and paragraph 9 page 111 of the Record all which show that the validity of Exhibit 8 has been seriously impugned by the Appellant.
The case of the Appellant on the veracity of Exhibit 8 learned Counsel again argued, is not challenged by the Respondent and his said Respondent’s evidence at page 204 lines 22-24 of the Records that Exhibits 1-10 are the documents he presented to the Panel, eroded the veracity of Exhibit 8 as the documents listed by the Committee on page 2 of Exhibit 8 as those presented by the Respondent are at variance with Exhibits 1-10 tendered in the case. From the foregoing, he therefore submitted that in view of the serious challenges to the veracity of Exhibit 8 by both the Appellant and the Respondent, the said Exhibit 8 cannot be used to deny Exhibits 15, 16, 17 and 18 of their pre-eminence in this case having regards to all the facts and circumstances.
On the other hand, on the assumption but without concession that the contents of Exhibit 8 are not in doubt, it was submitted that non-production of those Exhibits before the Panel by the Appellant cannot deprive the documents of their evidential value. He finally urged us to evaluate those documents and ascribe probative value to them since in the evaluation and ascription of probative value to documentary evidence the Appellate Court is in as good a position as the trial Court. Chief D. S. Yaro v. Arewa Construction Ltd & Ors. (2007) 10 MJSC 166 at 212: Jimoh & Others v. Akande & Another (2009) 1-2 S.C. (Pt. 1) 116 at 151 (S.C), were relied upon in urging us to allow the Appeal on this issue.

ISSUE NUMBER 3
WHETHER OR NOT THE LEARNED TRIAL JUDGE WAS RIGHT IN HIS CONCLUSION THAT FROM EXHIBIT’S 6, 11 AND 12 AND THE EVIDENCE OF THE APPELLANT, THAT UP TO THE TIME OF THE APPOINTMENT OF THE RESPONDENT IN 1989 THERE WERE NO KING MAKERS IN SAPATI-ILE AND THAT LATE KOLAWOLE BALOGUN AREMU AND THE APPELLANT WERE APPOINTED BAALE DURING THE REIGN OF THE RESPONDENT BECAUSE LATE KOLAWOLE BALOGUN SIGNED EXHIBIT 6 (AND EXHIBIT (1) AS KOLAWOLE BALOGUN AREMU FROM ILE ARIDA AND NOT AS BAALE (GROUND 9).
The learned Counsel for the Appellant again submitted that the learned trial Judge was in error in so holding and concluding as aforesaid. Expatiating on the above position, learned Counsel referred to Exhibit 6 dated 1st September 1992 and Exhibit 12 dated 29th September, 1992 where the Late Kolawole Balogun was the third signatory and conceded that the said Kolawole Balogun Aremu did not sign as Baale but added that he could not have so signed because from Exhibit 18 dated 28/09/92, the Baale of Sapati-Ile as at that month and year was Late Salami Ogundairo. Again learned Counsel for the Appellant noted that by the unchallenged evidence of the Appellant Kolawole Aremu Balogun became Baale in 1993 after the death of Baale Salami Ogundairo as supported by Exhibit 13 (the Enrolled Order of a case filed against Kolawole Balogun Aremu and Another which fact the Respondent admitted at page 205 lines 2 to 3 that the case now on appeal is the second he filed in respect of the title to the Baale of Sapati-Ile.
Accordingly, he was of the view that from the state of oral evidence as to when Kolawole Balogun Aremu became Baale and Exhibits 13 and 18 dated 28/9/92, it is clear that the finding of the lower Court that Kolawole Balogun was never a Baale because he signed Exhibits 6 and 12 not as Baale, is perverse as it has been shown that as at when the said Kolawole signed the document Salami Ogundairo was the Baale of Sapati-Ile.
In respect of the finding and holding of the Court on the non-existence of Kingmakers in Sapati-Ile as at 1989 when the Respondent was appointed Baale, it was contended by the learned Counsel for the Appellant that the Court below also erred in placing reliance on the evidence of the PW2 and PW3 while ignoring those of the Appellant (DW3), DW1 and DW2 (his witnesses). He argued that from the evidence of the PW2 and PW3 and/or Exhibit 3, the Respondent did not become the Baale of Sapati-Ile in 1989 as erroneously found by the trial Court.
The learned Counsel for the Appellant in this respect further referred us to page 201 lines 23 34, Exhibit 4 dated 17/7/2002 written by the Respondent which discloses that he was installed in December, 1994 and not 1989; page 204 lines 12 – 14 of the Records which according to Counsel, that evidence referred to the panel that produced Exhibit 8 meaning that the Respondent was appointed after Exhibit 8 in 1996; whereas by Exhibit 1, the title of Baale was conferred on the Respondent on 5th December, 1994 by Emir Aliyu Abdulkadir. The learned Counsel for the Appellant therefore submitted on the score of the contradictory evidence that one is at a loss to fathom the basis of the learned trial Judge’s finding that the Respondent became Baale in 1989.
Turning to the evidence of the Appellant which he described as consistent, he argued that the Appellant testified that the moment the Respondent arrogated to himself the title of Baale Sapati-Ile, the Kingmakers and people commenced protest as shown in Exhibit 6, 12 and even 29 dated 28/08/1999 which petitions also demonstrated copiously by their content, the existence kingmakers.
He maintained that Exhibit 11 dated 28/05/1994 which relates to the appointment of the Appellant as the Baale of Sapati-Ile, came before the Respondent was allegedly conferred with the title of Baale of Sapati-Ile on December 5th 1994 as reflected in Exhibit 2 and as such the existence of kingmakers predated the purported appointment or conferment of the title of Baale on the Respondent.
Learned Counsel to the Appellant drew our attention to the fact that parties pleaded and relied on different modes of appointment of Sapati-Ile which are particular and exclusive to each of the parties. He noted that while the Respondent based his case on appointment by his family to be ratified by the Bales (Heads of compounds), the Appellant relied on appointment through nomination by his family for appointment by 5 (five) Traditional Kingmakers.
Learned Counsel pointed out that while the Appellant gave evidence in line with his pleadings through DW1 and DW2, the Respondent abandoned his pleaded method of appointment when he as PW3 at page 205 lines 22-23 concluded his evidence to the effect that it is the Emir who appoints the Baale of Sapati-Ile and who so appointed him because it is their family that reigns as Baale. The Respondent’s evidence at page 204 of the Records lines 12 to 14 thereof was also highlighted to submit on the authority of Odutola v. Sanya (2008) ALL FWLR (Part 400) 780 at 795; that in the face of those obvious contradictions, the learned trial judge could not have rightly placed any premium on the evidence of the Respondent as rebutting that of the Appellant on the existence of Kingmakers in Sapati-Ile. Moreover, he further asserted, the evidence of the Appellant on the existence of the Kingmakers was not only in line with his pleadings but was unchallenged by the Respondent who was not only unable to prove any other method of appointment of Bales and did not even call the alleged Baales (the compound heads) to support his claim on his method of appointment.
The learned counsel for the Appellant therefore called on us to reverse the baseless findings and the conclusions of the learned trial Judge and allow the Appeal on the issue.

ISSUE NUMBER 4
WHETHER OR NOT THE LEARNED TRIAL JUDGE WAS NOT WRONG IN HOLDING THAT IT WAS NOT IMPERATIVE FOR CLAIMANT/RESPONDENT IN THIS CASE TO PLEAD AND PROVE UNBROKEN CHAIN OF SUCCESION AS A CLAIMANT IN THE LAND MATTER MUST DO HAVING REGARD TO THE CLAIMANT/RESPONDENT’S CLAIM OF EXCLUSIVE ENTITLEMENT AND PERPETUAL SUCCESSION TO THE STOOL OF BAALE OF SAPATI-ILE SINCE ITS FOUNDING. (GROUND 1).

On this issue, Mr. Jawondo again submitted that the learned trial Judge was in error to have held as he did. He referred particularly to the pleadings of the Respondent in paragraphs 3, 4, 5, 6, 11 and the reliefs in the Further Amended Statement of Claim on pages 168 to 170 of the Records, submitting further that from the foregoing, it is clear that the Respondent founded his claim on traditional history. Learned Counsel conceded on the authorities of Odutola v. Sanya (2005) FWLR (pt. 400) 780 at 795 and Popoola v. Adeyemo (1992) 9 S.C.N.J. 79 at 90; that Section 45 of the Evidence Act applies to land matters but submitted that where a party’s claim of entitlement to an exclusive possession of any title is based on traditional history, the party is duty bound to plead and prove how his progenitor became the owner or is entitled to an unbroken claim of succession, whether or not the claim is in respect of land. Popoola v. Adeyemo (Supra). Citing again Ali v. Aleshinloye (2000) 2 S.C.Q. R. (Part 1) 285 at 308; Falomo v. Onakammi (2005) 11 WRN 141 at 170; and Popoola v. Adeyemo (1992) 9 SCNJ 79 at 97-98; the learned Counsel reiterated that since the Respondent alleged that his family first founded Sapati-Ile and has been in unbroken possession or succession to the Stool by the male members of the Digunlese Origianl Founder, the Respondent had the duty to prove:-
(i) Who founded Sapati-llc and the title of Baale of Sapati-Ile:
(ii) How the title was acquired and founded and
(iii) Particulars of intervening Baales through whom the Respondent claims.
Urging us to hold as above, he prayed us again to allow the Appeal on this issue.

ISSUE NUMBER 5
WHETHER OR NOT THE TRIAL COURT WAS NOT WRONG IN ITS CONCLUSION THAT THE EVIDENCE OF TRADITIONAL HISTORIES OF THE PARTIES CONFLICT AND AS SUCH RESORT HAS TO BE HAD TO THE RULE IN KOJO V. BONSCE” (GROUND 2).
Learned Counsel for the Appellant on this issue, equally submitted that the learned trial Judge erred in law to have held that the evidence of traditional histories proffered by the parties are in conflict and non-probable and as such resort had to be made to the Rule in Kojo v. Bonsie (1952) 1 WLR 1223. He adopted his submissions on Issue Number 4 submitting further that where title is founded on traditional history the Claimant must prove his case by credible evidence and in so doing must rely the strength of his case and not on the weakness of the Defendant’s although (Claimant) may take advantage of the weakness of the Defendant’s case.
Relying on the cases of: – Adesanya v. Aderonmu & Others (2006) 6 S. C. (Pt. 1) 18 at 25: Yusuf v. Adegoke (2007) 4 S. C. (Pt. 1) 120 at 138: Owoade v. Omolola (1988) 5 S. C. 1 at 19; he submitted that the failure of the claimant to prove his case commands dismissal and the weakness of the Defendant’s case will not avail the Claimant; adding that on the authority of Jacob Popoola & Others v. Adeyemo & Another (1992) 9 SCNJ 79 at 97, earlier cited, the Claimant must establish the founder of the Stool, how the Stool was founded, and the particulars of intervening owners through whom he claims, just as it is applicable in land matters. Ali & Others v. Alesinloye & Others (2002) 2 SCQR (Pt. 1) 285 at 308 per Iguh, J.S.C.), referred.
As regards the quality of the evidence proffered by the Respondent, it was the view of the learned Counsel to the Appellant that it failed to prove his case by cogent, consistent, and credible evidence of traditional history as required by law. References were made to the dictum of Tobi J.S.C. in Salawu v. Yusuf & Another (2007) 5 S. C. 35 at 36 on the rule in Kojo II v. Bonsie (1957) 1 WLR 1223; the decision in Odutola V. Sanya (Supra) at 794; to submit that the Respondent’s case collapsed as his evidence failed the test of founding and unbroken chain of successions from the alleged founder of Sapati-Ile. Digunlese through the alleged successive Baales of Sapati-Ile as required by law.
With respect to pleading and evidence of intervening successors (Baales of Sapati-Ile) through whom the Respondent claimed, he referred us to paragraphs 4 and 5 of the Further Amended Statement of Claim at page 168 of the Records where the previous Baales of Sapati-Ile were enumerated; the evidence of PW3 (paragraph 3) of page 61 which implies that Sapati-Ile was founded about 315 years before commencement of the Suit whereas under cross-examination at page 204 lines 34 to page 205 lines 1-2 Memudu (the 3rd Baale) was succeeded by Suberu Aweda Iko and Mohammadu Iyanda Iko, contrary to the Respondent’s pleadings and which evidence destroys the Respondent’s chain of succession. Yusuf v. Adegoke & Another (2007) ALL FWLR (Pt. 385) 384 at 403 & 422 was cited in support of the above position.
On the other hand, he continued, assuming that Memudu (3rd Baale) died in 1960 and was succeeded by Suberu Aweda Iko in 1960 or 1961; by the Respondent’s evidence, since Suberu Aweda Iko reigned for 45 years, he must have reigned till 2005. However, under cross examination, Counsel maintained, at page 204 line 27 of the Records, he (Respondent) claimed that he became Baale of Sapati-Ile in 1989 and was turbaned on 15/12/1994, after admitting earlier on that two Baales do not reign at the same time in Sapati-Ile, a fact also confirmed by PW2 that there had never been interregnum in the reigns of Baales in Sapati-Ile.
Other aspects of the misfortunes of the case of the Respondent highlighted by Mr. Jawondo include PW2’s assertion at page 201 lines 33-34 as to who was the Baale of Sapati in 1992 between Karim Akanni and the Respondent; page 202 lines 1 – 2 on the disparity of years between the reign of Mohammed Iyanda Iko and the Respondent which contradictions, unbelievable and impossible evidence of succession failed to establish the unbroken chain of traditional history from the alleged founder family (Digunlese) to the Respondent.
Citing again Adebayo v. Ighodalo (1996) 5 MAC 101 at 106; Odutola v. Sanya (Supra) at 793 – 794 and Falomo v. Onakanmi (2005) 11 WRN 141 at 170; on the effect of evidence which is at variance with a party’s pleadings, learned Counsel for the Appellant urged us to allow the appeal.
Turning to the evidence of the Appellant which according to him is straight forward and credible on the founding of Sapati-Ile by Ogundairo through the unbroken chain of successors to the Appellant, the Learned Counsel to the Appellant referred to paragraphs 3, 4, 5, 6 and 7 of the Further Amended Statement of Defence and Counter-Claim (page 48 of the Records); his evidence in paragraphs 4 and 5 of the Appellant’s Statement on Oath at page 94 of the Records and paragraphs 8 and 9 of the Statement on Oath of the DW2 at page 101 of the Records; submitting further that the evidence of the DW2 and DW3 on the founding of Sapati-Ile by Ogundairo remained unchallenged and deemed admitted, and as such, the court should accept same as credible on the authorities of Martchen Industries Nigeria Ltd. v. M.F Kent Africa Ltd (2005) 5 S.C (Pt. 11) 121 at 128; Durosaro v. Ayorinde (2005) 3 – 4 S.C. 14 at 27 and Amayo V. Erinmwingbovo (2006) 5 S.C (Pt. 1) 1 at 15.
On the issue of unbroken chain of succession as pleaded in paragraphs 8, 8(a), and 9 of the Further Amended Statement of Defence and Counter -Claim at pages 48 – 49 of the Records, he referred to the evidence of the DW2 on 10 successive Baales of Sapapti – Ile as enumerated in page 28 of the Brief of the Appellant and supported by the evidence of DW1 a man of 80 years who had testified as having witnessed four successive Baales from the Defendant’s Ogundairo’s family and which evidence was also conceded to as the witness was not cross – examined. Amadi v. Nwosu (1992) 6 SCNJ (pt. 1) 59 at 71; Hill Station v. Adeyi (1996) 3 – 4 MAC 125 at 131; were relied upon to submit again that from the state of pleadings and evidence, the Appellant proved the founding fathers of Sapati-Ile, how it was founded and the unbroken chain of succession down to the Appellant as the 10th Baale from Ogundairo’s family and as such the Appellant not the Respondent is/was entitled to judgment on his evidence of traditional history. Placing reliance again on the authorities of Okoko v. Dakolo (2006) 7 S.C (pt. III) 84 at 98 – 99; C & C Construction Co. Ltd. v. Samuel Tunde Okhai (2003) 12 S.C (pt. 1) 133 139; he was of the view that testing the opposing histories of the parties the Appellant’s history was more credible, cogent and probable as against that of the Respondent and that by the state of evidence, it is/was not necessary to resort to recent acts of possession. Ogun v. Akinyebi (2005) 8 WRN 41 at 67; Ukaegbu v. Nwokolo (2009) 1 – 2 S.C 21 at 42: Odutola v. Sanya (Supra) 794; were relied upon on the circumstances under which acts of recent possession can be resorted to and the need not to so do where the evidence of the Plaintiff/Respondent is contradictory on the traditional evidence on the founder and mode of founding Sapati-Ile.
On the whole, he prayed us to allow the appeal as the evidence of the Respondent was/is not credible whereas that of the Appellant was credible, reliable and not disconnected but connected and well linked in all material particulars.

ISSUE NUMBER 6:
WHETHER OR NOT HAVING REGARD TO THE ORAL AND DOCUMENTARY EVIDENCE BEFORE THE COURT PARTICULARLY EXHIBITS 1, 2 AND 8 AND EXHIBITS 13, 14, 15, 16, 17, 18, 19, 20, 21-27, THE LOWER COURT WAS NOT WRONG IN TREATING EXHIBIT 8 DATED 06/02/1996 AS EVIDENCE OF RECENT ACTS OF OWNERSHIP AND IN GRANTING THE RESPONDENT’S CLAIM AND DISMISSING THE APPELLANT’S COUNTER-CLAIM IN THE FACE OF CONTRADICTORY PLEADINGS AND EVIDENCE FROM THE RESPONDENT AS AGAINST THE STRAIGHT FORWARD CREDIBLE AND RELIABLE EVIDENCE OF APPELLANT ON THE GROUND THAT THE RESPONDENT’S EVIDENCE OF RECENT ACTS OF OWNERSHIP AND POSSESSION PREPONDERATED THAT OF THE APPELLANT? (GROUNDS 3, 5, 6, 7, 10, 11, 12, 13 AND 11).
The argument of the Learned Counsel for the Appellant is repetitive of the submissions earlier proffered on issues 2 to 5 and to say the least, verbose and prolix on this issue. Nevertheless, the Learned Counsel in sum, while conceding that where evidence of traditional histories proffered by parties are in conflict and none can be said to be probable, resort can be had to recent acts of possession, argued per contra that the principle applies where the traditional histories conflict with each other and not where the evidence are parallel as in this case where the Claimant/Respondent was duty bound to prove the traditional history with credible and cogent evidence. Nwakonbia v. Nwogu (2009) 4 – 5 S.C (pt. 11) 144.
In the case at hand, even if conceded that the traditional histories of the parties are conflicting and none is probable thus warranting the applicability of the Rule in Kojo v. Bonsie II (Supra) as stated by the Supreme Court in Chief Lasisi Balogun & Ors v. Onaolapo Akanji & Ors (2005) 3-4, S.C 95 at 103-107 & 115; it was his contention that the Claimant/Respondent’s case deserved a dismissal having regard to Exhibits 1, 2, 3 & 8 vis-‘E0-vis Exhibits 13, 14, 15, 16, 17, 18, 19, 20 – 27. It was his further contention that the lower court was in serious error to have held that Exhibit 8 dated 26/02/1996 was/is an act of recent possession and ownership and thereby concluded that the Respondent’s acts of recent possession and ownership preponderated those of the Appellant having regard to Exhibits 1, 2, 3 & 8 and Exhibits 13, 14, 15, 16, 17, 18, 19, 20 27. Thus by the oral and documentary evidence tendered, the recent acts of ownership and possession by the Appellants are overwhelming, he insisted.
On what constitute recent acts of ownership and possession. Salami & Anor v. Yusuf & Ors (Supra) at 57, was cited in support thereof with references then made to the evidence of PW2 and PW3 and Exhibits 1, 2, 3, 4, 5, 7, 9 and 10, all which spanned 1980 to 2002 when the Respondent filed this case (22 years only) and the contradictions between the Exhibits and the oral testimonies of the Claimant and his witnesses as to whether the title of Baale is rooted in tradition or is a creation by conferment on the occupant by the Ilorin Emirate; when and how he became the Baale of Sapati-Ile; the conflict between the findings in Exhibit 8 signed on 16/2/1996 which findings are against the position of the Claimant/Respondent’s case as presented by him and PW2. Accordingly, the Learned Counsel for the Appellant reiterated that Exhibit 8 by the date and age of the document cannot be treated as recent acts of ownership and possession by the Respondent but rather that the dispute before the court was the subject of inquiry by the Emirate Council which report damaged the case of the Respondent. Agbodike v. Abueze (2002) 12 WRN 58 at 74-75 referred.
As for the Defendant/Appellant, Learned Counsel submitted that the oral evidence of DW1 and DW2 and Exhibits 13-18, 21 -26 show recent acts of ownership and possession by the Appellant spanning 50 years. He then highlighted the facts of Exhibits 15 dated 14/05/1959, 16, 17 and 18 which show that the Baale of Sapati-Ile up to 28/09/1992 was Salami Ogundairo; that Exhibit 15 confirmed that Magajis were under Baale as demonstrated by the second paragraph of that document; and further confirmed by the Claimant/Respondent (PW3) at page 204 lines 19-21 of the Records that Magajis are under the Baale of Sapapti-Ile and that the legal effect of Exhibits 15 18 is the destruction of Respondent’s case that he was appointed the Baale of Sapati-Ile in 1989 even when he admitted that there was never a period where there were two Baales in Sapati – Ile on the throne at the same time.
Against the foregoing, it was posited on the authorities of First African Trust Bank Ltd. v. Partnership Investment Co. (2003) 12 S.C (pt.61) 90 at 127 and Kimdey & Ors. V. The military Governor of Gongola State & Ors (1988) 5 S. C 46 at 95; that the weight of documentary evidence before the court shows that the Appellant’s evidence of entitlement to the stool of Baale of Sapati Ile and his family’s recent acts of ownership and possession based on founding and hereditary succession is not only credible but also very overwhelming against the Respondent’s contradictory evidence.
The Learned Counsel further referred to paragraph 5 of the Statement on Oath of the PW2, paragraphs 5 and 7 thereof at page 91 of the Records; the evidence of PW2 and PW3 to the effect that the Claimant/Respondent challenged the appointment of Kolawole Balogun Aremu as Baale (Exhibit 13) and the appointment of Alhaji Baba Agba as Chief Imam by Kolawole Balogun Aremu in his capacity as Baale of Sapati-Ile (Exhibit l4), and the withdrawal of Exhibit l3 because of the death of Kolawole Balogun Aremu which pieces of evidence show that the said Kolawole Balogun Aremu reigned as Baale of Sapati-Ile which appointment was never set aside by any court of law before his death.
He further alluded to the evidence on record which showed that:-
1. Appellant was appointed Baale of Sapati-Ile in accordance with native laws and customs of the community in 1994 after the death of Kolawole Balogun Aremu.
2. Attempt by Respondent to claim that Appellant was not a native of Sapati-Ile collapsed on the face of his Further Amended Statement of Claim and the evidence of the Respondent (PW3) and his witness (PW2) which from the Statement the Appellant either settled in Sapati-Ile from 1954 during the reign of Memudu Akanbi Iko whereas upon addition of the number of years the Respondent reigned to those of his predecessors on the stool, it translates to 54 and 94 years even when the Appellant is only 66 years old.
3. From the evidence on record and by recent acts of ownership and possession, the Appellant’s family produced Baales spanning 50 years as shown by Exhibits 15, 16, 17, and 18 and is therefore entitled to judgment.
4. On the issue of Village Headship, parties agree that the traditional Baale is automatically the Village Head of Sapati-Ile Village Area subject to appointment by the Ilorin Emirate Council and Exhibits 19 and 20, 27 (Minute 28 on page 5 of the Exhibit) show the Appellant as the person appointed as the village head of the Area and there is no document showing that the Appellant had been removed.
5. There is nothing to show that the Respondent had been appointed the Village Head of the Village Area as Exhibits 2, 4, 5, 9 and 10 talk of appointment as Baale of Sapati-Ile by “conferment” on him on 15/12/94, whereas Exhibits 13-20 and 27 are recent acts of ownership by the Appellant as the more probable traditional history.
6. Evidence of the Respondent on the person(s) vested with the appointment of Baales is contrary to his pleadings. Paragraph 11 and 18 of the Further Amended Statement of Claim and Amended Reply and Defence to Counter-Claim and page 205 of the Records refer. The case of Nsirim v. Nsirim (2002) 12 WRN 1 at 16 and Yusuf v. Adegoke & Anor. (supra) at 161 – 165; were again relied upon on the effect of evidence being at variance with a party’s pleadings to pose the question as to when the Emir of Ilorin became the appointing authority when the Respondent had claimed that Sapati-Ile had existed before the founding of Ilorin.
7. The Appellant on the other hand pleaded the mode of appointment of, Baale of Sapati-Ile in paragraphs 13, 14, 15 of his Amended Statement of Defence and Counter-Claim and gave evidence in line with his pleadings and accordingly, this Court, it was urged, should hold that the evidence of the Appellant on acts of recent possession and ownership preponderated those of the Respondent and witnesses and Issue Number 6 should be resolved in favour of the Appellant.
In the final analysis, the Learned Counsel for the Appellant contended that the lower court was wrong to have dismissed the Counter-Claim of the Appellant while granting all the Claims of the Respondent as it is trite law that a Claimant must be consistent in the gape put forward by him in both his pleadings and evidence. Ajide v. Kilani (1985) 3 NWLR (pt. 12) 258 at 269; Awuse v. Oditi (2003) 11 S. C 128 at 149; were again cited to argue that from the Respondent’s Amended Statement of Claim and Arnended Reply to the Further Amended Statement of Defence and Counter – Claim at pages 168 – 170 and 55 – 59 of the Records and the evidence of the PW2 and PW3 as contained in pages 90 – 93: 201 – 203; 61 – 69; 203 – 205 respectively of the Records, together with the Exhibits tendered the Respondent’s case is a bundle of inconsistencies, contradictions and make belief. Relying on the case of Agbo v. State (2006) 1 S. C 73 at 90: he urged us to treat the witnesses as unreliable following the inconsistencies and contradictions on material facts.
Thus, it was further submitted therefore that the holding of the learned trial Judge that paragraph 5 of the Statement on Oath on page 91 of the Records is a typographical error tantamount to mere speculation or erroneous assumption that the court ought not to make. Ejezie v. Anuwu (2005) ALL FWLR (pt.422) 1005 at 1041 (S.C) refers.
He contended still on this point that a clear and positive averment in an affidavit by a deponent on oath can never amount to typographical error which the court can dismiss with a wave of the hand or correct on its own but that such an error can only be corrected either by the deponent or counsel on his behalf in accordance with Sections 85 of the Evidence Act, more so when the Respondent did not complain of the commission-of an error. On the authorities of Okwejiminor v. Gbakeji (2005) ALL FWLR (pt. 409) 405 at 447; Abu v. The State (2008) ALL FWLR (pt. 447) 126 at 139, he urged us to hold that the court below ought to have treated such averment as a contradiction rather than descending into the arena.
He concluded that from the state of pleadings and evidence that the Baale of Sapati-Ile is the Village Head of Sapati-Ile Village Area, and the absence of any document from the Respondent that he was appointed Village Head, the logical conclusion is that the Appellant is the rightful Baale of Sapati-Ile. This fact is buttressed according to Counsel by Exhibits 21, 23, 24, 25, and 26 spreading from 14th August, 1995 to 21st February 2005; and the fact that while Exhibit 25 dated 28/04/03 invited the Appellant to a meeting over Chieftaincy tussle in respect of the Stool of Baale of Sapati-Ile, Exhibit 26 dated 21/02/05 emphatically addressed and treated the Appellant as the Baale of Sapati-Ile.
He then urged us to hold that the above documents show that the Appellant and not the Respondent is the Baale of Sapati-Ile and prayed us to allow the Appeal.
RESPONDENT’S ISSUES AND ARGUMENT OF COUNSEL THEREON
As noted earlier, the learned Counsel for the Respondent. K. B. Badmus Esq. formulated two issues for determination in the Appeal and on issue Number:-
“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

Learned Counsel for the Respondent submitted that learned Counsel for the Appellant down-played deliberately the contradiction between the evidence of DW1 in the aborted trial (Exhibit R2, Page 7) and his evidence in the extant proceedings. He referred to the evidence of the DW1 in Exhibit R2 Page 67 lines 27 – 28 and 34 – 36 as against his evidence at page 207 lines 23 – 32 of the Record of Appeal now under consideration.’
It was then argued based on the juxtaposition of the above pieces of evidence that the issue of turbaning of the Defendant was one of the live issues in the case and that since the parties agreed from their pleadings and evidence that the turbaning of Baale of Sapati-Ile must necessarily take place before the Emir, the issue of whether the Defendant had been taken before the Emir or not becomes germane. He noted that in Exhibit R2 the DW1 admitted that the Appellant had not been taken before the Emir whereas at the trial of the case at hand he told the Court that he did not say in the previous case that the Appellant had not been taken before the Emir. Learned Counsel for the Respondent observed that his colleague on the other side curiously ignored the portion of the evidence of the DW1 which touched on this aspect but concentrated on the issue of number of Jumat Mosques.
Regarding the evidence of the DW2 at the aborted trial at pages 77, 79, 79-81 of Exhibit R2 particularly page 77 lines 11-14 as juxtaposed against that on page 209 lines 23-32 and page 210, lines 8-12 of the Record of Appeal, as to his origin and family migration to Sapati-Ile. the existence of Esa Kingmaker and the purport of his evidence as can be gleaned from the evidence of DW3 (Appellant) on page 213 lines 27-35 which were highlighted; the learned Counsel for the Respondent again pointed out that one of the live issues in this case is the existence or otherwise of Kingmakers in Sapati-Ile one of which is Esa their head according to the DW2 and was held by his great grandfather as first occupier of the post.
He highlighted the discrepancy between the testimonies of the DW2 on the Esa title in Exhibit R2 and the families he met at Sapati-ile having migrated from Madi while in Court it was stated that his ancestors migrated from Oyo Ile about 400 years before the case and his denial that he told the Court in Exhibit R2 that his family met only two families. From the foregoing, it was submitted that the learned trial Judge was right to have held that the credibility of the evidence of the PW1., DW1 and DW2 was impeached by reason of their being in conflict with the evidence they gave at the abortive trial. To buttress his submission he cited and relied on the case of Ayawale v. Tanda (1988) 1 NWLR (Part 68) 22 at 36.
In respect of the DW2 who falsely testified according to learned Counsel, on matters which were within his knowledge, he took the view that the learned trial Judge was right to have denied him credibility on issues before the Court. For the above submissions he again placed reliance on Oyeneyin v. Akinkugbe (2001) 1 NWLR (Part 693) 40 at 54 and Nnajio for v. Ukonu (1956) 14 NWLR (Part 36) 505 at 521; to submit that all the cases cited by the learned Counsel for the Appellant on this issue are not apposite as they all concern previous statements not on oath.
On the failure of the learned trial Judge to attach probative value to Exhibits 15, 16, 17 and 18 he referred to Section 109 of the Evidence Act which defines Public Documents, submitting that Afon District Council and Asa Local Government the makers of Exhibits 15, 16 and 17, are Official Bodies and the three Exhibits are definitely public documents, so also is Exhibit 27 – the minutes of meeting of the Ilorin Emirate Council which the Appellant certified.
Accordingly, the authority of Dale Power Systems Plc v. Witt & Busch Ltd. cited by learned Counsel for the Appellant, is not applicable to the facts of this case learned Counsel for the Respondent further posited. The learned Counsel for Respondent conceded that Exhibit 18 is not a public document and therefore its improper certification does not affect its admissibility but added that the said Exhibit 18 has little or no probative value as far as the live issues of whether Appellant or any of his family members had ever been appointed the Baale of Sapati-Ile as neither he nor any member of the Ogundairo family has any document appointing him Baale of Sapati-Ile.
According to Respondent’s Counsel, invitation letters to meetings no matter their number, can never be equated to document of appointment as Baale of Sapati-Ile and that in the event they are overruled, Exhibits 15, 16, 17 and 18 no matter the evidential value they may possess, were abrogated by Exhibit 5 and the findings and recommendations contained in Exhibit 8 against which the Appellant has neither appealed nor challenged. The Appellant also has not either before nor at the trial challenged Exhibit 5 and accordingly learned Counsel urged us to resolve
Respondent’s Issue Number 1 against the Appellant and in favour of the Respondent.
On Issue Number 2 which is WHETHER HAVING REGARD TO THE STATE OF PLEADINGS AND THE EVIDENCE BEFORE THE TRIAL COURT, THE LEARNED TRIAL JUDGE WAS RIGHT TO HAVE GRANTED THE RELIEFS OF THE RESPONDENT AND DISMISSED THE COUNTER-CLAIM OF THE APPELLANT; the learned Counsel for the Respondent drew our attention to the fact that both parties and witnesses gave evidence of traditional histories and tendered documents in proof their respective Claim and Counter-Claim. To this extent he noted, parties were on the same pedestal as far as the burden of proof is concerned, a Counter-Claim being a cross-action which must be proved at the hearing. Obmiami Brick & Stone (Nig) Ltd v. A. C. Ltd (1992) 3 NWLR (Pt. 229) 260 at 298, refers.
Alluding to evidence of the PW1 and PW2 and Statements on Oath, the learned Counsel was of the view that they traced by traditional history the founding of Sapati-Ile by the Respondent’s ancestor called Digunlese who was the first Baale and whose lineage has been producing the subsequent Baale(s) up to the Respondent. In this vein, the Court below, it was contended, was right to have found and held that the Statement on Oath of the PW2 on the reign and death of Abdulkarim Akanni Iko and his death on 9th August, 1988 must have been a typographical error and cannot be faulted, on the grounds that Courts are neither robots nor computers that cannot draw inferences.
According to learned Counsel, in so far as the inference drawn is not unreasonable or perverse, the Appellate Court will not interfere with same and that the inference drawn by the Court on the pleadings, evidence under cross-examination of PW2 and the Statement on Oath of other witnesses was neither unreasonable nor perverse. He highlighted the contents and purports of Exhibits 1, 2, 3, 5, 7, 8, 9, 10 as tendered by the Respondents and Exhibits 11, 15, 16, 17 and 18, 19, 20, 21, 22, 23 – 26 and 27 tendered by the Appellants; submitting that from the sets of documents tendered by the respective parties and the facts which can be deduced: the Appellant has no document to show that he or any body from his family was either appointed Baale of Sapati-Ile or had his appointment approved/confirmed by any authority except that by minutes No. 28 of Exhibit 27, a village Area comprising Ago-Oja, Sapati-Oko, Ilaji Garba etc was created and Appellant appointed its Village Head with effect from 25th October, 1994.
Learned Counsel also highlighted the Respondent’s pleading and evidence that Baale, Mogaji, Alangua or Village Head of Sapati-Ile mean the same thing and that while Baale is Yoruba language. Mogaji/Alangua is Hausa and Village Head is English all which mean the Head of Sapati-Ile. Paragraph 10 of the Further Amended Statement of Claim at page 16 of the Records was cited so also were paragraph 17 of the Amended Reply to the Further Amended Statement of Defence and Counter Claim at page 57 of the Records: paragraph 8 of the Statement of oath of the Respondent at Page 62 and paragraph 8 of the Statement on Oath of PW2 at page 91 of the Records. He maintained that there was uncontroverted evidence before the trial Court that it is the Respondent and not the Appellant that Asa Local Government pays salaries as Baale of Sapati-Ile (Page 212, lines 26 28 the evidence of the DW2 under cross examination) refers.
Turning to the question of traditional histories of the parties, the learned Counsel for the Respondent asserted that the learned trial Judge rightly concluded that the evidence of traditional histories given by the two parties conflicted and duly resolved the conflict by referring to facts in recent years as established by evidence and seeing which of the competing evidence is more probable as set down in Kojo II v. Bonsie (1957) 1 WLR 1223 at 1226 and also Sanusi v. Ameyogu (1992) 4 NWLR (Part 237) 527 at 548. The facts in recent years were enumerated to include Exhibits 1, 2, 3, 5, 7, 8 and 9 tendered by the Respondent and admitted by the Court and the admitted facts by DW2 that there is no letter of appointment of the Appellant as Baale at page 212 lines 4-5 of the Records: that it is the Respondent and not the Appellant who receives salaries/stipends from Asa Local Government at page 212 lines 26-28 thereof all of which on the authorities of Alade V. Awo (1975) 4 S. C. 215 and Adeyemo v. Arokopo (1988) 2 NWLR (Part 79) 703 at?; show that the Respondent is entitled to the Baale stool.
He reiterated that apart from Exhibits 19, 20 and 27 minutes No. 28 showing that Appellant was appointed by the Ilorin Emirate Council as Village Head of a Village Area comprising Ago-Oja, Sapati-Ile, Mama, Budo-Agun etc, there is no document before the trial Court appointing or approving the Appellant’s appointment as the Baale or any member of his family. Respondent’s on the other hand, he insisted, has Exhibits 2, 9, 10 appointing, approving or re-approving his appointment as Baale of Spati-Ile by Ilorin Emirate Council and Asa Local Government respectively
together with Exhibit 3 approving the appointment of his predecessor as the Village Head of Sapati-Ile; Exhibit 5 also from Ilorin Emirate Council addressed to Mr. K. Shokore, Assistant Commissioner of Police confirming the authority of the Respondent as the Baale of Sapati-Ile: Exhibit 8 which is the Report of the Panel set up by the Emirate Council to investigate the dispute between the Respondent and the Appellant over the Village Headship of Sapati-Ile which Report favoured the Respondent.
Also, learned Counsel continued, although Exhibit 27 minute 28 created the Village Area of which the Appellant was appointed as head, he was neither appointed Baale of Sapati-Ile nor was the appointment traced to his being a member of the Baale of Sapati-Ile family but the three documents upon which his root of title are predicated were explicit on the post to which he was appointed irrespective of Exhibits 21-26 which are mere notices of or invitations to meetings addressed to the Appellant.
Thus, he surmised that the post of Village Head to which the Appellant was appointed is different and distinct from the post of Baale, Mogaji or Village Head of a Village which appointment is a customary and local affair of the Village concerned whereas that of the Village Area Head is the prerogative of a native authority which created the Village. For the above position reference was made to Suit No;- Z/29/1966, Rufus Kola Olajide & 1or v. Aina Asaoye & 3 Others (Unreported Judgment of the Hon. Justice Mohammed Bello of blessed memory delivered on 19th September, 1967 at pages 2-3.
Learned Counsel asserted that the Native Authority in the instant case is the Ilorin Emirate Council and the Appellant admitted under cross-examination that Sapati-Ile Village is a creation of Ilorin Emirate Council which Council has the prerogative of appointing its Village Head, and so appointed him Baale of Sapati-Ile during the reign of Baba Agba the Emir of Ilorin. In another breath learned Counsel noted, the Appellant stated that it is the duty of the Emirate Council to approve the selection and that Asa Local Government does not appoint Baale of Sapati-Ile but only approves after selection and approval by the Emirate Council, and finally that he was appointed by both the Emirate Council and the Local Government by Exhibits 19 and 20 (Pages 214 the last two lines and 215 lines 1 – 8 of the Records, refer). Accordingly, by the above admissions and contradictions, the learned Counsel for the Respondent urged us to hold that the lower Court rightly dismissed the Counter-Claim of the Appellant and rightly granted the relief’s of the Respondent.
On the holding of the learned trial Judge that up to the time of appointment of the Respondent in 1989, there were no Kingmakers in Sapati-Ile, and that Kolawole Balogun Aremu and the Appellant were appointed Baale during the reign of the Respondent because Late Kolawole Balogun Aremu signed Exhibit 6 simply as Kolawole Balogun Aremu of Ile-Arida, learned Counsel for the Respondent argued that such finding cannot be faulted having regards to the pleadings, the Statements on the Oath of the Appellant and his witnesses and Exhibits 6, 11 and 12.
References were made to paragraph 9, page 49 of the Records, the evidence of DW1 in his Statement on Oath (paragraph 12 page 111 of the Records as to how Kolawole Balogun Aremu succeeded Salami Ogundairo who died in 1992 and the pleading of Appellant that he succeeded the said Kolawole Balogun Aremu: Exhibit 6 dated 1st September 1992 which was signed by the deceased Kolawole as No. 3; Exhibit 12 dated 29th September 1992 which he also signed as No. 3: in contending that neither in the pleadings nor in his Statement on Oath or those of his witnesses, did the Appellant state the precise dated in 1992 when Salami Ogundairo died and was succeeded by Kolawole Balogun Aremu. Thus, the learned trial Judge cannot be castigated for assuming, as he did, that the said Kolawole merely signed Exhibits 6 and 12 as Kolawole Balogun Aremu of Ile-Arida and not as Baale, he further submitted.
He drew our attention to the contents of Exhibit 11 dated 28th May, 1994 where in the signatories as Kingmakers signed as purporting to nominate the Appellant but did not include their titles as against the pleadings of the Appellant and evidence before the lower Court, that there are five Kingmakers namely the Eesa, Osolo, Elemoso, Ikolaba and Chief Imam. Secondly, DW2 stated that when Kolawole Balogun was appointed Baale, he was the Eesa on the throne yet his name did not appear in Exhibit 11 (the nomination letter) yet in another breath, the witness Alhaji Ganiyu Salami who lived at Madi, Sapati-Ile, told the trial Court under cross-examination at page 211, line 6 of the Records, that his uncle Ajadi was not an Eesa but the said Ibrahim Ajadi signed Exhibit 11 as one of the Kingmakers.
These contradictions, it was submitted justified the findings of the learned trial Judge that there were no Kingmakers in 1989 when Respondent was appointed Baale of Sapati-Ile and Kolawole Balogun Aremu whom the Appellant succeeded was not the rightful Baale of Sapati-Ile in 1992 following the demise of Salami Ogundairo. On the Appellant’s complaint that the learned trial judge was wrong in holding that it was not imperative to plead and prove unbroken chain of succession as a Claimant in land matters having regards to the claim of perpetual and exclusive entitlement to the stool of Baale of Sapati-Ile since its founding, he submitted that Popoola v. Adeyemo (1992) 9 SCNJ 79 at 97: cited by the Appellant is not a licence for the Appellant to lift the case as if it is a land matter. Against this background, he relied on Section 45 of the Evidence Act and the dictum of Karibi-Whyte, JSC, at page 97 of Popoola v. Adeyemo (Supra); as forming the basis of applicability of the provision to other Claims apart from land matters to submit that the trial Court found as a fact that the evidence of traditional history of the parties in the case conflicted and he resolved the conflict by reference to facts in recent years as established by the evidence tendered by the two parties.
Accordingly, he reiterated that the Respondent by a plethora of documentary evidence and case law demonstrated that the posts of Baale and Village Head of Village Area in Sapati-Ile are different and separate and the Appellant had no document to show that either himself or any of his family members was ever appointed, confirmed or reaffirmed as the Baale of Sapati-Ile. We were then urged to discountenance this head of the complaint by the Appellant.
On the complaint that having regard to the oral and documentary evidence particularly Exhibits 1, 2, 3, and 8 and Exhibits 13 – 27, the lower Court was wrong to have treated Exhibit 8 as evidence of recent act in granting the Respondent’s Claim and in dismissing the Appellant’s Counter-Claim: learned Counsel posited that based on the Appellant’s showing as demonstrated in the case of Salami & Another v. Yusuf & Others (2007) 5 S.C. 35 at 57, which case was cited by the Appellant, the said Exhibit qualifies as an evidence of recent event/act for the following reasons:-
1. The Exhibit is an act coming alter traditional history.
2. It is the Report of investigation set up by the Ilorin Emirate Council of the Chieftaincy tussle between the parties and dated 16/2/96.
3. The Report found the Respondent and his family as being entitled to the Village Headship of Sapari-Ile.
4. Appellant stated under cross-examination that he had not challenged or protested against the said Exhibit 8.
5. None of the reliefs claimed in the counter-Claim touched or touches Exhibit 8.
Accordingly, it was submitted by learned Counsel for the Respondent that the Appellant is estopped from complaining about the recommendations and findings of the said Exhibit 8. Iga vs. Amakiri (1976) 11 S. C. 1 at 12 – 13: was relied upon to further submit that Exhibits 13 – 27 do not have probative value as Exhibit 8 because while Exhibits 13 and 14 were Enrollment Orders striking out cases instituted by the Respondent, Exhibits 15, 16, 17 and 18 are letters of invitation to meetings to one Mallam Salami Ogundairo; Exhibit 19-26 are not instruments appointing the Appellant as Baale of Sapati-Ile but that Exhibit 27 (Minute 28) only appointed him Village Head of a Village Area; having admitted that none of his predecessors had any appointment letters as Baale of Sapati-Ile. Thus, none of the documents tendered by the Appellant as evidence of recent event is as forceful as Exhibit 8 he insisted, and to conclude that the learned trial Judge was right to have held and accorded Exhibit 8 the status of recent event or act.
On the whole, the learned Counsel for the Respondent relying on the cases of Mogaji v. Odofin (1978) 1 LRN 212 and Balogun v. Labiran (1988) 3 NWLR (Part 80) 66 at 84: submitted that from the evidence before the trial Court both documentary and oral, the evidence of the Respondent preponderated that of the Appellant and the Court was right to have given judgment in the Respondent’s favour.
In the alternative and on the assumption that the trial Court committed some errors; it was contended that it is not every error committed by a Court that results in an appeal being allowed as such error must substantially affect the result of the decision. For this proposition of the law, he placed reliance once more on the cases of Abiodun Amuroti v. Madam S. Agbeke (1991) 6 SCNJ 54 and Olubode v. Salami (1985) 2 NWLR (Part 7) 282 at 288.
As far as this case is concerned, Counsel for the Respondent argued that the Appellant has not raised any error which substantially affected the decision of the trial Judge. On a final note it was posited that the primary duty of a Court of trial is to evaluate the evidence before it and ascribe probative value thereto having made findings of fact based on evidence. This duty is within its exclusive preserve and an Appellate Court will only interfere where the findings are perverse. Maune v. Abdul (2001) 14 NWLR (Part 702) 95 at 108-110: was cited in support of this proposition of the law and to urge us not to interfere with the findings of the trial Court but to resolve Issue Number 2 against the Appellant and dismiss his appeal.
Apart from the above, the learned Counsel for the Respondent urged us to invoke the provision of Order 9 Rule 6 of the Court of Appeal Rules, 2007, to affirm the decision of the lower Court on grounds other than those relied upon by the Court below for the following grounds:-
(i) In paragraph 51 (2) of his Further Amended Statement of Defence and Counter-Claim, the Appellant prayed for a declaration that having been properly and duly appointed as the Baale of Sapati-Ile in 1984, he is the authentic Baale of Sapati-Ile (Page 54 of the Record of Proceedings refers).
(ii) In paragraph 40 of his Statement on Oath, the Appellant urged the trial Court to dismiss the Respondent’s Claims and grant his Counter-Claims as per paragraphs 51 (1)-(7) of the Further Amended Statement of Defence and Counter-Claim (Page 100 of the Record of Proceedings refers).
On the above application, learned Counsel for the Respondent submitted that the case of the Appellant and his witnesses before the trial Court is that he became the Baale of Sapati-Ile in 1994 following the demise of Kolawole Balogun Aremu which means that the evidence adduced by him at the trial is at variance with his pleadings; and this being the situation, the Order to make is one dismissing his Counter-Claim.
The case of Oyediran v. Amoo (1970) 1 All NLR 313 at 317 was called in aid to finally urge us to dismiss the appeal.
It would be recalled that the learned Counsel for the Appellant further filed a Reply Brief in response to some of the submissions of the learned Counsel for the Respondent. In that Brief dated 11th May, 2010 and filed on the 12th May, 2010; Mr. Jawondo in respect of the learned Counsel for the Respondent’s argument in paragraph 4. 108 at Page 10 of the Respondent’s Brief on the nature/and admissibility of Exhibit 15, 16, 17 and 18 tendered by the Appellant; submitted that the four documents are originals which carry no certification either by the High Court Registrar or any Court authority because they are ipso facto admissible as primary evidence under Sections 93 and 94 of the Evidence Act irrespective of whether or not they are public documents.
Furthermore, learned Counsel for the Appellant continued, contrary to the submission of the learned Counsel for the Respondent on page 11 lines 12 – 22 of Respondent’s Brief Exhibits 15, 16, 17 and 18 cannot be likened to Exhibit 27 which is Minutes of Meeting of Ilorin Emirate Council which was generated and kept by a public institution and sent to Asa Local Government Area of Kwara State, another public institution, hence the certification.
Also, Counsel for the Appellant further asserted; contrary to the submission of the Respondent’s Counsel at paragraph 4.1 10, Page 12 of Respondent’s Brief on the effect of Exhibits 5 and 8 on Exhibits 15, 16, 17 and 18. Exhibits 5 and 8 cannot in any way abrogate Exhibits 15- 18 more so when Exhibit 8 contradicts the Respondent’s position on issues joined by parties as demonstrated on pages 31 and 32 of the Appellant’s Brief which submission Mr. Jawondo adopted.
In the face of such contradiction he argued per contra that Exhibit 8 does not possess the potency and evidential value so as to estop the Appellant from complaining against it: and accordingly the case of Iga v. Amakiri (1976) 11 S.C.1 at 12 – 13 cited by the Respondent’s Counsel on page 24 of Respondent’s Brief, does not help the Respondent’s case.
Replying to paragraph 4.227 at pages 24-25 of the Respondent’s Brief of Argument, the learned Counsel to the Appellant submitted in respect of Exhibit 8 which according to him belies the position of the Respondent, that it lacks probative value as compared to Exhibit 13 and 14 which are Enrolled Orders confirming the position that the Appellant’s family has always produced the Baale of Sapati-Ile which culminated in the Respondent’s challenge of the Appellant in Court the results of which were Exhibits 13 and 14.
Furthermore, he maintained, Exhibits 15, 16, 17, 18, and 26 from different authorities and contents addressed the Appellant’s predecessor and the Appellant as Baale of Sapati-Ile. Finally on this point, Mr. Jawondo observed that the fact that those documents were no appointment papers will in no way affect or change the fact that the Appellant is the Baale of Sapati-Ile recognized by people since letter of appointment under native law and custom is not a sine qua non/requirement for validity of an appointment.
On the effect of errors committed by the learned trial Judge as highlighted by the learned Counsel for the Respondent in paragraph 4.229 4.230 at pages 25-26 of the Respondent’s Brief Jawondo Esq. again pointed out that the errors substantially affected the decision of’ the Court below, because had the Court considered the contents and effects of Exhibits 15, 16, 17 and 18 and ascribed clue probative value as against Exhibit 8 and other Exhibits tendered by the Respondents, the decision of the Court below would have been otherwise.
Accordingly, it was submitted that this is one of the instances where this Court as an Appellate Court can interfere to reverse the findings of the lower Court, as the findings are perverse. This is more so as the credibility of the witnesses is not involved, learned Counsel posited. For the above submissions he sought solace in Woluchem v. Gudi (1981) 5 S. C. (Reprint) 178; (1981) 5 S.C. 319 at 326; which was cited in Ishola v. union Bank Ltd (2005) 2 S.C. (part 11) 80 at 93 – 94 and also in Okpiri v. Jonah (1961) 1 SCNLR 174; (1961) All NLR 102 at 101; 105: Lawal v. Dawodu & Another (1972) 8 – 9 S. C. (Reprint) 55; (1972) 8 – 9 S. C. 83; Balogun & Others v. Agboola (1974) 10 S. C. (Reprint) 83 (1974) 10 S. C. 107; 111 at 118 and Arison Trading & Engineering Co. Ltd v. Military Governor of Ogun State (2009) 5 – 6 S. C. (Part 7) 131 at 167 169; to pray this Court to set aside the perverse Findings.
On the call by the learned Counsel for the Respondent for the invocation of Order 9 Rule 16 of the Court of Appeal Rules, 2007, Mr. Jawondo again submitted that by paragraph 26 of the Further Amended Statement of Defence and Counter-Claim of the Appellant and paragraphs l8 & 38 of the Defendant/Appellant’s Statement on Oath, the Defendant/ Appellant was appointed Baale of Sapati-Ile in 1994 after the death of Kolawole Balogun Arernu and the Suit was contested on that line.
He maintained that the Respondent’s application is incompetent and an abuse of Court process and therefore should be struck out in that by Order 9 Rule 4 of the Court of Appeal Rules, a Respondent wishing this Court to affirm the decision of the lower Court on grounds other than those relied upon by the Court below, must give notice (Respondent’s Notice of Judgment) pursuant to Order 9 Rule 2 of the Rules. Such notice he maintained, must be served on the Appellant within 30 days after service of the Notice of Appeal on the Respondent under Order 9 Rule 5 of the Court of Appeal Rules; 2007.
The cases of Taraku Oil Mills Ltd v. Sant Engineering Ltd. (2005) All FWLR (Pt.430) at 799 – 800 and Umar v. White Gold Ginnery Nig. Ltd (2007) All FWLR (Pt.358) 1096 at 1119; were cited in support of the above submission. He explained that the Respondent who was served with the Appellant’s Notice of Appeal in May, 2009, did not file any Notice under Order 9 Rule 2 and on the authority of Dada v. Dosunmu (2006) 9 S. C. at B: the contention of the Respondent that the Judgment be affirmed on other grounds is baseless and incompetent and should be struck out.
In the unlikely event of this Court holding that the application is competent, learned Counsel for the Appellant submitted on the contention by the learned Counsel for the Respondent that the figure 1994 in the pleadings and evidence are at variance with 1984 in the prayers contained in paragraph 51(2) of the Appellant’s Further Amended Statement of Defence and Counter-Claim; that from the totality of the pleadings and evidence, it is clear that the figure “1984” is a typographical error which does not affect the validity of the Appellant’s case.
Furthermore, it was submitted that it is trite that prayers in pleadings are not facts and therefore do not form part of the facts pleaded and relied upon by a party and in line with which the party must give evidence. Ishola v. Union Bank Ltd. (Supra) at 88 – 89, was again relied upon to urge us to discountenance the submissions of the
Respondent’s counsel and allow the appeal.
I have taken the time to set down almost verbatim the verbose arguments of Counsel on both sides on the issues formulated on the equally bogus and whopping Fourteen Grounds of Appeal filed by the Appellant. After a calm assessment of the Grounds of Appeal and Issues formulated there from. I am of the view that the six issues formulated by the learned Counsel for the Appellant and the Arguments proffered are subsumed within the two issues as formulated and argued by the learned Counsel for the Respondent. I shall therefore proceed to determine this Appeal on the two Issues so formulated by the learned Counsel for the Respondent.
RESOLUTION OF ISSUES
ISSUE NUMBER 1
WHETHER THE LEARNED TRIAL JUDGE WAS CORRECT TO DISCOUNTENANCE THE EVIDENCE OF DW1 AND DW2 IN THE CONSIDERATION OF THE APPELLANT’S CASE ON THE GROUND THAT THEIR EVIDENCE CONTRADICT THEIR TESTIMONY IN, THE
EARLIER PROCEEDINGS BEFORE HON, F. J. GBADEYAN, J, AS CONTAINED IN EXHIBITS R2, R3 AND R4 (I.E. PAGE 77 AND 79-81 OF THE RECORD OF ABORTED PROCEEDING OF THE SUIT) AND NOT TO ATTACH PROBATIVE VALUE TO EXHIBITS 15, 16, 17, AND 18 ON THE GROUND THAT THEY ARE PUBLIC DOCUMENTS WHICH REQUIRED CERTIFICATION BUT WERE NOT CERTIFIED AND THAT THE DOCUMENTS WERE NOT TENDERED BEFORE THE PANEL SET UP BY THE ILORIN EMIRATE COUNCIL. (GROUNDS 4 AND 8).
In the resolution of this issue, it is only necessary to resort to the proceedings of the aborted Suit in Exhibits R2 R4 vis-a-vis the evidence of DW1, DW1 and DW2 in the Record of the instant appeal in order to determine whether the witnesses contradicted themselves on any material particulars or live issues that arose from the pleadings so as to warrant the decision of the Court below to discountenance their evidence for lack of credibility.
At page 67 of Exhibit R2 the Record of proceedings of 23rd September, 2004 before Honourable Justice J. F. Gbadeyan in Suit Number KWS/ 200/02, the DW2 (now DW1) Ibrahim Akanni Abayowa stated in lines 22 – 23 thus:-
“There are two Mosques at Sapati – Ile. We do not attend the same Jumat Mosque with the Plaintiff”. In line 29-30 the witness continued: – “I met Ogundairo as Bale of Sapati-Ile. Sule Kolawole was a Bale of Sapati – Ile turbaned by Emir through Mogaji Are. Sule Kolawole is senior brother to Bolakale (the Defendant). He is not yet turbaned but we call him Bale. We have not taken him before the Emir.”
On the other hand, the evidence of the witness at page 207 lines 17-19 of the Record of Appeal now under hearing, goes thus: – “We had only one Jumat Mosque. When the dispute came they divided. I did not tell the former Court that there are two Jumat Mosques.”
Having been questioned by Mr. Badmus as to whether he remembered telling the Court that the Defendant had not been turbaned, the witness answered: “Yes, I now say I told the Court that he had not been turbaned. I did not tell the Court that we (sic) had did not take hint before the Emir. I did not also tell the Court that there are two Jumat Mosques in Sapati-Ile. I told the Court I did not attend the same Mosque with the Claimant because the Mosque was one but was then divided into two.”
In the case of the DW2 (then DW3), in the aborted proceedings he had stated under cross-examination by Mr. Badmus at page 77 Exhibit R3 lines 11 – 14 that:-
“I am from Sapati Ile. Madi as a village became desolate. I was born in Sapati-Ile. We met only two families there although people were already living in Sapati-Ile. We met Baale there but he was the grandfather of the Defendants. My great grandfather was the Esa of Madi to appoint Baale of Sapati-Ile.”
At page 209 of the present Record of Appeal lines 23 -32 and page 210 lines 8 – 12 thereof, the witness testified under cross-examination as follows:-
“I am not known as Gani Madi. I was not born in Madi Village. My father was not born at Madi. History tells me we migrated from Oyo-Ile to Sapati-Ile about 400 years ago. I did not tell the Court that my great grandfather left Madi to settle in Sapti-Ile. I did not tell the Court that my grandfather met only two families at Sapati-Ile. I told the Court Ogundairo founded Sapati-Ile. I told the Court that there is also a Bale known as Salami Ogundairo is the descendant of the Defendant. The grandfather of the Defendant was Kadir who also was a Bale. I did not tell the Court that my great grandfather was the Esa of Madi.”
As for his evidence at page 210 lines 8 – 12 it states:-
“My lawyer appealed against the previous proceedings because two documents we tendered were refused in evidence. I also appealed because my Counsel was not allowed to re-examine on a particular issue. The failure to record what I said was one of the grounds of Appeal.”
DW3 in respect of the migratory pattern of the DW2 had testified at page 213 lines 21 – 35 of the Record of this Appeal that he knew the village called Madi and Ibrahim Ajadi Madi (the DW2 ). According to Appellant, the DW2 is so called because when his great grandfather was coming, he stayed in Madi and (his) Appellant’s great grandfather it was who had arrived at Sapati-Ile and assisted the DW2’s father not to stay at Madi in outskirt of Sapati-Ile but to come into Sapati-Ile. He confirmed that the DW2 is also known as Gani Madi and that the DW2 and Ibrahim Ajadi Alaga are relations. Furthermore, Madi is attached to their names because their fathers first settled at Madi.”
Upon a calm assessment of the witnesses (DW1 – DW3)’s testimonies, I am of the view firstly, that there is no contradiction in the evidence of DW1 in the previous Suit and the Suit now on appeal. The witness on the issue of whether there are two Mosques in Sapati-Ile, has explained in the latter proceedings that there was only one Mosque but they worship differently. In other words, the Appellant and the Respondent do not worship in that Mosque at the same time because of division within the community as a result of the Chieftaincy dispute between the parties. In any case the issue of worship in the Mosque is inconsequential to the determination of this appeal except to establish that as at 1993 the Respondent had sued the Appellant’s predecessor Kola Balogun Aremu for appointing Aminu Baba Agba as the Chief Imam of Sapati-Ile in his capacity as the Baale of Sapati-Ile. See Exhibits 13 and 14 tendered by the Appellant.
As for his evidence on turbaning of the Appellant and being taken before the Emir, it is also clear that the witness in the two proceedings was consistent that the Defendant/Appellant had not been turbaned and what was recorded by the lower Court on his being taken to the Emir is fraught with confusion and I shall presume that the witness said that the Appellant was not taken before the Emir in that by the evidence and consensus position of the parties, no Baale can be turbaned until being presented before the Emir.
As for DW2, it is clear from his evidence that he contradicted himself on the question of whether his great grandfather was the Esa of Madi who appointed Baale of Sapati-Ile and whether he met only two families in Sapati-Ile. However, the kernel of this case is as to who between the Appellant and Respondent is entitled to or is the Baale of Sapati-Ile and not when DW2 and his family migrated or from which destination. As was rightly decided in Usibaifo V. Usibaifo (2005) 1 S.C. (pt. 11) 60 at 72.
“It is the law that contradictions in evidence of witnesses can only avail the opposite party where they are material, substantial and affect the live issues in the matter, to the extent that they affect the fortunes of the appeal in favour of the party raising the issue. See Arechia v. The State (1974) 9 S.C. 1 (1974) 9 S.C. (Reprint) 1; Mogaji v. Cadbury Nigeria Ltd. (1985) 3 NWLR (pt. 7) 393.”
The bottom line from what can be gathered is that the DW2’s progenitor migrated either from Oyo-Ile to Sapati-Ile or had settled in Madi (the outskirts thereof) before the Defendant’s great grandfather asked him into Sapati-Ile. There could be discrepancies in the evidence of the DW2 but on the material issue before the Court below and now before this Court, the witnesses were not contradicted and there is copious and uncontradicted evidence from the testimonies of the witnesses (DW1, DW2 and DW3) as has been underlined that Ogundairo founded Sapati-Ile and there was also a Baale known as Salami Ogundairo frow whorn the Defendant descended. Furthermore, the grandfather of the Defendant was Kadir who was also a Baale. See Iwono Obade v. The State (1991) 6 NWLR 1(pt. 198) 435 at 156; Obiode v. The State (1970) 1 All NLR 35 at 40; Omopupa v. State (2008) All FWLR (pt 445) 1648 at 1680-1681; Agbo v. The State (2007) 2 NCC 158 at 186 – 187 and the dictum of Nnaemeka-Agu, JSC in Ayo Gabriel v. The State (1959) 5 NWLR (pt. 122) 157; on what constitutes contradictions and discrepancies in evidence of parties and the position of the law that a witness can be believed in part.
Learned Counsel on both sides are in terra firma when each submitted that where evidence of a witness contradicts his earlier statement in a previous proceeding, neither of the – evidence nor the witness should be ascribed probative value and/or credibility. See Ayanwale v. Atanda (1988) 1 NWLR (Part 68) 22 at 36; Oyeneyin v. Akinkugbe (2001) 1 NWLR (Part 693) 40 at 54 per Ibiyeye J.C.A and Nnajiofor v. Ukonu (1986) 4 NWLR (Part 36) 505 at 521, ably cited by the learned Counsel for the Respondent.
However, as the learned Counsel for the Appellant has rightly submitted on the authorities of Agbo v. The State (2007) 2 NCC 158 at 186 – 187; Iwono Obade v. The State (1991) 6 NWLR (Part 198) 435 at 456; where this Court adopted the position taken by the Supreme Court in Obiode v. The State (1970) 1 ALL NLR 35 at 40; Sule v. The State (2009) MJSC (Part 11) 70 at 85 etc; whereas in this case, the witnesses before the lower Court made statements covering several aspects, it is only those parts that contradicted their earlier statements that should be discredited while the other parts touching on the material issues joined should be accredited in line with the principle that a witness can be believed in part.
This Court in Omopupa V. The State (2005) All FWLR (Part 415) 1648 at 1680-1681, cited by Jawondo Esq. at page 11 paragraph 4.10 of Appellant’s Brief adopted this principle in discharging an Accused/Appellant, where the trial Court convicted and sentenced him to death on mere discrepancies in his evidence. We are minded to rely on this case in the present Appeal as the contradictions in the testimonies of the DW1 – DW3 are not substantial and material so as to affect the live issues and indeed not relevant to the success or failure of the Appellant’s case as shall be demonstrated anon. See Mogaji v. Cadbury Nig. Ltd (1985) 3 NWLR (Part 7) 393.
Thus, although, the learned trial Judge was partly right when he held at page 234 of the Records lines 3 – 6 that:-
“…save for PW1, DW1 and DW2 whose credibility were impeached at the trial when they were confronted with their evidence at the abortive trial, the court will consider the evidence of other witnesses along with the documents that have been tendered at the same time bearing in mind that in the evaluation of traditional history, credibility of witnesses is not the dominant determining factor because as was pointed out in Popoola v. Adeyomo (1992) 9 SCNJ 79; the witnesses are testifying as to history related to them: if did not augur well for the case of the Appellant when he discredited the evidence of DW1 and DW2 in the consideration of the totality of the Appellant’s case.
This is more so, as the learned trial Judge had relied on Exhibits 11-28 tendered by the Appellant through DW2. I agree therefore with the learned Counsel for the Appellant that the evidence of the DW1 and DW2 ought to be given consideration at least in part rather than totally discountenancing same. Issue Number 1 (one) is therefore partly resolved in favour of the Appellant.
On the second part of the Respondent’s Issue Number One (1) which is in pari materia with Issue Number 2 of the Appellant as to whether the court below was not wrong in not considering and attaching probative value to Exhibits 15, 16, 17 and 18 on the ground-that they are public documents which required certification but not certified and that the documents were not tendered before the panel set up by the Emirate Council in 1995; they shall be considered along with Issues Numbers 2, 3, 4, 5 and 6 of the Appellant as well as Issue Number 2 of the Respondent which is whether having regard to the state of pleadings and the evidence before the trial court, the learned trial Judge was right to have granted the reliefs of the Respondent and dismissed the counter-Claim of the Appellant.

RESOLUTION OF ISSUES 2-6
In an attempt to resolve these composite issues, I must agree with the statement of the law as canvassed by the learned counsel for the Respondent that to the extent that parties relied on traditional history and documentary exhibits to prove and disprove each other’s case, and the fact that there were Claim and Counter-Claim in the lower court, the Appellant and Respondent are on the same pedestal as far as the burden of prove is concerned. See Obmiami Brick & Stone (Nig.) Ltd. v. A.C.B. Ltd. (1992) 3 NWLR (pt. 229) 260 at 298; ably cited by learned counsel for the Respondent.
This unassailable position taken by learned counsel finds ample support in section 137(1) and (2) of the Evidence Act and the fact that it is now trite that the general burden of proof in civil proceedings lies squarely on the party who would lose the case if on completion of pleadings no evidence is led in support of his case. See the dictum of the erudite emeritus Supreme Court Judicial icon Aniagolu, JSC: while pronouncing on this time-honoured principle of the law of evidence, in the celebrated case of Imana v. Robinson (1974) 6 S.C. 83, where he adopted the position taken by the learned authors of “Phipson on Evidence” 10th Edition at page 93 paragraph 92. See also Seldon v. Davidson (1965) 1 W.L.R. 1083; Elemo & Ors. v. Omolade & Ors. (1968) NMLR 359; Olugunleko v. Ikuemola (1993) 2 NWLR 17; Dawodu v. Solanke (1959) L.L.R. 1 and Saura Yusuf v. Adegoke (2007) 30 NSCQLR 269. It is also trite as was decided by the Supreme Court in the cases of Fadallah v. Arewa iles Mills Ltd. (1997) 7 S.C.N.J 202: Dakat v. Dashe (1997) 12 SCNJ 90 and Ehidimhen v. Musa (2000) 4 SCNJ 325 at 350, that the burden rests on the party who substantially asserts the affirmative before evidence is elicited and thereafter on the party who would lose if no further evidence is led.
More particularly as far as this case is concerned, where the Claimant/Respondent and Defendant/Counter-Claimant/Appellant respectively sought for declaratory reliefs as to exclusive ownership and possession of the Baale of Sapati-Ile and that the other party is not entitled to be appointed to ascend the stool of Baale of Sapati-Ile each not being descendant of the founder of Sapati-Ile and the concomitant Baale of Sapati-Ile stool; each of them must establish from the preponderance of evidence that he was/is entitled to the relief-claimed.
Like every other declaratory relief, each of the parties must rely on the relative strength of his case and not on the weakness of the case of the other. Although, see per Karibi-Whyte, JSC. in Abaye v. Ofili & Anor. (1986) 1 S.C. 231 at pp. 320 – 322: Salami v. Gbodolu & Ors. (1997) 1 SCNJ 196, Olubodun v. Lawal (2008) 35 MSCQR 570; Emezi V. Osuagwu (2005) 12 NWLR (pt. 939) 340 and A.G. Ekiti State v. Daramola (2003) 10 NWLR (pt.827) 104 SC; the weakness of each of the party’s case as a Defendant may itself support the case of the other. Against this background, we shall begin from the question posed by the learned counsel for Appellant in his issue number 4 whether or not the trial Judge was wrong in holding that it was not imperative f or the Claimant/ Respondent to plead and prove unbroken chain of succession as Claimant in land matter must do having regard to the Claimant/Respondent’s Claim of exclusive entitlement and perpetual succession to the stool of Baale of Sapati-Ile since its founding.
This issue arose from the holding of the Court below at page 233 paragraph 22 lines 12 – 22 of the Records that:-
“Mr, Jawondo has attacked the case of the Claimant on the ground of the failure of the Claimant to follow up the founding of Sapati-Ile with unbroken chain of succession of Baale ending with the Claimant; Mr. Badmus for his own part has accused Mr. Jawondo of importing land cases into this case.
I have myself read the case of Popoola v. Adeyemo (supra) and I am inclined to agree with Mr. Badmus that what is important is to test the various versions of traditional history with respect to facts in recent years as established by evidence. This being a Chieftaincy dispute, I do not think it is imperative that the claimant must establish an unbroken chain of succession in order to sustain his claim as a claimant in an action for declaration of title to land must do.”
In the resolution of this issue it would be apt to proceed from the Claim and pleadings of the Respondent in this respect as contained in paragraphs 3, 4, 5, 6 and 11 of the Respondent’s Further Amended Statement of Claim and the Reliefs sought at pages 168 – 170 of the Records thus:-
“3. The Claimant avers that it was his ancestor called Digunlese that founded the Village Sapati-Ile more than three hundred years ago, even Ilorin was not in existence.
“4. Digunlese who hailed from Oyo Oranmiyan was the first Baale of Sapati-Ile and he reigned for ninety (90) years. After him, his son Jimoh Ayinde Iko became the Baale of Sapati-Ile and
reigned for fifty-five (55) years. After Jumoh Ayinde, his younger brother Memedu Akanni Iko became Baale and he reigned for forty-Six (46) years. After Memedu, Mohammadu Iyanda Iko, son of Jimoh Ayinde Iko became the Baale and reigned for thirty-nine (39) years. After Mohammadu, his younger brother Suberu became Baale and reigned for forty-five (45) years. After him Alhaji Sunmonu Akanni Iko became Baale and reigned for about eighteen (18) years. After Alhaji Summonu, Abdulkarim Akanni Iko, a grandson of Jimoh Ayinde Iko became the Baale who reigned for about nine (9) years.
“5. The Claimant is the first male issue of Alhaji Sunmonu Akanni Iko, and became the Baale of Sapati-Ile after Abdulkarim Akanni who died on August 9, 1988. The Claimant ascended the stool of Baale sometime in February, 1989. The letter from the Claimant’s family 1988 nominating him as Village Head following the demise of Abdulkarim Akanni shall be founded upon at the trial of this suit. Letter dated 22nd February, 1999 from Ilorin Emirate Council’s Secretary to the Claimant confirming his appointment as Baale-Ile is hereby pleaded.
“6. The Claimant avers that only male descendants of the Digunlese (now called Ile Baale or Ile Magaji) are entitled to the stool of Baale of Sapati-Ile and that no Baala of Sapati-Ile had ever been appointed outside the Baale family (Digunlese’s) descendant)
“11. Under the native law and custom of Sapati-Ile, only, the Claimant’s Baale family is entitled to nominate one of themselves to fill the post of Baale if and when such is vacant, and the Defendant and members of Arida family of Sapati-Ile have no right to aspire to the post.”
As for the Reliefs claimed, they are as stated at page 170 of the Records and reproduced at page I of this judgment but it suffices to say that in the main, they are to the effect that the Defendant/Appellant not being a member of the Claimant’s Baale family on whom the Baale of Sapati-Ile stool inheres exclusively, is not entitled to aspire to be or installed/appointed as the Baale of Sapati-Ile and that the stool of Baale of Sapati-Ile not being vacant (the Claimant being the valid and subsisting Baale of Sapati-Ile). an order of perpetual injunction should restrain the Appellant from parading or holding himself out as Baale of Sapati-Ile or purporting to perform the function of the Baale of Sapati-Ile. After considering the evidence of the parties and arguments of Counsel on this issue, the court below held as quoted above.
Now Section 45 of the Evidence Act (then Section 44) which was interpreted in Popoola v. Adeyemo (1992) 9 SCNJ 79 at 90 and Odutola v. Sanyo (2008) ALL FWLR (Pt.400) 780 at 795, provides thus:-
“15: Where the title to or interest in family or communal land is in issue oral evidence of family or communal tradition concerning such title or interest is relevant.”
In the case at hand, the Respondent as Claimant in the lower Court pleaded his root of title to the Baale of Sapati-Ile from the original founder and his respective chain of successors culminating in the Respondent. He however, did not plead how the community and Baale stool originated. The Court below was bound to accept credible evidence of the traditional history of his founding fathers through the unbroken chain of successors as he had pleaded and where the chain snapped somewhere along the line, the Court would be left with no discretion than to dismiss the Claim. Also, since the Appellant relied on traditional history as to his founding fathers, he was also expected as he has clone to plead and lead credible evidence tending to establish the unbroken chain of successors through whom his title the devolves. Where on a juxtaposition of the competing histories, there is conflict such that none is probable as establishing the truth of their respective claims: the trial Court is enjoined to resort to other evidence of living persons within their memory, or of recent events tending to show which of either of the parties’ story is more probable and then ascribe probative value to such evidence.
The fact was emphasized by the West African Court of Appeal in Commissioner of Lands v. Kadiri Adagun (1937) 3 WACA 206 (although a land matter), Ayantade v. Ogundokun & Anor. (1973) LRN 1; Akuru v. Olubadan in Council (1954) 14 WACA 523. In Popoola v. Adeyemo (Supra) which was cited by the learned Counsel for the Appellant, the Supreme Court had established the current position of the law beyond peradventure that the universality of illiteracy of, our people which enables admission of oral evidence affecting title in our courts is not peculiar to ownership of land but extends to proof of all claims to title which trace their origin to antiquity and could only be proved by oral evidence.
Thus, like land matters where the parties anchored their respective claims to the title of Baale of Sapati-Ile on historical antecedents, they ought to prove on the balance of probability and preponderance of evidence the following:-
1. Who founded the Baale of Sapati-Ile:
2. How the title was founded: and
3. The particulars of intervening or successive Baales through whom each claims.
On the evidence as to who founded the Village of Sapati-Ile, the PW1 PW3 all testified that their founding father hailed from Oyo Oranmiyan more than three hundred years ago and even when Ilorin was not yet in existence. By the Respondent’s family tree and line of succession:
1. Ogunlese reigned for (90 years):
2. Jimoh Ayinde Iko (55 years);
3. Memudu Akanni Iko (46 years);
4. Mohammed Iyanda Iko (39 years);
5. Suberu Aweda Iko (45 years);
6. Alhaji Sunmonu Akanbi Iko (18 years):
7. Alhaji Abdulrahaman Akanni Iko (9 years) and:
8. Alhaji Abdulrahaman Sule Ajadi (Claimant/Respondent) from February, 1989 to date. However where as the PW3 testified at page 204 lines 34 to page 205 lines 1-2 of the Records that as at 1960 Memedu Iyanda Iko was Baale Sapati and reigned for 45-50-years but he was not sure because he was in the north, he admitted later at page 205 lines 15-17 of the Record that from 1960- 1992 Baale Sapati-Ile was Salami Ogundairo. By this admission alone and a further admission that there was never a time there were two Baale in Sapati-Ile, whatever evidence he gave about his traditional history ought not to be believed.
The learned counsel for the Appellant has rightly pointed to the pleadings and the evidence-in-chief of the Respondent on the number of successive Baales who reigned from his lineage, and from the calculation of these years. Sapati-Ile was founded 315 years before commencement of proceedings whereas under cross-examination he averred that as at 1960 Memedu Iyanda Iko was the Baale Sapati-Ile having reigned for 45 – 50 years, even though he was not sure. Iyanda Iko, he added was succeeded by Aweda Iko. Assuming that Memudu the 3rd Baale was succeeded by Suberu Aweda Iko who reigned for 45 years, it would mean that the said Aweda Iko reigned until 2005 whereas under cross-examination at page 204 line 21 of the Records, the Respondent stated that he became Baale in 1989 and was turbaned on the 15th December, 1994; even when he and the PW2 had admitted that there had never been two Baales at the same time.
Other areas of self contradiction by the Respondent and witnesses on the claim of succession can be gleaned at pages 201 lines 32 -34, of the Records: page 202 lines 1-2 as to the number of years each of the successive Baale of the Ogunlese stock reigned.
From the foregoing, it is clear on the authorities of Adebayo v. Ighodalo (1996) 5 MAC 101 and Odutola v. Sanya (supra) at 793-794: that the evidence of the traditional history of the Respondent ought to be rejected as being at variance with his pleadings. See also the case of Akanmu v. Adigun (1993) 7 NWLR (pt. 304) 218 at 235 para. H: Agbo v. The State (2006) All NWLR (pt. 309) 1380: Ndultte v. Ojiakor (2001) 14 NWLR (pt.734) and Ajibulu v Ajayi (2004) 11 NWLR (pt. 885) 458.
On the part of the Defendant/Appellant, he had pleaded in paragraphs 3 – 7 of the Further Amended Statement of Defence and Counter-Claim the chronology and genesis of the Baale of Sapati-Ile as follows:-
“3… the Defendant avers that it was his forefather called Ogundairo who founded Sapati-Ile. Ogundairo was a great hunter who came from Oyo Alaafin during the reign of Alaafin Ariibi.
“4. The Defendant avers that Alugbin who was a member of Afonja’s family had a son, Laderin who was killed by an animal.
“5. The defendant avers that it was this incident that caused Alugbin to invite Ogundairo the great hunter to kill this animal.
“6. The Defendant avers that Ogundairo laid ambush for this animal on top of Asapa tree and after some days got this animal killed near the Asapa tree.
“7. The Defendant avers that it was after this incident that Ogundairo settled at the near the Asapa tree, where he built his hut and later some people like Ogun, a Black Smith from Ila Orangun and Amodu Ada who hailed from Shao, joined him (Ogundairo) at Idi Asapa, now known and called Sapati-Ile. The place of Amodu Ada being an Ogun worshiper is up till now called Ile Idi-Ogun.”
As for his line of succession and how the title of Baale devolved from the original founder to him, the Defendant/Appellant pleaded in paragraphs 8-9 as follows:-
“8. The Defendant avers that Ogundairo became the Head/Baale of Sapati-Ile and since then the descendant of Ogundairo have been and are still entitled to the stool of Baale or Village Head of Sapati-Ile. The Defendant’s Ogundairo family had Baale or Village Head of Sapati-Ile. The defendant’s Ogundairo family had produced the following as Baales of Sapati, Ogundairo, Lajanibi Orunmila, Kadir, Haleru, Raman, Shua Salami Ogundairo (who reigned for more than 40 years), Kolawole Balogun and Bolakale Salami (the Defendant) who is the present Baale of Sapati. The Defendant pleads official correspondences between Salami Ogundairo as the Baale of Sapati-Ile and Afon District Council, the Emir of Ilorin and Asa Local Government and between Mallam Kolawole Balogun as the Baale of Sapati and the Ilorin Emirate Council, Afon District Council and Asa Local Government.
“8(a) The Defendant avers that the Baale Salami Ogundairo in his capacity as the Baale of Sapati-Ile and in recognition of Baale Salami Ogundairo as Baale of Sapati-Ile was involved in activities making the coronation and presentation of staff of office to the 9th Emir of Ilorin, Alhaji Sulu-Kamani Gambari in 1959. The Defendant pleads the letters written to Salami Ogundairo. Baale of Sapati-Ile, on the coronation and installation of 9th Emir of Ilorin.
“9. The Defendant avers that he (Bolakale Salami Ogundairo) succeeded kolawole Balogun (of Ogundairo damily) in 1994 as the Baale of Sapati-Ile and has since then been exercising the rights and performing the duty of such Baale.”
The Defendant/Appellant had pleaded in paragraph 26 of the Further Amended Statement of Defence and Counter-Claim, how he succeeded late Baale Kolawole Balogun in 1994 and the processes leading to this appointment as the Village Head by the Emirate Council and Asa Local Government. He testified consistently along with his witnesses and in particular, the evidence of the DW1 and an 80 year old man to the effect that Ogundairo the progenitor of the Appellant founded Sapati-Ile and he was the first Baale who was succeeded by Lajanbon, Kadir, Haliru, Rahman, Shaibu, Salami Ogundairo, Kolawole Balogun and Bolakale Abdul-Salam who are all Baale and that he had witnessed the reign of four Baale beginning Ilorin Shuaib Ogundairo, Salami Ogundairo who was there before the 9th Emir of Ilorin in 1959; Kolawole Balogun Aremu and Suleiman Bolakale Salami the Appellant in this case. See also the evidence of DW2 Alhaji Ganiyu Salami the Eesa of Sapati-Ile (one of the kingmakers) to the effect that he personally knew three Baales and that since the founding of Sapati-Ile, it is only the Ogundairo family that has been producing the ten Baales that reigned in Sapati-Ile since the founding of the Community. He enumerated them one by one in their line of succession culminating in Bolakale Abdulsalami. These pieces of evidence were neither challenged nor contradicted in course of cross-examination and accordingly their evidence ought to be deemed as having been conceded and admitted. See Amadi v. Nwosu (1992) 6SCNJ (Pt.1) 59 at 71 and Hill Station Ltd v. Adeyi (1996) 3-4 MAC 125 at 131.
I agree therefore with the learned Counsel for the Appellant that from the state of pleadings and evidence of the parties the Appellant successfully proved the founding of Sapati-Ile, how it was founded by his progenitor Ogundairo and unbroken chain of succession to the stool of Baale in Sapati-Ile through Ogundairo to the Ogundairo family and to the Appellant who is now the 10th Baale as against the Respondent who failed so to do. On the authority of Ali v. Alesinloye (2002) 2 SCQR (pt. 1) 285 at 308 and Falomo v. Onakani (2005) 11 WNR 141 at 170: the Respondent ought to have proved not only how the stool was founded but he must also plead and prove unbroken chain of succession and/or possession of the title to the exclusion of any other family in Sapati-Ile particularly that of the Defendant/Appellant.
Where he failed so to do, his claim ought to be dismissed. After all the claims of the Respondent were in declarations and injunction and like all such Claims, the onus lay on him to establish by evidence the declaration sought. The test is always whether the Plaintiff from the preponderance of evidence has a better title than the Defendant. See Kariyaoja & Ors. v. Egunla (1994) 12 S.C 55 at 61. Since also it is in the Plaintiff that the onus of proof lies, where he failed to discharge this onerous burden, of proving his traditional history, judgment ought to be entered for the Defendant. See Kodilinye v. Odu 2 WACA 336 at 337: per Kingdom C.J and Buttler Lloyd, J. concurring.
Since this is a case of Claim and counter-claim upon which parties primarily pleaded and relied on oral tradition, it is only where on the balance of probabilities the respective histories are found equally plausible or conflicting that resort ought to be had to the Rule in Kojo II v. Bonsie & Anor (1957) 1 WLR 12, on recent acts of ownership and possession. In the case at hand, it would appear at least from the ipse dixit of the PW3/ Respondent that the chain of succession of his progenitors or predecessors in – title snapped when he admitted at page 205 of the Record lines 16-17 thus:-
“From 1960 -1992 Baale of Sapati-Ile was Salami Ogundairo. There was never a time there were two Baale in Sapati-Ile.”
Salami Ogundairo was pleaded as having reigned for more than forty years and was succeeded by Kolawole Balogun Aremu and then Bolakale Salami (the present Defendant/Appellant). Accordingly, the court ought not to have held as it did that it was not imperative that the Claimant established an unbroken chain of succession in order to sustain his claim.
If I may borrow a leaf from decisions on land matters which touch on claims for declaration of title and exclusive ownership. Obaseki, J.S.C, in George Okafor & 3 Ors. v. Eze A.E. Idigo III & Ors. (1954) 6 S.C. 1 at pp. 25 – 29: relying on the cases of Lyell v. Kennedy (1882) 20 Ch. D 181 at 490 per Brett, LJ: Kodilinye v. Mbanefo Odu (1935) 2 WACA 336, per Webber, CJ. at 337: Lee, CJ: In Martin v. Strachan (1944) 5 Term Rep. 107 at 110n; Ekpo v. Ita 11 NLR 68 at 69, per Webber J.; Adeniyi v. Aderemi (1961) WNLR 185; M.E.G.P. v. Christian Edwards (1969) 3 WLR, 713 and The Stool of Abinabina v. Eyinmadu (1953) AC 207, (1953) 2 WLR 261, (1953) 12 WACA 172; restated the following legal principles as enunciated in the above cases when he stated thus:-
“2. In a claim for a decree of a declaration of title, the onus is on the Plaintiff to prove acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference that the Plaintiffs were owners.”
“3. The Court should declare a good title where in the opinion of the court the facts and circumstances of the case are so compelling as to show beyond reasonable doubt that no risk of a successful future incumbrance exists.”
“4. Frequent and positive numerous acts within living memory are not essential to justify the inference of exclusive ownership of land under native law and custom where there is conclusive traditional evidence of ownership.”
“5. While the Plaintiff must succeed on the strength of his own case and not on the weakness of the Defendant’s case, the Defendant’s case may itself support the Plaintiff’s case and contain evidence on which the Plaintiff is entitled to rely.”
As far as principle number 4 is concerned, it derives support from the decision in Ogun v. Akinyebi (2005) 8 WRN 41 at 67; ably cited by learned counsel for the Appellant that:-
“It is only after the histories offered by both sides are placed side by side and weighed and when they are found to be equally plausible or when there is difficulty of resolving which is correct then the question of recent acts of ownership shall become relevant.”

The Court below having so held and resorted to the Rule in Kojo II v. Bonsie, in the face of the Respondent’s failure to prove unbroken chain of succession as pleaded: the learned trial judge was wrong in so holding.
This brings us to the question as to whether or not the trial court was not wrong in its conclusion that the evidence of traditional histories of the parties conflict and as such resort has to be had to the rule in Kojo II v. Bonsie. As a starting point, let me regurgitate what lord Denning said in the celebrated case of Kojo II v. Bonsie (1957) 1 W.L.R 1223 (P.C); on the appropriate approach to be adopted in the evaluation of traditional evidence following an appeal from the Asantehene’s Grade B Court to the West African Court Appeal which Court upheld the judgment of the Grade B Court on two grounds:-
1. That the decision was of fact depending on the demeanour of witnesses and
2. That on the review of the evidence, it was the correct decision.
The Learned Law Lord then enunciated the principle which has now become a mantra once traditional evidence is in issue as in this case, when he held:-
“So far as the first ground is concerned, their lordships notice that there was no dispute as to the primary facts, that is, the facts which the witnesses actually observed with their own eyes or knew of their own knowledge in their own life time. The dispute was all as to the traditional history, which has been handed down by word of mouth from their forefathers. In this regard, it must be recognized that in the cause of transmission from generation to generation, mistakes may occur without any dishonest motives whatever. Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred years ago. Where there is conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case, demeanor is little guide to the truth. The best way to test the traditional history is by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories in more probable.
That is how the native court approached the matter and their lordships think they right in so doing.” See the Nigerian case of Akpapuna & Ors. v. Obi Nzeka II & (1983) 7 S.C. 1 at pp. 58-60.
There is no doubt that the lower court erroneously stated this principle of law as enunciated by Lord Denning in the above case. Be that as it may. I had held earlier that, where the Plaintiff or Claimant/Respondent conceded that between 1960 and 1992 Salam Ogundairo, the progenitor of the Defendant/Appellant was the Baale of Sapati-Ile, then whatever conflict that hitherto existed between the competing histories of the parties may have been cleared. I cannot fathom the decision in Kojo II v. Bonsie to mean that even where one of the parties admits to a material aspect of his opponent’s case on traditional evidence, resort must willy-nilly be had to the Rule. After all, by Section 19 of the Evidence Act an admission is a positive statement oral or documentary which suggests any inference as to any fact in issue or relevant fact made by a party to proceedings or his agent. See Section 22 and Iyere v. B.F.F.M (2009) 37 NSCQR 290 at 315; where the Supreme restated per Muhammadu, JSC; that facts admitted require no further proof; and also per Oputa, JSC in Graham & Ors v. Esumai & Ors (1984) 11 S. C. 123 at 144 – 145: who held that there is no doubt that a claimant can-establish his title solely on traditional evidence. See also Ado v. Wusu (1938) WACA 96 and (1940) 6 WACA 24.
Even if we agree as it has been submitted and held by both learned counsel for the Respondent and the learned trial Judge that the evidence of traditional history given by the parties conflicted and the Rule in Kojo v. Bonsie was rightly invoked, can it be said with any degree of certainly that even with the resorted facts of recent years the case of the Respondent preponderated that of the Appellant so as to warrant the dismissal of the Appellant’s counter Claim and entering of judgment for the Respondent on all the Reliefs sought? I think not.
ISSUE OF CERTIFICATION AND NON-CERTIFICATION OF PUBLIC DOCUMENTS AND ADMISSIBILITY THERE OF:
It is also pertinent to note that learned counsel for the Appellant and Respondent have raised and joined issue on whether the trial court was right or wrong in not considering and attaching probative value to Exhibits 15, 16, 17 and 18 and other documents tendered by the Appellant in support of his Claim on the ground that the documents were not certified they being public documents. See issues two (2) of the Appellant and one (1) of the Respondent. Before considering these issues, it is necessary to reflect on the dictum of Nnaemeka Agu J.S.C in Kimdey 4 Ors. v. The Military Governor of Gongola State & Ors. (1988) 5 S. C. 16 at 95, where His Lordship stated the position of the law on the effect of documentary evidence on oral evidence inter alia:
“No doubt, the legal proposition that where there is oral as well as documentary evidence, documentary evidence should be used as hanger from which to assess oral testimony is a sound one. In Fashanu v. Adekoya (supra), Coker JSC put the principle very succinctly where he held at page 91-92:
“Undoubtly, the duty of the court in ascertaining the truth in those circumstance is all but easy and the test of logic may as availing to one of the parties a large body of documentary evidence containing a number of letters and other documents and, as argued by learned counsel for the plaintiff, it is the duty of the learned trial judge in a case like the present to test the probability of the case of either of the parties by reference to relevant documents which represent evidence of some more or less permanent or perhaps unassailable character.”
Whereas the learned Counsel to the Appellant had submitted that the learned trial Judge was in error in so doing and holding, the learned Counsel for the Respondent had submitted per contra after enumerating the documents so tendered and contended that some of the Exhibits are public documents by virtue of Section 109 of the Evidence Act. He had conceded however that Exhibit 18 is not a public document and improper certification thereof would not affect its admissibility although he has taken the further view that the said Exhibit 18 has little or no probative value as far as the live issues are concerned on whether any member of the Ogundairo family or the Appellant had been appointed Baale as none of them has appointment letter.
In an attempt to resolve this issue we shall call in aid the provisions of the Sections of the Evidence Act which have been cited by the respective learned Counsel on behalf of the parties and the judicial authorities relied upon to buttress their contentions. Beginning from Section 97(1)(e) of the Evidence Act, that Section stipulates thus:-
“97(1) Secondary evidence may be given of the existence, condition, or contents of a document in the following, cases:-
(e) When the original is a public document within the meaning of Section 109.”
Section 109 on its part provides that:-
“109 The following documents are public documents:
(a) documents forming the acts or record of the acts-
(i) of the sovereign authority
(ii) of Officials bodies and tribunals: and
(iii) and of public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; Nigeria or a elsewhere:
(b) Public records kept in Nigeria of private documents.”
It is also pertinent to note provision of Section 97(2)(c) of the Act which is to the effect that:-
“97(2) The Secondary evidence of documents admissible in respect of the original document’s referred to in the several paragraph’s of subsection (1) is as follows:-
(c) In paragraph (e) of (f) a certified copy of the document, but no other kind of Secondary evidence, is admissible.” See Bisichi Tin Co. Ltd v. Commissioner of Police (1963) NWLR 71 and Dobadina & Anor. v. Ambrose (19691) NMLR 24 S.C.
Now, the documents in question marked Exhibits 15 – 18 are as follows:-
(1) Exhibit 15 is an original document dated 14-5-1959 from Afon District Council and addressed to Mallam Salami Ogundairo, Baale of Sapati-Ile, Afon District Office stamped and signed for the District Head of Afon.
That letter is captioned “NOTICE OF MEETING” and reads thus:- “You are invited to a meeting on 20-5-1959 at Daodu’s Compound Afon. It is to discuss about the coming of Sir Gambari Bells, the Governor of Arewa, who will give the Staff of Office to Mallam Sulu Gambari as the Emir of Ilorin in June 1959. Try to come with your Mogajis.”
(2) Exhibit 16 is a letter referenced No. ALG/IWK/31A/VIOL. I/1, dated 3rd February, 1986; from
Asa Local Government, Afon and addressed also to “Mallam Salami of Baale Sapati-Ile, Asa Local Government”. The letter tilted “Task Force on Consumable Commodities Meeting”, is notice of meeting of the above task force which was to hold on 5th February, 1986, in the Local Government Council Hall at 10.00 a.m. prompt. That letter which is also an original copy was signed by Hanafi Lawal (Secretary).
(3) Exhibit 17 is another original copy with Reference No. A/C/CA/C.253 Vol. 146 dated 17th
November, 1987, emanating also from Asa Local Government and addressed to the selfsame Salami Ogundairo. Baale of Sapati-Ile, Asa Local Government. The letter signed by Alhaji Oba S. Agaka for the Sole Administrator of the Local Government was also an invitation to attend meetings scheduled to take place at the Local Government Secretariat on Tuesday the 1st of December, and Saturday the 5th of December, 1987, respectively.
(4) The last document (Exhibit 18) even though a photocopy was signed as an original by Alhaji F. Kawu (Principal Secretary to the Emir of Ilorin and addressed to Mallam Salami Ogundairo, Baale of Sapati-Ile. That letter with the insignia of His Royal Highness, Mallam Aliyu Abdulkadir (The Emir of Ilorin Aliyu the 2nd) is dated 28/9/92 and referenced EP/4/11/89. It is captioned “INVITATION BEFORE THE EMIR OF ILORIN WEDNESDAY, 30/9/92” and invited the addressee to the Emir’s Palace.
As was rightly argued by the learned Counsel for the Appellant, all the documents above enumerated are signed as originals and were addressed to Salami Ogundairo, the Baale of Sapati-Ile from Afon District Council. Asa Local Government. Afon and the Emir of Ilorin Alhaji Aliyu Abdulkadir, respectively. They are private documents by Section 110 of the Evidence Act they being documents addressed to Salami Ogundairo, the Appellant’s predecessor-in-title to the Baaleship of Sapati-Ile.
In line with the decision in Dale Power Systems Plc v. Witt & Busch Ltd (2007) All FWLR (Part 394) 353 at 367 – 368, those invitation letters were not and are not documents brought into existence for public inspection (Onimisi Ukana v. Commissioner of Police (1995) 8 NWLR (Part 416) 705); The State v. Mbagwu (1972) ECSLR 462 and Onochie v. Ikem (1989) 4 NWLR (pt. 116) 458; all refer), and are therefore not public documents as contemplated by Section 109 of the Evidence Act and interpreted in the cases of C.C.B. Ltd v. Odogwu (1990) 3 NWLR (Part 140) 646; Nicoguile v. Otuo (2001) 6 S.C. 200; Agagu v. Dawodu (1990) 7 NWLR (Part 160) 56 and Cardoso v. Daniel (1986) 2 NWLR (Part 20) 1.
I agree therefore with the submission of Mr. Jawondo that the Exhibits being originals, are admissible as primary evidence by virtue of Sections 93 and 94 of the Evidence Act and the cases of Araka v. Egbue (2003) 7 S.C.75 at 83-84, Daggashi v. Bulama (2004) All FWLR (Part 213) 1666 at 1717 – 1718; The matter of M.V. Delos v. Ocean Steam Nigeria Ltd. (2005) 9 W.R.N. 155 at 169; Nzekwu v. Nzekwu (1989) 3 SCNJ and Matori v. Bauchi (2004) All FWLR (Part 197) 1010 at 1057; so cited by the learned counsel for the Appellant are most apposite to the circumstance of this Appeal. The Appellant therefore, proved his case by primary evidence as envisaged by Section 96 of the Evidence Act.
It is laughable to contend as the learned Counsel to the Respondent had done after conceding that Exhibit 18 is not a public document, that, the document has no probative value as far as the live issue whether the Appellant or any of his members of Ogundairo family had been appointed as the Baale of Sapati-Ile, was/is concerned. The above submission is not only myopic but falls flat in the faces of all the documents tendered and earlier highlighted.
By Exhibit 15 alone, it is clear that as at 1959, Mallam Salami Ogundairo, the progenitor of the Appellant was the Baale of Sapati-Ile and that as Baale by Yoruba Custom, he was Superior to Mogaji. This explains why in the said Exhibit 15, Salami Ogundairo was requested to come with his Mogaji is who were either family, compound or hamlet heads. These facts were pleaded specifically in paragraphs 8(a) and 33 of the Appellant’s Further Amended Statement of Defence and Counter-Claim inter-alia:-
“8(a) The Defendant avers that the Bale Salami Ogundairo in his capacity as the Bale of Sapati-Ile and in recognition of Bale Salami Ogundairo as Baale of Sapati-Ile was involved in activities marking the coronation and presentation of Staff of Office to the 9th Emir of Ilorin, Alhaji Sulu-Kanani Gambari in 1959. The Defendant pleads the letters written to Salami Ogundairo, Baale of Sapati-Ile on the coronation and installation of the 9th Emir of Ilorin.
“33. The Defendant avers that under the Ilorin Emirate system, the offices of Magaji and that of Baale are not the same while Magaji is the Head of a hamlet within a Village Area. Baale is the head of a Village and the Village Head is for an entire Village Area. The Defendant pleads the Minutes of Meeting of the Ilorin Emirate Council of 25-10-1994, for (sic) meeting; “Magaji and their status vis-a-vis the Village Head and Baale.”
We shall come to the contents of the minutes of Ilorin Emirate Council of 25-10-1994, (Exhibit 27) subsequently. As for Exhibits 16-18, they also demonstrate very vividly that between 1959 and 1992, Mallam Salami Ogundairo was not only the Baal of Sapati-Ile but that the Emir of Ilorin as at 1992, recognized him and dealt with him as the Baale of Sapati-Ile so was the Asa Local Government.
There is no doubt that there is no appointment letter as such to show that the said Salami Ogundairo was the Baale of Sapati-Ile. However, the Appellant did and indeed elicit evidence to the effect that Baale stool is rooted in the custom and tradition of Sapati-Ile and that he was duly nominated by his Ogundairo farnily and appointed by kingmakers and having been so appointed as Baale, he was ipso facto appointed and approved by the Ilorin Emirate Council as the Village Head of Sapati-Ile Village Area. Relevant documents were pleaded which we shall come to later. See paragraphs 8, 26 – 32 of the Further Amended Statement of Defence and Counter-Claim.
But suffice it to say that hitherto, Appointment Letters were unknown to native law and custom. This point was stressed by P.O Aderemi J.S.C, the emeritus and erudite Justice of the Supreme Court in Olubodun v. Lawal (2008) 35 NSCQR 570 at 602 that:-
“It is well established principle of law that documentary evidence is unknown to native law and custom. See (1) Ajadi v. Olanrewaju (1995) 1 ALL NWLR 382 and (2) Egwu v. Egwu (1995) 5 NWLR (Pt. 396) 351”
I agree therefore with Mr. Jawondo that the fact that none of the letters tendered as Exhibits 15 – 18 were Appointment Letters did not detract from the fact that the Appellant’s predecessors (see paragraph 8 of the Further Amended Statement of Defence and Counter-Claim and the Statements on Oath of the Appellant’s witnesses and their answers under cross-examination), were Baales of Sapati-Ile as shall be demonstrated in due course.
The Learned Counsel to the Respondent had rounded up his submission on this issue by contending that whatever probative value Exhibits 15-18 may have possessed have been over ruled by Exhibits 5 and the findings and recommendation in Exhibit 8 against which the Appellant had neither appealed nor challenged.
I have looked at Exhibit 5 which emanated from the Ilorin Emirate Council. That letter dated 14th May, 2001, was addressed to the Assistant Commissioner of police, Ilorin Metropolis, Ilorin and signed by one Alhaji Abdul-Rahanran Folorunsho Ajeigbe, the Secretary Emirate Council and it is to the effect that pursuant to the Assistant Commissioner’s letter dated 11th May, 2001, on the authenticity of Baale of Sapati -Ile, he confirmed that the said Alhaji Abdul-Rahaman Ajadi was the authentic Baale as per the Emirate’s letter Ref. No. EC/15/Vol. I/5 of 22nd February, 1999.
Exhibit 8 is a Report of the Investigation Committee set up by the Ilorin Emirate Council on Sapati-Ile Chieftaincy tussle which findings to say that least were skewed in favour of the Respondent and fraught with nonexistent documents purportedly tendered and annexed thereto in favour of the Respondent.

According to the findings, “The second rival was led by Mallam Abdulrahaman Sule and his family who has customary and traditional lineage and testimonies to the institution even before the creation of Asa Local Government in 1976. Materials and document to prove the fact are reflected in the documents mentioned below:- (See appendix A1 – A11 letters of official transaction between late Mall, Sumonu Akanni, the father of Abdulrahaman who was then the Magaji of Sapati-Ile, and the District Head of Afon dated 26/9/72, 10,5/73, 21/1/72, 7/11/75, 9/7/76, 12/1/76, 5/1/73, 1/11/77, 10/5/73 and 3/1/78 respectively, and (sic) been turbaned by the late Mallam Aliyu Abdulkadir. Video cassette of ceremony available.”
I have searched through all the documents tendered by the Claimant/Respondent but none shows that the Respondent’s predecessor had transactions with the District Head of Afon between 1972 and 1978 respectively. Even the so called video cassette of the ceremony of the turbaning of Sumonu Akanni, the father of the Respondent, was not made available at the trial of the case now on appeal. In any event, one of the documents tending to show that the Respondent’s predecessor in title had transactions with the Local Authority, is Exhibit 1 a photocopy of a letter emanating from the Respondent’s “Magaji Compound, Sapati-Ile, Asa Local Government Area, Kwara State,” dated 1st December, 1988, addressed to The Secretary Ilorin Emirate Council. Emir’s Palace, Ilorin and copied to The Chairman of Asa Local Government Area, Afon. That letter made reference to Exhibit 3 a Certified True Copy of a letter from one Adisa Olohe Secretary to Ilorin Emirate Council appointing Mallam Abdulkarem Akanni the Respondent’s progenitor as the next Village Head of Sapati-Ile with effect from March, 1980.
Also as can be gathered from Exhibits 1 and 5 tendered by Respondent, whereas the Appellant and his family Claim the sole authority and Village Headship of Sapati-Ile and environs through the letter Ref. EC/56/IV/586 dated 27th December, 1994, from the Secretary to the Emirate Council appointing him to the title of Baale, the Respondent’s predecessor was merely a Magaji or Head of a hamlet or at best a tax collector as is clearly demonstrated in finding (A) at page 2 of Exhibit 5 that “a minute of the Local Government Committee meeting dated 1st December, 1978 reflected that late Mallam Sumonu Akanni the father to Mallam Abdurahaman Sule was a Magaji in Sapati-Ile, this specifically indicated that since traditional title in Ilorin Emirate is an hereditary asset, Mallam Suleman Abdulrahaman has the right to the throne.”
The most ridiculous of all the findings is as reflected at page 3 paragraph (E) where the committee shamelessly and against the custom and tradition of the Yoruba race of which the parties Claim to have originated, purported:
“(E) That the title of Baale has no (sic) origination in Sapati-Ile but an affiliation of Osin Aremu and with the carving away of the area to the neighboring Ilorin West Local Government through the adjustment of boundary the “title” thereby swept away along Osin Aremu and thus (sic) seized to be relevant in Sapati-Ile.”
Yet, the title which was swept away by the carving out of Osin Aremu was conferred on the Respondent by the Emirate Council in their so called letter Ref. EC/15/Vol.1/5 of 22nd February, 1999, as can be gleaned from Exhibit 5 which by the submissions of the Learned Counsel for the Respondent abrogated the Baale, Stool in Sapati-Ile. The said Exhibit 5 is dated 14th May, 2001. Also, by Exhibit 2 signed by Alhaji Abdulrahaman Folorunsho Ajeigbe the Secretary of the Emirate Council, Abdulrahaman Sule Ajadi then translated from his status as Mogaji to the abrogated Baale status, “His Highness” having directed the said Ajeigbe to convey to the Respondent “his affirmation of your appointment as the Baale of Sapati-Ile conferred on you on 15th December, 1994 by the late Emir Sheik Aliyu Abdulkadir.” With the use of the term “conferred”, it is clear that Abdulrahaman Sule Ajadi was only purportedly honoured (if at all), with the title of Baale by the Emir and this is at variance with the finding of the committee in Exhibit 8 that Magaji or Baale as pleaded by the Respondent is attained by customary inheritance or succession.
Henceforth, Mallam Abdulrahaman’s address had translated from Magaji Compound” in 1988 to “Baale’s Compound” as can be seen in Exhibit 4 dated 17th July, 2002; a petition he wrote to the Divisional Police Officer, Afon, Asa Local Government against the Appellant complaining of acts likely to cause a breach of the peace over the Baale of Sapati-Ile. See also Exhibit 9 a letter signed by the self-same Alhaji Folorunsho Ajeigbe dated 5th January, 200, I to the Executive Chairman Asa Local Government to the effect that His Royal Highness reaffirmed the incumbent Baale Alhaji Abdulrahaman Ajadi as the authentic and accredited Baale of Sapati – Ile with reference to his letter of appointment referenced EC/15/Vol.1/5 dated 22nd February, 1999. These so called letters of appointment of the Respondent belie the findings of the Investigation Committee that the Baale title has been swept away apart from conflicting with their earlier finding that the Respondent’s family (if at all) had been Magajis or tax collectors rather than Baale.
It would appear that with the Secretary of the Emirate Council Alhaji Ajeigbe as a ready tool, surreptitious and dubious attempts were made as far back as 1992, to impose the Respondent as Baale on the people of Sapati-Ile which culminated in a petition against the Respondent to the Secretary of the Ilorin Emirate Council. That petition dated 1st September, 1992 (Exhibit 6) was signed and thumb-impressed by 62 (sixty-two) accredited representatives of the community. In 1999 and precisely on 28th August, 1999, the kingmakers of Sapati-Ile originated and forwarded another petition to the Special Adviser, Bureau of Local Government and Chieftaincy Affairs, Ilorin, against the Secretary to the Emirate Council Ilorin Alhaji Folorunsho Ajeigbe, following the kingmakers’ appointment of Alhaji Abdulsalam Bolakale Sule (the Appellant) as the Village Head of Sapati-Ile following the death of Baale Kolawole Abdul Salami.
The petition disclosed that after due consultation with the Appellant’s family to appoint the next Baale from the deceased family (as is their usual custom), the family nominated Abdulsalam Bolakale Sule who has been approved by the kingmakers of Sapati – Ile. The kingmakers also approved the nomination and recommended the Appellant’s name to the Emirate Council and he was so approved. The late Emir (H.R.H Abdulkadir Baba Agba) also approved and letters of appointment were sent to the Afon Local Government and the Emirate Council who also approved same.
To their greatest surprise however, the Respondent kicked against the appointment after all these approvals and claimed to be the Baale inspite of his not being recommended by the kingmakers of Sapati Ile as their Village Head. The kingmakers then notified the Local Government and a panel of Enquiry was set up which included:-
i. The D.P.O
ii. SSS
iii. All kingmakers
iv. District Head of Baale; and
v. Mr. David Akinola
The kingmakers made it clear that it was contrary to their customs to have two leaders at the time as it is not normal in a peaceful society. They then stated that:-
“The action of the Secretary to the Emirate Council in single – handedly choosing Adulrahaman (Respondent) as another Village Head is strange to our tradition and an embarrassment to the norms and culture of our Village.” (See Exhibit 28).
Exhibit 11 dated 28th May, 1994, is one of the letters forwarding the name of the Appellant to the Chairman Bureau of Local Government and Chieftaincy Affairs, Kwara State.
It would be recalled that as far back as 1994 and to buttress the petition in Exhibit 28, the Minutes of the Ilorin Emirate council held on Wednesday, 25th October, 1994, at the Emir’s Palace (Exhibit 27 page 5 Minute No. 28 thereof) states in clear terms that:-
“The District Head of Afon had submitted his recommendation for the creation of Village Areas comprising Agor-Oja, Sapati-Ile, Mama, Budo – Agun, Sapati – Oko, Ilaji Garuba etc in Asa Local Government Area. He explained that the communities are those left behind when part of their area was carved to Ilorin west Local Government. The Chairman Mallam Suleiman Bolakale Abdulsalami from Sapati-Ile be appointed as new Village Head for the Area. He therefore asked for members view.
The District Head stated that he made the recommendation after careful investigation. He said Sapati community is the largest in the area hence it was appropriate to recommend a new Village Head from the Area. Balogun Fulani also spoke in support and (sic) endorse the recommendation.
A member asked that the recommendation (sic) to accepted since thorough investigation have been carried out, and that the traditional Chiefs Balogun Fulani and District Head of Afon confirmed the suitability of the new appointees.
The Council unanimously resolved to:
a. create a Village area comprising of Agor – Oja, Sapati-Ile, Mama, Budo Agun Local Government Area:
b. appoint Mallam Suleiman Bolakale Abdulsalami as the new Village Head for the Area with effect from 25th October, 1994. (Action by the Secretary).”
From the above recommendations alone, the case of the Respondent crumbles like a pack of cards. Apart from the fact that by Minute No. 23 at page 1 of Exhibit 27, Magajis are Hamlet Heads, the superiority of Village Heads over Magajis was amply demonstrated during the debate on the stoppage of payment of stipends t6 Magajis.
In paragraph 4, page 2 of the Minutes, it was disclosed that the payment of such stipends “made most of the Magajis affected not to have any regard to both the District and Village heads as they (Magajis) paraded themselves as lords in the Local Government Area.” Assuming any of the Respondent’s family was a Magaji, he could not have been superior to the traditional Baale who by Yoruba custom and tradition is the land owner and founder of the community. See the “The History Of The Yoruba; (From the Earliest Times to the Beginning of British protectorate)” by the Rev. Samuel Johnson at page 75 thereof, where the following appears in respect of Provincial Governments and Titles of the Yorubas thus:
“Every town, Village, or hamlet is under a responsible head either ‘King’ or of a Bale (Mayor). In every case the title is hereditary (excepting Ibadan) as such heads are invariably the founder or descendants of the founder of their town.” See page 48 of Appeal No. CA/IL/90/2006 (unreported) judgment of this Court delivered on the 18th day of March, 2008 and page 42 where the meaning of Baale was given as “Oba Onile” or Owner of the land”.
Even then, apart from Exhibit 27, the Appellant by a letter dated 30th October, 1994 (Exhibit 20) had his appointment as village Head in charge of the Village Area comprising Agor Oja, Sapati-Ile, Budo Agun, Abayowa etc confirmed by the Asa Local Government. From the minutes and resolution of 25th October, 1994, his Baaleship over those other hamlets including Sapati-Ile which is the biggest and most populous of all that was left, after carving out part of that area to Ilorin West, was confirmed following his nomination by his family and recommendation by the Sapati-Ile kingmakers to the District Head of Afon who in turn recommended him to the Emirate Council. His appointment and recommendation by the District Head was supported by the Balogun Fulani.
Before the letter of 30th October, 1994, from Asa Local Government, the Ilorin Emirate Council by an earlier letter dated 27th October. 1994 and referenced EC/S0/IV/658 which was duly tendered before the dubious panel which carne up with Exhibit 8 (an equally dubious and skewed Report), wrote to the District Head of Afon, Asa Local Government, intimating him of the appointment of Mallam Sulleiman Bolakale AbdulSalami as the Village Head of Sapati-Ile. That letter is explicit that “the sudden death of the late Mallam Kolawole Balogun who had earlier been appointed as a Village Head of the carved areas in Asa Local Government, had necessitated the Ilorin Emirate Council, at its meeting held on 25th October, 1994 to resolve to appoint one Mallam Suleiman Bolakale Abdulsalami to succeed him as the new Village Head for Ago-Oja, Sapati-Ile, Budo Agun, Abayowa, etc all in Asa Local Goernment Area”. (See Exhibit 19).
Henceforth, by Exhibits 21, 22, 23, 24, 25, 26, the Asa Local Government addressed the Appellant variously as the Baale of Sapati-Ile and dealt with him as such through such correspondences. Add these documents to Exhibits 15 – 18 which were correspondences dating as far back as 1959 – 1992 between the Appellant’s predecessor (Mallam Salami Ogundairo who was the Baale of Sapati-Ile), and it becomes clear that the documents tendered by the Respondent’s counsel (Exhibits 5 and 8) as purporting to abrogate Exhibits 15-18; should have commanded no probative value before the court below.
The Learned Counsel for the Respondent has not shown by any evidence either oral, documentary or otherwise that the Appellant abdicated his position or was dethroned either by the people of Sapati-Ile, the Emirate Council or the Asa Local Government who had nominated. presented and approved/affirmed his appointment as either the Baale of Sapati-Ile and/or Village Head of the remaining parts of Asa Local Government after the carving out of some parts thereof to Ilorin West, Local Government Area. He has also not tendered any minutes of the Emirate Council recommending his appointment. Thus, it is neither here nor there whether the Appellant challenged Exhibit 8, as that document even conflicts with the case of the Respondent, as has been held earlier. For the avoidance of doubt, see however paragraphs 47 – 49 of the Amended Statement of Defence and Counter-Claim of the Appellant, wherein he pleaded that the purported Report of the Committee (Exhibit 8) did not reflect what transpired at the proceedings its all the relevant documents already pleaded and submitted to it and evidence of independent witnesses from the hamlets were tendentiously ignored. The Committee, according to him was set up to deal with the Defendant’s family who refused to be used against Magaji Are/Afonja family; hence non members of the committee purportedly signed the document. The Report again was not made available to the Appellant or the people of Sapati-Ile.
Accordingly, the case of Iga v. Amakiri (1976) 11 S.C. 1 at 12 – 13, cited by the learned counsel for the Respondent to submit that the Appellant was estopped from denying the contents of Exhibit 8 and that Exhibits 13 – 27 of the Appellant have no probative value, was cited out of con.
As has also been shown earlier, the unlawful attempts of the Claimant/Respondent to impose himself on the people of Sapati-Ile through the instrumentality of Alhaji Folorunsho Ajeigbe, the Secretary of the Emirate Council and some of his cohorts in that Council, were always vehemently opposed. See the petitions tendered as Exhibits 6, 12 and 28 and the testimonies of the Appellant and his witnesses at page 97, paragraphs 25, 26, 27, and page 98, page 111 paragraph 9 of their Statements on Oath. In the same vein, the finding of the court below that Exhibits 15 – 18 were not tendered before the dubious panel, is non sequitur and as rightly contended by learned Counsel for the Appellant, did not deprive the Appellant from tendering them in a court of law. Even then, Exhibit 19 with Ref. No. EC/50/IV/658 of 27th October, 1994 and Exhibit 20 with Ref. No. ALG/CA/C.15/Vol.V/750 of 30th October, 1994, which predated Exhibits 5 and 8 were ignored by the dubious Report for no just cause, even when tendered before the committee.

From the totality of the oral and documentary evidence tendered by the parties, no reasonable judge could have held that the evidence of the Respondent preponderated that bf the Appellant as the learned trial judge had done. The cases of Mogaji v. Odofin (supra) and Balogun v. Labiran (supra) cited by the learned Counsel for the Appellant rather support the case of the Appellant. In line with the decisions in Yaro. v. Arewa Construction Ltd. & Ors. (2007) 10 MJSC 166 at 212 and Jimoh & Ors. V. Akande & Anor (2009) 1 – 2 S.C (PT. 1) 116 at 151; this court in its appellate jurisdiction is in as good a position as the trial lower court to evaluate and draw the necessary inferences and conclusions from the documents tendered by the parties for the just determination of the appeal at hand. See Olubodun v. Lawal (2008) 35 NSCQR 570; Military Governor of Ondo State v. Kolawole (2008) 35 NSCQR 506.
On the whole, I shall discountenance the submissions of the learned counsel for the Respondent on this issue and hold that the learned trial Judge was wrong to have discountenanced Exhibits 15 – 18 as lacking probative value thereby giving judgment to the Respondent and dismissing the Counter-Claim of the Appellant.
On the submission by the learned counsel for the Respondent that from the facts of recent years in line with the decision in Kojo v. Bonsie (supra) and Sanusi v. Ameyogun (supra): the Court was right in holding that from Exhibits 1, 2, 3, 5, 7, 8 and 9 tendered by the Respondent and admitted by the trial court and the fact that the DW2 admitted that it is the Respondent and not the Appellant who received salaries/stipends, I had earlier held that those documents tendered by the Respondents are of doubtful integrity. Exhibit 1 for instance which purports that Mallam Abdulahi Akanni was the Baale or Village Head has been discredited by the singular evidence of the selfsame Respondent that between 1960 and 1992, the Baale was Salami Ogundairo and that there was no inter-regnum or two Baales at the same time in the history of Sapati-Ile. Therefore, Akanni could not been a Baale. Exhibit 2 came after the dubious Report in Exhibit 8 which the Court below rightly held did not bind the Appellant and from the contents of that document it was doctored and skewed in favour of the Respondent after systematically obfuscating and mutilating the history of Sapati-Ile and tendentiously’ ignoring the salient Exhibit 19. Exhibit 3 is also afflicted with the virus of dubiousness and incredibility, in that at the time it was purportedly issued in 1980 Salami Ogundairo was the Baale and even if Akanni was appointed anything, he was a Magaji who was inferior to Ogundairo. Exhibits 5 and 9 tendered by the Respondent are also products of the chicanery and conspiracy between the Respondent and Abdulrahaman Folorunsho Ajeigbe who was intent on imposing the Respondent on the Sapati-Ile community and who from the 1992 when Respondent started harbouring and manifesting the inordinate ambition of becoming the Baale, resisted same by protestations and petitions in the form of Exhibits 6, 12 and 28.
Exhibit, 7 is a letter of invitation to attend the Sub-Coommittee Panel of Inquiry that produced Exhibit 8 (the discredited Report) and it is inconsequential since the court below and this court have concurrently found that the Report was/is not binding on the Appellant. Exhibit 8 has already been dealt with and I reiterate that, that Report is not superior to Exhibit 27.
In the same vein Exhibit 9 has no foundation as the Respondent admitted that there was no minute from the Emirate Council approving or affirming his appointment as Baale. That document from his testimony was given him as a fall out of the dubious Report in Exhibit 8. Accordingly, all his documents cannot constitute evidence of recent events and even if they did, could not have displaced the more credible documents which are consistent with the oral testimonies and traditional history of the Baaleship as rendered by the Appellant and his witnesses.
On the submission that the Appellant admitted that he has no letter of appointment as Baale, by the custom of Sapati-Ile community which is consistent with the customs and traditions of most Yoruba communities in this country the Appellant and indeed his predecessors in title did not need to be appointed Baale by letter of Appointment as that title pre-existed the Emirate Council as has been pleaded and proved by parties. His predecessors as can be shown by Exhibits 15-18 have been Baale and in recognition of this fact Exhibit 19 appointed him the Village Area Head of the remainder Group of Village Area after those carved out of Asa Local Government to Ilorin West Local Government.
If Respondent was to be appointed anything, he should inherit the Magaji of Magaji Ekun title which is his family prerogative as has been shown from pleadings and even the evidence tendered by the Respondent (see Exhibit 1). The Respondent, whose family compound address was Magaji compound in 1988, suddenly became of Baale’s compound ten years later. Exhibits 19, 20, 27 and 28 show clearly that since the Defendant’s family members had been successive Baales and Sapati-Ile/land belongs to them by custom, the Defendant was given the additional Headship of the surrounding peripheral villages which tantamount to added responsibility. If the Respondent is a Magaji in Sapati-Ile, then by the minutes 23 in Exhibit 27, he was/is inferior in status to the village Head controlling the groups of villages or village Area which title has rightly by the said minute been given to the Appellant as a successor-in-title to the Baale of Sapati-Ile.
On the submission by the learned counsel for the Respondent that the Appellant admitted that the Respondent had been receiving salary from the Government, the evidence of DW2 is cogent that the “Defendant has not received any salary or stipends from Asa Local Government but it is the Claimant who is wrongly paid by the Asa Local Government.” This is not a positive admission that the Respondent has as of right been receiving salaries. With the greatest respect, this piece of evidence did not render the traditional evidence of the Respondent and his witnesses more probable. Alade v. Awo (1975) 4 SC 215 and Adeyemo v. Arokopo (1988) 2 WRN (pt. 79) 703 at? Do not apply to the facts of this case.
As far as Exhibits 2, 9 and 10 are concerned, from the pleadings of the Respondent he could not have been appointed in 1989 and even by the said Exhibits, it is uncertain whether the Respondent became Baale by appointment, conferment or affirmation or whether he was selected by his family and presented to the five Bale or compound heads. His appointment and even pedigree are doubtful and the documents tendered together with the oral evidence should have been treated as incredible.
THE ISSUE OF EXISTENCE OR NON-EXISTENCE OF KINGMAKERS IN SAPATI-ILE IN 1989, AND WHETHER LATE KOLAWOLE BALOGUN AREMU AND THE APPELLANT WERE APPOINTED BAALE DURING THE PURPORTED REIGN OF THE RESPONDENT. (ISSUE NUMBER THREE (3) OF THE APPELLANT).
It would be recalled that the learned counsel for the Appellant raised the issue as to whether or not the Learned trial Judge was right in concluding that from Exhibits 6, 11 and 12 and the evidence of Appellant, up to the time of appointment of the Respondent in 1989, there was no kingmaker in Sapati-Ile and that late Kolawole Balogun Aremu and the Appellant were appointed during the reign of the Respondent because Kolawole Balogun signed (Exhibit 6 and Exhibit 11) as Kolawole Aremu from Arida and not as Baale. Learned Counsel for the Appellant had submitted that the learned trial Judge was in error to have so held. On the other hand, the Learned Counsel for the Respondent argued on the contrary that the learned trial Judge, based on the contradictory evidence of the Appellant, could not be faulted when he so held.
In the resolution of this question or issue, it is necessary to recall that in paragraph 9 of the Appellant’s Further Amended Statement of Defence and Counter-Claim, the Appellant as Defendant pleaded thus:-
“9. The Defendant avers that he (Bolakale Salami Ogundairo) succeeded Kolawole Balogun (of Ogundairo’s family) in 1994 as the Baale of Sapati-Ile and singe then has been exercising the rights and performing the duties of such Baale. “See page 49 of the Records.
At page 111 of the Records, the DW1 (Ibrahim Akanni Abayowa) deposed in paragraph 12 of his Statement on Oath as follows:-
“12- The Defendant’s family has all the previou’s Baales of Sapati-Ile and as such the Defendant is the Baale of Sapati-Ile. The Kolawole Balogun Aremu succeeded Salami Ogundairo who died in 1992. Salami Ogunduiro was Baale of Sapati-Ile for over forty years. Salami Ogundairo succeeded Shuaibu who reigned for many years.”
Exhibit 6 which is one of the petitions written to the Secretary to Ilorin Emirate Council by the Community of Sapati-Ile dated 1st September, 1992 was signed by Kolawole Balogun as coming from Ile Arida Compound. Exhibit 12 dated 29th September, 1992, was also signed by Kolawole Balogun of Ile Bale.
The Learned Counsel for the Respondent has rightly submitted that neither in the Appellant’s pleadings nor in his Statement on Oath or those of his witnesses was the precise date of death of Salami Ogundairo stated. However, with the greatest respect to the Learned Counsel to the Respondent, and trial Judge, the contention or case of the Appellant is/was not that Kolawole Balogun succeeded the late Salami Ogundairo in 1992 the year of the latter’s death. What is clear from the evidence of the DW1 as stated above is that Kolawole Balogun became the Baale after the death of Salami Ogundairo who died in 1992 and not that he became Baale in 1992. Again, by paragraph 9 of the Further Amended Statement of Defence and Counter-Claim, the Appellant was crystal clear that he succeeded Kolawole Balogun in 1994.
Moreover, as can be gleaned from Exhibit 18, the letter from His Royal Highness Mallam Aliyu Abdulkadir (the Emir of Ilorin, Aliyu the 2nd), Mallam Salami Ogundairo was the Baale of Sapati-Ile as at 28/9/92. To further buttress the fact that Kolawole Balogun could not have signed Exhibits 6 and 12 as Baale, Exhibit 13 Suit No. HC/KWS/91/93 was instituted by the Respondent against Kolawole Balogun Aremu in 1993, for appointing Aminu Baba Agba as the Chief Imam of Sapati-Ile, presupposing that the said Kola Balogun became Baale in 1993 and by 28th November, 1994, following his sudden death, the Respondent by a Motion on Notice brought pursuant to Order 29 Rule 3 (1) & (3) of the Kwara State. High Court (Civil Procedure) Rules, 1989 discontinued the suit which was accordingly struck out by Gbadeyan, J.
It is also worthy of note that the PW3 (Respondent) at page 205 admitted that this is the second case he filed in respect of the title of Baale of Sapati-Ile. He further admitted in lines 14 and 15 that from 1960-1992, Baale Sapati was Salami Ogundairo and that there was never a time there were two Baale in Sapati-Ile.
On the holding that there were no kingmakers in Sapati-Ile before the appointment of the Respondent in 1989; it would be recalled that the Defendant/Appellant had pleaded in paragraphs 13, 14, and 15 of his Further Amended Statement of Defence and Counter-Claim, that in accordance with tradition, it is the Baale of Sapati-Ile who appoints kingmakers whenever there is vacancy and the kingmakers would in turn appoint Baale of Sapati-Ile where ever there is vacancy.
According to him, the kingmakers of Sapati-Ile are Eesa Sapati, Elemosho Sapati, Osolo Sapati, Ikolaba Sapati and Chief Imam Sapati and that the incumbent Eesa, Elemosho, Osolo, Ikolaba and the Chief Imam are Alhaji Ganiyu Salami, Kusamotu Zubair, Alhaji Amosa, Mallam Karim Kasali and Mallam Aminu Baba Agba respectively.
In paragraph 26, the Appellant pleaded that the was duly nominated by his Ogundairo family and appointed by the kingmakers and having been so appointed Baale of Sapati-Ile, he was ipso facto appointed and approved by the Ilorin Emirate Council as the Village Head of Sapati-Ile Village Area. See also the evidence (Statement on Oath of the Appellant at page 96 paragraph 18: page 99 paragraph 35 of the Records, that of the witnesses at pages 101 paragraphs 2, 5 and 36 of Statement On Oath and page 106 paragraph 36 thereof).
The Respondent denied this Claim of the existence of kingmakers in Sapati-Ile but pleaded in paragraphs 8 and 9 of his Reply to the Further Amended Statement of Defence and Counter-Claim, that there are five family heads (Bales) in Sapati-Ile. The Baale family selects a candidate amongst itself when the post of Baale is vacant. The family thereafter presents the candidate to the family heads. If the family heads find the candidate suitable, they consult the Youths of the community and if the youths consider the candidate suitable, he is then presented to the Ilorin Emirate Council through the Emir of Ilorin for approval and turbaning as the Baale Sapati-Ile. The Selection, appointment, and approval of appointment of Baale of Sapati-Ile have nothing to do with the Magaji Are of Ilorin or his family, he maintained. Furthermore, it was pleaded that there is nothing like Eesa, Elemosho, Osolo, or Ikolaba in Sapati-Ile and that Aminu Baba-Agba’s father, a Fulani settled at Ile very recently (during the reign of Baale Mohammed Iyanda Iko as Baale).
In his evidence in support of this averment/pleading and under cross-examination at page 205 lines 21-23; the PW3 stated thus.. “My family is the one producing Baale. It is the Emir that appoints the Baale of Sapati-Ile. It is because it is our family that reigns as bale that the present Emir appointed me.”
It is also worth noting that the Respondent purported to have been installed Baale in 1989 but by the evidence of the PW3, it was Karimu Akanni who was the Baale as at 1992 and after being prodded he turned summersault claiming that it was he (the Claimant/Respondent ).
By Exhibit 1 dated 1988, Mallam Abdul-Karim Akanni whose appointment was approved by the Emirate Council by Exhibit 3 dated 27th March, 1980, was reported dead and the Respondent was purportedly unanimously elected by the Magaji Compound as the new Village Head of Sapati-Ile. However, contrary to the holding of the learned trial Judge that the Respondent became Baale in 1989; (see page 225 line 12 of the Record as testified by the Respondent and the finding of the court at page 236 lines 16 -17), it was not until 15th December, 1994 that the late Emir Sheikh Aliyu Abdulkadir conferred the Baaleship on the Respondent and the conferment was confirmed by a purported Letter of Appointment signed by Alhaji Abdulrahaman Folorunsho Ajeigbe and dated 22nd February, 1999.
Needles to say that the Respondent had admitted at page 204 lines 12 – 14 of the Records that there are no minutes of the Emirate Council approving his appointment but that a panel recommended his appointment (probably the Report tendered as Exhibit 8).
As already highlighted, the case of the Appellant as pleaded and as can be found from the testimonies of his witnesses and even documentary evidence is that he was selected by his Baale Ogundairo family and presented to the kingmakers who appointed him and presented him to Emir through Emirate Council who eventually confirmed and approved his appointment.
The existence of the kingmakers in Sapati-Ile which is rooted in Yoruba custom and is almost universally accepted in most parts of Nigeria as the mode of selection, nomination and/or coronation and appointment of kings. Obas, and Village Heads, as contended by the Appellant, is undoubted since as at 1992: when the Respondent started nursing the ambition or illusion of becoming the Baale of Sapati-Ile, the entire community’ representatives rose in unison and petitioned the Secretary of the Ilorin Emirate Council making it explicitly clear in paragraph 3 of Exhibit 6 dated 1st September, 1992 lines 7 – 11 thereof that:
“More so we want to (sic) opin and grigle it to your hearing that his appointment has no blessing of either the Emirate Council of Ilorin, the Local Government Authorities of Asa or the kingmakers merit backing of Sapati-Ile no official letter whatsoever from the above quarters backing him to that effect”.
Exhibit 11 dated 28th May, 1994, is the confirmation of the Appcllant’s case that he was duly nominated by his family and entire community and presented to the kingmakers who signed the said letter forwarding his name to the Bureau of Local Government as the person whose nomination should be approved as the new Village Head. See Arowolo v. Akapo (2006) 18 NWLR (pt. 1010) 94 at 106 – 107 para. C; per Onnoghen, JSC.
The Respondent’s Counsel has argued that whereas the Appellant pleaded that there are five kingmakers the nine persons who signed the document did not give their titles. In both his pleadings and Statement on Oath, the Appellant had mentioned the following persons as being the kingmakers:-
1. Alhaji Ganiyu Salami – Eesa.
2. Alhaji Kusamotu Zubair – Elemosho.
3. Alhaji Amosa-Osolo.
4. Mallam Karimu Kasali-Ikolaba.
5. Mallam Aminu Baba-Agba Chief Imam, respectively.
In Exhibit 11, Numbers 1, 3, 4 and 7 are the persons mentioned in both the Appellant’s pleading and Statement on Oath as Numbers 2, 3, 4 and 5.
It would be recalled that in Suit No. KWS/192/92, the self same Respondent purporting to be the Baale of Sapati-Ile sued Aminu Baba-Agba, Alfa Kasali, Rufai Baanu, Alhaji Ajadi, Alhaji Gbada, Gani Salami and Alhaji Bashir Fulani (Chief Iman of Ilorin). Mallam Aminu Baba-Agba. Alfa Kasali, Alhaji Ganiyu Salami, and Mallam Karim Kasali who is the same as Alfa Kasali Kereaje were pleaded as among the incumbent Kingmakers in Sapati-Ile. Also, although the DW2 was recorded as having testified that his brother Alhaji Ajadi of Ile Madi was not a Kingmaker his name appears as number 2 in Exhibit 11 the letter addressed to the Chairman Bureau of Local Government and Chieftaincy Affair, Kwara State approving the nomination of the Appellant by the Kingmakers as the new village head of Sapati-Ile to succeed his brother Mallam Kolawole Balogun. That document too was signed by Alhaji Gbadamosi who was sued as number 5 in Exhibit 14.
The inference that can be drawn from Exhibits 22 and 14 is that, apart from Rufai Baanu and Alhaji Bashir Fulani, the Respondent purporting to be Baale of Sapati-Ile sued the kingmakers whose names appear in both Exhibits and paragraph 15 of the Further Amended Statement of Defence and Counter-Claim of the Appellant.
The Respondent on the other hand, has no such names of the Heads of Compounds or Bale who appointed and recommended him to the Emir or Emirate Council. See also Exhibit 12 which amply demonstrates that the institution of kingmakers predated the appointment of the Respondent in 1999 following the recommendation of the Report in Exhibit 8 which report was submitted in 1996.
Finally, by Exhibit 28 dated 28th August, 1999, another petition to the Special Adviser Bureau of Local Government and Chieftaincy Affair, it is clear that it is the usual tradition of the Sapati-Ile people (Community) to appoint a Baale after the appointee’s family and in this case the family of the Appellant nominated the Appellant and the nomination was approved by the kingmakers who recommended the Appellant to the Emirate Council and the Emirate Council approved same. The late Emir (H.R.H. Alhaji Abdulkadir Baba-Agba) also approved it. On the other hand, the kingmakers by the same petition did not recommend or accept the Respondent as their Village Head.
To worsen the case of the Respondent, none of the Baale or Head of Compounds who recommended him was ever called to support his case. The finding of the learned trial Judge at page 236 paragraphs 29 of the Records that: – “On the issue of existence of kingmakers in Sapati-Ile, I prefer the evidence of PW2 and PW3 to the evidence of DW3 on this point. I therefore find as a fact that at least up to the time of the appointment of the Claimant in 1989, there was no kingmakers in Sapati-Ile, is not only mischievous but to say the least, perverse in the face of the copious documentary and oral evidence tendered and elicited by the Appellant and his witnesses.
Before rounding up, let me recall once more, the immortal words of Fatayi Williams, JSC (as he then was) on the guiding principles on Courts in their trial of civil cases as enunciated in the celebrated case of Mogaji & Ors. v. Odofin & Anor. (1978) 4 SC 91 at 94; rightly cited by the learned counsel for the Respondent that:-
“…before a judge whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he belives or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale: he will put the evidence adduced by the Plaintiff on one side of the scale and that of the Defendant on the other side and weigh them together.”
The above dictum in essence presupposes that a trial Judge in a civil case before him would normally set out the issues joined by the parties from their respective pleadings, assemble the evidence elicited by either side on the issues so joined and then weigh them in the imaginary scale of justice in order to find out which of the evidence preponderates the other by the quality of the probative value of the testimony of the witnesses and the documentary exhibits tendered. See Aromire v. Awoyemi (1972) 1 All N.L.R. 101 and also per Eso, JSC in Bello v. Eweka (1981) 1 SC 101 at 118 – 120.
From the totality of the oral and documentary evidence proffered by the parties and as can be gleaned from the Records, the learned trial Judge failed to apply this time-honoured principle in the consideration of the cases put forward by the parties otherwise, he could not have come to the very perverse findings at pages 235 -238 of the Records which with the greatest respect are not borne out of the evidence elicited by the parties. If he had so done, he would have found that the case of Defendant/Appellant preponderated that of the Claimant/Respondent in all ramifications.
In Adeye & Ors. v. Adesanya & Ors. (2001) 5 NSCQR 522 at 531 A.B Wali, JSC (now emeritus), put the position of the law ever so succinctly thus:-
“It is trite that the evaluation of evidence and making findings on it is the duty of the trial court and an appellate court will only interfere with such findings if they are perverse and lead to a miscarriage of justice”. See also Iguh, JSC in Nnorodim v. Ezeani (2001) 5 NSCQR 510 at 518 paras, C-F.Where, as in this case, the learned trial Judge failed to utilize his advantage as a court of first instance to ascribe probative value to the evidence of the Appellant particularly, the documentary evidence so tendered, and this failure has resulted in perverse findings and miscarriage of justice, this court can draw the necessary irresistible inferences from proved facts and do justice to the aggrieved party. From the foregoing, I shall therefore resolve the composite Issue Number 2 again in favour of the Appellant.”
NOTICE OF INTENTION TO CONTEND
It would be recalled that as a last ditch move, the learned counsel for the Respondent called on this Court to invoke Order 9 Rule 6 of the Court of Appeal Rules, 2007, to affirm the judgment of the court below on grounds other than those relied upon by that court on the following grounds:-
i. That in paragraph 51(2) of his Further Amended Statement of Defence and Counter-Claim, the Appellant prayed for a declaration that having been properly and duly appointed as the Baale of Sapati-Ile in 1984, he is the authentic Baale of Sapati.
ii. That in paragraph 40 of his statement on oath, the Appellant urged the trial court to dismiss the Respondent’s claims and grant his Counter-Claims as per paragraphs 51(1)-(7) of his Further Amended Statement of Defence and Counter-Claim.

In support of the application, he had argued that the evidence of the Appellant and his witnesses before the trial court is that he became the Baale of Sapati-Ile in 1994 following the demise of Kolawole Balogun Aremu. This means that the evidence adduced by him at the trial is at variance with his pleadings. This being the situation, the order to make is one dismissing his counter-claim.
Responding to the submissions of the learned counsel for the Respondent, Mr. Jawondo for the Appellant had relied on Order 9 Rule 4 of the Court of Appeal Rules and the case of Taraku-Mills Ltd. v. Sant Engineering Ltd (2008) All FWLR (pt. 430) at 799 – 800 and Umar v. White Gold Ginnery Nig. Ltd (2007) All FWLR (pt. 358) 1096 at 1119; to submit that the application is incompetent in that it has not complied with the provisions of the Rule. Alternatively, he submitted that the figures 1994 and 1984 as appear in paragraph 40 of the Statement on Oath of the Appellant and paragraph 51(2) is a typographical error as the parties fought the case at the lower court on the bases that the Appellant was appointed Baale or Village Head in 1994 and not 1984 as contained in paragraph 51(2) that is the relief sought. Besides, he had submitted relying on Alhaji Aminu Ishola v. UBN Ltd (supra) that prayers in pleadings are not facts and therefore do not form part of the facts pleaded and relied upon by a party and in line with which the party must give evidence.
I have had a careful perusal of the provisions of Order 9 which deals with Respondent Notice of Contention and Rule 4 thereof provides in mandatory terms that any notice given by a Respondent under this Order must be served on the Appellant and all parties to the proceedings in the court below who are directly affected by the contentions of the Respondent and must be served in the case of a final decision as in this appeal within 30 days after service of the Notice of Appeal on the Respondent. In this case, the contention of Jawondo Esq, on behalf of the Appellant is that, the Appellant’s Notice of Appeal was served on the Respondent in May, 2009, but he did not file the Notice to contend as envisaged by Rule 2 of Order 9. Besides, it would appear from the Stamp and endorsement on the Respondent’s Brief of Argument that the Respondent’s Notice was given in the said Brief on the 22nd April, 2010, I have also searched through the case file and I cannot find a copy of the Notice therein as envisaged by Order 9 Rule 5 of the Rules, Even though by Rule 6, the Court has the discretionary power to postpone or adjourn the appeal upon terms, this appeal has already been argued without any leave being sought to furnish the Court and parties with the Notices, Prima facie, this Notice of intention to contend is incompetent and ought to be dismissed.
In the alternative, even if we are minded to consider it on the merit, learned counsel for the Appellant has rightly argued on the authority above cited that relieves or prayers in pleadings are not facts. Most importantly, just like this court discountenanced the submission of learned counsel for the Appellant on the discrepancy between the dates in the Respondent’s Statement of oath and his cross-examination on whether he became Baale on 9th August. 1998 or 9th August, 1988 and the holding of the court below that it was a typographical error: I shall also discountenance the submission of the Learned Counsel for Respondent and the discrepancy between 1994 and 1984, as appear in the pleading of the Appellant and relief sought in paragraph 51(2) of the Counter-Claim. In the circumstance, the Notice to Contend is dismissed for being incompetent.
This appeal is meritorious and therefore succeeds. In line with the decision in Odutola v. Sanya (2008) ALL FWLR (Pt. 400) 780 at 795; ably cited by the learned Salman Jawondo Esq. the court ought not to have placed any premium on the evidence of the Claimant/Respondent and his witnesses and discountenanced those of the Defendant/Counter-Claimant. He was also grossly in error to have given judgment in favour of the Claimant/Respondent and dismissed the counter Claim of the Defendant/Counter-Claimant. Having failed to do justice in this case, I shall intervene and set aside all the findings and the entire judgment of the learned trial Judge. In its stead, I dismiss the claim of the Claimant/Respondent in the lower court and enter judgment in favour of the Defendant/Counter-Claimant on all his relieves.
It is hereby ordered and declared as follows:-
(1) That the Defendant’s Ogundairo family is the only family entitled to produce the Baale of Sapati-Ile in accordance with the native law and customs of Sapati-Ile.
(2) That the Defendant having been properly and duly appointed as the Baale of Sapati-Ile in 1994 is the authentic Baale of Sapati-Ile.
(3) That the Claimant’s Digunlese family is not entitled to produce Baale of Sapati-Ile under Native Laws and Customs of Sapati-Ile.
(4) That the purported appointment of the Claimant as the Baale of Sapati-Ile by the Ilorin Emirate Council vide its letters of 22/02/99 and 14/5/2001 purportedly confirming and re-affirming the Claimant as the Baale of Sapati-Ile, violates the native laws and customs of Sapati-Ile and Ilorin Emirate and is therefore null and void.
(5) That the said purported appointment and or confirmation and re-affirmation of the Claimant as the Baale by the Ilorin Emirate Council, is hereby set aside.
(6) That a perpetual injunction shall hereby restrain the Claimant from parading, presenting, portraying himself and or ascribing to himself the title of Baale of Sapati and or in any way or manner performing the functions, duties and responsibilities and or enjoying the benefits, rights and privileges appertaining to the Office of Baala Sapati-Ile.
(7) That the Claimant/Appellant is entitled to N30, 000.00 costs.

HON. JUSTICE TIJJANI ABDULLAHI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, AGUBE, JCA, just delivered. My Lordship has characteristically dealt in extensively with all the live issues that call for determination in this appeal. However for emphasis and support, I add a few words.
A careful look at the evidence adduced by the Appellant in support of his case, clearly reveals unbroken chain of succession as pleaded in some of the Further Amended Statement of Defence, and Counter-Claim, i.e. Paragraphs 8, 8(a) and 9. This evidence can be found on pages 48-49 of the record.
As can be gleaned from the records, the respondent and D.W.2 gave cogent and straight forward evidence of successive ten named Baales of Sapati Ile from Ogundairo (the founder) through Lajanibon, Orunmila, Kadir, Holeru, Ramonu, Shuaib, Salami Ogundairo, Kolawole Balogun to the appellant.
The evidence of D.W.3 and D.W.2, is supported by the evidence of DW1, an old man of 80 years who was never cross-examined on his evidence of personal experience to the reigns of four Baales of Sapati-Ile from the defendant’s family.
I am of the firm view that in the light of the evidence adduced in support of the pleadings as can gleaned from the printed record of proceedings, the appellant proved the founding of Sapati-Ile and how it was founded by his ancestor, Ogundairo and an unbroken chain of succession to the stool of Baale of Sapati-Ile by the Ogundairo family from Ogundairo himself as the 1st Baale through to the appellant as the 10th Baale, and the learned trial judge was absolutely wrong not to have held the appellant and not the respondent is entitled to judgment on evidence of traditional history as adumbrated above.
For these reasons and the fuller ones brilliantly marshaled out in the lead judgment of my noble law Lord, I too allow the appeal in the terms set out in the lead judgment.

SOTONYE DENTON WEST J.C.A: The judgment just delivered by my noble lord Hon justice IGNATIUS IGWE AGUBE JCA, who is known for his usual lengthy discourse to the parties in the process of determinations of issues. He has dealt so exhaustively with the issues raised in the lead judgment comprising of eighty four page 3 that it would not serve any useful purpose for me to add anything.
I am in attunement with the reasoning’s backing the judgment and I have nothing more to add except to say that some issues addressed in this appeal were seems over flogged.

Appearances

Salman Jawondo Esq.
Idris A. Abdullahi Esq.For Appellant

AND

K.B.A. Badmus Esq.For Respondent