PRINCE HASSAN OYEDELE & ANOR v. BAALE SIDIKU BAMIGBOYE JIMOH
(2012)LCN/5379(CA)
In The Court of Appeal of Nigeria
On Thursday, the 17th day of May, 2012
CA/IL/97/2010
RATIO
EVIDENCE: ON WHOM LIES THE ONUS TO PROVE AN ASSERTION
The rule is always that he who asserts must prove. See Section 135 of the Evidence Act, and the case of Ogundepo vs. Olumesan (2012) 5 NWLR1 held 3; Okubule v. Oyagbola (1990) 4 NWLR (pt. 147) 723. See also Eyo vs. Onuaha (2011) 39 WRN 1, held 4, where the Supreme Court said:
“It is also trite that he who asserts must prove, for without the cogent and credible evidence of the party asserting, he will not succeed in his suit and obtain judgment in his favour. See Section 135 of the Evidence Act, Cap.112, Laws of the Federations of Nigeria 1996; Imana vs. Robinson (1979) 3-4 SC 1; (1979) 12 NSCC 1; 1979 1 ALL NLR 1 and Achibong vs. Ita (2004) 13 WRN; (2004) 2 NWLR (Pt.858) 590.” PER ITA GEORGE MBABA, J.C.A.
EVIDENCE: WHETHER COUNSEL’S ADDRESS CAN REPLACE CREDIBLE EVIDENCE
Of course, the learned trial court declined to adopt learned counsel’s conclusion, and even queried that if such conclusion was to be made, it should have come from evidence under further cross examination of the DW1 to DW3, whether or not they understood the content of their said depositions (that is, the case the defence presented). In my humble view, the learned trial judge was right, because counsel’s address, no matter how eloquent and deductive, cannot take the place of credible evidence, which must come from the parties and/or their witnesses to establish a given fact.
See the case of Chime vs. Ezea (2009) ALL FWLR (Pt. 470) 659; Atamah vs. Ebosele (2009) ALL FWLR (pt. 473) 1385. PER ITA GEORGE MBABA, J.C.A.
EVIDENCE: BURDEN OF PROOF IN DECLARATORY ACTIONS
Like all declaratory actions the Claimants/Appellants had the duty or onus to satisfy the Court by preponderance of evidence that they were entitled to the declarations sought and has been settled in authorities too numerous to mention, the Claimants/Appellants were to rely on the strength of their case and not on the weakness of the Defendants/Respondents. Where the onus was not discharged to the satisfaction of the Court below; the weakness of the Defendant/Respondent’s case would not help them and the proper judgment would be for the Defendant. See Kodilinye v. Mbanefo Odu (1953) A.C 207 (1953) WLR 261, 953 12 WACA 172; Udegbe v Nwokafor (1963) 1 ALL NLR 417; Eboha v. Anakwenze (1967) NWLR 140 and, the recent case of Oloruntoba Oju v. Dopamu (2008) 34 NSCQR 176 at 222.
It is also settled Law that the declaratory reliefs sought by the Claimants/Appellants above cannot be granted even upon the admission of the Defendants/Respondents in their pleadings without the Claimants/Appellants eliciting oral evidence in proof of their claims.
However, the above principle is not without an exception. see CBN v. Amao & Ors. (2011) 201 LRCN 48 at 73.
Where as in this case the Defendant/Respondent Counter-Claimed against the Claimants/Appellants, each of the parties was expected to rely on the strength of their respective cases and not on the weakness of each other’s, although sometimes the weakness of each other’s case may itself support the case of the rival party. That is the exception to the principle as enunciated in CBN v. Amao & Ors, (supra) above cited. See also Per Obaseki in George Okafor & 3 Ors v. Eze A-E, Idigbo III & Ors (1984) 6 SC 1 at page 25-29. PER IGNATIUS IGWE AGUBE, J.C.A
EVIDENCE: EFFECT OF ADMITTED FACT
the law is trite that any fact admitted needs no further proof. see Adeye & Ors. v. Adesanya & Ors (2001) 5 NSCQR 522 at 530 per Ogwegbu, JSC; who in a Chieftaincy matter which is almost on all fours with the one at hand, held thus.
“As the fact was admitted by the Defendants, no further proof of its truth was required and they are bound by it.
This court will not also countenance any argument of the defendants to the effect that the trial court or the court below did not evaluate the evidence relating to such admitted fact. See Okpareke v. Egbuona & Ors 7 WACA 53 at 55; National Investment & Properties 10 Ltd v. The Thompson Organization Ltd & Ors (1969) 1 ALL NLR 138 at 142 and Ajuwon v. Akanni & Ors. (1993) 9 NWLR (pt. 316) 182 at 204.” PER IGNATIUS IGWE AGUBE, J.C.A
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
1. PRINCE HASSAN OYEDELE
2. PRINCE ISIAKA SANUSI ORIOYE OKE Appellant(s)
AND
BAALE SIDIKU BAMIGBOYE JIMOH Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Honourable Justice M. Abdulgafar of Kwara State High Court in Suit No. KWS/OM/8/2008, delivered on 23/6/2010. Appellants, who were the Claimants at the High Court, had made the following claims against the Defendant (now Respondent), as per their writ and Statement of Claim, filed on 7/4/2008:
“(i). a declaration that changing the head (bale) of Ajengbe to an Oba is unknown to Yoruba native law and custom
(ii) a declaration that under Yoruba native law and custom it is the founder of a settlement who owns the land by right of first settlement and who heads his settlement, as of right
(iii) a declaration that Oyedele Oke family or families who founded Akikii which later became (renamed) Ajenigbe (Ajengbe) who is or who are entitled to become the Oba of Ajengbe and NOT a later arrival or arrivals called Onpetu-Ode family or families who had for inexplicable reasons ruled Ajengbe Community as her Baale
(iv) an Order of perpetual injunction prohibiting the defendant from parading himself as Oba Ajengbe in Eki-Apa Land Irepodun Local Government Area of Kwara State.” (pages 8 and 10 of the Record of Appeal).
The Respondent (as defendant) filed his defence and a counter-claim, asserting the same claims, in reverse and stating that the claimants’ family is not entitled to the Baaleship of Ajengbe.
The parties called witnesses, and at the end of the hearing, the learned trial judge dismissed the case of the claimants (Appellants) and up held the claim, of the Defendant, as per his counter claim, as follows:
“Although the claimants filed a defence to the counter-claim, no separate statements on oath were filed, which means it is the statement on oath attached to the statement of claim that is being relied upon to establish the defence to counter claim. In the light of the findings of fact I made in paragraph 9 hereof, I hold that the defendant’s claim (a) and (b) succeed. I find from the evidence of DW1 – DW3 that Ajengbe Chiefs in Council and the entire Community has decided to change the status of their traditional rulers from Baale to Oba. I hold that it is within their right, having held that the claimants have failed to prove the native law and custom that prohibits the change of title.
Consequently, I find for the defendant on the counter claim and make the following orders:
(i) A declaration that claimants’ families are not entitled to ascend to the stool of Ajengbe.
(ii) A further declaration that the defendants Onpetu-ode’s family is the family to the stool of Baale of Ajengbe and
(iii) Another declaration that the Ajengbe Community and or Ajengbe Chiefs in Council are entitled to change the status of their Baale to Oba.” (see page 119 of the Record)
Dissatisfied with the whole judgment, Appellants filed their Notice and Grounds of Appeal on 16/9/2010 and raised nine (9) Grounds of Appeal on pages 120 to 126 of the Record as follows:
“(1) The High Court erred and misdirected itself in law when it held,
“The other point I wish to address is the absence of illiterate jurat in the deposition of the defendant and his witnesses … It is therefore clear that Prince Ijaodola cannot be right in his contention that the depositions are null and void. The absence of jurat may affect the weight the Court will attach to the depositions, Prince Ijaodola had the opportunity challenging (sic) the DW1 – DW3 during cross- examination as to whether or not they understood the deposition they adopted, but he did not, he cannot now as (sic) the Court to imply that the witnesses did not understand what they adopted. Rather than draw that inference, the inference the Court will draw is that suggested by Mr. Saka that the registrar of this Court before whom the oaths were taken ensured that the deponent understood the depositions before they signed.”
PARTICULARS OF ERROR IN LAW.
1. The prevailing policy as laid down by the Supreme Court is that the Illiterates protection Law precludes any inference that the illiterate person understood the contents of a document which does not comply with its provisions. Refer to GILBERT EZEIGWE VS. AWAWA AWUDU (2006) ALL FWLR (PT. 434) 1529, PARA G.
2. The case of WILSON VS OSHIN (2000) 6 S.C. (PT.III) 1 is not relevant as the correct issue is not whether the depositions are void but whether they command any probative value.
3. The totality of the depositions relied upon by the Respondent are those of illiterates including himself all of whom made thumb impressions without an illiterate jurat and admitted that they are stark illiterates on oath, the deposition are of no probative value and can neither offer a defence against the Claimants’ case nor support their Counter-claim.
4. The High Court got it completely wrong when it shifted the burden of proving that the witnesses did not understand the depositions which did not comply with Law on the Claimants, rather it is the Respondent who has a duty of establishing that notwithstanding the failure to comply with statutory prescription the illiterates understood the contents of their respective depositions, there is no such evidence.
5. The inference that the Registrar of the High Court before whom the oaths were taken ensured that they understood the content has no basis in law and on the evidence before the Court.
6. The position of law that a deposition by an illiterate which does not comply with the illiterate protection law has no probative value is for the protection of illiterates and not prejudicial to that category of persons.
7. The effect of paragraphs 1-6 above is that the Respondent did not profer evidence of any value before the trial Court and neither their defence nor Counter-Claim can be
(2). The High Court erred in law when it held, “It is the Claimants who claim that their (sic) exist a custom that the title of Baale cannot be converted to Oba. I have not found any evidence of that custom from the Claimant.”
PARTICULARS OF ERROR IN LAW
1. The Claimants in line with their pleadings led evidence that there is a difference between the title of Baale and Oba in Ajengbe village as in other Yoruba land.
2. The Claimants led evidence that they were not bothered by the Respondent’s family in its succession to the stool of Baale because their interest is in the Obaship stool.
3. There is the evidence that the Baale stool has existed for close to 200 years in Ajengbe without any attempt to convert it to an Oba, and this suit was a prompt challenge to the purported conversion.
4. The above pieces of evidence were amply corroborated by all the Claimants’ witnesses.
5. The law is that evidence of a custom which is alleged, corroborated and proved to have operated as an accepted usage for close to 200 years is established.
6. On a dispassionate appraisal of evidence before the Court weighed on the imaginary scale of probability the claim that under native law, custom and tradition the title of Baale of Ajengbe cannot be converted to an Oba is proved.
7. The finding that the Claimants did not establish the existence of a custom that a Baale cannot convert to an Oba is perversed.
(3). The High Court erred in law when it held, “In the light of exhibits 2 and 3, I prefer the lucid and detailed evidence of DW1, DW2 and DW3 which was not really challenged in cross- examination to the scanty evidence of the PW1 , PW2 and PW3 on the issue of the first settler in Ajengbe as between the claimants’ ancestors and the defendants.”
PARTICULARS OF ERROR IN LAW:
1. Exhibits 2 and 3 on which the Court placed serious reliance and made heavy weather did not decide the issue of first settlement between the Appellants and the Respondent’s respective families.
2. The “Lucid and detailed” evidence of DW1, DW2 and DW3 assuming but not conceding that they are admissible legal evidence, cannot corroborate, as the Court purports them to be, what the exhibits did not decide.
3. Exhibit 2 merely joins issue on the parties entitlement to Baale of Ajengbe while Exhibit 3 is slippery and very unreliable even as regards the issue of Appellants root being Ile Obatoke of Eku-Apa which is what it was supposed to decide, and did not attempt deciding the issue of first settlement.
4. The Appellants’ submissions in Exhibits 3 constitute evidence produced by the Respondent against his interest, it enures to the advantage of the Appellant as against the evidence of DW1, DW2 and DW3 to which it dealt a fatal blow, assuming they are legal evidence.
5. This holding of the High court is perversed.
(4.) The High Court erred in law when it held, “whereas DW1-DW3 gave detail evidence of the history of the founding of Ajengbe, the evidence of PW1-PW3 in that regard is not only scanty but not convincing. I therefore find as a fact from the totality of the evidence before me that Awo the ancestor of the Defendant was the 1st settler in Ajengbe.”
PARTICULARS OF ERROR IN LAW:
1. It is the law that for evidence of traditional history of settlement founding to be convincing it must be alleged and corroboratory by persons versed with the native law and custom.
2. The only evidence from a direct descendant of Awo the Respondent’s alleged founder of Ajengbe, was the Respondent himself who testified as DW2, the other witness called by the Respondent are admitted much later settlers who are not related to the Respondent’s family and throughout their testimony they did not disclose the source of their knowledge and information.
3. The evidence of DWS 1 and 3 is hearsay upon hearsay without the evidence of the source of their knowledge and it is inadmissible in prove of traditional history and custom which is required to be strictly proved.
4. The DW1 in his evidence-in-Chief claimed to live at Ajengbe, and in his cross-examination admitted he is a native of Agbanda and not Ajengbe, and thus without more renders himself incompetent to give evidence on the founding of Ajengbe.
5. The evidence of DWS 1 and 3 cannot provide the required corroboration for the evidence of custom and traditional history proffered by the Respondent as DW2.
6. The evidence of the Respondent and his witnesses is not of the quality required in law to prove custom and traditional history.
7. The evidence of the Appellants witnesses on the other hand is by direct descendants of Oyedele/Oke, their claimed first settler/founder of Ajengbe, and they amply and precisely provided corroboration.
8. The High Court fell into the error of concentrating on the length of testimony rather than the quality and the requirements of law.
Evidence is not evaluated on quantity but on quality and requirements of law on the issue sought to be proved.
(5). The holding of the High court has occasioned a miscarriage of justice. The High Court erred in law when it found as a fact that it was the Respondent’s ancestor, Awo, that was first Bale in Ajengbe and “it is his descendants that have been occupying the stool of Ajengbe exclusively. In the light of the foregoing findings of fact, the Claimants’ claim that their ancestors, Oyedele and Oke were the first settlers in Ajengbe therefore fails.”
PARTICULARS OF ERROR IN LAW.
1. The claimant’s case is that they were not bothered about Baleship stool because it is separate and distinct from the Obaship stool in Ajengbe to which they are entitled, craved for and had hoped to assume.
2. The ascension to the Baleship stool exclusively by the Respondent’s family is in the light of evidence unrelated to the founding and first settlement of Ajengbe.
3. The fact placed before the Court that for near 200 years of existence the question of converting the stool of Bale to Oba did not arise, and as soon as it arose the Appellants instituted this action lends credibility to their case.
4. The evidence before the Court, which sadly was not evaluated, adequately explained why the Bale stool cannot ground the claim of first settlement of the Respondent’s ancestor, Awo.
(6) The High Court erred in law when it held, “with regard to the Claimants’ claim that changing the title of Baale to Oba is against Yoruba native law and custom I hold that the claimants have not sufficiently proved the existence of that native law and custom and consequently that claim must fail.”
PARTICULARS OF ERROR IN LAW:
1. The Claimant testified that it is against native law and custom of Yoruba in general and Ajengbe in particular to change the title of Baale to Oba, and their witnesses precisely corroborated the evidence.
2. Parties admitted that the title of Baale had existed in Ajengbe for near 200 years without any suggestion at converting it to Oba. The Claimants haven (sic) established the facts in paragraphs 1 and 2 above, the onus shifts on the Respondent to lead evidence on the precedence or authority for the change but there was none.
On a proper approach to the treatment of evidence before the Court, the High Court would have found this head of claim proved.
(7). The High Court erred in law when it held, “I find from the evidence of DW1-DW3 that Ajengbe Chiefs in Council and the entire Community has (sic) decided to change the status of their rulers (sic) from Baale to Oba. I hold that it is within their right, having held that the claimants have failed to prove the native law and custom that prohibits the change of title.”
PARTICULARS OF ERROR IN LAW:
1. The evidence before the court is that Chief Oyedele who is also the Otunba of Eku-Apa Land in Ajengbe did not support the change of status at the Council of Chiefs, while the entire Oyedele/Oke families did not support the change.
2. In the light of the evidence highlighted in paragraph I above it is strange how the Court arrived at the holding that the “entire community” supported the change of status.
3. The Court by this holding believed the evidence of the Respondent hook, line and sinker without any consideration for the evidence led by the Appellants, and treated the Appellants and their families as non-existent.
4. The Appellants on the scale of probability established that under native law, custom and tradition of Ajengbe, which had existed for a near 200 years the purported change of status is incompetent.
(8) The High Court erred in law when it held, “I find for the defendant on the Counter-Claim.”
PARTICULARS OF ERROR IN LAW:
1. A counter-claim is a separate and distinct action which the Respondent owes a duty to prove on the scale of probability.
2 The quality of evidence produced by the Respondent fell short of that required to prove his heads of claim
3. The evidence called by the Respondent is so fundamentally flawed in law that it is in its entirety inadmissible.
4. Assuming without conceding that the evidence produced by the Respondent is admissible in law it consists of admissions that are fatal to the case put forward by the Respondent, and the evidence lacks the required corroboration needed to establish native law, custom and tradition.
(9). The Judgment of the High Court is against the weight of evidence”.
Appellants filed their Brief of arguments on 9/3/2011 and the same was deemed duly filed on 27/6/2011. In the Brief, Appellants distilled three (3) Issues for determination, namely:
“(1) Whether the evidence proffered by the respondent and his witnesses in breach of mandatory statutory provisions is of any probative value capable of supporting their defence. (Ground 1) (2) Whether upon an objective and dispassionate appraisal of evidence before the Court, the evidence of the Appellants did not outweigh that of the Respondent sufficiently enough to entitle the Appellants to judgment and a dismissal of the Respondents’ counter claim (Grounds 3-6, 8-9).
(3) Whether the trial Court did not demonstrate a lack of understanding of the Appellants’ case as to amount to a breach of fair hearing.” (Ground 7)
The Respondent filed his Brief of arguments on 26/7/2011 and adopted the issues distilled by the Appellants for determination.
Arguing the 1st issue, Counsel for the Appellants, Joseph Bamigboye Esq. (who settled the Brief) said that the Respondents listed 6 (six) witnesses to be called at the trial but called 3 (three) witnesses; that while the Respondent was entitled to determine the number of witnesses, their evidence must be of probable quality and must not be disabled by any statutory provisions to enjoy probative value. He submitted that the evidence proffered by the Respondent in this case is so disabled that it is worthless; that the Respondent himself testified as DW1 at Pages 110 111 of the Record of Appeal and during his cross examination said, on oath:
“I cannot read the content of Exhibit 3. I did not attend any School in my life. I am not learned in English language at all.”
Counsel submitted that the DW1 (as Respondent) called one Kadir Kolawole as a witness (DW3) and he also said, on oath:
“I did not attend any School in my life. I cannot read or write in English Language” (see page 111 of the Record). He added that DW2 was also an illiterate, that the depositions of their evidence which they adopted in Court (pages 32 – 37 of the Record) were adopted and admitted in violation and breach/contravention of statutory provisions as they do not contain illiterate jurat; that Section 3 of the illiterate Protection Law, Cap. II, Laws of Kwara State provides:
“Any person who shall write any letter or document at the request, on behalf, or in the name of any illiterate person shall also write on such letter or other document his own name as the writer thereof and his address, and his so doing shall be equivalent to a statement (a) that he was instructed to write such letter or document by the person for whom it purports to have been written and that the letter or document fully and correctly represents his instruction, and (b) If the letter or document purports to be signed with the signature or mark of the illiterate person, that prior to its being so signed it was read over and explained to the illiterate person, and that the signature or mark was made by such person.”
Counsel submitted that these provisions of the law are clear and most unambiguous and they will be strictly applied in their ordinary literate meaning and intendment. He relied on the case of SAKA ATUYEYE VS. EMMANUEL ASHAMU (1987) 1 SCNJ 72; UNION BANK OF NIGERIA LTD VS. PR OF OA OZIGI (1994) 3 NWLR (PT. 333) 385 and said that there is no argument that this provision was contravened in the deposition on oath of the Respondent and his DW2, but that the contention is on the legal effect. He referred us to the address of the trial court on the issue when he said:
“The other point I wish to address is the absence of illiterate jurat in the deposition of the defendant and his witnesses. In the case of Wilson vs. Oshin (supra) Karibi-Whyte JSC stated instructively thus at 24 (sic): “I entirely agree that the absence of jurat in a document signed by an illiterate does not render the document null and void. A jurat is for the protection of the illiterate and cannot be used against his interest.” It is therefore clear that prince Ijaodola cannot be right in his contention that the depositions are null and void. The absence of a jurat may affect the weight the Court will attach to the deposition… Prince Ijaodola had the opportunity of challenging the DW1-DW3 during the cross- examination as to whether or not they understood the deposition they adopted, but he did not, he cannot now as (sic) the Court to imply that the witnesses did not understand what they adopted. Rather than draw the inference, the inference the Court will draw is that…. The registrar of this Court before whom the oaths were taken, ensured that the deponent understood the depositions before they signed.”
Counsel submitted that that was a perverse treatment of the issue by the trial Court, and that it did not represent settled principles of law, which is strict compliance with the provisions of the illiterate Protection Law; that the law precludes any presumption that the illiterate person understood the contents of a document which does not comply with its provision. He relied on the case of GILBERT EZEIGWE VS. AWAWA AWUDU (2008) ALL FWLR (PT. 434) 1529, at 1541 and 1544, and said that the trial Court misdirected himself on the ‘issue; that the issue was not whether the depositions were null and void but whether they commanded any probative value. He asserted that the depositions had no probative value and relied on the case of Wilson vs. Oshin (supra).
He further submitted that there was no legal basis for any such inference that the registrar before whom they swore to the affidavit had interpreted the document to them. He relied on the authority of Gilbert Ezeigwe vs. Awawa Awudu (supra); Fidelis Onen Obeten vs. The State (2007) ALL FWLR (PT. 376) 711 at 723.
Counsel further argued that it was not the duty of the counsel for the Appellants to demonstrate that the witnesses did not understand their depositions; that such holding by the trial Court was a gross perversion of justice, as it is elementary that it is the party that asserts that has the duty of proof; that it was the duty of the Respondent and his witnesses to show that, despite the statutory breach, they understood the contents of their depositions.” He relied on the case of Famuroti vs. Agbeke (1991) 5 NWLR (pt. 189) 1 at 13; Maximum Insurance Co. Ltd vs. Owoniyi (1994) 3 NWLR (PT. 331) 178 at 192.
Counsel further submitted that the issue was not technical, but substantial issue of law; that the failure of an illiterate jurat can also not be explained away as a mistake or inadvertence of counsel, which must not be visited on litigants. He said that the evidence of DW1, a primary 6 certificates holder, assuming it is of value, cannot sustain the Respondent’s defence or counter-claim; that the evidence in this case is traditional evidence and the law is that such specie of evidence is strictly constructed (sic) and ought to be corroborated. He relied on the case of OBA R.A.A. OYEDIRAN OF IGBONLA VS. H. H. OBA ALEBIOSU II & ORS (1992) 7 SCNJ 187 at 193 194; OBA YEBADE LIPEDE VS. CHIEF ADIO SHONEKAN (1995) 1 SCNJ 184 at 200 – 201.
Thus, he said, the evidence of the DW1 was equally worthless and of no probative value, being a bundle of hear-say, and uncorroborated. On issue 2, whether upon an objective and dispassionate appraisal of evidence before the Court, the evidence of the Appellants did not outweigh that of the Respondent sufficiently enough to entitle the Appellants to judgment and a dismissal of the Respondents’ Counter-claim – Counsel for the Appellants adopted their submissions on issue 1, above, that the Respondent did not proffer any evidence of probative value. He relied again on the case of Fedelis Onen Obeten vs. The State (supra) and said that since the evidence of the Respondent had no probative value, the burden of proof of the Appellants’ case was therefore on minimal evidence.
He relied on the case of Standard Trust Bank Ltd vs. Inter drill Nig. Ltd (2007) ALL FWLR (Pt.366) 756 at 770 – 771 – “Where there is nothing to put on the one side of the imaginary scale of justice minimum evidence on the other side satisfies the requirement of proof even where strict proof such as proof of special damages is the matter.”
It was his position that where the evidence of the Respondent is worthless, the evidence proffered by the Appellants is unchallenged or uncontroverted and the trial Court, in the circumstances, is bound to accept the only evidence adduced in support of the claim. He relied on the case of IJEBU-ODE LOCAL GOVERNMENT VS. ADEDEJI BALOGUN (1991) 1 SCNJ 1 at 18 – 19, saying that the evidence of the Appellants in this case was unchallenged and uncontroverted as there was no evidence of probative value from the Respondent; that the trial Court was in error to dismiss the Appellants’ case, and that the worthless evidence of the Respondent was incapable of establishing the counter-claim. He added that the evidence of the Appellants, as per pages 11 – 14 of the Record of Appeal, had satisfied the burden of proof in this case, having been corroborated and being of good quality, and having not been contradicted or discredited.
On Issue 3 – whether the trial Court did not demonstrate a lack of understanding of the Appellants’ case as to amount to a breach of fair hearing – counsel submitted that fair hearing means giving equal opportunity to the parties to be heard, and also a trial conducted to all legal rules formulated to ensure that justice is done to the parties. He relied on the case of Barr. (Mrs) Amauda Peters Pam vs. Nasiru Mohammed (2008) ALL FWLR (pt.436) 18168 at 1915. He said that part of the component of fair hearing is that every issue submitted for determination must be considered and every evidence adduced must be appraised and evaluated. He relied on Unity Bank PLC vs. Mr. Edward Bovari (2008) ALL FWLR (Pt. 416) 1825 at 1854 – 1855; Governor of Ogun State vs. Mr. Adeboye Adebola Coker (2008) ALL FWLR (pt. 466) 1900 at 1916.
Counsel submitted that on the competence of the change of the head of the Ajengbe Community from Bale to Oba, the overwhelming evidence before the Court was a challenge and resistance to that cause by the Appellants and the family they represented; that even at the Council of Chiefs there was no unanimity as the 1st Appellant opposed its move; that despite this evidence, the Court held: –
“I find from the evidence of DW1 – DW3 that Ajengbe Chiefs in council and the entire Community has (sic) decided to change the status of their traditional rulers (sic) from Bale to Oba.”
Counsel submitted that it was strange and curious, from the evidence placed before the court, how the Court arrived at the finding which formed the basis of his grant of the Respondent’s relief No. 3, that the entire Community supported the change. He submitted that from the evidence, neither the entire Ajengbe Council of Chiefs, nor the entire Community supported the change of title from “Bale” to ‘Oba’ and that that finding clearly did not flow from the evidence before the court; that where findings did not flow from the evidence before the Court or are at variance with the evidence, such finding are perversed and breach of fair hearing; that the treatment of the evidence by the court was perversed.
He submitted that the finding by the trial court was unsupported by evidence; that that was not a mere slip but substantial and indeed formed the sole basis of the grant of the Respondent’s relief (c); that the error in appraisal and evaluation of evidence is a perversion.
He urged us to resolve the issues in favour of the Appellants and allow the Appeal.
The Respondents’ Counsel, Iliasu Saka Esq., on Issue 1, submitted that the evidence proffered by the Respondent and his witnesses has probative value, is cogent, weighty, convincing, and preponderates that of the Appellants; he said that the evidence by the Appellants was scanty, full of contradictions and disjointed such that, no reasonable Court would rely on it. He referred us to pages 11, 12, 13 and 14 of the Record of Appeal.
Counsel added that the evidence of the Respondent and his witnesses was never controverted by the Appellants; that it is trite that where a material evidence given by a party to any proceedings is neither challenged nor rebutted by the opposite party, who had the opportunity to do so, the Court, before whom such evidence is adduced, must act on it. He referred us to the case of KOPEK CONSTRUCTION LTD v. JOHNSON KOLEOLA EKISOLA (2010) 1-3 VOL. 41, (pt.1) 553 AT 562, held 15.
Counsel submitted that the evidence of the Respondent is not in any way disabled by any statutory provisions, neither was it punctured during cross examination by the Appellants’ counsel; that the evidence by DW1, DW2 and DW3 were unchallenged, and was worthy. He referred us to some pages of the Record 110-111, with extracts of the relevant evidence by the DW1 and DW1’s evidence under cross examination; that he said:
“I am not an indigene of Ira. I’m a native of Agbonda. I was born about 50 years or more ago. I attended Ajengbe Primary School.
I completed Primary 6 in the School.”
NOT:
“I cannot read the content of Exhibit 3, I did not attend any school in my life. I am not learned in English Language at all”.
Counsel also referred us to pages 32, 33, 34, 35 – 37 and 47 – 49 of the Records of Appeal wherein the depositions of the DW1, DW2 and DW3 were sworn before the Commissioner for oaths on 6/5/2008, and submitted that by virtue of the provisions of Section 84 of the Evidence Act, Cap 112 Laws of Federation of Nigeria (1990), the court may permit an affidavit to be used notwithstanding it is defective in form, in so far the court is satisfied that it has been sworn before a person duly authorized. Counsel equally relied on Order 41 Rules 1, 2, 3 and 5 of the Kwara State High Court (Civil Procedure) Rules, 2005, Section 3 of the Illiterates Protection law, Cap 11, Laws of Kwara State, saying that that law has been substantially complied with; that it is settled law that where the provisions of any law has been substantially complied with (as in this case), the Court is enjoined to give effect to same.
Counsel further submitted that the absence of illiterate jurat cannot nullify the deposition of the Respondent and his witnesses at the trial court, as the learned counsel for the Appellants’ had ample opportunity to cross examine the Respondent and his witnesses as to whether or not they understood their statements on oath before the trial Court; that failure of the Appellants to establish that fact is fatal to the Appellants’ submission.
Counsel added that Order 13 Rule 3 of the Kwara State High Court (Civil Procedure) Rules 2005 allows the use of deposition, notwithstanding the absence of illiterate jurat.
He relied on the case of Wilson vs. Oshin (2000) 6 SC (pt. III) 1 at 24, where Karibi-Whyte JSC held that absence of jurat in a document signed by an illiterate does not render the document null and void: that a jurat is for the protection of the illiterate and cannot be used against his interest.
Thus, Counsel said that the case of SAKA ATUYEYE v. EMMANUEL ASHAMU (1987). SCNJ 72 and UNION BANK OF NIGERIA LTD v. PROF O. A. OZIGI 3 NWLR (pt. 333) 385 cited by the Appellants are not applicable; that the ordinary literal meaning of a provision would lead to miscarriage of justice, erosion of Substantial justice and absurdity; that the Court is enjoined to apply the rules of interpretation that would best serve the interest of justice.
Appellants to show that the Respondent and his witnesses did not understand their statements on oath, as it is trite that he who asserts must proof. Thus, he said the cases of Gilbert Ezelgwe v. Awawa Awadu (supra) and Fidelis Onen Obeten vs. the State (supra) are not apposite to the case at hand and therefore irrelevant. He asserted that the evidence of DW1 and DW2 remain unchallenged and probative.
Referring to the evidence adduced ‘by the Appellants’ at the lower Court counsel for the Respondent said the same was so porous, scanty and unconvincing that no court would rely on it. He particularly referred to the evidence of the PW3, when he said, under cross examination:
“I know the history of Agbonda. I cannot say the number (of Obas) because Obas have been reigning before we were born. I do not know much of the history of Ajengbe.
Akereyaso was the first King of Agbonda….”
Counsel queried whether such evidence of a person who admitted he did not know much of the history of Ajengbe the town which her chieftaincy stool was in question – could corroborate the porous evidence of the Appellants? He proceeded to answer this in the negative. He added that the case of Oba R. A. A. OYEDIRAN OF IGBONLA v. H. H. OBA ALEBIOSU (supra) and OBA OYEBADE VS. CHIEF ADIO SHONEKAN (supra), relied upon by the Appellants, rather supported the case of the Respondent. He urged us to resolve that issue against the Appellants. On issue 2, Counsel for the Respondent submitted that an objective and dispassionate appraisal of the evidence before the Lower Court would show that the evidence of the Respondent preponderates/outweighs that of the Appellants in all ramifications, hence the lower Court held:
“In considering the ‘case of the parties on the merits, I have considered the two set of witnesses for the claimants and the defendant. The first point I wish to note is that I have found the evidence of the Claimants extremely scanty. It is the Claimants who claim that their (sic) exist a custom that the title of Baale cannot be converted to Oba. I have not found any evidence of that custom from the Claimants. Furthermore, in the light of Exhibits 2 and 3, I prefer the lucid and detailed evidence of DW1, DW2 and DW3, which was not really challenged in cross-examination, to the scanty evidence of PW1, PW2 and PW3 on the issue of the first settler in Ajengbe as between the claimants’ ancestors and the defendant’s.”
Counsel thereupon adopted the Respondent’s submissions on issue 1, and urged us to hold that the trial judge acted rightly in the circumstances.
On Issue 3, Counsel submitted that the trial judge had complied with the doctrine of fair hearing, strictly; that the evaluation and appraisal of evidence and ascription of probative value to the totality of the evidence adduced by the parties were properly done by the Court. Thus, he said that the case of Barr. (Miss) Amanda Peters Pam vs. Nasiru Mohammed (supra) rather supports this submission; the same thing with the cases of Unity Bank PLC vs. MR. EDWARD BOVART (supra) and GOVERNOR OF OGUN STATE v. MR ADEBOYE ADEBOLA COKER (supra), cited by the Appellants, counsel said.
Counsel added that the change of the name of the head of Ajengbe Community from Baale to Oba was competent and legal, based on the overwhelming, cogent, convincing and uncontroverted evidence adduced by the defendant; that even the Council of Chiefs (except the 1st Appellant and his family) supported the change of title ‘Baale’ to ‘Oba’. He referred us to pages 108 (paragraph 1) and 114 (paragraph 4) of the Record of Appeal.
He urged us to resolve all the issues against the Appellant and dismiss the Appeal.
RESOLUTION OF ISSUES
I shall consider this appeal on the three (3) issues distilled by the Appellants, as the same appear more cogent and apt, but in doing so, I shall take the first issue separately, while the issues 2 and 3 shall be taken together, as they (2nd and 3rd issues) appear to closely relate. Surely, it is the level of understanding of the case by the trial judge that played out in his evaluation of evidence and the conclusions he reached (and his evaluation too shows his understanding of the case). Thus, a poor knowledge or lack of understanding of the case of the Appellants would affect the quality of appraisal and evaluation of the evidence, and that would reflect on the conclusion reached.
ISSUE ONE:
Was the evidence adduced by the Respondent and his witnesses in breach of any mandatory statutory provisions, and/or wanting in probative value, as such incapable of supporting the Respondent’s defence and counterclaim?
The main grouse of the appellants over the evidence of the Respondent and his witnesses is that their statements on oath did not contain illiterate jurat. The said jurat only became an issue during the cross examination of the defence witnesses, and two of them (DW2 and DW3) disclosed they were not literate in English Language, had not attended any school in their lives and could not read or write in English Language. Did that translate to or imply that the said witnesses did not understand the contents of the depositions they made and signed?
There was no direct evidence to that effect, as the Appellants’ counsel appeared to have jumped to the conclusion that the Defendant and his witnesses did not understand the contents of their depositions, upon eliciting that the DW2 and DW3 were not learned in English Language, (the language used in expressing their averments).
The learned trial Judge had faulted that conclusion by the Appellants when he observed that the learned Counsel for the Appellants had every opportunity to probe further, under cross-examination, to know whether or not they (Defendant and his witnesses) understood the depositions they adopted, but he failed to do so. (See pages 117 and 118 of the Record of Appeal).
There is evidence that the DW1, DW2 and DW3 all adopted their written depositions (statements on oath) at the trial. The DW1, Alhaji Abdul Ganiyu Adeniyi, had signed his statement on oath, with credible signature – pages 47-49 of the Record; the DW2 (Respondent) had also signed his statement on oath; with credible signature (pages 32 to 34 of the Record). DW3 – Alhaji Kadiri Kolawole, had thumb printed his statement (pages 35 – 37 of the Record).
Thus, on the face of the statements of the Defence witnesses, only that of the DW3, who thumb printed, would have required a jurat, as there was that presumption he was not literate in the language of the deposition, though author of the document.
There is that general presumption that once a person signs a document or places his mark on it, he owns up the contents thereof, and that means he vows to (or affirms) understanding of the content of what he signed or placed his mark upon. That is the purport of Section 75 of the Evidence Act, which says:
“No fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing or which before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading on force at the time they are deemed to have admitted by the pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”
(Underlining mine)
In the case of Adefarasin vs. Dayekh (2007) ALL FWLR (PT 348) 911, it was held
“A person’s signature, written names or mark on a document, not under seal, signifies an authentication of that document that such person holds himself out as bound or responsible for the contents of such a document. Signature does not necessarily mean writing a person’s Christian name and surname, but any mark which identifies it as the act of the party”
The duty is on the person before whom affidavit is taken to advice and direct the deponent to ensure compliance with the rules. One of the things the person before whom affidavit is sworn is expected to observe is that:
“The affidavit when sworn shall be signed by the witness or, if he cannot write, marked by him with his mark, in the presence of the person before whom it is taken.” (Section 90 (f) of the Evidence Act).
By the Oaths Act, the signature or mark of the deponent is conclusive evidence of his admission of the averments in the affidavit. And by law “The Court may permit an affidavit to be used notwithstanding it is defective in form according to this Act, if the Court is satisfied that it has been sworn before a person duly authorized.” See Section 84 of the Evidence Act. See also Section 4 (2) (c) of the Oaths Act, which says:
“No irregularity in the form in which an oath or affirmation is administered or taken shall render inadmissible evidence in or in respect of which an irregularity took place in any proceedings.”
I believe that absence of illiterate jurat in an affidavit relates to irregularity as to form, where it is not the deponent (that is, the illiterate person who swore to the affidavit) that complains against the use of affidavit. This is so, because a jurat is meant to operate in favour of the illiterate person, to ensure his protection, that his illiteracy is not taken undue advantage of.
In the case of WILSON v. OSHIN (2000) 6 SC (Pt.111) 1 at 24, which the trial Court relied on (and is referred to by the parties in this Appeal), the Supreme Court, per Karibi-Whyte JSC, held:
“I entirely agree that the absence of jurat in a document signed by an illiterate does not render the document null and void. A jurat is for the protection of the illiterate and cannot be used against his interest.”
It is not the business of the Appellants to complain, as if for the Respondent, that his depositions and those of his witnesses on oath did not carry illiterate jurat, or that they did not understand the contents of the depositions they made and signed!
Since neither the Respondent nor his witnesses ever complained of not having had understanding of their depositions in their said statements on oath, which obviously the Respondent’s counsel had drafted for the Respondent and his witnesses to sign, and the same were duly sworn before the Registrar of the Court (Commissioner for Oaths), and the said depositions were finally adopted by the deponents who were cross examined thereon by the Appellants’ counsel, there was no basis, whatsoever, to argue or suggest that the evidence lacked probative value, simply because the DW2 and DW3 admitted under cross examination that they were not learned in English Language and never attended school. There was no nexus between such disclosure of being illiterate in English Language and (not having attended school) and the credible evidence of the witnesses (DW1, DW2 and DW3), as their statements on oath which they adopted in court and which were never challenged in any manner by the Appellants under cross examination. If anything, the truth of what they testified about, that their family, i. e. the Respondents family, had exclusive occupation of the stool of Ajengbe (as Baale or Bale) from when the Community was founded, was graciously admitted by the Appellants. And the way the Respondent and his witnesses conducted themselves at the trial and the flow of the evidence did not suggest any lack of understanding on their part
There is nothing in Section 3 of the Illiterate Protection Law of Kwara State, or any part of that law to suggest that an opponent in a cause can plead non-inclusion of jurat in a process(es), used successfully by an illiterate person, to defeat the interest of the illiterate person, which, in fact, the law seeks to protect by means of the jurat. To that extent, that law, as well as the decided authorities relied upon by the Appellants, were wrongly invoked as they are not applicable. By Order 13 Rule 3 of the High Court (Civil Procedure) Rules, 2005, of Kwara State the Court is allowed to receive and use an affidavit not withstanding any defect, like absence of jurat, once it is satisfied it was duly sworn to.
I therefore resolve the 1st issue against the Appellants.
ISSUES 2 AND 3:
Upon objective and dispassionate appraisal of the evidence from the two sides, does the evidence by the Appellants outweigh that of the Respondent, to entitle the Appellants to judgment, and a dismissal of the Respondent’s counter-claim? Did the trial court demonstrate a lack of understanding of the Appellants’ case as to amount to breach of fair hearing?
I think it is proper to start with the 2nd question. Appellants’ argument on this issue did not show any want of understanding of the case of the Appellants by the learned trial judge. They rather submitted that “in the evaluation, appraisal and ascription of probative value to evidence, the totality of the evidence adduced by parties must be considered, otherwise the trial will be a breach of fair hearing.”
Counsel also stated other components of fair hearing.
That, of course, is a correct statement of the law, but Appellants did not state how that translated to the trial court’s demonstration of lack of understanding of Appellants’ case, as to amount to a breach of fair hearing. Appellants’ complaints on that issue were the same as the complaints in Issue 2, touching on appraisal and evaluation of evidence before the Court; that it was wrong for the trial Court to hold that “from the evidence of DW1- DW3 that Ajengbe Chiefs in Council and the entire Community has (sic) decided to change the status of their traditional rulers (sic) from Bale to Oba”, whereas even at the Council of Chiefs, there was no unanimity as the 1st Appellant had opposed the move! He submitted that from evidence, neither the entire Ajengbe Council of Chiefs nor the entire Community supported the change of title from ‘Bale’ to ‘Oba’, and that that finding did not flow from the evidence adduced.
Appellants had also adopted their submissions on issue 1 for issue 2, on the preponderance of evidence; that the Respondent did not proffer evidence of probative value at the trial, for failure of the defence witnesses’ statement on oath to have jurats, having admitted, under cross examination, that they were illiterates. He submitted that the duty was on the Respondent and his witnesses to establish that, notwithstanding their illiteracy, they understood the contents of their respective depositions; that they failed to prove that fact, and so their evidence were rendered worthless.
I think the learned counsel for the Appellants was grossly in error, as to the person who bore the burden of establishing whether or not the Respondent and his witnesses understood the contents of their depositions in their statements on oath. The rule is always that he who asserts must prove. See Section 135 of the Evidence Act, and the case of Ogundepo vs. Olumesan (2012) 5 NWLR1 held 3; Okubule v. Oyagbola (1990) 4 NWLR (pt. 147) 723. See also Eyo vs. Onuaha (2011) 39 WRN 1, held 4, where the Supreme Court said:
“It is also trite that he who asserts must prove, for without the cogent and credible evidence of the party asserting, he will not succeed in his suit and obtain judgment in his favour. See Section 135 of the Evidence Act, Cap.112, Laws of the Federations of Nigeria 1996; Imana vs. Robinson (1979) 3-4 SC 1; (1979) 12 NSCC 1; 1979 1 ALL NLR 1 and Achibong vs. Ita (2004) 13 WRN; (2004) 2 NWLR (Pt.858) 590.”
DW1 – DW3 did not understand their depositions in their statement on oath filed in this court, and even when they (individually) adopted their said statements as their exhibits in this case, there was no doubt they understood what they did and the case they presented. The cross examination by learned counsel for the Appellants never aborted that presumption, even when the DW2 and DW3 stated that they never attended school in their lives and were not learned in English Language. It was only in learned counsel’s address that the issue of Respondent and his witnesses not Understanding their depositions on oath was raised, as an inference from counsel’s conclusion from the facts he elicited under cross examination, that the DW1 to DW3 were illiterates and did not know how to read and write in English language!
Of course, the learned trial court declined to adopt learned counsel’s conclusion, and even queried that if such conclusion was to be made, it should have come from evidence under further cross examination of the DW1 to DW3, whether or not they understood the content of their said depositions (that is, the case the defence presented). In my humble view, the learned trial judge was right, because counsel’s address, no matter how eloquent and deductive, cannot take the place of credible evidence, which must come from the parties and/or their witnesses to establish a given fact.
See the case of Chime vs. Ezea (2009) ALL FWLR (Pt. 470) 659; Atamah vs. Ebosele (2009) ALL FWLR (pt. 473) 1385.
The case of the Appellants at the lower court was that of establishing Yoruba native law and custom relating to the fact that:
(a). The title of Baale cannot change to Oba:
(b) it is the founder of a settlement who owns the land by right of first settlement and who heads his settlement as of right.
(c) Oyedele Oke family or families (which Appellants belong) who founded Akikii which later became (renamed) Ajengbe (Ajenigbe) is/are entitled to become the Oba of Ajengbe and NOT a later arrival or arrival called Onpetu – Odu family or families (the Respondents) who had for inexplicable reasons ruled Ajengbe Community as her Baale.
Appellants had sought court declarations on those reliefs in their favour as well as an order of injunction prohibiting the defendant from parading himself as the Oba Ajengbe in Eku-Apa Land, Irepodun Local Government Area of Kwara State.
Unfortunately, the evidence of the Appellants on those critical issues of Yoruba native law and customs turned out to be very scanty (as the trial judge rightly observed), and self defeating:. Rather than establish that they were the founders of and first settlers at the Ajengbe Community, to entitle them to own the Land and produce its ruler (Oba), the Appellants conceded that their opponents (Onpetu-Ode family or families – represented by the Respondent) had always, for inexplicable reasons, produced the ruler of the place under the title ‘Baale’ or ‘Bale’!
Thus, going by their assertion of tradition (Yoruba native law and custom) that it is the founder of a settlement who owns the land by right of first settlement and also produces its head or ruler. Appellants, by admitting that the Respondent’s family for inexplicable reasons, had ruled Ajengbe Community as Baale for about 200 years, appeared to have conceded the right of founder and 1st settler to the family of the Respondent, as long as they had no explanation to/on how the Respondent’s family came by the stool!
In their evidence the Appellants admitted that their family never produced the Baale or Bale (the Community head)! And all these evidence tended to support the claims of the Respondent in his counter claim, who asserted and led evidence to show that their ancestor Awo, from Onpetu-Ode family in Obaloke compound, Agbonda, was the first settler in Ajengbe and founded the town and produced its head(s) and that the ancestor of the Appellants later joined as guests of the Defendant’s ancestors.
It is sad that in the face of such self defeating evidence by the Appellants, their counsel still had the guts to accuse the learned trial judge of lacking in understanding of the case of the Appellants, and of not properly evaluating the evidence adduced before the court! The Appellants, in fact, failed, woefully, in stating their case as the PWs were even strangers in their native Community, having spent their useful lives in Lagos!
One of them (PW3) even confessed that he did not know much of the history of Ajengbe (his community)! see page 109 of the Records lines 12-13. The pw1 also told the court that ‘Akiki’ was a river in Ajengbe (yet that is the name Appellants claimed to have been given the Community when it was founded, until it was changed to Ajengbe! (Page 107, lines 15 – 16 of the Record). PW1 admitted that none of the Baale that reigned in Ajengbe came from their (Appellants’) family, because their family title was/is Oba. He added that all the Chiefs of Ajengbe acceded to the defendant’s title being changed to Oba, except his family, and their objection was because their family (which is entitled to that title ‘Oba’) was not consulted! See page 108 lines 1 to 11 of the Record.
In the case of Eyo vs. Onuaha (supra) held 1 the Supreme Court, on how to establish customary law said:
“If there is a registered declaration of the customary law regulating the appointment (the issue), the evidence is straight forward and would consist in the production of the registered declaration, in which case a single witness would suffice. If there is no registered declaration, cogent evidence of the custom must be adduced through credible witnesses, in which case prudence demands that more than one witness be called. see Adigun vs. A. G. Oyo State (1997) 1 NWLR (Pt.53) per Obaseki JSC.”
And on how customary law is proved, Aboki JCA in the case of Motoh vs Motoh (2011) 42 WRN 124 held 10 and 11 said, “(10) Customary law has to be proved by calling witnesses who have such personal knowledge of the particular custom and it is only when such custom becomes notorious as a result of frequent proof in courts that judicial notice of it is taken without further proof see Dung Jata vs. Pam Dung (1993) 3 NWLR (PT.283)” 558, Lavinde vs. Afiko 6 WACA 108 at 110, Adeogun vs Ekunrin (2004) 2 NWLR (Pt. 826), Chiga vs. Umaru (1986) 3 NWLR (pt. 29). 460 at 466; Giwa v. Erinmilokun (1961) 1 SCNLR 337; (1961) 1 all NLR 294, Folami & Ors vs. Cole & Ors (1990) 2 NWLR (Pt. 133) 445, Osolu vs. Osolu (1998) 1 NWLR (Pt.535) 532.
(11) By virtue of Section 14 of the Evidence Act customary law must be established in either two ways, namely (b) By leading evidence in the particular case. See the case of Egbuta vs. Onuora (2007) 10 NWLR (pt. 1042) 298, Ogun vs. Asemah (2002) 4 NWLR (PT.756) 208″
Appellants did not make any attempt at proving the customs as stated above.-
With such a poor show by the Appellants, in a claim for declaratory reliefs, they could not be entitled to any relief. This is because, in a case for declaratory reliefs, the plaintiff must succeed on the strength of his own case and is not expected to rely on the weakness (if any) of the defence to succeed. See the case of Anyanu vs. Mandilas (2007) 10 NWLR (Pt. 1043) 462 at 477:
“The requirement of the law regarding the onus placed on a party claiming a declaratory relief as claimed by the Appellant in the present case is trite. A claim for a relief of declaration, whether of title to land or not, is not established by an admission by defendant, because the plaintiff must satisfy the court by cogent and credible evidence called by him to prove that as a claimant he is entitled to the declaratory relief. It is the law that the Court does not grant declarations on admission of parties, because the court must be satisfied that the plaintiff on his own evidence is entitled to the relief claimed.”
See also the case of Action Congress of Nigeria vs. Abubakar Mahmud Wambi & 3 Ors: CA/J/EPT/HR/138/2010 (unreported decision of this court), delivered on 7/3/2011 (page 48 thereof).
I cannot therefore fault the findings and conclusions of the learned trial judge in this case. And I hold that the learned trial judge had properly evaluated the evidence of the parties and had respected the rights of fair hearing of the parties in the application of the law to the evidence before him; to reach his said conclusions.
Accordingly, I resolve the issues 2 and 3 against the Appellants also.
In all, I hold that this appeal is completely bereft of merit, and is accordingly dismissed, as I uphold the decision of the trial court in the suit No. KWS/OM/8/2008, delivered on 23/6/2010.
Appellants shall pay the cost of this action assessed at thirty Thousand Naira (N30,000 00) only.
TIJJANI ABDULLAHI, J.C.A.: I have had the advantage of reading in draft the lead Judgment of my learned brother I.G.MBABA JCA, just delivered. His lordship has painstakingly treated all the live issues that call for determination in this appeal and admirably resolved same in favour of the Respondent. I entirely agree with his reasoning and conclusions arrived thereat.
A close look at the evidence proffered by the Respondent and his witnesses would leave no one in any doubt that it has probative value, cogent, weighty, convincing and preponderates that of the Appellants, herein.
The evidence adduced by the Appellant is full of contradictions, scanty and disjointed that no reasonable court (as in the instant case) would rely on it. See pp. 11, 12, 13 and 14 of the record of proceeding of the trial court.
That aside, the evidence of the Respondent and his witnesses as can be gleaned from the record was never controverted by the Appellants which would have tilted the scale of Justice in their favour. The law is now settled that where material evidence given by a party to any proceedings (as in the instant appeal) is neither challenged nor rebutted by the opposite party who had the opportunity to do so, the court to whom such evidence is adduced must act on it. See the case of Kopek Construction Ltd vs. Johnson Koleola Ekisola (2010) 1-3, Vol 41 (Pt.1) P.553 at 562 holden 15 especially at P.609, holden G.
For this reason and the more detailed ones ably presented in the lead Judgment of my lordship, I too hold the view that the appeal lacks merit and is hereby dismissed by me. I abide by all the consequential orders therein contained including order as to costs.
IGNATIUS IGWE AGUBE, J.C.A.: I have been opportuned to be seised in advance with the draft of the Judgment of my learned brother I. G. Mbaba, JCA. My Lord has characteristically dealt with the issues that fell for determination brilliantly and comprehensively leaving me with no room to depart from his reasoning and conclusion that this Appeal is devoid of any merit.
I am in total agreement with him that the claim of the Appellants being predominantly in the nature of declarations of what the Customary Law of Yoruba is as to whether the title of Bale of Ajengbe can be changed to Oba; whether under Yoruba native Law and Custom it is the founder of a settlement who owns the land by right of first settlement and who heads his settlement as of right and whether Oyedele Oke family or families who founded Akiki which later became (renamed) Ajenigbe (Ajengbe) who is or who are entitled to become the Oba of Ajengbe and NOT a later arrival or arrivals called Onpetu-Ode family or families who had for inexplicable reasons ruled Ajengbe Community as her Baale; the Claimants/Appellants were inviting the Court below to declare what their Customary Law is as to who should rightly be the head (Chief), Oba or Baale of Ajengbe or whether the title of Baale can be changed to Oba.
Like all declaratory actions the Claimants/Appellants had the duty or onus to satisfy the Court by preponderance of evidence that they were entitled to the declarations sought and has been settled in authorities too numerous to mention, the Claimants/Appellants were to rely on the strength of their case and not on the weakness of the Defendants/Respondents. Where the onus was not discharged to the satisfaction of the Court below; the weakness of the Defendant/Respondent’s case would not help them and the proper judgment would be for the Defendant. See Kodilinye v. Mbanefo Odu (1953) A.C 207 (1953) WLR 261, 953 12 WACA 172; Udegbe v Nwokafor (1963) 1 ALL NLR 417; Eboha v. Anakwenze (1967) NWLR 140 and, the recent case of Oloruntoba Oju v. Dopamu (2008) 34 NSCQR 176 at 222.
It is also settled Law that the declaratory reliefs sought by the Claimants/Appellants above cannot be granted even upon the admission of the Defendants/Respondents in their pleadings without the Claimants/Appellants eliciting oral evidence in proof of their claims.
However, the above principle is not without an exception. see CBN v. Amao & Ors. (2011) 201 LRCN 48 at 73.
Where as in this case the Defendant/Respondent Counter-Claimed against the Claimants/Appellants, each of the parties was expected to rely on the strength of their respective cases and not on the weakness of each other’s, although sometimes the weakness of each other’s case may itself support the case of the rival party. That is the exception to the principle as enunciated in CBN v. Amao & Ors, (supra) above cited. See also Per Obaseki in George Okafor & 3 Ors v. Eze A-E, Idigbo III & Ors (1984) 6 SC 1 at page 25-29.
In the instant case, each of the parties testified and called witnesses in proof of their disparate positions on the traditional history of the stool of Ajengbe. The legendary and learned Jurist, Lord Denning (M.R.) in the celebrated case of Kojo II v. Bonsie (1957) 1 WLR 1225 at 1226; which has been followed in a long line of cases by the apex Court and indeed this Court on the true test of the veracity of evidence of traditional history, had laid it down that demeanour of witness is not the best test thereof but that the best test is by reference to facts of recent years as established by evidence and by seeing which of the rival testimonies or competing histories is more probable.
The learned trial Judge in the instant case, having painstakingly and dispassionately evaluated the evidence elicited by the parties and weighing them on the imaginary scale of justice, came up with the inevitable findings and conclusion that: ” I find from the evidence of DW1-DW3 that Ajengbe Chiefs in Council and the entire Community has decided to change the status of their traditional rulers from Baale to Oba. I hold that it is within their right, having held that the Claimants have failed to prove the native law and custom that prohibits the change of title.”
The Court below, before arriving at the conclusion and entering Judgment in favour of the Defendant/Counter-Claimant/Respondent, had earlier found the evidence of the Claimants to be extremely scanty as to their claim that the title of Baale cannot be converted to Oba and in fact there was no evidence at all from the said Claimants/Appellants. Even from documentary evidence tendered as Exhibits 2 & 3, the learned trial Judge preferred the “lucid and detailed evidence of the DW1, DW2 and DW3 which was not really challenged in Cross examination, to the scanty evidence of PW1 PW2 and PW3 on the issue of first settler in Ajengbe as between the Claimants’ ancestor and defendants.”
It is pertinent to note that the Appellants in the course of eliciting evidence could not prove whether right from the inception of Ajengbe they had ever produced any Baale or Oba but conceded that for inexplicable reasons, as they had earlier pleaded, the Onpetu-Ode family or families of which the Respondent is their representative had always ruled the Community under the traditional title of Baale or Bale with this pleading alone, the case of the Appellants was aborted before conception and the law is trite that any fact admitted needs no further proof. see Adeye & Ors. v. Adesanya & Ors (2001) 5 NSCQR 522 at 530 per Ogwegbu, JSC; who in a Chieftaincy matter which is almost on all fours with the one at hand, held thus.
“As the fact was admitted by the Defendants, no further proof of its truth was required and they are bound by it.
This court will not also countenance any argument of the defendants to the effect that the trial court or the court below did not evaluate the evidence relating to such admitted fact. See Okpareke v. Egbuona & Ors 7 WACA 53 at 55; National Investment & Properties 10 Ltd v. The Thompson Organization Ltd & Ors (1969) 1 ALL NLR 138 at 142 and Ajuwon v. Akanni & Ors. (1993) 9 NWLR (pt. 316) 182 at 204.”
Before rounding up on my brief contribution, it is worthy to note that all the findings culminating in the Judgment which is the subject of this appeal were on the facts proved and carefully evaluated and appraised by the learned trial Judge. In the celebrated case of Etowa Enang v. Fidelis Ikor Adu (1981) 11-12 S.C. 25 at 38-40; Per Nnamani, J.S.C. (of blessed memory) ruminated over the ancient and modern settled authorities of Akintoye v. Eyiyola & Ors. (1968) N.M.L.R 92 at 95; Fatoyinbo & Ors. v. Williams (1956) 1 F.S.C. 87; Lawal v. Dawodu & Ors (1927) 1 ALL NLR 270 at 271; Agbebudu v. Ajenifuja & Ors. (1963) 1 ALL NLR 109 (114) which were followed in the case of Woluchen & Ors v. Gudi & Ors (1981) S.C. 319 at 326-330 and pages 295 and 296; on the approach of a Court of Appeal to findings of facts which according to him must be with extreme caution. The eminent jurist held thus:-
“The principles under which a Court of Appeal can interfere have been well settled. A Court of Appeal which has not had the same advantage which the trial Judge has enjoyed of seeing the witnesses and watching their demeanour would only disturb the findings of fact of such a court where it is satisfied that the trial Judge has made no use of such an advantage. If the trial Court has unquestionably evaluated the evidence before him, it is not for the Court of Appeal to re-evaluate the same evidence and come to its own decision.”
See also Per Coker, JSC in Fabumiyi & Anor v. Obale & Anor (1968) N.M.L.R 242; Federal Commissioner for Works & Housing v. Lababedi & 150 Ors. (1977) 11-12 S.C 15 at 24-025; Board of Customs & Excise v. Alhaji Barau (1982) 10 SC 48 at 137-138 and 160 Per Eso Aniagolu J.S.C. Adeye & Ors. v. Adesanya & Ors. (supra) at 531 Per A. B. Wali, JSC; Umeandu v. A.G of Anambra State (2008) 34 NSCQR 1 at 38 per Ogbuagu, JSC.
Upon my careful perusal of the entire proceedings, I have found out that the learned trial Judge performed his primary and pre-eminent functions of appraisal of evidence and ascription of probative values to the evidence elicited by the parties and further made perfect use of the opportunity of hearing and seeing the witnesses and indeed drew correct inferences and conclusions from proved facts before arriving at his judgment. I am therefore extremely reluctant and in line with the authorities of Okodo v. Uzoka (1978) 4 SC. 77 at 86; Egri v. Uperi (1973) 1 ALL NLR (Pt 2) 198 at 206; Obisanya v. Nwoko & Anor. (1974) 1 ALL NLR (pt. 1) 420 at 428; Federal Commissioner for Works & Hosing v Lababedi & 15 Ors. (1977) 11-12 SC 15 at 24-25; Eblea v. Ogodo & Anor. (1984) 4 SC, 84 at 100 x 102-104; Dumez v. Nwakhoba (2008) 36 NSCQR 885 and Amadi v. F.R.N. (2008) 36 NSQR 1127; refuse to interfere with the judgment of the learned trial Judge/the court below.
For the above reasons and the more elaborate ones advanced in the lead judgment of my learned brother, I also hold that the Appellants’ Appeal lacks merit and is accordingly dismissed. The decision of the lower Court is hereby affirmed and I abide by all other consequential orders including costs.
Appearances
JOSEPH S. BAMIGBOYE ESQ. WITH HIM J.S. MOHAMMAD ESQ. AND A.S, OSENI ESQ.For Appellant
AND
ILIASU SAKA ESQ.For Respondent
