MR. FESTUS MABAIYEDUN & ORS v. FESTUS ADEKANBI OLABODE & ORS
(2014)LCN/7124(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 15th day of April, 2014
CA/B/351/2008
RATIO
DUTY OF COURT: APPORTIONMENT OF PROBATIVE EVIDENCE TO EVIDENCE
I wish to emphasise that the apportionment of probative value to evidence led at the trial is primarily that of the trial court and the Appeal Courts rarely interferes unless it is shown that such finding of fact is manifestly perverse. See: UBA Ltd. & Anor vs. Rose Francis Louis (1994) 4 NWLR (pt. 336) 110 @ 128; Gabriel Iwuoha vs. Nigerian Postal Services Ltd. (2003) 4 SCNJ 258 @ 284. PER SOTONYE DENTON WEST, J.C.A
JUSTICES
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
1. MR. FESTUS MABAIYEDUN
2. ALHAJI FASASI AROWOLO
3. STEPHEN DUROJAIYE
4. STEPHEN BANKOLE
5. JOHNSON ADEDAPO
5. WILLIAM OGUNTOLA
7. ABEL ADENIYI
(For themselves and the entire members of Akemuse family of Ishe-Akoko) Appellant(s)
AND
1. FESTUS ADEKANBI OLABODE
2. STEPHEN AJAYI APENA
3. TIAMIYU TIFASE
4. ROTIMI TIFASE
5. ZACCHEUS ADERIN
6. GABRIEL AFINJUOLA
(On behalf of themselves and some members of the Irun Quarters Ishe-Akoko)
7. HON. ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, ONDO STATE
8. AKOKO NORTH-EAST LOCAL GOVERNMENT Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of S.A. Bola J. sitting at High Court of Justice Ondo State in Ikare Akoko Judicial Division delivered on 10/11/2006.
The Appellants as Plaintiffs claim against the Respondents as contained in their Amended Writ of summons of 23/4/2004 and by paragraph 48 of their Further Amended Statement of Claim of 26/4/2004 as follows:
(i) A declaration that the Plaintiffs are the male descendants of the Akemuse Family/House to the exclusion of the Defendants who are only related to the Akemuse family House through their maternal ancestor AIYESEMIKU.
(ii) A declaration that the 1st to 6th Defendants who belong to ODA family of Irun Quarters of ISE-AKOKO and have persistently claimed to be members of the AKEMUSE RULING Family/House to the exclusion of the Plaintiffs and have been pretending and parading themselves as such do not belong to the AKEMUSE Ruling Family/House of ISE-AKOKO in the Olishe of Ishe Chieftaincy.
(iii) A declaration that the 1st to 6th defendants are related to the AKEMUSE RULING FAMILY/HOUSE OF ISE-AKOKO through their Matrilineal lineage being descendants of AIYESEMIKU a daughter of OBA OYE.
(iv) A perpetual injunction restraining 1st to 6th Defendants, their Agents and servants of ODA family of Irun Quarters of ISE-Akoko from claiming and pretending to be members of the AKEMUSE Ruling Family/House of Ise-Akoko or parading themselves as such.
(v) A perpetual injunction restraining 7th and 8th Defendants from recognizing the 1st to 6th Defendants and or treating them as members of Akemuse Ruling Family/House of ISE-AKOKO in the OLISHE of Ishe Chieftaincy.
Also, by their paragraph 61 of the Amended Statement of Defence and counter claim of 26/5/2003, the Respondents Defendants counter claimed thus:
61.
(a) Declaration that the 1st defendant is the Olise of Ise-Akoko having been duly selected and appointed from AKEMUSE RULING HOUSE by the Ondo State Government acting pursuant to the native law and custom of Ise Akoko.
(b) Declaration that the 1st to 6th defendants are the true and accredited members of AKEMUSE Ruling House of ISE-Akoko.
(c) Declaration that the Plaintiffs are not members of Akemuse Ruling House. The Appellants as Plaintiffs pleaded and gave evidence that Akemuse (their common progenitor) gave birth to Omoroko. Omoroko gave birth to 3 children- Osode, Upa and Oye. Oye gave birth to 3 children – Agburogunmasa, Ibase and Aiyesemiku who was a female and married to Oda. The parties are agreed that Aiyesemiku was one of the three children of Oba Oye. While the Plaintiffs witnesses testified that Ayesemiku a female (daughter of Oye) married Oda from Irun Quarters. That both Oda and Ayesemiku gave birth to Gbiri, grandfather of the 1st defendant (Oba Adenkanbi). Tifase who gave birth to the 3rd and 4th Defendants and Apena grandfather of the 2nd and 6th Defendants.
The Defendants witnesses on the other hand testified that Oda and Aiyesemiku were siblings, brother and sister, children of Oba Oye. That they were not husband and wife. It was also the evidence of the defendants witnesses that Oda the brother of Ayesemiku gave birth to Gbiri, Apena and Tifase the grandfather, and father of the 1st – 6th Defendants.
It turned round that one of the fundamental issues in this case is whether Oda was one of the children of Oba Oye – that which would make the genealogical story of the Respondents to be believable or the husband of Ayesemiku (daughter of Oba Oye) which would make the genealogical story of the Appellants to be preferable.
At the hearing, the Plaintiff called two witnesses while the Defendant also called two witnesses.
The learned trial Judge found contradictions and/or inconsistencies in the evidence of PW1 and PW2 and in between the evidence of PW2 and Exhibit B the genealogical tree, document tendered by the Plaintiffs/Appellants which left a gap in the traditional history proffered by the Appellants. He failed to accept the portion of Plaintiffs/Appellants story which pictured Omoroko and Agburogunmosa either as members of the Akemusa family or as former Rulers from the Akemusa Chieftaincy line.
The learned trial Judge accepted the Respondent’s version of the story of the male descendancy and ascendancy to the throne in the Akemuse line. And, also deduced from the Plaintiffs Appellants version coupled with admission by the Respondents that the 1st, 2nd, 4th, 5th, 6th and 7th Plaintiffs but not the 3rd Plaintiff are from Utupa Quarters and members of the Akemuse royal family of the male line.
The learned trial Judge thereafter dismissed the Plaintiffs Appellants claims that they are exclusively the male members of the Akemuse royal family and granted Reliefs (a) and (b) of the Respondents counter-claim but refused Relief (c) of the said counter-claim.
Dissatisfied with this judgment, the Plaintiffs/Appellants filed a Notice of Appeal containing (15) fifteen grounds of appeal in this court on 5/2/2007.
The relevant briefs of argument in this appeal are:
(a) Appellants brief of Argument dated 5/11/2008 and filed on 6/11/2008 – settled by R.A. Ogunwole SAN.
(b) 1st – 6th Respondents brief of argument dated 5/10/2012 and filed on 5/10/2012 – settled by Pius Olu Daodu Esq.
(c) 7th Respondent’s brief of argument dated 21/9/2012 filed on 24/9/2012 deemed filed on 3/12/12- settled by A.A. Efotan Esq. (DDCL) Ondo State.
(d) Appellant’s reply to the 1st – 6th Respondents brief of argument dated and filed on 10/3/2014 and deemed filed on 11/3/2014-settled by B.G. Olufokunbi Esq.
Learned Counsel to the 1st – 6th Respondents raised a preliminary objection to the appeal.
He argued that the initial Writ of summons and statement of claim is incompetent and incurably bad having been signed and filed by Kayode Ogunleye & Co. a firm not being a person entitled to practice as barrister and solicitor. That even though the said processes were amended, the defect was not thereby cured.
He referred to the cases of Madukolu V. Nkemdilim (1962) 2 SCNLR 341, Zaranda V. Tilde (2008) 10 NWLR (pt. 1094) 184 at 187, Oketade V. Adewunmi (2010) 8 NWLR (pt. 1195) 63 at 68 – 75, SLB Consortium Ltd V. NNPC (2011) 9 NWLR (pt. 1252) 317.
He submitted relying on the case of Macfoy V. U.A.C. Ltd (1962) AC 152 that the subsequent amendment of the processes by the Appellant amounted to putting upon nothing.
Learned Senior Counsel for the Appellants furnished a reply to the above argument and relied more particularly on the cases of Unity Bank Plc V. DENCLAG Limited (2012) 18 NWLR 327 and ALSTHOM S.A. V. SARAKI (2000) 10 – 11 SC 48 which according to him, brings out the instant case from the principles laid down on the effect of the Section 2 (1) and 24 of the Legal Practitioner Act in the cases of OKAFOR & ORS V. NWEKE & 4 ORS (2007) 3 SC (pt. 11) at 53 and Oketade V. Adewunmi (Supra) consequent on the grant of leave and the filing of the proper process after amendment.
In my opinion, the learned Senior Counsel for the Appellants has indeed provided a full answer to the objection by the Respondents. Beyond that, however, I am of the view that the point now raised in form of preliminary objection to this appeal that is the question of a defective Writ of summons and statement of claim in the course of trial would have properly been raised as a ground of appeal. This is because, the objection is really not to the incompetence of this appeal but if any to the incompetence of the trial that led to this appeal.
For this reason, I think the Notice of preliminary objection to the appeal is inappropriate and in itself incompetent. Accordingly, the 1st – 6th Respondents’ Notice of preliminary objection is struck out.
Learned Senior Counsel for the Appellants nominated three (3) issues for determination. They are:
(i) Whether Plaintiffs/Appellants are male descendants of Akemuse Ruling House.
(ii) Whether the 1st – 6th Defendants Respondents are of the Patrilineal lineage of Akemuse Ruling Family.
(iii) Whether the learned trial Judge was right in dismissing the Plaintiffs/Appellants claims and granting the Defendants/Respondents claims in parts.
The 1st – 6th Respondents formulated the following (2) two issues for determination.
(a) Whether or not the Plaintiffs satisfied the court on the lineage, status, existence and descendancy of Omoroko and Agburogunmasa.
(b) Whether or not from the facts and evidence adduced before the court, the Plaintiff satisfied the court that the defendants are from female lineage of Akemuse Ruling House viewing from the enthronement of Oba Gbiri perspectives.
Learned Counsel for the 7th Respondent formulated four (4) issues for determination as follows:
(i) Whether or not the 1st – 6th Defendants/Respondents are of the patrilineal descendancy of Akemuse Ruling House by evaluation of evidence placed before the trial court.
(ii) Whether or not the Plaintiffs/Appellants are of male lineage of Akemuse Ruling House.
(iii) Whether or not the Ondo State Government did not validly approve the selection, nomination and installation of the 1st Defendant/Respondent as the Olise of Ise-Akoko in line with the registered declaration of Olishe Chieftaincy of 1985 having hailed from the patrilineal lineage of Akemuse Ruling House.
(iv) Whether or not the learned trial Judge was right in dismissing the Plaintiffs/Appellants claims and granting the Defendants/Respondents reliefs (a) and (b).
This appeal will be decided on the issues nominated by the Appellants.
Meanwhile, I will treat the arguments of the Appellants on one side of the scale of Justice and those of the 1st – 6th Respondents (that is the 1st set of Respondents) and the 7th Respondents (that is the 2nd set of Respondent) together as the arguments of the “Respondents” on the other side of the scale. This is for the reason of the shared common interest in between the two sets of Respondents and also for convenience.
On issue 1, which covers grounds (ii) (iii) (vii) (ix) (xi) (xii) and (xiv) of the Appellants Notice of appeal, learned Senior Counsel for the Appellants reproduced paragraphs 1, 2, 3, 7, 7(a), 8, 9, 10, 10(a) 11, 12, 12(a), 13, 14 and 14 (a) of the Plaintiffs Further Amended Statement of Claim at pages 23 – 30.
He submitted that from the pleadings, the Plaintiffs Appellants case is that Akemuse is the progenitor of Akemuse Ruling House. He founded Akemuse Ruling House and reigned as the first Oba in Ishe as Olishe of Ishe.
He said the Plaintiffs are able to trace their genealogy to Akemuse thus:
(a) 1st, 5th and 7th Plaintiffs Appellants are descendants of Osode
(b) 3rd Plaintiff/Appellant is a descendant of Oba Oye.
That, it is also significant to note from the pleadings – the Plaintiffs/Appellants are from the male line of Akemuse Ruling House. The Appellants also tendered their genealogical tree as Exhibit B which explains the Appellants patrilineal connection with Akemuse.
That the 1st – 6th Defendants/Respondents in their Amended Statement of Defence and Counter Claim admit paragraphs 7, 10, 10(a), 13, 14, 26, and 27 of the Appellants Statement of Claim.
That the Respondents aver in paragraphs 1, 2, 3, 6, 16, 47 and 48 as follow:
(1) The Defendants deny paragraph 1 of the statement of claim and put the Plaintiffs to the strictest proof of their assertions.
(2) The defendants aver that Osode and Upa families are distinct and separate from Akemuse Ruling House of which Oba Oye was a scion and that the Defendants are not members of Irun Quarter.
(a) The 1st – 6th Defendants aver that Ise Town consists of three main quarters namely, Itupa, Ituyi and Ayogonu.
(b) Itupa quarter consists of the following families:
(i) Akemuse (ii) Upa (iii) Osode (iv) Opopo (v) Araku (vi) Irun (vii) Ayunnu.
Itunyin quarter consists of the following families:
(i) Asimako (ii) Ayinyam (iii) Akaka (iv) Agwasu (v) Asumoloku (vi) Iseu.
(3) the Defendants plead and will lead evidence to show:
(a) That the 1st, 5th and 7th Plaintiffs are from Osode Quarter of Ishe community.
(b) That the 2nd Plaintiff is from Upa family.
(c) The 3rd Plaintiff is from Eko town in Edo State of Nigeria.
(d) The 4th Plaintiff is a grandson of one Awori, a native of Awori who sojourned at Ishe and married the daughter of Orimidura in Upa quarter.
(e) The Defendants will lead evidence to show that none of the Plaintiffs is related to Oba Oye of Ishe.
(6) Evidence will be held at the hearing to show the Plaintiffs are not relations of Omoroko who is not a human being.
(16) The 1st – 6th Defendants deny paragraphs 11 and 12 of the Statement of claim and put the Plaintiffs to the strict proof of their claim and aver that the 3rd Plaintiff is a stranger in Ishe and never a member of Akemuse Ruling House while Elegba and Amorun are members of Upa family and Agburogunmasa was a stranger in Ishe.
(47) The 1st – 6th Defendants deny paragraph 47 of the statement of claim and put the Plaintiffs to the strictest proof of it. The purported Family Tree attached to the Statement of claim is a representation and distorted fact of history and evidence will be led to show that it is not one for Akemuse Ruling House.
(48) The Defendants deny paragraph 48 of the statement of claim and aver that Omoroko was never a member of Akemuse Ruling House nor an Oba of Ishe-Akoko town; not being a human being. An authentic genealogical tree of Akemuse Ruling House is hereby attached as Exhibit ‘A’ would be relied upon at the trial.
Learned Senior Counsel submitted that the Plaintiffs/Appellants called two witnesses and tendered three documents namely:
(a) Olishe of Ishe Chieftaincy Declaration – Exhibit A.
(b) Akemuse Family Tree tendered as Exhibit B.
(c) Genealogical Tree attached to Suit No. HIK/52/95 by the Defendants/Respondents – Exhibit ‘C’
Learned Senior Counsel then reviewed the evidence of PW1 and PW2 from pages 49 – 57 of records showcasing the Plaintiffs Appellants genealogical tree as pleaded. Counsel submitted that throughout the cross-examination of PW1, the Respondents did not ask any question about Omoroko, his historical background or his connection with Akemuse. In effect, said Counsel, the Appellants evidence remains unchallenged. And that at page 57 of the records the PW2 merely said “I have heard the name Omoroko a prominent person from Otupa”.
Learned Senior Counsel further submitted that the minutes of the meeting of the king makers in which the 1st Defendant was selected as the Current Olishe of Ishe were never tendered. On this, he submitted that any evidence led on the issue without the documents goes to no issue and the court should expunge same from the records since the court cannot speculate on the contents of a document not before it. He referred to the case of Kofi Gbajor V. James Ogunburegui (1961) All NLR 853 at 854.
Besides, said Counsel, paragraphs 11 and 13 should be struck out for failure to tender the documents. He referred to the case of Oyediran of Igbonla v. His Royal Highness Oba Alebiosu II & Ors (1992) 6 NWLR (pt. 249) pp. 556-557.
Learned Senior Counsel submitted that in similar vein, the Defendants/Respondents in paragraphs 48 and 57 pleaded genealogical tree of Akemuse Ruling House to counter the genealogical tree of Akemuse Ruling House pleaded by the Plaintiffs/Appellants and tendered as Exhibit B. He submitted that these two paragraphs are also deemed abandoned.
Also, according to Appellants Counsel, the 1st – 6th Respondents sought leave of the lower court to further amend their Amended Statement of Defence and Counter Claim dated 26/5/03 (pages 31 – 36) only in respect of paragraph 2 but that without leave of court also amended paragraphs 3(a), 7 and 52. He further submitted that the said paragraphs are also deemed abandoned and struck out. That, the Further Amended Statement of Defence and counter claim is contained on pages 37 – 45 and any evidence led on the said paragraphs should be expunged from the records. In this respect, Learned Counsel submitted that the evidence of DW1 at pages 31 – 36 of the records and DW2 at pages 62 – 64 of the records based on those paragraphs ought to be expunged. Learned Senior Counsel referred to the decision of Abbot F.J. in the case of Babatunde Alade V. Aborishade (1960) SCNLR 398 (1960) 5 FSC 167 at 173 and that based on this decision, Exhibit C was indeed properly tendered as previous pleading to contradict the Respondent’s witnesses that signed the same. That consequent on the above, the evidence of DW1 was inconsistent and/or contradicts the 1st – 6th Defendants case and therefore that DW1 is not reliable and should be disbelieved. He referred to the cases of C.O.P. V. Reigles (1923) 4 N.W.L.R 103, R.V. Yesufu Akanni (1960) 5 FSC 120, R V. Ukpong (1961) 1 All NLR 25, Omidokun Owoniyi V. Omotosho (1961) 1 All NLR 304/308, R.V. Golder & Ors (1960) 3 All ER 457.
Also, that the admission of 2nd D.W. in his evidence thus:
(i) “That Oba Omoroko was the 2nd oba in Ishe”.
(ii) That Osode, Upa and Oba Oye are descendants of Omoroko.
(iii) That Plaintiffs are from Osode and Upa families in Ishe. Completely destroy their averments in their Amended Statement of Defence and Counter Claim.
(i) That Moroko was not a human being.
(ii) That he has never become an Oba in Ishe.
(iii) That 3rd & 4th Plaintiffs are strangers in Ishe.
(iv) That the Plaintiffs are not related and/or male descendants of Akemuse Ruling House.
He referred to the cases of Dennis C.O. Iwenofu V. Chief Francis Iwemofu (1975) 1 All NLR page 46, Onisaodu V. Eleweju (2006) 13 NWLR (pt. 998) 517 at 529 – 530.
He submitted that from the pleadings and evidence, the Appellants have shown unequivocally that they are male descendants of Akemuse Ruling House. He quoted the learned trial Judge at page 107 of the records and said the findings of the learned trial Judge accords with the evidence on record except the issue of the 3rd Plaintiff.
Learned Senior Counsel submitted that the evidence of PW1 on the 3rd Plaintiff that Stephen Durojaiye was the son of Durojaiye the son of Aburumaku, the son of Agburogunmasa, the son of Oba Oye was supported by Exhibit B and is unchallenged. He referred to the cases of Ndayako V. Mohammed (2006) 17 NWLR (PT. 1009) 655 at 683 and Umoru V. Oduogho (1993) 6 NWLR (pt.298) 217 at 221 to show that documentary evidence should be used as a hanger from which to assess oral testimony. And, to the cases of Omoregbe V. Daniel Lawani (1981) 3 SC 108 at 117, Odulaja V. Haddad (1973) 11 SC 35 and Nigerian Maritime Services Ltd V. Alhaji Afolabi (1976) 2 SC 79 at 81 for the proposition that a court is obliged to act on the unchallenged evidence of a party.
Learned Senior Counsel referred to the observations and findings of the learned trial Judge at page 107 of the records and argued that the learned trial Judge somersaulted when he was considering the genealogical history of the Appellants with Omoroko an issue which is very clear from the evidence on record.
That the evidence of DW1 was destroyed by Exhibit C but that the learned trial Judge failed to use Exhibit ‘C’ to discredit the evidence of DW1.
He submitted that the evidence of 1st PW and 2nd PW was not contradictory because PW1 failed to mention that Akemuse gave birth to Omoroko or because he did not mention the father or the ancestor of Omoroko. He argued it is not contradictory, once PW1 has both in his oral testimony and documentary evidence (Exhibit B) and his evidence was not disbelieved by the learned trial Judge.
Also, that the fact that PW2 failed to mention Omoroko as one of the Obas who had reigned or that “he is aware of” that had reigned did not contradict the evidence of PW1 who has mentioned them supportedly with documentary evidence and indeed whether Omoroko was an Oba or not did not diminish the evidence of the Appellants that they were descendants of Omoroko who was a direct son of Akemuse.
Counsel referred to the decision of the Supreme Court in the case of Owie V. Ighiwi (2005) 1 SC (pt. II) 16 at 36 that human beings are not machines hence that PW1 and PW2 were not required to say the same thing.
Finally, on issue 1, that since PW1 had given detailed evidence of Omoroko, the mere reference by PW2 that Omoroko was from Itupa could not be said to be contradictory to the evidence of PW1.
In response to the Appellants on issue 1, the Respondents reproduced paragraphs 2, 3, 4, 5, 6, 11, 15, 15(a), 41, and 47 of the Appellants Amended Statement of Claim. They submitted that from the pleadings, Omoroko and Agburogunmasa were copiously paraded as not only descendants of Akemuse but also reigned as Olishe’s of Ishe. They submitted that there was an obvious contradiction in the evidence of PW1 and PW2 regarding the fact that Omoroko and Agburogunmasa reigned as Olishe of Ishe. That PW1 gave copious evidence that Omoroko and Agbulogunmasa reigned as Olishe whereas the PW2 gave evidence of five Akemuse Ruling Lineage who reigned as Olishe of Ishe without the name of Omoroko and Agburogunasa.
They submitted that the evidence of PW2 supports the evidence of the Respondents that Omoroko and Agburogunmasa never reigned as Olishe and tallies with the rotation order of ascendancy to the Olishe of Ishe title between the two Ruling Houses of Asimako and Akemuse.
Learned Counsel for the Respondents submitted further that the evidence of PW2 contradicted and conflicted with evidence of PW1 regarding the lineage of Oye and Agburogunmasa. That PW1 says that Oye gave birth to Ibasa, Ayesemiku and Agburogunmasa PW2 says Oye gave birth to Ayesemiku, Ibasa and Olubo. Also, that the evidence of PW1 that Akemuse gave birth to Omoroko was also faulted by the evidence of PW2 under cross-examination, where he says that Oye is the direct son of Akemuse.
The Respondents submitted that these evidence go to show that Omoroko and Agburogunmasa do not exist as pleaded by the defendants and urged us to hold relying on the case of Wachukwu V. Owunwanne (2011) 14 NWLR (pt. 1266) 1 at 7 – 9, that the Appellants evidence supports the Respondent’s case.
They submitted that nowhere in the record did the PW2 gave evidence of lineage of Omoroko and Agburogunmasa and that the conflict in the evidence regarding Olubo mentioned by PW2 as the son of Oye wherein Agburogunmasa was mentioned by PW1 combined with the evidence of PW2 that Oye was the direct son of Akemuse wherein the PW1 mentioned Omoroko as the direct son of Akemuse goes to show that the evidence of the Defendants is preferred.
We are urged by the Respondents to believe the evidence of the Respondents that Oye begat Oda who begat Oba Gbiri more especially as the Appellants failed to call evidence of any person from Irun quarter to show that Oda is from Irun quarters. This, the Respondents said is because a Plaintiff seeking declaratory reliefs will succeed on the strength of his case and not on the weakness of the defence.
They referred to the case of Oladipo V. Moba Local Government. (2010) 5 NWLR (pt. 1186) 117 at 127.
In deciding Appellants issue 1, one must start from the premise that the learned trial Judge recognized from the genealogical histories of the parties and indeed held specifically that the 1st, 2nd, 4th, 5th, 6th, and 7th Plaintiffs are from Utupa Quarters and members of the Akemuse royal family of the male line. It seems the only gap left that would have brought about the said Appellants issue 1 is the exclusion of the 3rd Plaintiff, Stephen Durojaiye from the Plaintiff’s family tree as a male member of the Akemuse royal family. But then, the learned trial Judge was justified in holding as he did. This is because the Plaintiffs Appellants who sought the declaration was obliged to prove their case without relying on the weaknesses of the defence. In the circumstances of this case, which deals with details of family genealogy to be able to determine who-is-who or who-was-who in the families, I do not think that the learned trial Judge was wrong to have held as he did that the evidence of PW1 was not consistent with that of PW2 and that the evidence of PW2 contradicts Exhibit B. The truth of the case lies in the nature of material evidence which peculiarly deals with linkages of the lineages. If as pointed out by the respondents, the PW2 made no mention of Omoroko and Agburogunmasa but PW1 did and in naming the children of Oba Oye, while PW1 mentioned Agburogunmasa and again PW2 mentioned Olubo as the third of Oba Oye’s children, it becomes obvious that there are irreconcilable conflicts in the evidence of the Plaintiffs Appellants witnesses. The learned trial Judge was therefore not wrong to have accepted that the evidence of PW2 on Omoroko and Agburogunmasa supports the case of the Respondents. From this perspective, the attempt by the Learned Senior Counsel for the Appellants to puncture the evidence of the Plaintiffs witnesses through the evidence of DW1 in relation to Exhibit C and DW2 in relation to the status of Omoroko when there were already gaps in the evidence of the Plaintiffs witnesses themselves all amount at best to weaknesses in the case of the Respondents which do not reduce the burden of the Plaintiffs/Appellants who sought declaration. It is clearly the law that in a claim for declaration, the onus is on the Plaintiff to establish his claim upon the strength of his own case and not upon the weakness of the case of the defendant.
The Plaintiff must therefore satisfy the court that upon the pleadings and evidence adduced by him, he is entitled to the declaration sought. See: Gbadamosi v. Dairo (2007) 3 NWLR (pt. 1021) 282, Dada V. Dosunmu (2006) 18 NWLR (pt.1010) 134, Onissaodu V. Eleweju (2006) 13 NWLR (pt. 998) 517, Ajiboye V. Ishula (2006) 13 NWLR (pt. 998) 628.
For the learned trial Judge, the elimination of the 3rd Plaintiff Stephen Durojaiye from the Akemuse lineage and male ascendancy line amongst the Plaintiffs became the only logical conclusion after the PW2 confirmed the Respondents evidence on Omoroko and Agburogunmasa by failing to corroborate the evidence of PW1 on the duo of Omoroko and Agburogunmasa either in lineage to the Akemuse or in ascendancy to the Olishe of Ishe.
Therefore Appellants issue 1 is following the position of the learned trial Judge can only succeed in part that is with the exception of the 3rd Plaintiff Appellant Stephen Durojaiye, the 1st, 2nd, 4th, 5th, 6th, and 7th Plaintiffs are from Utapa Quarters and members of the Akemuse royal family of the male line.
Issue 1 succeeds in part in favour of the Appellant.
On issue 2, Learned Senior Counsel for the Appellant reproduced paragraphs 15, 15(a), 16, 17, 18, 19, 20, 21, 22, 22(a), 23, 24, 25, and 26 of the Amended Statement of Claim and also paragraphs 8, 11, 12, 14, 18, 21, 23, 24, 37, 41 and 57 of the Respondents Amended Statement of Defence and Counter Claim. He reiterated the evidence of Appellants witnesses more especially PW1; first in relation to their pleading that Oye gave birth to 2 male children and a female child that is Agburogunmasa, Ibasu and Aiyesemiku. Second, that there were instances of abortive enquiries the male descendants of the Akemuse Ruling House of Onishe of Ishe Chieftaincy consequent upon the family history that led to the enthronement of Gbiri as Onishe who according to the Appellants was the son of Oda husband of Aiyesemiku and also for the fact that they (Appellants) were not consulted when the present Olishe again from their perspective a female descendant was enthroned at a meeting presided over by Zaccheus Akerele another “female descendant” head of Akemuse family.
Learned Senior Counsel specifically referred to the evidence of PW2 that all the defendants are his mother’s people, that is that they are of the female line and at cross-examination, that the defendants having descended from the female lineage has no right to become the Onishe of Ishe-Akoko including himself. He submitted that the learned trial Judge failed to act on the unchallenged evidence of both PW1 and PW2 which completely destroyed the Respondents evidence.
The Respondents here again clinched on to what they termed the unreliability of the evidence of PW1 and PW2 regarding Omoroko and Agburogunmasa. That if Gbiri and the 1st Respondent was/is Olishe of Ishe under Akemuse Ruling family what we need to inquire about is whether they are from the male or female lineage. Also, that the evidence of PW2 on order of rotation vis-a-vis, the number of past Onise from the two Ruling Houses show that the Respondents version of the male lineage is believable.
The Respondents submitted that the reason given by PW1 for the ascendancy of Oba Gbiri (as a female descendant) was different from that of PW2. That PW1 witnessed that nobody in the male lineage qualified to contest and or able to confront Atisebi from Itunyin quarters which does not fall within the Ruling Family, while the PW2 says because Gbiri was a powerful man and in those days, powerful people win the heart of people in leadership, that was why Gbiri was made the Oba.
The Respondents submitted that the evidence of PW1 and PW2 as to the reasons for enthroning Gbiri contradicted each other and that this contradiction should be resolved in favour of the Respondents. He referred to the case of Onwunalu V. Uche (2010) 2 NWLR (pt. 1179) 582 at 589 and said that the court cannot pick and choose which set of witnesses called by the Plaintiff is to be believed in the face of contradiction in their evidence.
Again, and more particularly from the 7th Respondents it was submitted for the Respondents that the ascendancy of Gbiri to the Olishe, the appointment of Olabode Adekanbi (incumbent Olishe) to the Olishe, the status of Zaccheus Akerele a male descendant and head of the ruling house of Akemuse during his life time, inclined the trial court to believe the evidence of the defendants that Oda, the father of Gbiri and grandfather of Olabode Adekanbi (1st defendant) is a son of Oba Oye and a brother to Ayesemiku. That, in the circumstance, the court did not believe the evidence of the Plaintiff witnesses that Oda was an in-law to the Akemuse family or that he was the first born of Ayesemiku. And, that by that stretch of logic, the trial court disbelieved the evidence of the Plaintiffs that Gbiri son of Oda was of the female line. The corollary according to the Respondents is that since Oda, Gbiri’s father was a male descendant of Akemuse, Gbiri his son was also of the patrilineal lineage of the Akemuse and by extension Olabode Adekanbi (1st Defendant) is also of the patrilineal line of Akemuse Royal Family.
There are two perhaps three perspectives in which to understand and analyze issue 2. The first is the perspective of the elimination of Omoroko and Agburogunmasa as relevant lineages in between Akemuse and Oba Oye by the contradictions or perhaps gaps in the evidence of PW1 and PW2 which left us only with one important question in the understanding of that issue. The question has been and it is, is Oda a brother or husband to Ayesemiku.
The inherent difficulty in answering that question which is the fulcrum of the determination of issue 2 would necessarily have compelled the learned trial Judge to capture and categorize events in recent times as it were to resolve any possible conflicts in the traditional histories of the parties. Clearly, in my mind the evidence and/or reasons given by the Appellants on the support, nomination and enthronement of Gbiri and the 1st Defendant who they say are of the female line are not only contradictory but also incredible. Secondly, the position of Zaccheus Akerele the former head of the Akemuse Ruling House as pleaded by the Respondents as a male descendant which was not seriously contended by the Appellants witnesses.
As a matter of law, two things arise from all of these. The first is the principle in Kojo II V. Bonsie (1957) 1 WLR 1223 that establishes that the best way to test the traditional history is by reference to the facts in recent years as established by evidence and see which of the two competing histories is more probable. The second is that the ascription of probative value to evidence is primarily that of the lower court and the interference by an Appeal Court on finding of fact is quite limited. An appeal court must attach the greatest weight to the opinion of the trial Judge who has the duty to see and indeed has seen and heard the witnesses. The appeal court will not ordinarily disturb the findings of fact made by the trial Judge where such findings are not unsound or perverse.
See; Omoregie V. Idugie Mwanye (1985) 2 NWLR (pt. 5) 41 at 42, Anyanwu V. Mbara & Anor (1992) LPELR SC 266 (1992) 5 NWLR (pt. 242) 386.
In the instant case, the trial court having believed the defendants evidence that Oda and Gbiri were of the patrilineal blood of the Akemuse family, it follows that their sons, grandsons and great grandsons especially 1st – 6th defendants are from the male line of Akemuse. The trial court was right to have held that Oda, Gbiri and the Respondents are not from the female line of Akemuse. Issue 2 is resolved against the Appellants.
On issue 3, Learned Senior Counsel for the Appellants submitted that by its very nature, a counter claim is a ‘sword’ and not a shield. That the fate of a counter claim, being an independent action does not depend upon the outcome of the Plaintiff’s claim. Therefore, where the Plaintiff’s claim is dismissed, the court will still proceed, to consider the counter claim on its merit and not grant it automatically.
He referred to the cases of Hassan V. Reg. Trustees Baptist Conv. (1993) 7 NWLR (pt. 308) 679, Ogbonna V. Eke (1998) 10 NWLR (pt. 568) 73. Obmiami Brick and Stone (Nig.) Ltd. v A.C.B Ltd (1992) 3 NWLR (pt. 229) 260, Amala V. Omofuma (1997) 2 NWLR (pt.485) 93.
Learned Senior Counsel referred to the findings and conclusion of the learned trial Judge at pages 97 and 110 of the records and argued that the conclusion of the learned trial Judge was not in line with his finding. He submitted that in a declaratory action, the onus of proof lies on the Plaintiff and he must succeed on the strength of his own case and not on the weakness of the defence but that where the case for the defence supports the Plaintiffs case, the Plaintiffs can rightly rely on same. He referred to the cases of Uche V. Eke (1998) 9 NWLR (pt. 564) 24, Nkwo V. Iboe (1998) 7 NWLR (pt. 558) 354.
Counsel submitted further that the trial court rightly made the appropriate findings that the Plaintiffs are male descendants of Akemuse Royal family and are entitled to aspire to become Olishe of Ishe land. However, that the learned trial Judge surprisingly concluded wrongly, when he dismissed the Plaintiffs case.
Learned Senior Counsel submitted further that the findings of the learned trial Judge at page 108 of the records cannot found support in the pleadings and evidence before the court as there were contrary evidence given by DW1. That to avoid a cloistered justice, the learned trial Judge in a civil matter based on preponderance of evidence is entitled to determine the case by placing both sides of the evidence on an imaginary scale and take into account the guidelines laid down in the case of Mogaji & Ors V. Odofin (1978) 3 – 4 SC 91.
Finally, that in the ascertainment of truth by the court, the learned trial Judge is entitled to consider vital exhibits presented before it. He referred to the cases of Ogbenta V. Nzeribe (1999) 4 NWLR (pt. 599) 348, Onumalobi V. NNPC (1999) 12 NWLR (pt. 632) 628 and that where the trial judge did not properly evaluate, the appellate court can validly evaluate evidence.
He referred to the cases of Kwajafa V. Bon Ltd (1999) 1 NWLR (pt. 587) 423. He concluded that in the instant case, the trial Judge has not properly evaluated the evidence before the court before coming to the conclusion dismissing the plaintiffs claim and granting the counter claim.
The Respondents more especially through the 7th Respondent submitted in respect of issue 3 that the learned trial Judge was right in dismissing the Appellants claims and granting the Respondents counter-claim. Also, that the learned trial Judge properly evaluated the evidence placed before him in line with sections 7, 135, 136 and 137 of the Evidence Act and in conforming with the general principles of law in Anyegwu & Anor V. Aidoko Onuche (2009) LPELR – SC 1231, (2009) 3 NWLR (pt. 1129) 659, Balogun V. Labiran (1988) 3 NWLR (pt. 30) 66, Olusesi V. Oyelusi (1986) 3 NWLR (pt. 31) 634 and Jalico Ltd. V. Owoniboys (1995) 4 SCNJ 256.
In the determination of issue 3, I observed that the Learned Senior Counsel took the opportunity to re-emphasize and repeat some of the points that he had raised and that I had dealt with in the consideration of issues 1 and 2.
For example, the fact that the learned trial Judge found that the Plaintiffs Appellants except the 3rd – Plaintiff Stephen Durojaiye belong to the male line of Akemuse ruling house and nevertheless dismissed the Plaintiffs claims was due to the fact that the Plaintiffs claim (especially the first) was couched for a declaration to so declare them to the exclusion of the Respondents.
I would have thought that the real question for issue 3 is whether the learned trial Judge evaluated the evidence of the parties in relation to the Defendants Counter Claim with the appreciation that a counter claim is to all intent and purpose a separate and independent claim. And, my answer to the above question is in the positive. The fact that the findings of fact in the evaluation of the plaintiffs case assisted a trial court in the evaluation, findings and the determination of the counter-claim does not derogate from his having treated the Counter Claim as a separate and independent claim.
In the instant case, the learned trial Judge was right when he concluded at page 110 of the records that: “In conclusion, this court holds that the Plaintiffs failed to discharge the burden of proof placed on them by preponderance of evidence. In the circumstance that (the) claims as contained in their amended statement of claim fails and are accordingly dismissed. Consequently, I hold that the 1st – 6th Defendants are members of Akemuse ruling family/house and are descendants from the patrilineal line. With regards to the counter claim of the defendants, relief (a) and (b) of paragraph 61, of the Defendants counter claim succeed. Consequently, judgment is hereby entered in favour of the 1st – 6th Defendants as follows:
“(a) Declaration that the 1st defendant is the Olishe of Ise-Akoko having been duly selected and appointed from Akemuse Ruling House by the Ondo State Government acting pursuant to the native law and custom of Ishe-Akoko.
(b) “Declaration that the 1st to 6th Defendants are members of the Akemuse Ruling House of Ishe-Akoko. However, relief 61 (c) of the counter claim fails and it is accordingly dismissed _”
Issue 3 is resolved against the Appellants.
In this appeal, three (3) issues were formulated on behalf of the Appellants. Issue 1 was allowed in part having regards to the way it was couched in relation to the findings in the suit. Issues 2 and 3 were decided against the Appellants. In the circumstance, the appeal is allowed in part.
Consequent on issue 1, I affirm the finding of fact of the court below that:
“Save for the 3rd Plaintiff who claimed through Agburogunmasa and Aburumaku who were not members of Akemuse family, this court believes the evidence of the Plaintiffs witnesses that the 1st, 2nd, 4th, 5th, 6th, and 7th Plaintiffs are from Utupa Quarters and members of the Akemuse royal family of the male line”
I make no order as to costs.
SOTONYE DENTON WEST, J.C.A: I have had the privilege of reading before now the lead judgment just delivered by my learned brother, MOJEED ADEKUNLE OWOADE, JCA, and I agree with the reasoning and conclusion therein reached.
I wish to emphasise that the apportionment of probative value to evidence led at the trial is primarily that of the trial court and the Appeal Courts rarely interferes unless it is shown that such finding of fact is manifestly perverse. See: UBA Ltd. & Anor vs. Rose Francis Louis (1994) 4 NWLR (pt. 336) 110 @ 128; Gabriel Iwuoha vs. Nigerian Postal Services Ltd. (2003) 4 SCNJ 258 @ 284.
In the instant case, it is clear that the trial court found as a fact that though the evidence led that Oda and Gbiri were of the patrilineal lineage of the Akemuse family, the result is that their descendants, especially 1st – 6th defendants herein are from the male lineage of Akemase family.
For this and the more detailed reasons adduced in the lead judgment, I also allow the appeal in part.
I also make no order as to cost.
CORDELIA IFEOMA JOMBO-OFO, J.C.A: I had the opportunity to read in advance the lead judgment of my learned brother OWOADE, JCA. I agree with all the reasoning and conclusion reached therein. I too shall allow the appeal in part and it is so allowed. I abide by the consequential order as made.
Appearances
B.G. OlufokunbiFor Appellant
AND
Pius Olu Daodu for the 1st, 6th and 8th Respondents.
Adeolu Austin Efonton (D.D.C.L) Deputy Director, Civil Litigation, Ondo State Min. of Justice for the 7th Respondent.For Respondent
