PRINCE JOSEPH OLALOYE & ORS v. THE ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, OSUN STATE & ORS (2014)

PRINCE JOSEPH OLALOYE & ORS v. THE ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, OSUN STATE & ORS

(2014)LCN/7436(CA)

In The Court of Appeal of Nigeria

On Thursday, the 7th day of August, 2014

CA/I/5/2010

RATIO

EVIDENCE: DOCUMENTARY EVIDENCE; WHETHER DOCUMENTS TENDERED NOT HAVING TRANSLATED INTO THE LANGUAGE OF THE COURT CANNOT BE RELIED UPON

I agree with the submission and hold, on the authority of Ojengbede V. Esan (2002) FWLR (pt. 90) 1406 at 1428 Per Iguh, JSC that the documents tendered not having been translated into the language of the court (being English) by the official translator of the court or the party seeking to rely on same cannot be relied upon as the Judge is precluded from performing the role of a witness in his capacity as a Judge. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

EVIDENCE: DOCUMENT; THE DUTY OF THE PARTY RELYING ON DOCUMENTARY EVIDENCE TO PRODUCE SUCH DOCUMENT BEFORE THE COURT TO EXAMINE, ASSESS AND ACT ON THE SAME

This court had decided to the same effect above when Abba Aji, JCA aptly stated in UTB Nig. Ltd v Ajabgule (2006) 2 NWLR (pt 965) 447 at 475 – 476 thus:
“It is settled law that a party who seeks to rely on a document which is relevant to an issue before the court must produce the document before the court to examine, assess and act on same. Documentary evidence where it is relevant ought to be produced and tendered as they speak for themselves as against the ipse dixit of a witness in respect of such transactions which may not be readily accepted by the court. See FATB Ltd v. Partnership Investment Company Ltd (2003) 18 NWLR (pt 815) 35.” per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

COURT: INTERFERENCE; THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND THE APPELLATE COURT NOT TO INTERFERE WITH THE FINDINGS OF THE TRIAL COURT THAT ARE NOT PERVERSE

This court will be loathe to interfere with the findings of facts and conclusions arrived at, that are justified by the evidence led. Evaluation of evidence is the function of the trial court. Where it has conducted same and same cannot be faulted, an appeal court cannot interfere. See Onuoha v. The State (1998) 5 NWLR (pt. 548) 118; Kanu v AG Imo state (2014) 6 NWLR pt 1402, p. 1 at 18. Per Abubakar, JCA. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

JUSTICES

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

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

1. PRINCE JOSEPH OLALOYE
2. PRINCE IBRAHIM AKINTUNDE
3. PRINCE RAUFU ADEWALE
4. PRINCE ABASS OYEDOKUN
(2nd, 3rd and 4th Claimants suing for themselves and on behalf of Fatorisa Ruling House of Aagba) Appellant(s)

AND

1. THE ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, OSUN STATE
2. THE COMMISSIONER FOR LOCAL GOVERNMENT AND CHIEFTANCY AFFAIRS
3. MR. ELIZER OMOLAOYE OGUNWOLE
4 HON. BIMBO OYEDELE
(The Chairman, Boripe Local Govt. Council)
5. ELDER O.A. ABIDOGUN (JP)
(The Director of Personal Management Boripe Local Govt. Council)
6. PRINCE (HON) RUFUS OLAYINKA OGUNWOLE
(Joined by order of the court) Respondent(s)

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Osun State, sitting at Osogbo delivered by Hon. Justice S.O. Falola on the 6th day of August, 2009 dismissing the Appellants’ claims in their entirety and granting the reliefs contained in the Counter claim filed by the 3rd and 6th Respondents.
1.02. The Appellants, by their Writ of Summons and Statement of claim filed on the 16th December, 2008 claimed the following reliefs.
“(i) A declaration that the 1st Claimant is the holder of the tile (sic of Olori Olomooba of Agbaaland.
(ii) A declaration that by virtue of the 1st claimant being the Olori Olomooba of Agba land and by the provisions of the Chieftaincy Declaration of Alagba which Declaration was made by the Ifelodun District Council on the 17th day of October, 1955 and passed by the Council on the 16th day of November, 1956 and approved at Ibadan on the 27th day of May 1957 and duly registered at page 189 of the Chieftaincy Declaration Register on the 29th day of June, 1957, the 1st claimant as the Olori Olomooba is the only person authorized to produce a candidate from the Fatorisa Ruling House to the kingmakers which Fatorisa Ruling House is currently entitled to present a candidate to fill the vacate stool of the Alaagba of Aagba.
(iii) An order of perpetual injunction restraining the 3rd Defendant from parading himself as the Olori Olomooba of Aagbaland.
(iv) An order of perpetual injunction restraining the 1st, 2nd, 4th and 5th Defendants from treating or recognizing or causing to treat or to recognize the 1st Defendant (sic) as the Olori Olomooba of Aagbaland”.
1.03. The 3rd and 6th Respondents filed their defence to the action and by way of counter claim prayed the Court for the following reliefs.
“(i) A Declaration that the 3rd Defendant is the rightful holder of the Olori Olomooba of Aagba land.
(ii) A Declaration that by virtue of the 3rd Defendant being the Olori Olomooba of Agbaland and by the combined provisions of the Chiefs Law of Osun State 2002 and the Chieftaincy Declaration of Alaagba of Aagba made by the Council on the 16th day of November, 1956 and approved in 1957 and duly registered at page 187 of the Chieftaincy Declaration Register on 29th day of June, 1957, is right to have taken all steps relating to producing the names of candidates from the Fatorisa Ruling House to the kingmakers.
(iii) A Declaration that the recognition of the 3rd Defendant by the 1st, 2nd, 4th and 5th Defendants, the kingmakers and the Olomo Obas in relation to the statutory meeting of the Fatorisa Ruling house of 30/12/2008 and the presentation of names of candidates from the Fatorisa Ruling House to the kingmakers.
(vi) A Declaration that all the acts and steps taken so far by the 3rd Defendant in his capacity as the Olori-Olomo Oba regarding the filling of the vacant stool of Alaagba remains valid, lawful and competence.
(v) An order of perpetual injunction restraining the 1st claimant from parading himself as the Olori-Olomooba of Aagba land.
(vi) An order of the court directing the installation process earlier initiated by the 3rd Defendant but suspended at the instance at the instance of the Governor of Osun State, be continued forthwith by the 1st, 2nd, 3rd, 4th and 5th Defendants”.

1.04. At the trial, the Appellants called six (6) witnesses, to wit: (1) Prince Joseph Olaloye; (Pages 225 – 261 of the record; (2) Ganiyu Ademola Adewale (pages 261 – 263 of the record) Prince Abass Ademola Oyedokun (pages 270 – 279 of the record) and Chief James Olasunkanmi Bamigbola (page 285 of the record).

1.05. Even though the Appellants frontloaded nineteen (19) “Exhibits”, at the trial they tendered only three of the whole lot and out of which only one was admissible and accordingly admitted in evidence.
1.06. On the other hand, the 1st and 2nd Respondents called one witness by name Mr. Apelegan Emmanuel Olubiyo (Pages 289 – 291 of the record).

The 3rd and 6th Respondents called four witnesses, to wit, (1) Julius Okewale (the Ojomu of Aagba and one of the kingmakers (page 292 – 293 of the record); (2) Prince Edward Ayodile (Page 293 – 295 of the record), (3) Stephen Oloyede page 295 – 297 of the record) and (4) Prince Rufus Olayinka Ogunwole (page 297 – 301 of the record).

The 4th and 5th Respondents did not call any witness but tendered from the bar a letter from the 3rd Respondent to the 4th Respondent dated 25th June, 2008, which letter was marked Exhibit D9.
1.07. Altogether, the Respondents tendered the following documents at the trial and which documents were admitted in evidence, to wit
1. Written by S.K. Olowolagba Esq. on behalf of the Appellants wherein one Prince Tiamiyu Egbebi Oyeyemi was described as the head of Ateniwiyo’s compound.
2. Exhibit D2 – Letter of Nomination and Appointment of Alaagba Designate in person of Prince Rufus Olayinka Ogunwole dated 30th December, 2008.
3. Exhibit D3 – Letter dated 20th December, 2008 written by Chief J. O. Bamigbola (the Easa of Aagba) to the 3rd Respondent on the filling of the vacant stool of Alaagba of Aagba.
4. Exhibit D4 – Letter dated 07/07/08 written by Late Felix Abioye wherein the position of Pa Elizer Ogunwole (3rd Respondent) was confirmed as the Olori – Olomooba of Aagba land to the Chairman of Boripe Local Government.
5. Exhibit D5 – Letter written by Odeyale Ruling House dated 1st December, 2008 to the Chairman of Boripe Local Government, confirming Pa Elizer Ogunwole (3rd Respondent) as the Olori Olomooba of Aagbaland as opposed to Prince Joseph Olaloye, the 1st Appellant.
6. Exhibit D6 – Letter of the 10th April, 1964 written to Ifelodun District Council by four (4) members of Fatorisa Ruling House including the 3rd Respondent.
7. Exhibit D7 – Minutes of Meeting of Fatorisa Ruling House held on 30th December, 2008 at Oba Ateniwiyo’s Compound Aagba.
8. Exhibit D8 – A copy of the Undertaking and Bond to accept the decision of the kingmakers.
9. Exhibit D9 – Letter dated 25th/6/2005 written by the 3rd Respondent to the Chairman of Boripe Local Government and the Chairman’s Reference of the same letter to the late Alaagba of Aagba Oba Felix Abioye.

2.01. STATEMENT OF FACT
The late Alaagba of Aagba, Oba Felix Abioye died on the 12th October, 2008. Shortly after his demise, dispute arose as to who was the Olori Olomooba (Head of Princes) of Aagbaland, whose duty, as prescribed by the relevant Chieftaincy Declaration relating to the filling of the vacant stool of Alaagba of Aagbaland, it is to present a Candidate to the Kingmakers. Whereas the 1st Appellant claimed to be the Olori-Olomooba and such is entitled to present a candidate to the kingmakers, the 3rd Respondent contended otherwise and claimed to be the right holder of the title of Olori Olomooba and accordingly is entitled to convene the statutory meeting of the Ruling House to nominate a candidate(s) for presentation to the kingmakers.
2.02. It was the Appellants’ case that Olori-Olomooba of Aagbaland is chosen by rotation from the three (3) Ruling Houses, to wit (1) Odeyale, (2) Ahunloye and (3) Fatirisa, the 3rd and 6th Respondents’ contention is that age …. the Ruling Houses becomes the Olori-Olomo-Oba.

2.03. Evidence, both oral and documentary, were called and tendered in support of each contention.
The 4th Appellant and 6th Respondent took part in the nomination exercise conducted on 30/12/2008 to pick a candidate to be forwarded to the kingmakers. At the end of which all the eight (8) names that signified interest in the stool were forwarded to the kingmakers.

2.04. The kingmakers, six (6) in number, voted after which the 6th Respondent emerged as the favoured candidate, he, having scored five (5) votes to one abstention.

Sequel to the facts and Judgment as indicated supra, the Appellants felt aggrieved and lodged this appeal upon the Notice and grounds of appeal contained on pages 471 – 472 of the record of appeal. For the purpose of clarity and certainty the Grounds of Appeal are follows:-
GROUND ONE
The Judgment was against the weight of Evidence
GROUND TWO:
The trial Judge erred in law in entertaining and deciding upon the 3rd and 6th Respondents when the counter-claim is incompetent in law and the court has no jurisdiction over same.
PARTICULARS:
The counter-claim is based on the matters that occurred after the institution of the suit by the Appellant against the 1st to 5th Respondents.
Upon the transmission of the records of Appeal to this court, and in accordance with the Rules of this court, the Appellant filed the Appellant’s Brief of Argument on the 7/7/10. On their part, the 1st and 2nd Respondents filed their Brief of Argument in response with leave of court on 6/9/12 and same was deemed filed and served on 25/2/13.

The 3rd and 6th Respondents filed their Respondents’ Brief on 23/8/10. On their part the 4th and 5th Respondents filed their Brief of Argument on 11/8/10.

At the hearing of this appeal on 26th May, 2014, the learned Counsel for the Appellants Mr. Olowolagba, identified the Brief of Argument dated 6th July 2010 and filed on 7th July 2010 on behalf of his clients and adopted same as the argument in support of the appeal and urged this court to allow the appeal and to set aside the Judgment and grant the reliefs sought by the Appellants at the trial court.

On his part, Rachael Ojimi Esq. (Chief State Counsel, Osun State Ministry of Justice, Osogbo) for the 1st and 2nd Respondents identified their Brief of argument and urged that the appeal be dismissed.

The Learned Counsel, Adeniran Morenikeji Esq. for the 3rd and 6th Respondents adopted his clients Brief of Argument and urged that the Appeal be dismissed.

Waheed Gbadamosi, Esq. on behalf of the 4th and 5th Respondents adopted their Brief of Argument and also urged that the Appeal be dismissed.

In the Appellants’ Brief of Argument, the following 2 Issues were distilled for the determination of this court, to wit;
ISSUES FOR DETERMINATION
Whether the trial court was right in granting the counter-claim of the 3rd and 6th Respondents when same was based on facts that arose after the institution and during the pendency, of this suit (Relate to Ground Two of the Grounds of Appeal).

02. Whether the Judgment of the learned trial Judge can be supported by the evidence before the court. (Relates to Ground one of the Grounds of Appeal.)

The 1st and 2nd Respondents on their part formulated similar Issues with the Appellants, but with a slight modification as relating to issue No.1. The Issues are thus:-
(i) Whether having regard to the circumstances of this case, the learned trial Judge was right in granting the counter claim of the 3rd and 6th Respondents.
(ii) Whether the Judgment of the learned trial Judge can be supported by the evidence adduced at the trial court.
The 3rd and 6th Respondents on their part donated 2 Issues for the determination of this appeal.

The issues are the same as those of the 1st and 2nd Respondents, as they are similar. On their part, the 4th and 5th Respondents couched two issues for determination and as follows:
i. Whether or not the Claimants/Appellants adduced credible evidence at the trial to enable the trial court give judgment in their favour – Ground 1.
ii. Whether or not the trial court was right in granting some of the reliefs contained in the 3rd and 6th Defendants/Respondents Counter-Claim (Ground 2).

Having studied the entirety of the record of Appeal and having carefully perused the evidence led at the trial, together with the judgment of the trial court, I am of the view that all the Respondents’ issue No. 2 agree with the Appellants’ Issue No. 1 but with a slight modification only as relating to the said issue No.1. I shall therefore treat this appeal on the Appellant’s Issue No. 2 and the 1st and 2nd; 3rd and 6th and 4th and 5th Respondents Issue No. 1.

The Issues are as follows:
1. Whether the Judgment of the learned trial judge can be supported by the evidence before the court.
2. Whether having regard to the circumstances of this case, the learned trial Judge was right in granting the reliefs contained in the counter claim of the 3rd and 6th Respondents (Ground 2)

ISSUE ONE
Arguing this Issue, the Appellant’s Learned Counsel submitted that it was common ground by the pleadings and evidence led that the issue of Olori Omooba of Aagba was the exclusive preserve of the Princes who appoint their head – Olori Omooba. Counsel referred to the evidence of PW6, the head of the kingmakers when he testified at page 258 of the record thus:-
“On the issue of Olori Olomooba, the answer cannot be yes or no except explanations are offered. It is not a title that anybody can hold.
It is a title the Princes can determine among themselves.
Among them they will chose somebody to lead them”.

The Learned Counsel proceeded to argue that PW1 had testified to the appointment made of him, now 1st Appellant, as the Olori Olomooba by his fellow Princes at the house of the last Olori Olomooba Pa Nathaniel Adewale when the later died as the immediate past Olori Olomooba. The evidence of PW1 i.e. the 1st Appellant in cross-examination thus:-
“When the last Olori Olomooba, Pa Nathaniel Adewale died the Princes did not more (sic) eminence (sic) to the house of the deceased where I was installed as Olori Olomooba”.
That PW3, Prince J.O. Okunola, the secretary to the Association of Princes had testified per paragraph 13 of his statement on oath at page 148 of the records that the 1st Appellant was appointed by the Olomooba and presented to the Alaagba-in-Council on the 2nd day of April, 2007 and the late Alaagba Felix Abioye received and blessed him.

Learned Counsel submitted that the aforesaid piece of evidence was not challenged or controverted by the Respondents under cross examination and was deemed in law as admitted by the Respondents.
The cases of Chami v. UBA (2010) SCM 59; American Cyanamide v. Vitality Pharm Ltd. (1991) 2 NWLR (pt. 71) 15 at 28 – 30; Elegushi ors V. Oseni (2005) SCM 33 at 51 referred.

To the contrary, it was argued that the evidence of DW2 – DW5 did not state the date and event at which the 3rd Respondent was appointed the Olori Olomo-oba of Aagba land and the date he assumed office as such.
That the evidence of DW5, who was the 6th Respondent was evidence against interest and defeats the Respondents’ claim that the 3rd Respondent was ever appointed the Olori Omooba by the Princes.

Learned Counsel submitted, emphatically that “the crux of the matter before the lower court was the appointment of the Olori Olomooba by the Princes and who has between the 1st Appellant and the 3rd Respondent, have by the preponderance of evidence shown to be so appointed…”

He submitted further that the trial Judge under played the issue of appointment by the Princes by merely considering it as a matter of mere formality. That the holding that it was a mere formality cannot be supported by the evidence on record. That by the aforesaid holding, the trial Judge did not therefore, evaluate the evidence led before her but chose to devote the bulk of the Judgment to other irrelevant Issues rather than who was chosen or appointed by the Princes as their head.

The finding complained of is contained on page 458 of the record thus:-
“Though the appointment of an Olori Olomooba is within the exclusive domestic affair of the Olomoobas (Princes) such appointment or recognition is mere formality in view of the three criteria listed above”.

Learned Counsel contended that “the fact of improper evaluation can be surmised and is manifest in the trial judge’s consideration and evaluation of a large bulk of his Lordship’s Judgment to the consideration of other immaterial issues without thorough evaluation of the evidence on the issue of who has been appointed by the Princes as their head.”

Learned Counsel conceded that evaluation of evidence is the province of the learned trial Judge but that where there is a failure of evaluation or improper evaluation, having had the opportunity of hearing the testimony of witnesses the Appellate court has to intervene in the interest of Justice to set the same aside. Ariseones Trading & Engr. Co. Ltd V. Military Governor Ogun & ors (2009) 8 SCM 24 at 52 where it was held:
“That of course, is the correct principle of law where it is found that the trial court had failed in its primary role in evaluating the evidence placed before it by the parties. If an appeal court does not interfere to arrest an apparent miscarriage of justice occasioned by the non-evaluation or improper evaluation by a trial court, that will perpetuate injustice in our judicial processes and it is the society that will bear the brunt.”

This court has been urged to allow the appeal on this ground and to set aside the judgment of the trial court.

On Issue 2, – Which is the Appellants’ Modified Issue No.1, the Appellant submitted that the learned trial Judge was wrong to have granted the reliefs to the Respondents as done as the facts upon which the counter claim was based arose on a date after the service of the writ of summons and statement of claim and witnesses’ statements on oath in this suit were served on them on 29th December, 2008.

That the counter claim was based on the outcome of a meeting purportedly convened on 30/12/08 by 3rd Respondent, whereat his son the 6th Respondent was purportedly selected, nominated and forwarded to the king members of Aagba as Alaagba-Elect. That in spite of the service of the originating processes on the 3rd Respondent since 29th December 2008 he did nothing but waited till February 2009 to file a defence and counter claim to include the effect of the meeting they held when the matter was sub judice.

It was contended that a party, particularly a defendant cannot make a claim in respect of a matter that arose after the institution of a suit against him. The Learned Counsel referred to the case of Gowon V. Ikeokongwu (2003) SCNJ page 453 at 460, where Katsina-Alu, JSC (later CJN) held as follows:
“Can a Defendant, raise a counter claim even though the cause of action accrued to the Defendant subsequently to the issue of the writ in the original action?”

Learned counsel argued that the purport of the counter claim was to give effect to a cause of action that differed from and arose outside the period of the cause of action in the original suit and was caught by the words of the Supreme Court, Per Katsina-Alu, JSC in the case of Gowon V. Ikeokongwu supra, thus: “Just as a Plaintiff cannot be allowed to bring into his case an entirely fresh cause of action which arose after the action had been started, a Defendant will not be allowed to raise by way of an amendment to the statement of Defence a counter claim in respect of a cause of action that arose subsequently to the issue of the writ. It means, what it is, that is starting a new cause of action, and one which did not accrue and therefore could not have been sued upon at the time the action was brought.”

It was also submitted that where a party in defiance of a court process putting him on Notice that his action or act is being challenged or about to be challenged proceeds with the act, he cannot complain that his completed act should be given legal backing as the said act is unlawful.

The cases of Governor of Lagos State V. Ojukwu (1986) 1 NWLR (pt. 18) page 621 at 634; Adeogun V Fasogbon (2008) 11 SCN page 1 at 14 – 15 were referred to and thus contended that the 3rd and 6th Respondents’ Counter Claim were incompetent before the court and the trial judge was in error in entertaining and granting them.

In response to the Issue number 1 argued supra, the 1st and 2nd Respondents submitted that the learned trial Judge was right in granting the counter claim of the 3rd and 6th Respondents.

Having reproduced both the counter claims of the 3rd and 6th Respondents and the claims of the Plaintiffs/Appellants, it was submitted that there was nothing before the trial court nor before this court to show that the Respondents were served the Originating Processes on 29th December, 2008 as alleged nor was it part of the Appellants’ case at the trial court.
That there is nothing in the record to that effect; referring to the cases of Nwora & ors V. Nwabueze & ors (2011) 11 – 12 pt. 1 SCM page 187 at 199 par. A – F; Milad Lagos & ors V Adeyinka & ors (2012 2 SCM page 183 at 203, par. H – I; Attorney General of Anambra State V. Ephram Okeke & ors (2009) 10 SCM 1 at 4 ratio 4, it was contended that both the parties and the court are bound by the Records of Appeal and are entitled to look at the record and to take Judicial Notice of Information contained therein. Akinpelu V. Adegbore & ors (2008) 7 SCM 1 at 17 on the binding effect of records of appeal was also cited in aid.

Submitting further that courts of law do not act on speculations but on proved facts and that not even the most beautifully couched submissions of Counsel can take the place of evidence before the court, the Learned counsel relies on the case of NNPC V. Femfa Oil Ltd (2004) FWLR (pt. 155) 794 at 798 ratio 7 and Ogunsanya V. State (2011) 9 SCM page 35 paragraphs B – D in aid.

It was submitted that though the Appellants claimed to have served the Respondents with Originating Processes on 29th December, 2008 and had instituted the action on 16th December 2008, the 4th Appellant admitted at page 368 – 369 of the record that he with 7 (seven) other contestants, obtained forms to contest the vacant stool of Alaagba of Aagba. That this Appellant had by his conduct submitted himself to the selection process in spite of his alleged action in court.

It was submitted that his name was listed first amongst other contestants in the minutes of the meeting convened on the 30th Dec. 2008 by the 3rd Respondent. And that he cannot turn round to fault the procedure he had consented to. Milad Lagos State & Ors V Adeyinka & Ors supra referred. That, the head of the kingmakers, nor any other king maker was a party to the suit, and, therefore the Eesa of Aagba (the head of the kingmakers, in the performance of his duty caused a letter on the 3rd Respondent as the recognized Olori Olomooba to perform his duty which he did and with the participation of the 4th Appellant (who did not protest).

That there was no order to disobey that was disobeyed in the matter leading to this appeal.

That the 6th Respondent became a party to the suit upon his application to be joined which is at pages 150 – 151 of the record.

It was, therefore, urged on us to resolve this issue in favour of the 1st and 2nd Respondents and to hold that the trial Judge was right in granting the reliefs in the counter claim, Referring to the 3rd Respondents averments, it is submitted that this Respondent who was only served on 16th January 2009 (see page 127 of the record) could not be in disobedience, so also the other Respondents. That service of court process is a condition precedent and that if 3rd Respondent was not served any court process until 16th January 2009, or there about, how could he have known that an action was pending against him as at 30th December 2008.

Learned Counsel also referred to the additional statement made on 20th day of May, 2009, at page 133, paragraph 17 of the Record of Appeal where the 3rd Respondent emphatically reiterated thus – “That no court process regarding this suit was served on me until sometimes in January 2009 after the resumption of the Judicial staff workers, from a Nationwide Strike embarked upon by them.”

He urges that this court should look at the record at its disposal and make use of the information therein. The cases of Peterside V. Pepple (2008) All FWLR (pt. 445) 1703 at 1705; Ezeagbu & Anor V. First African Trust Bank Ltd (1992) 7 NWLR (pt 251) pg. 89 at 102. As to the 6th Respondent that he became a party to the suit only on 23/6/09 by order of court following his application for joinder made on 15/6/2009 (see page 150 – 151).

By these facts, these Respondents contended that they were not aware of any suit and not being parties thereto they had taken all steps that they could lawfully take.

That the Appellants were guilty of approbating and reprobating as they had indicated that their case is not about the process of selection but about who is the Olori Olomooba between the Appellant and the 3rd Respondent.

Their Learned Counsel referred to the Counter Affidavit dated 18th June 2008 by one Awotunde Tanimomo at page 168 – 170 of the record on behalf of the Appellants, wherein he stated thus:
“5 (iv). That this suit is strictly not based on the selection process of 30th December, 2008 but strictly the contest between the Claimant and the 3rd Defendant on who actually among (sic) then is the Olori Olomooba of Aagba.”

The deposition of the same deponent as above at page 172 at 5 (k) thus:
“That this suit is therefore strictly not on the selection of 30th December 2008”.

Page 416 of the record wherein the Appellants’ Counsel submitted thus:-
“If the selection is done by an Olori Olomooba then it is valid and if not, invalid, that the law does not allow approbating and reprobating. Are V. Ipaye (1986) 3 NWLR (pt. 29) page 416 – 417; Olatunbosun V. NSER (1986) 3 NWLR (pt. 29) page 435.”

Still arguing on the Issue under consideration, these Respondents submitted that the Governor of Osun State had suspended the selection exercise pending the determination of the suit and reproduced the 3rd relief claimed by the Appellant and said the prayers were proper and justified in the circumstances of this case. Learned Counsel contended that even if the relief No. 3 was not specifically sought, the court would still have granted same as an incidental or consequential order.

Referring to Dumez (Nig.) limited V Peter Nwakhola 7 ors (2009) ALL FWLR (pt. 461) 842 at 845 wherein the apex court held thus:
“A court may indeed make consequential orders which flow naturally from the relief-claimed, Savannah Bank of Nigeria Plc V CBN (2009) ALL FWLR pt. 48, page 939 at 961; Tolani V Kwara State Judicial Service Commission (2009) ALL FWLR pt 181 page 880 at 991.”

That the Appellant’s Counsel had himself conceded by his submission at the trial court and that the trial Judge was right in granting the counter claim of the 3rd and 6th Respondents.

On their part, the 4th and 5th Respondents reply on the grant of the counter claim of the 3rd and 6th Respondents is that the counter claim are similar and arose from the main claim and may be unnecessary after all. Their Learned Counsel argued that this fact was appreciated when at page 414 – 416 of the record, the Appellants’ Counsel submitted thus:-
“(C) A pronouncement that the 1st Claimant is the Olori Olomooba also automatically invalidates and cancels all steps taken by the 3rd Defendant
(D) A declaration that the 3rd Defendant is the Olori Olomooba also automatically validate the purported selection process.”
The further submission of Learned Counsel for the Appellant at page 415 of the record thus:-
“So all claims in this suit can be determined by only one answer – who is the Olori Olomooba. If it is the 1st Claimant all the counter claims of the Defendants fail and if it is the 3rd Defendant then all the claims of the Claimants fail and no more.”

Quoting further at page 416 of the record, wherein the Appellants Counsel submitted – “If this honourable court holds that the 1st claimant is the Olori Olomooba even if the State Government supports the 3rd Defendant it cannot validate the process. If this honourable court holds that the 3rd Defendant is Olori Olomooba no matter who cries or dies, the selection process will be valid. This is the truth.”

Learned Counsel for Respondents argued that the position of the Appellants’ Counsel as Claimants at the trial court was the correct position in this matter and cannot be faulted. That the questioning of the role of the 3rd Defendant/Respondent as the head of the Princes (Olori Olomooba of Aagbaland was, therefore, baseless in the circumstance.

Learned Counsel faulted the invocation of the case of Gowon V. Ike Okongwu supra and contended that it was in applicable and further that the 4th Appellant having participated in the meeting of the Princes convened by the 3rd Respondent and having had his name as one of the candidates had acquiesced in the role played by the said 3rd Respondent and that the trial court held rightly that he cannot complain that this issue be resolved against the Appellants, and to dismiss this appeal for this reason.

The Appellants Issue 2, and the 1st and 2nd Respondent Issue 2, 3rd and 6th Respondent Issue 2 and 4th and 5th Respondents’ Issue I are the same.

It has been reproduced and the Appellants’ argument also set out in respect thereof. In response to the Issue No.2 “Whether the Judgment of the learned trial Judge can be supported by the evidence adduced at the trial court.”

In this respect, the 1st and 2nd Respondents’ Learned Counsel submitted that the bone of contention between the Appellant and the 3rd Respondent is as to who the Olori Olomooba of the Fatorisa Ruling House in Aagba was and that it was the basis of the suit at the trial court.

Learned Counsel submitted that where there was a registered declaration of customary law, it was a straight forward thing and the production of the registered declaration even on the evidence of a single witness suffices, but where reliance is placed on traditional history, which is conflicting or is inconclusive the rule in Kojo V. Bonsie (1957) 1 NWLR 1223 is to be applied by making reference to facts in recent history to resolve the issue.

Learned Counsel contended that such conflicting histories are tested against facts within living memory to ascertain which was more probable – see Ihenacho & ors V Chiyere & ors (2004) 8 SCM, page 107 at 116 and 121 – 122.

Learned Counsel referred to page 526 of the Record of Appeal and submitted that the Alaagba of Aagba Chieftaincy declaration which created the office of the Olori Olomooba does not prescribe the process which leads to the appointment of the holder of the title. That based on the evidence before the trial court, three criteria must be met for one to be an Olori Olomooba. To wit:
(1) Being a male from any of the 3 Ruling houses of:-
i. Ahunlaye Ruling House
ii. Odayale Ruling House
iii. Fatorisa Ruling House
(2) He must be the oldest male Prince in the 3 Ruling Houses or at least in his own Ruling House.
(3) The office is open to candidate from the 3 Ruling Houses either by forces of nature by reason of old age or by rotational principle.”
See page 455 and 458 of the record of proceedings.

The Learned Counsel submitted that aside from the pleadings, the 1st Appellant neither tendered the minutes of the meeting to prove his claim and the reason for his appointment. That the averments, not having been admitted must be proved.

Referring to the testimony of PW3, Counsel submitted that Exhibit D4 – a letter dated 07/07/2008 written by Felix Afolabi Abidoye, the last Alaagba of Aagba to the Chairman of Boripe Local Government Iragbiji, Osun State affirms that by custom and traditional history, the living oldest male takes up the leadership of Olori Olomooba and mentioned the last four successive Olori Olomooba who were appointed based on age; that on that principle of succession the 3rd Respondent was the one in turn in that succession principle, based on age.

See page 80 – 81 of the record. That evidence of traditional history within living memory was the most plausible and supported the 3rd Respondent’s case and his appointment as the Olori Olomooba, that the trial court decision approving this stance should be upheld. That the 4th Appellant, who participated in the contest inspite of his knowledge of the suit as pending and without protest cannot be allowed to approbate and reprobate.

Accordingly, it is submitted that the findings of the trial court was supported by evidence and that the court was right in dismissing the Appellants’ claim and in granting the 3rd and 6th Respondents’ counter claim. That the findings be not interfered with and the appeal be dismissed.

On this issue, the 3rd and 6th Respondents on their part submitted that the court needs to take the following situations into account to wit;
1. The Evidence before the trial court.
2. Whether the trial court accepted or rejected any evidence upon the correct perception.
3. Whether it correctly approached the assessment of the evidence on it.
4. Whether it used the imaginary scale of Justice to weigh the evidence on either side.
5. Whether it appreciated upon the preponderance of evidence which side the scale weighed having regard to the burden of proof.

Counsel therefore submitted that there was over whelming evidence for the Judgment of the trial court; that same should not be disturbed. Learned Counsel referred to a host of cases including Adebayo V. Adesei (2004) 4 NWLR (pt. 862) 44 ratio 4 at p. 60; Agbonifo V Aiwereoba (1988) 1 NWLR (pt. 70) 325; MISR (Nig.) Ltd V Ibrahim (1975) 5 SC 55; Paul Charlie & ors V Chief E.T. Gudi & Ors (2007) ALL FELR (pt. 362) page 1992 at 1994, in support of his contention.

On their part, the 4th and 5th respondents submitted that the issue placed before the court was one relating to who between the 1st Appellant and 3rd Respondent was the Olori Olomooba of Aagbaland?

Counsel submitted that the 1st Claimant/Appellant contradicted himself when he in one breath testified that he was appointed the Olori Olomooba (Head of Prices) in a meeting of the 3 Ruling Houses of Aagba after the death of Per Nathaniel Adewale, the immediate past Olori Olomooba who came from Fatorisa Ruling House, the Ruling House whose turn is to produce the next Alaagba. (see pages 16 – 17, paragraphs 14, 16 and 17 thereof). That this same Claimant changed gear in cross-examination and denied that there was a meeting wherein he was appointed the Olori Olomooba as claimed (see page 259) where he stated thus:- “There was no meeting where the three Ruling Houses installed me as Olori-Olomooba (shaking his head)” Counsel said the insistence that the position of the Olori-Olomooba was rotational among the 3 Ruling houses had been faulted.

Learned Counsel referred to the contradiction in the evidence of PW2 – Prince Ganiyu Adewale and PW5 – Prince Abass Oyedokun (who was the 4th Claimant/Appellant, as relating the status of the 3rd and 6th Respondents and in particular of the 3rd Respondent.

That whilst PW2 insisted that the 3rd Respondent was not a Prince from any of the Ruling houses, (pages 129 – 130 of the record) the PW5 (4th Defendant/Appellant) stated on oath at page 213, paragraph 12 thus:-
“That though the 3rd Defendant as the oldest man living in Ateniwijo’s Compound, is the Baale of the compound but he is not and cannot be the head of Fatorisa Ruling House”, that Exhibit D gives the name of the head of Ateniwijo’s compound as Prince Tiamiyu Egbebi Oyeyemi, contradicting that given by the PW2. Counsel, therefore urged us to reject them accordingly.
Oluwa V. Onyuna (1996) 4 NWLR (pt. 443) 449 at 457 wherein this court, Per Edozien JCA stated thus:
“The position of the law is that where witnesses for a party gives inconsistent and/or contradictory testimonies especially on material facts, their evidence on the point must be regarded as unreliable and rejected as such. See Mogaji & Ors V Cadbury Nig. Ltd (1985) 2 NWLR (pt. 7) 393, Onubogu V State (1974) 9 SC 1; Ike V Ofokaja (1992) 9 NWLR (pt 263) 42.”

That aside the material contradictions and inconsistencies on who is the Baale (Head) of Ateniwijo’s compound, and who is the head of Princes (Olori Olomooba) between the 1st Claimant/Appellant and the 3rd Defendant/Respondent, the Claimants’ witnesses were not ad-idem as to the procedure of the ascension to the position of Olori Olomooba (Head of Princes) in Aagbaland. That they maintained that the position was rotational, yet did not explain why the previous head of Princes did not reflect any form of rotation as stated by them, as the evidence disclosed that the previous heads of Princes are:
i. Oyewole from Ahunloye Ruling House
ii. Lawrence Okunlola from Ahunloye Ruling House
iii. Nathaniel Adewale from Fatorisa Ruling House. That PW2 (Prince Ganiyu Adewale, testified on oath on page 143(0) that… “Age has never been the criteria for ascension to the position of Olori-Olomooba”.

Under cross-examination by Gbadamosi Esq. at page 262 of the record stated thus:-
“As a Prince, I know the procedure of ascension of Olori Olomooba of Aagbaland. The procedure is as follows:
1. The candidate must be entitled to become an Oba, a Prince who is not an Oba and is the oldest is made the Olori Olomooba.
2. The head of the Omooba and the Oba do not come from the same Ruling House.”

Learned Counsel deprecated this inconsistency in pleading and evidence and urged that this court condemn same on the authority of the case of Ajide V. Kelani (1985) 3 NWLR (pt 12) 248 at 249 where Oputa (JSC) of blessed memory stated thus:
A party should be consistent in stating his case and consistent in proving it. He will not be allowed to take one stance in his pleadings, then, turn summersault during the trial; … Justice is much more that a game of hide and seek.”

Learned Counsel submitted further, that the trial court rightly discountenced Exhibits A1 and A2 being a hotch-pot (admixture) of Yoruba and English Versions of the Burial programme of the late Olori Olomooba (which had no probative value and relevance to the question – who the Olori Olomooba (in contest) was. That on the authority of Ojengbede V. Esan (2002) FWLR (pt. 90) S.C 1406 at 1428, pars. f – g (Per Iguh JSC), the trial Judge rightly disregarded the said exhibits A1 and A2. The Learned Counsel, wondered why the other documents front loaded by the Claimants/Appellants were not tendered and urged that S. 149 (d) of the Evidence Act be invoked to hold that if the documents were produced they will be unfavourable to the person who with-holds them.
See Babalola V. Badmus Wellington (1998) 11 NWLR (pt 572) 167 at 176; UTB (Nig.) Ltd V. Ajagbule (2006) 2 NWLR (pt. 965) 447 at 475 – 479; (CA). Aside these contradictions, inconsistencies and departure from pleadings and irrelevance of and withholding of some evidence vide documents pleaded, these Respondents’ Learned Counsel argued further that there were credible, material and uncontradictory oral and documentary evidence led by the Defence witnesses in buttress of the fact that the 3rd Defendant/Respondent as opposed to the 1st Claimant/Appellant is the Olori Olomooba of Aagbaland.

Learned Counsel referred to the primacy of documentary evidence over oral evidence and referring to the Exhibits D1, D2, D3, D4, D5, D6, D7, D8 and D9 and submitted that Exhibit D1 exposed the inconsistency of the Claimants on the position of the 3rd Respondent as a full fledged member of the Fatorisa Ruling House and that the other Exhibits, D4 D6 and D9 were hangers upon which the evidence of the Respondents were strengthened.

The cases of Shobanke V. Sarki (2006) ALL FWLR (pt. 292) 131 at 139 – 140, Ejiogu V Onyeaguogha (2006) ALL FWLR (pt. 317) 467 at 487; Aiki v. Idowu (2006) ALL FWLR (pt 293) 361 at 374 were referred and we were urged to hold that those documentary evidence were enough to support the 3rd Respondent’s case and had knocked down the bottom off the, claims of the Claimants/Appellants. That the Appellants did not prove their case at the trial and had no body to blame. The admonition of this court Per Salami, JCA in Kuti V Alashe (2005) ALL FWLR (pt 284) 372 at 394 thus:-
“I commend therefore to the Learned Counsel for Appellants the words of Lord Devlin in the case of Russel V Duke of Norfolk (1949) 65 TLR 231, 240 which was quoted with approval in Colly More V Attorney General (1970) AC 538, 551 that- where the Judge sits as an arbiter between two parties, he needs consider only what they put before him. If one or other omits something material and suffers from the omission – he must blame himself and not the Judge.—–
The Judge strictly considers what was put before him by Learned Counsel for the parties and if Appellants failed to adduce sufficient evidence to tilt the scale in their favour they should blame no one but themselves.”

The Learned Counsel for the 4th and 5th Respondents pointed out that the testimony of the 6th Respondents was not quoted fully by the Appellants’ Counsel as the full quotation as contained on page 298 of the record was reproduced and this court urged not to disturb the findings of the trial court in the circumstance. Zangina V. Commissioner of Works and Housing, Bornu State (2001) FWLR (pt 79) 1368 at 1397 par. A – D and Alli V Aleshiloye (2000) FWLR (pt 15) SC 2640 2610 at 2640, wherein the apex court Per Iguh JSC Stated thus:
“It is an elementary principle of law that an Appellate Court will not ordinarily interfere with the findings of fact made by the trial court which are supported by evidence except in circumstances such as where the trial court has not made a proper use of the opportunity of seeing and hearing the witnesses at the trial or where it has drawn wrong conclusion from accepted credible evidence or has taken an erroneous view of the evidence or the findings of fact are perverse in the sense that they do not flow from the evidence accepted by it. None of the circumstances enumerated above exists in the present case to warrant an interference by the Court of Appeal of the said findings of the trial court.”

RESOLUTION OF THE ISSUES
ISSUE NO. 1-On whether the judgment of the trial court can be supported by the evidence led before the court: it is my firm view, having studied the entirety of the record of appeal that the judgment is unassailable on this issue. The evidence led at the trial amply justified the resolution of this issue against the Appellant.

Now, what was the claim at the trial court? The claims as endorsed in paragraph 28 of the statement of claim are as follows:
28. “Whereof the Claimants claim against the Defendants as follows –
(a) A declaration that the 1st Claimant is the holder of the title of Olori Olomooba of Aagbaland
(b) A declaration that by virtue of the 1st Claimant being the Olori Olomooba of Agbaland and by the provisions of the Chieftaincy declaration of Alagba of Aagba which declaration was made by the Ifelodun District Council on the 17th day of October, 1955 and passed by the council on the 16th day of November, 1956 and approved at Ibadan on the 27th day of May 1957 and duly registered at page 189 of the Chieftaincy Declaration Register on the 29th day of June 1957, the 1st Claimant as the Olori Olomooba is the only person authorized to produce a candidate from the Fatorisa Ruling House to the kingmakers which Fatorisa Ruling House is currently entitled to present a candidate to fill the vacant stool of Alaagba of Aagba.
(c) An order of perpetual injunction restraining the 3rd Defendant from parading himself as the Olori-Olomooba of Aagbaland.
(d) An order of perpetual injunction restraining the 1st, 2nd, 4th and 5th Defendants from treating or recognizing or causing to treat to recognize the 1st Defendant as the Olori Olomooba of Aagbaland.

From the claim, it is patently clear that the only issue and indeed the crux of the suit at the trial court is the question whether the 1st Claimant was the Olori Olomooba of Aagbaland.

The Learned Counsel for the Appellant was perfectly right when he so submitted. The other learned Counsel for the Respondents, rightly associated with the Appellants’ Counsel in the appreciation of the matter on appeal in the light of the view above. In a civil claim, the burden of proof lies on he that asserts. See S. 137 of the Evidence Act. See also CA/B/146/2006 delivered by this court, Per Owoade, JCA on 27th February 2014 and Appeal No. CA/B/253/09 per Abiriyi, JCA and my contribution thereat. In my contribution in that judgment, I stated thus:
“In the face of this conflict alone, the trial Judge was right in dismissing the Appellants’ case at the trial court.”
That position, as above, was taken because as I stated then, “The onus probandi was not satisfied. He that asserts, must prove.” That is the golden thread in adjudication.

Where the evidence led in attempt to prove a material are conflicting or contradictory, they will, in law be considered as unreliable and no court of law will attach any weight to it.
This has to be so, as in the circumstance of conflicting evidence, a Plaintiff or Claimant cannot be said to have established on the preponderance of evidence, the burden cast on him as one who asserts, to prove his case.
Such a Shaky piece of evidence cannot be said to have been such that has any weight. It cannot therefore preponderate in favour of the person who seeks to rely on same.

The 1st Claimant/Appellant at the trial court, in his evidence in Chief as contained on pages 16 – 17 of his statement on oath states at paragraph 12 of the said statement thus:
“12 – That by virtue of my title as the Olori Olomooba of Aagbaland, I am the head of the Ruling Houses of Aagbaland.
“13 That I have assumed the position of the Olori Olomooba for over two years and I am so recognized by all indigenes of Aagbaland as the Olori Olomooba. A letter of Aagbaland Development Council dated 7th April, 2008 which letter was addressed to me as the Olori Olomooba is herewith attached as Exhibit ‘A’
14. That I was appointed as the Olori Olomooba in a meeting of all the three Ruling Houses in Aagbaland which Ruling Houses are –
d. The Ahunloye Ruling House
e. The Odeyale Ruling House
f. Fatoisa Ruling House
16. That the said meeting in which I was appointed as the Olori Olomooba of Aagbaland, it was recognized that the then Alaagba of Aagba Oba Felix Abioye (deceased) having hailed from the Odeyale Ruling House, it will be improper to appoint the Olori Olomooba from Odeyale Ruling House. (17 – 27) (produce).

Inspite of the specific deposition in paragraph 14 of the 1st Claimant/Appellant evidence on oath, this same witness and principal Claimant crashed in cross-examination when he changed position and confessed that there was no meeting of Princes where he was appointed the Olori Olomooba (Head of Princes). See page 259 of the Record of Appeal wherein the said Appellant/1st Claimant stated thus:-
“There was no meeting where the three Ruling House installed me as Olori Olomooba (shaking his head).” And maintained that the position of the Head of Princes Olori Olomooba was rotational among the 3 ruling Houses of Fatorisa, Ahunloye and Odeyale. This fact of contradiction and decoy in evidence had rendered the evidence of the said principal Claimant, most unreliable and unworthy of credence in law – as relating to his appointment as Olori Olomooba and the criteria thereof.

The PW2 and PW5 also contradicted themselves at the trial court as PW2, Prince Ganiyu Adewale stated in his evidence in Chief at pages 129 – 130 of the Record of Appeal thus “Though the 3rd Respondent is the oldest person living in Ateniwijo Compound, but he is not the head “Baale” of the Ateniwijo’s compound, and he never claimed to be in all the processes (iii) That the Current head of the Fatoisa Ruling House and the Baale of the Ateniwijo’s compound is Alhaji Sanusi Adewale. On his part, the PW5 who was the 4th Claimant/Appellant, Prince Abass Oyedokun, one of the contenders to the stool of Alaagba testified on page 213 of the record thus:
“That although the 3rd Defendant as the oldest man living in Ateniwijo’s compound, is the Baale of the compound but he is not and cannot be the Head of Fatorisa Ruling House. There is therefore a clear contradiction as to who is the Baale of Ateniwijo’s Compound and the oldest man thereof.

This is a material contradiction as it goes to the root of the status and qualification of the 3rd Respondent being challenged by the Appellants.
From the record, it is plain and from the pleadings too, that age is a material determinant after being a Prince and a male from a Ruling House, if one aspires to the position of Olori Olomooba.
If a claimant and his witnesses or witnesses interse are divided as to their testimony in any respect, particularly as to the age and status of a Respondent being challenged then their evidence on the point must be rejected as it is unreliable. In Iluma V. Onyuna (1996) 4 NWLR (pt 443) at 457, Edozie JCA held thus:
“The position of the law is that where witnesses for a party gives inconsistent and/or contradictory testimonies especially on material facts, their evidence on the point must be regarded as unreliable and rejected as such. See Mogaji & Ors V. Cadbury Nigeria Ltd (1985) 2 NWLR.”

The placing of the case of each contender on an imaginary scale with a view to determining which commands higher quality or probative value is very much still the law even in hotly contested cases of honour. See General Mohammed Buhari V. INEC & ors (2008) 12 SCNJ 1.
PW2, Prince Ganiyu Adewale at page 143 of the record particularly at paragraph ‘O’ of his statement inter alia stated:-
“…age has never been the criteria for ascension to the position of Olori Olomooba”.
In cross-examination, he stated at page 262 of the record thus:-
“As a Prince, I know the procedure of ascension of Olori Olomooba of Aagbaland. The procedure is as follows:-
1. The candidate must be entitled to become an Oba, a Prince who is not an Oba and is the oldest is made the Olori Olomooba.
2. The head of the Omooba and the Oba do not come from the same Ruling house.”
The somersault in evidence as can be seen in the evidence of the PW2 is such that he cannot be said to have exhibited credibility and veracity in the finest breed of royalty as expected.
In dealing with the question of veracity and credibility of a witness, the following factors are taken into consideration to wit;
a. The witnesses knowledge of the facts of which he testifies.
b. His disinterestedness.
c. His integrity.
d. Whether the evidence is contradictory or contradicted by the surrounding circumstances.
See Ikwekwem v COP Delta State (2005) ALL FWLR (pt 24) 1430 at 1433 CA. holding 4.

The integrity as displayed in the contradictory evidence and in particular the 1st Claimant/Appellant who has the greater and primary stake in the claims made, is a factor to consider.
Juxtaposing the Respondents’ evidence with the Appellants evidence weakened by the contradictions and enmeshed in the cobweb of the integrity concern, punches the firstly view that the Respondent’s case preponderates more on the balance of probability. There may be weakness(es) in a Respondent’s case, but the law is that a plaintiff succeeds on the strength of his case and not on the weakness of the Defendant’s case. Even upon the evaluation of these evidence of the Appellants alone, and more so that the documentary evidence tendered by the Respondents served as variable aid for assessing the oral evidence and testimony of the 3rd Respondent, the trial court was right to have entered judgment against the Appellant and in favour of the Respondents.
See UNIC v UCICC Ltd (1999) 3 NWLR (pt. 593) 7 referred to in Otito v Odidi (2011) 7 NWLR pt, 1245, page 108 at 126.
In Otito V Odidi (supra) this court, per Gumel, JCA stated the position of the law so lucidly and aptly in the following words:
“It is a cardinal principle of adjudication in our courts and which is well recognized and enforced that courts are enjoined to decide cases on the evidence of all the parties and not on the evidence of one side while ignoring that of the other side.”
We have in the record of Appeal, the largely conflicting and contradictory evidence of Plaintiffs’/Appellants’ witnesses against the Respondents, evidence. The Respondents, it must be appreciated, are not bound to even testify if a Claimant has not made out a credible case. Even if he does testify and his defence appears weak or bad, that ipso facto will not entitle a Plaintiff to succeed as he must only succeed on the strength of his own case.

Sadly, the Plaintiffs/Appellants had approbated and reprobated, such that they are caught by the approbation of the Supreme Court in Inter Continental Bank Ltd V. Brifina Ltd (2012) 13 NWLR 1 at 22 wherein Ngwuta, JSC stated as follows:
“A Party must be consistent in his claim and will not be allowed to approbate and reprobate over the issue.”

In this circumstance of conflict, the burden of proof does not shift to the Defendant in a Civil claim as the Plaintiff had not established or discharged the primary and first burden on him see Yesufu V. Adamo (2010) 5 NWLR (pt 1188) 522.
In Appeal No. CA/MK/63/2013 delivered in May 2014, I had this to say in the leading judgment of this court:-
“On the basis of the above authorities the burden cast on the Appellants to prove their case has not been discharged through PW2 nor PW3. All their evidence were self contradictory and against the pleadings; and the burden does not or did not therefore shift to the Respondents.”

The above view applies to the evidence of the Appellants’ witnesses at the trial court. Oputa, JSC made it clear that Justice is not a game of hide and seek. See Ajide V. Kelani (1985) 3 NWLR (pt. 12) 248 at page 269, wherein the late legal sage and Philosopher stated thus:
“A party should be consistent in stating his case and consistent in proving it. He will not be allowed to take one stance in his pleadings, then turn sommersault during the trial; … Justice is much more than a game of hide and seek.”
The Learned Counsel for the 4th – 5th Respondents had argued that of the total of 19 documents that were frontloaded by the Appellant/Claimant to substantiate his claim that it was he and not the 3rd Respondent/Defendant that was the head of princes (Olori Olomooba); that only two of them i.e. Exhibits A1 and A2 written partly in Yoruba and partly in English were tendered and that the trial court rightly did not attach probative value to them.

Furthermore, the Learned Counsel had submitted that the deliberate withholding of the other documents frontloaded operated against the Appellants. It is so. Section 149 (d) of the Evidence Act provides thus:
“The court may presume that evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it.”

As against the paucity of evidence from the Appellants, cum the unreliability of the available evidence per testimonies and documents tendered, there is the evidence of Defence witnesses for the Respondents herein that overwhelmingly place the Respondents on a higher pedestal of Justice as relating their defence and claims.

The DW1, an administrative officer in the Ministry of Local Government and Chieftaincy Affairs said there was no defect in the selection process as sent to the ministry by the Boripe Local Government council.
DW2 – Chief Julius Okewale, a traditional kingmaker of Aagba and a prince from Ahunlbye Ruling House confirmed that the ascension to the Olori Olomooba was based on age. That the 3rd Respondent was the oldest of the princes and was entitled to be the Olori Olomooba.

The DW2 is from the same Ruling house with the 1st Claimant/Appellant who alleges otherwise. He debunked the assertion by the Appellants that the Ogunwole Branch of Fatorisa Ruling House are not princes and have no right to become Olori Olomooba as well as Alaagba of Aagba. He was specific that the 1st Claimant is not the oldest prince nor older than the 3rd Respondent/3rd Defendant.

The evidence of DW2, that the younger brother of the 3rd Defendant/Respondent, Prince Julius Oyewole Ogunwole contested the Obaship of Alaagba against the late Afolabi Abidoye and that the 3rd Defendant’s father was his predecessor in office and that one Ojomo Adewuyi voted for the younger brother of the 3rd Defendant. That Ojomu Adewuyi is from Fatorisa Ruling House. Exhibit D6, showing the signature of Ojomo Adewuyi for Prince Julius Oyewole Ogunwole as candidate of the Farisa Ruling House.

The princeship or princehood of the 3rd Respondent has undoubtedly been shown, uncontradicted by the said Evidence, supported by Exhibit ‘D’.
DW3 -Prince Edward Ayodile from Oyadile Ruling House of Aagba confirms that Prince Julius Oyewole Ogunwole have been attending the meetings of Olomooba as representatives of Fatorisa Ruling House without any objection from anybody. That the Ogunwole branch of the Fatorisa Ruling House used to contribute money as part of Fatorisa House and the position of Olori Olomooba was based on age and the 3rd Defendant/Respondent was the oldest. This evidence remains uncontradicted.

The letter Exhibit D5 of 1/12/2008 reconfirms this evidence. Where evidence is unrebutted, a court of law has no option than to accept and act on same.

The Evidence of the DW6, who is the Alaagba of Aagba confirms the evidence of other Respondent witnesses and the fact that he is from the Fatorisa Ruling House and was nominated by the Olori-Olomooba, who was the oldest of the Princes and thus became an Alaagba elect upon his getting the support of 5 out of the 6 kingmakers.

I have read the Exhibits D1 – D9 tendered by the Respondents herein and find that Exhibit D1 shows the inconsistency of the Claimants on the position of the 3rd Defendant as a full fledged member of Fatorisa Ruling House. Exhibits D3, D4, D6 and D9 being letters by Eesa of Alaagba to 3rd Defendant/Respondent (26/1/2008) in his capacity as Olori-Olomooba of Aagba, letter by late Oba Felix Abidoye dated 7/7/08, clarifying and confirming the 3rd Defendant as the actual Olori Olomooba of Aagba, etc. All buttressed the evidence of the Respondents and served as hangers upon which to assess the Respondents’ evidence contrary to the Appellants case.

I think the Respondents’ Learned Counsel are right when they argued that this court should give these documents a pride of place over the oral evidence of the Plaintiffs/Appellants. The cases of Shobanke V Sarki; Ejiogu v. Onyeguogba, supra and also Aiki v. Idowu (2006) ALL FWLR (pt. 293) 301 at 374 relied upon by the 4th and 5th Respondents, Counsel are apt.

The documentary evidence relied upon and tendered have clearly shown that the 3rd Respondent was the Olori Olomooba of Aagba as testified to and thus effectively the Plaintiffs/Appellants’ claim to the title has been destroyed. The Learned counsel for the 4th – 5th Respondents is, therefore, correct when he submits at page 31 of the Brief of Argument filed as follows:
“My Lords, considering the foregoing analysis, it is humbly submitted the documentary evidence tendered and admitted in this case are enough to support the case of the 3rd Defendant as the Olori Olomooba of Aagba and these documents actually and in fact knocked bottom (sic) off the claimant’s claims before the court. My Lord, in spite of credible and consistent documentary and oral evidence adduced at the trial one therefore wonders the basis of the Appellants Counsel’s argument as contained in his brief to water down the sound Judgment handed down by the trial Judge against the Appellants herein as the Appellants cannot blame the trial Judge for their inability to prove their case as required by law.
The admonition of this court in the case of Kuti V. Alashe (2005) ALL FWLR (pt. 284) 372 at 394 was aptly invoked by the 4th – 5th Respondents, Learned Counsel.
In Kuti V Alashe (supra) this court Per Salami, JCA as he then was (later Salami, PCA) stated as follows:
“I commend therefore to the Learned Counsel for Appellants the words of Lord Devlin in the case of Russel V Duke of Nerfolk (1949) 65 TLR 231, 240 which was Quoted with approval in Colly More V Attorney-General (1970) AC 538, 557 that – where the Judge sits as an arbitrator between two parties, he needs consider only what they put before him. If one or other omits something material and suffers from the omission he must blame himself and not the judge…
The Judge strictly considered what was put before him by the Learned Counsel for the parties and if the Appellants failed to adduce sufficient evidence to tilt the scale in their favour they should in blame no one but themselves.”
The Learned Counsel held the bull by the horn and clearly and rightly has summed up the position of the Appellants’ case at the trial court.

A resort to quoting out of contest or mutilating the record of Appeal, which is sacrosanct, for it is the Bible of a case cannot be the solution.
I say this, because as rightly pointed out by the 4th – 5th Respondents Counsel, the Appellants’ Leaned Counsel at paragraph 4.26 of the Appellants’ Brief of Argument quoted only part of 6th Respondent’s testimony if the trial court and submitted that the 6th Respondent had made an admission against interest. At page 298 of the record, the PW6 (6th Respondent) testified thus:
“There is a division in the Olomooba household, so the Olomoobas can no longer decide who the Olori Olomooba is.
A divided house cannot stand. The Alaagba in council resolved the matter and asked all the princes to regard Elizer Ogunwole as the Olori Olomooba. The resolution was done in the presence of the 1st claimant and the 3rd Defendant.
When campaign of calumny started, that was when my father wrote a letter to the Local Government clarifying the Issue. Pa Olaloye was not satisfied, hence this case.”
Where-in lies, the admission against interest in the aforequoted testimony of the 6th Respondent?
The submission of Counsel, it must be noted, does not constitute evidence; more so, as I had stated in Bank of Industries Ltd & ors V Prince Michael Adewale Adediran & anor, Appeal No. CA/AK/130/2012, such practice of mutilating or quoting records of court out of con is unethical and fraudulent. It must not be tolerated and should be avoided or indulged in at the peril of sanction against a minister in the temple of Justice.

Can I not rest the resolution of this Issue even at this stage? I could; and it would have been determined; but if I must emphasize then, I would add, that the 1st Appellant withheld the evidence of his appointment as alleged, while the 4th Defendant participated in a contest with the 3rd Respondent, thus acknowledging his membership of the Olomoobas and 3rd Respondent, the father who performed his role of Olori-Olomooba.

From the avalanche of the oral evidence, fortified by documentary evidence for the Respondents and against the lean and precariously contradictory and unreliable evidence of the Plaintiffs/Appellants, the learned trial Judge still had a duty to evaluate the competing evidence. See Shogbon Fabumiyi & Anor (1968) NMLR 242; Paul Charlie & ors V. Chief E.T. Gudi & Ors (2007) ALL FWLR (pt. 362) pg. 992 at 1994.

I am satisfied that upon the evidence led, the trial Judge was right to hold that the 3rd and 6th Respondents were male members of a Ruling House and the 3rd Respondent was the oldest of the Princes and was rightly appointed or recognized as the Olori Olomooba of Aagba, more so that the meeting convened by the 3rd Respondent as the Head of Princes was attended by the 4th Claimant/Appellant without protest (submission) and the 6th Respondent contested alongside him and 6 others.

The 1st Appellant as 1st Claimant had averred that the 3rd Respondent was not the Olori Olomooba in accordance with their customs and tradition.
The burden was cast on the Appellants to so prove these customs and its violation. Section 14(1) of the Evidence Act provides thus:
“A custom may be adopted as part of the law governing a particular set of circumstances if it can be noticed judicially or can be proved to exist by evidence, the burden of proving a custom shall lie upon the person alleging its existence.”
The Appellants have not been able to prove conclusively the custom or tradition of ascension to Olori Olomooba as being based on age, as averred. Their evidence in that respect varies and there is prevarifications and conflicts and condonations.

The Respondents who aver the custom and tradition succeeded in proving same to their benefit in line with their defence.

In the circumstance, the Appellants had failed to prove their claims.
In Dong v A.G. Adamawa (2014) 6 NWLR (pt. 1404) at 573, Galadima, JSC stated thus: “I agree with the finding of the court below that the Appellants have not been able to prove non compliance with section 7(1) (supra). They have, however, been able to prove that Dong village has a tradition of selection which could be adopted for Dong District. In other words they have accepted that there is a tradition and customary method of selection in the New Dong District. In the light of the foregoing, I hold that the appeal lacks merit and it is accordingly dismissed”.

The views of the apex court as shown, is predicated on the non-proof of a custom alleged by the Plaintiff/Appellant and their concession of a situation that was clearly established by their opponent.

In that circumstance, the Appellants had to have their case dismissed and the trial court’s judgment to that effect affirmed. That is the situation in this appeal. I am satisfied that the evidence of traditional title called by the parties were conflicting such that evidence of facts in recent history testified to by the Respondents vide their witnesses and documents satisfied the Rule in Kojo v Bonsie (1957) 1 WLR 1223. The facts within living memory amply and uncontrovertibly testified to in Defence at the trial were so overwhelming, that, the trial court in my view rightly evaluated same and resolved that the Plaintiffs/Appellants did not prove their case.

ISSUE NO. 2
This issue asks the question, whether, in the circumstances of the case, the trial court was right in granting the counter claim of the 3rd and 6th Respondents. The counter claim of the 3rd and 6th Respondents, have been reproduced on pages 4 -5 of the Appellant Brief of Argument (Paragraph 1.03 thereof).

This issue, in the circumstances of the pleadings and reliefs sought by the counter claimants, could be said to have been resolved upon the resolution of Issue No. 1 as done above.

The Learned Counsel rightly appreciated this fact when they were in concurrence that the only issue that will determine this appeal is the Issue No. 1 as already resolved. The Counsel to the 1st Appellant/Claimant also conceded this fact as already shown elsewhere in this Judgment. A counter claim is however a distinct, independent and separate action which must be decided on its merit, in any case. See Ogbonna v A.G. Imo State (1992) 1 NWLR (pt. 220) 647; Alhaji Buba Usman v Garke (2003) LPELR 343.

The 3rd and 6th Respondents in the counter claim, claimed the following reliefs:
i. A declaration that the 3rd Defendant is the rightly holder of the title of Olori Olomooba of Aagbaland.
ii. A declaration that by virtue of the 3rd Defendant being the Olori Olomooba of Aagbaland and by the Chief Law of Osun State 2002 and the chieftaincy Declaration of Alaagba of Aagba made by the council on the 16th day of November, 1956 and approved in 1957 and duly registered at page 189 of the Chieftaincy Declaration Register on 29th day of June is right to have taken all steps relating to producing the names of candidates from the Fatorisa Ruling House to the kingmakers.
iii. A declaration that the recognition of the 3rd Defendant by the 1st, 2nd 4th and 5th Defendants, the kingmakers and the Olomoobas in relation to the statutory meeting of the Fatorisa Ruling House on 30/12/2008 and the presentation of names of candidates pursuant to the Chiefs Law and the chieftaincy declaration of Aagba land is lawful, legal and proper.
iv. A declaration that all the acts and steps taken so far by the 3rd Defendant in his capacity as the Olori Olomooba regarding the filling of the vacant stool of Alaagba remains valid, lawful and competent.
v. An order of injunction restraining the 1st Claimant from parading himself as the Olori-Olomooba of Aagbaland.
vi. An order of court directing the installation process earlier initiated by the 3rd Defendant but suspended at the instance of the Government of Osun State to be continued forthwith by the 1st, 2nd 3rd, 4th and 5th Defendant.”

A second Issue, if it had been raised in the main claim, may have been discountenanced as unnecessary and this court would not have been obliged to consider it as it would be of no moment to the determination of the appeal which has been determined on the 1st Issue already; this is because a court is not bound to consider all issues framed, if from the circumstances, it will be unnecessary. See Kanu V. AG Imo State supra.

But I shall do, in this case of a distinct claim. The reliefs I – V in the counter claim relate consequential reliefs that would flow naturally from a determination that the 3rd Defendant/Respondent and not the 1st Appellant was the Olori Olomooba of Aagbaland. The reliefs are intrinsically tied to the entitlement of a person adjudged as the Olori Olomooba of Aagbaland. The trial Judge exercised his discretion judiciously in the making of the order in relief No. 5 for injunction.

From the evidence on the printed Record of Appeal, and agreed to by the trial court, which I have found to have been properly arrived at, this court’s burden is made lighter. I hold that the counter claim should succeed.
Fabiyi, JSC stated thus:-
“One thing is certain. It is that truth is sacrosanct and immutable. It is superior to falsehood and cannot be driven aground. There is no atom of doubt that the Appellant was duly cleared by the NWC of the 2nd Respondent to contest the primary election of the party which was contested on 8/1/2011. This court, being the final court of record in the land has an abiding duty to sustain the truth. As usual, it has been done herein.”
See Uzodinma v. Uzonaso (No. 2) (2011) 17 NWLR (pt. 1275), page 30 at 101, per Fabiyi, JSC. Bound and encouraged by those words of eternal truth, I must agree with the Respondents that in the circumstances of this case at the trial and on appeal now the counter claim was properly made and granted. There is, from the Record of Appeal, no evidence showing that acts were embarked upon by the 3rd Respondent during the pendency of the appeal or that such acts, if any, constituted the basis for his already accrued status of Olori Olomooba, when the suit was filed. The contention that the acts forming the basis of reliefs counter claimed were taken during the pendency of the suit have not been proved.
There was no serious defence to the counter claim, which was properly granted and more so the Appellants’ Counsel had no useful and availing arguments against the grant of the counter claim.

A perusal of the entirety of the Record of Appeal shows that the learned trial judge did an excellent work in the adjudicatory process and arrived at the un-assailable decision when he dismissed the Appellants’ suit and granted the counter-claim of the 3rd and 6th Respondents. I uphold the un-impeccable Judgment and orders therein in Suit No. HOS/92/2008 between Prince Joseph Olaloye & 3 ors and The Attorney General and Commissioner for Justice Osun State & 5 ors delivered on 06/08/09 by Justice S.O. Falola, J. of the Osun State High Court.

Accordingly, I dismiss the appeal against same.

COSTS:-
There shall be no Costs. Parties in this intra-Royal tussle wherein the 1st Appellant, nay any of the Appellants may, at the appropriate time, by the custom and tradition of the parties still enjoy the benefit of ascendancy to the office of Olori Olomooba shall not be condemned to costs, as peaceful Co-existence of the Ruling House(s) should be encouraged for a stable and coherent community life.

SOTONYE DENTON WEST, J.C.A: I agree

JAMES SHEHU ABIRIYI, J.C.A.: It is trite law that it is the duty of the plaintiff in a claim for declaration like this one to prove that he was validly nominated and appointed Olori Olomooba of Aagba Land in accordance with the tradition and custom by the preponderance of credible and acceptable evidence. See Olabanji & Anor V. Omokewu (1992) NWLR (Pt 250) 671.
In the instant suit no credible evidence was adduced by the appellants to entitle them to the declarations sought. For instance the 1st appellant’s evidence in-chief was demolished under cross-examination when he turned somersault and admitted that there was no meeting at which he was appointed the Olori Olomooba which he claimed. Apart from this DW2 from the same ruling house with the 1st appellant stated that the 1st appellant was not entitled to be Olori Olomooba. Thirdly, documentary evidence relied upon by the respondents show that the 3rd respondent was the Olori Olomooba of Aagba.
The 1st appellant’s claim to the title was therefore without basis.
I had the privilege of reading in advance the draft of the judgment just delivered by my learned brother Mohammed A. Danjuma JCA. For the reasons ably and adroitly demonstrated in the said judgment, I too dismiss the appeal.
Since the dispute is more or less a family affair, I too abide by the order as costs.

Appearances

S.K. Olowolagba Esq.For Appellant

AND

Racheal Ojimi (Mrs.) Chief State Counsel, Ministry of Justice, Osun State. (For the 1st and 2nd Respondents)
Ade Morenikeji (For the 3rd and 6th Respondents)
Waheed Gbadamosi (For the 4th and 5th Respondents)For Respondent

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PRINCE JOSEPH OLALOYE & ORS v. THE ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, OSUN STATE & ORS (2014)

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