FRIDAY ABU v. ALI OMALE & ORS
(2019)LCN/13215(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 7th day of May, 2019
CA/A/479/2017
RATIO
CUSTOMARY LAW OR TRADITION: IS AN ISSUE OF FACT THAT MUST BE PROVED TO THE COURT
It is settled law that customary law or tradition is an issue of fact that must be proved before the Court can act on it and the onus of proof of which rest on the person claiming its existence. It has to be proved by calling witnesses who have such personal knowledge of the particular custom. It is only when the fact becomes notorious as a result of frequent proof in Courts that one can dispense with calling witnesses to prove it. See Egbuta V, Onuna (2007) 10 NWLR (Pt. 1042) 298; Ogolo V. Ogolo (2003) 18 NWLR (Pt. 852) 494; Dung Jatau V. Pam Dung (1993) 3 NWLR (Pt 283) 358.PER EMMANUEL AKOMAYE AGIM, J.C.A.
CUSTOMARY LAW AND TRADITION: THE PERSON ASSERTING SHOULDNT BE THE ONLY WITNESS IN SUCH CASE
In the case of MOTOH & Anor V. MOTOH (2011) 16 NWLR (Pt. 1274) 474, this Court held as follows:-
“As a general rule, the success of a plaintiffs case does not depend on the number of witnesses he calls, however in the area of customary law and traditional evidence, it is desirable that a person other than that person asserting the existence of such customary law and tradition should also testify in support of its existence, as it is unsafe to accept the statement of the only person asserting the existence of a custom as conclusive. See Osolu V. Osolu (1998) 1 NWLR (Pt. 535) Okene V. Orianwo (1998) 9 NWLR (Pt. 566) Page 408, Bello V. Governor Kogi State (1997) 9 NWLR (Pt 521) Page 496, Adeogun V. Ekunrin (2004) 2 NWLR (Pt. 856) Page 52, Adeosonekan & Anor V. Military Governor, Ogun State (1995) 26 LRCN, Ekpenga V. Ozogula II (1962)1.” PER EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES:
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
FRIDAY ABU – Appellant(s)
AND
1. ALI OMALE
2. DEKINA LOCAL GOVERNMENT TRADITIONAL COUNCIL
3. DEKINAL LOCAL GOVERNMENT – Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This appeal No. CA/A/479/2017 was commenced on 12-4-2017 when the appellant herein filed a notice of appeal against the judgment of the High Court of Kogi State at Anyigba delivered on 15-2-2017 in Suit No. AYHC/10/2014 by R.O. Ayoola J. The notice of appeal contains 7 grounds of appeal.
The parties filed their respective briefs as follows- appellants brief, 1st respondents brief, 2nd and 3rd respondents brief, appellants reply brief to 1st respondents brief and reply to 2nd and 3rd respondents brief.
The appellants brief raised three issues for determination as follows-
1. Whether the Lower Court was right to have come to a conclusion that the Appellant did not prove his case on the preponderance of evidence (Ground 1 of the Notice of Appeal).
2. Whether the Lower Court properly evaluated the evidence of the Appellant (Grounds 2, 3, and 6 of the Notice of Appeal).
3. Whether the Lower Court was right to hold that the 1st Respondent was qualified to be appointed as Gago having not being selected or
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nominated by the people of Agbeji Ojimele in Ojikpadala Ward (Ground 4 of the Notice of Appeal).
The 1st respondents brief raised four issues for determination as follows-
1. Whether 1st Respondent was at any time nominated by the people of Agbeji Ojimele. This issue is tied to ground 2, 3 and 4 of grounds of appeal.
2. Whether 1st Respondent selection/nomination, recommendation and appointment violates customs, practice surrounding the selection/nomination or the wish and will of the people of Agbeji Ojimele in Ojikpadala ward. This issue is tied to ground 2 and 5
3. Whether in the face of material contradictions in Appellants evidence before the trial Court, Appellant proved his case on the preponderance of evidence. This issue is tied to ground 1.
4. Whether the trial Court duly evaluated the evidence before it. This issue is tied to ground 6 and 7.
The 2nd and 3rd respondents brief raised two issues for determination as follows-
1. Whether the trial Court did not properly evaluate the evidence of the Appellant in its judgment.
2. Whether the trial Court was not right when it held that the
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Appellant failed to prove his case on the balance of probabilities.
I will determine this appeal on the basis of the issues raised in the appellants brief.
I will determine all the issues together.
The central issues in this case are who is eligible or entitled to aspire to be Gago of Agbeji Ojimele in Ojikpadala, how is the Gago of Agbeji Ojimele in Ojikpadala selected and who between the appellant and the 1st respondent was selected by the Agbeji Ojimele Community in Ojikpadala as its Gago.
The part of the judgment of the trial Court that resolved these issues reads thusly- In this case, there is evidence showing that late Musa Obaka was the 1st person to be appointed as Gago. There is also evidence that the 1st Defendant also contested alongside with late Musa Obaka. There is evidence which I accepted that the 1st Defendant was not chosen then because Musa Obaka was elderly and 1st Defendant was younger in age. There is also evidence from the Claimant that he had a right to contest at that time but did not because of the age of Musa Obaka. As I stated earlier, there was no evidence before me showing that the Gagorate
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created by the 2nd and 3rd Defendants was to be the exclusive preserve of Musa Obaka family. The evidence of the Claimant and his witnesses in their adopted statements on oath could not be sustained under cross-examination. The evidence led by the Claimant is that he hailed from Abocho whilst Musa Obaka hailed from Ife in Omala Local Government. I do not agreed with the evidence of the Claimants 1st witness that the Defendant was disqualified, at the time he first contested the Gagoship with Musa Obaka on ground of in-law-ship.
Learned Counsel, J.A. Akubo has referred to paragraphs 30 and 32 of the amended statement of Claim and Claimants statement on oath to submit that the community has the sole responsibility to nominate the candidate for recommendation to the 2nd Defendant and then approval by the 3rd Defendant. This assertion is clearly supported by Exhibit 1 tendered by the 2-3 Defendant. Exhibit 1 contained the presence of the two contestants and their witnesses before the 2nd Defendant. From the content of Exhibit 1 pages 11, 14 there is evidence that both parties claimed that the Community people selected or nominated them at
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different for a or meeting for Gagoship. There is also evidence before me that as soon as the nomination is done an application for appointment as Gago has to be written to the 2nd Defendant.
Both the Claimant and the 1st Defendant wrote applications to the 2nd Defendant. They are Exhibit D1/P1 and G which are copies of the applications written by the two contestants. There is also evidence that both of them were invited and they both appeared before the 2nd Defendant and they were both heard. The comment Learned Counsel, J.A. Akubo referred to in Exhibit 1 reads thus:
But to his dismay Alih Omale and his people refused to come there. The junior Madaki gave one Friday Abuh to be their Gago. The Council Chairman at this junction told the members of the Council that, it is the community that will do the nomination by themselves and that next time Amomata should not go to such place where the Community people are to meet and select their candidate for the post of Gago.”
It is very clear that the Community was divided hence both candidates applied to the 2nd Defendant. There is no evidence before me to establish the fact that only one
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person can be nominated and presented to the 2nd Defendant. I therefore hold that there is no evidence in support of the assertion that only the family of late Musa Obaka can be selected for appointment as Gago in Ojikpadala Ward in Agbeji-Ojimele. I so hold. I hold that from the evidence before me, the 1st Defendant is not disqualified to be the Gago. I have gone through the evidence of DW2. From his evidence there was a meeting held by the Community to nominate their candidate. His evidence was that the people he mentioned were in attendance, knew who they selected to be the Gago of Agbeji Ojimele in Ojikpadala Ward, though, it was not shown to him, he knew it was Alih Omale that was selected. CW3 under cross examination said the Community meeting had a secretary and minutes were taken, it was not tendered before this Court to prove the issue of nomination one way or the other.
The contention of the Claimant was that the people who nominated the 1st Defendant were people not resident in Ojikpadala Ward. I accept the evidence that the people are not exclusively living separately, the two Gago areas do things in common. There is evidence from the Claimant
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and also in his Pleadings which was accepted/admitted by the Defendants that the Gago in Anyigba Ward is answerable to the Gago in Ojikpadala Ward and that they hold meetings together. It is therefore not an evidence against the 1st Defendant that some of the signatories to his application letter resides within Anyigba Ward, I so hold. Was the 2nd Defendant the nominator and recommender at the same time? I have seen Exhibits D2 letter of appointment as Gago by 3rd Defendant. The 1st Paragraph therein stated;
In line with Dekina Traditional Council nomination and recommendation dated 14th April, 2014.
Aside this statement by the 3rd Defendant in Exhibit D2 there is no other evidence to support the statement in Exhibit D2. Letter of appointment Exhibit D5, D6 and D7 which are the application of 1st Defendant to the 2nd Defendant and the minutes of the two meetings of the 2nd Defendant showed that the nomination was not done by the 2nd Defendant. I therefore hold that this submission by the Claimant is misconceived and is hereby rejected.
Was the appointment of the 1st Defendant based solely on age factor? What were the factors given by the
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Claimant for consideration for nomination as a Gago.
The Claimants case was that the Gago is the exclusive right of late Musa Obaka family and that where no member, of the family is qualified or competent the family and the Community will select the new Gago. He also contended that 1st Defendant is not relation of late Musa Obaka and he therefore was not qualified. I have already held in this Judgment that the assertion or Claim has not been supported with any credible evidence before this Court. The evidence is that the 1st Defendant was not previously nominated and appointed as Gago because of the age factor. See the evidence of the Claimant under Cross-examination. See also Exhibit D7 supporting the evidence of CW5, that the late Musa Obaka was elderly and it was on that basis he was appointed as the 1st Gago of Ojikpadala Ward in Agbeji-Ojimele. I have not found any evidence led by the Claimant to show that the role of the 2nd Defendant is only to rubber stamp whoever the community presented without more. The next issue to be decided is whether the 1st Defendant is a stranger in Agbeji-Ojimele.
I have already reviewed the evidence of
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parties. The evidence before me is that the Claimant hailed from Oko Ate in Abocho Biraidu district and settled in Agbeji-Ojimele. The late Musa Obakas father or grandfather, Obaka Odoma hailed from Ife in Omala Local Government 1st Defendants ancestor Okai hailed from Iyale.
All the people living in Agbeji Ojimele migrated from somewhere to Agbeji-Ojimele. There is evidence that there are people whose settlement in Agbeji-Ojimele preceded other, and are referred to as 1st settlers. The fact that both the Claimant and 1st Defendant qualified to be appointed as Gago at the time the Gagoship was introduced showed that the 1st Defendant was not, cannot, and is not a stranger in Agbeji-Ojimele. That allegation of fact has not been established by any credible and or convincing evidence acceptable to this Court.
The claim is therefore not established by the Claimant.
It was not established/prove.
It is rejected.
Another question is on the literacy of the person to be appointed as the Gago. Is the stool of Gago subject to the Chiefs Law of Kogi State? the Chiefs Law of Kogi State in its Section 23 provides that the Law
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is applicable as follows: From the definition of a chief in Section 2 of the Law: a Chief means a person whose authority and control is recognized by a Community and is appointed or graded in accordance with the provisions of this law or any other law applicable in the State and it includes a traditional ruler.
Was the appointment of Gago in Agbeji-Ojimele in Ojikpadala Ward made in accordance with the Provisions of the Chiefs Law of Kogi State? Did the Claimant lead any evidence to that effect before me. Can the claimant therefore rely on Section 10 of the Chiefs Law in the Circumstance regarding the educational qualification of a candidate?
Section 10 of the Law provides:
A person shall be qualified if:
a) He belongs to a ruling house by native law and custom in force rega
