CHIEF OYENIYI ABIDOYE & ANOR v. ALHAJI SALAWU DOSUNMU & ANOR
(2019)LCN/13379(CA)
In The Court of Appeal of Nigeria
On Thursday, the 30th day of May, 2019
CA/IL/105/2017
DECLARATORY ACTIONS ARE DISCIPLINARY IN NATURE
A declaratory action, such as the instant case, is discretionary in nature. Hence, the burden of proof squarely lies on the claimants (Appellants), who must succeed on the basis of the strength of their case and not on the weakness of the defence, except where the case for the defence unequivocally supports the claimants case. See ADIGUN VS. AG OYO STATE (No.1) (1983) 1 NWLR (Pt. 53) 978; DANTATA VS. MOHAMMED (2000) 7 NWLR (Pt. 664) 176; EKUNDAYO VS. BAKUWA (1965) 2 ALL NLR 211; NWOKUDU VS. OKANU (2010) 3 NWLR (Pt.1181) 362; NKWO VS. IBOE (1998) 7 NWLR (Pt. 564) 354; UCHE VS. EKE (1998) 9 NWLR (Pt.564) 24; AKANDE VS. ADISA (2012) LPELR 7807 (SC) @ 38, 39 paragraphs G- C.PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
DUTY OF A CLAIMANT IN AN ACTION SEEKING DECLARATORY RELIEFS
It is settled, that in an action seeking declaratory reliefs, the claimant has an onerous responsibility to prove the case thereof by adducing cogent evidence. Thus, he must rely on the strength of his case and not on the weakness of the defence, except where the evidence of the defendant supports his case. See NETWORK SECURITY LTD VS. DAHIRU (2008) ALL FWLR (Pt. 419) 475 @ 498; ADESANYA VS. OTUEWU (1993) 1 NWLR (Pt. 270) 414.PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
NATIVE LAW AND CUSTOM: WHETHER A PERSON IS QUALIFIED TO ASCEND A TRADITIONAL THRONE
Invariably, the question of qualification of a person to ascend any traditional throne or stool is subject to the native law, custom and traditions of the people concerned. Customary Law is a question of fact to be proved by calling evidence, except where frequent proof of same has made the customary law to assume legal status of notoriety, there by rendering same judicially noticeable. See OLANREWAJU VS. OYESOMI (2014) 4 SC (Pt. 111) 1 @ 47, 48.PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
CUSTOM: DEFINITION
Instructively, the term custom as a noun denotes a practice that by its common adoption and long, unvarying habit has come to have the force of law. See BLACKs LAW DICTIONARY, 7th Edition, 1999 @ 390.
Custom is varied and ubiquitous: 1. CONVENTIONAL CUSTOM: A custom that operates only indirectly vide the medium of agreements, so much so that it is accepted and adopted in individual instances as conventional law between the parties to those agreements. Also termed usage. 2. GENERAL CUSTOM: (a) A custom that prevails throughout a country and constitutes one of the sources of the law of the land; (b) A custom that businesses recognize and follow TRADE USAGE. 3. LEGAL CUSTOM: A custom that operates as a binding rule of law, independently of any agreement on the part of those subject to it. Usually shortened to CUSTOM. 4. LOCAL CUSTOM: A custom that prevails in some defined locality only, such as a city or county, and constitutes a source of law for that place only. Also termed PARTICULAR CUSTOM; SPECIAL CUSTOM.PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
HOW TO DETERMINE IF A PERSON HAS A RIGHT TO A CHIEFTANCY
Invariably, the issue of right to a chieftaincy has always been inherent in the nature of customary law and it is fundamentally predicated upon question of fact to be established by preponderance of evidence. See OGUNDARE VS. OGUNLOWO (1997) 6 NWLR (Pt. 509) @ 16 paragraphs B C; GIWA VS. ERINMILOKUN (1961) 1 SCNLR 337; (1961) ALL NLR 294 @ 296; OLOWU VS. OLOWU (1985) 3 NWLR (Pt. 13) 372; (1985) 12 SC 84 @ 133 134.PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
JUSTICES:
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria
Between
1. CHIEF OYENIYI ABIDOYE
(Oluawo Aran)
(The Oloriebi of Imode Compound, Omu-Aran, Irepodun Local Government Area of Kwara State)
(substituted for Chief Akande Oyinloye by Order of the Court of 5th November, 2018)
2. CHIEF JOSEPH AYINLA AWONIYI
(The Edemon Aran of Omu-Aran, Irepodun Local Government Area of Kwara State) – Appellant(s)
AND
1. ALHAJI SALAWU DOSUNMU
2. CHIEF JUBRIL AFOLABI AROWODUN
(The Obale Aran of Omu-Aran) – Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The present appeal is a natural consequence of the judgment of the High Court of Kwara State holden at Omu-Aran Judicial Division, delivered on September 19, 2016 in suit No. KWS/OM/4/2014. By the judgment in question, the Court below, Coram T. S. Umar, J; dismissed the Appellants claims and granted the counter-claim of the Respondents.
BACKGROUND FACTS
The historical antecedent of the instant appeal is traceable to February 24, 2014. Indeed, that was the day the Appellants instituted the suit in question at the Court below sitting at Omu-Aran Judicial Division, thereby seeking against the Respondents some declaratory and injunctive reliefs. By the statement of claim thereof, filed along with the writ of summons, the Appellants sought against the Respondents the following declaratory and injunctive reliefs:
(1) A declaration that by history, native law and customs of Aran section/community of Omu-Aran town in Irepodun Local Government Area of Kwara State, Omu-Aran is made up of two distinct and separate communities namely Omu and Aran with each
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community having its distinct native laws and customs regulating the selection, appointment and installation of its Chiefs.
(2) A declaration that by history, native law and customs of Aran section of Omu-Aran town in Irepodun Local Government Area of Kwara State, the selection, appointment and installation of Edemo Aran are the exclusive preserve and right of the Imode family/compound and Chiefs of Aran section of Omu-Aran and therefore the 1st defendant has no role to play in the exercise and cannot nominate for and or dictate to Imode family/compound and the Aran section/community person to be appointed and installed as Edemo Aran and or any chief of Aran.
(3) A declaration that the 2nd claimant is the Edemo Aran of Omu-Aran in Irepodun Local Government Area of Kwara State having been nominated appointed and installed in accordance with the native law and customs of Imode family/compound and Aran section/community of Omu-Aran town of Irepodun Local Government Area of Kwara State.
(4) A declaration that by history, native law and customs of Aran section/community of Omu-Aran town in Irepodun Local Government Area of Kwara State, the
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purported nomination/selection for appointment of the 2nd defendant by the 1st and 3rd defendants as the Edemo Aran is a gross violation of the native laws and customs of Imode family/compound of Aran and that of Aran section/community of Omu-Aran town and ultra vires the 1st defendant and therefore unlawful, illegal, null and void and of no effect.
(5) An Order of the Court restraining the defendants by themselves, agents, servants and privies from nominating, selecting or appointing the 2nd defendant as the Edema Aran of Omu-Aran contrary to the native law and custom of Imode family/compound of Aran section/community of Omu-Aran.
(6) AN Order of perpetual injunction restraining the 2nd defendant from parading, portraying, presenting and or addressing himself as the Edemo Aran of Ornu-Aran town of in Irepodun Local Government Area of Kwara State.
(7) AN Order of perpetual injunction restraining the 1st and 3rd defendants from dealing with and or in any way or manner treating the 2nd defendant as or according the 2nd defendant the rights and privileges of Edema Aran of Omu-Aran town.
(8) AND for such further Order (s) the Court may deem
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fit to make in the circumstances.
(9) Costs of this suit.
Contrariwise, the Respondents not only denied the claim but counter claimed against the Appellants. Both the parties filed and exchanged their respective pleadings. Eventually, the suit proceeded to trial. At the end of the said trial the Court below delivered the vexed Judgment to the conclusive effect:
Having held that the evidence of DW1 and DW2 are more credible, I hold that the appointment of the 2nd defendant has sailed through from Ile Alaa whose turn it is to produce the next Edemo. The authorities cited by the counsel for the 1st and 2nd claimants and 3rd defendant are not on all fours with this case. I thereby grant the counter claim of the 1st and 2nd defendants while the claims of the claimants are dismissed.
T. E. Umar
Judge
19/09/2016
The appeal was deemed properly entered on 18/12/18. On March 4, 2019, when the appeal came up for hearing the learned counsel addressed the Court and adopted the respective briefs of argument thereof. Thus, resulting in reserving judgment.
The Appellants amended brief of argument, settled by Ayinla Jawondo
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Salman Esq., on 08/11/18, spans a total of 35 pages. At pages 3 4 of the said brief, three issues have been canvassed.
1. Based on pleadings and evidence, was the trial Court not wrong in its decision that the evidence of PW.1, PW.2 and DW.3 is afflicted with inconsistencies, incongruities and contradictions which, couple with issues on the identity and position of the deceased 1st appellant in Imode compound and the failure of the appellants to call the deceased 1st appellant to testify, dented Exhibits 1, 4, D44 and A49 and rendered the appellants’ case unreliable without any review, evaluation and consideration of the appellants’ evidence on the germane, central and material issues and aspects of the case. (GROUNDS 1, 2, 3 and 4)
2. Based on the pleadings and evidence before the Court, was the trial Court not wrong in its decision that by native law and custom and tradition of Aran that;
(a) The appellants did not prove that ascension/succession to the stool of Edemo Aran is by competition and not by rotation and that the 2nd appellant was validly appointed and installed as Edemo Aran under Aran native law and custom and tradition and
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that his appointment and installation was validly cancelled or nullified.
(b) The late Olomu and 1st respondent proved that ascension/succession to the stool of Edemo Aran is by rotation and not competition and based on rotation, the 1st respondent from Ile Alaa had been validly appointed as Edemo Aran and his appointment sailed through. (GROUNDS 5, 6, 9,10,11,12 and 13)
3. Having regard to the pleadings and evidence before the Court on the histories of Aran and Omu and the native law and custom of Aran regulating the appointment and installation of Edemo Aran, was the trial Court not wrong in holding that by virtue of increase in the number of the Kingmakers of Omu in 1993 when the late Olomu (deceased 1st respondent) was to be appointed the Olomu and Exhibits D1-D37, Omu and Aran have become one town and Aran has accepted the Olomu has the authority and with oversight power/functions on Aran and its native law and customs and as such the deceased Olomu and 2nd respondent did not need to prove their counter-claim but entitled to have it granted since the appellants failed to prove their case. (GROUNDS 7 and 8).
The issue No.1 is extensively
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argued at pages 4 , 14 of the brief, to the effect that based on the pleadings and evidence, the Court below was wrong in its decision that the evidence of PW1, PW2 and DW3 is affected with inconsistencies, incongruities and contradictions which rendered the Appellants case unreliable.
It is submitted that from the analysis and pronouncements of the Court below (pages 542 line 5 and 546 of the Record), it is clear that the Court mingled the evidence of DW3 with that of PW1 and PW2, and treated them as Appellants witnesses. That even Exhibits D44 and A49 tendered by the defence were treated as part of the Appellants case.
It is argued, that the mingling of the evidence in question has constituted a grave error on the part of the Court below, which said error has occasioned miscarriage of justice on the Appellants as their case was dismissed.
Further argued, that a calm, reflective, unbiased and dispassionate reading and understanding of a juxtaposition of the findings and holdings of the Court below with the oral evidence of PW1, PW2 and DW3 and Exhibits 1, D44 and A49, would reveal that there was no any inconsistency
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and contradiction in their evidence to have warranted the conclusion of the Court. See OSADOLOR VS. STATE (2017) ALL FWLR (Pt. 895) 1581 @ 1637, 8; YAKUBU VS. JAUROYEL (2014) ALL FWLR (Pt. 734) 1 @ 42.
It was postulated, that the issue of illiterate jurat does not and cannot amount to contradiction that would warrant a complete and total rejection of the entire evidence of the witnesses. That this is more so when DW3, who was a signatory to Exhibit A49, explained that the appearance of his name also as the interpreter on Exhibit A49 was error of the writer who wrote the documents for the chiefs of Imode who are illiterates. SeeEDOKPOLO & CO. LTD VS. OHENHEN (1994) 7 NWLR (Pt. 358) 511; WILSON VS. OSHIN (2000) 6 SC (Pt. 111) 1 @ 24; ANAEZE VS. ANYASO (1993) 5 SCNJ 151, et al.
Further postulated, that the effect of the grave errors of the Court below occasioning a grave miscarriage of justice on the Appellants, is liable to be set aside. SeeOKONZUA VS. AMOSUN (1992) 7 SCNJ (Pt. 11) 243 @ 256; AFOLAYAN VS. OGUNRINDE (1990) BMLR 124 @ 134; FATUADE VS. ONWOAMANAM (1990) 3SC (Pt.11) 138.
The Court is urged to allow the appeal on this issue
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No.1 and set aside the decision of the Court below.
The issue No. 2 is extensively postulated at pages 14 25 of the Brief, to the effect that the Court below was wrong in its decision, the Appellants did not prove that by native Law and custom and tradition of Aran Ascension to the stool of Edemo Aran is by competition and that the 2nd Appellant was validly appointed and installed as Edemo Aran and that his appointment and installation was validly cancelled or nullified. It is submitted, that under native law and custom of Yoruba race, to which Aran belongs, ascension to traditional stools such as Edemo Aran stool, is by competition except where established rotation is proved. See OLANREWAJU VS. OYESOMI (2014) 4 SC (Pt. 111) 1 @ 47, 48.
Further submitted, that from the pleadings and evidence on record, the Appellants proved that ascension to the stool of Edemo Aran was by competition. See paragraph 15 of the Claimants consequential Further Amended Reply to the 1st and 2nd Defendants Amended Statement of Defence and paragraph 19 of the Additional Statement on Oath of PW1 and PW2.
It is argued, that the admission by DW1
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of the Appellants case on the mode of ascension/succession to the stool of Edemo Aran not only strengthens the Appellants case but also destroyed completely the claim of rotation put up by the Respondents. See USMAN VS. KADUNA STATE HOUSE OF ASSEMBLY (2008) ALL FWLR (Pt. 397) 78 @ 114 115; OKEREKE VS. THE STATE (2016) ALL FWLR (Pt. 828) 910 @ 925; GAJI (2003) 5 SC 61.
The Court is urged to resolve the Issue No. 2 in favour of the Appellants.
The Issue No. 3 is extensively argued at pages 25 33 of the brief to the effect that having regard to the totality of the evidence before it, the Court below was wrong in holding that Omu and Aran have become one town and Aran people have accepted the Olomu as authority and has oversight power/function on matters of Aran Native Law and Customs.
It was submitted, that by the Appellants pleadings, Omu and Aran are separate, distinct and independent entities/communities, each with its own set of native law and customs regulating its life and affairs, such as festivals and the appointment and installations of its Chiefs.
Further submitted, that since the claim and
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counter claim are founded on native law and customs of Aran as a community, and there is no evidence that the native law and customs being relied upon by the parties have enjoyed some level of notoriety, such as to have been pronounced upon by a Court of law, the native law and custom must be pleaded and proved by evidence of the parties. See OGOLO VS. OGOLO (2003) 12 SC (Pt. 1) 56 @ 65; TAIWO VS. DOSUNMU (1966) NMLR 67; OTOGBOLU VS. OKELUWA (1981) 6 , 7 SC 99.
According to the Appellants, the Olomu and 1st Respondent failed to prove that by the native law and customs of Aran community, the Olomu is a prior consenting and Approving Authority on appointment and installation of Chiefs in Aran community, including Edemo Aran and the counter claim ought to have been dismissed. See YAHAYA VS. DANKWAMBO (2016) ALL FWLR (Pt. 838) 942 @ 963 4; YOUNG VS. CHEVRON (NIGERIA) LIMITED (2014) ALL FWLR (Pt. 747) 620 @ 642.
The Court is urged to resolve the Issue No. 3 in favour of the Appellants.
Conclusively, the Court is urged to allow the appeal, set aside the judgment of the Court below, grant the Appellants claims, and dismiss the
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Respondents counter claims.
Contrariwise, the 1st Respondents brief was settled by Kayode Odetokun Esq., on 27/11/18. That brief spans a total of 35 pages. At pages 5, 8 of the said brief, a notice of Preliminary Objection has been canvassed thereby urging upon the Court to dismiss the appeal on the grounds that the original 1st Respondent is now deceased, the Court lacks jurisdiction to entertain the appeal, and the appeal is an academic exercise.
Alternatively, arguing the appeal on the merits, three issues have been raised at page 8 of the brief:
1. Whether there were inconsistencies and contradictions in the evidence of the appellants’ and 2nd respondent’s witnesses substantial enough to warrant a dismissal of the appellants’ claim by the trial Court. (Grounds 1, 2, 3, 4, 8 & 13 of the Notice of Appeal)
2. Whether the 1st respondent proved that ascension to the stool of Edemo Aran is by rotation and whether the 1st respondent from Ile Alaa was validly selected for appointment as Edemo Aran. (Grounds 5, 6, 10 and 11 Notice of Appeal)
3. Whether the late Olomu of Omu-aran had an oversight function in the
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appointment and installation of Aran chiefs, including the Edemo Aran. (Grounds 7, 9 & 12 Notice of Appeal)
Both issues 1 & 2 have been argued together at pages 8, 27 of the Said brief. In the main, it is submitted that the Appellants submissions in pages 4 5 of their brief that the Court below did not review evaluate, and consider the Appellants evidence on the germane, central and material issues, are misconceived.
It was submitted, that the Court below was privileged to hear the parties live and study the demeanor of the witnesses before it. Thus, the Court was right to have arrived at the findings on the true status of the 2nd Respondent in the case. The Court is urged to hold that there was no mingling of DW3s evidence with that of the PW1 and PW2, contrary to the Appellants submissions.
Regarding Exhibit 1, it was argued that the Court has power to expunge same from its record because it was found to be legally inadmissible. See DR. IMORO KUBOR VS. DICKSON (2013) ALL FWLR (Pt. 676) 392 @ 430 paragraph G; CHIEF JOSHUA ALAO VS. AKANO (2005) 4 SCNJ 65 @ 74.
Further argued, that Exhibit
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I is unreliable due to the fact that its undated, thus no weight to be attached thereto. SEE OGBAHON VS. THE REG TRUSTEES OF CHRIST CHOSEN CHURCH OF GOD (2002) 1 NWLR (Pt. 749) 675 @ 704 paragraphs B, B.
According to the Respondents Learned Counsel, the Court below did all that it should do in arriving at its findings and decision in the vexed judgment. See MILITARY GOVERNOR OF LAGOS STATE VS. ADEYIGA (2012) 2 SCNJ 1 @ 37.
The issue 3 has been argued at pages 27, 34 of the brief, to the effect that the Appellants did not discharge the burden placed upon them. See JOHN ONYENGE VS. EBERE (2004) 13 NWLR (Pt. 889) 20 @ 37 paragraphs A -E. And that the appellants argument that the Olomu of Omu-Aran and 1st Respondent did not controvert or challenge their assertion on the Native Law and Custom of Aran is equally a misconception. The assertions were duly denied by the late Olomu of Omu-Aran and the 1st Respondent in their pleadings. It was argued, that all the exercising leading to the purported installation of the 2nd Appellant as Edemo Aran, including Exhibits 5(i) to 5(ix) have been cancelled and nullified by Exhibit
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D10. The Court is urged to so hold and resolve the issue No.3 against the Appellants.
On the whole, the Court is urged upon to dismiss the appeal in its, entirety.
In response to the 1st Respondents brief, the Appellants deemed it expedient to file a reply brief on 21/01/19. It spans a total of 8 pages. Paragraphs 1.1, 1.5 at pages 1, 2 of the brief are in respect of the Reply to the 1st Respondents Notice of Preliminary Objection, thereby urging upon the Court to dismiss the objection as it is misconceived. Paragraphs 2.1, 3.5 at pages 2 7 of the said brief deals with reply on points of law. By the reply brief thereof, the Appellants have urged upon the Court to allow the appeal and set aside the vexed judgment.
I have had a cause to critically, albeit dispassionately, consider the submissions of the learned counsel contained in the respective briefs of argument thereof vis-a-vis the record of appeal, as a whole. Having amply considered the circumstances surrounding the appeal, I am appreciative of the fact that the three issues couched by the Appellants and duly adopted by the 1st Respondent
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are germane to the grounds of the notice of appeal. Thus, I have no hesitation whatsoever in adopting them with a view to determining the appeal, anon.
ISSUE NO. 1
The first Issue, as copiously alluded to above raises the vexed question of whether based on the pleadings and evidence, the Court below was wrong in its decision that the evidence of PW1, PW2 and DW3 was afflicted with inconsistencies, incongruities, and contradictions which rendered the Appellants case unreliable without any review, evaluation and consideration of Appellants evidence on the germane, central and material issues of the case. The first issue is allegedly distilled from grounds 1, 2, 3 and 4 of the Notice of Appeal.
The vexed judgment of the Court below is contained at pages 520, 550 of the record of appeal. Most specifically, at page 544 of the record, second paragraph the Court below stated:
From the scenario pointed above the evidence of PW1, PW2 and PW3 are not reliable. They cannot approbate and reprobate. See AJIDE VS. KELANI (1985) 3 NWLR (Pt.12) 248; 269. It is trite that where evidence of a party is at variance with his pleadings such
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evidence cannot be relied upon. There are clear fundamental inconsistences in the evidence of the witnesses which cannot be relied upon. See OSADIM VS. TAIWO (2010) ALL FWLR (Pt. 534) 146 @ 165. See also OGUN VS. AKINYELU (2005) 2 MJSC 92 @ 98
The Court below equally held that the incongruous evidence of the witnesses in question were so in consistent that no reasonable Court could safely rely thereupon. See pages 545, 546 of the record.
By the 42 paragraphs statement of claim (pages 4. 10 of the record), the Appellant’s have jointly and severally sought some declaratory reliefs against the Respondents. Thus, being declaratory in nature, the claims (reliefs) must be proved by the Appellants (Plaintiffs) by credible evidence. A declaratory action, such as the instant case, is discretionary in nature. Hence, the burden of proof squarely lies on the claimants (Appellants), who must succeed on the basis of the strength of their case and not on the weakness of the defence, except where the case for the defence unequivocally supports the claimants case. See ADIGUN VS. AG OYO STATE (No.1) (1983) 1 NWLR (Pt. 53) 978;
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DANTATA VS. MOHAMMED (2000) 7 NWLR (Pt. 664) 176; EKUNDAYO VS. BAKUWA (1965) 2 ALL NLR 211; NWOKUDU VS. OKANU (2010) 3 NWLR (Pt.1181) 362; NKWO VS. IBOE (1998) 7 NWLR (Pt. 564) 354; UCHE VS. EKE (1998) 9 NWLR (Pt.564) 24; AKANDE VS. ADISA (2012) LPELR 7807 (SC) @ 38, 39 paragraphs G- C.
With a view to establishing the case thereof, the Appellants called two witnesses, in the persons of Chief Oyeniyi Abidoye Oluawo, the Oloriawo of Aran, and Chief Joseph Ayinla Awoniyi, both of whom testified as PW1 and PW2, respectively.
Most particularly, the PW1 identified and adopted the two written statements on oath as evidence thereof. He equally identified Exhibits 5(1), 5 (9). Under cross examination by Baiyeshea (SAN), the PW1 testified inter alia (at pages 492, 493 of the record) thus:
I am a chief, the olori awo of Aran. Olori Awo is a chief. I am not Esha. I am not qualified to attend chieftaincy meeting but I can go there if they call upon me. I am not the biological son of 1st claimant but he is the brother of my father. I know what is before the Court is not on issue of title of Olomu Aran.
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I know the title of Edemu of Aran is controversy that is why we here. I have looked at Exhibit 1 it is with me. I cannot read. I cannot read it because I am illiterate. But if it is a Yoruba language I can read anything in English that is why the interpretation is being done to me. I cannot say whether Ile Alla has 7 units. It is now 7 Edemos
In continuation of his testimony under cross examination, the PW1 stated that although he brought Exhibits 2 and 3, he did not know what was in those 2 Exhibits. That there were 9 king makers in Omu Aran. However, he did not know the history of king making in Omu Aran. That the king makers were initially 6 in number. Apart from his dad, Edem O Abidoye, he did not know any other person. His father was not installed by Olumu but at Ile Odofin Aran.
The PW2, Chief Joseph Ayinla Awoniyi adopted his statement on oath as his evidence. Under cross examination by Baiyeshea, SAN, the PW2 testified inter alia thus:
I am an illiterate. I can speak Yoruba very well. I cannot read English or speak unless interpreted to me. I cannot read Yoruba even though, I can speak it. I don’t
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know what is in Exhibit I. Edemo is the head of Imode compound in Omu Aran for the development of Aran. My chieftaincy title united to Aran alone it does not include Omu Aran.. I am interested in the oneness of Omu Aran. Before the purported installation of myself as Edemo 1 was not a chief. My installation has caused confusion that is why I am here. If there is no controversy we will not come to Court. Before an Edemo is properly installed his supposed to be a member of Olomo in council.
The PW2 further stated under cross examination that chief Amos Bamigboye is the head of Aran. According to the PW2:
We have two (2) Obas here in Omu-Aran. The Statement on Oath is an error. I know the 3rd defendant as Odemo of Omu-Aran, Bamigboye as Odofin. I know Essa, I know the Council of Omu-Aran Obas. I am not aware that they wrote a letter saying they regretted appointing me as Edemo before I do not sit in their Council. I am not aware that Chief Odofin Aran was installed by the Late Oba in 1983. It can be so.
Under cross-examination by Raofu Esq; the PW2 identified his signature on Exhibit 1. He said he was appointed as
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Edemo by all the Oloye (Chiefs) of Imode who took him to Odofin, the head of Aran Chiefs. According to the PW2:
Odofin was also appointed by Aran Chiefs. Appointment is done at Aran before they go to the Oba-Olomu. Aran is a separate entity from other side. To reflect the different entity hence the name Omu-Aran. In traditional setting Omu has its own part and Aran has its own setting. If Omu is appointing their own Chiefs, Aran does not interfere and vice versa. The Olomu, the 1st defendant is from Omu Section. The 1st defendant is not from Aran. The 1st defendant has no control over appointment and installation of Chiefs of Aran but we only inform him, when anybody is appointed. Nobody else can change the stand of Aran. The Oba may be informed before but it is for the installation they will present the person to the Oba. After that nobody can change the position of Aran Chiefs.
On the other hand, the DW3, Chief Jubril Afolabi Arowojoye, the Obale of Aran of Omu-Aran identified and adopted the Written Statement on Oath thereof and was duly cross-examined (pages 510, 515 of the Record). He equally identified certain documents which were
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accordingly admitted as Exhibits D46, A46A, A47, A48, A49, and A50 respectively. The DW3 equally identified Exhibits P3, P4, D5 and D11 which he mentioned in his Written Statement on Oath.
Under cross-examination by Baiyeshea (SAN), the DW3 testified that hes 69 years of age, a first leaving certificate holder. According to DW3:
I cannot read in English. I may be able to read in English but I cannot read in English to Yoruba to anybody or for anybody. But if they write in English for me and it is interpreted to me I will sign. Exhibit A49 is written in English. It was written for us I am the interpreter. I am not the interpreter of Exhibit A49 from English to Yoruba language. My signature is on No. 1. We also thumb-printed. The person who read the document to us made errors. Apart from me one other person signed. The people on the document are 10
As copiously alluded to above, it is obvious from the record that the PW1 has stated in his statement on oath that the 1st claimant was his father only for him to admit under cross examination that the 1st claimant was not in fact his biological father. The PW1 stated the head of Ile Alaa
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family was Obala and that he did not know Pa Dosunmu. Yet, the same witness stated under cross examination he knew Obala, the 2nd Defendants father as the head of Alaa family.
Whats more, the PW1 had stated in his statement on oath that the Court held in Exhibit 4 that there were sections in Omu-Aran. The PW1 equally admitted under cross examination, that although he brought Exhibits 2 and 3 to Court, yet he did not know what those exhibits actually contained. He equally admitted that there were 9 (and not 6) king makers in Omu-Aran and that:
I don’t know the history of king making in Omu-Aran. I don’t know their names but I order to go with them to Obas palace. I dont know whether the king makers were 6 in numbers initially.
The PW2, in paragraph 2 of his statement on oath admits the headship ad authority of the 1st Defendant over Omu-Aran, albeit the 1st Defendant has no role to play in the installation of Edemo. Yet, the PW2 retracted that piece of evidence by stating. Under cross examination that-
The statement on oath is an error.
On the other hand, the DW3 (3rd Defendant)
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contrary to paragraph 20 of his statement on oath denied under cross examination of knowing Adeoti as a family unit under Ile Alaa. He claimed that he came from Osi, an entirely different family unit. Yet, he stated that Adeoti family unit has been established in Ile-Alaa.
It was against the background of the foregoing testimonies of the PW1, PW2, and PW3, that the Court below stated at page 544, second paragraph of the record thus:
From the scenario pointed above the evidence of PW1, PW2 and DW3 are not reliable. They cannot approbate and reprobate there are clear fundamental inconsistencies in the evidence of the witnesses which cannot be relied upon.
Against the backdrop of the foregoing far-reaching postulations, I am of the considered view that the finding of the Court below as copiously alluded to above is cogent and duly supported by the pleadings and evidence on record. In the circumstance, the first issue ought to be, and same is hereby resolved against the Appellants.
ISSUE NO.2
The second issue raises the question of whether based on the pleadings and evidence before it, the Court below was not wrong in its decision
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that by native law custom and tradition of Aran: (a) the Appellants did not prove that ascension/succession to the stool of Edemo Aran is by competition and not by rotation and that the 2nd Appellant was validly appointed and installed as Edemo Aran and that his appointment and installation was validly cancelled or nullified. (b) The late Olomu (1st Respondent) proved that ascension/succession to the stool of Edemo Aran is by rotation and not competition, and based on rotation the 1st respondent from Ile Alaa had been validly appointed as Edemo Aran and his appointment sailed through. The second issue is distilled from grounds 5, 6, 9, 10, 11, 12 and 13 of the notice of appeal.
Instructively, by virtue of the pleadings and evidence thereof, the Appellants claimed that Succession (Ascension) to the stool of Edemo Aran is by competition. Contrariwise, by the pleadings and evidence thereof, the Respondents counter claimed that succession to Edemo Aran is by rotation and that by virtue of an established rotational method, its the turn of Ile Alaa family unit of the 1st and 2nd Respondents to produce Edemo Aran.
It is settled, that in an action
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seeking declaratory reliefs, the claimant has an onerous responsibility to prove the case thereof by adducing cogent evidence. Thus, he must rely on the strength of his case and not on the weakness of the defence, except where the evidence of the defendant supports his case. See NETWORK SECURITY LTD VS. DAHIRU (2008) ALL FWLR (Pt. 419) 475 @ 498; ADESANYA VS. OTUEWU (1993) 1 NWLR (Pt. 270) 414.
Invariably, the question of qualification of a person to ascend any traditional throne or stool is subject to the native law, custom and traditions of the people concerned. Customary Law is a question of fact to be proved by calling evidence, except where frequent proof of same has made the customary law to assume legal status of notoriety, there by rendering same judicially noticeable. See OLANREWAJU VS. OYESOMI (2014) 4 SC (Pt. 111) 1 @ 47, 48.
In the instant case, the Appellants heavily relied on paragraph 15 of the claimants further Amended Reply to the 1st and 2nd Defendants Amended statement of Defence (page 49 of the Record) and paragraph 18 of the PW1s and PW2s Additional statements on oath (pages 61 and 83 of the
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Record) regarding their claim that the ascension to the stool of Edemo Aran is by competition. The said paragraph 15 of the consequent further Reply is to the following effect:
15. The claimants further state that to demonstrate that the Edemo chieftaincy stool is not rotational but in competition among the three families entitled to the title in Imode compound, examples of those that have assumed the chieftaincy title in the order of assumption are as follows:
1. Edemo Idowu Arogunjo from Ile Alaa
2. Edemo Ewedunloye Popoola from Ile Arilewofi
3. Edemo Edun Adeyemi from Ile Alaa
4. Edemo Akoda Arilewofi from Ile Arilewofi
5. Edemo Ajamu Awoniyi from Ile Arilewofi
6. Edemo Yusuf Abidoye from Ile Adenigba
7. Edemo Joseph Ayinla Awoniyi (2nd claimant) from Ile Arilewofi.
However, as aptly determined under the foregoing issue 1, the testimonies of both PW1 and PW2, the purported star witnesses of the Appellants, have been established to be so incongruous, inconsistent and discredited to the extent that they were aptly held by the Court below to be utterly unreliable. In particular, the PW1 testified that the head of
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the family of Ile Alaa is Obala and that he did not know Pa Dosunmu. The same PW1 turned around and stated that he knew the defendants father, Obala the head of the family. Contrary to what he stated in paragraph 18 of the statement of oath thereof, the PW1 could not properly identify the 3rd Edemo. Not surprisingly, he admitted under cross examination that he knew nothing about the history of king makers, nor did he know their individual names.
Whats more, the PW1 who stated in his examination in chief that he could identify all the documents tendered in Court (Exhibits 1 , 5 (1) 9), capitulated under cross examination by the 1st and 2nd Defendants counsel to say that he could neither read nor write. That he did not know what Exhibit 1 actually contained. The PW2 stated under cross examination that he could identify all the documents tendered in Court (Exhibit 1 to 5(ix)). However, under cross examination the PW2 stated that he could neither read nor knew what was contained in Exhibit 1.
The PW1 equally stated under cross examination that he could identify his signature in Exhibit 1, the content of which he knew
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nothing about. The signature of the PW2 (Joseph Ayinla Awoniyi) is the last on the second page of Exhibit 1. Curiously, however, it is obvious on the face of Exhibit 1, that the name against which the PW2 signed was not his but that of one Chief Awoniyi Afolagbiye. Undisputably, the PW2 on the face of Exhibit 1 signed against the name of an entirely different person. As aptly posited by the 1st Respondents learned counsel in paragraph 6.19 at page 14 of the brief thereof:
My Lords, PW2, who is Joseph Ayinla Awoniyi signed for another person, i.e. one Chief Awoniyi Afolagboye: Pw2 never said he also known (sic) as chief Awoniyi Afolagboye. Joseph Awoniyi is different from Chief Awoniyi Afolagboye. They cannot be one and the same person.
Thus, this curious anomaly has undoubtedly put the purported genuiness of Exhibit 1 to question. Exhibit 1 was never interpreted to the PW2. Not surprisingly, the PW2 admitted under cross examination to teffect thus:
I am an illiterate I cannot read English or speak unless interpreted to me. I cannot read Yoruba even though I can speak it. I don’t know what is in Exhibit 1.
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Exhibit 1, the purported agreement for rotation to commence in the future is obviously a photocopy, thus a secondary document. No proper foundation was laid by the Appellants prior to the tendering of Exhibit 1. Notwithstanding, the fact that Exhibit 1 was not objected at the material time it was tendered, the said exhibit could not by any stretch of imagination fulfill the pre-condition for its admissibility under the provisions of Sections 87, 89 and 90 of the Evidence Act, 2011. Not surprisingly, the Court below aptly rejected the said exhibit in its findings at page 545 of the record:
On Exhibit 1, PW1, Chief Ayinla Awoniyi clearly signed for another person. He signed for chief Awoniyi Aforlagboye Exhibit 1 was not interpreted to him and he never said the document was read to him before he signed. Under cross examination, he said the document was read to him before he signed. Under cross examination he said he did not know the content of Exhibit 1; there was no proper foundation laid for its admissibility as it is a photocopy.
I have no iota of doubt in my mind, that the above findings of the Court are in tandem with the well settled principle
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regarding admissibility of evidence. In my considered view, Exhibit 1 being a photocopy of the original thereof, is essentially a secondary document. Ironically, no proper foundation has been laid for its admissibility as required by law. Indeed, the law is settled, that photocopies of documents are inadmissible without proper foundation being laid for their admission. Thus where the law declared a document inadmissible, as in the instant case, such document cannot by any stretch of imagination be admitted in evidence even in the absence of an objection or by consent of parties to its admission. See FASINA VS. OGUNKAYODE (2005) ALL FWLR (Pt. 283) 116 @ 131 paragraphs C E; ALAO VS. AKANO (2005) 4 SCNJ 65 @ 74; KUBOR VS. DICKSON (2013) ALL FWLR (676) 393 @ 430 paragraphs E- G.
In the circumstance, it is my considered view, that the second issue ought to be, and same is here by resolved against the Appellants.
ISSUE NO.3
The third issue raises the question of whether having regard to the pleadings and evidence on the histories of Aran and Omu and the native law and custom of Aran regulating the appointment and installation of Edemo
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Aran, the Court below was wrong in holding that Omu Aran have become one town and Aran has accepted the 1st Respondent has the authority and oversight power/functions on Aran and its native law and customs. As such, the Olomu and 1st Respondent did not need to prove their counter claim but are entitled to have it granted since the Appellants failed to prove their case. The third issue is distilled from grounds 7 and 8 of the notice of appeal.
Instructively, the term custom as a noun denotes a practice that by its common adoption and long, unvarying habit has come to have the force of law. See BLACKs LAW DICTIONARY, 7th Edition, 1999 @ 390.
Custom is varied and ubiquitous: 1. CONVENTIONAL CUSTOM: A custom that operates only indirectly vide the medium of agreements, so much so that it is accepted and adopted in individual instances as conventional law between the parties to those agreements. Also termed usage. 2. GENERAL CUSTOM: (a) A custom that prevails throughout a country and constitutes one of the sources of the law of the land; (b) A custom that businesses recognize and follow TRADE USAGE. 3. LEGAL CUSTOM: A custom that operates as
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a binding rule of law, independently of any agreement on the part of those subject to it. Usually shortened to CUSTOM. 4. LOCAL CUSTOM: A custom that prevails in some defined locality only, such as a city or county, and constitutes a source of law for that place only. Also termed PARTICULAR CUSTOM; SPECIAL CUSTOM.
Invariably, the issue of right to a chieftaincy has always been inherent in the nature of customary law and it is fundamentally predicated upon question of fact to be established by preponderance of evidence. See OGUNDARE VS. OGUNLOWO (1997) 6 NWLR (Pt. 509) @ 16 paragraphs B C; GIWA VS. ERINMILOKUN (1961) 1 SCNLR 337; (1961) ALL NLR 294 @ 296; OLOWU VS. OLOWU (1985) 3 NWLR (Pt. 13) 372; (1985) 12 SC 84 @ 133 134.
In the instant case, the finding of the Court below at page 547, last paragraph, forms the very basis of the Appellants grouse in the extant third issue. At the said page 547, the Court below held:
There is no doubt that OMU-ARAN traditionally consist of two sections. Customs and traditions is (sic) however not static. Custom and tradition change from time to time. Olomu of OMU-ARAN is the only Oba
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(King) for the town. It is clear on record that only the OMU people produce the King. Six (6) Kingmakers had been there till the time of 1st defendant when Edemo Aran, Eesa Aran and Odofin Aran from Aran Section were included increasing the number of Kingmakers of Omu-Aran to nine (9). There is no challenge to this evidence by the claimants and the 3rd defendant ever since. In fact, the 3rd defendant admitted that these new chiefs from Aran partook in the installation of the 1st defendant as the Olomu of OMU-ARAN, and he said that was the first time in history. As far as this matter is concerned, no one from Aran challenged their inclusion to the body of Kingmakers for the selection of Olomu of OMU-ARAN.
Most interestingly, the PW2 (Joseph Ayinla Awoniyi) has stated in paragraph 2 of the Statement on Oath thereof (page 17 of the Record) to the effect that himself, the 1st Appellant, the 2nd and 3rd Respondents herein were from Imode Family/Compound of Aran Section/Ward of OMU-ARAN, Irepodun Local Government Area of Kwara State. The PW2 equally stated in the said paragraph 2 of the Statement on Oath thus:
The 3rd defendant is the Obale Aran of
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OMU-ARAN, a chief of Imode family/compound and the senior most chief from Imode family/compound at the time material to this case.
On his part, the DW3 under cross examination stated at page 512 of the record:
The OMU and ARAN have intermarried. There is one Chief Immam. One Idi Praying ground for Muslims. The sister of Olomu is the wife of 2nd claimant. Wherein the process of appointing the present Olomu, the number of Kingmakers were increased to 9. I was in Indonesia then. If an Oba did not die you would not know that number of Kingmakers. I dont know whether there were 6 Kingmakers before the last Oba. When I came back that I learnt Edemo Aran signed, Odofin Chief Amos Bamigboye an Essa Aran signed before the Oba, we installed. It is the 1st time in history a person from Aran is signing as Kingmaker. The progress of OMU-ARAN is done by both sides.
The PW1 initially denied knowledge of the fact that the Kingmakers had been six. He however admitted under cross examination that the number was increased to 9. See pages 492 , 493 of the Record.
The DW1, in the person of Rev. Professor Samuel Oyinloye Kolade Abogunrin, the Essa
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of OMU-ARAN, adopted the Statement of Oath as evidence thereof on 10/01/2016. Exhibits D1, D1A, D2 and D2A were tendered vide the DW1. Those exhibits are the Yoruba and English versions of the Minute Book of Olomu in Council of 03/06/2011 and 10/06/2011, respectively. Exhibits D3, D36 were equally tendered in the course of the testimony of the DW1.
Under cross examination, the DW1 stated that OMU-ARAN comprises of very many people that came to settle. That the name of the town is OMU-ARAN which is under Olomu of OMU-ARAN. Those of Omu came from different places; likewise, those from Aran and Afonja came from different places. According to the DW1:
It is not true that the Omu is different from Aran. People come from different places of different times. They came with chieftaincy titles to OMU-ARAN just as Imode people came with Ideme from Iresha.
The Imode people are in Aran Ward. The head of Aran Ward is Olomu Aran as traditional authorized by government and tradition. No two Obas in OMU-ARAN. I know Odofin Aran who was installed by late Olomu in his place. The Odofin is a Ward head just like myself in the Ward of Paye.
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The recommendation and choice of choice come from Ward, thereafter the approval of Olomu is sought. The Olomu ensures that there is justice and equity. The powers evolve from the family.
The appointment of chiefs in OMU-ARAN is rooted in native law and custom. The nitty-gritty of the customs is performed by the family concerned to some extend (sic) because the family does investigate but some titles are not attained.
The DW1 equally stated under cross examination that chiefs have been in existence in OMU-ARAN from time immemorial. That to some extent, oath of allegiance was done verbally but it is now in writing. He was installed 12 years hence and signed oath of allegiance. The 1st Respondent was installed in 1993. And that Exhibit D7 came after the installation of Olomu.
Cross examined by Jawondo Esq.; the DW1 has this to say:
It is not totally true that in the appointment of traditional chiefs the Omu an Aran are independent. Even after that the Ward head must report to Olomu
The Aran on its own cannot appoint, no traditional rite can take place without approval of the Olomu Olomu can dictate to any family in Aran to do
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the right thing otherwise he cannot dictate to anybody.
It is in evidence, that for the first time Oaths office were subscribed by Olomu and Aran Chiefs before the Olomu of OMU-ARAN by Chiefs of OMU-ARAN. Exhibits D28 and D29 were the Yoruba and English versions of the Oath of office subscribed to by the 2nd Respondent (DW3). The DW3 admitted under cross examination that he pledged alleged allegiance to the Olomu of OMU-ARAN and the OMU-ARAN Kingdom. Whereupon, the court below aptly held:
It means they have accepted OMU-ARAN as the town and the authority of the 1st defendant.”
As aptly postulated by the Respondents learned counsel, the oaths are all embracing, and the fact that the deponents signed them after their appointment means quite a lot. It might be recent, but testifies to organic nature of custom. See PRINCESS BILEWU OYEWUNMI VS. OGUNESAN (1990) 5 SCNJ 34 wherein the Apex Court aptly held:
Customary law is the organic or living law of the indigenous people of Nigeria regulating their lives and transactions. It is organic in that it is not static. It is regulatory in that it controls the lives and transactions
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of the community subject to it. It is said that custom is a mirror of the culture of the people. I would say that customary law goes further and imports justice to the lives of all those subject to it per Obaseki, JSC @ 53.
I am not unmindful of the testimony of the DW3, to the effect that the declarants were deceived into swearing the oaths of allegiance in question. Ironically, however, he never gave evidence regarding the manner in which and by whom they were deceived into swearing the oaths of allegiance to the Olomu. Most particularly, the DW3 alleged, under cross examination that oath was made to trap him, although he admitted having signed same willingly and willfully on his own due to security issue in OMU-ARAN. Yet, the law is trite, that oral evidence cannot be led to add or alter documentary evidence.
In the instant case, its obvious from the record, that the Court below relying on certain documents tendered and duly admitted as evidence, rightly agreed with the 1st Respondent (pages 548 549 of the Record) to hold that Omu and Aran have accepted the oversight function of the Olomu of OMU-ARAN as a development
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in the native law and custom. See Exhibits D3, D4, D6, D7, D8, D9, D10, D11, D33, D34 and D35, respectively.
In the light of the foregoing postulation, the third Issue ought to be, and same is hereby resolved against the Appellants.
Hence having effectively resolved each of the three Issues raised by the Appellants against them, there is no gainsaying that the appeal resultantly fails and it is hereby dismissed by me.
Consequently, the judgment of the High Court of Kwara State holden at OMU-ARAN Judicial Division delivered on September 19, 2016 by T. S. UMAR, J.; in SUIT NO. KWS/OM/4/2014, is hereby affirmed.
Parties shall bear their respective Costs of litigation.
HAMMA AKAWU BARKA, J.C.A.: I have been availed a draft copy of the judgment of my learned brother Ibrahim Mohammed Musa Saulawa JCA, before now.
I agree with the reasoning and conclusion arrived at, I endorse the resolution of the three issues submitted upon and conclusively hold that the appeal is devoid of merit and thereby dismissed by me. I affirm the decision of the lower Court and abide on orders made as to costs.
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BALKISU BELLO ALIYU, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother Ibrahim Mohammed Musa Saulawa, J.C.A just delivered. I agree with the reasoning and the conclusion reached in resolving the 3 issues against the appellant and I adopt same as mine in also dismissing this appeal for lack of merit. I affirm the judgment of Kwara State High Court Omu-Aran Judicial Division delivered on 19th September, 2016 in suit No: Kws/OM/4/2014.
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Appearances:
Ayinla Jawondo Salman, Esq. with him, Saka Rasak Ayodeji, Esq., Abdul-Rasheed Isiaka, Esq. and Abdulrahman Ibrahim, Esq.For Appellant(s)
John Olusola Baiyeshea, SAN with him, Kayode Odetokun, Esq., O. A. Obafemi, Esq. and E.O. Ighorimoto, Esq. for the 1st respondent.
R. Ibrahim, Esq. for the 2nd respondentFor Respondent(s)
>
Appearances
Ayinla Jawondo Salman, Esq. with him, Saka Rasak Ayodeji, Esq., Abdul-Rasheed Isiaka, Esq. and Abdulrahman Ibrahim, Esq.For Appellant
AND
John Olusola Baiyeshea, SAN with him, Kayode Odetokun, Esq., O. A. Obafemi, Esq. and E.O. Ighorimoto, Esq. for the 1st respondent.
R. Ibrahim, Esq. for the 2nd respondentFor Respondent
