CHIEF JIMOH ABOLARIN & ORS V. PRINCE ABIODUN OGUNDELE & ORS
(2011)LCN/4395(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 23rd day of March, 2011
CA/IL/85/2010
RATIO
ADMISSIBILITY OF DOCUMENTARY EVIDENCE: PRINCIPLES GOVERNING THE ADMISSIBILITY OF DOCUMENTARY EVIDENCE IN LINE WITH THE PROVISIONS OF THE EVIDENCE ACT; WHETHER THE COURT CAN ACT ON AN INADMISSIBLE EVIDENCE THAT HAS BEEN ADMITTED
By virtue of the provisions of section 93 of the Evidence Act, documents may be proved either by primary or by secondary evidence. However section 91 (1) (b) of the Evidence Act provides that in any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact, shall on production of the original documents be admissible as evidence of that fact if the following conditions are satisfied. (b) If the maker of the statement is called as a witness in the proceedings. Having regard to the facts and circumstances of this case, in relation to the above mentioned provisions, the maker of Exhibits 3 and 4 was not called as a witness in the proceedings, and as such the Exhibits ought not to have been admitted, talk less of being considered, since it failed to satisfy the requirement of the law. See Haruna v. Moddibbo (2004) 16 NWLR (pt 900) pg 487@ 544-6 para F-D. My brother Nwaeze JCA, held inter alia in Asiniola v. Fatodu (2009) 6 NWLR (pt 1136) 184 at 198 as follows: It is axiomatic that English Language is the lingua franca of the superior courts in Nigeria. Hence, a document written in the dialect of the parties and which is not translated into the English Language, is of no evidential value and should be discountenanced, Odwuola v. Aina (2001) 12 NWLR (pt 741) 1, 22, as it is inadmissible, Dantata v. Dantata (2002) 4 NWLR (pt 756) 144, 162. “For such a document to be admissible, it must be translated into English Language, Rankia v. Maigemu (2003) 6 NWLR (pt 817) 496, 517. The translation must be done either by a competent witness called by the party to the proceedings who need to prove his case or by the official interpreter of the court. This is not court’s responsibility, Ojengbede v. Esan (2001) 18 NWLR (pt 746) 771, 790; Darma v. Batagarawa (2002) 17 NWLR (pt 769) 243, 259, Dumina v. state (1995) NWLR (pt415) %13, 539, 540; see generally C.C. Nweze, Contentious issues and Responses in Contemporary Evidence Law in Nigeria (vol. one) (Enugu: Institute for Development Studies, (University of Nigeria, Enugu Campus, 2003) 340.” From the above, it is clear that failure of the respondent in line with the law would render the evidence inadmissible and same would be expunged. In Shanu v. Afribank Nig. plc. the supreme court held thus: “the principle is a strong one. It is that the court is not permitted in any event to admit and act on legally inadmissible evidence. If such evidence has been admitted, even by overruling an objection to its admission, the court must reject it in its final judgment even if it amounts to overruling itself to do so: Olukade v. Alde (1979) All NLR (pt 1) 56; Ayonwale v. Atanda (1988) 7 NWLR (pt 68) 22; Sahdwani v. Sahdwani Nig. Ltd. (1989) 2 NWLR (pt 101) 72; Agbaje v. Adigun (1983) I NWLR (pt 269) 261. That was what the court below did in essence in this case as understood.” PER SOTONYE DENTON-WEST, J.C.A.
DOCUMENTARY EVIDENCE: WHETHER DOCUMENTS WRITTEN IN THE DIALECT OF THE PARTIES AND NOT TRANSLATED INTO ENGLISH LANGUAGE IS NOT ADMISSIBLE IN COURT
In ASINIOLA V. FATODU (2009) 6 NWLR (Pt 1136)184 at 198, the Court of Appeal (per Nweze JCA) held as follows: “It is axiomatic law that English Language is the lingua franca of the superior courts in Nigeria. Hence, a document written in the dialect of the parties and which is not translated into the English Language is of no evidential value and should be discountenanced “. For such a document to be admissible, it must be translated into English Language, Kankia V Maigemu (2003) 6 NWLR (Pt 817) 496, 517. PER SOTONYE DENTON-WEST, J.C.A.
INADMISSIBLE EVIDENCE: WHETHER WHERE AN INADMISSIBLE EVIDENCE IS ADMITTED AT THE TRIAL, IT MUST BE EXPUNGED ON APPEAL
Honourable Justice Fabiyi of the Court of Appeal, in Jamb v. Nkeiruka (2008) Vol 44 WRN 92@107,lines 15-20, Held that “where inadmissible evidence is admitted at the trial, it must be expunged on appeal, it is immaterial whether such evidence was objected to or not” ,See Owoniyi V. Omotosho (1961) NSCC 179; JAMB V. ORJI (2008) 2 NWLR (Pt 107 2) 552@p. 570, Para B. It is elementary law that where an inadmissible document is admitted by the trial judge, it can be expunged by an appellate court, without ado or qualms. This is because a document which is inadmissible under the Evidence Act cannot be allowed to stay in the record. I think that is what the Court of Appeal did by carefully going into the law on the admissibility of Exhibit I could not have done better. Per Nikki Tobi JSC. See Akinduro v. Alaya (2007)15 NWLR (Pt 1057) @ pg. 338, para C-D. PER SOTONYE DENTON-WEST, J.C.A.
ESTOPPEL BY CONDUCT: WHAT THE PRINCIPLE OF ESTOPPEL BY CONDUCT ENTAILS
The principle of estoppel by conduct was re-stated and applied in Buhari v. INEC (2008) 12 sc (pt 1) I at 60-61, where the Supreme Court held that: “I think issue No. 5 is caught by the principles of estoppel by conduct. I come to this conclusion because the appellant was the first person to invoke the practice directions in the proceedings and he cannot deny it. That was the origin in the English courts of Equity of the doctrine of estoppel in pars, that is, by formal words or conduct. Once a party, either by his words or conduct, has intimated that he consents to an act, as in this case, the use of the practice directions, which has been done and that he will offer no opposition to it, he cannot later question the legality of the act he has so sanctioned to the prejudice of those who have given faith to his word See Akanni v. Makanju (1978) 11 SC 13 at 26; Chief Okpuriwu v. Chief Okpokun (1988) 4 NWLR (pt 90) 554; Ondo State University v. Folayan (1994) 7 NWLR (pt 354) 1.” PER SOTONYE DENTON-WEST, J.C.A.
JUSTICES:
TIJJANI ABDULLAHI (PJ) Justice of The Court of Appeal of Nigeria
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
Between
1. CHIEF JIMOH ABOLARIN (Baale of Omido)
2. CHIEF SIMON ABIFARIN (Odogun of Omido)
3. CHIEF ZEPHANIAH OGUNSINA (Edemo of Omido)
4. CHIEF JULIUS TAIWO (Odofin of Omido)
5. CHIEF WILLIAM OLOGUNDE (Elekan of Omido)
6. PRINCE GBOYEGA ADEYEMI (for himself and as Representing Eniayewu Lineage of Amuyunbole Royal House, Omido) Appellant(s)
AND
PRINCE ABIODUN OGUNDELE (for himself and other members of Omodoba Aroje Ijadekun of Awosilo Lineages of Amuyumbole Royal House, Omido) Respondent(s)
SOTONYE DENTON-WEST, J.C.A. (Delivering the Leading Judgment): Once more it seems chieftaincy tussle is a constant factor that causes unrest amongst our kindred within the family lineage. This of course was the crux of this appeal which emanates from the Omu-Aran Division of the High Court of Kwara state, coram M.A. Gafar J, where the respondent was the claimant, whilst the appellants were the defendants at the lower court. The respondents sought the following reliefs against the appellants thus:
1. Declaration that the lineages of Omotobi Aroge Ijodekun and Awosilo, being direct descendants of Amunyunbole, the founder of Omido, are entitled to present/produce Oba for Omido.
2. Injunction, restraining the 6th Defendant and the lineage of Eniayewu from presenting a candidate for the stool of Oba of Omido to the 1st and 5th Defendants.
3. Injunction restraining the 1st – 5th Defendants from accepting, for consideration/installation/appointment, any candidate from Enioyewu lineage of Amunyunbole’s Ruling House, Omido.
4. Order nullifying the presentation, appointment/installation of the 6th Defendant by Enioyewu’s lineage and 1st – 5th Defendants or of any other person from Eniayewu’s lineage of Amunyunbole’s Ruling House, as Oba of Omido/or Aropa of Eka Apa or by whatever other description.
5. Order directing the 1st – 5th Defendants to limit their choice of Oba of Omido to the claimant and the other to candidates earlier presented to them, the three being from Omotobi Aroge Ijadekun lineage of Amunyunbole Royal/Ruling House.
The lower court granted all the reliefs except relief 5 in his judgment delivered on Wednesday, the 28th day of July, 2010.
The following are the reliefs granted
1. A declaration that the 1st – 5th defendants, acted contrary to the established procedure of Eku-Apo law applicable in Omido by directing the Amunyunbole ruling house to nominate three candidates.
2. An order nullifying the purported nomination, selection or installation of the 6th defendant as Oba of Omido.
3. An order directing the 1st – 5th defendants to re-commence the process by calling on Amunyunbole ruling house to nominate a candidate for the stool of Oba of Omido.
4. An order of injunction restraining the 1st – 5th defendants from accepting, selecting or parading the 6th defendant as the Oba of Omido and the 6th defendant from so parading himself,
The appellants are dissatisfied; hence this appeals on 25th day of January, 2011.
The appellants represented by Toyin Oladipo Esq. adopted their Appellants’ brief of argument dated and filed on 28/10/2010. The appellants similarly adopted the reply brief dated 29/11/2010 and filed 30/11/2010, the counsel prayed the court to grant the appellants, appeal.
The respondent’s counsel O.S. Ogidiolu Esq. adopted the respondents brief dated and filed on 22/11/2010 and prayed this court to dismiss the appeal and uphold the judgment of the lower court. He further argued that he need not file a cross-appeal in respect of Exhibit 13 and he further cited two additional authorities i.e. contract Resources (Nig.) Ltd. & 10r v. Dorunic Wende (1999) 5 NWLR (Pt 544) and Chief Emmanuel Ogunbadejo v. Otunba A.C.A Owoyemi (1993) 1 NWLR (pt 271) 517 at 534.
The appellants distilled five issues for the determination of this appeal thus:
1. Was the trial judge right when he held that the Alapa of Omido is not recognized by the Governor of Kwara state as defined in the chiefs (Appointment and Deposition) Law and the Respondent was therefore not required to pay the N100, 000.00 deposits for the court to have jurisdiction?
2. Whether the lower court ought to have disregarded exhibits 3 and 4 which were not written in English language and whose translator did not testify.
3. Whether the lower court was right to disbelieve DW1’s evidence that the protest of the Amunyunbole family was late and whether the respondent having fully participated in the selection process and lost is not estopped from or has not waived his right to complain against the procedure adopted by the Kingmakers of Omido.
4. Whether the respondent proved the existence of Omotobi Aroge Ijadekun lineage.
5. Whether the respondent proved the custom of Omido on the selection of Aropo and whether it was a breach of that custom for the Kingmakers to ask for three (3) names or nominations.
The respondent adopted intoto, issues 1, 3, 4 and 5 as formulated in the Appellants’ brief of argument and recoursed issue 2 thus:
“Whether the lower court ought to have expunged Exhibits 3 and 4 from the record and whether failure to do so has occasioned a miscarriage of justice.”
In determining this appeal all issues will be resolved seriatim.
ISSUE ONE
Was the trial judge right when he held that the Alapa of Omido is not recognized by the Governor of Kwara State as defined in the chiefs (Appointment and Deposition) Law and the Respondent was therefore not required to pay the N100, 000.00 deposits for the court to have jurisdiction.
The learned counsel to the appellant submitted that the lower court erred in overruling the objection of the appellants on the issue. He argued that the error occurred because the lower court interpreted “recognize” used in the definition of “Chief’ to mean “granted”. He submitted that in the chiefs (Appointment and Deposition) Law of Kwara State, a person or a stool is a chief once he is recognized by the Governor as such, he may be graded or ungraded because grading is not a requirement of the definition of even section 15 (1) of the law.
The learned counsel also submitted that the chiefs (Appointment and Deposition) Law of Kwara State applies to both graded and ungraded chiefs.
That the reason for making the law and the policy behind it is to reduce the high incidence of chieftaincy cases in the state. He further submitted that chieftaincy cases do not occur only within the ranks of the graded chiefs, and if the law maker has made the chiefs law applicable to all categories of chieftaincy disputes, the courts have no reason to limit its application to graded chiefs only as the lower court has done in its judgment, and by so doing unwillingly frustrating the policy behind its enactment.
The learned counsel therefore, urged the court to set aside the judgment of the lower court on this issue and to hold that section 15 of the chief (Appointment and Deposition) Law applies to the Alapa of Omido Chieftaincy, and that by failing to make the non-refundable deposit of N100, 000.00, the lower court was deprived of jurisdiction to adjudicate, and that the lower court ought to have declined jurisdiction and struck out the suit.
He urged the court to so hold and answer issue one in the negative.
Respondent on his own submitted that, it cannot be seriously contended that the Governor has by Exhibit 13 “recognized’, or “created” the stool of Alapa of Omido. That no letter of such recognition was tendered, and it is not a matter of inference.
He further submitted that it cannot be seriously argued that the stool was created by legislation or any administrative act of a competent authority pursuant to section 4 of the law, and that the lower court was right to have overruled the objection of the appellants on this issue.
He also submitted that, the 6th appellant admitted that he was not graded as a chief, and it has been decided that a village head is not a chief within the purview of the Chief (Appointment and Deposition) Law of Kwara State, unless he has been appointed a graded chief by the Governor of Kwara State under section 5 of the said law, he relied on Olawuyi v. Aroyehun (1991) 5 NWLR part 194 page 652 at 672 per Bello CJN (as he then was).
The learned counsel submitted that a village head (like Alapa of Omido) is not a chief as defined in section 2 of the Kwara State Edict No. 1 of 1983 (which metamorphosed as it were into the present day Chief (Appointment and Deposition) Law Cap C9 Laws of Kwara State and to challenge the appointment of a village head does not require the deposit of Ten Thousand Naira (which has now been increased to One Hundred Thousand Naira, in the new law) as a precondition. He relied on Akanda v. Ayinla (1997) 11 NWLR (pt 530) p 707 at 713 G-H.
He submitted that a calm examination of the last two lines of exhibit 13 would reveal that the appellants’ argument on this point was based on a faulty premise. That the entire contents of Exhibit 13 is neither final nor conclusive, it is inchoate. He urged the court to answer issue I in the affirmative.
The learned Appellant counsel in his Reply Brief submitted that respondent counsel’s argument that Exhibit 13 is not a final but inchoate document, and that it is only an expression of intention is in violent conflict with the finding of the lower court in paragraph 16 of its judgment.
He submitted that if the respondent was dissatisfied with that finding of the lower court he ought to have filed a cross appeal. He relied on Opara v. SchlumBerger (2006) 7 NWLR (pt III) 56 at 69 – 70, Alakijo v. Abdullahi (1998) 6 NWLR (pt 552) 1 at 4 and Ndiwe v. Okocha (1992) 7 NTLR (Pt 252) 129 at 139 – 140.
He therefore urged the court to disregard the respondent’s counsel argument about any inchoate exhibit and all his other submissions founded or based on it as same are misconceived and incompetent.
RESOLUTION OF ISSUE ONE
This issue goes to the root of the case as the appellants are contending that a pre-action step of payment of N100,000.00 non refundable sum was not deposited as provided for by the chief (Appointment and Deposition) Law of Kwara state (2006) by the respondent. For ease of reference section 15 of the chief (Appointment and Deposition) Law of Kwara state (2006) shall be reproduced.
15(1) where the governor or the appointing authority has approved the appointment of a person as a chief, any person who intends to challenge the validity of such appointment shall first deposit with the state Accountant General a non refundable sum of one Hundred Thousand Naira only.
Section 3 defines appointing authority as “shall include the traditional council having jurisdiction in the area concerned.”
Under the interpretation section “appointing authority” means any person or government or as may be vested with the right either by statute, practice, native law or custom to make appointment to any of the positions mentioned in section 16 of this law.
The interpretation section went further to define who a “Chief” or “Head Chief” is. It defines it as any person for the time being recognized by the Governor as a Chief or Head Chief and includes an Emir.
From the above definitions, it is crystal clear that Alapa of Omido is the Head Chief of Omido but the poser is, is the Alapa of Omido recognized by the Governor of Kwara state to warrant suing the stool to pay the sum of N100, 000.00 into the coffers of government. But is the chieftaincy recognized by the governor.
The erudite jurist Bello CJN, (as he then was), in the case of Olowuyi v. Aroyehun (1991) 7 sc (pt 1) pg 1 held inter alia in a similar case that emanated from Kwara State thus:
“As the law now exists, a village head is not a “chief” within the purview of Chief (Appointment and Deposition) Law of Kwara state, unless he has been appointed a graded chief by the Governor of Kwara state, under the section 3 and 5 of the said law.”
The above quotation clearly shows that a chief, head chief, village head, Emir or any traditional chief that is not graded by the Governor of Kwara State is not recognized. With due respect to the learned counsel representing the appellant, in as much as I will agree with him that his argument is fortified and beautiful compared to that of the respondent on this issue, the position of the law as interpreted in the above mentioned case is that a village head that is not graded is not recognized by the Governor.
Exhibit 13 referred to by the appellant is inchoate on whether the stool of Omido is graded or not. Obviously, the stool of Alapa of Omido is not a chief within the meaning of the chief (Appointment and Deposition) Law of Kwara state, and consequently the respondent has no duty to pay the N100, 000.00 non refundable deposits into the coffers of the government of Kwara state.
The stool of Alapa of Omido, although a recognized leader in his own community, is however not a chief under the chief (Appointment and Deposition) Law of Kwara State.
In essence, issue 1 fails and is resolved against the Alapa of Omido is not recognized by the Governor of Kwara State as defined in the chief (Appointment and Deposition) Law of Kwara State. Since the stool of Alapa of Omido was not graded as contained in section 5 0f the chief (Appointment and Deposition) Law of Kwara State.
ISSUE TWO
Whether the lower court ought to have disregarded exhibits 3 and 4 which were not written in English language and whose translator did not testify. The learned counsel to the appellant submitted that Exhibits 3 and 4 which are letters written to Omido Community by the Amunyunbole ruling family, were written in Yoruba Language and were purportedly translated into English Language by one Barrister S.O. Agboola Esq., who was not called as a witness. He further submitted that, the appellants, in their final written address before the lower court, submitted that as the said Barrister S.O. Agbooh did noy testify, the exhibits ought to be disregarded on ground of inadmissibility. That the lower court however did not deem it fit to specifically consider this submission in its judgment’ but it is based on these exhibits that the lower court held that the Amunyunbole ruling family protested against the procedure adopted by the Kingmakers in the selection of the 6th Appellant as the Alapa of Omido. He also submitted that the lower court erred in its reliance on the documents in the face of failure of the translator being called as a witness. That the translated versions of the exhibits remained nothing but hearsay and inadmissible, relied on the authority of Asiniola v. Fatodu (2009) 6 NWLR (pt 1136) 184 at 198.
The learned counsel submitted that the exhibits are caught by section 91 of the Evidence Act because the documents are such that direct oral evidence could have been given, but contrary to the provision of sub section (1) (a), their makers were not called to give evidence and no foundation was laid at the lower court to bring them within the recognized exceptions stipulated in sub section 2(a) and 2(b) of section 91 and that failure to bring the document within the exceptions make them inadmissible, he referred to Shell v. Otoko (1990) 6 NWLR (pt 159) 693 at 713.
He urged the court to so hold and expunge the documents from the evidence. He relied on Owor v. Christopher (2010) All FWLR (pt 511) 962 at 985 and Shanu v. AfriBank Nig. Plc. (2003) All FWLR (pt 136) 123 at 853.
He also submitted that Exhibits 3 and, 4 are documents made by persons interested (the Amuyunbole ruling family) at a time when proceedings were pending or anticipated involving a dispute as to facts stated in the documents. The learned Appellant counsel submitted that the lower court should have rejected Exhibits 3 and 4 in his final judgment) and urged this court to do so and answer issue 2 in the affirmative. The learned Respondent counsel on the other hand, submitted with due respect, that apart from Exhibits 3 and 4, other evidence abound to support the finding of the lower court that Amuyunbole ruling family protested the procedure leading to the selection of the 6th appellant.
He further submitted that DW2 under cross-examination at page 715 of the record admitted that “the Amuyunbole ruling house protested when the kingmakers told them to nominate three candidates instead of one, but by the time we got their protest we had finished our assignment.”
He submitted that this evidence is relevant, direct and admissible. He relied on Haruna v. K.S.H.A (2001) 7 NWLR (pt 1194) p 604 at 644 – 647, where the Court of Appeal quoted with approval the pronouncement of Niki Tobi, JSC in Gaji v. Paye (2003) 1 NWLR (pt 823) p. SB3 at p 611.
He also submitted that from the pleading and evidence available, the kingmakers’ request to the Amunyunbole family for three nominees was not in written form, and it follows that the protest against the kingmakers, request for three nominees instead of one, need not be in a written form and that in anyway cannot diminish its status as a protest.
He submitted that, even if the trial court had expunged Exhibits 3 and 4 from the record, that could not have in anyway altered the decision of that court, bearing in mind the fact that Exhibits 3 and 4 merely complained about the requirement for undertaking, which requirement the trial court later held in his judgment not to have violated any custom. He referred to page 729 of the record, line 5-7.
He also submitted that, by that decision, exhibits 3 and 4 had not more useful purpose to serve, and urged the court to so hold.
He also submitted that since the 1st – 5th Appellants acted pursuant to Exhibit 13 which is neither conclusive nor final, but a mere expression of an intention as opposed to a decision of a directive, it could not have been the basis for the exercise of the powers of the kingmakers to request for nomination of candidates for the stool of Alapa of Omido. That the request for nomination of candidates was made by the 1st – 5th appellants on a very faulty premise, and therefore does not matter whether there was a protest or not, since the foundation for the exercise of that power has been shown to be non-existent. The learned counsel also submitted that, the pleading and evidence of the appellants quoted above taken together with Exhibit 19 is rather incredible, as the 1st – 5th Appellants’ request for the nomination of candidates was made in February 2005, yet, they claimed in their pleading and evidence as well as in Exhibit 19 that it was done pursuant to exhibit 13 which is dated 2007.
He further submitted that respondent’s protest through exhibits 3 and 4 or lack of it could not have empowered the 1st to 5th Appellants to act alone at a time when a joint committee of kingmakers from both communities should have acted, that a genuine protest can only be based on the existence of valid process. He therefore urged the court to hold that the non-exclusion of Exhibits 3 and 4 from the record of the lower court has not occasioned any miscarriage of justice.
He submitted that section 91 subsection (2) of the Evidence Act permits the trial judge to nevertheless admit such a statement as is mentioned in subsection (1) notwithstanding that the maker of the statement is available but is not called as a witness.
He submitted that this is especially so bearing the fact in mind that the appellants also pleaded Exhibits 3 and 4 and did not raise any objection to their admissibility, he referred to page 709 of the record.
He further submitted that, at pages 11 and 12 of the Appellants’ Brief of Argument, it was submitted that: the respondent cannot be said to be the maker of Exhibits 3 and 4 and that it was made by Amunyunbole Ruling Family, who is not a part to this case. That to that extent, sub-section (3) to section 91 of the Evidence Act is not applicable.
The learned counsel also submitted that concerning subsection (4) to section 91 of the Evidence Act, Exhibits 3 and 4 were neither signed nor initialed by the respondent.
He submitted that it is erroneous to allege that Exhibits 3 and 4 dated 2005 and 2006 respectively, are documents made at a time when proceedings were pending or anticipated, as it is the respondent and not the Amunyunbole Ruling House that filed this suit in year 2008.
He therefore urged the court to answer issue 2 in the negative.
RESOLUTION OF ISSUE TWO
Exhibits 3 and 4 are letters written to Omido Community by the Amunyunbole ruling house which are dated 17/11/2005 and 5/8/2006 respectively were written in Yoruba Language and which translated to English Language were by Barrister S.O. Agboola, who was not called as a witness.
English is the language of the court, and any document not in the language of the court will not be admissible even if it is admitted without objection, it ought to be expunged.
By virtue of the provisions of section 93 of the Evidence Act, documents may be proved either by primary or by secondary evidence. However section 91 (1) (b) of the Evidence Act provides that in any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact, shall on production of the original documents be admissible as evidence of that fact if the following conditions are satisfied.
(b) If the maker of the statement is called as a witness in the proceedings.
Having regard to the facts and circumstances of this case, in relation to the above mentioned provisions, the maker of Exhibits 3 and 4 was not called as a witness in the proceedings, and as such the Exhibits ought not to have been admitted, talk less of being considered, since it failed to satisfy the requirement of the law. See Haruna v. Moddibbo (2004) 16 NWLR (pt 900) pg 487@ 544-6 para F-D.
My brother Nwaeze JCA, held inter alia in Asiniola v. Fatodu (2009) 6 NWLR (pt 1136) 184 at l98 as follows:
It is axiomatic that English Language is the lingua franca of the superior courts in Nigeria. Hence, a document written in the dialect of the parties and which is not translated into the English Language, is of no evidential value and should be discountenanced, Odwuola v. Aina (2001) 12 NWLR (pt 741) 1, 22, as it is inadmissible, Dantata v. Dantata (2002) 4 NWLR (pt 756) 144, 162.
“For such a document to be admissible, it must be translated into English Language, Runkia v. Maigemu (2003) 6 NWLR (pt 817) 496, 517. The translation must be done either by a competent witness called by the party to the proceedings who need to prove his case or by the official interpreter of the court. This is not court’s responsibility, Ojengbede v. Esan (2001) 18 NWLR (pt 746) 771, 790; Dorma v. Batagarawa (2002) 17 NWLR (pt 769) 243, 259, Dumina v. state (1995) NWLR (pt415) %13, 539, 540; see generally C.C. Nweze, Contentious issues and Responses in Contemporary Evidence Law in Nigeria (vol. one) (Enugu: Institute for Development Studies, (University of Nigeria, Enugu Campus, 2003) 340.”
From the above, it is clear that failure of the respondent in line with the law would render the evidence inadmissible and same would be expunged. In Shanu v. Afribank Nig. plc. the supreme court held thus:
“the principle is a strong one. It is that the court is not permitted in any event to admit and act on legally inadmissible evidence. If such evidence has been admitted, even by overruling an objection to its admission, the court must reject it in its final judgment even if it amounts to overruling itself to do so:
Olukade v. Alde (1979) All NLR (pt 1) 56; Ayonwale v. Atanda (1988) 7 NWLR (pt 68) 22; Sahdwani v. Sahdwani Nig. Ltd. (1989) 2 NWLR (pt 101) 72; Agbaje v. Adigun (1983) I NWLR (pt 269) 261. That was what the court below did in essence in this case as understood.”
In view of the fact that the interpreter of Exhibits 3 and 4 was not called and in line with the judicial and statutory authority stated above, Exhibits 3 and 4 ought to be expunged from the lower court’s record and is hereby expunged. On whether it causes miscarriage of justice, the simple answer is that the court cannot act on what is not before it, and you cannot put something on nothing, it would not stand. Any evidence obtained via inadmissible evidence goes to nought.
ISSUE THREE
Whether the lower court was right to disbelieve DW1’s evidence that the protest of the Amunyunbole family was late and whether the respondent having fully participated in the selection process and lost, is not estopped from or has not waived his right to complaint against the procedure adopted by the Kingmakers of Omido.
The learned Appellant counsel submitted that if issue 2 is decided in the affirmative by the court, then issue 3 must be answered in the affirmative because Exhibits 3 and 4 are the plank of the lower court’s decision that the respondent was not estopped from complaining against the procedure adopted by the kingmakers in the selection of the 6th appellant as the Alapa of Omido.
He further submitted that, if however the court decides issue 2 in the negative, Exhibit 3 does not complain against the request of the kingmakers that three candidates be nominated by the Amuyunbole Royal family, that there is nothing in this Exhibit on the number of candidates required to be nominated, and the complaints therein are on the requirement for undertaking by the candidates and a booklet titled “Babatunde, the new in the old.” He urged the court to note that in the judgment, the learned trial judge held that there is nothing wrong with the undertakings which were extracted from the candidates. He referred to page 729 of the record.
He submitted that Exhibit 4 was written several months after nomination closed and the kingmaker started their own work in the selection process. That exhibit 4 cannot be referred to as a protest letter on the issue of number of candidates to be nominated by the royal family.
He also submitted that the learned trial judge failed to read the exhibits before arriving at his decision that the respondent was not estopped from complaining of the procedure adopted by the kingmakers.
The learned counsel submitted that, in the first place, the right to select candidate does not inhere in the ruling family. That the ruling family can only nominate candidates, it is the kingmakers who select and they can reject a candidate nominated by the royal family.
The learned counsel submitted that by virtue of Exhibit 16(c) which is the undertaking of the respondent, the respondent having his full senses, with full knowledge of the procedure and the possibility of failure, made the undertaking, is deemed to have waived his right to complain against any imagined or perceived irregularity or breach of tradition. He urged this honourable court to so hold.
The learned Respondent counsel on the other hand submitted that, the trial court was perfectly right to have held that the right to select candidate inheres in the ruling house and not the kingmakers as erroneously submitted by the appellants at page 16 of their Brief of Argument, he referred to Exhibit 2 at its page 13 reproduced on page 531 of the record.
The learned counsel also submitted that looking at the record at page 715, it is clear beyond doubt that the learned trial judge had DW2 (the head of Omido Kingmakers and the 1st Appellant herein) in mind and not DWI who not being a kingmaker gave no such evidence, and craved the indulgence of the court to follow the record by referring to the witness in issue as DW2.
He further submitted, that kingmakers only give final approval to the candidate, not candidates, presented by the ruling house. That it is inconceivable that kingmakers would attempt to “select” when there is only one candidate presented to them by the ruling house. He referred to Exhibit 7 at page 8 in paragraph xiii title “THE KINGMAKERS” reproduced at page 565 of the record proceeding.
He also submitted, that in response to respondents’ averment in his pleading and oral testimony to the effect that Agbonda presented only Oba Samuel Ademola Adedoyin Ewedunmoye II to the kingmakers, the 1st appellant (DW2) merely said that they could not comment on that because they are not from Agbonda.
He referred to paragraph 19 of the 1st appellant (DW2’s) written statement on Oath at page 125 of the record.
He submitted that appellants on the other hand were not able to refer to a single instance, in the history of Eku-Apa Land when a ruling house presented more than one candidate to the kingmakers, that the trial judge was therefore right to have held that there was no evidence of contrary custom. He submitted that the evidence of Dw2 is clearly contradictory, when in paragraph 98 of the Amendment Statement of Defence, as well as in his 2nd written statement on oath at page 624 of the record, this same Dw2 turned round to say that the selection of Prince Adegboyega Adeyemi (the 6th appellant) was made on August 2, 2007.
He also submitted that if as at 2006, they had “already taken action” or had finished their “assignment” which ever one they prefer one wonders what other “action” or “assignment” they were left with as at 2007.
On this core also, he urged the court to hold that the trial judge was right to have disbelieved Dw2’s evidence that the protest of Amunyunbole family was late.
The learned counsel further submitted that as at 2005, nomination and presentation of candidate ought to be made by the ruling house to the joint committee of kingmakers from Agbonda and Omido that since the Omido kingmakers lacked the powers to act alone as at 2005, it follows that the entire process was null and void abinitio.
The learned counsel also contended that Appellants’ submission at page 18 of Appellants’ Brief of Argument that the DWI (Dw2?) never said that they had completed their assignment and that the lower court misquoted Dw1 and misdirected itself is also unwarranted. That, at page 715 under cross examination, DW2 clearly said “…we had finished our assignment. “That apart from that, to say that “…the kingmakers had already taken action.” suggest that they had finished their assignment.
On Exhibit 16(c); the purported undertaking of the respondent, the learned counsel urged the court to note that DW2 admitted under cross examination at page 716 of the record, that the requirement of the kingmakers for the candidates to sign undertaking was unprecedented.
He submitted that Omido kingmakers were not competent to extract the undertaking, since as at 2005 or prior to the date of Exhibit 13, Omido Kingmakers acted alone without the participation of Agbonda Kingmakers.
He further submitted, that the undertaking (exhibit 16c) has not and cannot confer powers on the Omido Kingmakers to act all alone prior to the date of Exhibit 13.
He urged the court to so hold, and to answer issue 3 in the affirmative.
The learned Appellant’s counsel submitted in his reply brief that the respondent’s counsel cannot attack or contradict the finding of the lower court that Exhibits 3 and 4 contained protests against the call for three names, except by a cross appeal, he therefore urged the court to ignore or discountenance the arguments of the respondent under this issue at pages 7-9 of his brief, and under this issue at page 13 of his brief.
He also submitted that the issue raised by respondent’s counsel in the second paragraph of pages 13 and 21 of his brief that the kingmakers of Omido had no power to call for nominations from the Amunyunbole Ruling House as at February 2005 is not an issue considered by the lower court in coming to his decision, and that it is not an issue in this appeal, as the respondent has not filed a respondents notice urging this court to confirm the judgment on other grounds.
He relied on order 9 Rule 2 of the court of Appeal Rules; and the cases of American Cynamide v. Italy pharmacy Ltd. (1991) 2 NWLR Pt 121) 15 at 31; LCC vs. Ajayi (1970) 1 All NLR 2911 at 294 and Sunmonu v. Ashot E. (1975) I NWLR 16.
He therefore urged the court to disregard the argument as the statement of claim and the evidence of the Respondent did not say the protest was made in any other manner than by letters (Exhibit 3 and 4), he referred to paragraphs 2 (h) and (j) of the respondent’s written statement on oath. He also submitted that counsel cannot introduce evidence on his written address or brief. He referred to Amaechi v. Obinna (2009) All FWLR @t a9) 1163 at 1182, and urged the court to reject and discountenance the submissions of respondent’s counsel in pages 11 and 12 of his brief.
The learned counsel submitted that the submission of the respondent’s counsel at page 23 of his brief that the kingmakers had no power to extract the undertaking flies in the face of the finding of the lower court that there was nothing wrong with the undertakings.
He also submitted that as the respondent has filed neither a cross appeal or a respondent’s notice, he cannot now contend anything contrary to the finding of the lower court. He therefore urged the court to disregard the respondent’s arguments at page 23 under issue 3.
He further submitted that the respondent is deliberately trying to mislead the court about the situation in the two (2) communities, i.e. Omido and Agbonda at the time the stool of Omido was being contested.
Relying on paragraphs 42 and 43 of the amended statement of defence, the learned counsel submitted that it is clear that at the time the Amunyunbole Ruling family of Omido presented their four (4) candidates for the throne of Alapa of omido, Agbonda community had already installed its own Alapa and the respondent in his amended reply to defendant’s amended statement of defence did not controvert or deny this position.
He therefore submitted that the argument that the kingmakers of Agbonda ought to have participated in the selection process of Alapa of Omido as at 2005 is misconceived, and he urged the court to so hold.
RESOLUTION OF ISSUE THREE
Based on the resolution of issue 2, that Exhibits 3 and 4 be expunged from the record of the court. It is the decision of this court that the lower court erred by relying on the expunged exhibits in arriving at its conclusion that the protest of the Amunyunbole family was not late
In ASINIOLA V. FATODU (2009) 6 NWLR (Pt 1136)184 at 198, the Court of Appeal (per Nweze JCA) held as follows:
“It is axiomatic law that English Language is the lingua franca of the superior courts in Nigeria. Hence, a document written in the dialect of the parties and which is not translated into the English Language is of no evidential value and should be discountenanced “.
For such a document to be admissible, it must be translated into English Language, Kankia V Maigemu (2003) 6 NWLR (Pt 817) 496, 517.
Honourable Justice Fabiyi of the Court of Appeal, in Jamb v. Nkeiruka (2008) Vol 44 WRN 92@107,lines 15-20, Held that “where inadmissible evidence is admitted at the trial, it must be expunged on appeal, it is immaterial whether such evidence was objected to or not” ,See Owoniyi V. Omotosho (1961) NSCC 179; JAMB V. ORJI (2008) 2 NWLR (Pt 107 2) 552@p. 570, Para B.
It is elementary law that where an inadmissible document is admitted by the trial judge, it can be expunged by an appellate court, without ado or qualms. This is because a document which is inadmissible under the Evidence Act cannot be allowed to stay in the record. I think that is what the Court of Appeal did by carefully going into the law on the admissibility of Exhibit I could not have done better. Per Nikki Tobi JSC. See Akinduro v. Alaya (2007)15 NWLR (Pt 1057) @ pg. 338, para C-D.
Also, the Respondent having fully participated in the selection process and lost is estopped from and has waived his right to complain against the procedure adopted by the kingmakers of Omido.
The respondent took a chance like gambler until the selection process was over, and it did not favour their candidate, then they decided to cry “wolf”. Quite clearly if the respondent had been selected as the Alapa, they would not have filed this action.
It is unconscionable to set aside the selection and appointment of the 6th Appellant on the ground of request for more than one candidate by the kingmakers. The respondent and his family members condoned and acquiesced to the procedure adopted.
The principle of estoppel by conduct was re-stated and applied in Buhari v. INEC (2008) 12 sc (pt 1) I at 60-61, where the Supreme Court held that:
“I think issue No. 5 is caught by the principles of estoppel by conduct. I come to this conclusion because the appellant was the first person to invoke the practice directions in the proceedings and he cannot deny it. That was the origin in the English courts of Equity of the doctrine of estoppel in pars, that is, by formal words or conduct. Once a party, either by his words or conduct, has intimated that he consents to an act, as in this case, the use of the practice directions, which has been done and that he will offer no opposition to it, he cannot later question the legality of the act he has so sanctioned to the prejudice of those who have given faith to his word See Akanni v. Makanju (1978) 1l SC 13 at 26; Chief Okpuriwu v. Chief Okpokun (1988) 4 NWLR (pt 90) 554; Ondo State University v. Folayan (1994) 7 NWLR (pt 354) 1.”
ISSUE FOUR
Whether the respondent proved the existence of Omotobi Aroge Ijadekun lineage.
The learned Appellant’s counsel submitted that the finding of the trial judge that it is only the claimant that led evidence concerning Aroge Ijadekun lineage is not correct. That, it is a fact that the Appellants’ witnesses all denied the existence of this Omotobi Aroge Ijadekun. He referred to Exhibits 2, 7 and 14.
He further submitted that there is overwhelming evidence of challenge from the appellants of the Aroge Ijadekun boogey propounded by the respondent. He urged the court to set aside the finding of the lower court on this issue, that it cannot be supported because the learned trial judge failed to assess or evaluate the available evidence on both sides. That if he had done so, he would not have fallen into the grave error of holding that the only evidence given on the issue was from the respondent and that it was not “really challenged.”
He also submitted that the name Omotobi Aroge does not appear even once in any of the other 13 exhibits including books of history and judgments tendered before the lower court, and even the respondent who printed Exhibit 6 and reflected the name of his father as Aroge does not bear that name.
He urged the court to answer issue 4 in the negative.
The learned respondent counsel on the other hand, submitted that in paragraphs 8l and 96 of the Amendment Statement of Defence and paragraph 35 of the DW 2’s  1st written statement on oath at page 128 of the record, the Appellants denied the existence of anyone called Omotobi Aroge Ijadekun. That curiously however, under cross examination by respondents counsel and after being confronted with Exhibit 6, reproduced at page 655 of the record, DWI admitted that the card is for the outing of Pa Ogundele Aroge and Madam Oyewumi. He referred to page 715 of the record.
He also submitted that, DW3 under cross examination at page 717 of the record also admitted thus: “I was at the outing ceremony of Pa. Ogundele Aroge.”
That, Pa Ogundele Aroge was the father of the respondent.
He therefore submitted that it is most incredible for the Appellants to now claim that there was no one with the name of Aroge that ever existed. The learned counsel urged the court to note that Exhibit 6 is dated 1997 and is titled “The family of Aroge Ijadekun” (see page 655 of the record) and could not have been made in contemplation of a 2005 event, a period of about 8 years.
He further urged the court to note that only the respondent led credible evidence in this regard, and the lower court was therefore right to have treated respondents’ evidence as unchallenged.
He finally urged the court to answer issue 4 in the affirmative.
RESOLUTION OF ISSUE FOUR
In his amended statement of claim filed on 30/1/2008 (pages 585 – 590 of the record), the respondent at paragraphs 2 (g), 4, 5, 6, 7, 9, 10, 12 and 13 averred to facts in support of his said claim.
The appellants however disagreed vehemently with the story on Omotobi Aroge Ijadekun in their amended statement of defence filed on 4/4/2010 (pages 635- 647 of the record): paragraphs 6, 7, 8, 9, 13, 14, 15, 16, 17, 21, 22, 45, 52, 56, 57, 58, 60, 67, 79, 80, 81, 82, 95 and 96 thereof.
Curiously however, under cross examination by respondent’s counsel and after being confronted with Exhibit 6, reproduced at page 655 of the record, Dw1 admitted that the card is for the outing of pa Ogundele Aroge and Madam Oyewunmi, at page 717 of the record also admitted thus “I was at the outing ceremony of Pa. Ogundele Aroge.” This Pa. Ogundele Aroge was the father of the respondent.
Taking the foregoing into consideration, I concur with the finding of the lower court at the 9th page of the judgment at page 727 of the record as follows:
It is clear to me from the evidence of the claimant which has not really been challenged by any contrary evidence from the defendants the claimant has established that there is in existence a branch of Amunyunbole ruling house known as Aroge ljadekun.”
To buttress this fact that the customary law is to be established by evidence, the Court of appeal held inter-alia Per. Denton West JCA thus “Customary law can only be established by evidence. Customary law or native law and custom are questions of fact which must be proved by evidence if judicial notice is not available through decided cases of superior courts. See Ifabiyi v. Adeniyi (2006) 6 WRN 41;
Houtmangracht v. Oduba (1997) 5 LRCN 1291. “Furthermore, the apex court had held in series of cases, like the case of Sokwo v. Kpongbo & 3 ORS. (200S) l-2 S.C. 117 at 146-147 lines 35-10, where Per. Chukwuma-Eneh, JSC, said inter-alia “It is a settled principle of law that customary law is a question of fact to be proved by evidence. The onus is on the party alleging the existence of a particular custom. He must call credible evidence to establish the existence.
Although, it is also settled that where a custom has been sufficiently decided upon by the court, iudicial notice of the same can be taken and the court will not require further proof of the same custom- See Section 14 of the Evidence Act and see also Agbai v. Okagbue (1991) 9-10 S.C. 57; (1991) 90-10 SCNJ 49.”
Consequently, I am obliged to resolve issue four in the affirmative.
ISSUE FIVE
Whether the respondent proved the custom of Omido on the selection of Alapa and whether it was a breach of that custom for the Kingmakers to ask for three (3) names or nominations.
The learned appellant counsel urged the court to note that only the respondent (as claimant) testified in support of his case, that he did not deem it fit to call any witness to buttress his version of customary law on the appointment of Alapa of Omido.
He therefore, submitted that this omission to call witnesses is fatal to his case because native law and custom is a matter of evidence to be decided by facts which must be strictly proved, he referred to Odutola v. Sanya (2008) All FWLR (pt 400) 780 at 796; Fadioro v. Abonde (1992) 6 NWLR (pt 246) 221, per Akanbi JCA at page 231; and Maidama JCA in Otaru v. Otaru (1986) 3 NWLR (pt 26) 14.
The learned counsel further submitted that, it is beyond disputing the fact that the learned trial judge erred and misdirected himself when he said that the appellants did not plead or give contrary evidence of the custom of Omido on the selection of Alapa of Omido.
The learned respondent’s counsel on the other hand, submitted with respect, that the reference of the learned trial judge in Exhibit I to “traditional histories” in his judgment at page 18 (see page 273 of the record), include evidence of traditional history on the procedure for appointing an Alapa as set out at page 11 of Exhibit 1 (reproduced at page 266 of the record) as adduced by DW2 in that case, a Prince of Ile Obaloke Agbonda.
He further submitted that Exhibit 1 was decided on 30/6/92, and the 6th appellant and the respondent are bound, hook, line and sinker by that judgment, moreso, since the claimant in Exhibit 1 (6th appellant’s father) sued for himself and other members of Omo Alapa Ruling Family, Omido to which the 6th  appellant and the respondent belong.
The learned counsel submitted that the averments in paragraphs 7, 8, 23, 31 and 33 of the Amended statement of Defence quoted at pages 32 and 33 of the Appellants’ Brief of Argument does not really derogate from claimants, position while averments in paragraphs 38, 39, 48 and 49 as quoted at page 33 of Appellants’ Brief of Argument clearly deviate from the procedure enumerated in Exhibits l, 2 and 7 earlier referred to, and appellants are stopped from contending any contrary procedure.
He further contended that paragraph XIII titled “THE KINGMAKERS” of the same Exhibit 7 at page 565 of the record earlier reproduced supersede the part referred to at page 565 of the record that says that the community will present a candidate, yet at page 566 of the record, it says that the kingmakers were to make final selection among “the prince presented” by the community.
The learned counsel adopted his earlier submission under issue 1 to the effect that Exhibit 13 is inchoate and therefore not a decision, bearing in mind the last two lines thereof.
He therefore urged the court to ignore appellants, argument at page 36 of their Brief of Argument to the effect that Exhibit 13 “introduced a more fundamental change into the custom and tradition of Omido Chieftaincy and the submission that the change is akin to a “revolution”.
On the issue raised by the appellants at page 31 of their Brief of Argument to the effect that the evidence of the respondent alone without calling any witness, is not sufficient to establish the custom on the process of appointing an Alapa, the learned counsel submitted with due respect that each case is to be determined in line with its peculiar facts.
He further submitted that the evidence of the respondent as supported by independent documentary evidence Exhibits 1, 2 and 7 being the work of six eminent persons from Omido and Agbonda with sound knowledge and experience of Alapa custom on the procedure of appointing an Alapa is sufficient to establish that custom.
He also argued that the nomination and selection process of the 6th appellant in 2005 and 2006 could not have been done pursuant to Exhibit 73, a letter dated 21st May, 2007, moreso, when kingmaker from Agbonda did not participate. He therefore submitted that the process is terribly faulty and the purported nomination and selection of the 6th appellant null and void, as held by the trial court. He relied on Mustapha Oladokun v. The Military Governor of Oyo State (1996) 9-10 SCNJ 107.
The learned counsel submitted that, since the selection role of the ruling house was usurped and carried out by the kingmakers instead of Amunyunbole Ruling House, the purported selection of the 6th appellant as carried out by the 6th – 5th appellants is null and void, he relied on Ware v. A.G. Adamawa State (2000) 8 NWLR (pt 668) pg. 229 at 240 F-H.
He further submitted that where (as in this case) the nomination or selection was not done in accordance with the custom (Eku-Apa custom in this case), it follows that the purported nomination, selection or whatever that follows is void and a nullity. He relied on Ogolo v. Ogolo (2003) 12 SCNJ (p. 181) at 196, and Nelson Olorunnimbe Gbafe v. Prince Frank Gbafe & Ors (1996) 6 SCNJ 167.
He finally urged the court to hold that the trial judge was perfectly in order to have granted respondents’ claims before him.
He urged the court to answer issue 5 in the affirmative. The learned Appellant’s counsel in his Reply Brief urged the court to ignore the submission of the respondent’s counsel at page 36 of his brief that the process for nomination and selection of the 6th appellant was faulty on the ground that the kingmakers from Agbonda did not participate.
He submitted further that, that issue was not raised in the statement of defence, and since parties are bound by their pleadings, the respondent cannot now raise the issue.
He argued further that the issue was not a point on which the parties joined issues, and the lower court did not adjudicate on same. That therefore, the respondent cannot argue that point except with leave (which he has not sought) or by filing a respondent’s notice that the judgment be affirmed on their grounds.
He also submitted that the evidence of DW2 in Exhibit I heavily relied upon by the respondent’s counsel was wrongly adopted and used in the case as if it was given by a witness who testified before the lower court.
He submitted that the evidence of DW2 in Exhibit I is not legally admissible as evidence before the lower court or to be used as such. He respectfully relied on Elegushi v. Oseni (2005) 14 NWLR (pt 945) 348 at 371 – 372 and Shanu v. Afribank (2002) 17 NWLR (pt 795) 185 at 222.
He therefore urged the court to discountenance the said respondent’s argument at pages 28-29 of his brief.
RESOLUTION OF ISSUE FIVE
It is well settled that customary law is a question of fact to be proved by evidence. See section 14 of Evidence Law. Hence a party who alleges the existence of a particular custom must adduce sufficient evidence in support and to establish its existence to the satisfaction of the court, Per Karibi Whyte, JSC in Agbat & Ors v. Okogbue (1991) LPELR- SC 104 1198 90.
Ndukwe-Anyanwu, honourable justice of Court of Appeal in Magomya v. A.G. Adamawu State (2007) 5 NWLR (pt 1028) 567 at 582 paras A-F (CA), held that:
“He who asserts must prove under the Evidence Act, a customary law is a matter of fact to be pleaded and proved by evidence unless it has been judicially noticed It is also good law that it is desirable that a person other than the person asserting should also testify in support as it is unsafe to accept the statement of the only person asserting it.”
In the instant case, only the respondent (as claimant) testified in support of his case. He did not deem it fit to call any witness to buttress his version of customary law on the appointment of Alapa of Omido, hence it is unsafe to hold that he has proved the custom of Omido Community on the selection of Alapa. Also Akanbi JCA, as he then was in Fadiora v. Abonde (1992) 6 NWLR (pt 246) 221 said that the ipse dixit of the person who alleges the custom is not sufficient. Maidama JCA in otaru v. otaru (1986) 3 NWLR (pt 26) 14 at page 20 maintained that the uncorroborated evidence of the person who asserts the custom is not sufficient. See Ezeapoya & ors v. Okeke & Ors (1995) 4 NWLR (pt 388) 142 at 165, Iguh JSC in Odutota v. Sanya (2008) All FWLR pt 400) 780 at 796, paras B-C and D-E (CA), Queen Exparte Ekpenga v. Chief Ozogulo II (1962) I all NLR 205 at 268 per Ademole CJF. On the issue of whether it was a breach of that custom for the kingmakers to ask for three (3) names or nominations. I hold that the request of the kingmakers to ask for three (3) names or nominations was not a breach of the custom of Omido Community.
Since it has not been proved by sufficient evidence that by the custom of Omido Community, only a candidate is nominated by the ruling house.
Moreso, this will be the first time that an Alapa of Omido will be installed by kingmakers. In all, I hold that this appeal succeeds in part as the respondents did not prove the custom of nomination, selection and installation of the stool of Alapa of Omido. Secondly, no reliance to be placed on Exhibit 3 and 4 and they are accordingly expunged from the records.
Furthermore, I hereby declare that it is in order and right for the kingmaker to ask for the two names from the ruling house of Amuyanbole.
Finally it is further declared that Omotobi Aroge Ijadekun lineage exists in Amuyunbole Ruling House of Omido. There is no order as to costs.
TIJJANI ABDULLAHI J.C.A: I have had the advantage of reading in advance the lead judgment of my learned brother, Denton-west, JCA just read. My noble Lord has adequately considered and rightly resolved all the live issues that call for our determination in this appeal.
For emphasis and support, I add a few words. As can be gathered from the Record of proceedings of the lower court, the 6th Appellant, Prince Gboyega Adeyemi who appeared for himself and representing Eniayewu lineage of Amunyunbole Royal House of Omido, admitted under cross-examination that he was not yet graded as a chief (see page 717 of the record). It has been decided that, a village head is not a chief within the purview of the chief (Appointment and Deposition) Law of Kwara State, unless he has been appointed a graded chief by the Governor of Kwara State under Section 5 of the said law. See Olawuyi v. Aroyehun (1991) 5 NWLR (Part 652) 652 at 672.
Again, in the case of Akande v. Ayinla (1997) 11 NWLR (part 530) p. 707 at 713, A – H, it has been decided that a village head (like Alapa of Omido) is not a chief as defined in section 2 of Kwara State Edict No. 1 of 1983 (which metamorphosed as it were into the present day chiefs (Appointment and Deposition) Law Cap. C9 Law of Kwara state) and to challenge the appointment of a village head does not require the deposit of Ten Thousand Naira (which has now been increased to one Hundred Thousand Naira, in the new law) as a pre-condition.
A careful examination of Exhibit 13 would show clearly that the grading accorded Alapa of Eku-Apa cannot be claimed by either the Alapa of Omido or Alapa of Agbonda. The 6th Appellant is not in any way claiming to be the Alapa of Eku-Apa but the Alapa of Omido.
For these reasons and the fuller ones in the lead judgment of learned brother ably set out therein, I too allow the appeal in part and abide by all the consequential orders therein contained.
CHIMA CENTUS NWEZE J.C.A: I had the advantage of reading the draft of the leading judgment just delivered now by my learned brother, Denton-West JCA. I endorse the conclusion that this appeal succeeds in part. I abide by the consequential orders contained in the said leading judgment.
Appearances
TOYIN OLADIPO ESQ For Appellant
AND
O.S OGIDIOLU ESQ For Respondent
