ENOSEGBE v. ENIZODE-AIWIZE & ORS (2021)

ENOSEGBE v. ENIZODE-AIWIZE & ORS

(2021)LCN/15143(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Tuesday, May 18, 2021

CA/B/170/2008

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Between

PRINCE ADONIS AMHIEGBERETA USIFOR ENOSEGBE APPELANT(S)

And

PAUL ENIZODE-AIWIZE The Osukhure Of Ewohimi (Party Substituted By Order Of Court Dated 3/10/18) 2. JOHNBULL OGA OMHENIMHEN The Odionwere Of Ohaikpen Eguare, Ewohimi (Party Substituted By Order Of Court Dated 3/10/18) 3. EMMANUEL AGHEDO-ONIHA OF EWOHIMI 4. OJIEFO USIFOH 5. THE MILITARY GOVERNOR OF EDO STATE 6. THE ATTORNEY GENERAL OF EDO STATE 7. THE COMMISSIONER FOR CHIEFTAINCY AFFAIRS, EDO STATE RESPONDENT(S)

RATIO

IMPORTANCE OF DOCUMENTARY EVIDENCE

See Bunge V. Governor, Rivers State (2006) All FWLR (Pt. 325) 1 @ p. 49 where the Supreme Court held inter-alia as follows: “The importance of documentary evidence is that it could be used to resolve an issue or conflicting evidence it could be used as a hanger from which to test the veracity of the oral testimonies.” See also Essien V. Etukudo (2009) All FWLR (Pt. 496) 1886 @ p. 1904. See also U.N.I.C. V. U.C.I.C. Ltd. (1993) 3 NWLR (Pt. 593) 17. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

POSITION OF THE LAW REGARDING THE BURDEN PLACED ON THE PARTY WHO ASSERTS

See also Nwakanma V. Abaribe (2010) All FWLR (Pt. 505) 1767 @ p. 1786, where this Court had held inter alia thus: “It is an elementary principle of law of evidence that he who asserts must prove. In other words, the person who makes an assertion that certain facts exist, has the onus to prove it and not otherwise.” PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

ESSENTIAL INGREDIENTS OF A VALID CUSTOMARY ARBITRATION

See Ehoche V. Ijegwa (2003) FWLR (Pt. 154) 560 @ pp. 588 -589, where the Court laid down the following as the essential ingredients of a valid customary arbitration, namely: (a) That there had been a voluntary submission of the matter in dispute to an arbitration of one or more persons; (b) That it was agreed by the parties either expressly or by implication that the decision of the arbitration would be accepted his final and binding; (c) That the said arbitration was in accordance with the customs of the parties or of their trade or business; (d) That the arbitration reached or decision and publish their award; (e) That the decision or award was accepted at the time it was made. However, like every decision to be binding it must have made findings and decisions which could be discernible and not decisions which are neither here nor there as in deciding one thing in one breadth and in another breadth, on the same evidence, deciding an entirely different and contradictory thing. Thus, where decisions in a customary arbitration turn out to be self – contradictory, inconsistent and not making any discernible findings, then a trial Court being primarily saddled with the sacred duty of evaluation and making of finding of facts will jettison such contradictory and inconsistent decision of a customary arbitration, where there is no discernible victor or vanquish, and proceed to evaluate the evidence led by the parties before it and make proper findings and arrive at decisions as dictated by the justice of the case. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

POSITION OF THE LAW REGARDING GRANT OF MANDATORY ORDER

My lords, the law relating to the granting of mandatory Orders is well settled and it is principally granted to restore the parties to the status quo ante bellum. In Fellows V. Fishers (1975) 2 All ER 843, the Court in England had defined ‘Status Quo’ thus: “The position of things prevailing when the Defendant embarked upon the activities sought to be restrained.” And in Military Governor of Lagos State V. Ojukwu (1986) 1 NWLR (Pt. 18) 621, the Supreme Court had defined status quo thus: “Status quo presupposes the existence of an actual peaceable uncontested status quo preceding the pending controversy as distinguished from a status quo effected by the wrong doer before the institution of the suit, thus the aim is to preserve the status quo that existed before the pending controversy.” I am also aware that in law even where no order of interlocutory injunction has been made but an application to that effect had been duly filed and served on a party, and even where an application for interim injunction has been refused, such a party lacks the power, without an order of Court to that effect, to proceed to carry out the acts complained of and sought to be restrained in the application for interlocutory injunction. This is what in law is commonly referred to as mandatory order of injunction. See Daniel V. Ferguson (1891) 2 CH 27, where the Court of Appeal of England, a decision cited with approval by the Court of Appeal in Ojukwu V. Governor of Lagos State (1985) 2 NWLR (Pt. 10) 806 @ p. 823, granted a mandatory injunction in a matter in which even the application for injunction had not been served but it was found that the Defendant had acted precipitately of the said application and had carried out the act complaint by the Claimant. In Military Governor of Lagos State V. Ojukwu (1986) 1 NWLR (Pt. 18) 621, the Supreme Court had stated inter alia thus: “After a Defendant has been notified of the pendency of a suit seeking an injunction against him even though a temporary injunction has not been granted, he act at his peril and subject to the power of the Court to restore the status quo wholly irrespective of the merit as they may be ultimately decided.” My lords, in matters of principles, decisions of the above nature are reached not merely to aggrandize the ego of the party seeking such a mandatory order but rather to protect and restore the dignity of and respect for the processes and integrity of the Courts by litigants. This is to avoid or at least reduce to the barest minimum recklessness and anarchy likely to result from disregard to the rule of law. Thus, every Court has a duty to and must guard its judicial powers jealously and should not allow matters or causes already pending before it to be unilaterally taken away by any of the parties to be settled in his own way, extra judicial or to take the law into his hand in order to steal a match on the other party. See Ojukwu V. Governor of Lagos State (1985) 2 NWLR (Pt. 10) 806 @ p. 823. See also Military Governor of Lagos State V. Ojukwu (1986) 1 NWLR (Pt. 18) 621; Vaswani Trading Co. V. Savalakh & Co. (1972) 1 All NLR 483 @p. 487; Ezegbu V. F.A.T.B Ltd. (1992) 1 NWLR (Pt. 220) 696. Having stated as above, it would appear ordinarily that the Appellant ought to be entitled to Reliefs B, C and H, being mandatory in nature to restore things to the status quo before the rights of the parties are determined. Regrettably, rather than raise such an application as an interlocutory one for Mandatory Orders for same to be decided there and then before the rights and liabilities of the parties are finally determined upon by the Court below, the Appellant rather curiously amended his pleadings to include these mandatory claims which therefore, can only be granted if and only if he succeeds in his claim in his substantive reliefs, failing which no mandatory order can be made in favour of a party whose right to the substantive reliefs claimed has been found to be lacking in merit. The reason for this position of the law is that a mandatory order to restore and return things to the status quo is usually granted during the pendency of a matter before the rights of the parties are finally determined, and notwithstanding the merit or otherwise of the claims of the party seeking the mandatory order. Let me explain. Once a suit had been finally determined and if it is against the party seeking a mandatory order, the law would not sanction a mandatory order in favor of a party whose substantive claim has already been found wanting and dismissed for lacking in merit. Thus, it is only where the party succeeds in the substantive claim that an ancillary claim for mandatory order can be granted in deserving cases. This is why it is ordinarily an order which is sought during the pendency of a Suit to restore things to the status quo if the adverse party had taken any step sought to be restrained and notwithstanding whether or not the substantive claim would succeed in the end. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Edo State, Benin Judicial Division Coram: A. N. Egiamusoe J, in Suit No. HAU/18/1997: Prince Adonis Amhiegbereta Usifor Enosegbe V. Paul Enizode – Aiwize & Ors, originally commenced before the Ubiaja Judicial Division, and delivered on 18/12/2006, in which the claims of the Appellant as Claimant against the Respondents as Defendants were dismissed in its entirety for lacking in merit, while granting the Counter – Claim of the 1st – 4th Respondents as Defendants/Counter – Claimants against the Appellant as Defendant by Counter Claim.

The Appellant was peeved with the said judgment and had appealed against it vide his Notice of Appeal filed on 21/12/2006 on six Grounds of appeal at pages 189 – 194 of the Record of Appeal. The Record of Appeal was compiled and transmitted to this Court sometimes in 2008. Subsequently, an Amended Notice of Appeal was filed on 26/10/2020 on six grounds with the leave of Court but was deemed as properly filed on 22/2/2021. The Appellant’s Amended brief was filed on 27/11/2018 but was

deemed as properly filed on 3/12/2018. The 1st- 4th Respondent’s brief was filed on 3/5/2019 but was deemed as properly filed on 6/5/2019. The 5th – 7th Respondent’s brief was filed on 19/2/2019 but was deemed as properly filed on 6/5/2019. The Appellant’s Reply brief to the 1st- 4th Respondent’s brief was filed on 10/3/2020.

At the hearing of this appeal on 22/2/2021, Edward Yalaju Esq, learned counsel for the Appellant adopted the Appellant’s Amended brief and reply brief as his arguments and urged the Court to allow the appeal and set aside the judgment of the Court below and grant the claims of the Appellant against the Respondents, while dismissing the 4th Respondent’s Counter – claim against the Appellant for lacking in merit. On his part, Chief N. I. Ukpebor, learned counsel for the 1st- 4th Respondents adopted the 1st– 4th Respondent’s brief as his arguments and urged the Court to dismiss the appeal and affirm the judgment of the Court below. The 5th – 7th Respondents, though duly served with hearing notice on 21/2/2021, did not participate at the hearing of this appeal but their brief already filed was

deemed as argued.

By a Writ of Summons filed on 21/6/1997 and by the Further and Further Amended Statement of Claim filed on 19/7/2005, the Appellant as Claimant commenced an action against the Respondents as Defendants claiming the following reliefs, to wit:
A. A Declaration that he as against the 5th Defendant and any other son of the deceased Onojie of Ewohimi-Enosegbe II, Plaintiff is the rightful heir of the Ewohimi throne in accordance with the principle of primogeniture applicable to the stool of Ewohimi as stated in the Chieftaincy declaration relative to Ewohimi.
B. A Declaration that the purported installation of the 5th Defendant by the 6th – 8th Defendants on 4/2/2000 is null and void and has no effect being contrary to the Chieftaincy Declaration in respect of Ewohimi stool.
C. A Declaration that the purported performance of the burial rites and ceremonies of the Plaintiff’s late father by the 5th Defendant on 5/7/97 while the matter was pending in Court is null and void.
D. A Declaration that the Plaintiff as against the 5th Defendant and any other son of deceased Onojie of Ewohimi Enosegbe II is the rightful person to

perform the burial rites and ceremonies of the late Onojie of Ewohimi Enosegbe II, he being the oldest son.
E. A Declaration that the Plaintiff’s paternity has been acknowledged by his father S. U. Enosegbe II the Onojie of Ewohimi and the members of Ewohimi Ruling House in accordance with native practice in Nigeria and/or practice under Native Law and Custom of Esan people of Esan South East Local Government Area of Edo state where the Plaintiff’s father comes from.
F. A Declaration that the 1st – 5th Defendants are estopped from denying paternity of the Plaintiff whose paternity, his father S.U. Enosegbe II Onojie of Ewohimi, and the members of the Ewohimi Ruling House has acknowledged in accordance with Native Law and Customs of Esan People of Esan South East Local Government Area of Edo State where the Plaintiff’s father comes from.
G. A Declaration that the Plaintiff is the oldest surviving son of late S. U. Enosegbe II the Onojie of Ewohimi who translated on 19/3/1997.
H. An Order of Court withdrawing the staff of the Office wrongfully presented to the 5th Defendant by the 6th-8th Defendants.
I. An Order of Court ordering the

installation of the Plaintiff as the rightful Onojie of Ewohimi and thereafter, to be presented with Staff of Office, he being the oldest surviving son of S. U. Enosegbe II Onojie Ewohimi in accordance with the principles of primogeniture applicable to the stool of Ewohimi as stated in the Chieftaincy Declaration relative to Ewohimi. See pages 1 – 3 and 8 – 12 of the Record of Appeal.

On their part, by the Further Amended Statement of Defense/Counter – claim filed on 26/7/2004, the 1st – 4th Respondents as 1st – 5th Defendants before the Court below counter – claimed against the Appellant as Defendant to counter – claim the following reliefs, to wit:
1. A Declaration that the 5th Defendant as against the Plaintiff or any other person in the circumstances is the person entitled to be the Onojie of Ewohimi under the Ewohimi Native Law and Custom, he been the eldest son and heir apparent of the late Oriojie of Ewohimi.
2. A Declaration that the coronation of the 5th Defendant by the Kingmakers (the Iwebo and the Iwegua Societies) on 4th of June 1997 shortly after the demise of the late Onojie of Ewohimi H.R.H S. U Enosegbe II in line with the

Native Law and Custom of Ewohimi is valid and legal.
3. A Declaration that the investiture of the 5th Defendant with the staff of office as the Onojie of Ewohimi on the 4th of February 2000 by the 6th- 8th Defendant is valid and legal.
4. An Order restraining the Plaintiff either by himself, his agents, servant, privies and/or any other person howsoever from disturbing the 5th Defendant from functioning as the Onojie of Ewohimi. See pages 27 – 28 of the Record of Appeal.

BRIEF STATEMENT OF FACTS
The case of the Appellant as Claimant before the Court below, as can be gleaned from the averments in his pleadings and evidence both oral and documentary as in the Record of Appeal, was that Appellant is the first and oldest surviving son of late S. U. Enosegbe II, the Onojie of Ewohimi in Esan South East Local Government of Edo State had with his Mother Mrs. Lucy Enosegbe and having been so acknowledged by his father and members of the Ruling House of Ewohimi and therefore, the heir apparent to the vacant stool of Ewohimi and the Onojie designate under the Esan Native Law and customs which is based on the doctrine of primogeniture subject to

the Chieftaincy declaration contained in the Traditional Rulers and Chiefs declaration of 1979 and relative to the Ewohimi Chieftaincy stool. It is also the case of the Appellant that the 4th Respondent is not entitled to ascend the vacant stool of Onojie of Ewohimi not being the first son of the deceased Onojie II and therefore, not the heir apparent to the said stool under the Native Law and custom of Esan, but had been wrongfully installed as the Onojie of Ewohimi by the 1st – 3rd Respondents and illegally issued with a Staff of Office by the 5th- 7th Respondents during the pendency of the case before the Court below. See pages 1 – 3, 8 – 12, 48 – 52, 69 – 71, 71 – 78, 78 – 85, 85a – 85k, 86 – 90 and 91 93 of the Record of Appeal.

The case of the 1st – 4th Respondents as 1st – 5th Defendants before the Court below as can be gleaned from the averments in their pleadings and evidence, both oral and documentary as in the Record of Appeal, was that the Appellant was not and never the son nor the oldest surviving son of HRH S. U. Enosegbe II, the Onojie of Ewohimi in Esan South East Local Government Area of Edo State and is therefore, not entitled to ascend

the vacant stool of Onojie of Ewohimi in that he has never been acknowledged by the late Onojie II throughout his life time and reign as his son talk less of being his first and oldest surviving son and heir apparent to the stool of Onojie of Ewohimi. It was also their case that the 4th Respondent is the first and oldest son of the late Onojie II and was acknowledged and recognized as such by both the late Onojie II of Ewohimi during his life time and reign as his heir apparent to the stool of Onojie of Ewohimi and was therefore entitled to ascend to the vacant stool of Onojie of Ewohimi as affirmed by the inquiries authorized by the appropriate authority on the petition of the Appellant. See pages 21 – 29, 94 – 102 and 103 – 128 of the Record of Appeal.

The case of the 5th – 7th Respondents as 6th – 8th Defendants before the Court below as can be gleaned from the averments in their pleadings and evidence, both oral and documentary as in the Record of Appeal, was that the 4th Respondent being the rightful heir apparent and having been installed as the Onojie of Ewohimi as required by the Esan Native Law and Custom, they were under a legal duty under the

Traditional Rulers and Chiefs declaration of 1979 to give and they had in compliance with the said law given the Staff of Office to the 4th Respondent having been so installed as the Onojie of Ewohimi by the 1st – 3rd Respondents. See pages 65 – 67 and 130 – 133 of the Record of Appeal.

At the Court below, the parties filed and exchanged their pleadings and the matter proceeded to trial. The Appellant as Claimant testified for himself and called five other witnesses who testified as PW1, one Johnson Otoghile, PW2, one Prince Phillip Iyanebor Ifebhor, PW3, one Lucy Enosegbe, PW4, the Appellant, Prince Adonis Enosegbe, PW5, one Martin Oyomo Inosegbe and PW6, one Bose Okainen and tendered several documents admitted in evidence as Exhibits A, A1 – A6, B, C – C1, D – D1, E, F, G and I and closed his case. On the part of the 1st- 4th Respondents as 1st- 5th Defendants, they called two witnesses who testified as DW1, one John Osagie Amiele and DW2, one David Aimiebenomon and tendered several documents admitted in evidence as Exhibits J, K, H – H6, L, M and N and closed their case. On the part of the 5th – 7th Respondents as 6th – 8th Defendants, they called one

witness who testified as DW3, one Julius Erhabor Atikwere and closed their case.

At the close of their respective cases, learned counsel for the parties addressed the Court below and on 18/12/2006, the Court below delivered its judgment in which the claims of the Appellant as Claimant against the Respondents as Defendants were dismissed in its entirety, while granting the counter – claim of the 1st – 4th Respondents as Defendants/Counter – Claimants against the Appellant as Defendant to Counter – Claim, hence this appeal. See pages 170 – 188 and 189 – 194 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s Amended brief, a whooping eight issues were distilled as arising for determination from the six grounds of appeal, namely:
1. Having regard to the Nature of the Registered Chieftaincy declaration and when there is a dispute, can a Local Government Chairman (maker of Exhibit M) unilaterally make a finding which in law can constitute an appropriate/prescribed authority as envisaged under Section 45 (1) of the Legal Notice No. 48 of 1979?
2. Having regard to the position of the law on the issue of paternity or

who is the heir apparent to the vacant Onojieship stool of Ewohimi vis-a-vis Exhibits M and N whether the Court below was right when it held that the Appellant cannot be adjudged 1st son or son of the late Onojie of Ewohimi, S. U. Enosegbe II?
3. Having regard to the position of the law on the issue of interpretation of document vis-a-vis Exhibit ‘N’ finding of the Traditional Rulers of the Esan east Local Government Council of Edo State, whether the Court below was right when it held that Exhibit N did not establish the Appellant as a son of S. U. Enosegbe II, the late Onojie of Ewohimi and indeed the 1st son?
4. Having regard to the pleadings of the parties and having regard to the evidence lead by the Appellant (who was not cross examined) and the PW1, PW2, PW3 and PW5 who are the members of Ewohimi Ruling House and mother of the Appellant respectively, whether the Court below was right when it failed to evaluate the evidence of the Appellant and his witnesses and make a finding of fact on same in its judgment and whether same is not perverse and render the entire judgment a nullity?
5. Having regard to the position of the law on the issue

of evaluation of the evidence of the witnesses in this case whether the Court below was right when it refused to evaluate the issues raised by the Appellant witnesses and make a finding of fact on it?
6. Having regard to the position of the law concerning Exhibits B, C1 – C2 and D, whether the Court below was right when it held that this documentary evidence did not in any manner help the Appellant’s case?
7. Having regard to the position of the law concerning the evidence of the flouting of the interim order contained in Exhibit E and the unchallenged evidence of same by the Appellant, whether the Court below was right when it held that the Appellant did not lead concrete evidence of same?
8. Having regard to the position of the law on the issue of Exhibits J and K, it could not be said that the Court below was wrong when it held that Exhibits J and K are not public documents and further having regard to Exhibits H1 – H3, it could not be said to be relevant in law to establish the fact contained therein?

In the 1st- 4th Respondents’ brief, five issues were distilled as arising for determination in this appeal, namely:

Whether the 1st- 4th Respondents were in breach of the Interim Order issued by the Court below dated the 12th of June, 1997 restraining them from performing the burial ceremony of the Late Onogie or Ewohimi, HRH S. U. Enosegbe II and whether the alleged flouting or breach of the said Order affected the validity of the letter of appointment issued to and the staff of office granted the 5th Defendant now 4th Respondent by the 6th Respondent as the Onogie of Ewohimi?
2. Whether the alleged failure of the Court below to evaluate the evidence of some of the Appellant’s witnesses, namely, the PW1, PW2, PW3 and PW5 and make a finding of fact in its Judgment renders the Judgment perverse and a nullity?
3. Whether the Appellant’s witnesses raised issues and if they did whether the Court below was right in failing to evaluate the said issues raised by the Appellant’s witnesses?
4. Whether the Court below was right when it held that Exhibits B, C1-C2 and I did not in any way help the case of the Appellant?
5. Whether the Court below was right when it failed to give any probative value to Exhibits H1 -H3?

In the 5th – 7th Respondents’

brief, three issues were distilled as arising for determination in this appeal, namely:
1. Whether the Appellant’s application for relisting and the Interim Order granted in 1997, restraining the 1st – 4th Respondents from carrying out the burial rites of the late Onojie II of Ewohimi and subsequently installing the 4th Respondent as Onojie of Ewohimi can be binding on the 5th – 7th Respondents?
2. Whether the Court below was right to have held that the 5th – 7th Respondents rightly and properly handed the Staff of Office to the 4th Respondent?
3. Whether the High Court was right to have considered Exhibit “M” as emanating from an appropriate authority and admitting it in evidence?

I have taken time to consider the claims and counter – claim of the parties as well as the issues joined in the averments in their pleadings and the evidence, oral and documentary led by them as in the Record of Appeal. I have also considered the submissions of counsel to the parties in their respective briefs in the light of the findings and decisions reached in the judgment of the Court below. I find it disheartening that in disregard to the principles of law

against proliferation of issues, the learned counsel for the Appellant distilled a whooping eight issues out of the six grounds of appeal, two more than the six grounds of appeal. Upon an anxious consideration of the facts and circumstances of this case, I am of the view that the proper issues arising for determination in this appeal are the five issues as distilled in the 1st – 4th Respondents’ brief, a consideration of which would, in my view, invariably involve a consideration of all the issues distilled in the Appellant’s amended brief as well as in the 5th – 7th Respondents’ brief. I hereby adopt and set down the 1st – 4th Respondents’ issues as the issues for determination in this appeal. However, I shall consider issue one for determination last after considering all the other issues for determination, commencing anon with issue two for determination.

My lords, honestly I would have reframed and harmonized these issues into just three issues, as to who between the Appellant and the 4th Respondent proved their rival claims to the stool of Onojie of Ewohimi on the strength of the admissible evidence led before the Court below

and whether the Court below was right when it found for the 4th Respondent as against the Appellant as the one entitled to ascend the vacant stool of Onojie of Ewohimi and Respondent’s issue one, to properly reflect the real issues as joined between the parties and on which evidence, both oral and documentary were led before the Court below as in the Record of Appeal. However, I have cautioned myself to stay within the issues are formulated by the parties and to resolve the real issues arising for determination in this appeal.

ISSUE TWO
Whether the alleged failure or the Court below to evaluate the evidence of some of the Appellant’s witnesses, namely, the PW1, PW2, PW3 and PW5 and make a finding of fact in its judgment renders the judgment perverse and a nullity?

APPELLANT’S COUNSEL SUBMISSIONS
On his issue four, learned counsel for the Appellant had submitted that it is the primary duty of a trial Court to evaluate and make findings on material facts, and important issues of fact and evidence before it and contended that the Appellant and his witnesses testified copiously to the time of birth and seniority of the

Appellant over the 4th Respondent but which evidence were not evaluated by the Court below and thereby abdicating its duty and urged the Court to intervene and re – evaluate the evidence and made proper findings of facts, allow the appeal and set aside the perverse judgment of the Court below. Counsel relied on Ani V. Ani (2002) 5 NWLR (Pt. 762) 166 @ p. 176; Ikono LG V. De Beacon Fin & Sec. Ltd. (2002) 4 NWLR (Pt 756) 132; Morenikeji V. Adegbosin (2003) FWLR (Pt. 163) 50; Kariebo Bassil V. Fajebe (2001) WRN 58 @ p. 86; Kalio V. Woluchem (1985) 3 SC 109; Benmax V. Austin Motors Co Ltd (1955) All ER 326 @ pp. 328 – 329; Chief Frank Ebba V. Washi Ogodo & Anor (1984) Vol. 15 NSCC 255; Sha V Kwan (2000) 5 SCNJ 101 @ p. 166.

On his issue five, learned counsel for the Appellant had submitted that a Court of law is under a duty to consider all the issues joined by parties and raised before it for determination and in law if a Court fails to do so then it has certainly failed in its duty and contended that the Appellant and his witnesses raised and gave evidence of several issues of facts on how the Appellant was prevented from entering the Palace of

Onojie of Ewohimi to enable him perform the mandatory burial rites for his late father, the Onojie II of Ewohimi, how he was arrested and charged to Court on trumped up charges of arson, how he was prevented from being installed as the Onojie of Ewohimi by the 1st – 3rd Respondents, how the PW1, PW2 and PW6 were charged on trumped up charges of armed robbery for supporting the Appellant and how the alleged disowning of the Appellant by his late father was against the Esan Native Law and Custom and how the 1st and 2nd Respondent boasted of having the right to choose the successor to the late Onojie II of Ewohimi as well as several other pertinent evidence of facts in issues, which were all neither considered nor evaluated by the Court below and urged the Court to hold that the Court below was under a duty not only to evaluate these pieces of unchallenged evidence but also to accept them and act upon them to make proper findings in favor of the Appellant and having failed to do so, to allow the appeal and set aside the judgment of the Court below. Counsel relied Mr. Chandwi V. Pinheiro (2001) 3 NWLR (Pt. 701) 557 @ p. 573; Okonji V. Njokanma (1991) NWLR (Pt. 202) 131 @

150; Ani V. Ani (2002) 5 NWLR (Pt. 762) 166 @ p. 176; Oyefolu V. Durosinmi (2001) 16 NWLR (Pt. 738) 7; UBN Plc. V. Ishola (2001) 16 NWLR (Pt. 735) 47 @ 73; AG. Federation V. AIC Ltd. (2000) 10 NWLR (Pt. 675) 293 @ p. 308; Lion Buildings Ltd. V. MLM Shadipe (1976) 12 SC 135 @ p. 159; Paulo Omeregie V Ehichator Ero (1971) All NLR (Pt. II) 282 @ pp. 289 – 290.1ST- 4TH RESPONDENTS’ COUNSEL SUBMISSIONS
On his issue one, learned counsel for the 1st – 4th Respondents had submitted that by Exhibit L, the Appellant petitioned the appropriate authority leading to the investigation of the complaint of the Appellant in relation to the right of ascendancy to the vacant stool of Onojie of Ewohimi resulting into the findings in Exhibit M, by which it was put beyond any doubt that the Appellant is neither a child of the late HRH S.U. Enoscgbe, Onojie II let alone being the first son and also Exhibit N, in which the Traditional Rulers in their findings were glaringly inconsistent as to the right of the Appellant to ascend the vacant stool of Onojie of Ewohimi on the ground that the mother of the Appellant stated clearly that the late Onojie II was not the

biological Father of the Appellant consequent upon which the said Onojie disowned the Appellant as his child and further cursed whoever will refer to or call the Appellant his child and contended that by the findings, both in Exhibits M and N, the 4th Respondent was ultimately held to be the heir apparent as the eldest son and proper person to be installed as Onojie of Ewohmi as was also rightly found by the Court below and urged the Court to so hold and to dismiss the appeal for lacking in merit and affirm the sound judgment of the Court below. Counsel referred to Sections 8(1) and 27(1) of the Traditional Rulers and Chiefs Edit of 1979 of the Defunct Bendel State as applicable to Edo State.

It was also submitted that in addition to Exhibits M and N, by Exhibits J and K there were irrefutable evidence that the 4th Respondent is the acclaimed eldest son of HRH S. U. Enosegbe, Onojie II of Ewohimi and the heir apparent to the stool of Onojie of Ewohimi and contended that in law Exhibits J and K, which were made by the DW1 and DW2, with no personal interest to serve and on the instruction of the Onojie II of Ewohimin, 1993 and 1990 respectively were not

in any way made in anticipation of the Appellant’s Suit, are very essential in determining who as between the Appellant and the 4th Respondent is the person entitled to be installed as Onogie of Ewohimi and be given the Staff of Office and urged the Court to hold using these documents, particularly Exhibit K which admission in evidence was even consented to by the Appellant, as hanger on which to assess the veracity of the oral evidence relied upon by the parties, it is crystal clear, and as found correctly by the Court below, that it is the 4th Respondent and not the Appellant that is the eldest son of and heir apparent to the late Onojie II of Ewohimi and thus entitled to be installed as the Onojie of Ewohimi and to dismiss the appeal and affirm the sound judgment of the Court below. Counsel relied on Essien V. Etukudo (2009) All FWLR (Pt. 496) 1886 @ p. 1904; U.N.I.C. V. U.C.I.C. Ltd. (1993) 3 NWLR (Pt. 593) 17; Bunge V. Governor, Rivers State (2006) All FWLR (Pt. 325) 1 @ p. 49; Akinola V. Vice – Chancellor, Unilorin (2005) All FWLR (Pt. 259) 1934 @ p. 1964; Ezomo V. New Nigeria Bank Plc. & Anor (2007) All FWLR (Pt. 368) 1032 @ p. 1065; .

Ojukwu V Governor, Lagos State (1985) 2 NWLR (Pt. 10) 806.
It was further submitted that the evidence of PW3, the mother of the Appellant, that the Appellant adopted his maternal grandfather’s name from birth to protect him from evil that may befall him in the event that he answers the name Enosegbe II was spurious and most unreasonable and contended that no evidence whatsoever was given to demonstrate that there exist situations where other children of the late S.U. Enosegbe, Onojie II who answered his name from birth, including the 4th Respondents and his siblings, had died mysteriously or afflicted with evil merely for answering their father’s name and urged the Court to hold that Appellant did not answer the name of the Late HRH S. U. Enosegbe, Onojie II because simply he was not a child of the late Monarch and to dismiss the appeal and affirm the judgment of the Court below.

5TH – 7TH RESPONDENTS’ COUNSEL SUBMISSIONS
On his issue two, learned counsel for the 5th – 7th Respondents had submitted that in law the 5th – 7th Respondents are the appropriate authorities vested with power to approve the appointment of the

4th Respondent as Onojie of Ewohimi by handing over to him the Staff of Office and contended that in law the general presumption is that the formal requisites for the validity of all judicial or official acts were complied with so long as they are shown to have been done in a manner substantially regular as expressed in the Latin maxim, omniapraesumuntur rite et solemniteresseacta done probetur in contrarium, meaning all acts are presumed to have been done rightly and regularly until the contrary is proven and urged the Court to hold that the onus was on the Appellant, who alleges the contrary, to prove same but which he failed woefully to prove and to dismiss the appeal and affirm the judgment of the Court below. Counsel referred to Section 22(2) of the Traditional Rulers: and Chiefs Edict, 1979 and relied on Nwachukwu V. State (2002)102 LRCN 2110; Benson V. Onitiri (1960) FSC 69; Akpan V. State (2002) 100 LRCN 1744; Shitta – Bey V. AG. of Federation (1998) 61 LRCN 4328; Saleh V. Muhammad (2010) 12 NWLR (Pt. 1209) 613; Adighije V. Nwaogu (2010) 12 NWLR (Pt. 1209) 419; Amala V. State (2004) 12 NWLR (Pt. 888) 520; Auta V. Olaniyi (2004) 4 NWLR (Pt. 863) 394.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

It was also submitted that on the pleadings and evidence led by the parties as well as the provisions of the Traditional Rulers and Chiefs Edict, 1979 there is a presumption of regularity in favor of the acts of the 5th – 7th Respondents and contended that this presumption of regularity stands since the Appellant failed to rebut it to show that the handing over of the Staff of Office, which is an official act, by the 5th – 7th Respondents to the 4th Respondent was not rightly or regularly done and urged the Court to hold that there being no legal impediment as at 4/2/2000, preventing the 5th – 7th Respondents from handing over the Staff of Office to the 4th Respondent, having been already installed as the Onojie of Ewohimi by the 1st – 3rd Respondents, the 5th – 7th Respondents rightly and properly did hand over the Staff of Office to the 4th Respondent and to dismiss the appeal and affirm the judgment of the Court below.

On his issue three, learned counsel for the 5th – 7th Respondents had submitted that upon receipt of Exhibit L by the 5th Respondent it was forwarded to the 7th Respondent for investigation and who in turn forwarded it to the Chairman of Esan

South East Local Government Council for investigation, which he did and produced Exhibit M, which was then forwarded to Traditional Council of Esan South East Local Government Area, which investigated the matter and produced Exhibit N, and contended that both Exhibits M and N were products of lawful authority as provided under the Chiefs Edict 1979 and were thus properly before the Court below and urged the Court to hold that Exhibit M was written to forward Exhibit N to the Directorate of Chieftaincy Matters and merely reinstated the conclusion contained in Exhibit N to the effect that the 4th Respondent is the rightful person to ascend the stool of Onojie of Ewohimi as was also found rightly by the Court below and to dismiss the appeal and affirm the judgment of the Court below.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In reply, it was submitted that Exhibits J and K, were objected to when they were tendered before the Court below but the objection was over ruled and they were admitted in evidence by the Court below and urged the Court to have a reconsider of Exhibits J and K which remained inadmissible in evidence and should be expunged and

the reliance placed on it by the Court below be set aside and the appeal be allowed.

RESOLUTION OF ISSUE TWO
My Lords, this issue deals with the evaluation of evidence by the Court below and alleges that there was no proper evaluation of evidence of the witnesses to the Appellants, particularly PW1, PW2, PW3 and PW5, which ordinarily is the turf or primary duty of trial Courts. I have taken time to scrutinize the averments in the extant pleadings of the parties and considered the totality of evidence led by the parties, particularly the Appellant and his witnesses as in the Record of Appeal. I have also taken time to review the judgment of the Court below and it does appear to me that it carried out a thorough review and evaluation of the entirety of the evidence as led by both the Appellant and his five witnesses, who testified on his behalf as PW1, PW2, PW3, PW5 and PW6 as well as his personal testimony as PW4. It is one thing in law to allege non evaluation of evidence against a trial Court and quite a different thing from alleging failure to make proper findings flowing from the proved evidence before a trial Court. For whilst it’s

easier to prove the latter, it is usually an uphill task proving the latter. In other words, it is easier to allege and prove failure to make proper finding than to allege and prove failure to evaluate evidence at all.

Now by Exhibit L, the Appellant petitioned the 5th Respondent alleging an attempt to deny him of his birth right as the first son of the late Onojie II of Ewohimi entitled under the rule of primogeniture, the recognized mode under the Chieftaincy declaration relative to the said vacant stool. The 5th Respondent caused the complaint to be investigated by referring same to the 6th Respondent, who in turn directed that 7th Respondent to cause it to be investigated. The 7th Respondent then referred the matter to the then Chairman of the Esan South – East Local Government Council for investigation, which was done and issued a report as in Exhibit M and referred the matter further to the Traditional Rulers Council of the said Local Government, which held very thorough inquiries and issued Exhibit N, as the Report of their findings and recommendations on the complaints of the Appellants.

At the trial before the Court below, not only were

these findings tendered in evidence but several witnesses from the Appellant gave evidence in line with the case as presented by the Appellant in Exhibit N. In its judgment, the Court below meticulously and carefully went through the pieces of both oral and documentary evidence as led by the parties and using the copious documentary evidence, particularly Exhibits J, K and M, disbelieved the witnesses of the Appellant as well as discountenanced the contents of Exhibit N, which it found, and quite rightly too in my view, was inconsistent in its findings and recommendations and arriving at its decision that the Appellant failed to prove his claims against the Respondents.

In law, a Court does not fail to evaluate evidence merely because the result of that exercise did not favor the party alleging lack of evaluation of evidence. It would also not matter that the party so alleging does not like or fancy the style in which the trial Court has written its judgment. Thus, once the trial Court had identified the core issues as joined by the parties in their pleadings, reviewed and evaluated the evidence, oral and documentary, if there be any documentary Exhibits,

and putting them on the imaginary scale of justice and made findings of facts on the issues from the evidence and arrived at its decision one way or the other, it has discharged its cardinal, though onerous, duties as a trial Court. It is completely a different thing whether such findings and decisions were right or wrong, yet it cannot be successfully accused of having not evaluated the evidence at all. See pages 8 – 12 of the Record of Appeal for the Further and Further Amended Statement of Claim of the Appellant. See pages 21- 29 of the Record of Appeal for the Further Amended Statement of Defense/Counter Claim of 1st-4th Respondents. See also pages 48 – 52 of the Record of Appeal for the Appellant’s Reply to Statement of Defense and Counter – Claim, and see pages 65 – 67 of the Record of Appeal for the Amended Statement of Defense of the 5th – 7th Respondents.

Now, by Sections 8(1) of the Traditional Rulers and Chiefs Edict of 1979 of the Defunct Bendel State as applicable to Edo State, it is provided thus:
“Nothing in this Edict shall prevent the Executive Council from appointing any person or persons to investigate the

method of selection of any person to be the holder of any traditional ruler title and to make a declaration in writing stating the Customary law which regulates the selection of such a person to be the holder of the title.”

And by Sections 27 (1) of the Traditional Rulers and Chiefs Edict of 1979 of the Defunct Bendel State as applicable to Edo State, it is provided thus:
“The Executive Council or the appropriate authority as the case may be, may cause such inquiries to be held at such times and in such places and by such person or persons as it may consider necessary or desirable for the purpose of this Edict.”

Then, by Section 2 of the Traditional Rulers and Chiefs Edict, 1979, it is provided that ‘Appropriate Authority’ means thus:
“Member of the State Government charged with the responsibility for matters relating to Traditional Rulers and Chiefs.”

The products of the compliance with the above succinct provision of the applicable law, the Section 27 (1) of the Traditional Rulers and Chiefs Edit of 1979 of the Defunct Bendel State as applicable to Edo State are Exhibits M and N tendered before

the Court below, and which the Court below thoroughly scrutinized in the light of other evidence both oral and documentary, such as Exhibits J and K and came to its conclusion that on the proved and credible evidence it is the 4th Respondent that is the heir apparent to the vacant stool of Onojie of Ewohimi and thus entitled under the Esan Native Law and Custom to succeed his father, the late HRH S. U. Enosegbe, Onojie II of Ewohimi and whether this finding is wrong or not is not one to be determined under an issue merely alleging non evaluation at all of evidence of particular witnesses but is one which shall in due course in this judgment be considered and resolved but suffice to hold here and now that the Court below reviewed, considered and evaluated the entirety of the evidence led, including the evidence of PW1, PW2, PW3, PW5 and PW6, as well as the evidence of the Appellant as PW4 before coming to its findings of facts, conclusions and decisions, whether rightly or wrongly, in its judgment.

Now, Exhibits J and K, on which the Court below placed heavily reliance were made by the DW1 and DW2 on the personal instruction of HRH, Onojie II of Ewohimi

but was alleged by the Appellant to have been made specifically for and in anticipation of this case. I have reviewed the contents of these Exhibits, which were made in 1993 and 1990 respectively by DW1 and DW2, who were then the Palace Secretary and Private Secretary respectively and I find that they had no personal interest to serve in the making of these documents on the instruction of the Onojie II of Ewohimi and which documents made way back in 1993 and 1990 respectively when the Onojie II of Ewohimi himself was alive and reigning as such were not in any way made in anticipation of the Appellant’s Suit filed only in 1997 at the demise of the Onojie II of Ewohimi, I therefore, find these Exhibits very pertinent and clearly admissible in evidence and having been so rightly admitted in evidence by the Court below, was available for use, along with other such probative documentary Exhibits, by the Court below to assess the veracity of the oral evidence make necessary inference and arrive at proper findings. See Bunge V. Governor, Rivers State (2006) All FWLR (Pt. 325) 1 @ p. 49 where the Supreme Court held inter-alia as follows:

“The importance of documentary evidence is that it could be used to resolve an issue or conflicting evidence it could be used as a hanger from which to test the veracity of the oral testimonies.”
See also Essien V. Etukudo (2009) All FWLR (Pt. 496) 1886 @ p. 1904. See also U.N.I.C. V. U.C.I.C. Ltd. (1993) 3 NWLR (Pt. 593) 17.

It was the Appellant who had alleged positively that he is the first son of the late Onojie II of Ewohimi, and therefore, under the Esan Native Law and Custom, is the heir apparent to the stool of Onojie of Ewohimi. In law it was his duty to prove these positive assertions and not initially for the 1st – 4th Respondents to disprove, unless and until he has led credible evidence to reach the Rubicon of or the threshold of prima facie proof of these allegations. See Section 131 (1) of the Evidence Act 2011. See also Nwakanma V. Abaribe (2010) All FWLR (Pt. 505) 1767 @ p. 1786, where this Court had held inter alia thus:
“It is an elementary principle of law of evidence that he who asserts must prove. In other words, the person who makes an assertion that certain facts exist, has the onus to prove it and not otherwise.”

The Court below reviewed, evaluated, considered and disbelieved the evidence of the Appellant as well as the evidence of PW3, his Mother, that the Appellant adopted his maternal grandfather’s name from birth to protect him from evil that may befall him in the event that he answers the name of Enosegbe. I too see no reason to believe same at they are spurious and most unreasonable in the absence of any iota of evidence whatsoever demonstrating the existence of any situation where any of the other children of the Onojie II of Ewohimi, late HRH S.U. Enosegbe, who answered his name from birth, including the 4th Respondents and his siblings, had died mysteriously or afflicted with evil merely for answering their fathers’ name.

I have no doubt in my mind, having calmly considered the succinct provisions of the Traditional Rulers and Chiefs Edict 1979, the extant law, that the 5th – 7th Respondents were at all material times to the commencement of the Appellant’s Suit, the appropriate authorities vested with power to approve the appointment of the rightful person to the stool of Onojie of Ewohimi upon his being so installed by the Iwegbue, the

King makers of Ewohimi and thereby to hand to him the Staff of Office as prescribed by law. I consider such an act by the 5th – 7th Respondents, and it is so in law, as official acts which enjoys the general presumption that the formal requisites for the validity of all judicial or official acts were complied with so long as they are shown to have been done in a manner substantially regular. This is expressed in the Latin maxim, omnia praesumuntur rite et solemniter esse acta done probetur in contrarium, meaning all acts are presumed to have been done rightly and regularly until the contrary is proven. In law, the onus to rebut or disprove the applicability of this presumption lies on the person who asserts the contrary. See Section 22(2) of the Traditional Rulers and Chiefs Edict, 1979, which provides thus:
“Where a traditional chieftaincy title is conferred on a person by those entitled by customary law so to do and in accordance with customary law the prescribed authority or the Executive Council as the case may be, may approve the appointment.”
See also relied Nwachukwu V. State (2002)102 LRCN 2110; Benson V. Onitiri (1960) FSC 69;

Shitta – Bey V. AG of Federation (1998) 61 LRCN 4328; Saleh V. Muhammad (2010) 12 NWLR (Pt. 1209) 613.

One of the witnesses whose evidence was believed by the Court below, and quite rightly too in my view, was DW2, one Hon David Aimiebenomon, a former Private Secretary to the Onojie II of Ewohimi for seven years and who was very close to the Onojie II of Ewohimi from 1960 till his death in 1997 and also from the same quarters of Ohu, Ewohimi with the late Mother of the Onojie II. He testified with candor and accuracy and was not in the least shaken under cross examination, that the late HRH S. U. Enosegbe, Onojie II of Ewohimi in his life time had six wives and they lived with him, namely: 1. Queen Akukhasotor from Alease Quarters, Ohu, Ewohimi; 2. Ebahi from Izune Quarters, Ohu, Ewohimi; 3. Egowan from Izune Quarters, Ohum Ewohimi; 4. Elizabeth, Oghe Quarters, Eguare, Ewohimi; 5. Tosaline from Okaegben, Ewohimi and 6. Afekpe from Olenokuan, Eguare, Ewohimi. He also testified that the late Onojie II of Ewohimi had only 13 Sons and 25 daughters. The names of the 13 sons he gave as follows: 1. The first Ojeifo; 2. Eguahiojie; 3. Onodiagbe; 4. Ogieriakhi; 5. Eguakhide; 6.

Omikhian; 7. Onoaluna; 8. Onolukhe; 9. Ejimese; 10. Ogieide; 11. Ehizogie; 12. Emihele; 13. Ojeabor.

It was on the strength of the evidence, both oral and documentary, as led by the parties and their witnesses that the Court below had on 18/12/2006 delivered its judgment, wherein it dismissed in its entirety the claims of the Appellant as Claimant against the Respondents as Defendants, while granting the Counter – claim of the 1st – 4th respondents as Defendants/Counter – Claimants against the Appellant as Defendant by Counter – Claim.

The Appellant gave evidence that he is the first and most senior son of the late Onojie II of Ewohimi and that by custom he is entitled to be ascend the vacant stool of Onojie of Ewohimi and that the 4th Respondent is his younger brother and therefore, not entitled under the Esan Native Law and Custom to ascend the vacant stool of Onojie of Ewohimi and to be so installed by the 1st – 3rd Respondents and to be so approved by the 5th – 7th Respondents and that as the eldest surviving son of the late Onojie II of Ewohimi, his father was unjustifiably deprived of ascension to the stool by the 4th Respondent with the

active connivance of the 5th – 7th Respondents. He called in aid five witnesses, PW1, PW2, PW3, PW5 and PW6, and tendered several documents in evidence as Exhibits, all of which were, as I had earlier pointed out in this judgment, were calmly reviewed, evaluated and considered by the Court below contrary to the sweeping allegation that it was not evaluated at all.

It was in rebuttal of these claims, that the Respondents called three witnesses, including DW1 and DW2, who testified to the fact of the acknowledgment by both the Onojie of Ewohimi, the entire Palace of Ewohimi and the people of Ewohimi of the status of the 4th Respondent as the eldest son of the Onojie II of Ewohimi and therefore, the heir apparent to the stool of Ewohimi during the reign of the late Onojie II of Ewohimi, contrary to the claims of the Appellant who they stated is not the child of the late Onojie II of Ewohimi, who in his life time had not only declared and recognized the 4th Respondent as his heir apparent as in Exhibits J and K but has cursed anyone who would call or refer to the Appellant as his son. They also tendered several documents in evidence as Exhibits.

Now, the law regarding the succession of the Onojie of Ewohimi is as declared in Sections 1, 2, 3, 4, 5 of Bendel State, Legal Notice No. 48 of 1979, which states inter alia thus:
“1. There is only one Ruling House in Ewohimi known as Uhaikpen; 2. That Succession is by primogeniture and females are absolutely barred and therefore, should an Onojie die without a surviving male son succession passes unto his eldest surviving brother and his heirs; 3. If the heir apparent is a minor at his father’s death, his surviving paternal uncle acts as Regent until he attains majority; 4. Immediately upon the demise of an Onojie and, where practicable before interment, the heir apparent is symbolically placed on the throne by the Chief Priest (Osukhure) and proclaimed as the Onojie designate and thereafter the Onojje designate proceeds with the burial ceremonies of the deceased Onoije which will span a period of three months, and 5. The burial ceremonies having been completed, the Osukhure, assisted by the Oniha and the Odionwele would formally install the Onojie designate as Onojie in the presence of the Royal Family, traditional Chiefs and the General public.”

My lords, historically, there was in the tradition of Ewohimi that before a new Onojie of Ewohimi is installed his own Mother – the Queen Mother – is beheaded in order that she does not witness the installation of her son as the Onojie. Happily, it took the great courage and bravery of a war tested man, who fought overseas as a gallant soldier, and a man of impeccable integrity, in the person of the Onojie II of Ewohimi to put a stop to this tradition in 1949 at the demise of his own father, the Onojie II, when he insisted on ascending the throne without any bloodshed of his mother, and who thus spared an agonizing death and lived happily thereafter while her son reigned till her death and burial in 1990. See Exhibit K.

It was also contended for the Appellant that Exhibits J and K were inadmissible in evidence in that they are uncertified and mere photocopies of public documents. In response, it was contended for the 1st- 4th Respondents that Exhibits J and K, emanating from the Palace of the Onojie of Ewohimi are private documents and therefore, required no certification to be admissible in evidence. I have calmly

considered these divergent contentions by the parties in relation to the admissibility or otherwise of Exhibits J and K, which are documents apparently heavily relied upon by the Court below in reaching its verdict in favor of the 1st- 4th Respondents as against the Appellant. What then is a ‘Public document’?
By Section 109 of the Evidence Act 2011, Public documents are those:
(a) Documents forming the acts or records of the acts – (i) of the sovereign authority; (ii) of official bodies and tribunals, and (iii) of public officers, legislative, Judicial and executive, whether of Nigeria or elsewhere:
(b) Public records kept in Nigeria of private documents.

My lords, having calmly looked at Exhibits J and K, and situating them within the context of the provisions of Section 109 of the Evidence Act 2011, I find that they are not in the least public documents as vehemently but erroneously contended by the learned counsel for the Appellant. They are clearly private documents authored by DW1 and DW2 respectively on the instruction and active participation of the late Onojie II of Ewhohimi in 1993 and 1990 respectively. They do not

therefore, in law require any certification, not being public documents, to be admissible in evidence and were thus, rightly admitted in evidence by the Court below.

Now, Exhibits J and K are documents recognized and personally endorsed with and by the name of Onojie II in his life time long before his death in March 1997 and when the issue of succession to the stool of Onojie of Ewohimi arose between the Appellant and the 4th Respondent. They are therefore, not by even the wildest imaginations, made for the purposes of this case. They were made by the Onojie II of Ewohimi himself and recorded and or edited in his life time by his Palace Secretary and Private Secretary, who testified as DW1 and DW2 respectively, with no iota of any personal interest in the succession to the stool of Onojie II of Ewohimi. They were therefore not only admissible in evidence and so properly admitted but also very relevant, credible and highly probative and thus correctly relied and acted upon by the Court below to make findings of facts on the crucial issues as joined by the parties.

A peep into Exhibit K would reveal the pedigree, integrity, honesty and acclaimed

bravery of the man who endorsed Exhibit J. A man who singlehandedly changed the course of history of Ewohimi forever and for good by insisting, ensuring and putting a stop to the killing of the mother of a would be Onojie before his installation as was the sacred custom of the people of Ewohimi even at the risk of his not becoming the Onojie of Ewohimi in 1949 at the death of his father when the stool of Onojie of Ewohimi became vacant. It is this great man of history that authorized and authored Exhibit J as well as Exhibit K in which he made it abundantly clear and without mincing words that the 4th Respondent is his first son and the heir to the throne of Onojie of Ewohimi. Where, if one may ask was the Appellant in 1993 when Exhibit J was made and in 1990 when Exhibit K was made? Nowhere to be found and even though at that time even the 4th Respondent was an undergraduate in faraway Tokyo Japan, he did not stop his father, the Onojie II of Ewohimi from acknowledging him in Exhibits J and K as his heir apparent to the stool of Onjie of Ewohimi.

Let me now consider Exhibits M and N, which are also other vital documents which were either relied upon or

discountenanced by the Court below and forming part of the complaints in this appeal. It has been contended vehemently for the Appellant that whilst Exhibit M was a one man show made ultra vires the provisions of the Traditional Rules and Chiefs Edict 1979 in that the then Chairman of Esan South – East Local Government Council who authored Exhibit M was not a proper authority under the said law to resolve any dispute over a registered Chieftaincy and that Exhibit N on the other hand constituted a valid arbitration showing and proving that the Appellant is the First son of the late Onojie II of Ewohimi and therefore, the heir apparent to the stool of Onojie of Ewohimi, contrary to the weight rather placed on Exhibit N than on Exhibit N by the Court below and the resultant perverse finding thereon.

Now, Exhibit M is a letter dated 7/7/1997 and written by way of a report of the investigation and findings of one Dr. S.C. Obahayujie, the then Chairman of Esan South – East Local Government on the dispute over the stool of Onojie of Ewohimi as referred to him by the 6th Respondent. It stated inter alia that the late Onogie II had 58 children with one Peter

Ojiefoh Usifoh, the 4th Respondent herein, as the 1st son and who was crowned by the Iwebo society as the Ojiefoh Usifoh II, Onojie of Ewohimi and that Appellant is a pretender and usurper to the stool of Onojie of Ewohimi having been born and raised as Amiegbereta Ochie. That the people of Ewohimi do not know the Appellant and he in turn does not know the names of people in Ewohimi, not the names of the Chiefs appointed by the late Onojie II of Ewohimi and not even the name of the Prime Minister of Ewohimi, one Chief Oliha and had never even one day visited Ewohimi Palace during the reign of Onogie II until his death in 1997.

So then, what about Exhibit N? Exhibit N consists of the entire proceedings, findings and recommendations of the Esan Council of Traditional Rulers on the succession to the vacant stool of Onojie of Ewohimi as between the Appellant and the 4th Respondent. It was found inter alia that:
1. That the late Onojie of Ewohimi, HRH S. U. Enosegbe II married Wives including Akunkhasetor and Lucy, the mothers of Prince Ojiefoh And Prince Adonis respectively who are the two contestants to the vacant Stool of Ewohimi; 2. That the two

contestants to the throne, that is Prince Adonis and Prince Ojeifoh are the legitimate sons of the Late Onojie of Ewohimi HRH S.U. Enosegbe II; 3. That there is incontrovertible evidence that Prince Adonis was born before Prince Ojiefoh; 4. That the statement “you are not the owner of the pregnancy” made by Lucy (Adonis mother) to late S. U. Enosegbe II led to a situation whereby the late Onojie disowned Prince Adonis and which created a situation where Prince Adonis had to be answering his maternal father’s name and also for security reasons up to 1998 when vide the Observer publication of 31/5/1998 Prince Adonis changed his surname from his maternal father’s name to his “real” father’s name late Onojie, HRH S. U. Enosegbe II, a publication which the late Onojie never refuted in his life time, which means that Prince Adonis was answering his father, the late Onojie’s name in his further studies until when the late Onojie died in 1997; 5. It was also discovered that the late Onojie, H.R.H. S. U. Enosegbe II cursed whosoever would call Prince Adonis his child; and 6. It is a fact that Prince Adonis did not participate in the traditional rites occasionally

performed during the life time of the late Onojie HRH S. U. Enosegbeli because he was disowned by the late Onojie.

It was then recommended that:
“From the findings above, we the Royal Fathers conclude that Prince Adonis Amiegbereta was supposed to be the first son of late Enosegbe II but he was disowned as a result of the utterances of his mother Lucy “that the Onojie was not the owner of the pregnancy.”

My lords, it was faced with the contents of Exhibits M and N and having considered them in line with both the pleadings and other pieces of evidence, notably Exhibits J and K, that the Court before felt inclined to believing the contents of Exhibit M, which it considered very clear and unambiguous whilst finding itself unable to believe the contents of Exhibit N, which it found to be inconsistent as well as being self – contradictory.

Ordinarily, it would appear that Exhibit N is a customary arbitration and in law its validity would depend on whether or not it satisfies the essential ingredients of a valid customary arbitration. If it does then the parties, who had voluntarily submitted to the customary arbitration are in

law bound by the decisions handed down by the customary arbitrators they would be allowed to renege from it. See Ehoche V. Ijegwa (2003) FWLR (Pt. 154) 560 @ pp. 588 -589, where the Court laid down the following as the essential ingredients of a valid customary arbitration, namely:
(a) That there had been a voluntary submission of the matter in dispute to an arbitration of one or more persons;
(b) That it was agreed by the parties either expressly or by implication that the decision of the arbitration would be accepted his final and binding;
(c) That the said arbitration was in accordance with the customs of the parties or of their trade or business;
(d) That the arbitration reached or decision and publish their award;
(e) That the decision or award was accepted at the time it was made.
However, like every decision to be binding it must have made findings and decisions which could be discernible and not decisions which are neither here nor there as in deciding one thing in one breadth and in another breadth, on the same evidence, deciding an entirely different and contradictory thing. Thus, where decisions in a customary arbitration turn out to be

self – contradictory, inconsistent and not making any discernible findings, then a trial Court being primarily saddled with the sacred duty of evaluation and making of finding of facts will jettison such contradictory and inconsistent decision of a customary arbitration, where there is no discernible victor or vanquish, and proceed to evaluate the evidence led by the parties before it and make proper findings and arrive at decisions as dictated by the justice of the case.

I have for myself taken time to scrutinize Exhibits M and N, and considered their contents in line with both the pleadings and other evidence of the parties, and I am inclined to agree and I do hereby find as satisfactory and correct the approach adopted by the Court below in considering the probative values and weight to attach to each of Exhibits M and N. I too find as fact that Exhibit M, was inconsistent and self – contradictory and leaving no room to ascribe any credibility to it. In addition, I find that its findings were glaringly contradictory to the position of the Onojie II of Ewohimi himself as expressed in Exhibits J and K long before the dispute as to his successor to the

stool of Onojie of Ewohimi. That is not all, Exhibit N, by its recommendation, and contrary to its findings, clearly excluded the Appellant from ascending the stool of Onojie of Ewohimi. Yet, but so curiously, it is the same Exhibit N that the Appellant is seriously contending found in his favor that he is the one entitled to as against the 4th Respondent to ascend the vacant stool of Onojie of Ewohimi upon the demise of the Onojie II of Ewohimi in March 1997. I do not see, as the Court below also did not see and quite rightly too, how the inconsistent and self – contradictory findings and recommendation in Exhibit N could possibly, even remotely, aid and affirm the claims of the Appellant to ascend the vacant stool of Onojie of Ewohimi at the demise of the incumbent Onojie II of Ewohimi in March 1997. The Court below was thus right not placing any weight on Exhibit N. I too would in this judgment do no such thing. In the circumstances therefore, issue two is hereby resolved against the Appellant in favor of the 1st – 4th Respondents as well as in favor of the 5th – 7th Respondents.

ISSUE THREE
Whether the Appellant’s witnesses raised issues and

if they did whether the Court below was right in failing to evaluate the said issues raised by the Appellant’s witnesses?

APPELLANT’S COUNSEL SUBMISSIONS
On his issue two, learned counsel for the Appellant had submitted that having regard to the pleading of the parties and the evidence adduced by the Appellant he established on the preponderance of evidence that he is the 1st son and heir apparent to the vacant stool of Onojie of Ewohimi and contended that since the vital pieces of his evidence were not cross examined upon by the Respondents in law, such relevant evidence which were not contradicted or discredited ought to be relied and acted upon by the Court below and urged the Court to hold that on the face of the un-crossexamined evidence of the Appellant and his witnesses, PW1, PW2 and PW3 that as between the Appellant and the 4th Respondent, the Appellant was the oldest surviving son of the late HRH S. U. Enosegbe, the Court below was in error when it rather believed the evidence of DW2 that the 4th Respondent was older than the Appellant and that the Appellant is not the son of late HRH S.U. Enosegbe and to allow the appeal and set

aside these perverse findings in the judgment of the Court below Counsel relied on Nava V. Nava (2006) 3 NWLR (Pt. 96) 44; Nigeria Customs Service V. Bazuaye (2000) 3 NWLR (Pt. 963) 300; Wace V. Oshiowebo (2006) 12 NWLR (Pt. 994) 258; Agbonifo V. Aiwereoba (1988) 2 SCMJ 146; Gaji V. Paye (2003) FWLR (Pt. 163) 7; Oforlete V. State (2000) 12 NWLR (Pt. 681) 1.

On his issue three, learned counsel for the Appellant had submitted that the Court below wrongly relied wholly on Exhibits M and N to arrive at its findings that the Appellant did not prove his claim to entitlement to ascendency to the vacant stool of Onojie of Ewohimi while finding for the 4th Respondent and contended that these findings were perverse in that they are not supported by the evidence led and therefore, in law cannot stand and urged the Court to intervene to re-evaluate the evidence led by the parties, which were mostly documentary, and come to the proper findings in favour of the Appellant on the un – contradicted evidence of the Appellant and his witnesses and give effect to the favorable findings in Exhibit N, a valid arbitration by the Traditional Rulers in Esan South – East

Local Government Area, to which both parties voluntarily submitted, to the effect that the Appellant was the oldest son of the late HRH S. U. Enosegbe and to allow the appeal, set aside the judgment of the Court below and grant the claims of the Appellant against the Respondents. Counsel relied on Ajuwon V. Akanni (1993) 19 NWLR (Pt. 316) 182; Ehoche V. Ijegwa (2003) FWLR (Pt. 154) 560 @ pp. 588 -589.

It was also submitted that the 5th Respondent having not challenged the findings in Exhibit N in Court cannot be allowed in law to reopen and setup the issues of the age and/or paternity of the Appellant already decided upon in Exhibit N by way of counter-claim before the Court below and contended that had the Court below given Exhibit N its ordinary, clear and unambiguous meaning it clearly established the Appellant as the first son of HRH late S. U. Enosegbe, Onojie of Ewohimi and therefore entitled under the rule of primogeniture to ascend to the vacant stool of Onojie of Ewohimi and urged the Court to so hold and to allow the appeal and set aside the judgment of the Court below and grant the claims of the Appellant against the Respondents. Counsel

referred to Sections 5 and 8 of the Traditional Rulers and Chiefs Edict 1979 and Section 151 of the Evidence Act 1990 and relied on Agu V. Ikewibe (1991) 3 NWLR (Pt. 180) 385; Igwego V. Ezeugo (1992) 6 NWLR (Pt. 249) 56; Larbi V. Kwesi (1950) 3 WACA 81; Ehoche V. Ijegwa (2003) FWLR (Pt. 154) 589.

1ST- 4TH RESPONDENTS’ COUNSEL SUBMISSIONS
On his issue three, learned counsel for the 1st – 4th Respondents had submitted that in law it is true that it is the cardinal duty of a trial Court to consider all issues raised by parties but contended that a trial Court has no business considering issues raised merely by witnesses and not based on or derived from the pleadings of the parties as being urged upon this Court by the Appellant and urged the Court to hold that the Court below duly considered all the issues arising from the pleadings of the parties and made proper findings on each of them and to discountenance the allegation bordering on vague, non – specified and no discernible issues raised by the learned counsel for the Appellant and to dismiss the appeal for lacking in merit and affirm the judgment of the Court below. Counsel relied

on Sha V. Kwan (2000) 5 SCNJ 101 @ p. 166.

It was also submitted that assuming there are issues properly raised but allegedly not determined by the Court below, in law the only ground where it would vitiate the judgment of the Court below is where the Appellant is able to show that it had occasioned a miscarriage of justice and thereby denied him fair hearing and contended that the Appellant failed to show any issue properly raised by the Appellant that was not determined by the Court below and urged the Court to hold that in the circumstances, the Appellant failed to make out any miscarriage of justice or breach of his right to fair hearing to warrant this Court to interfere with and disturb the sound judgment of the Court below and to dismiss the appeal and affirm the judgment of the Court below. Counsel relied on Owuru V. Adigwu (2018) All FWLR (Pt. 939) 2058 @ pp. 2073 -2074; Federal Ministry of Health V. Comet Shipping Agencies Ltd. (2009) NWLR (Pt. 1145) 193; Ifeanyichukwu (Osondu) Company Ltd. V. Sole Boneh Nig. Ltd. (2000) FWLR (Pt. 27) 4045; Owodunni V. Registered Trustees of Celestial Church of Christ (2000) FWLR (Pt. 9) 1455.

APPELLANT’S COUNSEL REPLY SUBMISSION
In his reply, learned counsel for the Appellant had submitted that Exhibit M was solely made by the erstwhile Chairman of Esan South – East Local Government Council without the input of any witness and was also not made known to the public as no memo were presented by interested parties or disputants or considered and contended that it was clearly ultra vires the procedures for resolution of Chieftaincy dispute of a registered Chieftaincy title or declaration such as the declaration in relation to the stool of Ewohimi and urged the Court to hold that on the contrary, Exhibit N was made in line with the provisions of the extant law and thus a valid customary arbitration which ended with findings in favor of the Appellant as the oldest son of HRH S. U. Enosegbe and heir apparent to the vacant stool of Onojie of Ewohimi and to allow the appeal, set aside the perverse judgment of the Court below and grant the claims of the Appellant against the Respondents. Counsel referred to Sections 8(1) and 27(1) of the Traditional Rulers and Chief Edict 1979.

RESOLUTION OF ISSUE THREE
My lords, whilst

considering issue two as above in this judgment, I have already held that the Appellant’s contention that the Court below failed to consider the evidence of his witnesses before arriving at its findings and decisions were not made and that the Court below duly carried out its primary duty of reviewing, evaluating and considering the entirety of the evidence led by the parties, both oral and documentary before arriving at its findings of facts and reaching its decisions thereon.

However, I have considered the submissions of learned counsel for the parties on this related issue alleging that the Court below did not consider and resolve issues raised by the Appellant’s witnesses and which failure had occasioned a grave miscarriage of justice. In law, it is true that it is the cardinal duty of a trial Court to consider all issues raised by parties. However, I am afraid there is no such corresponding duty on a trial Court to consider and resolve issues raised merely by witnesses but not based on or derived from the pleadings of the parties and the issues joined therein. Thus, witnesses are not at liberty to raise issues in their evidence unrelated

to the issues as joined by the parties in their pleadings and therefore, all such issues, being not issues in the case, would go to no issue and must either be ignored out – rightly or Courteously be discountenanced. At any rate, I have gone through the submissions of learned counsel for the Appellant and the issues alleged to have been raised by the Appellant’s witnesses but not considered and resolved by the Court below are nowhere to be seen or at best remained vague, non – specified and thus amounting to no discernible issues at all and this issue must therefore, be discountenanced and I find neither any miscarriage of justice at all nor any breach of the Appellant’s right to fair hearing as none has been made out against the judgment of the Court below on this ground of complaint. See Owuru V. Adigwu (2018) All FWLR (Pt. 939) 2058 @ pp. 2073 -2074; Federal Ministry of Health V. Comet Shipping Agencies Ltd. (2009) NWLR (Pt. 1145) 193; Ifeanyichukwu (Osondu) Company Ltd. V. Sole Boneh Nig. Ltd. (2000) FWLR (Pt. 27) 4045; Owodunni V. Registered Trustees of Celestial Church of Christ (2000) FWLR (Pt. 9) 1455. In the circumstances therefore,

issue three is hereby resolved against the Appellant in favor of all the Respondents.

ISSUE FOUR
Whether the Court below was right when it held that Exhibits B, C1 – C2 and D – D1, did not in any way help the case of the Appellant?

APPELLANT’S COUNSEL SUBMISSIONS
On his issue six, learned counsel for the Appellant had submitted that Exhibits B, C – C2, and D – D1 creditably supported the case of the Appellant and established the facts of his seniority over the 4th Respondent, which at any rate has never been an issue even before the demise of S. U. Enosegbe the Onojie of Ewohimi, and contended that these Exhibits further concretized the evidence of the Appellant and his witnesses surrounding the circumstances of his answering the name Ochie, the name of his maternal father used to shield him from attack by evil forces as his eldest sister died of mysterious circumstances and how he later changed his name to his father’s name upon coming of age in the Nigerian Observer newspaper to the knowledge of his father and the Ewohimi palace and other acts done for his younger sister of the same father with the 4th

Respondent, which evidence were all admitted having not been cross examined upon by the Respondents and urged the Court to hold that the failure of the Court below to consider and make proper findings on these vital Exhibits caused a grave miscarriage of justice and to allow the appeal and set aside the judgment of the Court below and grant the claims of the Appellant against the Respondents. Counsel relied on Gaji V. Paye (2003) FWR PT 183; Ajuwon V. Akanni (1993) 19 NWLR (Pt. 316) 182.

1ST- 4TH RESPONDENTS’ COUNSEL SUBMISSIONS
On his issue four, learned counsel for the 1st – 4th Respondent had submitted that Exhibits B, C – C1, and D- D1 are all of no value on the unchallenged evidence that the Appellant never met with the said Onojie II of Ewohimi all through his lifetime and reign having denied the paternity or the Appellant and reported to have cursed whoever refers to the Appellant as his child and as affirmed in Exhibit N heavily being relied upon by the Appellant, and contended that it was in the same Exhibit N it was found and strongly recommended that the 4th Respondent is the heir apparent to the vacant stool of Onogie of Ewohimi

as against the Appellant and urged the Court to hold that HRH S.U. Enosegbe II who never identified with the Appellant during his lifetime also never had any communication with him under whatever guise to warrant receiving letters or whatever kind from him, including Exhibits C – C1, neither did he commission him to do any document such as the ones contained in Exhibits D – D1 and to discountenance, as was rightly done by the Court below, these vacuous documents in Exhibits B, C-C1, and D – D1 with no evidential value whatsoever to the Appellant as held by the Court below and to dismiss the appeal for lacking in merit and affirm the judgment of the Court below.

RESOLUTION OF ISSUE FOUR
My lords, this issue is one challenging the views of the Court below that Exhibits B, C – C1, and D- D1, though tendered by the Appellant and admitted in evidence, were all of no value and to no avail to the Appellant in his duty to prove his positive allegations that he is the first son of the late Onojie II of Ewohimi and the heir apparent to the stool of Onojie of Ewohimi and therefore, the person entitled as against the 4th Respondent to ascend the vacant stool

of Onojie of Ewohimi on the demise of Onojie II of Ewohimi, his late father.

I have reviewed, evaluated and considered the entirety of the pleadings and evidence of the Appellant and his witnesses as well as scrutinized Exhibits B, C – C1 and D – D1 and I find that these pieces of documentary evidence, going by the facts required to be proved by the Appellant, on the face of several unchallenged pieces of evidence from the DW1 and DW2, who should know, being the Palace Secretary and Private Secretary to the late Onojie II of Ewohimi during some part of his reign, that the Appellant had never met with the Onojie II of Ewohimi in person all through his life time and reign and never had any relationship with him, having denied the paternity of the Appellant and reported to have cursed whoever refers to the Appellant as his child, as affirmed even in Exhibit N heavily being relied upon by the Appellant, were completely bereft of any probative value and therefore, the Court below was perfectly right and on firmer ground, when it stated that these Documentary Exhibits B, C – C1 and D – D1 did not, and I may add in any way, helped the case of the Appellant. That

remains the gospel truth. In the circumstances therefore, issue four is hereby resolved against the Appellant in favor of all the Respondents.

ISSUE FIVE
Whether the Court below was right when it failed to give any probative value to Exhibits H1 – H3?

APPELLANT’S COUNSEL SUBMISSIONS
On his issue one, learned counsel for the Appellant had submitted that the Ewohimi chieftaincy declaration is a registered one under the Chiefs law and ascendency is by the rule of primogeniture and in the event of dispute to ascendancy when vacant, the authority lies with the Executive Council to refer such dispute for investigation and contended that when the late HRH S. U. Enosegbe joined his ancestors, the Appellant was invited by the Uhaikpen Ruling House to present himself for installation but was prevented by the 1st- 4thRespondents and by Exhibit L, the Appellant protested which led to the investigation resulting into Exhibit N, unlike Exhibit M, which was made unilaterally by the then Esan South – East Local Government Chairman, one Obahayujie a Native of Ewohimi and urged the Court to hold that the Local Government Chairman is by law

incapable of constituting himself into a Traditional Council to resolve Chieftaincy as was purported to be done in Exhibit M since that would be contrary to the strict provisions of the Chief Edict 1979, whose findings were discriminatory and were all disproved by the findings in Exhibit N and to allow the appeal and set aside the judgment of the Court below. Counsel referred to Sections 1, 2, 3, 4, 5, 27 (1) and 45 (2) of the Traditional Rulers and Chief Edict 1979, Legal Notice No. 48 of 1979; Section 42 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and relied on Adejugbe & Anor V. Ologunja (2005) SCMR Vol. 1 @ p. 24.

On his issue eight, learned counsel for the Appellant had submitted that the Court below was in error when it held that Exhibit J and K are not public documents and that Exhibit H1 – H3 are not relevant in law to establish the fact of the father – son – wife/mother relationship between the Appellant – his father, the late HRH S. U. Enosegbe – his mother, the wife of HRH S. U. Enosegbe and contended that Exhibits J and K were procured in anticipation of the Appellant’s Suit by the 1st- 5th

Respondent and urged the Court to hold Exhibits J and K were discriminatory and ought to have been discountenanced by the Court below and not used as evidence of compliance with the rule of primogeniture and finding for the 4th Respondent as the Court below did perversely and to allow the appeal and set aside the judgment of the Court below and grant the claims of the Appellant against the Respondents. Counsel referred to Section 95 (3) of the Evidence Act 2011; Section 42 of the Constitution of the Federal Republic of Nigeria 1999 (as amended); Section 8 of the Traditional Rulers and Chiefs Edict 1979; S. A. Adesanya: Laws of Matrimonial Causes @ p. 143 and relied on Bamgbose V. Danville 14 WACA 111 @ p. 115; Ajide V. Kelani (1985) 3 NWLR (Pt.2) 248, Babalola V. Badmus Wellington (1998) 2 NWLR (Pt. 572) 167; Crain Cross V. Lartimer (1860) 3 LTR 130; Koiki & Ors v. B. B. Magnusson (1999) Vol. 69 LRCN 1.

It was also submitted that first son is a birth right that cannot be tempered with even by the Onojie of Ewohimi and contended that Exhibits H – H3 are relevant, admissible in evidence and did prove the paternal relationship between the Appellant and

his father, the late HRH S. U. Enosegbe and urged the Court to hold that the Court below was in error when it expunged Exhibits H1 -H3 in its judgment without making any finding of facts on them on the faulty ground that they were legally inadmissible and to allow the appeal and set aside the judgment of the Court below for being a nullity. Counsel referred to the book: Esan Native Law and Customs with ethnographic Studies of the Esan people by Dr. C. U. Okojie @ p. 123 and relied on the African Charter on Human and Peoples Rights, to which Nigeria is a signatory.

1ST- 4TH RESPONDENTS’ COUNSEL SUBMISSIONS
On his issue five, learned counsel for the 1st – 4th Respondents had submitted that Exhibits H – H3 are alleged photographs of certain persons which were taken by a third party whose name is not disclosed by PW6 through whom they were received in evidence and contended that on the evidence, they were brought to the PW6 by the Appellant with instruction to re – snap them with a view to procuring their negatives for the mere purposes of tendering them in evidence and urged the Court to hold that Exhibits H – H3 tendered by PW6 who does not

know anything about them and not also being an expert in photography but a mere apprentice, were documents with no probative value at all to the case of the Appellant and were thus rightly discountenanced by the Court below and to dismiss the appeal and affirm the judgment of the Court below. Counsel relied on Attorney General of the Federation V. Abubakar (2007) All FWLR (Pt. 375) 405 @ p. 555; Nigeria Bottling Company Ltd. V. Ubani (2009) All FWLR (Pt. 497) 80 @ p. 105.

5TH – 7TH RESPONDENTS’ COUNSEL SUBMISSIONS
On his issue three, learned counsel for the 5th – 7th Respondents had submitted that upon receipt of Exhibit L by the 5th Respondent, it was forwarded to the 7th Respondent for investigation and who in turn forwarded it to the Chairman of Esan South East Local Government Council for investigation, which he did and produced Exhibit M, which was then forwarded to Traditional Council of Esan South East Local Government Area, which investigated the matter and produced Exhibit N, and contended that both Exhibits M and N were products of lawful authority as provided under the Chiefs Edict 1979 and were thus properly before the Court below

and urged the Court to hold that Exhibit M was written to forward Exhibit N to the Directorate of Chieftaincy Matters and merely reinstated the conclusion contained in Exhibit N to the effect that the 4th Respondent is the rightful person to ascend the stool of Onojie of Ewohimi as was also found rightly by the Court below and to dismiss the appeal and affirm the judgment of the Court below. Counsel referred to Sections 27(1); 45 (1) and 47 (1) of the Traditional Rulers and Chiefs Edict, 1979.

APPELLANT’S COUNSEL REPLY SUBMISSION
In his reply, learned counsel for the Appellant had merely rehashed and reiterated his earlier submissions in the Appellant’s brief, which is not the purpose and purport of a reply brief. The reply brief, which must be succinct and respond to new points or fresh issues raised in the Respondent’s brief, is not and cannot be an avenue for the Appellant to re – argue his appeal or merely to have second bite at the cherry. The reply brief is for the serious business of answering to new points or fresh issues raised in the Respondent’s brief which were not covered by the submissions in the

Appellant’s brief. It need not and ought not to be filed as just a matter of course even where there is nothing new or fresh in the Respondent’s brief to respond to by the Appellant. The thinking that unless a reply brief is filed, even where it is completely unnecessary, it would mean that the Respondent has had the last word is not true and must therefore, be discouraged. The appeal process is not just about who had the last word but in whose favor is the evidence and the law relevant to the issues in contention between the parties in the Appeal. See Order 19 Rules 5 (1) of the Court of Appeal Rules 2016, where it is provided thus:
“The Appellant may also, if necessary, within fourteen days of service on him of the Respondent’s brief, file and serve or cause to be served on the Respondent a reply brief which shall deal with all new points arising from the Respondent’s brief.”
See Olafisoye V. FRN 2004 1 SC Pt. II 27; Ikine V. Edjerode (2001) 12 SC (Pt. 11) 94; Longe V. FBN (2010) 2 – 3 SC 61; Okpala V. Ibeme (1989) 2 NWLR (Pt. 102) 208; Ajileye V. Fakayode (1998) 4 NWLR (Pt. 545) 184; Agwasim V. Ejivumerwerhaye

(2001) 9 NWLR (Pt. 718) 395; Registered Trustees, Ikoyi Club 1938 V. Mr. Timothy Ikujuni (2019) LPELR – 47373 (CA).
I have gone through the gamut of the reply brief of the Appellant on this issue under consideration here and I find that it brought nothing really worth anything to the table on this issue that has not already been submitted upon in the Appellant’s amended brief.

RESOLUTION OF ISSUE FIVE
My lords, this issue deals squarely with the probative value and/or weight to be attached or ascribed to Exhibits H – H5 and the contention by the Appellant that the Court below was wrong in not considering and ascribing the probative weight these Exhibits deserved and thereby, caused a grave miscarriage of justice against the Appellant. I have taken a look at the pleadings and reviewed the evidence of the Appellant as well as the evidence of PW6. I have also scrutinized Exhibits H, H1 – H5, which are negatives and photographs relied upon by the Appellant, in proof of his paternal relationship with the late Onojie II of Ewohimi.

On Exhibits H1 – H5, there are photographs of certain persons, which the PW6 admitted were not taken by

her and was over 20 years old. She neither knows the people in the photographs nor who took the original photographs but all she knows was that the photographs were brought to her by the Appellant with instruction to re-snap them with a view to procuring their negatives for the purposes of tendering them in evidence. In all fairness to the PW6, she was not expected, in the circumstances in which these photographs were brought to her by the Appellant, to know anything about them. The Court below in these circumstances, saw and found no probative value or worth in Exhibits H1 – H5, and therefore discountenanced them in its judgment.

Having therefore considered the totality of the issues of facts in dispute and the evidence as to the paternity and filial relation relationship between the Appellant and the late Onojie II of Ewohimi as given by witnesses to both parties, and considering the circumstances surrounding the production of Exhibits H1 – H5 by PW6, I am one with and on the same page with the Court below that Exhibits H1 – H5, whose origin and procurement are clearly doubtful, were in law documents with no probative value at all to the case of

the Appellant. They were therefore rightly discountenanced by the Court below and I so hold.

In my finding therefore, Exhibits H – H5 were at best a dishonest attempt by the Appellant to recreate evidence for the purpose of inaugurating a false claim through contrived negatives from pictures which no longer had any of their own negatives for the purposes of their admissibility in evidence. Thus, honesty and integrity would, in my view, required that the Appellant presents the truth and true position of the worn out pictures and that they no longer have any negatives with which to tender them in evidence and see if there be any legal way out in law to tender them in evidence than resorting to procuring PW6 to re-snap the old worn out pictures, of which she knows nothing about, in order to create negatives merely and solely for the purposes of the admissibility of these old worn out pictures. These pictures in Exhibits H1 – H5, whose negatives were so dishonestly procured and produced in evidence before the Court below are worthless and indeed brought nothing neither tangible nor of any probative value to the table on the crucial issues for

determination in the case before the Court below. In the circumstances therefore, issue five is hereby resolved against the Appellant in favor of all the Respondents.

ISSUE ONE
Whether the 1st – 4th Respondents were in breach of the Interim Order issued by the Court below and dated 12/6/1997 restraining them from performing the burial ceremony of the Late Onogie of Ewohimi. HRH S. U. Enosegbe II and whether the alleged flouting or breach of the said Order affected the validity of the letter of appointment issued to and the Staff of Office granted the 4th Respondent by the 6th Respondent as the Onogie of Ewohimi?

APPELLANT’S COUNSEL SUBMISSIONS
On his issue seven, learned counsel for the Appellant had submitted that the Court below failed to consider the disobedience of its interim Order in Exhibit E by the 5th Respondent in carrying out the burial rites and ceremonies of the late HRH S. U. Enosogbe and contended that in law, the failure to make a finding on the flouting of the Order of interim injunction occasioned a grave miscarriage of justice since under the Esan Native Law and Custom the carrying out of the burial rites and

ceremonies of the late HRH S. U. Enosegbe is a condition precedent for the installation of a would be an Onojie of Ewohimi to the vacant stool and urged the Court to hold that the said action of the 4th Respondent was an affront on the authority of the Court and which failure to consider had fundamentally affected the entire proceedings and judgment of the Court and to allow the appeal and set aside the judgment of the Court below. Counsel referred to Section 4 of the Bendel State Legal Notice, No. 48 of 1979 and relied on Sha V. Kwan (2000) 5 SCNJ 101 @ p. 106; ANYALE V. ADI (1986) 2 NWLR (Pt. 31) 731.

1ST- 4TH RESPONDENTS’ COUNSEL SUBMISSIONS
On his issue two, learned counsel for the 1st-4th Respondents had submitted that ID1, being an interim Order of injunction restraining the performance of the burial ceremony of the late HRH S. U. Enosegbe, Onojie II of Ewohimi, is in law usually granted till a named date and contended that in law an interim Order of injunction cannot be granted to last till the determination of the substantive case and that the said interim Order of injunction obtained on 12/6/1997 had since lapsed and outlived its

life span before the ceremonies for the burial rites of the late Onojie II were carried out by the 4th Respondent and urged the Court to hold that it being merely tendered for identification purposes did not constitute any evidence before the Court below and the act of the 5th respondent in carrying out the burial ceremonies of his late father, Onojie II of Ewohimi on 6/7/1997, twenty five days after the order of interim injunction was granted and had lapsed did not constitute any breach of the said order to warrant the setting aside of the said action of the 4th Respondent. Counsel referred to the book: “Injunctions and Enforcement of Judgments” by Chief Afe Babalola, SAN, 2nd Edition @ p. 15 and relied on Kotoye V. Central Bank of Nigeria (1989) 2 SCNJ 31; A.I.C. Limited V. Nigerian National Petroleum Corporation (2005) All FWLR (Pt. 270) 1945 @ p. 1971; U.B.N. Plc. V. Uwa Printers (Nig.) Ltd. (2011) All FWLR (Pt. 596) 578 @ pp. 588 -589; Sabru (Nig.) Ltd. V. Jezco (2001) 2 NWLR (Pt. 679) 364; Olowu V. Building Stock Ltd. (2004) 4 NWLR (Pt. 864) 445 @ p. 458.

It was also submitted that when the Appellant’s Suit was struck out on 31/1/2000 and

even though relisted on 21/2/2000, the interim Order of injunction made on 12/6/1997 became extinct and was no longer a live order notwithstanding the subsequent relisting of the Suit on 21/2/2000 and heard de novo by another Judge and contended that in law the effect of hearing the Suit afresh is that it wipes away all previous Orders made in the previous trial and urged the Court to hold so hold and to dismiss the appeal for lacking in merit and affirm the judgment of the Court below. Counsel relied on Obiuweubi V. Central Bank of Nigeria (2011) All FWLR (Pt. 575) 208 @ p. 233; Ezobo V. The State (2005) All FWLR (Pt. 267) 1486 @ pp. 1506 – 1507.

5TH – 7TH RESPONDEMNTS’ COUNSEL SUBMISSIONS
On his issue one, learned counsel for the 5th – 7th Respondents had submitted that the Application to relist the Appellant’s Suit was not served on the 5th – 7th Respondents and thereby rendering the relisting of the Appellant’s Suit on 21/2/2000 as one done without jurisdiction and contended that in the circumstances, there was no pending Suit as at 4/2/2000 when the 5th – 7th Respondent handed over the Staff of Office to the 4th Respondent and urged

the Court to hold that in the absence of any affidavit of service there is no proof of service of the application to relist the Appellant’s Suit on the 5th – 7th Respondents as required by law for the validity of the Order relisting the Appellant’s Suit and to dismiss the appeal for lacking in merit and affirm the judgment of the Court below. Counsel relied on Ayogu V. Nnamani (2004) 15 NWLR (Pt. 895) 134 @ p. 151; Bello V. NBN Ltd. (1992) 6 NWLR (Pt. 246) 206 @ p. 213; Bello V. INEC (2010) 8 NWLR (Pt. 1196) 342 @ p. 353; Odutola V. Kayode (1994) 2 NWLR (Pt. 324) 1 @ p. 22.

It was also submitted that in the absence of any proof of service on the 5th – 7th Respondents by the Appellant after the striking out of the Appellant’s Suit, the relisting of the Appellant’s Suit on 21/2/2000 long after the installation of the 4th Respondent on 4/2/2000 and contended that there was therefore no breach of any existing Order of Court, which at any rate had long lapsed or any pending Suit to constitute any contempt against the 5th – 7th Respondents when they handed over the Staff of Office to the 4th Respondent on 4/2/2000 and urged the Court to

so hold and to dismiss the appeal and affirm the judgment of the Court below. Counsel relied on Sabru (NIG) Ltd. V. Jezco (2001) 2 NWLR (Pt. 679) 364; Olowu V. Building Stock Ltd. (2004) 4 NWLR (Pt. 864) 445 @ p. 457; Unibiz (Nig.) Ltd. V. CBCL Ltd. (2003) 6 NWLR (Pt. 816) 402 @ p. 430.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply, learned counsel for the Appellant had submitted that the service of the application for relisting the Appellant’s Suit was effected on the Attorney General Office on 2/2/2000 but on enquiry by the Court below it was discovered that that part of the file was removed or stolen which had nothing to do with the Appellant and contended that due service was effected on the 5th – 7th Respondents and urged the Court to hold that the relisting of the Appellant’s Suit was therefore, proper and valid and to allow the appeal and set aside the wrongful installation of the 4th Respondent during the pendency of the Appellant’s Suit before the Court below since in law once a matter is filed in Court, all the parties must hands off and do nothing to over reach the processes of Court.

RESOLUTION OF ISSUE ONE
My lords, I had earlier in this judgment resolved to consider and resolve issue one as the last issue for determination in this appeal because of the effect, positive or negative, that the resolution of all the other issues for determination would invariably have on the resolution of this issue.

In Exhibit E, the Order of Interim injunction issued on 17/6/1997, it was ordered by the Court below per by A.A Agun J of High Court Ubiaja, Edo State, as follows:
“Accordingly, the 1st- 4th Defendants/Respondents are hereby restrained from taking steps towards performing the burial ceremonies of Chief Usifoh Enosegbe, the Onogie of Ewohimi (Late) for the 5th Defendant”.

Regrettably, the above order of interim injunction did not state for how long or period or upon the occurrence of which event should it lapse. Thus, it was almost couched not as even as an Order of interlocutory injunction but rather as an Order of perpetual injunction even before the Respondents were put on Notice. I shall return to this issue later in this judgment

In the Further and Further Amended Statement of Claim, the Appellant had claimed

inter alia thus:
B. A Declaration that the purported installation of the 5th Defendant by the 6th – 8th Defendant on the 4/2/2000 is null and void, of no effect being contrary to the chieftaincy declaration in respect of Ewohimi Stool.
C. A Declaration that the purported performance of the burial rites and ceremonies of the Plaintiff’s late father by the 5th Defendant on 5/7/97 while the matter was pending in Court is null and void.
H. An Order of Court withdrawing the staff of the Office wrongfully presented to the 5th Defendant by the 6th – 8th Defendants. See pages 8 – 12 of the Record of Appeal.

Now, issue one is hinged on reliefs B, C and H, as above which were introduced by way of further and further amendment to the pleadings of the Appellant. However, in law an amendment relates back to the date of the original document. See The AG. of Ekiti State & Ors V. Victor Adegoke Adewumi & Anor 2002 (LPELR) 3160 (SC), where the Supreme Court per Wali J.S.C., had stated succinctly inter alia thus:
“The principle is that an amendment duly made takes effect from the date of the original document sought to be amended;

and this applies to every successive amendment of whichever nature and at whatever stage it is made. Therefore, when a writ of summons is amended it dates back to the date of the original issue of such writ and consequently, the action will continue as if the amendment has been inserted from the beginning.”

Thus, the simple fact here is that as at when the original Writ of Summons and Statement of Claim were filed on 21/6/1997 they could not have accommodated reliefs B, C and H since there were no such facts existing at that time. Therefore, if after a Suit has been filed and an order of interim injunction was sought and obtained, and if duly served on the adverse party but was disobeyed, the proper procedure, in my view, is not by way of an amendment of the reliefs claimed to include a relief which can neither be sustained nor accommodated by the facts in existence at the time of the commencement of the Suit but rather to file an application for mandatory injunction for an order restoring the status quo to the position of things existing when the Suit was filed by setting aside any such actions and/or to undo all actions or steps purportedly taken

after the service on the adverse party of the order of interim injunction. See Reliefs A, B, and C on the Original Writ of Summons filed on 21/6/1997. See also Reliefs B, C and H in the Further – Further Amended Statement of Claim filed on 19/7/2005.

made but an application to that effect had been duly filed and served on a party, and even where an application for interim injunction has been refused, such a party lacks the power, without an order of Court to that effect, to proceed to carry out the acts complained of and sought to be restrained in the application for interlocutory injunction. This is what in law is commonly referred to as mandatory order of injunction. See Daniel V. Ferguson (1891) 2 CH 27, where the Court of Appeal of England, a decision cited with approval by the Court of Appeal in Ojukwu V. Governor of Lagos State (1985) 2 NWLR (Pt. 10) 806 @ p. 823, granted a mandatory injunction in a matter in which even the application for injunction had not been served but it was found that the Defendant had acted precipitately of the said application and had carried out the act complaint by the Claimant.
In Military Governor of Lagos State V. Ojukwu (1986) 1 NWLR (Pt. 18) 621, the Supreme Court had stated inter alia thus:
“After a Defendant has been notified of the pendency of a suit seeking an injunction against him even though a temporary injunction has not been granted, he act at his

peril and subject to the power of the Court to restore the status quo wholly irrespective of the merit as they may be ultimately decided.”

My lords, in matters of principles, decisions of the above nature are reached not merely to aggrandize the ego of the party seeking such a mandatory order but rather to protect and restore the dignity of and respect for the processes and integrity of the Courts by litigants. This is to avoid or at least reduce to the barest minimum recklessness and anarchy likely to result from disregard to the rule of law. Thus, every Court has a duty to and must guard its judicial powers jealously and should not allow matters or causes already pending before it to be unilaterally taken away by any of the parties to be settled in his own way, extra judicial or to take the law into his hand in order to steal a match on the other party. See Ojukwu V. Governor of Lagos State (1985) 2 NWLR (Pt. 10) 806 @ p. 823. See also Military Governor of Lagos State V. Ojukwu (1986) 1 NWLR (Pt. 18) 621; Vaswani Trading Co. V. Savalakh & Co. (1972) 1 All NLR 483 @p. 487; Ezegbu V. F.A.T.B Ltd. (1992) 1 NWLR (Pt. 220) 696.

Having stated as above, it would appear ordinarily that the Appellant ought to be entitled to Reliefs B, C and H, being mandatory in nature to restore things to the status quo before the rights of the parties are determined. Regrettably, rather than raise such an application as an interlocutory one for Mandatory Orders for same to be decided there and then before the rights and liabilities of the parties are finally determined upon by the Court below, the Appellant rather curiously amended his pleadings to include these mandatory claims which therefore, can only be granted if and only if he succeeds in his claim in his substantive reliefs, failing which no mandatory order can be made in favour of a party whose right to the substantive reliefs claimed has been found to be lacking in merit. The reason for this position of the law is that a mandatory order to restore and return things to the status quo is usually granted during the pendency of a matter before the rights of the parties are finally determined, and notwithstanding the merit or otherwise of the claims of the party seeking the mandatory order. Let me explain.
Once a suit had been finally determined and if it is

against the party seeking a mandatory order, the law would not sanction a mandatory order in favor of a party whose substantive claim has already been found wanting and dismissed for lacking in merit. Thus, it is only where the party succeeds in the substantive claim that an ancillary claim for mandatory order can be granted in deserving cases. This is why it is ordinarily an order which is sought during the pendency of a Suit to restore things to the status quo if the adverse party had taken any step sought to be restrained and notwithstanding whether or not the substantive claim would succeed in the end.

In the instant appeal therefore, the Appellant having made Reliefs B, C and H as part of his claims in the substantive Suit, the decision whether to grant or refuse them will then ultimately depend on whether or not he had made out his claim to be entitled to ascend to the stool of Onojie of Ewohimi, which the Court below had found as fact he is not so entitled and I too have found that the Appellant is not so entitled. Therefore, the claims for mandatory orders in reliefs B, C and H have also not been made out and must thus collapse with the failure to

prove his entitlement to the stool of Onojie of Ewohimi.

In this vein therefore, issue one for determination is hereby resolved against the Appellant in favour of the Respondents. This is why it is very important for both parties and their learned counsel to not only to be vigilant in the way and manner they proceed and conduct their cases but also to endeavor to be up to speed with and abreast of the position of the law at all times.

Be that as it may, to succeed on the merit on Reliefs B, C and H, the Appellant must prove not only the fact of the existence of Exhibit E but also the more vital fact of the due service of Exhibit E together with notice of consequences of disobedience of Order of Court on all the Respondents. I have scanned through the entire Record of Appeal as well as all the Exhibits tendered by the Appellant and admitted as evidence before the Court below and I am unable to find any proof of service of any notice of consequences of disobedience of orders of the Court below in Exhibit E on the Respondents as required by law, it having been made by the Court below in the absence of the Respondents and this is fatal to the

claims in Reliefs B, C and H and I so hold. See Richard Nwosu & Ors V. Gabriel Nzeadibe (2010) LPELR – 4897 (CA). See also Engr. Emmanuel Keneth Uzor V. Hon Minister of Works, Housing and Urban Development & Anor (2013) LPELR – 21248 (CA).

Furthermore, the trial before the Court below was a de – novo trial in which everything was done anew and fresh, coupled with the settled position of the law that the life of an interim injunction must be fixed to a named date or at most upon the determination of a motion on notice and would therefore, in law lapse by exflusion of time usually after seven days. It cannot be made to last till determination of the substantive Suit without hearing the other party otherwise such an interim injunction would be illegal as overreaching and in violation of the right to fair hearing of the other party and therefore, cannot stand. See Section 36 (1) of the Constitution of Nigeria 1999 (as amended). See also the Book: “Injunctions and Enforcement of Judgments” by Chief Afe Babalola, SAN, 2nd Edition @ p. 15. See further Kotoye V. Central Bank of Nigeria (1989) 2 SCNJ 31; A.I.C. Limited V. Nigerian National Petroleum Corporation

(2005) All FWLR (Pt. 270) 1945 @ p. 1971; U.B.N. Plc. V. Uwa Printers (Nig.) Ltd. (2011) All FWLR (Pt. 596) 578 @ pp. 588 -589; Sabru (Nig.) Ltd. V. Jezco (2001) 2 NWLR (Pt. 679) 364; Olowu V. Building Stock Ltd. (2004) 4 NWLR (Pt. 864) 445 @ p. 458.
Now, the Appellant’s Suit was struck out on 31/1/2000, and even though it was subsequently relisted on 21/2/2000, it is my view that the interim Order of injunction made on 12/6/1997 became extinct and was no longer a live order notwithstanding the subsequent relisting of the Suit on 21/2/2000 and heard de novo by another Judge. In law, the effect of hearing the Appellant’s Suit afresh was that it wiped away all the previous proceedings and Orders made in the previous trial. See Obiuweubi V. Central Bank of Nigeria (2011) All FWLR (Pt. 575) 208 @ p. 233. See also Ezobo V. The State (2005) All FWLR (Pt. 267) 1486 @ pp. 1506 – 1507. In the circumstances therefore, issue one is hereby resolved against the Appellant in favour of all the Respondents.

My lords, in civil trials generally proof is on a balance of probability or preponderance of evidence. It is never

proof beyond reasonable doubt except if there is an allegation of crime which is central to the issue between the parties. Now, having carefully considered and reviewed the totality of the averments in the pleadings of the parties and re – evaluated the evidence, both oral and documentary led by them, as in the Record of Appeal, it is clear to me and I so hold, and as already rightly held by the Court below, that Exhibits J, K and M together with the evidence of DW1 and DW2, being credible, consistent and highly probative, far outweighs and preponderate than the hordes of witnesses, PW1, PW2, PW3, PW4, PW5 and PW6 together with Exhibits A, A1 – A6, B, C – C1, D – D1 as well as Exhibits I, H1 – H5 and F, the previous evidence of PW5 as PW1 on 9/1/2001 and 12/3/2001 before Oyanna J and Exhibit G, the previous evidence of one Otiti Enaholo as PW3 on 20/11/2001 before Oyanna J., both of which served no useful purpose in the present trial de – novo and therefore, went to no issue as rightly held by the Court below.

It is true that the 4th Respondent did not testify at the trial before the Court below. However, in law neither a Claimant nor a

Defendant, or any party for that matter, need to testify on his behalf if he can otherwise prove his claim or defend the claim against him through other witness. All that matters is that evidence of the quality and of probative value is led on his behalf and if it preponderates more than the evidence of the adverse party, he would come out successful notwithstanding that he did not personally testify on his own behalf. See Mrs. Funmilayo Opadola V. Lasisi Akanmu & Ors (2014) LPELR – 22714 (CA). See also Ndukauba V. Kolomo (2006) 4 NWLR (Pt. 915); Mainagge V. Gwamma (2004) 9 – 12 SCM 129 @ P. 130.

The failure of the 4th Respondent to testify on his own behalf was therefore, of no legal adverse consequence on the face of the abundance of credible and highly probative evidence, both oral and documentary evidence led on his behalf by his witnesses, DW1 and DW2 together with Exhibits J, K, M and even to a large extent Exhibit N, which by its findings and recommendation disqualified the Appellant from succeeding to the throne or stool of Onojie of Ewohimi on the demise of the late Onojie II of Ewohimi in March 1997.

In the final analysis therefore, I find that the Appellant, as also found rightly by the Court below, failed to prove as required of him in law his entitlement to the stool of Onojie of Ewohimi to succeed the late Onojie II of Ewohimi. Rather, I find, as was also rightly found by the Court below, that it was the 4th Respondent who proved by credible, consistent and highly probative evidence his entitlement to the throne or stool of Onojie of Ewohimi in line with the rule of primogeniture and happily in line with the wishes of the late Onojie II of Ewohimi in his life time and reign as clearly demonstrated and shown in Exhibits J and K.

On the whole therefore, having resolved all the five issues for determination, encompassing all the whooping eight issues identified in the Appellant’s Amended brief, against the Appellant in favour of all the Respondents, I hold firmly that the appeal lacks merit and thus liable to be dismissed. Consequently, it is hereby dismissed.

In the result, the judgment of the High Court of Edo State, Benin Judicial Division Coram: A. N. Egiamusoe J, in Suit No. HAU/18/1997: Prince Adonis Amhiegbereta Usifor Enosegbe V. Paul Enizode –

Aiwize & Ors, originally commenced before the Ubiaja Judicial Division, and delivered on 18/12/2006, in which the claims of the Appellant as Claimant against the Respondents as Defendants were dismissed in its entirety for lacking in merit, while granting the Counter – Claim of the 1st – 4th Respondents as Defendants/Counter – Claimants against the Appellant as Defendant by Counter Claim, is hereby affirmed. There shall be no Order as to cost.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the opportunity of reading the draft of the leading judgment just delivered by my learned brother, B.A. Georgewill, J.C.A., in this appeal.

My learned Brother has admirably and comprehensively resolved all the issues agitating the Appellant in the appeal. I therefore have nothing more effectual to add to the leading judgment. Rather, I am in total agreement that the appeal in its entirety is bereft of merits.

I accordingly dismiss the appeal and abide by the consequential orders made in the leading judgment, including the order as to no costs.

FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment just delivered by my learned brother, Sir

BIOBELE ABRAHAM GEORGEWILL, J.C.A. and I am in total agreement with the reasoning and conclusions reached in disallowing this Appeal as totally lacking in merit. I abide by all the consequential orders made thereto including the orders as to cost.

Appearances:

Edward Yalaju, Esq. For Appellant(s)

Chief N. I. Ukpebor – for 1st – 4th Respondents.
The 5th – 7th Respondents, though duly served with hearing notice on 21/2/2021, did not participate at the hearing of this appeal but there brief already filed was deemed argued by the Court. For Respondent(s)

LawCare Nigeria

ENOSEGBE v. ENIZODE-AIWIZE & ORS (2021)

admin

YOU MAY HAVE MISSED

UNDERSTANDING THE NEW COMPANIES AND ALLIED MATTERS ACT (CAMA) 2020

BUSINESS NAME VS. INCORPORATED COMPANY: WHICH IS RIGHT FOR YOU IN NIGERIA?

HOW TO REGISTER A COMPANY IN NIGERIA WITH THE CAC: A STEP-BY-STEP GUIDE

THINGS TO CONSIDER BEFORE STARTING A BUSINESS IN NIGERIA

admin

Related Story

YOU MAY HAVE MISSED