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KOLAWOLE & ORS v. SALAWU-DEEN & ANOR (2022)

KOLAWOLE & ORS v. SALAWU-DEEN & ANOR

(2022)LCN/17000(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Monday, June 20, 2022

CA/AK/184/2016

Before Our Lordships: 

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Yusuf Alhaji Bashir Justice of the Court of Appeal

Between

1. ALHAJI SHEU TIJANI KOLAWOLE 2. ALHAJI RASAKI KAREEM 3. ALHAJI KOLAWOLE UTHMAN APPELANT(S)

And

1. ALHAJI ABDUL HAMEED SALAWU-DEEN (OKOTO) 2. OBA ABDUL-WAHAB KAYODE OYEDOTUN (ORANGUN OF ILA) RESPONDENT(S)

 

RATIO

WAYS AN IMAN CAN BE APPOINTED UNDER ISLAM

And it was reiterated by this Court in the case of Sanni Vs Hamzat (2012) LPELR 8010(CA). Islam recognizes three main ways by which an Imam may be appointed. These are (i) by consensus (ijma) amongst the entire members of the Muslim Community concerned, where the Muslim Community selects or elects a person as its Imam, he is accepted as such and he takes over the mantle of the office; (ii) by consultation and exchange of views amongst the prominent members of the Muslim Community and once they agree amongst themselves on the choice of Imam, his selection becomes legitimate and he takes office as the Imam; and (iii) by the incumbent Imam nominating his successor, and without any objection from the prominent members of the Muslim Community. The guiding principles on the appointment of an Imam is that the person to be appointed must be knowledgeable in Islamic Law, its teachings and practice, possess impeccable morals and ethics and an exemplary character, be of good health and sound mind and be acceptable to the generality of the members of the Muslim Community over which he is to preside as Imam. The position of Imam in Islam is not hereditary and does not form part of the inheritance which devolves on the beneficiaries the Estate of a deceased past Imam. It is not the exclusive preserve of a particular family or a particular class of persons. Anybody can aspire to be an Imam. PER ABIRU, J.C.A.

WHETHER OR NOT ANY DOCUMENT WRITTEN IN THE LANGUAGE OF THE PARTIES WHICH IS NOT TRANSLATED INTO ENGLISH LANGUAGE IS OF NO EVIDENTIAL VALUE

Therefore, any document written in the language of the parties and which is not translated into English language is of no evidential value and must be discountenanced. Where it is admitted without objection, it ought to be expunged. For such a document to be used by the Court, it must be translated into English language – Lawson Vs Afani Continental Co Ltd (2002) 2 NWLR (Pt 752) 585, Darma Vs Batagarawa (2002) 17 NWLR (Pt 796) 243, Kankia Vs Maigemu (2003) 6 NWLR (Pt 817) 496, Abolarin Vs Ogundele (2012) 10 NWLR (Pt 1308) 253, Bello Vs Sanda (2012) 1 NWLR (Pt 1281) 219. The lower Court was thus clearly within its rights when it discountenanced and expunged the document in the course of its evaluation of the evidence led by the parties. PER ABIRU, J.C.A.

THE PRINCIPLE OF HE WHO ASSERTS MUST PROVE

It is elementary that in civil proceedings, the party who asserts a fact has the onus of proving same – Obe Vs MTN Nigeria Communications Ltd (2021) 18 NWLR (Pt 1809) 415, Odunewu Vs Agoro (2022) 7 NWLR (Pt 1830) 545. The onus was on the Appellants to prove that second Appellant was indeed the candidate they put forward to the second Respondent as their candidate for the position of Chief Imam, and not the third Appellant. The notes of evidence show that the Appellants relied on the document tendered as Exhibit A in proof of this assertion. The lower Court found that the document was useless to the case of the Appellants as it was in Yoruba language and it expunged it. This Court has approved the action of the lower Court on the point. PER ABIRU, J.C.A.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Osun State, sitting in Ila-Orangun Judicial Division, delivered in Suit No HLR/1/2010 by Honorable Justice A. L. Adegoke on the 6th of June, 2016.

The Appellants were the claimants before the lower Court and their claims by a further amended statement of claim were for:
i. A declaration that the purported selection, appointment and/or turbaning of the first Respondent as the Chief Imam of Ila-Orangun on the 24th of December, 2010 is illegal, unlawful, contrary to the acceptable age long practice, procedure, guidelines under Islamic religion and/or custom of Ila-Orangun and therefore null and void.
ii. A declaration that the members of the Appellants’ family are entitled to nominate and/or select a qualified candidate within the family to fill the vacant post of Chief Imam of Ila-Orangun which was created by the demise of Alhaji Usman Kolawole Babade on the 10th of December, 2010 and who was the right person to be turbaned as the Chief Imam of Ila-Orangun.
iii. An order setting aside the purported selection, appointment and/or turbaning of the first Respondent as the Chief Imam of Ila-Orangun.
iv. An order of this Honorable Court excluding the first Respondent and members of his family from contesting for the office of Chief Imam of Ila-Orangun.
Alternatively
(v) An order setting aside the purported selection, appointment and/or turbaning of the first Respondent as the Chief Imam of Ila-Orangun as being unlawful, unfair and calling for fresh selection, appointment and turbaning of new Chief Imam of Ila-Orangun by the second Respondent.

The case of the Appellants on the pleadings in support of their claims was that their family, the Ago-Imam Family of Olori-Awo Compound, Ila-Oragun, to the exclusion of every other family in Ila-Orangun has always produced the Chief of Imam of Ila-Orangun and they listed of the Chief Imams from Mallam Muhammed Badiru to Alhaji Usman Kolawole Babade who died on the 10th of December, 2010. It was their case that it was the age long practice and procedure that where there is a vacancy in the office of Chief Imam of Ila-Orangun, their family nominates and appoints the next Chief Imam from amongst itself and such a candidate was thereafter presented to the second Respondent to turbaning at the palace. It was their case that the criteria used in the appointment of Chief Imam of Ila-Orangun are (i) membership of the Appellant’s family; (ii) knowledge of the Islamic religion, practice and/or doctrine; (iii) good health and sound mind; (iv) satisfactory conduct and behavior.

It was the case of the Appellants that prior to the death of Alhaji Usman Kolawole Babade, the last Chief Imam of Ila-Orangun, he was ill and he delegated one Alhaji Raji Balogun to deputise for him and that this led some friction between the said Alhaji Raji Balogun and members of the Appellants family. It was their case that the second Respondent called a meeting of Islamic Clerics and Muslim traditional rulers in Osun State to resolve the impasse and that it was agreed that Alhaji Raji Balogun be allowed to continue to deputize for the Chief Imam, but that the Chief Imam should continue to come from their family. It was their case that upon the demise of Alhaji Usman Kolawole Babade on 10th of December, 2010, the second Respondent, instead of calling on their family to nominate and appoint another candidate to fill the vacancy, threw the contest open and divided Ila-Orangun into five quarters and directed each quarter, with the exclusion of their family, to present a candidate each with a payment of N20,000.00 application fee.

It was the case of the Appellants that the second Respondent set up a screening committee whose membership were from outside Ila-Orangun town to screen the candidates and that their family only got to know of the screening committee on the morning of the day of the screening. It was their case that the screening committee did not submit a report and that it was the second Respondent that announced the name of the first Respondent of Okoto Compound, Ila-Orangun, as the next Chief Imam and also announced one Alhaji Mohammed Raji as Naibul-Imam, Alhaji Ibrahim Kolawole as Otun Naibul-Imam and Alfa Ishaak as Otun Mufaseer. It was their case that the procedure adopted by the second Respondent in the appointment of the first Respondent was irregular and contrary to the age long practice and procedure as no member of Okoto family or any other family in Ila-Orangun had ever been appointed as Chief Imam of Ila-Orangun. It was their case that their family nominated and appointed the second Appellant as the next Chief Imam of Ila-Orangun, but that the second Respondent ignored their nomination and turbaned the first Respondent as Chief Imam on the 24th of December, 2010.

In their response by an amended statement of defence, the Respondents traced the history of how Islam came to Ila-Orangun and of the appointment of Chief Imam of Ila-Oragun and it was their case that appointment of Chief Imam was not based on family or tribal background, but on the level of the knowledge of the candidate and his acceptability to the leaders of the Muslim Community in Ila-Oragun and the fact that the Chief Imams came from the family of the Appellants was by happenstance and not by design. It was their case that the Appellants’ family had never at anytime single handedly nominated and appointed a candidate as Chief Imam and only for the second Respondent to turban, but that the second Respondent usually consulted and worked with the entire Muslim Community to appoint and turban the best candidate for the position. They admitted that when Alhaji Usman Kolawole Babade, the last Chief Imam of Ila-Orangun, was ill and he delegated one Alhaji Raji Balogun to deputise for him, friction arose between the said Alhaji Raji Balogun and members of the Appellants family, but it was their case that friction was brought about by the action of members of the Appellants’ family who sought to hijack the functions of Chief Imam. They conceded that the second Respondent called a meeting of Islamic Clerics and Muslim traditional rulers in Osun State to resolve the impasse and it was their case that actions of the members of the Appellants’ family were severely condemned at the meeting and that it was never agreed at the meeting that the Appellants’ family should continue to produce the Chief Imam.

It was the case of the Respondents that upon the demise of Alhaji Usman Kolawole Babade and in view of the fact that there was then an array of knowledgeable Muslim scholars in the town, unlike in the past, it was agreed by the Muslim Community of Ila-Orangun and the second Respondent that nominations be taken from the various quarters of Ila-Orangun and that an interview be conducted to select the best of the nominated candidates to be the Chief Imam. It was their case that Ila-Oragun was divided into five quarters and each quarter and the family of the Appellants were asked to nominate one candidate each, making six candidates and that to avoid bias, Muslim scholars from outside Ila-Orangun, who were very knowledgeable in Islamic law, were constituted into a panel to interview the six candidates. It was their case that the Appellants’ family fully participated in the exercise and they nominated the third Appellant as their candidate.

It was the case of the Respondents that at the conclusion of the written and oral interview of the six candidates, the first Respondent came top, while one Alhaji Muhammed Raji Abdul Hammed came second, the third Appellant came third and one Alfa Ishaq Uthman came fourth and that the first Respondent was more acceptable to the Muslim Community than the third Appellant. It was their case that consequent on the outcome of the interview, the second Respondent, with the consent of the entire Muslim Community of Ila-Orangun turbaned the first Respondent as the Chief Imam, Alhaji Muhammed Raji Abdul Hammed as the Naibul-Imam, the third Appellant as Otun Naibul-Imam and Alfa Ishaq Uthman as Deputy Mufassir. It was their case that it was when the Appellants realized that their nominee, the third Appellant, was not the appointed Chief Imam that they started complaining and seeking to antagonize the procedure and the action of the Appellant in seeking to force their nominee on the Muslim Community as the Chief Imam is not in accordance with Islamic Law. It was their case that the procedure adopted in the appointment of the first Respondent as Chief Imam was consistent with the position of Islamic Law and the practice of the Muslim Community of Ila-Orangun.

In the course of trial before the lower Court, the Appellants called five witnesses in proof of their case and the Respondents also called five witnesses in proof of their defence. At the conclusion of trial and upon the submission and adoption of written final addresses by Counsel to the parties, the lower Court entered judgment dismissing the claims of the Appellants. The Appellants were dissatisfied with the judgment and they caused their Counsel to file a notice of appeal dated the 17th of June, 2016 and containing six grounds of appeal against it. In arguing the appeal before this Court, Counsel to the Appellants filed a brief of arguments dated the 17th of July, 2019, while Counsel to the Respondents filed a brief of arguments dated the 25th of October, 2019 and both briefs of arguments were deemed properly filed by this Court on the 16th of March, 2022. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments.

Counsel to the Appellants distilled four issues for determination in the appeal and these were:
i. Whether the trial Court was not wrong to have dismissed the claims of the Appellants including the alternative prayer without evaluating the evidence of the Appellants.
ii. Whether the trial Court was not wrong when he concluded that the second Respondent who ought to give notice of the interview to candidates including the Appellants was not wrong by not giving notice to the Appellants’ candidate and other candidates were not informed of the date of the interview having paid for the nomination.
iii. Whether it is not right and proper for the trial Court to grant the alternative prayer for fresh selection/interview of candidates to fill the post of Chief Imam of Ila-Orangun.
iv. Whether the trial Court was not wrong when it failed to rely on Exhibit A.

Counsel to the Appellants argued Issues one, two and three together and he stated that in civil cases, it is incumbent on the party claiming a relief to prove his entitlement to it and that once he provides good and credible evidence in discharge of the burden of proof placed on him by law, the evidential burden shifts to the other party and he referred to the case of A. G. Bayelsa State Vs A. G. Rivers State (2007) 8 WRN 10. Counsel stated that the witnesses of the Appellants led cogent and direct pieces of evidence which were not debunked or controverted and they ought to have been considered, accepted and relied upon by the lower Court in making findings and he referred to the cases of Nasir Vs C. S. C. Kano State (2010) 5 NWLR (Pt 1190) 253 and Kaydee Ventures Ltd Vs Min. FCT (2010) 1 NWLR (Pt. 1192) 172. Counsel stated that the Respondents did not deny the averment of the Appellants in the pleadings that the screening committee did not give a report and that instead it was the second Respondent that announced the name of first Respondent as the new Chief Imam of Ila-Orangun.

Counsel stated that the second Respondent who ought to have cleared the air on this issue failed to testify and that the Respondents did not also deny the averment that the family of the Appellants nominated and appointed the second Appellant to be the next Chief Imam of Ila-Orangun. Counsel stated that the second Appellant was the candidate endorsed by the family of the Appellants to represent them at the screening and of which the Appellants were not notified of the date and that the lower Court agreed with the Appellants in the judgment that neither the second Respondent nor the interviewing panel gave notice of the date of the interview to the nominated candidates. Counsel traversed through the evidence of two of the defence witnesses in affirmation of the point and stated that the non-notification of the date of the interview went to the root of the process of the appointment of the first Respondent as the Chief Imam and that it is a right that the Appellants did not waive. Counsel conceded that the third Appellant participated in all the interview steps, but stated that the second Appellant, and not the third Appellant, was the nominee of the Appellants’ family and that the third Appellant became aware of the interview by chance and he was not formally notified.

Counsel stated that the Appellants had a right to attend the screening exercise and that service of notice was a right which the Appellants did not waive and the conduct of the screening without having first served the second Appellant with necessary notice rendered the exercise illegal, null and void, incompetent and liable to be set aside and he referred to the case of L. S. D. P. C. Vs Adeyemi Bero (2006) 2 WRN 52. Counsel stated that it was irrelevant that the third Appellant, who was not the nominee of the Appellants’ family, participated in the screening exercise and that the failure of the second Respondent to ensure that the Appellants received notice of the screening exercise amount to failure to give the Appellants’ a fair hearing and he referred to the case of Ademola I Vs Thomas (1946) 12 WACA 81. Counsel urged the Court to resolve the first three issues for determination in favour of the Appellants.

On the fourth issue for determination, Counsel stated that the lower Court was in error when it expunged the document admitted as Exhibit A in the judgment after same has been tendered and admitted without objection. Counsel stated that the lower Court refused to rely on Exhibit A on the ground that the letter was written in Yoruba language and that the English translation was not tendered. Counsel stated that while tendering the said letter, the second Appellant interpreted the contents of the letter because he gave evidence in Yoruba and he read out the contents of the letter and the Court interpreter interpreted same into English language and the lower Court further directed Counsel to the Appellant to ensure the translation of the document into English language and which was done. Counsel stated that the lower Court also failed to give credence to the documents tendered as Exhibits C and D, which were certified true copies by the Osun State Library, contrary to the provisions of Section 114(1) of the Evidence Act, and that had the lower Court properly evaluated all these documents it would have arrived at a different decision.

Counsel conceded that the position of law as relied upon by the lower Court, i.e., that any question relating to selection and appointment of a person to the office of Imam is regulated by Islamic Law, but that the lower Court also ought to have considered the convention and practice of the Ila-Orangun Muslim Community and to have concluded that the Appellants’ family had been the one filling the post of Imam of Ila-Orangun and that it was not on record that an interview was ever conducted for the appointment of Chief Imam. Counsel urged the Court to resolve the fourth issue for determination in favour of the Appellants.

Counsel concluded his arguments by praying the Court to find merit in the appeal and to allow same, set aside the judgment of the lower Court and grant all the reliefs sought by the Appellants, particularly the alternative relief.

On his part, Counsel to the Respondents distilled three issues for determination in the appeal and these were:
i. Whether or not the trial Court was right to have dismissed the Appellants’ case in its entirety including the alternative prayer.
ii. Whether or not the issue of non-service of written notice to any of the contestants occasioned a miscarriage of justice warranting this Court to interfere with the decision of the lower Court.
iii. Whether or not the lower Court was wrong in not relying on Exhibit A made in Yoruba language.

Counsel to the Respondents argued the three issues for determination together and he stated that the onus was on the Appellants to prove their case before the lower Court on a preponderance of evidence and that this was particularly more so as the prayers sought included declaratory reliefs and that the Appellants were to succeed on the strength of their case and not on the weakness of the defence and he referred to the case of Nwokidu Vs Okanu (2010) 1 MJSC 24. Counsel traversed through the case of the Appellants on the pleadings and in the evidence led by the witnesses and stated that there was unchallenged evidence in the testimonies of both the Appellants’ witnesses and the Respondents’ witnesses that it is Islamic law that guides the appointment of the Chief Imam of Ila-Orangun and this was in accordance with position of the law as espoused by the Courts in the cases of Opebiyi Vs Noibi (1977) 11 NSCC 464 and Sanni Vs Hamzat (2012) LPELR 8010(CA). Counsel stated that the onus was on the Appellants to prove that the process and procedure used in the appointment of first Respondent as Chief Imam of Ila-Orangun was inconsistent with the principles of Islamic law. Counsel traversed through the evidence of the Appellants’ witnesses and the Respondents’ witnesses and stated that the Appellants failed woefully to discharge the onus of proof on them and that the case of the Appellants that the position of Chief Imam was their birthright was not in accordance with Islamic law.

Counsel stated that the main grouse of the Appellants in their brief of arguments was that notice of interview was not given to their family and he traversed through the judgment of the lower Court and noted that the lower Court held that the Appellants had by their conduct waived their rights to adequate notice for interview. Counsel stated that the Appellants were challenging the findings and conclusions of the lower Court on the issue of waiver of the notice of interview and that the onus was thus them to satisfy this Court that the decision of the lower Court was a wrong one and he referred to the case of Gbedu Vs Itie (2011) All FWLR (Pt 553) 1857. Counsel stated that an appellate Court will not interfere with the finding of a lower Court unless it is shown that the finding is perverse and he proceeded to define when a finding is said to be perverse and referred to the case of Foy Yamah & Co, Solicitors Vs Dascols (Nig) Ltd (2011) All FWLR (Pt 572) 1814. Counsel stated that looking at the actions of the Appellants and the participation of the third Appellant in the screening process, the finding of the lower Court that the Appellants waived their right of objection to the lack of notice of the screening process is supported by the evidence led by the parties and that the Appellants failed to show that the decision of the lower Court on the point is perverse.

Counsel stated that the complaint of the Appellants against the expunction of the document tendered as Exhibit A, which was in Yoruba language as against English language, by the lower Court is unfounded. Counsel stated that no interpretation of the document was presented before the lower Court either orally or in writing and the decision of the lower Court to expunge it from the records cannot be faulted. Counsel stated that from the totality of the respective made by the parties, the lower Court was justified in dismissing the claims of the Appellants, including the alternative prayer and he urged the Court to resolve the issues for determination in favour of the Respondents.

Counsel concluded his arguments by praying the Court to find no merit in the appeal and to dismiss same accordingly.

The complaints of the Appellants in this appeal are very narrow and they are (i) whether the lower Court was wrong to have expunged the document tendered as Exhibit A in the course of its evaluation of evidence; and (ii) whether the lower Court was correct in overlooking the fact of the failure of the second Respondent to formally notify the nominated candidates for the office of Chief Imam of Ila-Orangun of the date of the screening exercise that was carried out. This Court is bound by these issues raised and argued by the Appellants in this appeal and cannot go outside them to gallivant for other issues in resolving the appeal – Cappa & D’Alberto Ltd Vs Akintilo (2003) 9 NWLR (Pt 824) 49, Ojoh Vs Kamalu (2005) 18 NWLR (Pt 958) 523, Offodile Vs Onejeme (2021) 7 NWLR (Pt 1775) 389, Almajir Vs Jalbait Ventures (Nig) Ltd (2021) 15 NWLR (Pt 1798) 157.

Before proceeding to resolve these issues, however, this Court considers it pertinent to state that the appointment of a Chief Imam, which is the fulcrum of this present action, is governed by Islamic Law, and the convention and practice of the particular Muslim Community, and not by native law and custom. This point was made by Bello, JSC (as he then was), in Opebiyi Vs Noibi (1977) LPELR 2748(SC) thus:
“For the avoidance of doubt, we may emphasize that an Imamship, being the highest office of a mosque, any question relating to the selection and installation of a person to that office is regulated entirely by Moslem law, and the convention and practice of a particular mosque in question. It is a question of fact to be proved at the trial in the High Court by evidence of an expert or a person learned in Moslem Law, the convention and practice of the mosque in question.”
And it was reiterated by this Court in the case of Sanni Vs Hamzat (2012) LPELR 8010(CA). Islam recognizes three main ways by which an Imam may be appointed. These are (i) by consensus (ijma) amongst the entire members of the Muslim Community concerned, where the Muslim Community selects or elects a person as its Imam, he is accepted as such and he takes over the mantle of the office; (ii) by consultation and exchange of views amongst the prominent members of the Muslim Community and once they agree amongst themselves on the choice of Imam, his selection becomes legitimate and he takes office as the Imam; and (iii) by the incumbent Imam nominating his successor, and without any objection from the prominent members of the Muslim Community. The guiding principles on the appointment of an Imam is that the person to be appointed must be knowledgeable in Islamic Law, its teachings and practice, possess impeccable morals and ethics and an exemplary character, be of good health and sound mind and be acceptable to the generality of the members of the Muslim Community over which he is to preside as Imam. The position of Imam in Islam is not hereditary and does not form part of the inheritance which devolves on the beneficiaries the Estate of a deceased past Imam. It is not the exclusive preserve of a particular family or a particular class of persons. Anybody can aspire to be an Imam.

Going back to the complaints of the Appellants in this appeal, the document tendered as Exhibit A in the course of trial, and which document the lower Court expunged in course of evaluation of evidence in the judgment, was dated 15th of December, 2010 and it was written in Yoruba language. The lower Court noted the deficiency in the language of the document at the point of admitting the document, but it nevertheless admitted the document in the interest of justice. The point must be made that there is a world of difference between admitting a document in evidence and according the document probative value in the evaluation of evidence. The fact that a document has been admitted in evidence, with or without objection, does not mean that it must be accorded probative value in the course of evaluation of evidence by the trial Court. Different considerations apply to a trial Court attachingto a document admitted in evidence – Fadlallah Vs Arewa Textile Ltd (1997) 1 SCNJ 202, UTC Nigeria Plc Vs Lawal (2014) 5 NWLR (Pt 1400) 221, FCMB Ltd Vs Ogbuefi (2021) 10 NWLR (Pt 1783) 1, Jwan Vs Ecobank (Nig) Plc (2021) 10 NWLR (Pt 1785) 449. Thus, the fact of the admission of the document tendered as Exhibit A did not translate automatically to it being accorded probative value by the lower Court.

The records of proceedings show that at no time during or after the admission of the document by the lower Court did the Appellants or their Counsel cause same to be translated from Yoruba language into English language and for the translation to be admitted in evidence. It is axiomatic that English language is the lingua franca of the superior Courts in Nigeria. Therefore, any document written in the language of the parties and which is not translated into English language is of no evidential value and must be discountenanced. Where it is admitted without objection, it ought to be expunged. For such a document to be used by the Court, it must be translated into English language – Lawson Vs Afani Continental Co Ltd (2002) 2 NWLR (Pt 752) 585, Darma Vs Batagarawa (2002) 17 NWLR (Pt 796) 243, Kankia Vs Maigemu (2003) 6 NWLR (Pt 817) 496, Abolarin Vs Ogundele (2012) 10 NWLR (Pt 1308) 253, Bello Vs Sanda (2012) 1 NWLR (Pt 1281) 219. The lower Court was thus clearly within its rights when it discountenanced and expunged the document in the course of its evaluation of the evidence led by the parties.

On the second complaint of the Appellants on lack of adequate notice of the screening exercise carried out for the appointment of the Chief Imam, it was not in contest between the parties, both on the pleadings and in the evidence of their respective witnesses, that upon death of the incumbent Chief Imam on the 10th day of December, 2010, the second Respondent, who is the traditional head of Ila-Orangun, divided the town into five quarters and requested each of the five quarters and the family of the Appellants to nominate one person each for the position of Chief Imam and to support the nomination with an application fee of N20,000.00. It was not in contest that each quarter and the family of the Appellants paid the application fee and nominated a candidate, making six candidates. It was not in contest that the second Respondent thereafter set up a screening committee made up of Islamic scholars largely from outside Ila-Orangun, to avoid all elements of bias, and this was to the knowledge of all the quarters and the Appellants’ family. It was not in contest that none of the quarters or the Appellants’ family was formally informed of the date of the screening exercise, however, the six candidates got to hear of the date and time of the screening exercise.

It was also not in dispute that all six candidates attended the screening exercise and were subjected to both written and oral examinations and that the third Appellant attended as the candidate of the Appellants’ family. It was not in dispute that none of the candidates and neither the family of the Appellants nor any of the five quarters protested against or complained about any aspect of the screening exercise at the time it took place. It was the unchallenged and uncontroverted case of the Respondents that at the conclusion of the written and oral interview of the six candidates, the first Respondent came tops, while one Alhaji Muhammed Raji Abdul Hammed came second, the third Appellant came third and one Alfa Ishaq Uthman came fourth and that the first Respondent was found to be more acceptable to the Muslim Community than the third Appellant. The scripts, the scores and grading of candidates were tendered as Exhibits D1 to D11. It was also the unchallenged and the uncontroverted case of the Respondents that consequent on the outcome of the interview, the second Respondent, with the consent of the entire Muslim Community of Ila-Orangun turbaned the first Respondent as the Chief Imam, Alhaji Muhammed Raji Abdul Hammed as the Naibul-Imam, the third Appellant as Otun Naibul-Imam and Alfa Ishaq Uthman as Deputy Mufassir.

The Appellants centered their complaint on the failure of the second Respondent to formally notify their family as well as any of the other five quarters of the date and time of the screening exercise. They claimed that the second Appellant, and not the third Appellant, was their candidate and that he did not attend the screening exercise because of the lack of notification. It is elementary that in civil proceedings, the party who asserts a fact has the onus of proving same – Obe Vs MTN Nigeria Communications Ltd (2021) 18 NWLR (Pt 1809) 415, Odunewu Vs Agoro (2022) 7 NWLR (Pt 1830) 545. The onus was on the Appellants to prove that second Appellant was indeed the candidate they put forward to the second Respondent as their candidate for the position of Chief Imam, and not the third Appellant. The notes of evidence show that the Appellants relied on the document tendered as Exhibit A in proof of this assertion. The lower Court found that the document was useless to the case of the Appellants as it was in Yoruba language and it expunged it. This Court has approved the action of the lower Court on the point.

The notes of evidence show that first, second and third Appellants, who testified as the fifth, third and fourth plaintiff witnesses respectively, tacitly admitted in their respective written statements on oath deposed to on the 30th of November, 2015, and which they each adopted as part of their evidence in chief, that their family became aware of the screening exercise in the morning of the day of the exercise and that the third Appellant, to the knowledge of the family and of their lawyer, attending the screening exercise as their candidate. The tacit admission is contained in paragraphs 38 and 39 of the written statement on oath of the first Appellant and paragraphs 37 and 38 of written statements on oath of the second and third Appellants. This admission is diametrically inconsistent with the assertion on the pleadings that the second Appellant was the candidate of the family and not the third Appellant. It is trite law that it is the duty of the claimant to prove every averment in his pleadings, particularly where issues are duly joined on such pleadings and where no satisfactory evidence is led in proof of any fact in issue, the trial Court would be entitled to dismiss such issue – Obe Vs MTN Nigeria Communications Ltd (2021) 18 NWLR (Pt 1809) 415, All Progressives Congress Vs Obaseki (2022) 2 NWLR (Pt 1814) 273.

Thus, the position of the proved and admitted facts before the lower Court was that none of the five quarters in Ila-Orangun and the family of the Appellants who put forward candidates for the position of the Chief Imam was formally informed of the date and time of the screening of the candidates, but that notwithstanding this dereliction, all the six candidates got information about the screening exercise and they all attended and fully participated in the exercise without any protestations. It was not the case of the Appellants that the failure to give a formal notice of the screening exercise placed any of the six candidates that attended the screening exercise at any advantage or disadvantage. All that the failure to give the formal notice did was to invest the screening exercise with an irregularity in procedure. The Appellants participated fully in the exercise despite the irregularity without any protestations and they only protested when the outcome of the exercise did not favour their candidate.

It is settled law that a party who acquiesces, participates and consent to an irregular procedure in the doing of a thing cannot be allowed to resile therefrom where the outcome is not favourable to him. It raises the inference of estoppel by conduct or representation which makes it inequitable for such person to raise an objection subsequently – Umeakuana Vs Umuakuana (2019) 14 NWLR (Pt. 161) 61, Ekwuruekwu Vs State (2020) 4 NWLR (Pt 1713) 114, Ajibode Vs Gbadamosi (2021) 7 NWLR (Pt 1776) 475, Aje Printing (Nig) Ltd Vs Ekiti Local Government Area (2021) 13 NWLR (Pt 1794) 498. The rationale upon which the above principle is founded is that the law should not permit an unjust departure by a party from an assumption of fact which he has caused another party to adopt for the purpose of their legal relations – First Bank of Nigeria Plc Vs Songonuga (2007) 3 NWLR (Pt 1021) 230. Thus, a party who has knowledge or is presumed to have knowledge of the existence of an illegality in a transaction and enters into the transaction cannot later label it as illegal and raise illegality as a defence – Oyegoke Vs Iriguna (2002) 5 NWLR (Pt 760) 417, Achu Vs Civil Service Commission of Cross Rivers State (2009) 3 NWLR (Pt 1129) 475. To hold otherwise will be to encourage, support and sanction the use of subterfuge, deceit and underhand dealings by parties in legal relations.
The only exception to the above principle is where the party shows that he suffered a substantial miscarriage of justice by the use of the irregular procedure – Okwueze Vs Ejiofor (2000) LPELR 5803(CA), Famfa Oil Ltd Vs Attorney General of the Federation (2003) 9-10 SC 31, Ejasco Global Investment Ltd Vs Inim (2015) LPELR 25772(CA), Daniel Vs State (2016) LPELR 41238(CA), Oliyide & Sons Ltd Vs Obafemi Awolowo University, Ile-Ife ​(2018) LPELR 43711(SC). 

The term ‘miscarriage of justice’ means failure to do justice. It is justice misplaced, mis-appreciated or misappropriated. It is an ill conduct on the part of a body or Tribunal, which amounts to injustice. By our adversary system of adjudication, the burden is on the party alleging miscarriage of justice to prove in what circumstances he suffered injustice. And in the context of this appeal, that burden is on the Appellants. The question is – whether they discharged the burden? The simple answer is, No. The Appellants did not allege and neither did they show that their candidate at the screening exercise, i.e. the third Appellant, suffered a particular and peculiar setback which was limited only to him by reason of failure of the formal notification of the date and time of the exercise. The complaint of the Appellants on the point is thus baseless.

The Appellants have not put forward anything of merit to warrant this Court tampering with the decision of the lower Court. This appeal is totally misconceived, self-serving, frivolous and vexatious and it is hereby dismissed. The judgment of the High Court of Osun State, sitting in Ila-Orangun Judicial Division, delivered in Suit No HLR/1/2010 by Honorable Justice A. L. Adegoke on the 6th of June, 2016 is affirmed. The Respondents are awarded the costs of the appeal assessed at N100,000.00. These shall be the orders of this Court.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the leading judgment prepared by my learned brother, HABEEB ADEWALE O. ABIRU, JCA in this appeal.

I totally agree with the reasoning of my learned brother in the said judgment and abide by the resolution of the issues upon which the appeal has been determined in the judgment. There is no aspect of the appeal/judgment that I see the need to contribute to.

As I am in complete agreement with the conclusion of his Lordship in the leading judgment that the Appellants have not put forward anything to warrant this Court tampering with the decision of the lower Court, I too find this appeal to be totally misconceived, self-serving, frivolous and vexatious and the same is hereby dismissed. The judgment of the lower Court delivered in Suit No. HLR/1/2010 on 6/6/2016, is hereby affirmed.

I abide by the order in relation to costs as contained in the leading judgment.

YUSUF ALHAJI BASHIR, J.C.A.: I have had the opportunity of reading in draft the leading judgment delivered by my most learned brother, Habeeb Adewale O. Abiru JCA.

I find his reasoning and conclusion acceptable to me. All I need to add perhaps is just to say that there can be no doubt that the official language of our superior Courts of record in Nigeria is English. Therefore if documents written in any language other than English are to be tendered and properly reckoned with as part of the evidence on record in prove of any facts in dispute such a document must duly be translated into English either by a competent witness called by the party who needs them to prove his case or by the official Court interpreter. See Haruna Yusuf v. Bank of Agriculture Ltd & Ors (2016) LPELR-40467.

The document in issue is this appeal was written in Yoruba no English translated version of same was tendered in Evidence during the trial. The trial Judge was certainly right when he expunged and discountenanced this particular document in the evaluation of evidence process. With this little observation of mine and for the fuller and more comprehensive reasons contained in the leading judgment I hold that this appeal has no merit and it is hereby dismissed.

Accordingly, I abide by the order of my Lord Habeeb A. O. Abiru JCA in affirming the decision of the trial Court and also in respect of the cost awarded in favour of the respondent.

Appearances:

D. A. AbdulKadir For Appellant(s)

K. B. Odedeji For Respondent(s)