PHILIP OLAGUNJU & ANOR V. CHIEF OLAWUMI OBAJIN (The Ororin of Irorin, Aaye Qurters, Ilawe Ekiti) (2011)

PHILIP OLAGUNJU & ANOR V. CHIEF OLAWUMI OBAJIN (The Ororin of Irorin, Aaye Qurters, Ilawe Ekiti)

(2011)LCN/4536(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 11th day of May, 2011

CA/AE/47/2010

RATIO

EVALUATION OF EVIDENCE: GUIDELINES TO BE FOLLOWED BY THE COURT IN EVALUATING THE EVIDENCE OF THE PARTIES

On the appellants’ contention that the trial court did not properly evaluate the evidence of the parties, the learned counsel faulted the argument and gave the guideline as laid down by the Apex Court concerning evaluation of evidence of witnesses in the case of OYEWOLE V. AKANDE (2009) ALL FWLR (PART 491) 835. Paragraphs D – G. It was argued that the learned trial judge followed and applied these guidelines in arriving at its decision, and there was no complaint that the guidelines were not followed, that would warrant the evidence to be re-evaluated by this court. The Apex Court gave the following guidelines: a) Admissibility b) Relevancy of the evidence c) Credibility of the evidence d) Conclusiveness of the evidence
e) Probability of the evidence of one party more than that of the other. PER CHIDI NWAOMA UWA, J.C.A.

INTERFERENCE WITH THE FINDINGS OF THE TRIAL COURT: CIRCUMSTANCES UNDER WHICH THE APPEAL COURT WILL INTERFERE THE FINDINGS AND CONCLUSIONS OF A TRIAL COURT

CONTRADICTION IN THE EVIDENCE OF THE DEFENDANT: WHETHER WHERE THE PLAINITFF HAD NOT PROVED THEIR CASE THEY CAN RELY ON THE CONTRADICTIONS IN THE EVIDENCE OF THE DEFENDANT IN SUSTAINING THEIR CLAIM

Where the plaintiffs had not prove their case, contradictions in the evidence of the defendant will not avail the plaintiffs in sustaining their claim. See EZEMBA v. IBENEME (2004) 14 NWLR (PART 894) 617 at 691. OBIAZIKWOR V. OBIAZIKWOR (2007) ALL FWLR (PART 371) 1602 AT 1624. PER CHIDI NWAOMA UWA, J.C.A.

PLEADINGS: CONSEQUENCE OF EVIDENCE THAT IS AT VARIANCE WITH THE AVERMENTS IN THE PLEADINGS

In the case of OSUJI V. EKEOCHA (2009) ALL FWLR (PART 490) 614 at 662, paragraphs G – H, the apex court held that parties are bound by their pleadings and once the evidence is at variance with the averments in the pleadings, the claim must be dismissed. PER CHIDI NWAOMA UWA, J.C.A.

PLEADINGS: DUTY PLACED ON THE PLAINTIFF TO CALL EVIDENCE TO SUPPORT HIS PLEADINGS

…it is trite that a plaintiff must call evidence to support his pleadings. No evidence was led to support the existence of Aro family in Iloro part of Aaye Quarters. PER CHIDI NWAOMA UWA, J.C.A.

BURDEN OF PROOF: DUTY OF THE PARTY WHO ASSERTS TO PROVE HIS ASSERTION

It is settled principle of law that he who asserts, must prove. PER UWANI MUSA ABBA AJI, J.C.A.

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria

Between

1. PHILIP OLAGUNJU
2. CHIEF OLUFEMI ARAOYE (For and on behalf of Aro family Aaye Quarters,
Ilawe Ekiti) Appellant(s)

AND

CHIEF OLAWUMI OBAJIN (The Ororin of Irorin, Aaye Qurters, Ilawe Ekiti) Respondent(s)

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): This appeal arose from the judgment of the Ekiti State High Court Ado Ekiti Judicial Division delivered on 27th June, 2008 by J.O. Adeyeye, J. in which the learned trial judge dismissed all the claims of the appellants as plaintiffs.
The background facts are that the appellants instituted this action against the respondent and one late Patrick Adu as defendants. The claim before the trial court was as follows:-
a) “A declaration that Aro family of Aaye Quarters, Ilawe Ekiti has exclusive right to nominate candidates to fill the vacant posts of Aro, Inufinba, Bobajua, Akogun, Agbankin and all other chieftaincies in Aaro family of Aaye Quarters, Ilawe Ekiti.
b) An order of perpetual injunction restraining the defendant his privies or servants from nominating and or installing any candidate or candidates as Aro, Inufinba, Bobajua, Akogun, Agbaakin and all other chieftaincies in Aaro family of Aaye Quarters, Ilawe Ekiti”.
Shortly after the writ of summons was taken out and served, Patrick Adu who was the second defendant died, his name was thereafter struck out.
The appellants instituted the action in a representative capacity for and on behalf of Aro family Aaye Quarters, Ilawe Ekiti. On their part, they claim to be members of Aro family, Irorin Aaye Quarters, Ilawe Ekiti. The Aro family were said to have three branches Oke-Aro, Aarin-Aro and Isale-Aro with several chieftaincy titles, some of which are vacant, namely Bobajua, Inufinba, Akogun, and Aro. The appellants’ family had nominated their members to fill two of the vacant chieftaincy titles, namely Aro and Bobajua. The appellants claimed that only their family could exclusively nominate and produce candidates to fill those vacancies. The names of past holders of the chieftaincy titles were given in evidence and the appellants in their evidence claimed that Oloja Aaye is the head of Aaye Quarters and is the lawful person who can install any person presented to him by the appellants. It was said that sometime in 2002 the respondent who is said to be a chief priest from Irorin unilaterally nominated late Patrick Adu who came from the
appellants’ family and made moves to install him as Bobajua without consultation with the appellants’ family. The appellants protested against the action of the respondent but the installation was stalled by his demise. The appellants contended that the respondent lacked the power to install any person to fill their various family chieftaincy titles. The appellants gave instances in the past when the respondent tried to install some chiefs but, he was disallowed by the Local and State Governments. The appellants insisted that Irorin is part and parcel of Aaye Quarters, Ilawe Ekiti.
On the part of the respondent, he contended that he is the head of Irorin Quarters, a separate and distinct entity from Aaye Quarters, Ilawe Ekiti and that he has the power to install any person or persons as chiefs in his domain. He contended that the appellants are from Bobajua family in Irorin Quarters and not from Aro family in Aaye Quarters. It was his contention that there is no Aro family in Irorin Quarters and admitted that he had no authority to install chiefs in Aaye Quarters, which is outside his domain. He insisted he had installed chiefs in the past even though the certificates of installation pleaded by him were not tendered in evidence. A map of Ekiti South West Local Government showing Irorin as Quarters pleaded and tendered in evidence by the respondent was rejected as an Exhibit before the trial court.
At the close of trial, the learned trial judge dismissed the case of the appellants for failure to prove their case.
Dissatisfied with the judgment of the trial court, the appellants originally filed a Notice of Appeal on 18th August, 2008 with an omnibus ground of appeal, With the leave of this court granted on 22nd October, 2009, the appellants filed five (5) additional grounds of appeal. The Amended Notice of Appeal dated 27th October, 2009 was filed on 12th November, 2009 containing six (6) grounds of appeal from which the appellants formulated a sole issue for determination by this court thus:
“Whether from the pleadings and evidence adduced at the trial, the appellants’ claims ought not to have succeeded”.
In response, the respondent on his part adopted the sole issue as formulated by the appellants but, slightly modified. It reads thus:
“Whether from the pleadings and evidence adduced at the trial, the appellants’ claim ought to have succeeded”
In arguing his sole issue the learned counsel to the appellants Bamidele Omotoso Esq. adopted and relied on his brief of argument dated 3rd November, 2009 filed on 12th November, 2009. He submitted that the sole issue borders on the evaluation of evidence; he agreed that the trial court alone has the privilege of seeing and hearing the witnesses and therefore the primary function of appraising and ascribing probative value to the evidence presented by the parties is not the duty of this court. Reliance was placed in support on the case of ANYANWU V. UZOAWUKA (2009) 13 NWLR (PART 1159) 445 at-464 paragraphs G – H and 465 paragraphs B – E. Also, that this court would not normally interfere with the findings and conclusions of a trial court but, where the court fails to properly evaluate the evidence before it and arrives at findings not supported by evidence, then it is perverse and this court would intervene by evaluating the evidence and make its findings and draw its conclusion, this would not extend to assessment of credibility of witnesses, see WOLUCHEM V. GUDI (1981) 5S.C. 291; ODOFIN V. AYOOLA (1984) 11 S.C 72: OGUNLEYE V. ONI (1990) 2 NWLR (PART 135) 745. The learned counsel was of the view that the learned trial judge did not properly evaluate the evidence of the parties and we were urged to re-evaluate same. It was submitted that the pleadings are important in determining the evidence that would be material in determining the issues of facts in an action.
The following pleadings were reviewed:
1. Paragraphs 1, 2, 4, 5, 6, 9, 10, 11, 15, 16 and 17 of the appellants’ Amended statement of claim,
2. Paragraphs 3, 4, 7, 8, 9, 10, 11, 16, 21 and 27 of the reply to the statement of Defence and
3. Paragraphs 3, 4, 6, 7, 8, 11, 12, 13, 14, 15 and 17 of the respondent’s further Amended statement of Defence.
It was the submission of the learned counsel that from the appellants’ claims, the reliefs sought are declaratory and injunctive, which must be established by evidence and referred to the case of MAJA V. SAMOURIS (2002) 7 NWLR (PART 765) 78 at 100 – 101 paragraphs H – C and the evidence of the 2nd appellant, PW1 and that of the DW1, the respondent. It was submitted that throughout the evidence of the 2nd appellant, he maintained that Irorin is not a quarter in Ilawe Ekiti but a section of Aaye Quarters. Reference was also made to paragraph 11 of the Further Amended Statement of Defence of the Respondent’s where he averred that Irorin shares a boundary wlth Aaye and that he would tender a map of Ekiti South West Local Government Area before the trial court but never did, page 49 of the printed records.
Further, that a map said to be of Ekiti south west Local Government sought to be tendered through DW2 was rejected by the trial court. Reference was made to paragraph 7 of the Further Amended Statement of Defence where the respondent as defendant averred that he would be tendering certificates of chiefs he installed in Irorin Quarters which he never did. As to who is competent to install chiefs in Aaye Quarters, Ilawe Ekiti, it was the contention of the learned counsel that the evidence of the PW2 under cross examination supported the case of the appellants as to who was competent to install chiefs in Aaye Quarters, Ilawe Ekiti, to which the witness named Oloja Aaye and not the respondent.
In emphasizing that Irorin is a street under Aaye Quarters headed by Oloja Aaye, the appellants tendered Exhibits ‘A1’ – ‘A7′. It was argued that a plaintiff in order to establish or prove his case could use facts that support his case from the defendant’s case, see ANGEL SPINNING & DYEING LTD VS. AJAH (2000) 13 NWLR (PART 685) 532 at 550 paragraphs C – D, the facts in the respondent’s case that were said to support that of the appellants’ were highlighted, that is paragraph 15 of the Further Amended Statement of Defence, Page 49 of the printed records and the evidence of DW2, DW3 and DW4 to the effect that Ororin has no power to install chiefs in Aaye Quarters.
It was submitted by learned counsel that the pleadings and evidence of the respondent supports the appellants’ case, to the effect that the respondent cannot install any chief from Aaye Quarters, Ilawe Ekiti and that the appellants could only present candidates for the chieftaincies in Aaye Quarters, Ilawe Ekiti. The appellants maintained that they are of Aro family, Irorin Aaye Quarters, Ilawe Ekiti, and were of the opinion that the respondent and his witnesses gave evidence that was not consistent, as to where the appellants came from. The evidence of the PW1, PW2 and DW1 were reviewed concerning where these witnesses say the family of the appellants belongs to.
While the respondent contended that there was no Aro family in Irorin Quarters but, agreed that there is Aro chieftaincy in Aaye or Iloro Quarters, Ilawe Ekiti. It was argued that the respondent failed to prove through his pleadings and evidence that the appellants are members of Bobajua family in Irorin Quarters, reference was made to paragraph 4 of the Further Amended Statement of Defence and the evidence of DW1, DW2, and DW4 which learned counsel submitted once again is contradictory to the evidence of DW3. We were urged to reject this piece of evidence which is material to their case that is contradiction as to where they say the family of the appellants came from, Bobajua family of Irorin quarters, Ilawe Ekiti. Reliance was placed on the cases of ODUDU V. ONYIBE (2001) 13 NWLR (PART 729) 140 AT 153 paragraphs F – H, and MOGAJU & ORS V. CADBURY NIGERIA LTD (1985) 2 NWLR (PART 7 (393). Further, the failure of the respondent as defendant to prove that the appellants are from Bobajua family in Irorin, Ilawe Ekiti, therefore that the evidence of the appellants as to their origin remains unchallenged and ought to have been accepted by the trial court. It was argued that the evidence of PW1 and PW2 was not challenged under cross examination, and ought not to have been disbelieved. See, Anigbogu v. Uchejigbo (2002) 10 NWLR (part 776) 472 at 496 – 497 paragraphs H – B. Learned counsel faulted the holding of the learned trial judge, at page 115 of the printed records to the effect that Ademola Araoye was installed as Agbaakin by the respondent, as it was not pleaded and DW2’s attempt to give evidence along this line was objected to which was sustained by the learned trial judge, page 117 of the printed records.
It was the submission of the learned counsel that the position of the respondent is that Aro family did not exist in Irorin, the evidence of the DW1, Dw2, DW3 and DW4 was reviewed to that effect, pages 68, 70, 72, 77 and 79 respectively.
It was further argued that the map of Ekiti south west Local Government Area pleaded in paragraph 11 of the Further Amended statement of Defence was never tendered, which amounts to withholding evidence, see ADENIRAN v. ALAO (2001) 18 NWLR (PART 745) 361 AT 408 – 409 D – E and UZOEGWU v. IFEKANDU (2001) 17 NWLR (PART 741) 49 at page 74 paragraphs C – G The learned counsel contended that the learned trial judge’s reliance on Exhibits ‘C’ and ‘D’ amounted to speculation of the existence of Irorin as a Quarter in Ilawe Ekiti as these were not maps of Ekiti South West Local Government Area, see, ADENIRAN v. OLAGUNJU (2001) 17 NWLR (PART 741) 169 at 183 AT A – E. It was submitted that the failure of the learned trial judge to act on the unchallenged evidence of the appellants in Exhibit ‘A5′, the Intelligence Report showing Aaye as a Quarter in Ilawe Ekiti occasioned a miscarriage of justice.
It was the argument of the learned counsel that it was wrong for the learned trial judge to rely on the lack of evidence of Oloja – Aaye and Chief Ejio in deciding whether the appellants are from Aro family in Irorin – Aaye and determining if Irorin was still part of Aaye when it is not on record that they are members of the Aro family in Irorin and also the respondent’s witnesses did not claim to be from the same family as the appellants.
We were urged to resolve the issue in favour of the appellants, allow the appeal, set aside the judgment of the lower court and grant the claim of the appellants.
As I stated earlier in this judgment, the respondent adopted the sole issue as formulated by the appellants but differently couched. It reads:
“Whether from the pleadings and evidence adduced at the trial, the appellants’ claim ought to have succeeded”.
In arguing his sole issue, the learned counsel to the respondent Ajibola Aruleba Esq. in his brief of argument submitted that the argument proffered by the appellants in their brief is not in accord with the evidence on record and should be discountenanced by this court.
It was submitted that the appellants in their pleadings in paragraph 7 of their Amended Statement of Claim, paragraphs 3,4,16 and 21 of their Reply to the Statement of Defence and their evidence before the trial court insisted that Aro is in Irorin and is one of the seven branches of Irorin, others being ororin, Ejio, Aderuku, Olorisa, Oba and Atoye; this was denied by the respondent as defendant who contended that there is no such family as Aro family in Irorin but, Bobajua and also made out that Irorin is not a street in Aaye Quarters but a separate quarter on its own which, it was argued was confirmed by the defence witnesses. It was submitted that the burden is on the appellants to prove their assertions; S. 137 of the Evidence Act was cited and relied upon as well as the case of UNIVERSITY PRESS LTD V. I. K. MARTINS LTD (2000) 4 NWLR (PART 654), 584. Further, that the three people who were said to have been installed as Aro as contained in the appellants’ pleadings were named but, they failed to call as witnesses members of their families to confirm the installation and the period of their reign.
It was the argument of counsel to the respondent that Oloja Aaye who the appellants say is the head of Aaye Quarters and Ejio the administrative head of Irorin were not called to give evidence in respect of the appellants’ claims and assertions, see Sections 135 and 137 of the Evidence Act. Reference was also made to paragraph 26 of the appellants’ reply to the statement of defence concerning the appellants’ protest to the respondent during the installation of the late Patrick Adu as Bobajua.
The learned counsel to the respondent was of the view that the totality of the evidence adduced on his behalf before the trial court was credible and convincing that Aro family does not exist in Irorin but Bobajua and that Irorin ls an independent quarter and not a street in Aaye Quarters. Meanwhile, that the appellants failed to prove that Aro family exists in Irorin and that Irorin is a street in Aaye Quarters. It was submitted that the learned trial judge made proper findings on the evidence on both sides and rightly reached the conclusion of dismissing the appellants’ case, see page 118 of the printed records. The appellants, it was argued ought to succeed on the strength of their case and not on the weakness of the defence, reliance was placed on the cases of: ADENIRAN V. ALAO (2001) 18 NWLR (PART 745) 361. ONWUANA V. EZEOKOLI (2002) 5 NWLR (PART 760) 353, ANUKAM V. ANUKAM (2008) 5 NWLR (PART 1081) 455 at 472 – 473, H – A. ODUTOLA V. SANYA (2008) ALL FWLR (PART 400) 780. ratios 4 and 5 and IBRAHIM V. BANDE (1996) 9 NWLR (PART 473) 513 at 580. C – D ratio 21. We were urged not to disturb the findings and decision of the trial court as same was not perverse, see GBAFE V. GBAFE (1996) 6 NWLR (PART 455)417 AT 436, E – F and MAKINDE V. AKINWALE (2000) 2 NWLR (PART 645), 435 at 447 E.
It was argued that, since from the evidence before the court Irorin as a quarter was created in 1985, all the argument proffered by the appellants in respect of Exhibit ‘A5’, the Intelligence Report of 1931 1933 not showing Irorin as a quarter in the map of Ado District is an academic exercise, having been overtaken by events, see LAWAL V. MOROHUNFOLA (1998) 1 NWLR (PART 532) 111 and BADEJO V. MINISTER OF EDUCATION. (1986) 9 – 10 SCNJ 51. We were urged to take judicial notice of the fact that Irorin is a separate quarter vide Exhibits ‘B’, ‘C’, ‘D’ and ‘E’.
On the appellants’ contention that the trial court did not properly evaluate the evidence of the parties, the learned counsel faulted the argument and gave the guideline as laid down by the Apex Court concerning evaluation of evidence of witnesses in the case of OYEWOLE V. AKANDE (2009) ALL FWLR (PART 491) 835. Paragraphs D – G. It was argued that the learned trial judge followed and applied these guidelines in arriving at its decision, and there was no complaint that the guidelines were not followed, that would warrant the evidence to be re-evaluated by this court. The Apex Court gave the following guidelines:
a) Admissibility
b) Relevancy of the evidence
c) Credibility of the evidence
d) Conclusiveness of the evidence
e) Probability of the evidence of one party more than that of the other.
It was submitted by learned counsel that the trial court properly evaluated the evidence of the parties before arriving at its findings at pages 111-118 of the printed records. We were urged to discountenance the argument on behalf of the appellants urging this court to re-evaluate the evidence of the parties before the trial court.
Further, that from their pleadings and evidence before the trial court the appellants’ family is a branch of Irorin and not a branch of Iloro section or any other section of Aaye Quarters. Reference was made to paragraph 7 of the Amended Statement of claim and paragraphs 3, 4, 16, and 21 of the Reply to the Statement of Defence and the evidence of PW1, pages 55 – 56 of the printed records, which gave rise to the trial court’s holding at page 117 of the records to the effect that the appellants are not from Aro family in Aaye Quarters. It was argued that the evidence of the PW2, page 58 of the records, also contradicted paragraph 3 of the Reply to the Statement of Defence. PW2 testified to the effect that he and the appellants are members of the same family of Aro with three branches he named as oke-ile Aro, Aarin-ile Aro and odo-ile Aro and said he was from Bobajua branch of Aro family and that the late Patrick Adu, his cousin was a member of Bobajua branch of Aro family, while it was pleaded that Bobajua is not a branch of Aro family, which is at variance with the PW2’s evidence. Reliance was placed on the case of OSUJI v. EKEOCHA (2009) ALL FWLR (PART 490) 614 at 662 paragraphs G – H. It was submitted that the respondent pleaded and gave evidence that Bobajua is a branch of Irorin Quarters meaning that the appellants and the respondent are from Irorin Quarters not Aaye Quarters, with the respondent as the head of Irorin Quarters, for this reason/ the appellants protested to him when the late Patrick Adu was installed Bobajua.
The learned counsel refuted the appellants’ contention that none of the parties pleaded the material fact that Ademola Araoye was installed as Agbakin by the respondent. The evidence of PW1, PW2, DW1 and DW5 was reviewed on this issue.
Further, that since the trial court found that Irorin is an Independent quarter from Aaye and since the evidence of both parties tallied as to the appellants’ relationship to Irorin, there was no need for the court to pronounce further on the family of the appellants, whether Aro family or Bobajua family, thus refuting the appellants’ contention that the learned trial judge failed to make any pronouncement on the family of the appellants. We were urged to discountenance the argument of the learned counsel to the appellants’ that the respondent withheld evidence when he failed to tender the map showing the boundary between Irorin and Aaye when it was the learned appellants’ counsel that objected to the tendering of the map, based on not having made the map available to him at least ten (10) days before the trial as required by the applicable laws of Ondo State, as applicable in Ekiti State, (Order 37 Rule 9 of the Ondo State Rules of Court). We were urged to discountenance the argument put up by the appellants on this point. UZOEGWU’S case was said not to be applicable.
On the contention of the appellants that Oloja-Aaye and Ejio are not members of Aro family in Irorin, therefore that their evidence is not vital to this case, it was submitted that from the appellants’ pleadings in paragraph 5 of the Amended Statement of claim and paragraph 7 of the Reply to the Statement of Defence, Oloja Aaye has been the head of Aaye Quarters while Ejio has been the administrative head of Irorin, therefore that Oloja Aaye who had been installing chiefs in Irorin should have been the one to take out this action for his power and authority being interfered with. We were urged not to disturb the judgment of the trial court as it was based on the weight of the evidence adduced on the side of the respondent and were not perverse. See, MAKINDE VS. AKINWALE (SUPRA) we were urged to dismiss the appeal as lacking in merit and affirm the decision of the trial court.
As I said earlier in this judgment the sole issues raised by the parties are similar but couched in a different way, but have the same meaning or effect.
I will adopt the issue as formulated by the appellants, that is:
“Whether from the pleadings and evidence adduced at the trial, the appellant’s claims ought not to have succeeded”.
The main crux of this appeal is on the evaluation of evidence by the trial court.It is trite that the trial court which has the privilege of seeing and hearing the witnesses testify has the primary function and in a better position to appraise and ascribe probative value to the evidence presented by the parties in taking a decision to arrive at a particular conclusion after its findings of fact and application of the relevant laws. In addition, the trial court would take a decision one way or the other also based on the pleadings, the oral testimony of the witnesses and documents tendered and guided by the factors earlier reproduced in this judgment, as laid down in OYEWOLE V. AKANDE (SUPRA) and ANYANWU V. UZOWUAKA (SUPRA) both, decisions of the apex court.

The duty of this court does not include the evaluation of evidence, and would only interfere with the findings and conclusions of a trial court only for the purpose of re-evaluating the evidence so as to make its finding only in certain circumstances, where:
(a) The findings of the trial court are perverse;
(b) The findings were not arrived at as a result of a proper exercise of judicial discretion;
(c) The trial court did not make proper use of the opportunity of seeing and hearing the witnesses at the trial;
(d) The findings were reached as a result of wrong application of some principle of substantive law of procedure.
This court as an appellate court can only exercise the function of evaluation or re-evaluation of evidence if the exercise would not entail the assessment of credibility of witnesses, but, is confined to making findings and drawing inferences and conclusions, from admitted, proved or established facts as also rightly argued by the learned counsel to the appellants, who has called upon us to reevaluate the evidence of the parties, as the appellants have alleged that the learned trial judge did not properly evaluate the evidence of the parties. In the present case, it is not the credibility of the witnesses that is at stake. It is therefore necessary to re-examine the evidence adduced by the appellants in proof of their case as well as documentary evidence, this would justify or otherwise the findings of fact by the trial court. With a look at the appellants’ pleadings, in paragraph 7 of the Amended Statement of Claim it was pleaded as follows:
“7. Irorin section is made up of seven branches namely, Aro, Ororin, Ejio, Aderuku, Olorisa, Oba and Atoye”.
Also paragraphs 3, 4, 16, and 21 of the Reply to the Statement of Defence the appellants pleaded as follows:
“3. Plaintiffs are from Aro family in Irorin, Aaye Quarters Ilawe Ekiti. Aro family has three branches namely:
(a) Oke Ile Aro/Parako which has exclusive right to Akogun Chieftaincy title
(b) Arin Ile Aro/Ikupolusi Adewunuju which has exclusive right to Bobajua Chieftaincy title and
(c) Odo Ile Aro/Alasere which has exclusive right to Inufinba Chieftaincy title”
(4) Three people are known to have been installed Aro in the history of Irorin namely:
(a) Babamuboni as the first Aro
(b) Alasere as the second Aro
(c) Agbelemase as the third Aro.
16. Aro family exists in Irorin and is very prominent.
(a) Agbaakin Agba and Inufinba are usually from Odo ile Aro/Alasere.
(b) Bobajua is from Aarin ile/Ikupolusi Section. Among the past Bobaju as were
(i) Ikupolusi Adewumiju (who was a time made Onipa)
(ii) Ogunmodimu
(iii) Atobaje.
21) “Agba Akin Agba (like Eyelori Orin) is usually rotated between Oke ile Aro and Odo ile Aro. The past holders were Babamuboni parako, Ome ifa, Akode all dead. Chief Ademola Araoye is the living Agba Akin Agba. All the aforementioned chiefs are from Ile Aro in Irorin and Aro is usually the head chief”.
The evidence of PW1 and PW2 was to the effect that they belong to Aro family of Irorin, Aaye Quarters, Ilawe Ekiti, but the respondent as defendant on their part insisted that there is no family known as Aro family in Irorin but Bobajua and that Irorin is not a street in Aaye Quarters but a separate quarter on its own.
From paragraph 3 of the appellants’ reply to the Statement of Defence, it is clear that Akogun, Bobajua and Inufinba are chieftaincy titles of three branches of Aro family, contrary to the evidence of the PW2 who testified to the effect that he and his late cousin Patrick Adu are from Bobajua branch of Aro family. He had mentioned his elder brother Michael Egunjobi having been nominated as Bobajua, in 2001, he also named past Bobajuas from Aro family as Adewumiju, Ogunmodimu and Atobaje, all said to have been nominated by Aro family and installed by Oloja Aaye, while the respondent is a member of Ororin family and had no right to nominate anyone to the stool of Bobajua, Page 58 of the printed records.
The learned trial judge was therefore right when he held at page 114 of the printed records that the evidence of the PW2 was at variance with the appellants’ pleadings as plaintiffs and discountenanced same. Bobajua by their pleading and evidence is a chieftaincy title, which the PW2’s elder brother was once nominated for; three others had been nominated and installed by Oloja Aaye.
I agree with the learned counsel to the respondent that three people were mentioned to have been installed as Aro before, but, the appellants failed to call members of the families of these people to testify as to who installed them, when installed and the period of reign.
While the appellants contended that Irorin is not a quarter but a street in Aaye Quarters headed by Oloja Aaye, the Ejio is the administrative head of Ilorin and the respondent had always been a chief priest of Irorin. The respondent on his own part contended that Irorin has been an independent quarter since 1985 and the respondent has been the head of the Irorin Quarters and not Ejio who has been the second in command. It is noteworthy that neither Oloja Aaye, (who the appellants say is the head of Aaye Quarters) nor Ejio (the administrative head of Irorin) was called to give evidence in support of the appellants’ contention.
The evidence of these two witnesses would have cleared the air as to whether Aro family exists in Aaye Quarters or whether Irorin is a street under Aaye Quarters, the burden is on the appellants to have done so in proof of their claims not on the respondent as defendant whose duty is only to defend, not having counter claimed.
See J. M. KODILINYE V. MBANEFO ODU (2003) 36 WRN 175; 1935 2 WACA 336 at 337; OYEBANJI V. AKANBI (2011) 12 WRN 86 at 103.
Further, when the respondent installed late Patrick Adu as Bobajua, the appellants protested to the respondent and not to Oloja Aaye or Ejio. The appellants in paragraph 26 of their reply to the Statement of Defence pleaded thus:
“26. Plaintiffs protested against the purported nomination of late Patrick Adu by the defendant by sending three members of the plaintiffs’ family to the defendant before late Patrick Adu performed the Ikankuoye which unfortunately was his last activity on earth”
The respondent as defendant maintained in evidence and his pleadings that the plaintiffs (appellants) are from Bobajua branch of Irorin Quarters, the DW3, DW4, DW5 gave evidence to this effect and that Aro family does not exist in Irorin and that Irorin is no longer part of Aaye Quarters. The learned trial judge believed the evidence of these witnesses as being more cogent and compelling; also the evidence that Ademola Araoye who the 2nd plaintiff claimed is from Odo-Aro branch was installed as Agbaakin by the respondent.
I cannot fault the learned trial court’s view, at page 115 of the records, that the plaintiffs now appellants did not adduce sufficient evidence to show that they are from Aro family in Irorin, Aaye Quarters, Ilawe – Ekiti.
The appellants insisted that they hailed from Aro family, Irorin Aaye Quarters, Ilawe Ekiti while the respondent refuted this. It is the duty of the appellants as plaintiffs to prove that they are from Aro family, in Irorin and that Irorin is a street in Aaye Quarters as opposed to a separate Quarter as contended by the respondent.
The submissions of learned counsel to the appellants in respect of the pleadings in paragraph 15 of the Further Amended Statement of Defence, page 49 of the printed records, the evidence of DW2, DW3, and DW4 does not avail the case put forward by the appellants who should succeed on the strength of their own case. See IBRAHIM v. OJOMO (2004) 4 NWLR (PART 862) 89, OKECHUKWU V. ADAH (1967) NMLR 369, F. M. F. LTD V. EKPO (2004) 2 NWLR (PART 856) 100 and THE REG. RCCG V. BANKOLE (2011) 14 WRN PAGE 138 at 156 – 157. The defendant is only to defend, not establish in this case the case put forward by the appellants, that is, that Irorin is not a separate Quarter from Aaye Quarters. From paragraph 4 of the Further Amended Statement of Defence, the evidence of DW1, DW2, DW4 and DW5 pages 68 – 79 of the printed records it is clear that the appellants are from Bobajua family in Irorin, the respondent proved same through his pleadings and evidence before the trial court, contrary to the submissions of the learned counsel to the appellants that the respondent did not prove his assertion that the appellants are members of Bobajua family in Irorin. As I stated earlier in this judgment, it is not the duty of the defendant to prove that the appellants are of Aro family, in Irorin section of Aaye Quarters as claimed.
Even though the evidence of the DW3 at page 77 of the records was argued to have contradicted that of DW1 and DW2 when he said that the appellants are from Irorin family contrary to the evidence of DW1 and DW2, it does not make a difference as defendant, as witnesses to the defence may give inconsistent and contradictory evidence or account of the same incident. It is not material in this case and does not remove the burden of the plaintiffs to prove their case. The plaintiffs cannot cash in on the weakness of the case of the defence to succeed in their claim. See ADENIRAN V. ALAO (2001) 18 NWLR PART 745, 361, ANUKAM V ANUKAM (2008) 5 NWLR (PART 1081) 455 at 472 – 473, 4 – A ODUTOLA V. SANYA (2008) ALL FWLR (PART 410) 780 ratios 4 & 5. The case of MOGAJI V. CADBURY (SUPRA), relied upon by the appellants would be applicable if the plaintiffs had in the first place proved their case.
Where the plaintiffs had not prove their case, contradictions in the evidence of the defendant will not avail the plaintiffs in sustaining their claim. See EZEMBA v. IBENEME (2004) 14 NWLR (PART 894) 617 at 691. OBIAZIKWOR V. OBIAZIKWOR (2007) ALL FWLR (PART 371) 1602 AT 1624.
From the totality of the evidence and the pleadings of the parties, the learned trial judge believed as credible and convincing the evidence of the respondent that Aro family does not exist in Irorin but Bobajua and that Irorin is an independent quarter, not a street in Aaye Quarters. I see no reason to disturb the holding of the learned trial judge at page 118 of the printed records to the effect that the plaintiffs have not proved their case to entitle them to the declaratory reliefs sought. I am of the humble but firm view that the decision of the trial court is in line with the evidence led and is in no way perverse to entail disturbance by this court. See MAKINDE V. AKINWALE (SUPRA) the appellants from their pleadings, earlier highlighted in this judgment and the evidence of PW1, are from Aro branch of Irorin and not a branch of Iloro section or any other Section of Aaye Quarters. The holding of the learned trial judge at page 117 of the printed records that since the plaintiffs claim to be from Aro family in Irorin section of Aaye and since it was established that Irorin is no longer part of Aaye it followed that the plaintiffs are not from Aro family in Aaye Quarters cannot be faulted,
In the case of OSUJI V. EKEOCHA (2009) ALL FWLR (PART 490) 614 at 662, paragraphs G – H, the apex court held that parties are bound by their pleadings and once the evidence is at variance with the averments in the pleadings, the claim must be dismissed. While in paragraph 3 of the Reply to the Statement of Defence it was pleaded that the plaintiffs are from Aro family in Irorin, the PW2 on oath testified that the plaintiffs and he are from Aro family and later, that he is from Bobajua branch of Aro family, as well as his late cousin Patrick Adu. The evidence was rightly held by the learned trial judge to be contradictory to the above paragraph 3 and he properly discountenanced same. Bobajua was rightly held to be a chieftaincy title as opposed to being a branch of the Aro family, and is in no way perverse.
On the other hand, the respondent pleaded and gave evidence that Bobajua is a branch of Irorin Quarters; in consequence both parties are from Irorin Quarters not Aaye Quarters, with the respondent as the head, which is the reason why the appellants protested to him when late Patrick Adu was Installed as Bobajua by the respondent who did not protest to Oloja Aaye as the head or Ejio who was said to be their administrative head and I so hold.
In my view, the evidence and pleadings before the trial court support the finding that the appellants are of Bobajua branch of Irorin Quarters and not Irorin Street in Aaye Quarters as claimed by the appellants, with Irorin and Aaye Quarters being distinct and separate Quarters in Ilawe Ekiti. The learned counsel to the appellants made reference to the pleadings of the respondent in paragraph 13 of the Further Amended Statement of Defence to the effect that it was admitted that Aro family exists in Iloro part of Aaye Quarters, page 49 of the printed records, but, it is trite that a plaintiff must call evidence to support his pleadings. No evidence was led to support the existence of Aro family in Iloro part of Aaye Quarters.
In paragraph 5 of the appellants’ Amended Statement of Claim Oloja Aaye was named as the overall head with the exclusive power to install candidates presented to him by the various sections under his control and supervision, paragraph 6 named Irorin as one of the four sections under Aaye Quarters. (Others are Okejagun, Inisa Petu and Iloro). Also in paragraph 7 of the Reply to the Statement of Defence Ejio was named as the administrative head of Irorin (while Ororin was the chief priest of Irorin). It follows therefore that if Oloja Aaye had been installing chiefs in Irorln the respondent would have challenged his role, thus challenging or reducing his power and authority, Oloja Aaye’s evidence and that of Ejio would have assisted the court to know whether Irorin is still part of his domain or an independent quarter. There was no credible evidence to show that Aaye Quarter includes Irorin, in which the appellants claim, they form a street and not a separate quarter, entitled to the exclusive right to nominate candidates to fill the vacant posts of Aro, Inufinba, Bobajua, Akogun, Agbaakin and all other chieftaincies in
Aro family of Aaye Quarters, Ilawe Ekiti.
I am of the humble view that the holding of the learned trial judge that Irorin cannot be a street in Aaye but a separate quarter distinct from Aaye and an Independent quarter in Ilawe-Ekiti is not perverse and cannot be faulted in concluding at page 117 of the printed records thus:
“It follows that the defendant as the head chief of Irorin can install chiefs in Irorin and not Oloja Aaye who is the head of Aaye and a separate quarter from Irorin. Since the plaintiffs said they are from Aro family in Irorin section of Aaye and it has been established that Irorin is no longer part of Aaye it follows therefore that the plaintiffs are not from Aro family in Aaye quarters”.
The respondent and his witnesses, DW1, DW2, DW3 and DW4 had testified that there is no Aro family in Irorin Quarters, Page 68 – 79 of the printed records, and the learned counsel to the appellants had posed the question as to where the appellants were from, if not Aro family in Irorin? I am afraid this should have been answered or established by the appellants through evidence in support of their claim seeking a declaratory relief and not left to the respondent as defendant to establish.
It was also argued that the learned trial judge did not make a finding on the issue of the family of the appellants, which was argued to have occasioned a miscarriage of justice. On the contrary the learned trial judge did hold that the appellants (as plaintiffs) are not from Aro family in Aaye Quarters, in my respectful view, no miscarriage of justice was occasioned.
From the totality of the evidence before the court, the appellants as plaintiffs did not prove their claim and the trial court was right in dismissing the plaintiffs’ claim in its entirety, which I hold was not perverse to warrant a reversal or disturbance of the decision, the evidence put forward by the respondent as defendant having outweighed that of the appellants as plaintiffs.
The resultant effect is that the appeal lacks merit and it is hereby dismissed. I affirm the decision of the trial court of 27th June, 2008 delivered by J. O. Jegede, J of Ekiti State High Court sitting at Ado Ekiti. I award costs of N30, 000.00 (Thirty Thousand Naira) in favour of the Respondent.

UWANI MUSA ABBA AJI, J.C.A.: I have had a preview of the lead judgment just delivered by my learned brother, C.N. Uwa, JCA, and I totally agree with the reasoning and conclusion arrived at that the appeal is devoid of any merit.
It is settled principle of law that he who asserts, must prove. The Appellants have failed to lead evidence to establish a simple fact that they are from Aro family of Aaye Quarters, Ilawe Ekiti. The Appellants cannot therefore shift the burden of proof on the Respondents to establish who the Appellants are. The Respondents led evidence to establish the fact that there is no Aro family in Irorin Quarters Ilawe-Ekiti.
The finding of the learned trial Judge at page 117 of the record of appeal cannot be faulted. He held thus:
“It follows that the defendant as the head chief of Irorin can install chief in Irorin and not Oloja Aaye who is the head of Aaye and a separate quarter from Irorin. since the plaintiffs said they are from Aro family in Irorin section of Aaye and it has been established that Irorin is no longer part of Aaye, it follows therefore that the plaintiffs are not from Aro family or Aaye Quarters”
The Appellants did not prove their claim and the trial Court was right in dismissing it. I also dismiss the appeal and affirm the decision of the trial Court given on the 27th June, 2008 by Justice J.O. Jegede of the High Court of Ekiti State sitting at Ado-Ekiti.
I endorse the consequential order as to costs.

HARUNA M. TSAMMANI, J.C.A.: I had the advantage of reading before now the judgment just delivered by my learned brother, Chidi Nwaoma Uwa, J.C.A.
My Lord painstakingly evaluated the evidence on the record of appeal and came to the conclusion that the trial court was right in dismissing the Plaintiff/Appellant’s claim before him. My Lord also found that the decision of the learned trial judge was not perverse. I agree with the reason and conclusion of my learned brother that the decision of the trial court be affirmed, as the appeal against same lacks merit.
Accordingly, I hereby dismiss the appeal and affirm the judgment of the lower court. I abide by the order as to cost.

Appearances

Bamidele Omotoso EsqFor Appellant

AND

Bola Aruleba Esq.For Respondent