Abdullai Idris Oseku & Ors. V. The Minister Federal Capital Territory, Abuja & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

MARY U. PETER-ODILI, J.C.A.

The Plaintiff now Appellant took out a writ of summons against the Defendant/Respondent and claimed as follows as per the statement of claim:-

i. A declaration that the Kiba clan is one of the Ruling Houses in Abaji and are therefore entitled to aspire to the throne of Onah of Abaji and in particular entitled to participate in all the rites, necessary and customary to the nomination, selection and installation of whosoever occupies the throne of Onah of Abaji.

ii. A declaration that after the death of Alhaji Abdulahi Salihu on the 16th of February 1994, the Kiba Ruling House has a duty to present a prince for the consideration of the king makers as one of the Ruling Houses entitled to occupy the throne of Onah of Abaji.

iii. An order of perpetual injunction restraining the defendants by themselves, agents, successor, privies, nominees, assigns from nominating, appointing or turbaning any new or other Onah of Abaji without reference to or the consent of the Kiba Ruling House in accordance with the custom and tradition of Abaji.

Pleadings were exchanged, trial was heard and judgment given on the 21st of March 1996 dismissing the Plaintiff’s claim. Dissatisfied with the judgment and Order of I. H. Gummi J. (as he then was), the Plaintiffs have appealed to the Court of Appeal in the terms of the Notice of Appeal.

FACTS:-

From the Amended Statement of claim can be seen some of the averments of the Plaintiffs/Appellants that the plaintiffs are indigenes of Abaji of Gana Gana extraction, members of the Kiba Ruling House and resident at Abaji. That the 1st Defendant is the Minister in charge of Abuja with the power to approve and recognize the nominee to occupy the office of Ona of Abaji. Also stated that the 2nd defendant is the Head of Abaji Area Council, expected to attend the meeting at which an Ona is nominated and he would forward such recommendation to the 1st Defendant for approval.

That the 3rd to 5th Defendants are representatives of the three other ruling houses of Abaji being Ogede, Anuku and Adegema while the 6th Defendant is the Head of the kingmakers of Abaji. The Plaintiffs contended that they are members of the Kiba Ruling House of Abaji, as such they are entitled to participate in all the rites, meetings and deliberations that will lead to the nomination, selection and installation of any person as the Ona of Abaji. That with the demise of the last Ona from Anuku House, the Kiba Ruling House having been neglected for a very long time it is now their turn to present a prince for the vacant stool as Ona of Abaji.

The Plaintiffs further stated in pleadings that the first settlers in Abaji were the Ogede people, then Anuku, then Adegema and followed by kiba. That these four settlers agreed to have a leadership to protect their interests at all times and in the process set up the throne of Ona of Abaji and it was made rotational among the settlers. That when the Abaji people were attacked in war the Igbirras that is the ancestors of the third and fifth Defendants ran away and only the Hausa successfully resisted the invaders and were thus allowed to rule on two consecutive occasions. That their role as Ruling House had been established in the way materials were shared in Abaji in four equal parts to the four ruling House by Government. That there were documents to prove these assertions of theirs.

In their own version the 3rd – 6th Defendants asserted that there is no Ruling House known and styled or called Kiba Ruling House as the only Ruling Houses in Abaji are Ogede, Anuku and Adegema. That the stool of the Ona of Abaji is the exclusive preserve of the Egurras (Igwirra) only, a tribe to which the kiba or plaintiffs do not belong. That ascension to the stool or Ona of Abaji rotates between the three known Ruling Houses of Ogede Anuku and Adegema Ruling Houses in that order of seniority. Also that the Kibas not being members of any ruling house have no portion of land over which they exercise control as done by the three ruling houses. They further averred that Disa was the first Kiba settler who was conferred with the title of Yatsun only by then Ona because Disa being a very good blacksmith as most of the Kibas manufactured weapons which were used by the Egbura people of Abaji to fight wars and Disa was never an Ona. That Abaji has 7 kingmakers and not 8 as contended by the plaintiffs. That Kiba, not being a Ruling House is not entitled to the throne and as such cannot present a prince for enthronement. They further asserted that Atanze became Ona because his mother was a princess from Adegema Ruling House whose turn at the time it was to produce the next Ona and Adegema not having a competent or qualified prince or male child to occupy the stool of Ona and as is customary with the Egbura people not only of Abaji, the mother of Atanze who came from Adegema Ruling clan/house was given the opportunity to bring her son to be the Ona. That Atanze was appointed Ona on the understanding that when the rightful person comes, he (Atanze) would relinquish the office of Ona. That with Atanze operating in a callous way and maltreating people he was removed after three months and Tukura, the rightful person was appointed the next Ona.

The Appellants brief was filed on 15/8/98 and they formulated eight issues for determination which are as follows:-

1. What is the proper interpretation of the rules in Kojo v. Bonsie, Momodu v. Ojemen as it relates to this appeal.
2. Where contradictory evidence is given as to a particular set of facts which of them is to be relied on? Oreana court believe a witness who has given contradictory evidence on any other matter.
3. Is Exhibit P1 worthless? If not what is its proper role in this matter?
4. Whether the fact that a custom has been breached can ground a finding that it does not exist.
5. Whether or not Kiba ruling House is an existing ruling House in Abaji on the state of the evidence before the trial court.
6. Can a Judge rely on evidence not pleaded to arrive at a decision?
7. Can a trial Judge reach a conclusion without giving reason (5) for such decision?
8. What is the degree and type of evidence required to ground a declaration as to an existing customary rule or law.

The 1st Respondent in their Brief of Argument filed on 26/9/01 and deemed filed on the same day adopted the issues raised by the Appellants. The 2nd Respondent in their brief filed on 26/2/02 and deemed filed on 4/6/02 adopted the issues as framed by the Appellant. The 3rd – 6th Respondents Brief was filed on 5/2/01 and deemed filed on 26/2/01 and deemed filed on 26/9/01 also adopted the issues as distilled by the Appellant. There is no gainsaying that I would utilise the issues as framed by the Appellant.

ISSUE NO 1 &. 2

Learned counsel for the Appellants stated that where a court is not sure of the version of traditional history that is correct the best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is the more probable. He cited Kojo v. Bonsie (1957) 1 WLR 1223, 1227 Chukwueke v. Nwankwo (1985) 2 NWLR (pt. 195) 202; Akinola Aguda in his Law and Practice Relating to Evidence in Nigeria at page 42; Olubunmi Cole & anor c. Akinlaye (1960) 5 FSC 84; Abiodun v. Erinmilokun

(1961) 1 All NLR 294; R v. Ozogula II Exparte Lewis Ekpenga (1962) 1 All NLR 265; Ojemen v. Momodu (1983) 3 SC 220.

That the contradictions and inconsistencies in the evidence of the Defendants/Respondents make them unreliable. The 1st Respondent in turn submitted that going by the rule in Kojo v. Bonsie that the test is to refer to facts in recent years by the evidence so as to see which of the competing histories is more probable. That the facts in recent years as seen in the evidence from both sides is that the town of Abaji was first settled by Ogedes, Anukus, Adegemas and later the Kibas. That the evidence also shows that the first three settlers ciz Ogedes Anuku and Adegemas are all Igbirras while the Kibas are Ganagana, That none of the Onas who ruled in recent years came or emerged from the Kibas or Ganagana. That subjecting the testimony of the Plaintiffs/Appellants to the rule in Ojemen v. Momodu (1983) 3 SC 220 it would be found that the rule tilted in favour of the defendant.

The 2nd Respondent submitted that the facts in recent years as established by the evidence before the trial court tilts more in view of the facts that not only Igblrras are appointed as Onas of Abaji but also the Ganaganas from the Kiba Ruling House as established by the above evidence.

The 3rd – 6th Respondents contended that the facts in recent years from the evidence from both sides show that Abaji was first settled by the Ogedes the Anukus, Adegemas and later the Kibas and the first three are all Igbirras while the kibas are Ganagana. That none of the Onas who ruled in recent years came or emerged from the kibas or Ganaganas. That the evidence of the Plaintiffs needing to be tested for veracity and credibility as laid down in the case of Onuoha v. State (1989) 2 NWLR (pt.101) 25. That in that test the trial Judge found that there were contradictions and inconsistencies in the evidence of the plaintiff’s witnesses.

Onuoha v. State (1989) 2 NWLR(pt. 101) 23.

1. Where the issue in a case centre on which witness ought to have been believed, that is issue of veracity the finding of the trial Judge is given great respect, for it is the trial court which alone has the opportunity of seeing and hearing witnesses and watching their demeanour.
2. Where trial court chooses to believe an impossible or improbable story, and where there is no basis for the belief or where the surrounding circumstances are such as dearly negative truth, an appellate court would not accept its findings merely because the trial Judge used the words ‘I believe’. Bozin v. State (1985) 2 NWLR (pt.8) 465; Okonji v. State (1987) 1 NWLR (pt.52) 659; Akibu v. Opaleye (1974) 11 SC 189 at 203.

The learned trial Judge in his evaluation stated:-

“The next issue is whether from the pleadings and the evidence Gaga and Disa were once Onas of Abaji. Again, in keeping with section 139 of the Evidence Act, the burden of proof as to a particular fact is on the person who asserts such fact and since it is the plaintiffs who assert that Goga and Disa were once Onas of Abaji, the burden of proving that assertion is on them. They pleaded in paragraph 8 of the Amended Joint Statement of claim that there had been 18 Onas of Abaji including the last one who died on Wednesday the 16th of February 1994. In this same paragraph 8 of the Statement of claim, the plaintiffs indicated that Goga and Disa were the 5th and 6th Onas of Abaji respectively and that both of them were from the Kiba Ruling Houses. They also called witnesses (sic) to testify in support of that portion of the pleading. Those witnesses were PW1, PW2, PW4, PW6 & PW&. All of these witnesses testified to the effect that they all knew or heard that three Onas – Hoga, Disa and Atanze became Onas from the Kiba Ruling House. In his evidence – in – chief, PW1, Muhammadu Babachai Abdulkadir, the Chief Imam of Abaji aged 60 years stated that he was born and bred in Abaji and his parents were also born at Abaji. He explained further that he was an Hausa by tribe and was quite conversant with the customs and traditions of Abaji town from what he had gathered from his fore-fathers. He explained that there are 4 Ruling Houses in Abaji namely Agedeh (Ogede), Anuku; Dagema (Adegema) and Kiba. PW1 asserted that it is not only Igbirras that can be Emir in Abaji. He listed the other indigenes of Abaji as Ganagana, Nupe, Aluchi, Hausa and non-Igbirras became Emir (Ona) of Abaji. He stated further that he knew Goga, Disa and Atanzhe were once Emirs and they were all non-Igbirras. He however explained that as Chief Imam, he does not play any role in the selection of if new Emir. However, during cross-examination PW1 admitted that he did not know when the 3 non-Igbirra Emir – Gaga, Oisa and Atanzhe ruled… He however agreed that Disa was the 1st Kibaman to settle in Abaji. He also agreed that ‘Yatsun’ is the title given to blacksmiths but denied having heard that Disa was the first person to be conferred with the title of ‘Yatsun’ PW1 also denied knowing that the Kibas are good blacksmiths… PW1 also categorically stated that there are no kingmakers in Abaji”.

In his testimony, PW2 by name Hassan Tukura, a member of the Anuku Ruling House and an Igbirraman stated:-

“There are other Ruling Houses, they are Agedeh, Anuku, Adegema, Kiba…. Yatsun is conferred on Ganagana blacksmiths. There are no kingmakers in Abaji”.

In further evaluation, the learned trial Judge said:-

“The next witness who testified on the issue was PW4, one Alhaji Mamudu Alhassan, the Chief of Nupes in Abaji. He says he is about 100 years old and knew seven Onas of Abaji… He testimony was rather brief but when cross-examined PW4 said among other things that he heard rumours that one Goga and Disa also ruled Abaji from the Kiba Ruling House, but also admitted that he did not know who ruled before who, maintaining that Atanzhe ruled before he was born and that he did not know for how long Atanzhe ruled. The remaining witnesses who testified on the issue were PW6 & 7 that is the 1st and 2nd Plaintiffs. PW6, said in cross-examination that he was 42 years old and that the first Kibaman to be Chief of Abaji was Goga followed by Disa and then Atanzhe. PW7 who claims to be 77 years old said in Chief that the names of the Kiba kings are Goga, Disa and Atanzhe… It should be noted that all the witnesses who testified on the present facts in issue (e) whether Goga and Disa were once Onas of Abaji, only gave different versions of what I might call traditional history since none of them was alive when those two were alleged to have ruled. Even PW4 who gave his age at about 100 years had admitted that Atanzhe (who allegedly ruled after Goga and Disa) ruled before he (PW4) was born. Similarly all the people who testified in contrast to what the plaintiffs witnesses said on the issue, were also giving their own version of traditional history. There is therefore a serious conflict of traditional history adduced by the two parties in this matter”.

The insight in the evidence adduced by the learned trial Judge cannot be impugned since I have gone to the pleadings myself taken alongside the individual pieces of evidence. Therefore on the basis of recent history the position of the plaintiffs/appellants fall short as they could not proffer anything substantial. Furthermore even the evidence of some of the prosecution witnesses conflicted either with each other or clearly inconsistent with their pleading. PW1 and PW2 said there were no kingmakers. The pleadings of the plaintiffs/Appellants at paragraph say otherwise. Even the Exhibit P1 which the Appellants made a lot of noise about said there were kingmakers. It can be seen clearly that the case of the Appellants falls short of the rule in Kojo v. Bonsie (1957) 1 WLR 1223.

That apart the inconsistencies and contradiction in the evidence proffered by the plaintiff/Appellants are of such a serious vital nature that the court cannot indeed pick and choose which to believe. Also worthy of note is the evasive tendencies exhibited by some of the plaintiffs witnesses which tend to lend credence to the fact as found by the learned trial Judge that lies were brought in and selective memory deliberately at play. In this regard the Supreme Court had in Onuoha v. State (1989) 2 NWLR (pt. 101) 25 laid down the factors for determining veracity and credibility of a witness to be:-

(a) his knowledge of the facts to which he testifies.

(b) his disinterestedness.

(c) His integrity.

(d) Whether the evidence is contradictory or is contradicted by the surrounding circumstances.

These factors above stated have definitely not availed the Appellants and I do not hesitate in agreeing with the evaluation of the learned trial Judge in these two issues 1 and 2. There is no gainsaying that these are far from the circumstances under which an appellate court could interfere or intervene in the findings and evaluation of a Trial Court. Therefore I answer these two issues in favour of the 1st, 3rd – 6th Respondents.

ISSUE No.3

Learned counsel for the Appellants stated that Exhibit P1 ought to be and is in fact and law the plank upon which the learned trial Judge should have based his decision as he found that the document showed clearly that there are kingmakers in Abaji. That after stating the correct position of the law the learned trial Judge misdirected himself in law by not relying on Exhibit P1. That the proper decision ought to be that Exhibit P1 is “the facts in recent years”.

Mr. Agbonhese learned counsel for the 1st Respondent stated that oral evidence if unchallenged must be accepted as establishing the facts therein. He cited Kwasalba (Nig.) Ltd v. Bosah Okonkwo (1992) 1 NWLR (pt.218) 407. That for documentary evidence admitted by the consent of the parties or by the court in the absence of their maker under Section 90 of the Evidence Act the court still has a duty to consider the weight to be attached to such documentary evidence coming to the conclusion as to whether or not it established the facts stated. He referred to Nig. Gen. Ins. Ltd v. Emoh (1990) 3 NWLR (pt.138) 135.

Learned counsel stated on that in considering the weight to be attached to Exhibit P1 the learned trial Judge noted that the main body of that document was allegedly signed by some two individuals on behalf of traditional rulers, but they themselves did not indicate whether they were traditional rulers. That they also did not indicate the sources of the information stated in the exhibit other than traditional history. That the lower court having discarded the said documentary memorandum that is Exhibit P1 as worthless, need not therefore consider it under Kojo v. Bonsie (supra).

Learned counsel for the 2nd Respondent submitted that Exhibit P1, even though not signed by the kingmakers themselves but signed by one Alhaji Umaru Naharati and Haruna Ndagi for and on behalf of the traditional rulers. That this signing shows that the parties to the document, Exhibit P1 really intended it to be a contract, grant or disposition of property within the ambit of Section 132(1) of the Evidence Act which makes it relevant to the case. That the importance of Exhibit P1 has not been overblown as held by the trial Judge since the learned trial Judge relied on the said document in evaluating the plaintiff’s evidence as presented before him and having done so he cannot now reject the same as he cannot pick and choose. He cited Clark v. State (1985) NWLR (Pt. 35).

Learned counsel for the 3rd and 6th Respondent stated that a cursory glance at the document will reveal that it is not and was neither intended to be a contract, grant or disposition of property.

That it is erroneous for the Appellant’s counsel to contend that the Lower Court ought to decide that Exhibit P1 is “facts in recent years”. Also that the lower court having discarded the said documentary memorandum that is Exhibit Pi as worthless, need not therefore consider it under Kojo v. Bonsie (supra).

On this issue as to the use or worthlessness of Exhibit P1, while the Appellants and the 2nd Respondent are positing that the learned trial Judge should have accorded it the prime of place upon which it can be taken as binding with the necessary conclusion that there are kingmakers in Abaji and the Kiba the fourth Ruling House, it needs be said that Exhibit Pi is the memorandum submitted to the Presidential Panel 1993 on the Future Administration of Abaji. It is on that note that the learned trial Judge found it curious that while this Exhibit P1 is so important to the Plaintiff/Appellants some of the plaintiffs witnesses denied some of the contents like the existence of kingmakers which the document said there were.

Of much interest also is part of the contents of Exhibit P1 under the sub-title Qualification of the Chiefdom. It was therein stated that before a man could be selected as Ona, he should possess the following:-

(1) He must be an Abaji Egburaman.

(2) He must be a member of one of the Ruling Clans.

(3) He must be selected by the kingmakers.

(4) He must be of unquestionable character.

It was further stated in the said documents that the Chieftaincy is to be done rotationally within the four ruling clans. The clans according to their seniority were given as;

(1) Ogede Clan

(2) Anuku Clan

(3) Adegema clan

(4) Kiba Clan

From the consideration of this document by the learned trial Judge it is clear that the first set of qualifications which are mandatory and all four co-existing mean basically that only an Igbirraman qualifies. That the Appellants are not Igbirra is not in dispute therefore this qualification tallies with the position or stand of the Respondents apart from the 2nd. Furthermore the second part under qualifications go against the first part since the second part includes Kibba Clan, a non Igbirra as one of the ruling houses or clans. The logical conclusion is that the first part is inconsistent with the second part and that the document is self defeating. It is all the more defeated by the fact that none of the kingmakers signed and there is nothing to explain the two persons who signed, none of the ruling houses signed. De facto this document has its importance over blown as the learned trial Judge found out. Therefore there was no basis as the Appellants had wanted him to do for the learned trial Judge to have elevated that Exhibit P1 as “the facts in recent years”. Indeed the learned trial Judge was right in my view not to have laid much on that document and correctly held that the document did not establish the facts claimed. I refer to Nigerian General Insurance Ltd v. Emoh (1990) 3 NWLR (pt.138).

Also that document did not qualify to be tested under the rule of Kojo v. Bansie (supra). This issue No. 3 is resolved in favour of the 1st, 3rd – 6th Respondents.

ISSUE No.4

Learned counsel for the Appellants stated that the learned trial Judge held a view which is wrong in law when he held that to believe the plaintiff’s case would mean accepting that the plaintiffs had for over 100 years been acquiescing in a system that had refused to allow them even a piece of land or at least a village to call their own whereas others had more than enough and that they took all this without a protest to any constituted authority, colonial or modern. He referred to Kimdey & ors v. Military Governor of Gongola State (1988) 1 NSCC 827, 839.

Learned counsel for the 1st Respondent said the learned trial Judge was right to have held that the Appellants failed to establish that under the Abaji custom there is a ruling house called Kiba Ruling House.

The 2nd Respondent through counsel stated in the same vein as the 1st Respondent that the finding by the learned trial Judge to a large extent showed that the Kiba Ruling House did not exist, that House having been kept away by the Ogedes, Anukus and Adegemas.

For the 3rd – 6th Respondents it was contended that the Appellants failed to establish that there is a ruling house called Kiba Ruling House.

The grouse of the Appellants in this issue is that they had proved their right to the stool as a Ruling House which was discountenanced by the learned trial Judge inspite of the weight of evidence. It is true that one should not expect that the evidence of witnesses called by the same party must be the same on every issue in contention what the principle preaches is that the contradictions of witnesses should not be material to the extent that they cast serious doubt on the case presented as a whole by that party or as to the reliability of such witnesses. I place reliance on Nwokoro v. Onuma (1999) 9 SCNJ 63.

Bearing that warning in mind and relating it to the case in hand I cannot resist the finding and conclusion of the learned trial Judge that in this instance the contradictions that exist in the case of the plaintiffs/appellants are of such a grievous nature that they go to the root of their position. There can be no explanation for the matter of whether or not there exist kingmakers in Abaji which the Appellants could not take a single position not being crucial to the question in contention. Also some of the issues raised by the Respondents in the trial below as to the fact that the Appellants did not own land and had never ruled as Ona in the capacity of emerging from a properly qualified ruling house were not controverted either by the filing of a reply to the statement of Defence or in evidence in rebuttal. These are such that laid weight to why the learned trial Judge did not hesitate in holding that the contradictions were material and could not be ignored. The trial Judge having the advantage at first hand of hearing and seeing these witnesses came to the right decision that their credibility was impaired and this appellate court cannot draw any inference other than what the learned trial Judge did. See Anyanwu v. Onulgbo (2001) 7 NWLR (pt. 711) 65.

This issue is resolved in favour of the Respondents 1st, 3rd – 6th.

ISSUES 5, 7, 8.

For the Appellant it was postured that no where in the review or judgment did the Trial Judge give reasons for his conclusion. That based on the totality of the evidence before the court there is a Kiba Ruling House in existence in Abaji. That the evidence before the court shows that all the tribes came in as settlers and that the decision of the trial Judge that only Igbirras rule the town upon which he based his final decision was against the weight of evidence.

For the 1st Respondent learned counsel said from the totality of the evidence before the court, the Kiba clan is not an existing Ruling House in Abaji. That the plaintiffs failed to lead evidence which would have conclusively shown who their representative was among the people who chose the Ona of Abaji. That the findings of the learned trial Judge on the inconsistencies in the evidence of the Plaintiff’s and the evasive response of 1st Plaintiff were such that lead to the conclusion that their assertion on the right to rule had remained not proven. Learned counsel therefore concluded that pleadings averred without evidence led to no issue. He cited Angbazo v. Ebye (supra).

Learned counsel further submitted that the learned trial Judge considered the relevant pleadings and admissible evidence of the parties placed his findings on an imaginary scale and arrived at his conclusion. That it was an error to say he did not give any reasons for his findings. He referred to Mogaji v. Odofin (1978) 4 SC 91.

On the issue of proof of the customary law in existence learned counsel for the 1st Respondent said custom in a particular district can from long usage obtain the force of law. He cited Section 2(1) of the Evidence Act Cap 112 Laws of the Federation 1990 and Aromolaran v. Kupoluyi (1994) 7 NWLR (pt. 356) 357.

Learned counsel for 1st Respondent stated further that native law and custom is a matter of fact to be pleaded and established by credible evidence, where the particular custom has gained such notoriety and has been so frequently followed by the courts that judicial notice would be taken of same without evidence required in proof. He cited Olabanji v. Ajiboye (1992) 1 NWLR (pt.218) 473 at 477.

He said in the instant case the Appellant failed to lead credible evidence in support of the alleged existing custom as pleaded in the statement of claim. That alleged existing customary rule or law being in contention as to the existence of Kiba Ruling house.

Learned counsel for the 2nd Respondent went along the views of the Appellants and said there was proof that Kiba was the fourth ruling house. He went on to say that it is trite that a trial Judge must always give reasons for his decision and that was not the case here.

He cited Sagay v. Sajere (2000) FWLR p.1111.

For the 2nd Respondent it was further contended that the existing customary law which is that Kiba is a ruling House in Abaji was adequately proved on the balance of probability.

On behalf of the 3rd to 6th Respondent, learned counsel said the learned trial judge found rightly that from the evasive answer of the 1st Plaintiff on the important issue of kingmakers that he was lying when the witness said there were no kingmakers in Abaji or that those whose responsibility it was to choose an Ona had no names. That the learned trial Judge fully weighed the evidence on the imaginary scale and that the learned trial Judge gave the reasons for his findings.

Learned counsel for the 3rd to 6th Respondent said the appellant failed to lead credible evidence in support of the alleged existing custom as pleaded in the Statement of Claim.

The matter at the root of the contest between the parties is the customary law in application at Abaji with reference to the ascendancy of the stool of Abaji that is the title of Ona of Abaji.

Customary Law is a question of fact to be proved by evidence. That it is one of the characteristics of customary law is that it must be in existence at the relevant time and must be recognized and adhered to by the community. It is to be emphasised that native Law and Custom which the courts enforce must be existing native law and custom and not that of bygone days. see Kimdey v. military Governor State (1988) 1 NSCC 827.

Also Native Law and Custom must be strictly proved see The Queen. Ex parte Ekpenga v. Ozogula II (1962) All NLR 264.

It is settled law that native law and custom not judicially noticed as the case in hand can only be proved by evidence of witnesses belonging to the community to show that that Community in the particular area regard the alleged customary law as binding on them. See Ojemen v. Momodu II (1983) NSCC135.

For better insight into customary law see: Nwagbogu v. Abadom (1994) 7 NWLR (pt. 356) 357 where it was held:-

1. Customary Law is one source of Nigerian law. It is the organic or living law of the indigenous people of Nigeria regulating their lives and transactions. It is organic in that it is not static. It is regulatory in that it controls the lives and transactions of the community subject to it. Oyewunmi v. Ogunsan (1990) 3 NWLR (pt.137) 182.
2. It is an established adjectival law that customary law is regarded as a fact and should therefore be proved in the first instance. It is an issue which has always been a question of fact to be established by evidence. Thus the onus of proof is on the party asserting or alleging the existence of the particular customary law.
3. Where a party claiming that right fails to prove customary law his case fails and would be dismissed. Buraimoh v. Bamgboye (1940) 15 NLR 139;Adeyefa v. Oginni (1969)2 All NLR 60; Ekpan v. Uyo (1986) 3 NWLR (pt. 20) 63.
4. A customary law which is judicially noticed needs no further proof. Larinde v. Afikpo (1990) 6 WACA 108; Onisiro v. Fagbenro (1954) 21 NLR3;Olabanji v. Ajiboye (1992) 1NWLR (pt. 218) 473.

Having considered the native law and custom in this instance alongside the related judicial principles I agree with the learned trial Judge that the onus of proof on the plaintiffs/appellants remained not proved as to their right to ascend the throne as ruling house. Also there is a surfeit of materials and reasons upon which the learned trial Judge based his findings, conclusions and decisions. Any assertion to the contrary is not borne out of the elaborate review and evaluation done by the learned trial Judge. Therefore in answer to the questions raised in these issues I answer positively that all a trial Judge should do, the learned trial Judge in this instance did with very strong reasons supporting.

ISSUE NO 6

Learned counsel for the Appellant referred the court to the evidence of the defence at the court of trial and said that the making of a case of regency for defence by the learned trial Judge amounted to speculation or making a case for a party suo motu which is improper in law. He cited Odubeko v. Fowler (1993) 9 SCNJ 185.

For the 1st Respondent, learned counsel said that a look at paragraphs 27, 28, 29 of the pleadings of the defendant point clearly to the fact that Atanzhe in his position as Ona of Abaji could rightly be described as having held the Onaship of Abaji as a regent. That, these pleadings were not challenged or controverted. He referred to Mozley & Whiteley’s Law Dictionary 10th Edition, E.R. Hardy Ivamy page 388. This was also the argument of 3ro- 6th Respondents.

Learned counsel for the 2nd Respondent said the issue of Regency was not pleaded and so the finding of the trial Judge on that cannot stand. He cited Anyanwu v. Iwuchukwu (2001) 1 SCM 44 Petrojessica Enterprises Ltd v. Leventis Technical Ltd (1992) 6 NCLR 77.

The bone of contention in this issue is that the Appellants are contending that by the learned trial Judge’s summation in the following terms:-

And I find in consequence thereof, that the Person Known as Atanzhe a gentleman of Gana-Gana extraction who once ruled Abaji as an Ona actually did so as a kind of Regent awaiting the return or emergence of the properly qualified person”.

That it meant the learned trial Judge brought in the matter of Regent on his own that is suo motu and there was nothing in the case of the parties as shown in their pleadings and evidence upon which that conclusion could be reached.

I would refer to the Statement of Defence paragraphs 27 – 29 (b) as follows:-

27. Atanzhe became Ona because his mother was a princess from Adegema Ruling House whose turn it was to produce the next Ona.
28. At the time Atanzhe was made OnarAdegema ruling clan/house did not have a competent or qualified prince or male child to occupy the stool of Ona, and it is customary with the Egbura people not only of Abaji, the mother of Atanzhe who are from Okaku compound of Adegema ruling clan/house was given the opportunity to bring her son to be the Ona.
29. The mother of Atanzhe and consequently, Atanze was only lent or loaned the position of Ona, and that is why the word ‘Zere’ in Egbura which literally means ”Lend” was and is used when installing such a person.

29(a) That Atanzhe was appointed as the Ona of Abaji on the understanding that when the rightful person comes, he (Ataaze) will relinquish the office of Ona.

29(b) That after sometime Atanzhe became very callous and was maltreating people. He was therefore removed and Tukura who was the rightful person was appointed the next Ona.

Interestingly with this major assertion in the Defence pleadings, the Plaintiffs/Appellants did not see the need to make a response to it. Again the Defendants robustly led evidence along those lines in the pleadings I do not see where the learned trial Judge erred when he said Atanze occupied the stool in a manner like that of a regent. That finding cannot be faulted merely because the term Regent was not used in the pleadings stated above. The situation is not the same as envisaged in the case of Nwagbogu v. Abadom (1994) 7 NWLR (pt. 356) 357.

1. It is not function of a trial Judge by his own exercise of ingenuity to supply evidence or any out the mathematics of arriving at an answer which only evidence tested under cross-examination can supply. Adeniyi v. Adeniyi (1972) 4 SC 10; Ochonma v. Unosi (1965) NMLR 321; Babale v. Abdulkadir (1993) 3 NWLR (pt. 281) 253; Onyia v. Oniah (1985) 3 NWLR (pt. 11) 1; Odiase v. Agho (1972) 1 All NLR (pt.1) 170; Olusanya v. Olusanya (1983) 1 SCNLR 134.
2. It is not open to a trial Judge to make a finding suo motu on a matter which was not the case of either party and which is so fundamental in nature to the case of parties to the proceedings.

Clearly the case of Nwagbogu v. Abadom (supra) does not apply here as what the learned trial Judge did was in order and in line with the pleadings of the defendants/Respondents supported by the evidence they led. The trial Judge did not step out of line, he merely described what he saw. Also he did not step out of line in his finding and decision. This issue also is answered in favour of the Respondents 1st 3rd- 6th.

In the light of all I have stated that there is no basis upon which the findings and decision of the learned trial Judge can be upset or disturbed or interfered with and so this appeal is dismissed. I affirm the decision of the court below.

I order N 10,000 costs to the Respondents 1st, 3rd – 6th.

---

Other Citations: (2007)LCN/2367(CA)