Abraham Olabanji & Anor. V. Salami Adeoti Omokewu & Ors. (1992)

LawGlobal-Hub Lead Judgment Report

B. WALI, J.S.C. 

The plaintiffs as per their amended Statement of Claim ask for the following reliefs against the defendants:-

“(i) a declaration that the first plaintiff is the bona fide appointed AROMU OF OKORE

(ii) a declaration that the first defendant’s appointment as AROMU OF OKORE by the 4th defendant is null and void.

(iii) a perpetual injunction restraining the 1st defendant from parading himself as AROMU OF OKORE.

(iv) an injunction restraining the 2nd, 3rd and 4th defendants from recognising the 1st defendant as AROMU OF OKORE.”

Pleadings were dully filed and exchanged. Evidence was adduced by both parties, and at the conclusion of the hearing, the learned trial Judge, Adeniyi J, delivered a well considered judgment on February 17th 1988 in favour of the plaintiffs and granted the reliefs sought.

The defendants were not satisfied with the judgment of the trial court and so they appealed to the Court of Appeal, Kaduna Division. The Court of Appeal after hearing the appeal, allowed the appeal, reversed the decision of the trial court, stating that the plaintiffs on the preponderance of the evidence, have failed to o discharge the onus of proving their case and then concluded-

“There is no proof of a unanimous nomination of the 1st plaintiff/respondent by the Okore family, therefore his nomination was not valid.”

The plaintiffs, aggrieved by the decision of the Court of Appeal have now appealed to this Court. Henceforth, both the plaintiffs and the defendants shall be referred to in this judgment, as appellants and respondents respectively.

Briefs of arguments were filed and exchanged. In the brief filed by the appellants two issues were identified for determination in this appeal and these are:

“(i) Whether unanimity of nomination was an issue which it was competent for the defendants to raise before the Court of Appeal.

(ii) Whether it was correct in law for the Court of Appeal to disturb the findings of fact made by the High Court in this case.”

The two issues formulated by the appellants were accepted and adopted by the respondents in their brief. ‘

The principal averments and facts involved in this case are contained in paragraphs 7 to 16 of the amended Statement of Claim filed by the appellants. They are as stated hereunder:

“7. The ancestors of the plaintiffs now living at Okore Compound migrated from Ile-Ife a very long time ago to the present site where it remained as independent settlement before it merged with Omu-Aran.

8. Oke Apati family where the 1st defendant comes from claimed their origin from Owa-Ilase.
9. Apart from Aromu title, the Okore compound also have other chieftaincy titles namely (a) Olukotun (b) Petu (c) Odofin (d) Ese and (e) Oloye.
10. Aromu of Okore is exclusively the prerogative of the Okore family to nominate their choice and then present their nominee to seven chiefs namely:- (a) Elemosho (b) Ajapanna (c) Agbaakin (d) Arogun (e) Osopo (f) Eruku (g) Asipa who in turn will present the appointee to Chief Olukotun for installation.
11. The 4th Defendant has no business in the appointment and installation of an Aromu.
12. The 4th defendant being the Head of Omu-Aran Community is only required to give his royal blessing to the appointment by recognising the appointee.
13. The 1st plaintiff on 25th May, 1984 was validly appointed and installed AROMU OF OKORE in accordance with the customs and traditions of the Okore family as stated in paragraph 10 of the statement of claim.
14. The 1st plaintiff upon his appointment and in accordance with the customs and traditions of the Okore compound visited MOLE ASAGBA to perform some traditional rites that all AROMU normally perform.
15. The 1st plaintiff’s ancestors have over the years been made and installed AROMU, these include Aromu Fabiyi from Ile Lode Okore and Aromu Bankole from Ile Loke Okore.
16. The 4th defendant refused to recognise the appointment of the 1st plaintiff and proceeded to appoint the 1st defendant on 3rd June, 1984 as Aromu contrary to the wishes, customs and traditions of the Okore family.”

The respondents traversed these averments in the following paragraphs of their amended Statement of Defence:-

“3. The Okore compound consists of six different families groups namely, Idilaro, Idimu, Oke Apati, lie Olukotun, Ile Lake and Ile Lodo.

4. In Okore compound only 3 families of Idiaro, Idimu and Oke Apati are entitled to the Aromu Chieftaincy title and the other three families are not entitled and have never produced an Aromu. 5. The 2nd defendant, Asanlu is the head-chief of Asanlu ward and Asanlu ward comprises of the following high rank chiefs: Asanlu, Ojomu, Ooye, Aromu, Odofin Ogbe, Asaba, Olukotun and Ajapanna. By high rank chiefs is meant the chiefs who are of the status that sits with the Olomu at Olomu’s palace to deliberate with the Olomu.
5. The chiefs named in paragraph 10 of the Statement of Claim have nothing to do as chiefs with the appointment and installation of an Aromu. They are now local chiefs.
6. Only the chiefs of Asanlu ward named, in paragraph 5 above are concerned with the appointment of an Aromu.
7. Whenever there exists a vacancy in the post of an Aromu the following procedures are what traditionally takes place:

(i) The Asanlu ward chiefs would meet to send message to the family that is to present the next Aromu to present the next candidate.

(ii) The family that is to present the candidate would then deliberate and nominate a candidate. (iii) If the chiefs in Asanlu ward as named above accept the candidature they would present the name to the Olomu of Omu-Aran.

(v) The Olomu would [hen invite the Asan!u ward chiefs to present [he candidate before [he High Chiefs of Omu-Aran a[ the Olomu’s palace on a named date. The candidate would then announced on such a date.

(vi) At this meeting deliberations would be made as to the appropriate dale for the installation.

(vii) When a date is agreed upon there would be installation ceremony at the Olomu’s palace on the agreed date.

(viii) On the installation day the traditional conferment of title will be performed and there would be dancing and eating and other festivities according to the ability of the chief.

(ix) After the installation ceremony when the new chief leaves the Olomu’s palace he would visit the grave of his immediate predecessor and pay homage to him before going o to his house.

(x) These were done in respect of the 1st defendant who has since assumed the office of Aromu, has been so recognized and has peacefully been performing his traditional duties.

9 Contrary to the assertion in paragraph 14 of the Statement of Claim Mole Asagba or Mole Sagba Alata are not requisite for appointment or installation of an Aromu. Mole Sagba and Mole Sagba Alata are pagan rites which have nothing to do withtraditional Chieftaincy of Aromu. No Aromu has visited Mole Asagba to the knowledge of the defendant’s as part of requisite of an Aromu.

10. There is no Aromu ever called Aromu Fabiyi nor is there any Aromu called Aromu Bankole as stated in paragraph 15 of Statement of Claim.
11. Aromu Majolagbe was not deposed on the ground of not obtaining permission from the 1st plaintiff’s family. When he was deposed his brother Dairo was installed as the Aromu. Dairo died shortly after and Majolagbe was re-installed as the Aromu.
12. In the Aromu Chieftaincy history there have been 9 Aromus from the following families:-

IDILARO OKE APATI IDIMU

1. Oni 1. Aleshinlewe 1. Aina
2. Adeyemi Alowo- 2. Olabieyin

lodu bi Iyere Popoola Ayanda

3. Baba Owolabi 3. Majolagbe
4. Dairo
5. Abdulsalami

Adeoti Omokewu.

13. The 1st defendant has been nominated by Oke Apati family and approved and accepted by the other two families entitled to the chieftaincy and the 1st defendant has been duly installed and accepted as the Aromu of Okore in accordance with the tradition and custom pertaining to Aromu chieftaincy.
14. With respect to paragraph 13 of the Statement of Claim the defendants aver that they were not aware of the valid appointment and instalment of the 1st plaintiff as an Aromu. As an Aromu is a palace chief (i.e. one that sits with and deliberates with the Olomu) no installation of an Aromu is valid which is not performed before the Olomu at Olomu’s palace. The 1st plaintiff could not have been validly appointed and installed as his family was not entitled to it.”

The main question for determination in this appeal is whether, having regard to the pleadings and the evidence adduced in support thereof, the Court of Appeal was right in interfering with the findings made by the trial court on ground of perversity.

It was the submission of the learned counsel for the appellants that the learned Justices of the Court of Appeal were wrong in interfering with the findings of the learned trial Judge when the only reasons they gave for such interference were:-

“I accept and adopt all the arguments of learned S.A.N. for the appellants on three major issues, namely, that the Statement of Claim was not proved by credible evidence, punctured as it was under cross examination and the honesty of plaintiffs’ witnesses under intense cross examination wherein they were forced to admit that no Aromu elect is a chief until installed by the Olomu. Secondly, the case of the plaintiffs’ witnesses contradicted themselves on vital issues of the disputed chieftaincy title. In short the house of the plaintiffs was divided against itself and its fall was inevitable. Thirdly, as highlighted in the submissions of the appellants the vital findings of the lower court were perverse in the face of the evidence on the record, and a court of appeal is under a duty to so declare and allow the appeal.”

He described the method adopted by the Court of Appeal in handling the appeal as both unusual and unorthodox. He simply submitted that the trial court’s judgment is amply justified and supported by the credible evidence considered and accepted by the learned trial Judge. He also contended that the learned Justice of the Court of Appeal did not set out in the lead judgment the counsel’s submissions and arguments he accepted and adopted, nor did he set out the vital findings of fact by the trial court that he found to be perverse. Learned Senior Counsel also drew this Court’s attention to an issue introduced in the Court of Appeal suo motu by the respondents, WHICH IS “unanimity” of selection or nomination of the 1st appellant. He submitted that the issue did not arise from the pleadings, nor was leave sought and granted to respondents by the Court of Appeal to raise it. He said it was therefore improper for the Court of Appeal to have considered it.

In reply to the submissions above, Chief Chukura learned Senior Counsel for the respondents contended that the Court of Appeal examined the evidence led as contained on the record and came to the conclusion that the appellants had failed to prove their case as postulated in the amended statement of claim. He then referred to the evidence of P.W.1, P.W.2 and P.W.3 and submitted that their evidence was both contradictory and not in line with the appellants’ pleadings and that it did not even prove the “meagre custom” pleaded by them. The following cases were cited and relied on: Wilfred Okpaloka & Ors. v. Ben. Umeh & Ors. (1976) 9 – 10 SC.269 and Fed. Commissioner of Works & Housing v. R. Lababedi & 5 Ors. (1977) 11 -12 SC. 15 and Ugbola & Ors v. Okorie (1975) 12 SC.1.

Shortly put, the appellants’ contention is that the evidence on which the trial court relied did sufficiently prove their case.

It is settled law that the duty is on the plaintiffs, in a claim for declaration like this one, to prove that the 1st appellant was validly nominated and appointed the Aromu of Okore in accordance with the tradition and custom, by the preponderance of credible and accepted evidence and in the course of that they were entitled to take advantage of any evidence adduced by the respondents which they found to be favourable to their case: see Kodilinye v. Mbanefo Odu (1935) 2 WACA 336; Udegbe & Ors. v. Nwokafor & Ors. (1963) 1 All NLR 417; (1963) 1 SCNLR 184 and Akinola & Anor. v. Oluwo & 2 Ors (1962) 1 SCNLR 352; (1962) 1 All NLR 224.

I shall now proceed to examine the evidence which the learned trial Judge accepted and relied upon in finding that the appellants had discharged the onus on them in declaring that the 1st appellant was validly nominated and duly appointed the Aromu of Okore in accordance with the custom and tradition of that family.

It is common ground in both the pleadings and the evidence adduced by both parties that the chieftaincy title of Aromu of Okore belongs to the class of the high ranking chiefs that sit with Olomu-in-Council in Omu-Aran. As to the manner and method of nominating a successor to the vacant stool of Aromu, P.W.1 gave the following evidence:-

“I know how Aromu is being selected. Chiefs the lawyer already mentioned appointed the Aromu and later present him to Olukotun when the candidate is to be installed. The chiefs would take him to Ashagba where the candidate would be installed. The 1st plaintiff went through the custom about which evidence is given above.”

P.W.2 after stating in his evidence that the 1st appellant was taken to Asagba for performing the customary rituals as the Aromu elect, went on to state the procedure of his election when he was cross examined on the issue:-

“The difference between the two chiefs who sit-in-council with Olomu and those that do not sit-in-council is that when a vacancy exists the remaining chief in Olomu council will be asked by Olomu in council to request his family to present another candidate for installation. The chief will carry the message to his family at home. It is then that the compound chiefs will arrange for the selection and appointment of another as candidate from the family. The candidate will be presented to Olomu in council by the remaining chief. The remaining chief in council from that family will show the candidate to other chiefs in Olomu-in-council. Later on the family rituals will be performed. The remaining chief will take the candidate to the house of each chief in Olomu-in-council for showing him. After the family of the candidate had performed their rituals the candidate will then be taken to Olomu palace. His family will accompany him to Olomu where the chiefs in council would have gathered. This is normally done on Fridays when he is taken to the palace three chiefs, Esa Omu, Ooye and Agbona will bless the candidate praying that he may live long. He becomes chief after these prayers. Olomu will then pray for him after he has become a chief.”

The 3rd P.W. also said in his evidence:-

“I know the plaintiffs. They are from Okore compound. I know 1st defendant from Oke Apati. I know 2nd plaintiff. He is Olukotuna chief. I know the ancestors of the plaintiffs. They are from lie Okore. I know where Elemosho, Ajaponna, Agbakin,Arogun, Eruku, Osopo and Asipa came from. They are all from Okore.

Okore family has two chiefs in Olomu-in-council. If one of them died, all the chiefs in council including Olomu would tell the remaining chiefs from that family to find another person to replace the deceased chief. The chiefs in council communicate this to Olukotun who then invited all the chiefs mentioned and asked then to go to and decide the person who would be the next AROMU.

After the seven chiefs mentioned deliberated, they informed Olukotun that they had got a candidate. Olukotun invited all Okore family to a meeting and informed them that they find a candidate who would become the next Aromu. When he told us that the candidate was Abraham Olabanji, we were all happy. Okofe family asked Olukotun to present Abraham Olabanji to all chiefs of Omu-Aran. They all said they were happy. It was there that we performed all the ceremonies and rites to be performed in respect of AROMU chieftaincy.

I know what is called Imole Sagba. Before we moved to Omu-Aran, any person who was to become a chief would be presented at Imole Asagba in accordance with our custom and tradition. Imole Asagba has something to do with the performance of AROMU title ceremonies. The place where these were performed was at the shrine known as Male Asagba, and before any person could become a chief he should perform the rite and ceremonies before this Imole Asagba. It is the place where rites should be performed.

After the 2nd plaintiff had taken the 1st plaintiff to all the chiefs in Omu-Aran, the 1st plaintiff was then taken before Imole Asagba shrine for performing the rituals and installation. After the installation before Asagba the following day Okore family performed the Alata ritual. Alata is a masquerade that plays in the town.

On a Friday the 2nd plaintiff would have to show the 1st plaintiff to Olomu. We did this. I remember 25/5/84 the date on which we installed the 1st plaintiff as AROMU.

I remember 3/6/84, on that day we were in Chief Olukotun’s house (i.e. 2nd plaintiff’s house) when we heard people drumming and saying that the Olomu had installed another AROMU in person of the 1st defendant and this was not done with our blessing. I mean that this was not done with the blessing of Okore family.”

As to who are the high ranking chiefs that sit with the Olomu-in-Council and their functions vis-a-vis the appointment of Aromu of Okore or any of the high ranking chiefs for that matter, P.W.3 said:-

“The names of the high ranking chiefs sitting with Olomu are:Asanlu, Ooye ljoko, Odofin [molekere, Olukotun, Okere, Ojomu Edidi, Esisin Ifaja, I cannot remember the remaining two. Aromu is among them. Ajaponna is among them. Olukotun Oja is among them. I don’t know if Asaba is one of the chiefs in Olomu council.

These high-ranking chiefs mentioned have nothing to do with the appointment of any chief. Again, they have no authority over the appointment of any chief in Asanlu ward. The Asanlu ward chiefs do not hold meetings of their own unless they are called by the Olomu. The chiefs in Olomu-in-council have nothing to do with the appointment and installation of high ranking chiefs in Omu-Aran.

1st plaintiff is a Christian. One of the rites performed there was to kneel down. We knelt down before the god and the elders prayed for him. The remaining rites to be performed should not be revealed to uninitiated persons.

To make a candidate chief or to complete the ceremony we had to offer some money to the chiefs in Omu-Aran. Omu-Aran is divided into three parts namely Ifaja, Ose Omu and Aran. We had to offer the sum of 50.00pounds i.e. N100.00 to each of the parts.This we did. They accepted our money and they prayed for the 1st plaintiff. N100.00 is given to the 3rd defendant. He accepted it and he prayed for the 1st plaintiff. The other two chiefs in the other two wards also accepted N100.00 each. He had become chief and the ceremonies were completed after the payments of N100.00 each to three parts and their prayers.”

The 1st appellant as the 1st plaintiff gave evidence in which he said he was made the Aromu of Okore on 25th May 1984 by the Okore family. Following this appointment, he said he went through all the traditional and customary rituals at Imole Asagba where he was finally installed as the Aromu of Okore.

Against this evidence, the respondents’ evidence was given by four witnesses, three of whom were the 1st, 2nd and 3rd respondents.

The 4th respondent who is the present incumbent Olomu of Omu-Aran, said in his evidence that the 1st respondent was the Aromu and that he was installed as such in his palace, and that Imole Asagba had nothing to do with appointment and installation of an Aromu.

Under cross examination, he admitted that Ile Nla is different from Okore compound and then continued:-

“I do not know whether each of the two compounds can choose its chief for itself, Ile Nla compound has her own chiefs. There are so many chiefs in Okore, but two of the chiefs in Okore come to my palace, Ile Nla does not appoint Aromu neither does it have an Aromu. I installed Baba Owolabi 38 years ago. I do not know Aromu Fabiyi. I knew Aromu Mojolagbe. I cannot remember the year but I know his existence as an Aromu: but I was not sure of his appointment.”

The 3rd respondent who is also the 3rd defendant is the Odofin Ogbe ofOmu-Aran. He more or less affirmed the evidence given by the 1st respondent as regards the installation of an Aromu and the rituals at Imole Asagba. In addition, he testified that Olomu has the power to appoint an Aromu after deliberation by the family.

One thing to be noted from the evidence of the two witnesses above is the absence of traditional evidence of how an Okore is selected and appointed before the installation by the 3rd respondent.

The next evidence was that of the 1st respondent/defendant. He said in his evidence that the following six families constitute Okore compound, in other words. each one of them is a sub-division of Okore family. These sub-families are:-

“(1) Ile Lodo/lle Olukotun.

(2) Ile Lodo Keji

(3) Ile Loke Ile Agbakin

(4) Idi Laro Okore

(5) Oke Apati Okore

(6) Idimu Okore.”

He stated the procedure of appointing and installing an Aromu as follows:-

“When selecting an Aromu, the families of Oke Apati, Idi Laro and Idimu will gather together and select a candidate. The candidate will then be taken to Odofin Ogbe who is the most senior chief. Odofin will take the candidate to Asanlu who is the overall.

Asanlu will then call all the chiefs I named earlier on who will take the candidate to Olomu of Omu-Aran.

It is at the Olomu’s palace that chieftaincy fan will be placed on the head of the candidate.

The placing of this chieftaincy fan on the candidate will take place in the presence of all the chiefs and the community. After all this, the chiefs, the new Aromu and the chiefs and all the people will visit the grave of the immediate predecessor. We then moved to the house of the new Arornu.

All the steps I mentioned above were taken in my own case.

I have heard of Mole Asagba. It is different from Alata. It is not true that before a person can become Aromu he must visit Mole Asagba, Alata has nothing to do with installation of an Aromu.”

It is also pertinent to comment at this stage that neither the 4th respondent who is the paramount chief and the custodian of the custom of his subjects nor the 3rd respondent who is also one of the high chiefs that sit with 3rd respondent in council, spelt out the procedure as regards the appointment and installation of an Aromu as above. The only seemingly independent witness called by defence is D.W.1 who stated in his evidence the names of persons that have been Aromus, including the 1st respondent. He too as the respondents, said he had never heard of Aromu Fabiyi and Aromu Bankole; and that Mole Asagba has nothing to do with the appointment of Aromu. He also gave the names of the six sub-families that constitute the Okore family. He however said nothing on the way and the procedure customarily followed in appointing and installing an Aromu.

It is not in doubt that there is a sharp difference between the two sets of evidence as to how an Ammu is appointed and installed. The learned trial Judge after considering and evaluating the evidence adduced, made the following findings of fact:-

“there is a plethora of evidence that ‘Oke Apati’ to which the 3rd defendant added the word ‘Okore’ in his evidence but not in the pleadings so as to let it be ‘Oke Apati Okore’ is definitely a part of Okore compound. The plaintiffs’ witnesses also admitted this much……………………………….

It follows from the above finding that Oke Apati Okore is an integral part of Ok ore compound and that there can be one and only one Aromu at one and the same time from Okore compound or from the six sub-families of Okore compound……..”

This finding was in answer to paragraphs 1, 10 and 20 of the amended Statement of Claim.

The next finding is related to the issue of whether Fabiyi and Bankole who were from the appellants’ family ever held the title of Aromu. The learned trial Judge found as follows:-

“From my careful consideration of the evidence of the 1st, 3rd, 4th defendants and of their witnesses, D.W.1, there seems to me to be nothing of substance to rebut the evidence that the plaintiffs’ two ancestors. Fabiyi and Bankole, had held Aromu title in succession during the earlier pan of the known existence of Omu-Aran people before the movement to and at Ajo as contended by the plaintiffs.”

On the issue of respondent’s contention that out of the six sub-families that constitute the Okore Family, only the sub-families of Okore Idi Lara, Okore OkeApati and Okore Idimu are entitled to produce Aromus, the learned trial Judge also made the following findings:-

Consequently, the allegation by the defendants that only three families in Okore compound, namely, Okore Idi Laro, Okore, OkeApati and Okore Idimu are entitled to produce Aromus has been debunked, faulted and totally grounded by the superior quality of credible evidence led by the plaintiffs to the contrary.

xxxxxx xxxxxxxx xxxxxxxx xxxxxx xxxxxx xxx

It follows that the members of Ile Lodo and lie Lake families are, to say the least, also entitled to be appointed Aromu of Okore compound as contended by the plaintiffs. In my view, the number of turns which a particular sub-family might have enjoyed is immaterial once it is evident that it is a title to which the plaintiffs’ families were at one time or the other entitled.”

Parties joined issue on the procedure of selection, appointment and installation of an Aromu and on this the learned trial Judgemade his finding as follows:-

“I hold that it is the seven compound chiefs or the low rank chiefs of Okore with Olukotun as their head that should see to the performance of the ceremonies and rites to be performed by an Aromu exactly as the plaintiffs families properly did in this case when the 1st plaintiffs families visited Imole Asagba shrine to perform those rites leading to his appointment and final installation as the Aromu of Okore compound in accordance with the native law and custom of Okore compound. I do not agree that the 4th defendant has any further role to play in the appointment and installation of an Aromu elect than to pray for him and formally recognise him after his introduction to the 4th defendant and the high rank chiefs by and through Olukotun, the remaining representative of Okore compound sitting in Olomu-in-council. This is more so not only when the 4th defendant and other defendants regard the ceremonies and rites performed in Imole Asagba as pagan and non-existent and but also when their evidence on a different custom is disbelieved. Anything contrary to the custom proved by the plaintiffs is preposterous or pretentious; and such ugly custom should be declared repugnant to equity and good conscience.”

He then referred to the allegation of contradictions in the evidence presented by the appellants and said:-

“The contradictions or inconsistencies that there may be in the evidence of the plaintiffs and their witnesses touch on matters of detail. They appear to me to be such minor matters as should not adversely affect the plaintiffs’ case. Hence I find that each of the plaintiff’s witnesses had been honest enough to admit that other families in Okore compound had produced Aromus. They accepted those Aromus they knew or heard of and renounced those unknown to them. I do not for a moment think that the plaintiffs were out to play pranks, deceive and defraud others as well as the court when they claimed that two of their ancestors had occupied the stool of Aromu in Okore compound before the movement of Omu-Aran to Ajo and at Ajo; neither have I seen anything that has ever deprived them (plaintiffs) of their original right of privilege institutionalized by their forefathers. I believe the plaintiffs on all the issues joined.”

It is evident from the findings referred to (supra), that the learned trial Judge, not only reviewed the evidence adduced, but also made exhaustive findings on all averments on which issues were joined. The reasons given by him for making these findings are logical and cannot be faulted in my view. His decisions in accepting the appellants’ evidence in preference to that of the respondents is on the ground. I entirely agree with it. The Court of Appeal is certainly in error when Ogundere. J.C.A, in the lead judgment of that court described the judgment of the trial court as “perverse” in the face of the evidence on the record.

As pointed out by the learned counsel for the appellants the issue of unanimity of selection and appointment of an Aromu by those entitled, was not raised in the pleadings before the trial court; though it was given in evidence. Such evidence went to no issue as it was wrongly admitted. The learned trial Judge was right not even to have considered it. It is therefore a misdirection in law for the Court of Appeal to allow the respondents to raise it and to rely on it as forming part of the reasons for allowing the appeal. See Igbodim & Ors. v. Obianke & Ors. (1976) 9 -10 SC.179. I also accept the submission of learned counsel for the appellants that the Court of Appeal was wrong in its conclusion that:-

I accept and adopt all the arguments of learned SAN for the appellants on three major issues, namely, that the Statement of Claim was not proved by credible evidence, punctured as it was under cross examination and the honesty of plaintiffs’ witnesses under intense cross examination wherein they were forced to admit that no Aromu elect is a chief until installed by the Olomu. Secondly, the case of the plaintiffs failed because the plaintiffs’ witnesses contradicted themselves on vital issues of the disputed chieftaincy title. In short the house of the plaintiffs was divided against itself and its fall was inevitable. Thirdly, as highlighted in the submissions of the appellants the vital findings of the lower court were perverse in the face of the evidence on the record, and a court of appeal is under a duty to so declare and allow the appeal.”

without mentioning the contradictions and the findings that were found to be perverse. The statement is too general, particularly when the learned Justice of the Court of Appeal gave it as one of the reasons for reversing the judgment of the trial court.

It is my view that the learned trial Judge admirably set out the pertinent portions of the appellants’ evidence which he accepted and relied upon. He did not hesitate to make reference to the contradictions on the evidence which he described as “minor” and therefore did not “adversely affect the plaintiffs’ case”. The learned trial Judge was right and justified in what he did.

Before I conclude, I think it is also pertinent to mention that the learned trial Judge considered the contention that the installation of an Aromu by the Olomu of Omu-Aran is a custom that has acquired notoriety and came to the following conclusion:-

“Be it noted that no custom has been proved and established in favour of the 4th defendant by the lone appointment and installation of only one Aromu called Baba Owolabi in his palace because no court has taken judicial notice of it, neither had such an appointment and installation in Olomu palace been accepted by the community concerned, nor can it be regarded as a custom that is so sufficiently notorious as to be recognised by the court, more so when this is the second appointment in his reign and it is unchallenged.”

A custom can only be judicially noticed after it had been considered, accepted and applied in many decisions. See Fabunmi Sule Farinde v. Salami Ajiko & Anor. (1940) 6 WACA 108: Buraimoh & Ors. v. Bamgboye & Ors. (1940) 15 NLR 139 and Amissoh v. Kraboh 2 WACA 30. The fact that the incumbent Olomu of Omu-Aran has made two installations of Aromu is not enough to make such an exercise a notorious custom. See also section 14 of the Evidence Act.

The whole appeal is more or less centred on the re-consideration of findings of fact by the Court of Appeal of the findings of fact by the learned trial Judge. The principles upon which an appellate court can interfere with findings of fact by the trial court has been stated and emphasized in several decisions of this Court. See Woluchem & Ors. v. Gudi & Ors. (1984) 4 SC 319; Akinloye v. Eyiyolo (1968) NMLR 92: Obisonya v. Nwoko (1974) 6 SC. 69 and Mogaji v. Odofin (1978) 4 SC. 91 to mention but a few of such decisions. In Frank Ebbo v. Ogodo & anor. (1984) 4 SC. 84 at 103: (1984) 1 SCNLR 372. Eso J.S.C. in his lead judgment amplified the principles as follows:

“An appeal court, in applying these principles should, I venture to suggest:-

(a) start with an attitude to the trial court, as the only court which has, principally the duty to make findings of fact from the evidence “oral and or documentary” before it, also that the trial court is the court that has been specially suited, by its peculiar constitution, set- up and rules so to do. [The trial Judge sees the witnesses and has the exclusive advantage to observe their demeanour]

(b) then find out whether the conclusion which has been arrived at by the trial court is justifiable, when it is re-examined against the very premise and or the controversy vel non which formed the basis of the conclusion arrived at by the trial court:

(c) where the conclusion is arrived at without any real controversy. e.g. in the case of documentary evidence, or where it does involve a controversy the controversy is limited only to number, complexity or contradiction or interpretation of the document or further where there is oral evidence but it involves merely an admission by the adversary or there is an unchallenged piece of oral evidence, the court of appeal should consider itself to be in as good a position as the trial court, in so far as the evaluation of such evidence as aforesaid in this paragraph is concerned;

(d) where the decision is arrived at, after there has been an examination of a controversy (and this is the commonest aspect) as where the opposing parties produce witnesses in this case to contradict each other by oral evidence, then the Court of Appeal should appreciate that the following will be relevant:

(i) Credibility of witnesses based on demeanour of the witnesses only: Here the trial court is the sale judge as the observation of the demeanour of witnesses has to be peculiar and exclusive to the trial court which advantage is not and can never be available to the appellate court.

(ii) Credibility of witnesses based on factors other than demeanour: The Court of Appeal should examine those factors which the trial court examined as a result of which it made the inference which led to its findings and determine whether that trial court has made use of its singular advantage of seeing and hearing the witnesses before making its finding especially having regard to the inference that could reasonably be made by a just and reasonable tribunal from the same factors,”

The reasons given by the learned trial Judge for accepting the evidence adduced by the appellant cannot be described as unreasonable and perverse. On the contrary, it is the decision of the Court of Appeal that is perverse. In Ebba v. Ogodo (supra) Obaseki, J.S.C, summed up the position in his concurring judgment as follows:-

“It is no business of the appeal court to substitute its view of the evidence for that of the learned trial Judge and I find it again necessary to point out that miscarriage of justice will definitely result from adopting such a course of action when it is unwarranted.

The need to ensure that justice is not miscarried should always dominate the attitude and thinking of appeal courts when dealing with appeals raising questions of fact.’”

For the reasons stated above I find that there is merit in this appeal and it accordingly succeeds. The appeal is allowed and the decision and orders of the Court of Appeal are hereby set aside. The judgment and orders of the trial courts are restored.

The appellants shall have costs of the appeal in the Court of Appeal assessed at N500.00 and in this Court assessed al N1,000.00.M. L. UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother Wali, J.S.C. For the reasons contained therein I too will allow the appeal. The decision of the Court of Appeal is set aside with N1,000.00 costs to the appellants.S. KAWU, J.S.C.: I have the advantage of reading, in draft, the lead judgment of my learned brother. WALI, J.S.C which has just been delivered. I am in complete agreement with his reasoning and also with his conclusion that the appeal has merit and should be allowed.

On the evidence adduced at the trial. I am of the view that the judgment of Adeniyi. J. is impeachable, and The Court of Appeal was definitely in error when it interfered with the trial Court’s findings of fact which amply supported by credible evidence adduced at the trial. I will also allow the appeal, set aside the judgment of the Court of Appeal and restore the decision of Adeniyi, J, given on 17th day of February, 1988. I abide by the order as 10 costs made in the lead judgment.

O. OLATAWURA, J.S.C.: I had a preview of the judgment just delivered by my learned brother Wali, J.S.C .. I agree with his reasoning and conclusions. I will, with respect, adopt them as my own. I will also allow the appeal with costs assessed at N1,000.00 in favour of the appellants.

S. U. MOHAMMED, J.S.C.: I had a preview of the judgment just delivered by my learned brother, Wali, J.S.C. I agree with his reasoning and conclusions. I will, with respect adopt them as my own. I will also allow the appeal with costs assessed at N1,000.00 in favour of the appellants.

Appeal allowed

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SC.158/1989