Attorney-General Of Kwara State & Ors V. Raimi Olawale (1993)
LawGlobal-Hub Lead Judgment Report
NNAEMEKA-AGU, J.S.C.
These are further appeals by the 1st and 2nd defendants and by the 3rd defendant against the judgment of the Court of Appeal, Kaduna Division, which had dismissed their appeal from the judgment of the High Court of Kwara State, holden at Omu-Aran. In the High Court, the plaintiff’s claim by a writ of summons, and later amended, was as follows:-
“1. A DECLARATION that Olokanle is the traditional head of Okanle and that Raimi Olawale having been so elected from the only ruling house in Okanle (Kosolu ruling house) in accordance with the tradition and custom of Okanle people.
- A MANDATORY INJUNCTION against the 1st, 2nd and 3rd defendants (now the 1st and 2nd defendants only) compelling them, their agents/servants to recognize the plaintiff as the Olokanle of Okanle.”
In his statement of claim, the plaintiff traced his genealogy from one Kosolu, the founder-of Okanle to Buraimoh Oyebode, and his own father, whom he said was the last Olokanle of Okanle until his death in 1981. After Buraimoh’s death, plaintiff succeeded him, having been unanimously selected and appointed by the Kingmakers. Because of the main issue that has arisen for determination in this appeal, I deem it necessary to quote in full paragraphs 16 to 21 and 23 of the statement of claim. They run thus-
“16. The plaintiff also says that Oyebode died 1981.
- The plaintiff says that after the creation of lgbomina Ekiti Division in 1970 the then Igbomina Ekiti Central Administration of Igbomina Ekiti Division abrogated the title’ Alangua’ as being foreign to Igbomina Ekiti Division.
- The plaintiff avers that the Igbomina Ekiti Division in its letter Reference CA/EST/l6/9 0f 4th October, 1971 written to the Alangua wrote to terminate Oyebode as Alangua. This letter is hereby pleaded.
- In 1972 the same Local Government in its letter Reference DOlE/ S/l2/208 of 17th July, 1972 wrote another letter re-appointing Oyebode as head of Okanle but under the title ‘Baale’. This letter is pleaded.
- The plaintiff’s family being dissatisfied with the new title wrote a protest letter and made series of representations to the Igbomina Ekiti Division Central Administration Local Government Authority in their letter dated t4th August, 1972 which letter is hereby pleaded asking to be restored to their traditional title of ‘Olokanle of OkanIe.’
- The plaintiff says that after a thorough investigation conducted by the Caretaker Committee of the Irepodun Local Government Omu Aran, the Local Government wrote the then head of Okanle (Buraimoh Oyebode) confirming his traditional title of ‘Olokanle’ in its letter which is hereby pleaded, Reference IRPD/LG/CHI/ 1.1.314 of 23rd September, 1976.
- The plaintiff says that aye bode thus reigned as Olokanle of Okanle until his death in 1981 when the plaintiff succeeded him”
Both sets of defendants filed their statements of defence. Both of them raised an issue as to the jurisdiction of the court to entertain the suit because it raised a chieftaincy question, jurisdiction over which was ousted before the inception of the 1979 Constitution on the 1st of October, 1979. The 1st set of defendants admitted paragraphs 17 and 18 of the statement of claim but just barely denied inter alia, paragraphs 19, 20, and 21 of the statement of claim and put the plaintiff to strict proof. As for the 3rd defendant, who was then the 4th defendant, he pleaded in paragraph 3 of his statement of defence thus –
“3. The defendant says that he (the 4th defendant) had been appointed as the village head of Okanle with the title of ‘Baale’ since about 1971 or 1972 and the other defendants had since recognized him as such.”
I believe that apart from the issue of jurisdiction, the pleadings and evidence before the court of trial. the main issues for determination before the court of trial was somehow summarized by the learned Senior Advocate for the plaintiff in paragraphs (a) – (f) at page 140 of Vol. 1 of the record, thus –
“(a) What is the proper title of the traditional head of Okanle i.e. is it Olokanle or Baale of Okanle.
(b) What is the procedure for appointing the Baale or Olokanle of Okanle.
(c) Is the plaintiff from Kosolu ruing house or is he entitled to the Olokanle Chieftaincy stool.
(d) Is the defendant (i.e 4th) from the Kosolu family ruling house
(e) Has the plaintiff been appointed the Olokanle in accordance with the native law and custom of Okanle people.
(f) Was the 4th defendant imposed on the people of Okanle as their Baale.”
I should, however, reframe paragraph (f) by deleting “impased”‘ and substituting the words “selected and appointed”. After trial, the learned trial Judge noted that the 3rd defendant did not give evidence to support his case and made a number of important findings of fact. He found:
“From the evidence before me I am satisfied that the title of the village head of Okanle when it was first founded was Olokanle of Okanle which title was changed to Alanguwar by the Fulani dynasty after the conquest ofIlorin division Alanguwar was abrogated by that Local Government whereupon the people of Okanle reverted to the old title of Olokanle of Okanle for their village head but the Local Government maintained that the headship of the village should be titled Baale of OkanIe. I believe the evidence of B the plaintiff; (P.W.1) when he said that the village heads of the seven villages under Okanle are Baales while the village head of Okanle as a head chief or paramount chief is Olokanle. It is quite clear from the contents of Exhibits A and B that between 1972 and 1976 the conflict in the name of the village head of Okanle was settled by the Igbomina-Ekiti Local Government in favour of Mallam Buraimoh Oyebode; the plaintiff’s father, who, on the one hand, was allowed to continue to function as Baale of Okanle but was later referred to as Olokanle of Okanle after he had been divested of the Baaleship of Okanle (Exhibit E). Buraimoh aye bode held the post of Olokanle till he died in 1981. I am not unaware of the contents of Exhibit ‘E’ which cancelled with effect from 21st February, 1973 the appointment of Buraimoh Oyebode as Baale of Okanle which said appointment had been conferred on him through Exhibit’ A dated 17th July, 1972. Exhibit ‘E’ did not name or appoint the 4th defendant, Atunde Ajeigbe; as Baale of Okanle in place of Buraimoh Oyebode. I disbelieve the evidence of D.W.1, D.W.2 and D.W.3 that the 4th defendant was appointed Baale of Okanle between 1971 and 1972 and hold instead that between July, 1972 per Exhibit ‘A’ up till 21st February, 1973 per Exhibit ‘E’ the Baale of Okanle was Buraimoh Oyebode. The evidence of D.W.1, D.W.2 and D.W.3 as regards the year of appointment of the 4th defendant as Baale of Okanle is conflicting and so discredited under cross examination and is as such unworthy of belief. See OTUAHA AKPAPUNA & 3 ORS v.OBI NZEKA II & 3 ORS (1983) 2 SCNLR 1.
There was thenceforth i.e. from 21st February, 1973 no scintilla of evidence that anybody was appointed the Baale of Okanle. I therefore hold that the Ifelodun/lrepodunTraditional Council’s Committee headed by the Olomu of Omu-Aran could not have resolved that the 4th defendant was the Baale of Okanle in July, 1978 since he had hitherto not been so appointed.”
Later he concluded:
“I find as a fact that as at 13th July, 78 when the committee of the Traditional Council resolved that the 4th defendant was the Baale of Okanle he (4th defendant) had in fact neither been appointed nor conferred with that title by the Okanle Community as the title of Baale did not then exist and does not now exist in Okanle. The only direct and categorical statement on the appointment of the 4th defendant as the Baale of Okanle was made on 3rd October, 1984 when by the contents of Exhibit ‘D’ the Ifelodun Local Government wrote to the Esa of Okanle, Alhaji Jimoh Akano (P.W.3) and one of the kingmakers of Okanle.
He found that the 3rd defendant was from a female line, and so could not by custom be appointed the Baale or Olokanle of Okanle. He further held that as the appointment of the 3rd defendant as the Baale of Okanle before 1979 had not been proved, the jurisdiction of the court had not been ousted. Finally he entered judgment for the plaintiff in terms of his claim, as amended.
Aggrieved by the decision of the High Court, the defendants appealed further to the Court of Appeal, which in a leading judgment by Akpabio, J.C.A., to which Aikawa and Ogundere, J. C.A., concurred, dismissed the appeal. The defendants, have therefore, appealed further to this Court. Learned counsel for the 3rd defendant/appellant Mr. Ijaodola, formulated four issues for determination, namely:
“1. What is the cause of action.
- What determines whether a court of first instance has original jurisdiction or not.
- Was it fatal to the 3rd, appellant’s case that he did not personally give evidence or call any witness to establish his appointment before 1/10/79 and
- Was the decision of the Court of Appeal which affirmed the decision of the trial High Court right or wrong.”
I must pause here to observe that the first two so-called “issues” set out above are not issues properly so-called. For not only do they not arise from any ground of appeal but also they fall far short of what could be properly called an issue. For as this Court has stated times without number an issue for determination in an appeal must be formulated in concrete terms and be related to the ground or grounds of appeal filed and must be of such a nature that a decision on it one way or the other must affect the result of the appeal. See on this Obed Okpala & Anor v. Richard Ibeme & Ors (1989) 2 NWLR (Pt.102) 208; (1989) 3 S.C.N.J. 152 at p. 159; Western Steel Works Ltd. & Anor v. lron & Steel Workers of Nigeria & Anor. (No.2) (1987) 1 NWLR (Pt.49) 284, p. 304. I may mention that in the course of my consideration of the two issues framed by the 3rd appellant, I must have to answer the above two questions. But even so, to promote them to the status of issues is an abuse of forensic language. They are mere academic questions.
The two issues formulated by learned counsel on behalf of the 1st and 2nd appellants. Mr. Otta, are more in line with what constitutes an issue, although they are not completely free from fault. Those two issues read as follows:
(i) Whether the Court of Appeal was right either in not considering or in not pronouncing upon the Appellants complaints in grounds 5 and 6 of the grounds of appeal before them (Ground 1)
(ii) Whether the Court of Appeal was right to have relied solely on the issue of jurisdiction in this case (Ground 2).
Time has gone when appeals in this Court and the Court of Appeal were argued on grounds of appeal. Now they are argued on properly formulated issues. As it is so, one cannot make an issue of failure of the Court of Appeal or of this Court to consider any ground or grounds of appeal. If the court should fail to consider an issue, then one can make an issue of it. It is trite that any ground which does not form part of any issue is deemed abandoned.
Indeed, this case illustrates clearly the inherent weakness in complaining of failure to consider grounds, not issues. For the said ground 5 of appeal before the Court of Appeal, read together with its particulars, complains simply of rejection of the certified true copy of the minutes of the Ifelodun/lrepodun Council without going further to show that had the evidence been admitted the decision might probably not have been the same. It must in this regard be noted that section 226(2) of the Evidence Act provides as follows:”226 (2) The wrongful exclusion of evidence shall not of itself be a ground for the reversal of any decision in any case if it shall appear to the court on appeal that had the evidence so excluded been admitted it may reasonably be held that the decision would have been the same.”
It is clear from this provision that wrongful rejection of evidence is not per se a ground for the reversal of a decision, and therefore not an issue, unless it can be shown that if the rejected evidence was admitted, the decision would not have been the same. In the circumstances, merely alleging that admissible evidence was wrongly rejected cannot by itself be raised as an issue: the issue is if the evidence was wrongly excluded, whether the wrongful exclusion of the admissible evidence was substantial in the sense that it affected the result of the case. As the ground as formulated fell short of what could have been raised as an issue, I do not see how the appellant could complain of non-consideration of it. They could only have rightly complained of non-consideration of an issue duly raised in the appeal. Also, as I shall show shortly, the second issue as formulated is based on the wrong assumption that the Court of Appeal relied solely on the issue of jurisdiction for its determination of the appeal, whereas such was not the position.
In view of the grounds of appeal and the thrust of the argument of counsel on all sides in the appeal, it appears to me that the issues for determination could fairly be formulated as follows:
“(i) Whether the Court of Appeal was right to have held that the jurisdiction of the High Court was not ousted in this matter which undoubtedly raised a chieftaincy question.
(ii) Whether the Court of Appeal gave its due consideration to the merit of the plaintiff’s case and reached its correct decision on the point.
(iii) Whether the failure of the 3rd appellant to give evidence personally or call a credible witness to establish his appointment before 1st October, 1979 was fatal to his case.”
Before going into these issues, it is necessary to consider the preliminary objection raised by Alhaji Salman (S.A.N) the learned Senior Advocate for the respondent. He submits that grounds 1 to 4 of the 3rd appellant’s ground of appeal are incompetent because they are grounds of fact or of mixed law and fact, for which no leave has been sought or obtained. They are, therefore incompetent in view of the provisions of section 213 (3) of the Constitution of 1979. As they are the only grounds in the notice of appeal, the whole appeal is incompetent.
Mr. Kehinde Sofola (S.A.N.) learned Senior Advocate filed Reply Brief for the 3rd appellant and appeared before us on his behalf. He submits that the preliminary objection is not well founded because all the grounds of appeal are those of law. He ‘pointed out that every ground of appeal must, in the nature of things, be based on facts but submits that the mere existence of such facts does not necessarily make such grounds those of fact or of mixed law and fact: they can only be so if the facts are disputed facts. After a careful analysis of each ground of appeal he submits they are all grounds of law. His submissions on the point have not been dealt with in the respondents’ Reply.
Now, it is a self-evident truth that the law does not hang, as it were, in the air: facts are the fountain-head of the law. So, every proposition of law in an appeal has a factual base. If the facts, including any particulars thereof, upon which a ground of appeal is based are disputed facts or those that require further resolution by the court, then such a ground of appeal is one of fact. But if such are settled or admitted facts, then the ground is one of law. See on these: J.B. Ogbechie & Ors. V. Gabriel Onochie & Ors. (No.1) (1986) 2 NWLR (Pt.23) 484, at pp.490-492, Paul Nwadike & Ors. v. Cletus Ibekwe & Ors. (1987) 4 NWLR (Pt.67) 718. Applying the above principles in the present case, it can be seen that although each ground of appeal contains particulars of facts to support the grounds, none of such facts is in dispute or requires any determination by the court.
Furthermore, ground 1 raises an issue of jurisdiction, based on facts found by the court. This is a ground of law.
Similarly, ground 2 is, in effect, attacking the application of law to undisputed facts. This is a ground of law: Board of Customs & Excise v. Barau (1982) 10 S.C. 48, p.137.
Ground 3 is in effect saying that the court misconceived the nature of the dispute before it. This is the very essence of a misdirection in law, Bray v. Ford (1896) A.C. 44, p. 49. This is a ground of law.
Ground 4 deals with the legal effect of failure of a party to a dispute to give evidence on his own behalf. This is also a ground of law.
I therefore agree with Mr. Sofola that all the grounds of appeal are of law. No wonder then that the learned Senior Advocate for the respondents did not include a reply to the submissions of his learned counterpart in his Reply. I shall therefore consider the issues raised in the appeal. In a nutshell, the contention of the appellants on the issue of jurisdiction is that this chieftaincy dispute started in 1971 to 1972 or 1978, or at least before October, 1979 when the ouster of court’s jurisdiction over causes or matters raising any chieftaincy question was removed by the 1979 Constitution.
So, by authority of Uwaifo v. Attorney-General of Bendel State (1983) 4 NCLR 1; (1982) 7 S.C 124 and many other cases, the jurisdiction remained ousted in spite of the coming into effect of the 1979 Constitution. As pleadings on all sides had been closed and evidence called the court could no longer properly decide on the commencement of the cause of action by looking at the writ and the statement of claim alone: it ought to look at the whole case including the evidence called. counsel submitted. It was pointed out by Mr. Kehinde Sofola (S.A.N) in his reply brief on behalf of the 3rd appellant that admissions by the respondent and his witnesses showed that the chieftaincy dispute between the third appellant and the father of the respondent started long before 1979
Learned counsel on behalf of the respondent submitted that accepted evidence from the evidence of P.W.3. shows that the 3rd appellant was never nominated for appointment by the kingmakers of OkanIe but that the respondent was duly nominated and appointed by the kingmakers as the Olokanle of OkanIe. This was after the death of the respondent’s father in 1981. On the alleged admissions by some defence witnesses, counsel submitted that there were no clear admissions; that the so – called admissions were not clear on the point. Counsel therefore urged the Court to accept the concurrent findings on the point by the two lower courts and hold that the dispute between the 3rd appellant and the respondent started in 1981. He also submitted that it is the averment in the statement of claim that determines whether or not a court has jurisdiction as well as when the cause of action began. I think I should begin my consideration of this important issue in this appeal by asking myself the question: what is a cause of action I would be content in this respect to adopt the definition of the expression by Diplock, L.J. in Letang v. Cooper (1965) 1 Q.B. 232, at p. 242 where he defined it as, ……. simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.” The principal elements of this definition are that it involves two persons one of whom has the right to a judgment against the other. The other element is that it is a factual situation. Lord Esher. M.R., clarified this latter element of a cause of action when he staled that the words “comprise every fact (though not every piece of evidence) which it would be necessary for the plaintiff to prove, if traversed, To support his right to the judgment of the Court.”: Read v. Brown (1888) 22 Q.B.D. 128. at p. 131. See also: Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1; also Thomas & Ors. v. Olufosoye (l986) 1 NWLR (Pt.18)669.p.682.
The next question is: from where do we determine that factual situation which shows the commencement of the cause of action While the appellants contend that in a case like this in which evidence had been called after the closure of pleadings the court could only determine this from a consideration of the whole case including the evidence called, the respondent submits that it could only be determined from the averments in the statement of claim. I believe that the only inference from a view of numerous decided cases is that when before trial, an issue is raised as to the commencement of the cause of action, that issue is decided upon a view of the plaintiff’s statement of claim. But where, as in this case, the question is being raised on appeal, though what case the plaintiff brought before the court is still paramount, it may not be entirely out of place to regard the findings of the trial Judge on the relevant issues raised before him.
It is, however of utmost importance to note that what is material is when the cause of action commenced between the parties before the court and not when the question in disputation arose. One fact that cannot be denied in practice is that it is recognized that because of the paramountcy of an issue of jurisdiction it is sometimes necessary for the court to hear some evidence first for a correct determination of it, even though it might have disposed of the issue in limine. In my view, when the issue of jurisdiction is determined on the pleadings, the law is that it is determined on the plaintiffs pleading in his statement of claim and not on the defendant’s answer in the statement of defence. For this, see Izenikwe v. Nnadozie (1952) I4 W.A.C.A 361. at p.363: Adeyemi & 4 Ors v. Opeyori (1976) 9-10 S.C. 31. In other words when the plaintiffs pleading in the statement of claim is unambiguous and clearly pleads facts from which the issue of jurisdiction could be settled one way or the other, it is the proper material to determine that issue. But when the court, in exercise of its undoubted power to inquire whether in fact its jurisdiction has been ousted (for which see Barclays Bank of Nigeria Limited v. Central Bank of Nigeria (1976) 1 All NLR 409, at p. 421), and sees the need to hear evidence in order to inquire whether in fact its jurisdiction has been ousted, or when the issue of jurisdiction has been taken after evidence has been called, the court cannot in either case completely close its eyes to the evidence called. It is, however, recognized that quite often the defence succeeds on an issue or in a case by bringing up such a case that beclouds the real issue.
This can also happen with respect to an issue of jurisdiction. When such is the case, I am of the view that the correct approach should be that much as the court can no longer close its eyes to, the case brought up by the defence, the plaintiff’s case as on the statement of claim is still a most important factor. But the court may proceed to make findings on facts in controversy between the parties with respect to the issue of jurisdiction in order to decide whether the case of the defence on the issue is such as to affect the averments in the statement of claim. Where, as in this case, the case for the 3rd defendant/appellant that he was appointed the Baale before 1979 had been rejected for good reasons, the matter will stand settled on the averments in the statement of claim.
This was in fact what happened in the case of Kasikwu Farms Ltd. v. Attorney-General of Bendel State (supra). It is noteworthy in this respect that the subsisting claim between the parties related to Olokanle of Okanle, the traditional headship of Okanle, and not the appointed headship thereof. That stool never fell vacant till the respondents’ father, who was the last incument died in 1981. Indeed it has not been suggested by the 3rd appellant that he ever disputed over the stool with the respondent at any time before 1981. Rather he thinks that if he was able to show that he disputed over it with respondent’s father, then the cause of action arose at the time of such a dispute. This line of reasoning appears to me to overlook the crucial element that apart from cases of transmission of interests, a cause of action is an issue which arises between the parties in court. In a representative action, it arises when the interests of the persons represented arose.
In a purely personal action such as this in which the case of the plaintiff/respondent as revealed in paragraph 24 of the statement of claim was that he was selected by the Kingmakers in his own right to succeed his deceased father, it is my view that the cause of action arose when he was so selected and installed. That should be the point on which to decide the question of jurisdiction. I am therefore satisfied that the courts below came to a correct conclusion on the point: the jurisdiction of the courts was not ousted, as any dispute about the stool before 1981 did not concern the parties.
The next issue I wish to consider is whether the court below gave its due consideration to the merit of the plaintiff’s case. I think it is wrong and unfair to assume that that court did not, as the 2nd issue formulated on behalf of the 1st and 2nd appellants seems to imply. It is sufficient in this respect to quote from part of the judgment of Akpabio, J.C.A., to which Aikawa and Ogundere, J.C.A. concurred. He held: “The respondent not only testified himself as P.W.l but he called two other witnesses one of whom was head of the Kingmakers of Okanle to tesfify on his behalf, and they did so convincingly. The 3rd appellant on the other hand failed to even go into the witness box to testify himself. That meant that all the evidence of plaintiff/respondent as regards the chieftaincy tradition of Okanle, stood uncontradicted, and were rightly believed by the learned trial Judge. There was nothing to contradict the assertion of respondent that 3rd appellant was from a female line of descent, and so was not qualified to be selected or nominated as an Olokanle of Okanle. There was nothing to say that respondent was not unanimously selected by all the Kingmakers of Okanle at the time he was alleged to have been selected. There was also no indication whatsoever to show whoever selected or nominated 3rd appellant as a Baale or Olokanle of Okanle. There was in fact no indication as to whom the 3rd appellant succeeded.
Under the circumstances, I am of the view that the learned trial Judge rightly found in favour of the respondent. His decision was not perverse, but B rather was founded on the only evidence available.” In my view of this the suggestion that they did not consider the appellant’s case is clearly wrong and unfair. I am entirely in agreement with their Lordships in this opinion. In his pleading and evidence, the plaintiff/respondent showed how he was selected by the Kingmakers according to custom, after pleading and giving an impressive history to back up his claim. Accepted evidence of P.W.1, P.W.2 and P.W.3 shows that the traditional head of Okanle was Olokanle and not Baale and that Baale was the head of each of the constituent seven villages of Okanle; that he was selected by the traditional kingmakers and that 3rd appellant, being from a female line, was disqualified from appointment. On the other hand, neither in his pleading nor in his evidence did the 3rd appellant show that he had any claim to the stool. He was not even sure whether he was appointed and installed in 1971 or 1972. He called no evidence to show his entitlement or his mode of appointment. His only witnesses were rightly disbelieved.
I may pause here to distinguish this case from that of Alao v. Akano (1988) 1 NWLR (Pt.71) 431 which was so heavily relied upon by Mr. Ijaodola in his brief on behalf of the 3rd appellant. In that case, it was established at the trial that the defendant was selected and appointed the Baale of Oke-Oyi in 1972 and some time after turbaned by the Emir. The plaintiff went to court. After the plaintiff failed in the Supreme Court, the defendant returbaned the defendant in 1981, and the plaintiff went to court again. When the matter came to the Supreme Court again. it was held that the cause of action arose in 1972 when the defendant was first appointed and turbaned, not in 1981 when he was returbaned. This court held that the cause of action must be detemined from the substance of the case and that the cause of action arose in 1972 and not in 1981. So the case must in accordance with the principle in E. Emenimaya & Ors. v. Opara Okoroji & Anor. (1987) 3 NWLR (Pt.59) 6 and Uwaifo v. A.-G., Bendel State (1983) 4 NCLR 1; (1982) 7 S.C. 124 be decided in accordance with the law as at the time the cause of action arose.
In the instant case, the two courts below found that the 1971 or 1972 or 1978 alleged appointment of the third appellant was not proved. So, Alao’s case is clearly distinguishable. One of the reasons, but not the only reason, given for the conclusion that the pre-1979 appointment was not proved was that the 3rd appellant did not testify in support of his own case. He was unwilling to testify and so could neither swear to the veracity of his case nor face the fire of cross-examination. Although a party to a suit is not obliged to testify on his behalf, where a parry’s case before a court of justice is such that he is expected to swear to its truth and be cross-examined thereon and he fails to submit to these, that is a point that can go against his credit and be a good ground for rejection of his case, See Simpson v. Robinson. 12 Q.B. 511. As in addition to this, D.W.1, D.W.2 and D.W.3 were found to have drastically contradicted themselves on the date of his alleged appointment as the Baale. it follows that he had nothing of any weight to put on his own side of the imaginary balance on which assessment of evidence depended. The court had no alternative but to find against him: See A.R. Mogaji & Ors v. Odofin & Ors. (1978) 4 S.C. 91 at pp.93-96. It is this balancing of evidence called by either side to a litigation that is the only acceptable method of making conclusive findings in civil cases. When all that the 3rd defendant had to offer on his own side against the cogent and impressive evidence called by the plaintiff/respondent were no evidence by himself and discredited and contradictory evidence by his witnesses, the court below had no alternative but to accept the plaintiff’s case.
After all, as this court has stated a number of times the onus of proof in civil cases, quite unlike in criminal cases in which the onus of proof is all through on the prosecution. is not static but keeps shifting from the plaintiff to the defendant: See Osawaru v. Ezeiruka (1978) 6-7 S.C. 135; A.G., Bendel State v. Aideyan (1989) 4 NWLR (Pt.118) 646. Applying all the above principles to the present case, it appears to me that the courts below not only gave ample consideration to the appellants’ case but also come to a correct conclusion thereon.
It is my view that Chieftaincy, as a traditional institution will lose its value if it is put up for grabs by someone who had only succeeded to show that he had no claim to it. The conclusion I have reached is that all the issues duly raised on behalf of the appellants have no substance.
The appeal, therefore fails, and is hereby dismissed with N1,000.00 costs against each set of appellants as represented by counsel.
SC.241/1989
