Chief Salawu Ajiboye & Ors V. Chief Aransiola (2005)
LawGlobal-Hub Lead Judgment Report
MUNTAKA-COOMASSJE, J.C.A.
This is an appeal against the decision of the Kwara State High Court, holden at Omu-aran, corum Akoja J, delivered on 20th day of October, 2003. The appellants herein were the plaintiffs in the court below and claimed in their Amended Statement of claim dated 27th day of June, 2002, against the respondent/defendant as follows:
- “DECLARATION that under the Native law and custom of Arandun there are ten chieftaincies that make up the Council of Kingmakers of Arandun.
- DECLARATION that any Chieftaincy title that does not belong to any of the ten chieftaincies is not a Kingmaker and cannot purport to take part in the traditional duties of the Kingmakers.
- DECLARATION that anyone that holds a Chieftaincy outside of the three group(s) of recognized traditional Chieftaincies at Arandun cannot take part in the Kianse weekly gathering of the traditional chiefs of Arandun.
- DECLARATION that the Chieftaincy title of ELEMONA is a honourary chieftaincy title and its holder cannot take part nor host the IKANSE meeting of the traditional chiefs of Arandun and is not a Kingmaker of Arandun.
- DECLARATION that the Defendant not being a recognized traditional title holder in Arandun cannot lawfully take part or host the IKANSE meeting of the traditional title holders of Arandun.
- ORDER directing the defendant to stop forthwith any participation in the IKANSE meetings or any other traditional meetings of the traditional chiefs of Arandun or host any such meetings.
- INJUNCTION perpetually restraining the defendant from hosting, taking part or in any other manner participate in any traditional meetings of the Arandun traditional Chiefs in particular the IKANSE meetings.
- AND other reliefs the plaintiffs may be entitled to in the circumstances”.
The defendant flatly denied the claims of the plaintiffs in their Statement of defence dated on the 6th day of June, 2000, but filed on 29/6/2000 and prays that the plaintiffs’ case be dismissed in its entirety as an abuse of court process. He also counter claims. See pages 9 – 12 of the Record of Proceedings.
Pleadings were ordered filed and exchanged. The defendant specifically counter claimed against the plaintiffs as follows:
“16. Whereof the defendant prays that he be declared properly appointed and installed the ELEMONA of Arandun as a member of Orimarun and Arandun traditional council of chiefs”.
The facts of this case as revealed in the pleadings and the evidence of the parties’ witnesses are simply that the defendant was in 1989 appointed as the ODOFIN of Arandun by the late Oba Arandun, Oba Amos Babatunde. This appointment was challenged in Suit No.KWS/OM/2/90 on the ground that he was not entitled to be appointed as ODOFIN of Arandun. The said appointment was set aside and on further appeals to the Court of Appeal and the Supreme Court, the judgment of the trial court was affirmed.
However in order to assuage and compensate the defendant of the loss of the Odofin title, the existing members of the Kingmakers met and decided to honour him with ELEMONA title. Before the conferment of this title on the defendant, the said title/chieftaincy was not in existence in Arandun’s history. Traditionally, the Council of Kingmakers in Arandun is made up of the following chiefs in order of ascending seniority. Odofin, Eesa, Ejemu Apa, Aro, Asanlu, Edemo, Ejemu, Elemo, Elemo Apa and Oolo.
Hence, if the appointment of the defendant as ODOFIN has been confirmed, he would automatically be one of these ten traditional chiefs, according to the evidence, that hold and attend IKANSE meetings- The dispute in this matter arose when the defendant decided to be attending and hosting IKANSE meetings- The plaintiffs then stopped attending any IKANSE meetings, where the defendant is present or whenever he decided to host such meeting as he was said not to be a traditional chief but an honourary chief and this amounts to a violation of the Native law and Custom of Arandun.
The defendant in his defence contended that the title of ELEMONA was not an honourary title, but a traditional title. The Council of Kingmakers who conferred the title on him has the power to create additional title and enlarge the traditional council of Kingmakers and in this wise he would become the eleventh (11th) member. Hence, his attending and hosting of IKANSE meetings do not amount to the violation of the Native Law and Custom of Arandun.
After listening to the addresses filed by the learned Counsel to the parties and after weighing the pleadings, evidence and other relevant documents, in his considered judgment the learned trial Judge dismissed the plaintiffs case and upheld the counter-claim of the defendant. He concludes on p.197 of the Record thus:-
“Finally therefore, I hold that the case of the plaintiffs failed in its entirety and it is accordingly dismissed.
Accordingly therefore, the defendant is declared as being properly appointed and installed the Elemona of Arandun and as a member of Orimarun (As indicated in EXHIBIT 5) and Arandun Traditional Council Chiefs”.
TIle plaintiffs not being happy with the above decision appealed to this court. In the amended Notice of Appeal dated 2/11/04 seven (7) grounds of appeal were filed. In accordance with the rules of this court, Order 6RR 2 & 4 of the Court of Appeal Rules parties filed and exchanged their respective Briefs of argument. The appellants in their Brief of argument dated 17/9/04 submitted three (3) issues for our consideration of the appeal as follows:-
“1. Whether on the face of pleadings filed and exchanged by the parties and the evidence adduced the trial Court was right in granting the declaratory relief sought by the Respondent in his counter-claim.
- Whether the trial court was correct in concluding that under the Native Law and Custom of Arandun, it was possible to increase the number of chiefs in the Kingmaker group.
- Whether on the totality of the evidence adduced coupled with the pleadings of the parties the trial court was justified in dismissing the Appellants’ claims”.
These issues were considered as sacrosanct and correct that the respondent adopted them in his Brief of argument dated 30/11/2004. My Lords, having taken into consideration the pleadings, the evidence and the submissions of both counsel, to my mind, the narrow and crux of the matter is thus:-
“What is the nature of the ELEMONA TITLE conferred on the respondent herein, was it traditional or honourary (honourarium) in nature?”
At the hearing of this appeal, the learned Counsel to the appellants, Yusuf Ali SAN, adopted his Brief of argument on behalf of the appellants, and further submitted, in amplification of his Brief, that the respondent has not discharged the burden of proof placed on them by the law. According to him, it was the respondent who asserted that it is possible to create additional King making title. He therefore submitted that the trial court was wrong to have upheld the respondent’s counter claim. He cited the cases of IBRAHIM VS. OJOMO (2004) 1 NWLR [PART 802] 89 AT 110 Paragraph G per EDOZJE JSC; and JOLA YEMI VS. OLAOYE (2004) 12 NWLR [PART 887] 322 AT 352 – 353.
The learned Counsel for the respondent Chief Olorunnisola SAN adopted his Brief of argument filed on 30/11/04, and submitted that the title of ELEMONA is a traditional title and not honourary. That the Council of Kingmakers can increase its membership and that the respondent has taken the benefit of this power.
On the issue of burden of proof learned Counsel submits that the Edema title was never made an issue for trial. Edema was only cited as one of the examples of title created. There are pieces of evidence to show that the Customary law is dynamic and changing. Ojomo’s case is not applicable to the circumstances of this case. Counsel added that the plaintiffs did not prove their case at the lower court the decision of the trial Judge therefore, cannot be perversed. This court shall therefore not reverse the lower court’s decision. Because of other examples this court should consider them as discharging the burden of proof on the respondent.
In a short reply, Mr. Yusuf Ali SAN, contended that the 2nd plaintiff was said to be installed whereas DW1 Chief Awoyemi Aina, on pages 81 – 84 gave a contrary evidence on the issue….. “As at the time, the title ELEMONA had no place in the Chieftaincy hierarchy in Arandun, but it was free for us as Kingmakers, to introduce any chieftancy title we feel is appropriate for us for the development of Arandun in general. It is not in our history that any person had ever held the title of ELEMONA in Arandun…”
The learned trial Judge on this point held as follows:-
“I am satisfied that the defendant has established as required by law, that the Elemona Chieftaincy title conferred on him by the Council of traditional Chiefs in Arandun is a traditional Chieftaincy title”. See page 193 Of the Record of Proceedings, 3rd paragraph thereof.”
I think the trial Judge based his findings on Exhibit 5, wherein the defendant was said to be ranked among the “Ori-marum Aran”. It is a letter dated 20/3/2000.
As I have earlier pointed out in this judgment, there was no dispute regarding the powers of the Aradun traditional council to create chieftaincy title. The “Ori-marun” which is the council of the Kingmakers, had been in existence since the inception of Aradun. Odofin title that was earlier conferred on the respondent was a traditional title, it was the loss of this title that made the council to invent the ELEMONA title as compensation. With due respect to the learned trial Judge, the fact that the traditional Council of Kingmakers had the power to create chieftaincy title does not on its own, translate to the fact that such chieftaincy title created is traditional. It may be traditional, if it can be linked to the past history of Arandun and if not it is honourary, as compensation or honour. The burden is therefore on the respondent to prove that the title of Elemona conferred on him is traditional under the Arandun Customary law. Section 14(1) of the Evidence Act has provided for how Customary law is proved as follows:-
S.14(1) A custom may be adopted as part of the law governing a particular set of circumstances, if it can be noticed judicially or can be proved to exist by evidence. The burden of proving a custom shall lie upon the person alleging its existence.
(2) A custom may be judicially noticed, if it has been acted upon by a court of superior or co-ordinate jurisdiction in the same area to an extent which justifies the court asked to apply it in assuming that the persons or the class of persons concerned in the area look upon the same as binding in relation to the circumstances similar to those under consideration.
(3) Where a custom cannot be established as an judicially noticed it may be established and adopted as part of the law calling evidence to show that persons or the class of persons concerned in the particular area regard the alleged custom as binding upon the land”?
In the case of OYEWUNMI VS. OGUNESAN (1990) 3 NWLR (PART 137) 182 AT 215 – 216 it was held by Karibi-Whyte JSC that:-
“Customary law may be proved in any of the following two ways viz:-
(a) by calling witnesses acquainted with the custom in the courts.
(b) When by frequent proofs in courts the particular Custom becomes notorious”.
He continues:-
“In respect of (a) proof of customary law will depend on the witnesses called, but in (b) by frequent proof in other cases the court will take judicial Notice of the custom as having been established where it arises from proof in the case before it and no more proof will be required”.
The respondent in his Brief of argument tried to prove that at least two chieftaincy titles have been created in the manner the respondent chieftaincy was done. He referred to the evidence of PW1 under cross examination as follows:- See pp. 65 – 71. At page 71 – Under cross examination says:-
“I remember the current Elemo Apa. He was installed in 1997. The late Alaran had already did then. The Elemo Apa before the present was one Fakorode. He was installed before our people moved from Omu Aran to settle at the present site of Arandun. That was before 1934”.
It is apparent from this evidence that the witness was concerned with the installation of Elemo Apa and not its creation, which is the issue in dispute in this case.
The learned Counsel to the respondent also quoted in extenso the evidence of DW1 where it was stated thus:-
“The membership of Arewa has been increasing since the time of Alibiosu up to the time of Oba Orimadegun. This is also the case during my own time. Since the time I became Eesa up till today, Arandu town has been expanding. I know when Oba Orimadegun became Oba. It is up to 40 years. We were then under the white men. Since the time of Oba Orimadegun up to the present time, the number of Kingmakers has increased”. See p. 83 lines 23 – 32 of the Record.
It is pertinent to note that no particulars of such created chieftaincy that was made the Kingmaker was mentioned or exhibited.
My Lords, it is my considered view, with all sense of responsibility, that the respondent had failed woefully to prove that the chieftaincy title of ELEMONA OF ARANDUN is a traditional title which entitled him to be one of the Kingmakers in Arandun as required by Section 14 of the Evidence Act. There is no where the respondent was able to discharge the burden of proof placed upon him by the law.
The appellant in this matter had adduced evidence which if not concensciously and sufficiently contradicted, will entitle them to judgment. Uwaifo JSC has this to say:-
“I realize that a defendant need not prove any thing if plaintiff has not succeeded in establishing his case, at least prima facie, in order that the necessity of the defendant to confront the case so made may arise. See AROMIRE V. AWOYEMI (1972) 2 SC 1 AT 10 – 11; ADELEKE V. IYANDA (2001) 13 NWLR [PT. 729] I AT 21 – 22. But in the present case, the plaintiffs adduced evidence which if not sufficiently contracted, will entitle them to judgment…. ”
Consequently, I have no option than to allow this appeal, set aside the judgment of the trial court, I so hold. For the avoidance of any possible doubt, my Lords, I hold as follows:-
(1) That the counter claim has no merit same is hereby dismissed as the chieftaincy title of ELEMONA OF ARANDUN is not a traditional title under the Native Law and Custom of Arandun but an honourary title; and
(2) The plaintiffs/appellants’ claims at the lower court are granted.
The appellants are entitled to some costs which I assessed at ten thousand Naira (N10,000.00) in favour of the appellants.
Other Citations: (2005)LCN/1830(CA)
