Mallam Jimoh Salawu & Anor V Mallam Aliyu A. Yusuf & 2 Ors (2007)

LAWGLOBAL HUB Lead Judgment Report

ADEREMI, JSC

This is an appeal against the judgment of the Court of Appeal, Ilorin Division in Appeal No. CA/IL/5/2000 delivered on the 14th of June 2001 dismissing the appeal against the judgment of the High Court of Justice of Kwara State sitting at Ilorin in Suit No, KWS/2C/96: Mallam Jimoh Salawu and Mallam Hassan Akogun versus Mallam Aliyu A. Yusuf and Audu Ajide Agboola in which the trial court had dismissed the suit and entered judgment in favour of the defendants/counter-claimants on the 11th of May 1999. The plaintiffs (hereinafter referred to as the appellants) had at the trial court claimed against the defendants (hereinafter referred to as the respondents) as per paragraph 14 of the amended Statement of Claim the following reliefs: – “1. A declaration that the purported appointment of the 2nd defendant by the 1st defendant is null and void as it is against the native law and custom of Akogun family of Babanla. 2. A perpetual injunction restraining the 1st defendant from further recognising and from further dealing with the 2nd defendant as Akogun of Babanla. 3. A perpetual injunction restraining the 2nd defendant from further parading himself and acting in the office of Akogun of Babanla.” The defendants sub-joined a counter-claim to their further amended statement of defence – and in paragraph 34 thereof, they counter-claimed against the plaintiffs/appellants as follows: – PAGE| 2 “1. A declaration that the Chieftaincies of Akogun compound in Babanla are hereditary and are limited and exclusive to the respective families of the compound as follows: – Akogun Chieftaincy ………………….. Ikukominlola Family Akaponna & Asaulu Chieftaincies Ogunbiyi Family Asoni Family. 2. A declaration that Chief Audu Agboola Akogun is the present Akogun of Babanla having been properly appointed and installed as such under native law and custom of Akogun Chieftaincy of Babanla. 3. A perpetual injunction restraining the plaintiffs/ defendants to counter-claim – their privies and successors from claiming any right to the Akogun Chieftaincy of Babanla and from further challenging and/or disturbing the 2nd defendant in the performance of his functions and enjoyment of the perquisites of office.” The final amended pleadings filed, with the leave of court, and exchanged between the parties are the amended statement of claim and further amended statement of defence and counter-claim. Both sides called evidence in proof of the averments contained in their respective pleadings. And sequel to the addresses of the different counsel to both sides, the learned trial judge, in a reserved judgment delivered on the 11th of May 1999, dismissed the plaintiffs/appellants’ suit in toto but upheld the counter-claim of the defendants/respondents. Being dissatisfied with the said judgment, the plaintiffs now the appellants appealed to the court below via a Notice of Appeal, dated 20th July 1999 but filed on 21st July 1999 which Notice contains ten grounds of appeal. Distilled therefrom for determination by the court below are three issues formulated by the appellants and set out on page 171 of the record. For their part, the respondents raised only two issue’s for determination by the court below; they are contained on page 196 of the record. Sequel to the adoption of the briefs of the parties by their respective counsel, the court below, in a reserved judgment delivered on the 14th June 2001, dismissed the appeal. Again being dissatisfied with the judgment of the court below, the appellants are now approaching this court by a Notice of Appeal dated 12th September 2001. Three issues were raised by the appellants for determination by this court and as set out in their brief of argument, they are in the following terms: – “1. Whether the court below was correct to have upheld the way and manner the learned trial judge ignored the principles enunciated in the case of Kojo v. Bonsie (1957) 1WLR 1223 at 1226 and whether this has not led to a miscarriage of justice in this case against the appellant. 2. Whether having regard to the evidence tendered by the parties and the numerous material contradictions in the case of the respondents and when from the totality of the case of the parties the respondents case ought to fail. 3. Whether the court below was right to have agreed with the trial court picking and choosing from the testimonies of the witnesses for the respondents, speculate on facts not PAGE| 3 before him and decided not to countenance all the arguments advanced on Exhibits P1 and P2 as canvassed under issue No.3 at the court.” For their part, the respondents formulated two issues for determination by this court, as contained in their brief of argument, they are as follows: – “1. Whether in view of the apparent conflict in the evidence of traditional history of the parties, the Court of Appeal was right in affirming the decision of the trial court which applied the principle in Kojo v. Bonsie in the determination of this matter. 2. Whether the judgment of the Court of Appeal, which upheld the findings of facts by the trial court, was supported by evidence.” When this appeal came before us on the 12th of February 2007 for argument, Mr. Eleja, learned counsel for the appellants referred to and adopted his clients’ brief of argument filed on the 16th of May 2003 and urged us to allow the appeal. Mr. Daramola, learned counsel for the respondents similarly referred to and adopted his clients’ brief of argument deemed properly filed on the 12th of February 2001 and urged this court to dismiss the appeal. A careful examination of the issues raised by the parties leaves me in no doubt that issue No.l on the appellants’ brief is similar to issue No. 1 in the respondents’ brief and therefore both can be taken together. While issues Nos. 2 and 3 on the appellants’ brief can be taken along with issue No.2 on the respondents’ brief. I shall therefore treat the issues in the order I have set out. On issue No. 1, the appellants in their brief, argued that the trial judge did not properly apply the principle enunciated in Kojo v. Bonsie (1957) 1 WLR 1223 although he (the judge) had correctly stated the principle in that case in the body of his judgment; this submission, they set out to justify by quoting a number of holdings of the trial judge which the court below confirmed, although the two courts (the court of first instance and the court below) did not state expressly in their judgments adding that the fact that after Ogunbiyi, from the lineage of the appellants, his (Ogunbiyi) successors to Akogun of Babanla title were from Bogun lineage was not such recent act from which to test the testimonies as, according to them, the testimonies of the respondents were contradictory and, they further argued, contradictory and unbelievable evidence cannot constitute facts or acts in recent years with which to test conflict in traditional evidence. The rule in Kojo v. Bonsie, it was finally submitted on this point, was not properly, articulated by the two courts below; reliance being placed on decisions in (1) Balogun v. Akanji (1988) 1 NWLR (Pt.70) 301 and (2) Olanrewaju v. Gov. of Oyo State (1992) 9 NWLR (Pt.265) 335 at 360 and 361. For their part and in their brief of argument, the respondents submitted that the parties gave conflicting traditional evidence of which the founder of the Chieftaincy of Akogun of Babanla was and how that Chieftaincy title was founded. And after reviewing the evidence led at the trial court, they further submitted that the evidence which the trial court believed was not evidence of traditional history but evidence of the acts of the witnesses who said they saw and partook in the recent activities. The court below (Court of Appeal) was therefore right, after reviewing the whole case, in upholding the decision of the trial court; while placing reliance on decisions such as (1) Jariah v. Goodhead (1997) 4 NWLR (Pt.500) 453 and (2) Oladoye v. Adm. Osun State (1996) 10 NWLR (Pt.476) 38 at 60-61. PAGE| 8 I shall begin the consideration of these two crucial but similar issues by saying that the fundamental point that calls for determination in this appeal is whether the Chieftaincy title of Akogun of Babanla is exclusive to Ikukomilola (Bogun) family of Akogun compound or whether the Ogunbiyi family living in the same compound are also entitled to it. The case of the plaintiffs/appellants as could be gleaned from their pleadings is that the Akogun title is exclusively the affairs of Akogun family which title is that of a compound; the first Akogun of Babanla was Ogunbiyi who according to them; was the founder of Akogun of Babanla. It was also their case that Bogun family who adopted the name Ikukomilola was a guest of Akogun family; he got integrated into the family and although he was allowed to assume the title of Akogun no member of his family was ever allowed to hold the title or assume the authority of the head of Akogun family. On the other hand, the case of the defendants/respondents as could be gathered from their further amended statement of defence and counter-claim is that the plaintiffs/appellants only belong to Akogun Compound of Babanla and that Akogun family is exclusively the family of the 2nd defendant/respondent; that Akogun Chieftaincy title, the subject-matter of this suit is a native Chieftaincy of Babanla and it is hereditary; that Ikukomilola was the first Akogun of Babanla and all subsequent Akoguns of Babanla up to the 2nd defendant/respondent have been his, (Ikukomilola) descendants. Ajogbejo Ogunbiyi, the progenitor of the plaintiffs/appellants took refuge under Ikukomilola as he was then been pursued by Emir of Lafiagi. The intervention of Ikukomilola resulted in the Emir of Lafiagi forgiving Ogunbiyi. Neither members of Ogunbiyi family nor members of Asuni family who were settled by Oba Dada with Ikukomilola were entitled to become Akogun of Babanla and that issue of plaintiffs/appellants family were ever presented for the title which has never been in dispute. A period of 30 years elapsed before the installation of Akogun Adeniyi who was very young at the death of Akogun Ikukomilola, his father although there were many grown up men in the family of the plaintiffs/appellants during the period of interregnum but because these families were not entitled to become an Akogun, none was presented from them. Going by the case presented by each party, both of them are relying, for the success of their different cases, on traditional history. Then, what was the evidence led before the trial judge? PW1 – one Hassan Alade Salawu under cross-examination said: – “At the meeting of the Ogunbiyi family for the selection and appointment of an Akogun, people who are not members of the Ogunbiyi family are normally considered for selection……………….. The chieftaincy title of Akogun was first established by Ogunbiyi who donated the title to Bogun his visitor. The title was meant to be hereditary but was donated to Bogun by Ogunbiyi whom Bogun served very faithfully. Ogunbiyi said that the title should be extended to Bogun after he (Ogunbiyi) would have died.” I pause to say that the first leg of the reliefs sought by the plaintiffs/appellants wherein they claim for a declaration that the purported – appointment of the 2nd defendant (a confirmed member of Bogun and/or Ikukomilola family) cannot stand since they (appellants) said that even though the title of Akogun is hereditary, it was donated to Bogun by Ogunbiyi who even went on to make a declaration that after his (Ogunbiyi) death, the title should still be PAGE| 5 extended to Bogun. That evidence by Hassan Alade Salawu is an admission against interest. Continuing his evidence, Salawu said: – “I am not surprised that a hereditary title was donated to a non member of the family entitled to the Akogun Chieftaincy ………………………… ………………………………………………. I agree that after Ogunbiyi no member of the Ogunbiyi family has ascended the Akogoun stool…………………………………. After Ogunbiyi’s reign as Akogun, there was a long gap between the reigns of Bogun and Lawani. For that long period of time there were suitable candidates in the Ogunbiyi family but they were not appointed as Akogun …………………………………………….. Mr. Ogunbiyi family had not presented any candidate to the 1st defendant for appointment as Akogun before 1994. My family did not protest the appointment of the 2nd defendant to the chiefs in Babanla apart from the 1st defendant. I now say my family protested his appointment to the other chiefs in Babanla who directed my family to the 1st defendant as the appointer of the Akogun.” PW2 – Muhammed Alabelapo who was a member of the appellants’ family in his testimony under cross-examination said: – “After Ogunbiyi who was the first Akogun of Babanla, the title went to Bogun to whom he had donated the title.” PW3 – Kadiri Alabelapo Akogun in his evidence said: – “After the death of Bogun there was a long gap before Adeniyi was appointed. My Ogunbiyi family did not nominate anybody as Akogun during that time. There were able bodied persons in my family who could then be made Akogun but some of them refused because they had embraced Islam and them with (sic) their religion ….……………………. The interregnum did not occur because there was no appointable person in my family.” DW1 was Abolarin Esiwain, a man of about 120 years old; in his testimony he said: “Akogun compound comprises three distinct families. The three families are Ikukomilola, Ogbe and Okudeji.” DW2 – Kadiri Ashoni said:- “There are three distinct families in Akogun Compound. They are Akogun, Ikukomilola Ogunbiyi Ajogbejo and Ashoni families ………………………………………………………………………………..……… Although members of the three families live in the same Akogun Compound, each family came separately to live with Akogun, Ikukomilola in the town from different places. Akogun PAGE| 6 Ikukomilola was the first to found the compound …….. Akogun. Ikukomilola was the first Chief in Akogun Compound.………………………………… After Akogun Ikukomilola was Akogun Adeniyi, then Akogun Lawani and Akogun Audu (2nd defendant) ………………………………………………….. Ogunbiyi was never an Akogun in Babanla.” DW4 – Yusuf Arojojoye II the Oba of Babanla – the 1st defendant/respondent in this case stated in his evidence: – “The Akogun in Babanla is a kingmaker and the title is hereditary. It is a chieftaincy title for Ikukomilola family in Babanla. No other family is entitled to that chieftaincy. Ikukomilola was the first person in Babanla to ascend the stool of Akogun of Babanla………………….. There have been three other Akoguns in Babanla after Ikukomilola. They are Adeniyi, Lawani and Audu Ajide. They are all members of Ikukomilola family. I know the plaintiffs. They are members of Ogunbiyi family. The plaintiffs have no connection with Akogun chieftaincy ……………………………………………………….. The plaintiffs are not entitled to the Akogun Chieftaincy title because they are not descendants of Ikukomilola and are not members of the same family as the Ikukomilola family…………………………………. After the death of Ikukomilola the title of Akogun of Babanla was vacant for over 30 years and nobody ascended the stool because the children of Ikukomilola were not of age. There were grown up people in Ogunbiyi family at that time yet none of them vied for the vacant stool of Akogun of Babanla. This was because the older generation of Ogunbiyi family knew that they were not entitled to the Akogun Chieftaincy.” It is clear that the evidence presented by both parties constitutes conflicting and inconclusive historical accounts. One thing that emerges from this case is that when traditional history is put forward by the parties, it is imperative that a clear and positive statement should be made by the trial judge showing which story he (the learned trial judge) accepted and which side he disbelieved before any finding is made. This is called the trial of the issue before a finding is made one way or the other. The trial judge was of the clear view while evaluating the evidence that the account of traditional history as narrated by both parties vis-à-vis their respective claims to entitlement to the Akogun Chieftaincy is inconclusive when he said: – “The evidence of traditional history as narrated by both parties in this case in relation to their families’ entitlement to the Akogun Chieftaincy is inconclusive. PAGE| 7 The trial judge following the above statement now proceeded to consider what facts or acts, if any, exist in recent years in order to determine which of the two versions is more probable. The crucial issue is which of Ogunbiyi family or Begun (Ikukomilola) family is entitled to the Akogun Chieftaincy. I pause here to say that while it is forbidden, in law, for a trial judge to resort to the use of the rhetoric terms “I believe” and “I don’t believe” in resolving the conflict, the conventional duty of a court of trial in assigning probative value to the evidence adduced and making findings predicated on the totality of the evidence by the parties, must not be lost sight of. The learned trial judge then made the following findings: – “There is evidence from the defence, which I believe, that Adeniyi from Ikukomilola family was the Akogun after Bogun and was succeeded by Lawani also from Ikukomilola Family. I find that it could not be mere coincidence that Bogun, Adeniyi, Lawani and Audu Ajide, all from the same lineage to the exclusion of any member of Ogunbiyi family were installed as Akogun of Babanla in that order after the death of Ogunbiyi if the title actually belonged to Ogunbiyi family and was merely donated to Bogun. My conclusion is that Bogun (Ikukomilola), Adeniyi, Lawani and Audu Ajide have been the Akogun in Babanla and that Ogunbiyi was never an Akogun in that town. I find that the Ogunbiyi family is not entitled to the Akogun of Babanla Chieftaincy and that no member of that family has ever ascended or aspired to ascend the stool …………………………. I therefore find that Akogun Chieftaincy in Babanla is hereditary, and exclusive to Ikukomilola.or Bogun family. I find that Ogunbiyi family is only entitled to Ajapenna and Asanlu Chieftaincies ……………………………………… Having found that the Ogunbiyi family has no relationship with the Ikukomilola or Bogun family and therefore does not belong to the ruling family for the Akogun Chieftaincy, I found that the same Ogunbiyi family cannot have any business nominating, selecting or presenting any candidate to fill any vacancy in that stool by native law and custom ………………………… I find the counter-claim of the defendants established and I hold that the 2nd defendant, Audu Ajide Agboola was rightly nominated by his Ikukomilola family and duly presented by Salami Oloto the Bale and Head of that family accompanied by other members of the family to the 1st defendant who appointed him in accordance with the native law and custom of Akogun Chieftaincy. On the preponderance of available evidence and on the balance of probabilities, the plaintiffs’ claims fail in their entirety and are dismissed. The counter-claim of the defendants succeeds and I accordingly declare that Audu Ajide Agboola (2nd defendant) is the present Akogun of Babanla…..” The court below, in appraising the judgment of the trial court vis-à-vis the evidence led before it and the findings together with the conclusion reached, said: – “Having gone through the evidence of both parties contained in the record of proceedings, it is my considered view that that evidence of uninterrupted succession of the 2nd respondents’ family at all times within living memory qualifies as evidence of a long PAGE| 8 interregnum of over 30 years during which the appellants’ family could have filled the vacancy if they were entitled to the throne but this was not to be so until a candidate of the 2nd respondent became of age and was appointed to occupy the stool…………….. What is more since both parties agreed that two or three from the defendants/respondents’ side ascended the throne, this becomes evidence of recent past which buttressed the fact in the defendants’ traditional history that only their own side can ascend the throne. With the above evidence of recent past, the learned trial judge was on the right course when at page 145 of the records he averred thus: – ‘I find the evidence of the defence more probable than that of the plaintiff ………………………………….’ In the circumstance I resolve this 1st primary issue also in favour of the respondents and against the appellants.” The appellants have vigorously attacked the judgment of the trial judge on the ground that it fell back on the phrase “I believe” which he (the trial judge) had, in the course of his judgment, said he was going to discard in the application of the rule in Kojo v. Bonsie. I cannot bring myself to be persuaded by this tenuous argument. A careful reading of the whole record shows conclusively that what the learned trial judge believed was not the traditional evidence but the testimonies as they relate to the acts within recent memory which the witnesses said they saw and partook. The judgment of the court below, which cannot be faulted, made this point vividly clear. This approach is in line with the decisions of this court in (1) Oladoye v. Administrator, Osun State (1996) 10 NWLR (Pt.476) 38 and (2) Chikere & Ors v. Okegbe & Ors (2000) 12 NWLR (Pt.681) 274. The court below was absolutely right in not interfering with the judgment of the court of first instance. I therefore do not hesitate in answering issue No. 1 on each of the appellants’ brief of argument and the respondents’ brief of argument in the affirmative. And I so do. I now proceed to issues Nos.2 and 3 in the appellants’ brief and issue No.2 on the respondents’ brief. The main complaint in issue No.2 on the appellants’ brief is that having regard to what they called numerous material contradictions in the evidence presented by the respondents, the trial court, ought not to have allowed the counter-claim of the defendants/respondents, and the court below should have so held and consequently dismissed the counter-claim. It is true that pieces of evidence from the defendant/counter-claimants/respondents as to the names of the three families that made up Akogun’s family in Babanla are conflicting; while one witness gave the names as Ikukomilola, Ogunbiyi and Asoni, another gave the names as Ikukomilola, Ogbe and Okudeji and yet another witness gave the names as Akogun Ikukomilola, Ogunbiyi Ajogbejo and Ashoni families. Yes, they contradicted themselves as to the names given, but these contradictions are absolutely immaterial contradictions as to the determination of who is entitled between Ikukomilola (otherwise called Bogun) and Ogunbiyi to the Akogun Chieftaincy. Those contradictions are of no consequence. Similarly, the evidence of DW1 to the effect that one Ataba was the progenitor of the appellants’ family is absolutely irrelevant to the determination of the fundamental issue identified supra. No use was made of that evidence by the trial judge; “Atabe” was not pleaded and by not making use of it in his judgment, the trial judge had PAGE| 9 ignored it. The crucial issue which is who between. Ikukomilola and Ogunbiyi was entitled to the Akogun Chieftaincy was adequately and satisfactorily determined by the trial judge based on the credible evidence before him. And based on what I have said supra, the court below – an appellate court though possessing the power to intervene and set aside any findings which are perverse on the face of the records – is right in not interfering with the evaluation of the evidence by the trial judge; as I have said the findings of the trial judge cannot be faulted, issue No.2 on the appellants’ brief is thus answered in the affirmative; that is against the appellants, while I resolve issue No.2 in the respondents’ brief in their favour. On issue No.3 on the appellants’ brief, I do not want to repeat myself on what I have said about the evidence of DW1. Suffice it to say that the evidence is not material to the determination of this case. The appellants have made heavy weather of Exhibits P1 and P2 tendered in the course of trial. Exhibit P1 captioned “Statutory Declaration of Age” rebates to Audu A. Akogun, the second respondent that Exhibit put his age at 35 years when it was sworn to in May 1984; while Exhibit P2 dated 30th August 1989 is the M.C.E. final examination result of one Kadri A. Akogun as given by Kwara State College of Education. To my mind, the trial judge was right in not attaching any evidential value to them. And the court below was on a firma terra in ignoring them. Issue No.3 is, consequently resolved against the appellants. In conclusion, it is my judgment that this appeal is unmeritorious. It must be dismissed. I hereby affirm the judgment of the court below upholding the counter-claim as did the trial court. And I affirm the judgment of the court below which upheld the trial court’s verdict dismissing the plaintiff/applicants’ suit in toto. For the avoidance of any doubt, this appeal is hereby dismissed with N10,000.00 costs in favour of the respondents but against the appellants.

SC. 107/2002