Michael Yusuf & 2 Ors V Mr. Samuel Afolabi Toluhi (2008)

LAWGLOBAL HUB Lead Judgment Report

J.O. OGEBE, J.S.C.

“By a writ of summons dated the 19th day of December, 1997 the respondent and one other now deceased commenced an action against all the appellants (including the 3rd and 4th Appellants now deceased) seeking the following:-

“1. A declaration that by the custom and tradition of Oweland, it is the prerogative of the Obaro of Kabba, Oweland to confer all traditional titles in Oweland including the Obani title.

i. A declaration that by the custom and tradition of Oweland, the 2nd and 3rd Defendants have no Power, neither is it their function or duty or I prerogative to confer the title of Obani of Oweland on any Son of Oweland but that their duty is limited only to give blessings to Obani of Oweland, by Obara of Kabba Oweland.

ii. A declaration that by the custom and tradition of Oweland, whoever first signifies his intention to the Obara of Kabba in Oweland of taking the title of Obani is usually considered unless any factor exists, I that makes him unfit for the title.

iii. A declaration that the purported conferment of title of Obani of Oweland on the 1st defendant by the 2nd and 3rd defendants on 12-12-97 is in violation of the custom and tradition of Oweland and is therefore null and void.

iv. A declaration, that the Plaintiff, being the 1st Person to signify intention to Obaro in accordance with Owe custom and tradition, is the proper son to be conferred with the title of Obani of Oweland.

v. An Order of perpetual injunction restraining the 1st defendant from presenting himself or holding himself out as the Obani of Oweland, or wearing or using the paraphernalia of the office of Opani of Oweland.

vi. An Order of perpetual injunction, restraining the 1st defendant from adorning himself with the

paraphernalia of office of Obani of Oweland.

vii. An Order of perpetual injunction restraining the 2nd, 3rd , 4th and 5th Defendants from according recognition to the 1st defendant or in any way parading or holding out or presenting the 1st Defendant as the Obani of Oweland or such order or orders as may seem just in the circumstance.

Parties joined issues on their pleadings and trial High Court heard evidence and gave judgment in favour of the respondents. The case of the respondents before the trial court was that only the Obaro of Kabba was entitled to appoint the Obani of Oweland and not the appellants. The respondents led evidence to prove the custom on the appointment of Obani of Oweland.

The appellant on the other hand did not plead the custom of such appointment but was merely challenging the appointment made by the Obaro of Kabba who was also the chairman of the traditional council of Kabba. They averred that where Obaro, Obadofin and Obajemu were traditionally appointed they had equal say in the appointment of an Obani or any other traditional Owe chieftaincy title. From the evidence of their witness they appointed the first Appellant without any reference to the Obaro which amounted to a concession from their own showing that the first appellant was not properly appointed. It is clear therefore that the appellants had no defence to the respondents’ claim in the trial court which gave judgment in favour of the respondents.

The appellant appealed to the Court of Appeal Abuja Division which also dismissed the appeal They have further appealed to this Court and the learned counsel for them filed a brief of argument and formulated issues for determination as follows: