Mohammed Husseini & Anor V. Mohammed Ndejiko Mohammed & Ors (2005)

LawGlobal-Hub Lead Judgment Report

IKONGBEH, J.C.A.

The appellants before us were the defendants before the High Court of Kwara State sitting at Ilorin. The respondents, as plaintiffs, had taken out a writ of summons against them claiming –

1. A declaration that the 1st defendant under the age long custom and tradition of Zambufu has no right whatsoever to ascend the throne as the Zhitsu of Zambufu.
2. A declaration that under the native law and custom relating to the selection and appointment of Zhitsu of Zambufu, the 1st defendant’s family is not a ruling house in Zambufu.
3. A declaration that the appointment and/or turbaning of the 1st defendant by the 2nd defendant on or about the 12th day of November, 1991 as the Zhitsu of Zambufu is illegal, null and void and of no effect whatsoever as same is against the age long custom and tradition of Zambufu relating to and in connection with the appointment of Zhitsu of Zambufu.
4. A declaration that the 1st plaintiff is the dully selected and appointed Zhitsu of Zambufu by the majority of Zambufu traditional counsellors or king-makers is in accordance with the custom and tradition of Zambufu relating to and in connection with the selection and appointment of Zhitsu of Zambufu.
5. An order commanding and/or directing the 2nd defendant to turban or install the 1st plaintiff as the duly selected and appointed Zhitsu of Zambufu by the majority of Zambufu traditional counsellors or King-makers.
6. A perpetual injunction restraining the –

i. 1st defendant from parading or presenting himself as the Zhitsu of Zambufu;

ii. 2nd defendant, his servants, agents, privies or any person or persons however from recognising, dealing or relating with the 1st defendant as the Zhitsu of Zambufu.”

As can be seen from their claims, the plaintiffs’ challenge to the appointment and turbaning of the 1st defendant was based on two main grounds. First, they alleged that the 1st defendant was not qualified to aspire to the stool of Zhitsu or traditional ruler of Zambufu, he not being one of the two ruling houses in Zambufu.

Secondly, they complained that, even if he was qualified, the manner of his selection and turbaning was contrary to the procedure laid down by their custom and tradition.

Each side called four witnesses in support of its case. After taking written addresses from counsel for the parties the learned trial Judge, A. A. Adebara, J., delivered his judgment on 29/11/2002 substantially in favour of the plaintiffs. He had considered the following five issues, which were canvassed before him:

“1. What is the Native Law and Custom guiding the selection and/or appointment of a Zhitsu of Zambufu?

2. Whether or not the 1st defendant is from a ruling house in Zambufu to be eligible to contest the stool of Zhitsu of Zambufu?
3. Whether or not the purported appointment of the 1st defendant as the Zhitsu of Zambufu is proper and in accordance with the native law and custom of Zambufu?
4. Has the 1st plaintiff been properly selected and appointed as the Zhitsu of Zambufu?
5. Whether the plaintiffs are entitled to the reliefs sought by them?”

He resolved in favour of the plaintiffs the two crucial questions, which were those raised in Issues 2 and 3, namely, whether or not the 1st defendant was from a ruling house and, therefore, qualified, and, secondly, whether or not his installation was in accordance with the customary procedure. On the first issue, he found that both sides were agreed on what the custom relating to the selection and turbaning of the Zhitsu was. Based on what he found that custom to be, he came to the conclusion that the selection exercise as it related to the candidates, whom he found to be qualified for the contest, excluding the 1st defendant, of course, was incomplete. He consequently ordered that the exercise be completed as it relates to those two candidates, namely, the 1st plaintiff and another person, with whom we are not really concerned in this appeal. Thus, he did not fully resolve the fourth and fifth issues fully in favour of the plaintiffs, who have, however, not appealed against that aspect of the decision.

Aggrieved, the defendants have appealed to this court. Out of the nine grounds of appeal filed on behalf of the appellants Mr. N. K. Ajide formulated the following 5 rather verbose, repetitive and, in some cases, irrelevant issues for determination:

“1. Whether in the light of glaring contradictions in the evidence of the plaintiff/respondents’ evidence before the trial court, the trial court was not in error in holding that the two named ruling houses by the respondents were the two known ruling houses in Zambufu thereby effectively making it impossible for the 1st appellant to vie for the stool or Zhitsu of Zambufu? – grounds 1 and 6.

2. Whether the trial court was right in shifting the onus of proof on the defendants/appellants regarding whether a vital witness and party to the suit, that is the 2nd plaintiff/respondent, was sick and incapable of attending court to give material evidence?
3. Whether the trial court was right in granting consequential order, ordering the 2nd appellant to appoint one out of two candidates, namely, Mohammed N. Mohammed that is the 1st respondent and one Ibrahim Ndakogi who was not a party to the suit and who never participated in the proceedings of the trial when that was not the case of the plaintiffs/respondents before the trial court neither was such a relief sought, and after the trial court had refused two principal reliefs relating to the consequential order?
4. Whether the trial court was right in holding that there is established Native Law and Custom regarding the selection and appointment of Zhitsu of Zambufu when the evidence before the court were (sic) contradictory and when there is no known Native Law and Custom of Zambufu which has assumed notoriety to make the court to take judicial notice of it? – Grounds 4,8 and 9.
5. Whether the court was right in holding that the 1st appellant is not a member of any ruling house in Zambufu when such holding was based on hearsay evidence?”

Chief W. Olanipekun, SAN., for the respondents, formulated the following 4 issues:

“i. Whether the learned trial Judge was not right in nullifying the purported appointment of the 1st appellant by the 2nd appellant as the Zhitsu of Zambufu?

ii. Whether the learned trial Judge has not made the right findings with regard to or in connection with the roles of the traditional councilors of Zambufu in the selection and or appointment of a Zhitsu of Zambufu?