Race Auto Supply Company Limited & Ors V. Alhaja Faosat Akib (2006)

LAWGLOBAL HUB Lead Judgment Report

OGUNTADE, J.S.C.

This was a dispute as to who of the contending parties was entitled under customary law to be the Baale or head chief of a village called Egbeda. On 17-3-87, one Chief Salimonu Bolatito Lawai as plaintiff for and on behalf of Tanimowo family of Egbeda brought a suit against the respondents as the defendants claiming the following:

(a) Declaration that the Tanimowo family of Egbeda is the family entitled under native law and custom of Egbeda to produce (sic) the Baale of Egbeda to the exclusion of the Piposola family or any other family in Egbeda.

(b) Injunction restraining the 1st to 4th defendants, their agents and or servants from appointing or recognising any Baale of Egbeda from the Piposola family,

The parties filed and exchanged pleadings after which the suit was heard at the Ibadan High Court of Oyo State by Lajide, J, On 22-6-89, the trial judge in his judgment dismissed the plaintiff’s claims. It is pertinent to observe that the original plaintiff died and the present two appellants were substituted for him. The plaintiffs were dissatisfied and they brought an appeal before the Court of Appeal, Ibadan Division (i.e. the court below). The court below on 20th June, 2001, in its judgment dismissed the plaintiffs’ appeal. The plaintiffs have come before this court on a final appeal. In the appellants’ brief filed by the plaintiffs, the issues for determination in the appeal were identified as the following:

(i) Whether or not having regard to the various strictures made against the judgment of the trial court, their Lordships were right in affirming the decision of the learned trial judge to the effect that the appellants did not prove the custom they relied on in proving their case (Ground 2 of the grounds of appeal)

(ii) Whether or not the court below was not in error in affirming that each of the respondents donated land for the establishment of Egbeda market when the case of the different respondents are (is) diametrically opposed and are contrary to their pleadings, (Grounds 2 and 4 of the grounds of appeal).

(iii) Whether or not the case of the parties that donations of land for the establishment of Egbeda market is not a sufficient proof of the customary land that would entitle the donors to appoint the Baale of Egbeda (Ground 3).

The 1st and 2nd defendants filed a joint brief as did the 5th, 6th, 7th and 9th defendants. The issues formulated in each of the two briefs filed by these defendants are amply covered by the plaintiffs’ issues for determination. I shall be guided in this judgment by the plaintiffs’ issues.

It is necessary for an appreciation of the issues as discussed in this judgment that the nature of the dispute leading to this appeal be fully understood. In the lead judgment of the court below per Akintan, JCA. (as he then was) the cause of the dispute was succinctly stated thus at page 229 of the record of proceedings:

The dispute that led to the institution of the action arose over succession to the stool of Baale of Egbeda in Egbeda Local Government area of Oyo State. The title is a minor chieftaincy title of which the Olubadan of Ibadan is the prescribed authority. When the stool became vacant in 1976 on the death of Yesufu Laniyan, the Olubadan appointed Lasisi Layosoye Piposola from Piposola family, as the Baale. The appointment was resisted from the Tanimowo family who claimed that an only member of their family was entitled to produce the Baale. Consequent upon protests from the Tanimowo family, the Olubadan revoked the appointment of Lasisi Layosoye Piposola and the plaintiff was appointed in his place in 1985.

As a result of protests from the Piposola family, the 1st respondent (Oyo State Government) had to come into the matter. Two administrative commissions of enquiry were set up to look into certain aspects of the dispute. However, by a letter dated 10th April, 1985, the 1st defendant/respondent wrote to the Olubadan declaring his action in installing the plaintiff as Baale of Egbeda null and void. The 1st defendant/respondent also wrote to the plaintiff restraining him from acting as the Baale of Egbeda. The plaintiff instituted the action as a reaction to the action of the State Government nullifying his appointment as the Baale of Egbeda.

In paragraphs 9-16 and 40 of their statement of claim, the plaintiffs had pleaded the facts they relied upon for their claims thus:

9. Before the early 1930’s there were a number of villages in the neighbourhood of Egbeda.
10. These villages included Tanimowo, Aderogba, Olugbojo, Fasade, Obaloriegun, Oluwo, Elerumoke and Abidodu. Other villages are Aba Ahinde Gbalepa Omitowo A …. Mosafejo Onisade, Ajule Adekila, Mapo, Aba Bale Ire …in, Aba Edun and Adewunmi.
11. Early in the 1930’s the road linking Ibadan with Ile-Ife was constructed and it passed through the site of the present Egbeda.
12. The inhabitants of the surrounding villages decided to establish a market town at the site of the present Egbeda and gave the town its present name.
13. Before the coming together or these villages, the Tanimowo family had been the owners of the land through which the road passed and on which the town was located.
14. Because of this, the community decided that the Tanimowo family who were owners of the land on which Egbeda was established should produce the Baale of Egbeda.
15. The Tanimowo family thereafter produced the first Baale of Egbeda who reigned from 1939 in person of Lawani Olorode.
16. Thereafter other members of Tanimowo family reigned as Baale in Egbeda.

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40. The plaintiff will further contend that under the native law and custom of Egbeda, only the Tanimowo family is entitled to produce the Baale of Egbeda to the exclusion of the Piposola family.

The 1st and 2nd defendants in their statement of defence pleaded their case thus in paragraphs 3 – 7:

3. The 1st and 2nd defendants deny paragraph 13 of the statement of claim and say that both Tanimowo and Piposola are blood relations who migrated, first to Ibadan during the incessant inter-tribal wars and settled with Elopo at Oja-Oba wherefrom they two later moved out to co-found and settled at Tanimowo compound during the Elepo Revolt and the compound was named Tanimowo because Tanimowo was older than Piposola.
4. The 1st and 2nd defendants deny paragraph 14 of the statement of claim and say that the Tanimowo family had hitherto been monopolising the Baale of Egbeda Chieftaincy by virtue of the numerical strength of the Tanimowo family vis-a-vis those of Ege and Piposola families.
5. The 1st and 2nd defendants deny paragraph 15 of the statement of claim and say that Oyewole was recognised as the first Baale of Egbeda and he (Oyewole) was a son of Piposola.
6. The defendants admit paragraph 17 to the extent that Layosoye Piposola was appointed as the Baalc of Egbeda by the then Olubadan of Ibadan Oba Adebimpe.
7. The defendants deny paragraph 18 of the statement of claim and say that the Piposola apart from having blood relationship with the Tanimowo family was a co-founder of Egbeda and as such is entitled to the Baale of Egbeda chieftaincy stool.

And in their amended statement of defence the 5th, 6th, 7th and 9th defendants pleaded in paragraphs 4-7 thus:

4. With regards to paragraph 8 of the statement of claim there were no villages called Ologbojo, Fagade and Obariogun but Olugbojo, Fasade and Obaloriegun.
5. The 5th, 6th, 7th and 9th defendants aver that the land on which Egbeda market is situate is jointly owned by Tanimowo, Piposola, Ege and Jeayinfa families until the acquisition of the whole area by the Ajoda New Town Corporation.
6. Oyewole, a member of Piposola family was the first Baale of Egbeda on the establishment of the market, it was after the death of Oyewole that Lawani Olorode was installed as Baale of Egbeda in 1939 after a protracted argument amongst the four families of Piposola, Ege Jeayinfa and Tanimowo.
7. In 1963 the Government of Western Region of Nigeria called for a revision of all chieftaincy declaration in the Western Region of Nigeria.

The plaintiffs’ case was anchored on the following facts:

1. That their grand ancestor, Tanimowo, originally owned the land on which Egbeda market was founded.
2. That the adjoining villages in recognition of the fact that the land upon which the Egbeda market was founded belonged to Tanimowo decided that the plaintiffs’ family should produce the Baale in perpetuity.
3. That the plaintiffs’ family produced the first Baale in 1939 who was by name Lawani Olorode. 4. That the plaintiffs’ family has since produced the Baale of Egbeda in succession.
4. That under the native law and custom of the area, only the plaintiffs’ family could produce the Baale.

As against the plaintiffs’ case, the 1st and 2nd defendants relied on the following facts:

1. That the plaintiffs grand ancestor Tanimowo and Piposola the 1st and 2nd defendants’ ancestor were blood relations.
2. That Tanimowo and Piposola both co-founded Egbeda and as such were both entitled to produce the Baale from their lineages.
3. That the 1st Baale of Egbeda was Oyewole from Piposola lineage and not Lawani Olorode from Tanimowo family as pleaded by the plaintiffs.
4. That the Tanimowo lineage had hitherto monopolised the succession to the Baaleship by virtue of the numerical strength of the Tanimowo family.

The 5th, 6th, 7th and 9th defendants pleaded the following facts.

1. That the land on which Egbeda market was founded was jointly owned by Tanimowo, Piposola, Ege and Jeayinfa families.
2. That Oyewole from Piposola family and not Lawani Olorode from the plaintiffs’ family was the first Baale.

At the trial, the parties called evidence in support of their divergent standpoints. The trial court, in its judgment made important findings of fact, the highlights of which were –

(a) That Tanimowo was not the sole owner of the piece of land on which Egbeda market was founded and further that the said land was jointly owned by four families namely – Tanimowo, Ege, Piposola and Jeayinfa.

(b) That the plaintiffs did not call evidence to establish that there existed a custom under native law and custom by which the owner of a parcel of land and his successors by the sheer force of such ownership were entitled perpetually to produce the Baale of the village in which the land was situate.

(c) That the first Baale of Egbeda was Lasisi Olokode as pleaded by the plaintiffs and not Oyewole as pleaded by the defendants.

Now, against the background discussed above, I proceed to consider together the three issues for determination formulated by the plaintiffs. But before doing so, it is necessary to call to mind the well established principle of law that the appraisal of oral evidence and ascription of probative values to such evidence is the primary duty or a court or trial. In Fashanu v. Adekoya (1974) 6 SC. 83. this court per Coker JSC restated the principle thus:

The appraisal of oral evidence and the ascription of probative values to such evidence is the primary duty of a tribunal of trial and a court of appeal would only interfere with the performance of that exercise if the trial court had made an imperfect or improper use of the opportunities of hearing and seeing the witnesses or has drawn wrong conclusions from accepted or proved facts which those facts do not support or indeed has approached the determination of those facts in a manner which those facts cannot and do not in themselves support.

See also Woluchem v. Gudi (1981) 5 SC 291 and Oke v Eke (1082) 12 SC. 218.

It was not the case of the plaintiffs before the court below that there was no evidence before the trial court upon which it could make the findings of fact earlier paraphrased in this judgment. Nor was it shown that the evidence before the trial court could not sustain or do not support the findings made by the trial court.

Under the plaintiffs’ first issue for determination, it was implied that the court below was in error to affirm the conclusion of the trial court that the plaintiffs did not prove the custom relied upon after it (the court below) had passed various strictures’ against such findings. I have read several times over the judgment of the court below and I did not see anywhere therein where strictures were passed on the trial court as regard the findings of fact made. At page 233 of the record, the court below in its judgment said:

Again, the findings of fact made by the learned trial judge to the effect that each of the four families contributed land on which the Egbeda market was established and that each of the four families was entitled to nominate candidates for the Baale of Egbeda are, in my view, rightly made from the evidence placed before him by the parties. The conclusion he drew to the effect that each of the four families was entitled to nominate candidates for the office is not out of place since it was in evidence before the learned Judge that each of the four families own land in Egbeda; that they all contributed the land upon which the market was founded; and that the plaintiffs’ claim that it was the Tanimowo family that had been producing all the Baales since the inception of Egbeda had been found not to he correct in that it had been shown that Piposola family had produced a Baale of Egbeda before. The finding of fact cannot also amount to granting to the defendants what they did not claim. It could not and was not a grant made to any party. Rather, it was a finding of fact properly made from the evidence presented before the court.

And finally at page 235, the court below said:

Finally, the question whether the learned trial Judge failed to carry out a proper and dispassionate evaluation of the evidence adduced before him also did not arise. This is because it was quite clear from the evidence placed before the learned trial Judge that the plaintiffs failed to prove the essential ingredients of their claim.

Such vital evidence they failed to establish are those relating to the customary law governing the Baale of Egbeda chieftaincy title, which is the pivot on which the entire plaintiffs’ claim rested. The omission to lead the required evidence is so glaring that it never needed any evaluation of particular witness’s testimonies before making the required finding. Similarly, the evidence in support of the contention that a member of Piposola family had previously been installed as Baale of Egheda was also very glaring from the evidence tendered before the court. There is therefore totally no merit in the allegation that the evidence presented at the trial was not properly evaluated.

It is apparent that the court below affirmed the findings of fact made by the trial court. I am thus in this court confronted with concurrent findings of fact on the crucial aspects of the case made by the parties. It has been the practice of this court and there is a long line of authorities in support of it, that unless there are special circumstances shown, this court will not disturb the concurrent findings of fact made by the court of trial and the Court of Appeal.

See Chinwendu v. Mbamali (1980) 3-4 SC 31 at 75: Lamed v. Orbih (1980) 5-7 SC. 28; Ukpe Ibodo v. Enarofia & Ors. (1980) 5-7 SC. 42 and Enang v. Adu (1981) 11-12 SC 25. It has not been shown that there was a violation of some principle of law or procedure such that if the violation is corrected the findings complained of would not stand. The case of the plaintiffs before the two courts below has comprehensively failed on the evidence called by the parties. This court does not possess the power to award to the plaintiffs a victory which the evidence called does not justify.

In the final conclusion, this appeal fails. It is dismissed. I award to each set of defendants against the plaintiffs/appellants N 10,000.00 costs.

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SC.412/2001