Alhaji Ganiyu Amokomowo V. Alhaji Imam Gafaru Andu (1985)

LawGlobal-Hub Lead Judgment Report

L. UWAIS, J.S.C. 

In an action brought in Lagos State High Court, Ikeja, by the respondent, as plaintiff, against the appellant, as defendant the following reliefs were sought by the plaintiff:

A declaration that the plaintiff, Alhaji Chief Imam Gafari Andu is the duty appointed Chief Imam of the Central Mosque, Ikorodu.

2. A declaration that the defendant, Alhaji Ganiyu Sanni Amokomowo is not the duly elected Chief Imam of the Central Mosque, Ikorodu.
3. An injunction restraining the defendant, his servants or agents or any person or persons from holding out the defendant as the Chief Imam of the Central Mosque, Ikorodu.

Pleading were settled, and later amended. In his amended statement of claim the plaintiff made the following averments in paragraphs 2a, 2b, 2c, 3, 5, 6 and 9-

“2a. The plaintiff avers that before his appointment as the Chief Imam of Ikorodu Central Mosque and his turbanning on the 7th December, 1976, he was one of the Imam Ratibis officiating at Ikorodu Central Mosque.

2b. The plaintiff avers that the Moslem Chiefs and the Imam Ratibis of the Central Mosque Ikorodu held a meeting and decided to appoint the plaintiff as the next Chief Imam of the Central Mosque. The plaintiff will rely at the trial of this action on a letter dated the 12th day of October, 1976

2c. That after the meeting referred to above the decision of the meeting was communicated to the Oba and Chiefs of Ikorodu.”

“3. That following the death of the Late Chief Imam of the Central Mosque, Ikorodu, the plaintiff was installed as the Chief Imam of the Central Mosque by 11 (eleven) Moslem Chiefs and 9 Ratibis of Ikorodu and turbarned by Alhaji Rafi Alubarikaloju at Obun Ale on the 7th day of December, 1976. The plaintiff would rely on the photographs taken at the ceremony at the trial.”

“5. Since the said installation referred to in paragraph 3 above the plaintiff has been performing the duties of the Chief Imam of the Central Mosque, Ikorodu. The plaintiff would rely on the following documents – letters dated 14th September, 1978 and 13th June, 1978.

6. That the plaintiff at the trial of this action will rely on the fact that under Moslem Law and Practice, the installation and turbanning of the Chief Imam of a Central Mosque is done by the Moslem Chiefs and Ratibi Imams of the town and not by any Moslem leader or the Oba and his traditional Chiefs, and also prove at the trial that it is the convention of the Ikorodu Central Mosque that the appointment and installation (of) the Chief Imam is usually performed by the Muslim Chiefs and Imam Ratibis and Alfas of the Mosque.”
7. The plaintiff will contend at the trial that the approval of the defendant as Chief Imam of Ikorodu by the Ayangburen (of Ikorodu) is contrary to rules of Moslem Law and the Convention of the Ikorodu Central Mosque.”

In a lengthy amended statement of defence which contains 74 paragraphs, the defendant denied inler alia all the averments in the plaintiffs statement of claim quoted above and at the same time pleaded his case, which. in my view, appears to be presented especially in paragraphs 8,12 to 15, 23, 24 and 34 of the amended statement of defence. They read thus:

“8. With further reference to paragraphs 2b. 2c. 2d and 2e of the Amended Statement of Claim the defendant avers that neither the Moslem Chiefs and Imam Ratibis of the Ikorodu Central Mosque as such nor the alleged Royal Peace Committee appointed by the Oba of Ikorodu have the power to appoint a Chief Imam for the Central Mosque Ikorodu, but contends that the prerogative of appointing a Chief Imam for the Mosque according to the custom and practice of the Central Mosque rests exclusively on the principal officers of the Central Mosque, namely: (1) Balogun Adini (2) Saba Adini (3) Olori Alufa (or Olori Kewu or Olori Omo Kewu) (4) Asiwaju Adini and (5) Noibi Adini,”

“12. The defendant therefore contends that the purported appointment of the plaintiff as Chief Imam as pleaded in paragraphs 2a, 2b, 2c, 2c and 3 was null and void and inconsistent with the custom and practice of the Ikorodu Moslem Community and of the Ikorodu Central Mosque itself.

13. With further reference to paragraph 3 of the Amended Statement of Claim the defendant says that the 11 Moslem Chiefs and 9 Imam Ratibis of Ikorodu have no right to install the plaintiff and that Alhaji Aluharikaloju has no right to turban any Chief Imam.
14. With further reference to the said paragraphs 3 the defendant says that the Ikorodu Central Mosque Chiefs have no official function to perform with the Imam Ratibis in the government or administration of the affairs of the said Central Mosque but may only meet on purely social functions like naming ceremony, funeral obsequies and joint worship like the Eid Fitr festivals or Friday Jumat Service.
15. The defendant further says that the Imam Ratibis and their assistant officers are responsible for the government and administration of their own individual Area Mosque of which there are fourteen in Ikorodu township and which only go to Central Mosque for Friday Congregational worships.”

“23. With further reference to paragraph 6 of the Amended Statement of Claim the defendant contends as pleaded before that only the principal officers of the Central Mosque Ikorodu are by convention the sole authority to appoint or elect a Chief Imam for that mosque after seeing that the candidate for that is fit and otherwise qualified morally and educationally, according to the doctrine enshrined in the Holy Quran, the Hadith and other Islamic theological literature as a condition precedent to that appointment or nomination at all. (The defendant will at the trial rely on all these writings).

24. Contrary to paragraph 5 of the Amended Statement of Claim the defendant states that he was and he is still the only Chief Imam of Central Mosque Ikorodu, properly appointed and turbanned, and any other appointment or mode of appointment and turbanning of a Chief Imam is irregular and contrary to the tenents of Islamic religion.”
25. The defendant avers and contends that the plaintiff’s adoption of another person’s child is un-Islamic and this subjects the plaintiff to disability in his aspiration as vying for the office of Imamship in the religion of Islam.”

At the hearing of the case both parties testified and called witnesses to prove the assertions made in the pleadings. In a prolific judgment of some 59 pages, the learned trial judge identified the issues joined by the parties to be two fold, namely:

“(a) The determination of the proper body vested with the power, right and authority to select, appoint and install a Chief Imam for the Ikorodu Central Mosque; and

(b) whether that body had selected, appointed and installed the plaintiff or the defendant as the Chief Imam of the Ikorodu Central Mosque.”

As the appeal before us is on the whole based on questions of fact and mixed law and fact, I consider it necessary to state, albeit briefly, the findings made by the learned trial judge in order that the contentions of the defendant, as appellant, may be better understood. The learned trial judge came to the conclusion that the question of selecting, appointing or installation of an Imam or Chief Imam for any mosque is entirely regulated by Islamic Law and the practice or convention of the mosque concerned. The question is therefore a matter of fact to be proved by the evidence of any person learned in Islamic Law, as an expert, and who is also knowledgeable or conversant with the convention and practice of the mosque.

He therefore accepted the evidence given by the plaintiff and two of his witnesses, that is the 1st and 2nd, which is to the effect that the Chief Imam of the Central Mosque of Ikorodu is selected, appointed and installed by a simple majority of the body known as the ‘Jumat’ of the Central Mosque. The body consists of the Chief Imam (if alive), the 15 Muslim Chiefs and 14 Imam Ratibis of the 14 area mosques in Ikorodu. The learned trial judge further found that the 15 Muslim Chiefs in question consist of (1) Seriki Adini, (2) Are, (3) Baba Adini (4) Otun Baba Adini, (5) Balogun Adini, (6) Otun Balogun Adini, (7) Arowoshadini, (8) Parakoyi, (9) Otun Seriki Adini, (10) Noibi Adini, (11) Alatijehinsin Adini, (12) Alaga Adini (13) Ekerin Adini, (14) Olori Alufa and (15) Ashiwaju Adini. He accepted the testimony of the plaintiff and the evidence adduced by him which established that the Jamat at its meeting of 12th October, 1976, selected and appointed the plaintiff as the Chief Imam of the Central Mosque of Ikorodu, by a majority decision of 10 Muslim Chiefs and 9 Imam Ratibis. And that the plaintiff was turbanned as such on 7th December, 1976 at the Central Mosque. In contrast to the defendant’s case, but in support of the plaintiff’s case, the learned trial judge found that the Oba of Ikorodu was not a member of the body (Jumat) that selects and appoints the Chief Imam of Ikorodu Central Mosque. Nor was the defendant selected and appointed Chief Imam of the Central Mosque by the Jamat. That the defendant’s purported appointment and turbarning that took place on 8th December, 1976 was irregular and therefore of no effect.

Finally, the learned trial judge after concluding that by the adoption of a child the plaintiff did not suffer any disqualification under Muslim Law, or the convention and practice of the Central Mosque, Ikorodu, which could stop him from holding the office of the Chief Imam, granted the declarations and injunction sought by the plaintiff.

Being aggrieved by the decision of the trial court, the defendant appealed against the decision to the Court of Appeal, but no substance was found in any of the grounds of appeal filed before that Court. As a result, the appeal was dismissed. Still not satisfied, the defendant appealed further to this Court on a number of grounds of appeal which eventually became reduced to three. These are as follows:

The learned trial judge having fallen into error in law by accepting the evidence of the Plaintiff even before he had considered any other evidence in the case before him, not even the evidence of the other witnesses for the Plaintiff, contrary to the well laid down principle in Mogaji v. Odofin (1978) 4 Sc. 94, the Court below erred in law in not setting aside the learned trial Judge’s decision on the ground that the judgment showed that that was the learned trial Judge’s style of writing when the decision in Mogaji v. Odofin (supra) does not so decide.

2. The learned Justices of the Court of Appeal erred in law and on the facts when they held that the contradiction in the evidence of the Respondent and of P.W.2 in respect of the most vital issue in the case was not really material and thereby came to a wrong decision in the case.

Particulars of Error

(1) According to the Respondent, all the twenty-nine members of the Jamat were present at a meeting purportedly held on October 12, 1976, whereas according to P.W. 2 only twenty were present. The learned Justices of Appeal said that

“P.W. 2 was emphatic that a meeting was held on 12th October, 1976 attended by twenty members of the Jamat” (pg. 318, lines 15-17) forgetting that the Respondent was also emphatic that “a meeting of all the 29 Imam Ratibis and Jamiyu was held.” See Page 318, lines 15 to 17and Page 67, lines 25-26 of the Record.

(2) The learned Justices of Appeal were clearly in error in speculating as to the reason why there was a conflict in the evidence when none was given by the witnesses themselves when in law. cases are to be decided on the evidence led before the Court.

3. The learned Justices of Appeal erred in law in dismissing the appeal when it was clear that the trial court erred in law and on the facts by accepting the evidence of the Plaintiff and that of his principal witness even before considering the evidence led on behalf of the Defendant contrary to the decisions of the Supreme Court in A.R. Mogaji & Ors. v. Rabiatu Odofin & Anor. (1978) 3 SC. 91 at Page 94, and Vincent Bello v. Magnlls Eweka (1981) 1 SC. 101, at page 119.

Particulars of Error

The learned Justices of Appeal whilst conceding that ”the learned trial Judge, reviewing the evidence of either the Respondent and his witnesses or those (sic) of the Appellant and his witness, expressed the view that he accepted such evidence”, they went on to say that “a careful look at the whole judgment shows that that is due to his style of writing….whereas it is clear that the error is not simply one of the style of writing but of substance, See Page 322, lines 15 to 19 of the Record.”

Arguing ground 2 first, Alhaji Abdul Razaq, one of the learned counsel appearing for the defendant stated, that he relied heavily on the appellant’s brief. He however drew our attention to the inconsistency in the evidence in support of the plaintiffs case in respect of the number of people that were said to have attended the meeting of Jamat on 12th October, 1976, at which the plaintiff was said to have been selected. He submitted that by the contradiction in the evidence, the plaintiff failed to discharge the onus on him to prove the averment in his statement of claim that he was selected by the majority of the Jamat at the meeting.

It is clear from both the particulars of ground 2 and the argument of learned counsel for the appellant that much importance is being attached to the inconsistency in the evidence in support of the plaintiff’s case as to the number of the participants that attended the meeting held on the 12th October, 1976. The plaintiffs testimony in that regard was given in his evidence-in-chief at the trial. It consists of the following:

“I was previously an Imam Ratibi. I was appointed by twenty people and myself. There was a meeting of the Muslim of the Central Mosque. It was a Tuesday. The Muslim Chiefs and the Imam Ratibis were present at the meeting. I also attended but I was asked to leave when the meeting was about to start. Later I was written to about the meeting………when I was to be appointed as Chief Imam some people did not support my candidature. I mean that some of the “29” aforesaid members of the appointing body did not support my candidature, those who did not support my candidature nominated another candidate. When the office of Chief Imam became vacant upon the death of Alhaji Olowuniyo a meeting of all the 29 Imam Ratibis and Jamiyu was held as I stated in my evidence earlier today. As a result of their deliberation at that meeting a letter was written to me. This is the letter which I received (Exhibit B).” (The italics and parenthesis are mine).

On the other hand Chief Sulaiman Okusanya, P.W. 2 said:-

I remember the 12th day of October, 1976. After six months after the death of our Chief Imam, Amodu Olowuniyo, we called a meeting of all the Imam Ratibi’s and the Chief Tamiyu (sic) for the purpose of appointing a new Chief Imam at the meeting we requested the Imam Ratibis and the Imam Jamiyu to arrange for the appointment of a new Chief Imam of the Ikorodu Central Mosque. At the meeting the majority of those persons supported Alhaji Andu being appointed as the Chief Imam, but as some persons were absent at the meeting we decided that a circular be prepared requiring those who support the appointment of Alhaji Andu to sign. Those present on that 12th October, 1976 were to Chiefs (Oloyes) of the Central Mosque, Ikoyi (Jamiyus) and to Imam Ratibis. I see Exhibit B. It is the circular which I referred to earlier by which we called for signatures of those who supported Alhaji Andu to sign. (Italics mine)

It is obvious, from the foregoing, that the evidence of the plaintiff is inherently contradictory on the number of the participants at the meeting that selected him as the Chief Imam. It is not clear from the testimony whether the number was 21 or 29, whichever of these is accepted, as correct, does not correspond with the number given by P.W. 2, which is 20, made up of to Chiefs and to Imam Ratibis. The question then is: what is the significance of the number of person present at the meeting In paragraph 3 of his amended statement of claim (quoted above), the plaintiff averred that he was installed as the Chief Imam of the Central Mosque by 11 Muslim Chiefs and 9 Ratibis (that is including himself).

And in paragraph 2b of the statement of claim (also quoted above) the plaintiff indicated that he was going to rely on Exhibit O. Now, if in view of the inconsistency between the evidence of the plaintiff and P.W.2 the numbers given by both of them are rejected, as canvassed by learned counsel for the defendant, are the averments in paragraphs 2b and P.W. 3 of the amended statement of claim proved Exhibit B, which was tendered by the plaintiff as documentary evidence, reads in part as follows:-

“We the undersigned representing the Central Mosque Chiefs, and Imam Ratibis held a meeting and a decision has (sic) been taken to appoint Alhaji Imam Chief Rafaru Andu as the next Chief Imam of the Central Mosque Ikorodu to succeed our late Chief Imam Olohunyo who dies. (sic) recently.”

The signatures of the members of the Jamat in support of the plaintiffs selection appear on the face of Exhibit B. They consist of 12 Muslim Chiefs and 8 Imam Ratibis. That is one extra chief and one Imam Ratibi short than pleaded by the plaintiff. However the differences notwithstanding, the total number of the Chiefs and the Imam Ratibis remains constantly at 20, as pleaded. Bearing in mind that the standard of proof in a civil case is based on the balance of probabilities or the preponderance of evidence, it seems that the confusion in the plaintiff’s case on the number of the members of the Jamat present at the meeting that elected the plaintiff is immaterial is immaterial.

The burden on the plaintiff was to establish on the balance of probabilities that the majority of the Jamat selected as him as the Chief Imam. In my view the burden was discharged since the contents of Exhibit B collaborate the testimony of P.W. 2 and the signatures thereon conclusively proved that the plaintiff scored 20 votes. It appears to me that once it is proved that the plaintiff obtained 20 votes, it does not matter how many members of the Jamat were at the meeting, whether 29, 21, or 20, because the figure constitutes a majority of each of the three numbers and amounts to a unanimity in the case of the last number – 20. It was neither the contention of the plaintiff nor that of the defendant, on the issues joined in the pleadings, that all the 29 members of the Jamat must participate and vote at the crucial meeting to select a Chief Imam.

It was after making all these evaluations that the learned trial judge considered the case for the defence. While accepting, in part only, the evidence ofthe defendant, the learned trial judge accepted the whole of the testimony of the only witness called by the defence, D.W.1

All the aforementioned was ascribed by the Court of Appeal to the style of the learned trial judge in writing his judgment. Although, I accept that each judge has his own peculiar style of writing judgment, it is clear from the decision of this Court in Mogaji’s case that a trial judge must be careful in his style not to evaluate the plaintiff’s case before reviewing the defendant’s evidence.

A review is, of course, a narration in precise form of the material evidence adduced by each party to a case in support of its pleadings. It is after the review that all the evidence available in the case, that is adduced by both parties to the dispute, get evaluated. In other words all the evidence will then be placed on an “imaginary scale” in order that the trial judge may determine the preponderance of each case. It follows therefore that in the case in hand, the learned trial judge did not follow, as he ought to, the procedure laid down in Mogaji’s case.

However the learned trial judge did not base his decision merely on the evaluation of evidence which he made in the course of reviewing the testimony adduced by the plaintiff. He went further, after reviewing the defence case, to compare and also contrast in detail the evidence in support of the plaintiff’s case with that in support of the defendant’s case. In this regard tbe present case appears to differ from Mogaji’s case for in that case this Court said:-

“It is manifest that the trial judge in the case in hand has also not put the defendant’s case on that imaginary scale and found it wanting in weight.”

Indeed, in the present case it is after due consideration of the cases for the parties, as supported by the evidence called, that the findings which I summarised earlier in this judgment were made by the learned trial judge. In my opinion, therefore, the present case is distinguishable from Mogaji’s case not by the style adopted by the trial judge in writing his judgment, as found by the Court of Appeal, but because he had, after departing from the principle laid down in Mogaji’s case, eventually followed the decision by properly placing the cases for the parties on the imaginary scale and weighing them. In so doing I do not think that any miscarriage of justice had been occasioned. The two grounds on appeal on this point have therefore failed.

In the result the appeal as a whole has no merit and it fails. Consequently, the appeal is dismissed with N300.00 costs to the respondent. The decision of the Court of Appeal, which confirmed that of the Lagos State High Court, Ikeja, together with the orders made therein by the learned trial judge, is hereby upheld.

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SC.41/1984