Achimi Ali V. Amodu Omale Audu (2005)

LawGlobal-Hub Lead Judgment Report

T. MUHAMMAD, J.C.A.

The appellant herein as Plaintiff at the High Court of Justice of Kogi State holden at Ayangba (the lower court) took out a Writ of Summons against the Respondent as defendant. The claims endorsed in the Writ which were affirmed in Paragraph 14 of the Statement of Claim read as follows –

“WHEREOF the Plaintiff claims against the Defendant:

1. A declaration that Ali Achimi the Plaintiff in this matter is the valid, legitimate, recognized and for all purposes, the only person entitled to the office of Imamship at Egume Centrol Mosque which offices he now occupy (sic) to the satisfaction and enjoyment of all dominant Muslims within and outside the Egume Muslim Community.
2. A declaration that the ascension to the office of Imamship by the Plaintiff is in accordance with settle (sic) customs, convention, tradition and relevant rules governing the appointment and selection of person to the vacant stool of Imamship of Egume Central Mosque/Jumat Mosque or Mesalanci Jumat.
3. An order af injection (sic) to restrain abdul Emokoji, Mamodu Yunusa (who called themselves as the Noyabis to the Defendant) from holding out Amodu Omale Audu as the Imam of Egume Central Masque, or parading him as the person occupying and therefore enjoying the prerequisites of the office of Imam of Egume.
4. An order of perpetual injection (sic) to restrain Amodu Omafe Audu as holding himself out or the Imam of Egume, or carry out any of the customary and tradition functions attaching to the cherished (sic) office of Imam as recognized in the practice of Imamship in Islamic faith.
5. An order of court that the plaintiff is eligible, entitled and qualified to be an Imam having regard to the re-requisite (sic) qualification as prescribed in the Islamic Code within Dekina Local Government Council regarding the office of Imamship.”

On being served with the Writ of Summons and the Statement of Claim, the defendant entered conditional appearance and filed his Statement of Defence. He also set up a Counter-Claim to the action. No defence was filed by the Plaintiff to the counter-claim. The Plaintiff testified in his own behalf and called 4 other witnesses, He tendered three exhibits. The defendant on his side, testified in his own behalf and called three witnesses. Addresses by learned counsel for the respective parties were taken by the lower court at the end of which it delivered its judgment, dismissing the main action and granting all the reliefs claimed in the counter-claim.

It is against that judgment the appellant filed his Notice of Appeal containing three grounds of appeal.

In this court, the parties filed and exchanged briefs of argument in compliance with Order 6 Rules 2 and 4 of the Court of Appeal Rules, 2002.

In his amended brief of argument which was deemed filed on 12/5/03, the learned counsel for the appellant distilled the following three issues for our consideration:

1. Whether the learned trial Judge was right in ignoring Exhibit P2 on the ground that it was Interpreted by the Appellant from the Arabic Language to English, the Language of the Court.
2. Whether Exhibit D2 being a public document was admissible in Law.
3. Whether the Appellant proved his claims before the lower court.

Learned counsel for the Respondent, whose amended brief was deemed filed, adopted the issues formulated by the appellant.

Learned counsel for the appellant contended on issue one that when Exhibit P2 was admitted (18/9/97) the learned trial, Judge indicated that the language with which the document was expressed is immaterial. English, he stated, and not Arabic is the Language of the courts in this country and the learned trial judge could have ordered appellant or his counsel or seek the assistance of court Clerks versed in the Arabic Language, to interpret Exhibit P2, It was erroneous for the learned trial Judge to hold that Exhibit P2 lacked evidential value merely because it was not interpreted to him and that occasioned a grave miscarriage of justice against the appellant. He cited and relied on MILITARY GOVERNOR OF IMO STATE & ANR. V. CHIEF B. A. NWAUWA (1997) 2 SCNJ 60 at p.188; OLUMESAN V. OGUNDEPO (1996) 2 SCNJ; 172 at p.188; OGBONI & 2 ORS. V. OJOH & 5 ORS (1996) 6 SCNJ 140 at 156. These cases are cited in support of the court’s attitude nowadays to shift away from narrow technical approach to justice in preference to substantial justice. Learned counsel urged us to answer issue One in the negative.

In his second issue, learned counsel for the appellant submits that Exhibit D2 is a public document by virtue of Section 109 of the Evidence Act. To be admitted in evidence, Exhibit D2 ought to be certified as a true copy as required by Section 111 (i) of the Evidence Act, and as the said Exhibit was not so certified it did not meet the requirement of Section 97(2)(c) of the Act. Learned counsel conceded that Exhibit D2 was admitted without any objection from the learned counsel for the appellant.

He however insisted that Exhibit D2 as a public document is inadmissible in any event with or without objection from the appellant’s counsel. Thus, he argued further, the failure of the appellant’s counsel to object to the admissibility of Exhibit D2 is immaterial. He relied on the case of OSENI & ORS v. DAWODU& ORS (1994) 4 SCNJ 197: ANLOGU V. IWEKA II (1995) 9 SCNJ 1 at p.17. Learned counsel urged this court to expunge Exhibit D2 and answer issue two in the negative.

On issue three, learned counsel for the appellant submits that based on the totality of the evidence adduced at the trial court the case of the appellant preponderates that of the respondent and the learned trial judge was wrong in dismissing the appellant’s claim for extraneous reasons. Exhibit P3 was not pronounced upon by the learned trial Judge. He did not also consider the entire contents of Exhibit P1 which clearly showed that appellant was recognized as the Imam of Egume Central Mosque by the Ata Igala and that was the only dispute mediated by the Ata Igala. It was wrong of the learned trial judge to hold that the Ata Igala only recognized the appellant as the Imam of Aloko Egbe.

Learned counsel for the appellant urged this court to allow the appeal and order a retrial of the suit.

Learned counsel for the respondent submitted on issue No. 1 that the issue of Exhibit P2 (written in Arabic Language) when tendered was that of admission and not weight to be attached to it. The document was original and thereby a primary evidence. It ought to have been rejected as not relevant to the proceedings. He relied on ARIBISALA & ORS. V. OGUNYEMI & 2 ORS (2001) FWL (Pt.31) at 2867 particularly at p.2874 E. The learned trial Judge was right in holding that it has no evidential value.