Alhaji Raimi Funmilayo & Ors V. Alhaji Karimu Folorunso & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Oyo State High Court presided over by A. Adeniran, J, sitting at Ibadan delivered on 29th March, 1995 in which the claims of the Plaintiffs (now Appellants) were dismissed.

The Plaintiffs claimed against the Defendants jointly and severally (now Respondents) in the lower court as follows:-

(a) “Declaration that the 1st Defendant is not entitled to present himself to the 2nd Defendant for appointment as the Mogaji of Jagun Ibagbe Family as he (1st Defendant) is not a member of the family.

(b) Declaration that the 1st plaintiff was lawfully nominated in the meeting held on 11/6/89 as the person to be appointed by the 2nd Defendant as the Mogaji of Jagun-Ibagbe family.

(c) Declaration that the 1st plaintiff is the person entitled to be appointed as the Mogaji of Jagun Ibagbe Family in succession to late Yesufu Opaniyi Ibitokun who was the last Mogaji of the family.

(d) Perpetual Injunction restraining the 2nd Defendant his servants and/or agents from appointing or doing anything towards the appointment of the 1st Defendant as the Mogaji of Jagun-Ibagbe family.

(e) Perpetual Injunction restraining the 1st Defendant from presenting himself for appointment as the Mogaji of Jagun Ibagbe Family.”

The background facts are that the Appellants claimed the 1st Appellant is a member of Jagun-Ibagbe family and is entitled to be nominated and appointed as Mogaji while alleging that the 1st Respondent is a stranger to the family. On the other hand, the 1st Respondent contended that he is a member of Jagun Ibagbe family and he is entitled to be lawfully nominated, elected and appointed as Mogaji of Ibagbe family and that the 1st Appellant and the 1st Respondent are members of Jagun-Ibagbe family but found that the 1st Respondent had been duly nominated and appointed as the Mogaji of the family.

The lower court dismissed the claims of the Appellants in its entirety. The Appellants were dissatisfied with the decision and appealed to this Court. The Appellants formulated four (4) issues for determination of this appeal as follows:

“1. Whether or not the lower court was right to have declined to rely on the findings in Exhibit ‘J’ simply because it was alleged that there was an appeal against its judgment?

2. Is the lower court right in its application of the provisions of Section 149(d) of the Evidence Act or not in this case?
3. Whether or not the lower court was right to have rejected the evidence of nomination of the 1st Appellant because some Appellants did not appear in court to give evidence and that some of those who gave evidence were not members of the family?
4. Whether or not the trial court was right not to have made a finding on the qualification of the Mogajis accepted by both sides as previous Mogajis to enable it determine whether any member of the family or a grandson of Jagun-Ibagbe could become or aspire to be Mogaji?

The Respondents adopted the issues as raised by the Appellants. When this appeal came up for hearing, the learned counsel to the Appellants E. Abiodun Esq. did not appear in court despite service of the hearing Notice on the Appellants. No reason was given for the absence of learned counsel. The Appellants’ brief of argument dated 3/6/02 filed the same day but deemed as properly filed and served on 4/6/02 was deemed as argued.

The learned counsel to the Respondents, J.O.A. Ajakaiye Esq. adopted and relied on his brief of argument dated 17/7/02 filed on 18/7/02 in urging us to dismiss the appeal.

In his first issue the learned counsel to the Appellants E. Abiodun Esq. submitted that the Respondents in the lower court pleaded the judgment in suit No. I/617/84 tendered as Exhibit ‘J’ and at page 62, in paragraph 16 of their amended statement of defence also pleaded that they would rely on judgments in other suits relevant to the proper prosecution of this case. It was the contention of the learned counsel that the trial court examined Exhibit ‘J’ and referred to a finding in it wherein the children of Jagun-Ibagbe were identified as (i) Ojo (ii) Adeniran and (iii) Ibitokun and that the 1st Respondent is also a relation of Jagun Ibagbe and not a grandson. All the same, the learned trial judge declined to rely on same because the judgment was appealed against as informed by the 1st Respondent.