Alhaji Saliu Ireyemi Sanni & Ors V. Alhaji Tajudeen Babatunde Hamzat & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A (Delivering the Leading Judgment)

The appeal arose from the decision of the High Court of Justice of Ogun State holding at Sagamu in the Sagamu Judicial Division (the court below) by which it declared the 1st respondent the rightful holder of the post of Chief Imam of Isara-Remo. It also set aside the turbaning of the 1st appellant as the Chief Imam of Isara-Remo for been null, void and of no effect.

The 1st appellant and the 1st respondent had tussled over the post of Chief Imam of Isara-Remo in the court below. The 1st respondent relied on his alleged appointment by the Muslim community as the Chief Imam on 23.8.01, while the 1st appellant relied on his alleged appointment by the Ratibis, leaders of the local mosques’ on 24.8.01.

The court below accepted the respondents’ case and entered judgment declaring the 1st respondent the duly appointed and turbaned Chief Imam of Isara-Remo. The court below also set aside the appointment of the 1st appellant as the chief Imam of Isara-Remo.

The appellants were dissatisfied with the decision of the court below and appealed against it in a notice of appeal which was amended by order of the court on 7.2.08. From the amended notice of appeal with ten (10) grounds of appeal filed on 11.2.08, the appellants predicated their brief of argument prepared by Mr. Adegoke of learned counsel dated 3.3.08 and filed on 4.3.08, but deemed duly filed on 30.6.08, containing three issues for determination as follows –

“(i) whether the trial court was right to have upheld the installation of the 1st Respondent as chief Imam of Isara-Remo when the Respondents have not proved his (the 1st Respondent’s) prior valid appointment (Grounds B, C, D, F, I and J of the Amended Notice of Appeal).

(ii) whether alleged deficiencies in the appointment and/or installation of the 1st Appellant as chief Imam of Isara-Remo is enough ground to validate the appointment and/or installation of the 1st Respondent. (Grounds G and H of the Amended Notice of Appeal).

(iii) whether considering the general circumstances of this case failure of the respondents to seek and obtain the consent and or approval of the Isara Muslim Community and to comply with the provisions of Order 11 Rule 8 of the Ogun State High Court (Civil Procedure) Rule 7987 was not fatal to the respondents’ case (Grounds A and E of the Amended Notice of Appeal).”

The appellants brief argued on the first issue that by the writ of summons dated 18.12.2001 and the amended statement of claim dated 7.3.2005 vis-a-vis paragraphs 3 and 4 of the amended statement of claim, the burden was on the respondents as plaintiffs to prove the 1st respondent’s appointment as the Chief Imam of Isara-Remo followed by proof of his installation on the strength of their case before the declarations sought by them could be granted, which was not discharged by the five witnesses that testified for the respondents.

It was also argued that as the PW1, a photographer from Lagos, merely photographed the turbaning of the 1st respondent, while the PW2, a Christian and the traditional ruler of Isara-Remo, had nothing to do with the appointment of the 1st respondent as the Chief Imam of Isara-Remo, and the PW3, the Baba Adinni of Isara or the head of Muslim Chiefs, testified that the appointors of the 1st respondent were the “Ratibis who are twelve in number” (page 58 of the record) of whom he could not say he was a member nor witnessed the said appointment, while the PW4, a native of Iperu not Isara-Remo, denied knowledge of the appointment/selection of the 1st respondent as Chief Imam of Isara-Remo; the PW5, 1st respondent, testified that the Muslim congregation, the Ratibis and Islamic scholars held a meeting at which he was appointed the Chief Imam of Isara-Remo without stating the date and venue of the meeting, nor calling as witnesses the persons that participated in his emergence as the Chief Imam of Isara-Remo and, having failed to call the Ratibis as witnesses the respondents’ case was not proved and the said failure also amounted to the withholding of evidence under section 149 (d) of the Evidence Act Cap.

112 Laws of the Federation 1990 read with the cases of A.G Kwara State v. Alao (2000) 9 NWLR (pt. 671) 84 at 101, Audu v. Guta (2004) 4 NWLR (pt. 846) 463 at 481-482 at 485 and Ogwuru v. Co-operative Bank of E/N (1994) 8 NWLR (pt. 355) 685 at 700.

The appellants argued on the second issue that only the respondents had a claim before the court below in which they sought for two declaratory reliefs respecting the turbaning of the 1st appellant without asking for any relief affecting the appointment of the 1st appellant as the Chief imam of Isara-Remo, showing the respondents conceded the 1st appellant’s appointment as the Chief Imam of Isara-Remo, consequently the respondents had the burden to prove their entitlement to the declaratory reliefs sought by them by establishing on the strength of their evidence, not on the weakness of the appellants’ case, that 1st respondent was validly appointed by those entitled to make the appointment.

Therefore, the evaluation of the evidence of the appellants in the course of which the court below held that the 1st respondent was the first in time to be installed Chief Imam of Isara-Remo, that the Odemo of Isara (the paramount ruler of Isara) never wrote a congratulatory letter to 1st appellant, that there was no evidence of video coverage of the 1st appellant’s installation as Chief Imam of Isara-Remo, and that there were some inconsistencies in the names of the Ratibis and their Imams in the evidence for the appellants were premature findings having regard to the fact that the respondents as the claimants had the duty to prove their case on their own strength before the need to consider the defence of the appellants as defendants would arise vide Oduyoye v. Lawal (2003) 3 NWLR (pt. 807) 432 at 465, Adeniji v. Onagoruwa (2000) 1 NWLR (pt. 840) 323 at 352-353, Duru v, Nwosu (1989) 4 NWLR (pt. 113) 24 at 52, Omotosho v. B.O.N. Ltd (2006) 9 NWLR (pt. 986) 573 at 591.

The appellants’ brief argued on the third issue that the “Special Resolution” in Exhibit A attached to the counter affidavit of the appellants in opposition to the motion on notice for interlocutory injunction (pages 15-18 of the record) can be resorted to by the Court, though not tendered in evidence as an Exhibit, as forming part of the record of the Court to establish sufficient challenge to the representative capacity the respondents brought the action when their interest shown in Exhibit A is not common with the interest of the majority of the Muslim community in Isara-Remo who are opposed to the 1st respondent’s Chief Imamship, showing the reliefs claimed in the action are not beneficial to all the persons the respondents claimed to represent contrary to Order 11 Rule 8 of the Ogun State High Court (Civil Procedure) Rules 1987 (Rules of the court below) and the cases of Agbaisi v. Ekikorefe (1997) 4 NWLR (pt. 502) 530, Ada v. Uka (?) (1977) 5 FCA 218 at 229, Ogbuanyinya (?) v, Okudo (1979) 3 LRN 318, Fomudoh v. Aboro (1991) 9 NWLR (pt. 214) 210, Shell Dev. Co. Ltd, v, Ezimuo (supra) at 148, Adefulu v. Oyesile (1989) 5 NWLR (pt. 122) 3777, UBN v. Ntuk (2003) 16 NWLR (pt. 845) 183, Ude v. Ojoechem (1991) 2 NWLR (pt. 174) 497, Ifekwe v. Madu (2000) 14 NWLR (pt, 688) 459 at 471 – 472, UBN Plc. v. Ntuk (supra) at 206, Asaboro v. Pan Ocean Oil (Nig,) Ltd, (2006) 4 NWLR (pt. 971) 595 at 519-612, therefore the appeal should be allowed and the decision of the court below set aside.