Amodu Latunde & Anor V. Bello Adeniji Delesolu Lajinfin (1989)
LawGlobal-Hub Lead Judgment Report
This case was instituted in 1973 in the Customary Court Grade “A”‘ holden at Ibadan. The respondent herein was the plaintiff while the appellants were the defendants. The plaintiff’s claims against the defendants, as per his amended writ of summons, read thus-
“1. Declaration that the defendants are not members of Delesolu Family or Lajinfin Family of Oje, Ibadan.
- Declaration under native law and custom that the defendants and their descendants are not entitled to be head of Delesolu Family.
- Order that the plaintiff’s descendants have always been and are entitled to be the head of Delesolu Family in accordance with native law and custom.
- Injunction restraining the 2nd defendant from parading himself as the Head of Delesolu Family.”
At the hearing of the case, both parties testified and called witnesses. It emerged from the testimonies of the witnesses that Delesolu, whom the parties claimed to be their ancestor was a warrior.
This was a common ground. However the plaintiff’s case was that Delesolu came to Ibadan from Ogbomoso. He brought with him to Ibadan, his brother called Lajinfin or Olajinfin. As a warrior, Delesolu participated on the side of Ibadan during a war. After the war Oderinlo granted a parcel of land to him. Delesolu who hailed from a town called Oje in Ogbomoso, settled at a place in Ogbomoso called Ijebu.
He built a house on the parcel of land granted to him at Ibadan and also found a market on the land which he called Oje market. Delesolu became the Mogaji of his own children and those of Lajinfin, his brother, who lived with him. Delesolu died when none of his children was alive. Lajinfin was alive and he (Lajinfin) inherited the property of Delesolu together with Delesolu’s wife called Igbayinmike, who was the daughter of Oderinlo. Ighayinka was a mother of two children by Lajinfin. The plaintiff is a son of one of the two children. Lajinfin became the Mogaji of Delesolu’s family at the death of the deceased. Henceforth the descendants of Lajinfin had always been appointed the Mogajis of Delesolu’s family. The defendants and their (defendants’) ancestors were strangers and were not therefore the descendants of either Oelesolu or Lajinfin.
The defendants’ case was that Delesolu came to Ibadan from Abeokuta and being a warrior he was put in charge of certain operations during the war. After the war, Oba Oluyole and Oderinlo granted a parcel of land to him. He named the place “Oje” after his hometown at Abeokuta. Delesolu’s mother was called Yemetu and he gave that name to the stream near Oje. One Oluseimo came to lbadan to join Delesolu. Both Delesolu and Oluseimo had children.
The latter died before the former, and their children were young by the time they both died. The children could not therefore inherit the property and wife of Delesolu. Ojuolape who was a friend to Delesolu was asked to be the beneficiary but he declined. Instead he invited one Lajinfin, who was not related to Delesolu (that is a stranger) to inherit the property and wife of Delesolu. Lajinfin did so. Consequently, Lajinfin became the head of Delesolu’s family and his (Lajinfin’s) descendants continued to be the heads of Delesolu family.
The Customary Court accepted the plaintiff’s case and gave judgment in his favour granting all the claims he made against the defendants. On appeal to the High Court, Ibadan by the defendants, the High Court, Adio, J., confirming the findings of the Customary Court, stated as follows-
“In the first place the complaint of the learned counsel for the appellants (i.e. defendants), in the circumstances of this case, related to style. The statement that the traditional evidence led by one party is more probable than that of the other party could be at the beginning or at the end of the reasons given in support of the statement. While one may prefer one style to the other, the essential or fundamental things are the reasons given by the (Customary) Court in support of the statement that the traditional evidence led by one party is more probable than that of the other party.
On the question whether the traditional histories were tested, the record is the only guide. Various issues were considered and findings were made on them. The lower court considered the issue raised by the inheritance of the wife and the property of Delesolu by Lajinfin and came to the conclusion that Lajinfin inherited the wife and the property of Delesolu because Lajinfin was in fact the brother of Delesolu. It was common ground that Lajinfin originally came from Ogbomoso and that he inherited the wife and the property of Delesolu when Delesolu died.
The respondent (i.e. plaintiff) led evidence, and a witness of the appellants confirmed it, that according to native law and custom when a person dies a junior brother can inherit his wife but a stranger to the family cannot do so. The lower court also considered the question whether Delesolu was or was not survived by children and came to the conclusion that he was not survived by any children (sic). There was also the issue of tribal marks on the cheeks of the parties in respect of which the finding of the lower court was also in favour of the respondent.
The foregoing matters were just some of the essential matters which were material to the traditional history and there was evidence on record to justify the findings of the lower court on them. There was also evidence, which the lower court rightly accepted that after the death of Delesolu and immediately before the present dispute Lajinfin and his descendants were the persons who were at one time or the other selected as the Mogaji of Delesolu family. Further, the respondent led evidence, which was not challenged or uncontradicted that according to native law and custom slaves and strangers are always given accommodation at the entrance of a family’s house or compound. The findings of the lower court that the traditional evidence led by the respondent was more probable was supported by the evidence on record.” (italics mine)
In effect the High Court confirmed
(1) That the success or failure of each of the parties depended on whether the evidence of traditional history led by one is more probable than the evidence led by the other.
(2) That it was not true that Ojuolape inherited the wife of Delesolu because according to native law and custom a stranger could not inherit a wife from a family to which he was not related.
(3) That the family of Delesolu did not become extinct since under the relevant native law and custom a younger brother can inherit the wife of his deceased elder brother.
(4) That Lajinfin was a younger brother of Delesolu and that Lajinfin inherited the wife and property of Delesolu on the death of Delesolu.
(5) That Lajinfin and his descendants were al all material time selected as the Mogaji of Delesolu family.
(6) Thai under the relevant native law and custom slaves and strangers to a family were always given accommodation at the entrance to the family house or compound.
Not satisfied with the decision of the High Court the defendants appealed further to the Court of Appeal complaining inter alia that the claims brought by the plaintiff in the Customary Court were in effect challenging the decision of Olubadan-in-Council in appointing the 2nd defendant as the Mogaji of Delesolu family in accordance with the provisions of section 18 of Chiefs Law, Cap. 19 of the Laws of Western Nigeria, 1959. That the High Court was wrong in holding that on the evidence before the Customary Court there was a difference between the head of Delesolu family and the Mogaji of Delesolu family.
That the High Court was in error when it held that the finding made by the Customary Court, that the defendants, though strangers to Delesolu family, had in fact been assimilated into the Delesolu Family, was obiter having regard to the issues joined by the plaintiff and the defendants as per the evidence adduced by the parties. And that the High Court misdirected itself when it held that the decision of Olubadan-in-Council that a member of the defendants’ family (i.e. 2nd defendant) belonged to Delesolu family could not estop the plaintiff from bringing their claims in the Customary Court. All the complaints were considered and rejected by the Court of Appeal. Hence the present appeal.
Four grounds of appeal have been filed by the defendants and they read as follows, without the particulars –
“1. That learned Justices of the Court of Appeal erred and misdirected themselves in law in dismissing the appeal by holding that Both the trial court and the appellate court adequately considered all the evidence adduced by the parties and that, they came to a right decision when the High Court, Ibadan, which up-holds (sic) the judgment of the court of trial who failed to observe the fundamental procedure in law to weigh the evidence on both sides together before accepting the case for the plaintiff held that the complaint against such substantial point of law, relates to a matter of STYLE.”
- That learned Justices of the Court of Appeal erred and misdirected themselves in law in confirming the decision of the High Court as an appellate court which suo motu declared null and void the approval by the Olubadan as prescribed authority under the law of the appointment of the 2nd appellant (i.e. 2nd defendant) as the Mogaji of Delesolu family.
- The Court of Appeal erred in law in dismissing the appeal against the decision of the High Court, which wrongly upholds (sic) the rejection of the evidence of Sunmonu Alao Oseni in 1/40/59 by the trial President who, as a Customary Court is (sic) not strictly bound by the Evidence Act.”
- The Court of Appeal erred in law in holding that there is no proof that the 2nd appellant was ever appointed the head of Delesolu family, nor is there any proof that he was duly appointed as Mogaji and the issue of estoppel could not properly be said to have arisen.”
Nine issues have been formulated for OUT determination. However on careful examination it is very clear that not all the issues raised relate to the grounds of appeal. This is contrary to the requirement of Order 6 rule 5 of the Supreme Court Rules, 1985 which provides that the brief to be settled by counsel for the appellant “shall contain what are, in the appellant’s view, the issues arising in the appeal.” Any issue for determination which is not hinged to or based on a ground of appeal is irrelevant and therefore incompetent and valueless to the appeal; and will appropriately be ignored by the appellate court before which the appeal is being heard – see Osinupebi v. Saibu (1982) 7 S.C. 104 at p.110; Idika v Erisi (1988) 2 N.W.L.R. (Pt.78) 563 at p.579; Okonkwo v. Okolo (1988) 2 N.W.L.R. (Pt.79) 632 at p.649; Olowosago v Adebanjo (1988) 4 N.W.L.R. (Pt.88) 275 at p.283 and Akilu v. Fawehinmi (No.2) (1989) 2 N.W.L.R. (Pt.102) 122 at p.161.
Now, the issues for determination raised in the appellants’ brief of argument are as follows-
“(1) Whether or not the test laid down in Kojo II v. Bonsie (1957) 1 W.L.R. 1223 was properly understood and correctly complied with and properly applied in this case where there is a conflict in the traditional evidence produced by the parties.
(2) Whether the procedure laid down by the Supreme Court in (198913 NWLR Latunde v. Lajinfin (Uwais, J.S.C.) 185 Mogaji & Ors. v Odofin & 2 Ors. (1978) 4 S.C. 91 when evaluating the evidence of the parties has been applied and correctly followed in this case.
(3) Whether the failure of the lower Courts to consider the admitted evidence of the burial of Lajinfin’s mother in Ojuolape’s compound amounts to a miscarriage of justice and vitiates the judgment which the Court of Appeal affirmed.
(4) Whether the evidence of Sunmonu Alao, the 2nd Appellant’s father, in Suit No. 1/40/59 given at the Ibadan High Court in August, 1961, was rightly excluded by the trial Court and rightly affirmed by the Court of Appeal.
(5) Whether the Court of Appeal was right in upholding the Appellate High Court’s decision invalidating the appointment by the Olubadan of the 2nd Appellant as the Mogaji of Delesolu Compound.
(6) Whether the Court of Appeal was right in affirming the Order of injunction made in this case having regard to the principles of law governing such a remedy.
(7) Whether the trial Customary Court President considered all the relevant evidence and the submissions of the appellants in his judgment and whether the Court of Appeal was right in affirming the said Customary Court President.
(8) Whether the trial Court’s findings to the effect:-
(a) That the defendants and their Family have by ‘long stay’ been assimilated into the Delesolu Family; and
(b) that it is settled law that once a domestic or stranger is admitted into a Family, he becomes a member of that family are an “obiter” as held by the Appellate High Court or “go to no issue” as held by the Court of Appeal.
(9) Whether in the light of the findings above, the Court of Appeal was right in upholding the judgment entered in favour of the Respondent.”
Issues Nos. (6), (7) and (8) are obviously not related to any of the four grounds of appeal filed by the appellants, which I have quoted above. These issues will not be considered in this judgment since grounds of appeal, not filed, cannot be smuggled in the appellant’s brief of argument as issues for determination. It is issues for determination that are derived from grounds of appeal and not the reverse.
It is trite point of law that where there are concurrent findings of fact made by lower courts, this Court has had repeatedly stated that it will not entertain an appeal against such findings unless exceptional circumstances have been shown. In his argument in the appellants’ brief and orally before us, learned counsel for the appellants, while accepting this principle, argued that the finding by the three lower courts that the appellants, by virtue of having their buildings in the frontage of Delesolu’s compound, were strangers or slaves was not based on a proof of the relevant native law and custom of Ibadan and nor could the native law and custom be judicially noticed. He therefore submitted that the concurrent findings had caused miscarriage of justice and offended the provisions of section 58 of the Evidence Act. As such he argued that the findings ought to be reviewed on the authority of Abinabina v Enyimadu, 12 W.A.C.A. 171 at p.173 and Maiwa v Abdu (1986) 1 N.W.L.R. (Pt.17) 437 at p.452. On the same premise, learned counsel for the appellants canvassed that there was no proof of the native law and custom of Ibadan on the inheritance of the wife of a dead person. Consequently, Lajinfin’s living with the wife of Delesolu – Igbayinnike was mere cohabitation which could not amount to inheritance under native law and custom. He submitted relying on Taiwo v Taiwo (1958) 3 F.S.C. 80, (1958) S.C.N.L.R. 244 and Section 14 of the Evidence Act that that finding should be set aside.
By section 1 sub-section 4(c) of the Evidence Act the provisions of the Act do not apply to proceedings in Customary Courts unless there is a specific provision to that effect. The sub-section reads –
“(4) This Act shall apply to all judicial proceedings in or before any court established in the Federation of Nigeria but it shall not apply-
(c) to judicial proceedings in or before a customary court unless the Governor shall by order confer upon any or all customary courts in the State jurisdiction to enforce any or all of the provisions of this Act.”
It is not the appellants’ case that there is an order made by the Governor of Oyo State which extends the application of sections 14 and 58 of the Evidence Act to the Customary Court that heard the present case. It follows, therefore, that learned counsel’s submissions based on the provisions of those sections or cases decided on those sections are irrelevant to this case; and the provisions and the cases cannot be relied upon, as done by the learned counsel for the appellants, to show that the concurrent findings of the lower courts fall under the exception to the rule that this Court will not interfere with such findings.
Again learned counsel for the appellants challenged the findings of the Court of Appeal on the conflicting traditional evidence adduced by the parties; and submitted that the test in Kojo II v Bonsie (1957) 1 W.L.R. 1223 that facts which occurred in recent years as established by evidence ought to have been considered by the lower court but that this was not done.
Learned counsel referred to the provisions of sections 19, 26, 33, 34 and 148 of Evidence Act to support his argument. As already shown the provisions of Evidence Act have no application to this case. Secondly, although the traditional evidence adduced by the parties was conflicting, the evidence was tested by the President of the Customary Court as laid down in Kojo’s case before coming to the conclusion that the plaintiffs traditional history was more probable than the defendants’. Numerous factors such as facial marks, native law and custom on inheritance of wife and property by a younger brother (Lajinfin) were taken into consideration before the trial court accepted the plaintiffs traditional evidence.
Learned counsel for the appellants contended that the lower courts erred in law in failing to find as a fact that since the parties agreed that when Lafinjin’s mother – Ariyike died she was buried in the compound of Ojuolape and not Delesolu’s compound, then she could not be the mother Delesolu as claimed by the plaintiff.
It is true that no finding was made by the lower courts on the significance of burying Lajinfin’s mother in Ojuolape’s house instead of Delesolu’s compound. The reason for the failure of the trial court to make the finding was because no issue appeared to have been joined on the point. Both parties adduced the evidence but none made any use of it. None of the parties also called evidence to establish its significance under the relevant native law and custom.
It was counsel for the defendants that made reference to it in his address at the close of the defence case and urged the trial court to hold that if Lajinfin had established his own compound he could not have buried his mother in the compound of Ojuolape. In the absence of the importance of that fact vis-a-vis the relevant native law and custom, it is not discernible if it would or it indeed derogated from the finding of the trial court that the traditional evidence of the plaintiff was to be preferred. As no issue was joined on the point at the time of the trial, I do not think that the failure of the lower courts to make the finding suggested by the defendants’ counsel had led to miscarriage of justice.
The situation here is distinguishable from those in the cases of Nwadike v Ibekwe (1987) 4 N.W.L.R. (Pt.67) 718 at pp.733 and 735; Adeyemo v Arokopo (1988) 2N.W.L.R. (Pt.79) 703 at pp.717, 719, 720 and 721 and Ajagbe v Akanni (1973) 11 S.C. 47 at p.56 cited by learned Counsel for the defendants. For in those cases issues were joined on the points not considered by the trial courts.
Finally, the defendants complain that the High Court acted in excess of its jurisdiction when it invalidated the appointment of the 2nd defendant as the Mogaji of Delesolu Compound. Learned counsel for the defendants argued that there was no claim before the Customary Court which necessitated the invalidation. Furthermore, there was no ground of appeal before the High Court on the issue nor was the issue raised before the High Court by any of the parties to justify that court to interfere with the appointment of the 2nd defendant as the Mogaji of Delesolu Compound. Learned counsel argued further that the power of the High Court under Section 53(a) of the Customary Courts Law, Cap.31, of the Laws of Western Nigeria, 1959 did not extend to the High Court making an order which the Customary Court could not itself make. He, therefore, submitted that the Court of Appeal was in error to have upheld the decision of the High Court by finding that the decision of Olubadan in that regard was not cognisable in law and was therefore invalid. Learned counsel for the defendants canvassed that the Court of Appeal ought to have held that the High Court was in error when it suo motu raised the issue of the validity or otherwise of the appointment of the 2nd defendant, by the Olubadan, as the Mogaji of Delesolu Compound. He furthermore submitted that by virtue of Section 18 sub-section (4) of the Chiefs Law, Cap.31, and Section 80 sub-section (6) of the erstwhile Constitution of Western Nigeria, 1963, the appointment of the 2nd defendant was final and could not be questioned in any court. Relying on the decisions in the following cases Oghene & Sons Ltd. V Amoruwa (1986) 3N.W.L.R. (Pt.32) 856 at pp.862 and 863; Ogbechie v Onochie (1988) 1 N.W.L.R. (Pt.70) 370 at
p.400; Peenok Investments Ltd. v Hotel Presidential Ltd. (1982) 12 S.C. 1 at p.21 and 97; Ekpere & Ors. v Aforije (1972) 1 All N.L.R. (Part.1) 220 and Onwunalu v Osademe (1971) 1 All N.L.R. 14 at p.17, he submitted further that the order nullifying the appointment of 2nd defendant was incompetent since the Olubadan of Ibadan was the prescribed authority under the Chiefs Law to make the appointment.
In his reply, learned counsel for the plaintiff argued that it was the 2nd defendant who introduced, in his testimony at the trial court, the issue of his (2nd defendant) appointment as Mogaji Delesolu; and counsel for the defendants in the Customary Court addressed the Customary Court on the issue. The trial Court, therefore, referred to the issue in its judgment; and the defendants whilst appealing to the High Court against the decision of the trial court, made the issue a ground of appeal. Similarly, learned counsel for the plaintiff pointed out that the defendants raised the issue also in the Court of Appeal. He, therefore, submitted that neither of the lower courts raised the issue suo motu and urged that the lower courts acted rightly in considering the issue since it was raised by the defendants as ground of appeal.
Now in his evidence before the Customary Court, the 2nd defendant testified as follows –
“I am a pensioner and a member of Customary Court Grade 6 Agodi, Ibadan. I live at E 8/20 Delesolu’s Compound, Oje Market, Ibadan. I know the plaintiff in this case. Delesolu family is a Chieftaincy family in Ibadan. The consequence of this is that any Mogaji of the family must be recognised by the Olubadan. The Olubadan has appointed somebody as the Mogaji of Delesolu family. I am the recognised Mogaji of Delesolu family by the Olubadan and his Advisory Council, the prescribed authority for chieftaincy. There is a letter of approval. The original is with the Local Government Service Board.”
In his address in the Customary Court, counsel for the defendants argued that since 2nd defendant was recognised as Mogaji of Delesolu family by the Olubadan, who was the prescribed authority to do so, no court, he submitted, could set aside the appointment and cited the decision of the Western State Court of Appeal in Iyanda v Ishola (1975) 6 W.S.C.A. 231 at pp.241 and 244.
In its judgment the Customary Court held that the decision in Iyanda’s case (supra) did not oust its jurisdiction; and it went on to give judgment for the plaintiff as follows-
“Finally from the totality of the evidence and considering all authorities cited, I find myself to enter judgment for the plaintiff as per his writ of summons on the four legs of the amended claim filed on the 23rd April, 1975, viz-
(i) Declaration that the defendants are not member (sic) of Delesolu family or Lajinfin family of Oje, Ibadan.
(ii) Declaration under native law and custom that the defendants and their descendants are not entitled to be head of Delesolu family.
(iii) Order that the plaintiffs descendants have always been and are entitled to be the head of Delesolu family in accordance with native law and custom.
(iv) Injunction restraining the 2nd defendant from parading himself as the head of Delesolu, as the traditional evidence of the plaintiff is more probable.”
It is true that the defendants in their appeal to the High Court did not raise the issue of the validity of the appointment of the 2nd defendant as such, but they raised the issue that the plaintiff had no locus standi to challenge the appointment of 2nd defendant as Mogaji of Delesolu family. It was in considering that that the High Court stated thus-
“It is, therefore, not right to argue that the respondent was claiming a right through a family that did not exist or that he had no locus standi. Whether the respondent could succeed on the merits of the case was another matter. From the particulars of claim of and the evidence led by the respondent, his claim was limited to membership or headship of Delesolu family. The appellants could not expand the claim to include something (Mogaji of Oelesolu family) which the respondent did not claim. The appellants themselves led evidence that a stranger could be appointed a Mogaji of a family, which seemed to suggest that even if one of the appellants who was alleged to have been appointed the Mogaji of the family was not a member of the family his appointment would not be rendered invalid for that reason alone. Headship of a family, it follows, is separate and distinct from the office of Mogaji. Therefore, a person who has been selected as the head of his family cannot automatically claim to be the Mogaji of the family without the appropriate authority vested with the power to make such appointment appointing him to that office. Further there was nothing in the record which showed that it was contended that the alleged appointment of one of the appellants as Mogaji was invalid because he was not the head of the family. The respondent did not make the validity or otherwise of the alleged appointment an issue. It was the appellants’ counsel who relied on the appointment for the purpose of submitting that it could not be challenged.”
The High Court went on to conclude its judgment as follows-
“The grounds of appeal, whether original, additional or further grounds of appeal have failed except in relation to the submission that Lajinfin family should not have been included in the declaration granted by the lower court since there was no evidence that the appellants had been parading themselves as members of Lajinfin family.
In the circumstance, the declaration granted by the lower court that: “the defendants are not members of Oelesolu family or Lajinfin family of Oje, Ibadan” is hereby varied by deleting the words “or Lajinfin family” in the second line thereof and for the avoidance of doubt it is hereby ordered that the relevant order should now read:
“Declaration that the defendants are not members of Delesolu family of Oje, Ibadan.”
The foregoing shall be the judgment of the lower court. Save and except in relation to the variation of the order of the lower court stated above, the appeal does not succeed. The judgment of the lower court is confirmed and the appeal is hereby dismissed.”
It is clear from the foregoing that the High Court did not nullify the appointment of the 2nd defendant as complained by learned counsel for the defendants. Similarly, the Court of Appeal made no such finding, for it observed as follows –
“As stated already, the issue as to mogajiship of Delesolu family was not a primary issue before the trial president. At best it was secondary and although some of the witnesses might have loosely used the word ‘head’ and ‘mogaji’ interchangeably on both sides, the evidence is clear on both sides that there must be a head of the family first before that head is recognised as ‘mogaji’…….
A person selected as a head of the family does not automatically become a ‘mogaji’. If there is a dispute or there is a challenge to his selection as Mogaji, that dispute or challenge must be resolved first before his recognition as mogaji.”
And conclusively held-
“Looking at the case as a whole, the main issue was not based on the appointment of the 2nd appellant as Mogaji as already stated, and as the appellants’ counsel submitted, but as to his membership of Delesolu family. ” (Italics mine)
It follows therefore that there is no substance in the complaint of learned counsel to the appellants that the lower courts were in error when they nullified the appointment of the 2nd defendant as Mogaji of Delesolu family. For there was no such nullification by the lower courts.
On the whole, the appeal accordingly fails, and it is hereby dismissed with N500.00 costs to the respondent.
ESO, J.S.C.: I have had a preview of the judgment which has just been read by my learned brother, Uwais, J.S.C. I have nothing to add.
KAWU, J.S.C.: I have had the advantage of reading in draft the lead judgment of my learned brother, Uwais, J.S.C., which has just been delivered. I am in complete agreement with him that this appeal lacks merit and should be dismissed. The appeal is therefore dismissed with N500.00 costs to the respondent.
WALI, J.S.C.: I have read before now the load judgment of my learned brother. Uwais, J.S.C., and I agree with his reasoning and conclusion. And for those same reasons I also dismiss the appeal as lacking in merit, with N500.00 costs to the respondent.
CRAIG, J.S.C.: I have had the advantage of reading in draft the judgment of my learned brother, Uwais, J.S.C., and I agree with his analysis of the facts and the conclusions reached.
For the reasons contained in the lead judgment, I too would dismiss the appeal.
Accordingly, the appeal is hereby dismissed and the judgment of the lower Court is affirmed. I make the same consequential order as is contained in the lead judgment.