Chief Joseph Taiwo & Ors. V. Mr. Nicholas Ogundele & Ors. (2012)
LAWGLOBAL HUB Lead Judgment Report
S. MUNTAKA-COOMASSIE, J.S.C.
This is a chieftaincy tussle. The Appellants herein were plaintiffs in the High court of Justice Ikirun in Osun State.
The plaintiffs prayed for the following reliefs in their amended statement of claim paragraph 33 thereof:-
- Whereof the plaintiffs claim against the defendants jointly and severally as follows:-
i) A Declaration that the Odofin family of the Oke-Iroko’s compound Ijabe, is the only family entitled to the Odofin of Ijabe Chieftaincy title.
ii) A Declaration that members of the 1st – 4th defendants family i.e Ajala family of Ajala’s compound, Ijabe are not members of Odofin of Ile-Oke Iroko family and are therefore not entitled to the Odofin of Ijabe Chieftaincy title.
iii) An Order that the 1st – 4th defendants’ family should remove the sign post bearing the inscriptions of “Odofin Obafemi Compound” erected in their Ajala family compound in Ijabe from their compound.
iv) An Order that all members of the 1st – 4th defendants Ajala family should erase the words “Odofin Obafemi Compound” inscribed on the walls of their houses.
v) Injunction restraining the 1st – 4th defendants’ Ajala family from claiming or parading themselves as entitled to Odofin chieftaincy family”.
The appellants in order to prove their claims called five witnesses who testified that their progenitor by name Oke-Iroko was a warrior who settled at Ijabe town from Agbonde in present day Kwara state. The Onijabe gave him the title of Odofin of Ijabe and that he was so installed at Ikirun before they returned to Ijabe after the war.
Oke was said to be the first Odofin and he was succeeded by the following descendants of his in unbroken succession to the stool of Odofin of Ijabe namely;
(i) Olatoyan
(ii) Omilowo
(iii) Omiwole
(iv) Fajenyo and
(v) Lawal
It was stated that after the demise of Lawal in 1962, the appellants’ family nominated one Yekini, a member of their family to ascend the Odofin stool after some dis-agreement between the appellants’ family they refused to submit another name to Onijabe. The latter then approached the family of the respondents, the Ajala family of Ijabe, to select a candidate for the Odofin stool. The latter was not accepted. That caused the pending impasse which persisted until about 1977 when the 1st Appellant was installed as the Odofin by Oba Sunmonu Oyewale.
On the other hand, the respondents stated that Odetola was their Owu ancestor who was a great hunter and warrior, he was made, according to them, the first Odofin by Oba Areoye of Ijabe after Jalumi was killed in Ikirun. It was also their case that pre-mature death in their homestead made it impossible for them to produce any other Odofin in Ijabe until after the death of Odofin Lawal of the Appellants’ family in 1962. They further stated that Fatoki Aremu was installed as Odofin from their own family in 1963. Also it was the claim of the defendants/respondents that the Odofin stool was rotational among the families of the parties.
The PW3, 4 and 5 gave evidence in favour of the Appellants. The trial court reviewed the evidence of both parties. The evidence of the defendants was well evaluated. At the end of this exercise the trial court found for the plaintiffs. Their family was the first Odofin and that the Odofin stool is exclusively belonging to the family of the plaintiffs. He held that the plaintiff’s family is entitled to reliefs one, two and five.
The defendants were aggrieved by the judgment of the trial court and successfully appealed to the Court of Appeal Ibadan Division.
After what the Court of Appeal Ibadan Division called re-evaluation of the evidence and submissions of the parties and allowed the appeal and the judgment of the trial court overturned and set aside.
The Court of Appeal Ibadan Division unanimously held that after their re-evaluation of the evidence and the submissions of both parties they discovered that the evidence of the plaintiffs appellants herein are full of contradictions and are not reliable. To resolve the conflicts in the appellants evidence it employed the rule in Kojo II v. Bonsie. The judgment of the trial court was regarded as perverse. The trial court decision was therefore reversed and the appeal before it was allowed. On page 107 of the record of proceedings the Court of Appeal hereinafter referred to as lower court has this to say per Ibiyeye JCA on page 107.
“In view of the foregoing appraisal I hold that the findings of facts of the learned trial judge are perverse and not supported by evidence which is overtly set out in the record of appeal. I shall therefore interfere with those findings. See Ude & ors. Vs. Chimbo and ors. Supra at p.5945 …
In sum, there is merit in this appeal and it is allowed. The decision of the learned trial judge is set aside. In essence, members of the Appellants’ family at Ijabe in Odo-Ofin Local Government Area of Osun State are entitled to the Odofin Chieftaincy title”.
The Appellants herein have further appealed to this Court and formulated two issues for determination from the grounds of appeal as follows:-
- Whether having regard to the circumstances of this case, the court below was right to have involved and relied upon the rule in KOJO II vs. BONSIE in tampering with the impeccable decision of the trial court which lea to a miscarriage of justice against the Appellants.
- Whether the lower court was right in tampering with the finding of fact made by the trial court when there were sufficient, credible, co-gent and believable oral and documentary evidence to support the various findings made by the trial court.
The respondents also set down two issues for determination thus:-
i) Whether the court below was right in applying the Rule in KOJO II vs. BONSIE (1957) 1 WLR 1223 and further whether the application of the rule has occasioned mis-carriage of justice in the circumstances of this case.
ii) Whether the learned justices of the Court of Appeal (court below) were right in setting aside the judgment of the learned trial Judge having regard to all the circumstances of this case.I observe that the issues formulated by both parties were similar though couched differently. I shall therefore deal with them equally.
Going through the arguments of the appellants in his brief of argument under issue one, the learned counsel conceded that the trial court stated that the two parties had stated a conflicting story as to who was the first Odofin. There is no where in the decisions of the learned trial Judge expressed any doubt as to which of the conflicting stories to believe.
The lower court per Ibiyeye JCA, on page 97 of the record chose to apply the rule in Kojo II v. Bonsie. The learned counsel contended that in so employing the said rule the lower court (fumbled) mis-applied the rule having regard to the fact and antecedent of this matter. He poised to put the matter straight by referring to the dictum of Lord Denning in that case – In Kojo II v. Bonsie thus:
“Learned Counsel further argued that the rule in the above case does not mean that once there is any conflict the court cannot believe any of the sides. In the normal course of events, two traditional histories would normally conflict. It is only when the trial Judge is un-able to make up his mind as to which side to believe that the rule in Kojo II vs. Bonsie comes into play. Not only that the learned counsel posited and stated that if one of the stories, as told by the parties is riddled with contradicting and unbelievable story, the trial court would be entitled to rely on the cogent and believable story of the other party”.
The learned Senior Counsel for the Appellant submitted to the effect that the rule in Kojo II vs. Bonsie will not be applicable in a situation similar to the present case where the trial court was in a position to believe one side in preference to the other. Sanusi v. Adebiyi (1997) II NWLR (Pt.530) 565/575; was cited. The Supreme Court per Ogundare JSC of blessed memory has this to say;
“I think I agree with the contention of the plaintiffs. The witnesses for the defendants not only contradicted each other on the traditional history relating to the property in dispute, they also contradicted the pleadings of the defendants in a situation such as this, there is no room for the application of the rule in Kojo II v. Bonsie. In Iriri v. Erhurhobara (1991) 2 NWLR (pt.173) 252, 269, this court held that a “Trial Judge is entitled to reject evidence of traditional history which is incredible” See also Ogbuokwelu V. Umeanafunkwa (1994) 4 NWLR (pt.341) 676, 710 D.F where I endorsed what Uwaifo, JCA had said in the case in the Court of Appeal to the effect:
“Where a story is told by a witness which in itself has serious internal conflicts or is based, for instance, apparently on fiction and mysticism beyond the comprehension of the court and therefore incapable of being assigned any probability of truth, then the trial court must of necessity wonder whether the witness’s ancestors in fact told that story and whether the story, if told could possibly be true. Once the internal conflicts in the evidence destroy it or the answers posed above are in the negative and the traditional history breaks down on its own, the question of applying the principle in Kojo II v. Bonsie (supra) will not arise. See Joseph E. Aiknete and Ors v. Eidieoakhena (1980) 3 CA 54. Benin Division.
…But where the traditional history of both parties are merely in conflict, but each is a probable story on its own, then the best way to test which one is more probable is by reference to facts in recent years as established by evidence.
As the traditional evidence for the defendants is ex facie discredited; there is no need for the application of the rule in Kojo II v. Bonsie in the instant case, I therefore, find no substance in defendants’ complaint”.
Learned senior counsel pointed out that the learned trial Judge has not complained that he encountered any difficulty as to which of the conflicting stories to believe, there was no need for the application of Kojo II v. Bosie, as erroneously done by the lower court. That court was not by any legal or factual grounds justified for doing so. The lower court simply cannot temper with the findings of fact of the trial court in their quest to apply the rule in Kojo II V. Bonsie (supra) he urge this court to hold that the Court of Appeal wrongly applied the rule in Kojo II v Bonsie. The 1st issue formulated by the Appellant therefore should be resolved in favour of the appellant.
On issue No. 2 learned senior counsel to the appellant contended that Pw3, Pw4 and Pw5 are neutral witnesses whose evidence favoured the appellants claim vis-a-vis the appellants traditional history.
The witnesses who testified for the respondents are one way or the other related to the Respondents they could not produce independent testimonies unlike the Appellants witnesses. The learned senior counsel for the appellants submitted that the trial court rightly held that the appellants made out their case and granted the reliefs sought by the appellants. He urged this court to resolved the second issue in favour of the Appellant.
Learned senior counsel lamented that the court below held differently. He further contended that the lower court, per Ibiyeye, JCA relied on scattered and un-reliable evidence to hold for the respondent’s traditional history.”
In arguing the 1st issue of the Respondents the learned counsel maintained that this issue relates to propriety or other wise of applying the rule in Kojo II V. Bonsie (supra) to this case, by the court below. Learned counsel pointed out that the court below was right and justified in invoking and applying the rule in Kojo II V. Bonsie in this case. It was submitted that the learned trial Judge held that the two parties “had offered a conflicting story as to who was the first Odofin and How and where the title was conferred on the original bearer”. He further contended that the evidence adduced by the appellants on the above points are conflicting and the Appellants’ witnesses contradicted themselves. He submitted further that the trial court had misdirected itself when it held that the traditional history of the Appellants to the Odofin Chieftaincy title was more probable. Having concluded that the evidence produced by the appellants’ witnesses is full of contradictions and un-consistencies learned counsel then submitted that the lower court was correct to have invoked the rule in Kojo II v. Bonsie.
The case of Awoyale v. Ogunbiyi (1986) 2 NWLR (Pt.24) 626 at 628 was cited. Learned counsel further contended that the trial court only based its decision on the demeanour of the witnesses without testing the evidence against recent happening living memory. Thus the lower court was right in applying the rule in Kojo II v. Bonsie (Supra) it was also the contention of the respondents’ counsel that the issue of who was the first Odofin of Ijaba was not properly resolved by the trial Judge and the lower Court was justified in correcting the glaring error.
Learned counsel relies on the case of NEPA v. OSOSANYA & Ors. (2004) 116 LRCN 3510 at 3514, he then submitted that even if the rule in Kojo II V. Bonsie is not applicable in this case, the act of recent history as to the appointment and installation of late Fatoki Aremu as the Odofin of Ijabe, a candidate from the respondents family by the Onijabe of Ijabe, should count in favour of the respondents.
On the second issue, learned counsel submitted that the power of the Court of Appeal to review and evaluate evidence led at the trial Court has been recognised and upheld both statutory and by over whelming judicial decisions section 16 of the Court of Appeal act cap.75 LFN and Ezeheilo Abisi v. Ekweador (1993) 6 NWLR (Pt. 302) 643 at 648, Adeleke v. Iyanda (2001) 88 LRCN 2162 at 2163. He therefore, posited that the decision of the lower Court was arrived at after a thorough and painstaking review and re-evaluation of the evidence at the trial court and its decision was based on the pieces of evidence so led. He therefore, submitted that the decision of the trial court was perverse when it ignored the facts or evidence placed before it. The following cases were cited.
(1) Registered Trustees of Apostolic Faith Mission Vs James (1981) 3 NWLR (Pt.61) 556/557 and
(2) Tsokwa Motors Nigeria Limited v. UBA Limited (1996) 43 LRCN 1898 at 1899. Learned counsel then urged this court to dismiss the appeal.
I have carefully perused the submissions of the learned counsel to both parties. Since the central point of this appeal deals with whether the lower Court was right in applying the rule in Kojo II Vs Bonsie (Supra) to upturn the decision of the trial court it will be necessary to examine the findings of the trial court Vis-vis the evidence placed before it to determine whether the findings were supported by the evidence.
On the issue of the respondents not producing any Odofin of Ijabe until 1963 inspite of the protests of the appellants the trial court found as follows at page 40 of the Record of proceedings:-
“The story being told that his brother had died before him and nobody from Okedola’s family could then become Odofin and subsequently no elderly one was able to take the chieftaincy for reasons of epidemic diseases which killed them not only looks to me very unconvincing, unimpressive but quite spurious. I believe that after Oke, then came Olatoyan, Omilowo, Oniwole, Fajenyo and Lawani all in succession as Odofin of Ijabe.
This to my mind shows clearly that the plaintiffs has established a dynasty of Odofin chieftaincy over several decades to the exclusion of others before the attempt to break monopoly was made in 1963. This casts doubt as to the validity of the appointment of Fatoki Aremu who I believe has been so arbitrary made the Odofin without any justifiable history support.”
The evidence of Pw1, who gave history as how Oke became the Odofin Ijabe and his successors, he further stated how he resisted the appointment of Fatoki Aremu as Odofin as he was not from the appellants’ family.
Pw2 also gave history of how Oke and his successors have been made Odofin of Ijabe in succession.
The evidence of Pw3, the third in rank to Onijabe of Ijabe also corroborated the evidence of the PWs 1 and 2 and asserted that Fatoki Aremu was never installed as Odofin of Ijabe in accordance with the tradition of Ijabe as Akoko leaves was never placed on his head.
The Pw5, who was the regent of Ijabe confirmed the traditional history as given by the appellants’ witness and confirmed that an attempt to confer the titles of Odofin of Ijabe Fatoki Aremu was withdrawn as he was not from the appellants’ family.
However Dw1 in his evidence told the court that they could not be installed as Odofin until 1963 because the respondents could not produce an elderly person to become Odofin while Dw3 stated that the appellant’s were able to produce Odofin in succession because there was no elder from the defendants family at that time. It was the Dw4 who stated the issue of epidemic and as a result of which they could not produce any elderly person to occupy the position. With due respect, in view of the evidence of the parties highlighted above, can we say that the findings of the trial court was not supported by the evidence placed before it Or that the trial court found it difficult to evaluate same before making its findings. I will consider this point along with the other findings of the trial court anon.
On the issue of who is the rightful family to hold the Odofin title, and the alleged inconsistencies in the evidence of the appellants’ witnesses. The trial court found at pages 43 – 44 of the record and after evaluation of the witnesses evidence as follows:-
“Going through the evidence of the first plaintiff and the fourth and fifth plaintiff witness who as earlier stated are Kingmakers and second and third in rank to the Oba as to the traditional history of the title looks to me more probable. I am inclined, from their demeanours in court to believe their story. I am fortified again in the preference and the finding by the evidence of subsequent events as regards the successive holding of the title by the members of the plaintiffs’ family. I believe that Oke fought the Jalumi war with Oba Areoye and he was subsequently conferred with that title of Odofin for his bravery. I do not believe that the title was ever conferred on anyone before the outbreak of Jalumi war. The conferment of the title appears to me from the evidence to have taken place in Ikirun after the war and the minor discrepancy in the evidence for the plaintiff as regard the place of conferment is not sufficient or fundamental to shake my finding. And a careful reading of the paragraph six of the amended statement of claim does not suggest contrary to the interpretation of the learned counsel for the defendants that it was during the war that the conferment took place thus rendering, according to him the evidence averse to the pleading. That paragraph says and I quote-
“One was a great warrior during his life and during the Jalumi war went to Ikirun with Oba Areoye the then Onijaba where he distinguished himself as a great warrior. From this valour and prowess during the war, the said Onijabe Oba Areoye decided to honour him with a chieftaincy title.
I do not think this pleading admit any ambiguity as to why, where and when Oke was conferred with the title. The evidence that Oke was conferred with the title at Ikirun after the war for his bravery is, in my view, in support of these averment above.”
My lords, I have no doubt that these findings were based on evidence adduced before that court. I have carefully gone through the judgment of the trial court I could not see where it was in difficulty in resolving the issues placed before it.
However, the lower court upturned the judgment of the trial court on the ground that it did not properly evaluate the evidence place before it, and resorted to the rule in Kojo II v. Bonsie and held thus on page 107:-
“In view of the foregoing appraisal I hold that the findings of facts of the learned trial Judge are perverse and not supported by evidence which is overtly set out in the record of appeal. I shall therefore interfere with those findings”.
With tremendous respect to the justices of the lower court, I must state that it is not in all cases where there is evidence of conflicting traditional history before the Court that the rule in Kojo II v. Bonsie will be applicable. Such cases include:-
(i) Where there is a concurrent findings of the two lower courts on a question of fact the rule will not apply – see Onigbede v. Balogun (2002) 6 NWLR (Pt.762) 1 at 17.
(ii) Where there is a fundamental contradiction on the traditional history of a party, the rule will not apply Sanusi v Adebiyi (1997) II NWLR (Pt. 530) 565.
(iii) Where the traditional history is based, for instance, on fiction and mysticism beyond the comprehension of the Court and therefore incapable of being assigned any probability of truth, the rule will not apply. Ogbuokwelu v. Umeana Funkwa (1994) 4 NWLR (Pt.341) 676.
(iv) In a matter of proving customary law or Native law and custom which is required, in law, to be proved by anybody who asserts its existence by credible evidence rather than by speculation, the rule is not applicable GIWA v. ERINMI TOKUN (1961) 1 SCNLR 377, Ozogaba II vs Ekpenga (1962) 1 SCNLR 423 at 426; and Onyejukwe Vs Onyejukwe (1999) 3 NWLR (Pt.596) 483″.
The case in hand falls within the cases, where the rule is not applicable. Thus the rule in Kojo II vs. Bonsie which is based on inference or speculation has no application to this case which requires the Native Law and Custom of Odofin of Ijabe Chieftaincy to be proved strictly by cogent and reliable evidence of not only one witness but should be corroborated by an independent witness. See Olarewaju v. Oyeyemi (2001) 2 NWLR (Pt.696) 229. In the instant case, the plaintiffs did not only give evidence in proof of his case but also called independent witnesses who are high ranking chiefs and kingmakers in Ijabe.
As I earlier clearly noted in this judgment, it is my respectful view that evaluation of the evidence by the trial court was not only properly done, its finding were also supported by the evidence before it. The lower court Division in which the rule in Kojo II v. Bonsie was called in aid was done in error. I therefore resolve the 1st issue in favour of the appellants.
On the second issue, the trust of which is the alleged contradiction in the evidence of the appellants witnesses on the place of the conferment of the Odofin title on Oke. The law is settled that contradictions in the evidence of witnesses may not necessarily be fatal to a case, especially when they are minor; and the judgment of a trial court will not be reversed on appeal merely because there were contradictions in the evidence of witnesses, it must be further shown that the Judge did not advert his or her mind to those contradictions. See Queen v. Ekanen (1960) 5 FSC 14 at 15 – Enahoro v. Queen (1965) 1 All NLR 125 at 149.
As earlier shown in this judgment, the trial court adverted its mind to this contradiction and held that they were not fundamental and that they did not affect the merit of this case particularly, when it has been that the appellants family have been producing Odofin of Ijabe in succession starting from Oke.
My lords, on this point it is my ardent view that the trial court was correct in its holding which the lower court was in error to have upturned the trial court’s decision. In view of this I also resolve the second issue in favour of the appellants.
Finally, I hold that this appeal is pregnant with a lot of merits and is accordingly allowed. The judgment of the lower court delivered on 28th day of April, 2003 is hereby set aside, while the judgment of the trial court delivered on 20th May, 1996 is hereby restored and affirmed. Fifty thousand naira (N50,000.00) costs is awarded to the appellants in this appeal.
SC.142/2004