Isah Onu & Ors V. Ibrahim Idu & Ors (2006) LLJR-SC

Alhaji Lasisi Gbadamosi V. The Governor Of Oyo State & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

OGUNTADE, J.S.C.

The appellants were the plaintiffs at the High Court of Dekina, Kogi State, where as the representatives of Aboko and Oche ruling houses, they issued a writ of summons against the respondents as the defendants claiming the following reliefs:

1. A declaration that the purported nominations, appointment and/or recognitions of the Ist and 2nd defendants as Madaki (Idaka) Ajiyolo and Madaki (Okoyi) Ajiyolo respectively in the said Ajiyolo, Aboko-Oche village/community by the 3rd and 4th defendants is contrary to and a violation of the established Igala traditional (sic) and culture obtainable in the said village/ community as well as a breach of the Kogi State Government’s guidelines on the appointments of village/community heads (Madakis) and is therefore null and void and of no effect whatsoever.
2. A declaration that only qualified members from the two ruling houses of Aboko and Oche lineages are qualified to be nominated and/or appointed as Madakis for the village/community Ajiyolo Aboko-Oche.
3. A perpetual injunction restraining the 1st and 2nd defendants from acting, parading or conducting themselves as Madakis (village/community Heads) Idoko Ajiyolo and Okoyi Ajiyolo respectively in Ajiyolo Aboko-Oche in Dekina Local Government Area of Kogi State.

A perpetual injunction prohibiting or restraining the 3rd, 4th, 5th and 6th defendants either by themselves or servants or agents or by whomsoever from recognizing the 1st and 2nd defendants as Madakis village/community heads) at the said Ajiyolo Aboko-Oche.”

The parties filed and exchanged pleadings. The relevant pleadings are the statement of claim filed on 15/10/97,joint statement of defence of 1st, 2nd and 3rd defendants filed on 10/11/97, reply to the joint statement of defence of the 1st, 2nd and 3rd defendants filed on 3/12/97, joint statement of defence of the 4th, 5th and 6th defendants filed on 9/12/97 and reply to the joint statement of defence of the 4th, 5th and 6th defendants filed on 9/01/98. The case was heard by Tom Yakubu J. The plaintiffs called 9 witnesses. The 1st to 3rd defendants called five witnesses. The 4th to 6th defendants called one. On 1/12/99, the trial Judge in a well-reasoned judgment dismissed the claims of the plaintiffs in their totality.

The plaintiffs were dissatisfied with the judgment of the trial court. They brought an appeal against it before the Court of Appeal, Abuja Division (i.e. the court below.). The court below on 24/7/2001, in a unanimous judgment dismissed the plaintiffs’ appeal. Still dissatisfied, the plaintiffs have come on a final appeal before this court. In their appellants’ brief, the issues for determination in the appeal were identified as the following:

“1. Whether the plaintiffs/appellants had established or led ample material and credible evidence as to their traditional history, which entitled their family exclusively to the Madakiship of Ajiyolo Aboko-Oche otherwise known as Ajiyolo Ofalemu.

2. Whether having regards to the pleadings and evidence adduced in support thereof, the Court of Appeal was right in not interfering with the findings made by the trial court.
3. Is the Madakiship a traditional office
4. Whether the Court of Appeal was right when it held that the trial court rightly rejected the affidavit of late Chief Shaibu Ogbadu.
5. Whether the Court of Appeal was right when it dismissed the appeal of the appellants and confirmed the judgment of the trial court despite finding that the trial court had wrongly invoked s. 149 of the Evidence Act, Cap. 112 Laws of the Federation of Nigeria, 1990.”

The 1st and 2nd defendants in their joint brief formulated five issues of their own. Those issues are however similar to the plaintiffs’ five issues. The 3rd and 4th to 6th defendants filed no briefs. Neither did counsel appear for them. I shall be guided in this judgment by the plaintiffs/appellants’ issues for determination.

Before a consideration of the issues for determination, it is helpful for an appreciation of the issues as discussed to state the background of the dispute leading to this appeal as pleaded by the parties in their diverse pleadings.

The plaintiffs in their statement of claim pleaded the following facts:

“1. That Ajiyolo Aboko-Oche was founded by two brothers namely Aboko and Oche.

2. That Aboko and Oche settled in the Eastern and Western parts respectively of Ajiyolo; and that the present names of the two settlements reflect their origins.
3. That the parents of 1st and 2nd respondents are strangers in Ajiyolo.
4. That under native law and custom of Igala, the Madakis of the village have over the years been appointed exclusively from the lineages of Oche and Aboko alternately; and that the two lineages constitute the only two ruling houses.
5. That all the previous Madakis of the village have been appointed from the male descendants of Oche and Aboko.
6. That contrary to the established native law and Custom of Igala, the 3rd and 4th defendants appointed and recognised the 1st and 2nd defendants as Madaki (Idaka) Ajiyolo and Madaki (Okoyi) Ajiyolo respectively.
7. That there were no places or clans known as Jdaka and Okoyi within Ajiyolo Aboko-Oche village.
8. That the appointment and recognition of the 1st and 2nd defendants as Madakis is contrary to Igala native law and custom as the said 1st and 2nd defendants are not from Ajiyolo.

The 1st, 2nd and 3rd defendants in their joint statement of defence pleaded:

1. The village Ajiyolo had never been known as Ajiyolo Aboko-Oche.
2. The defendants were not strangers in the village as pleaded by the plaintiffs.
3. That the grandparents of the plaintiffs, Aboko and Oche migrated from Ofeijiji in Egume to Okikili in Dekina.
4. That Aboko and Oche did not go to Ajiyolo and so could not have founded the village.
5. That Ajiyolo village was founded by one Eyibo Adehi from Okoyi in Aboche, Biraidu district of Dekina.
6. That the plaintiff’s grandparents migrated through several villages before finally settling at Ajiyolo with the founder of Ajiyolo, Eyibo Adehi.
7. That the village was originally called Ajiyolo but later became known as Ajiyolo Ofalemu to distinguish it from other villages known as Ajiyolo and arising from the fact that oranges abound there.
8. That there were three main clans in Ajiyolo Ofalemu, namely:- (1) Okoyi clan from where the 1st defendant came. (2) Idaka from where the 2nd defendant came and Onuche/Edime from where the plaintiffs came.
9. That each of the three clans was entitled to appoint its own Madaki by communal consensus.

The 4th to 6th defendants in their joint statement of defence pleaded the following:-

1. That they knew of a village called Ajiyolo Ofelemu but did not know or hear of Ajiyolo Abokoche.
2. That the defendants knew the 1st plaintiff as the Madaki of a village under Aboche Gago Area only.
3. That Madakiship was a new innovation by Government to facilitate tax collection in Gago Area and not a traditional title.
4. That Madakis were appointed by communal consensus by the wards or clans where one was required.
5. That the 4th – 6th defendants recognised the 1st plaintiff as a Madaki but that that did not give him a monopoly of the title.
6. That Madakis were not appointed to perform cultural ceremonies but to assist in tax assessment and collection.

It was on the above state of pleadings that the suit was tried. On that state of pleadings issues were clearly joined as to who was the founder of the village. There was also an issue joined as to how many clans there were in Ajiyolo and as to whether appointment to Madakiship was hereditary and confined to the plaintiffs’ Aboko and Oche family alone or whether it was merely a consensual matter as decided by each clan or community.

It is apparent that the foundation of the claim of the plaintiffs was their assertion that their grandparents founded Ajiyolo and that there existed an Igala custom that as such founder, the male descendants of Aboko and Oche were entitled to produce the Madaki alternately in perpetuity.

In this judgment I intend to consider together the 1st and 2nd issues formulated by the plaintiffs. I shall thereafter discuss one after the other the remaining issues 3, 4 and 5.

The appellants’ counsel in his brief has produced extracts from the evidence of PW1, PW2, PW3, PW6, D.W1, D.W3 with a view to show that even some defence witnesses at the trial made admissions which supported the case that all Madakis hailed from the Aboko-Oche family. Counsel relied on Olatunji v. Adisa (1995) 2 NWLR (Pt.376) 167 at 181; Fasikun II v. Oluronke 11 (1999) SC. 16 at 38, (1999) 2 NWLR (Pt.589) 1, Akinola v. Oluwo (1962) 2 NSCC 157 at 160, (1962) 1 SCNLR 352.

It was further submitted by counsel that the evidence called by the plaintiffs clearly established that Ajiyolo Aboko-Oche was first settled upon by Aboko and Oche. It was submitted that where witnesses called by a party contradicted one another, the case of the party calling such witnesses should fail. This was counsel’s reaction to an alleged contradictions in the evidence given by D.W.4 and D.W5 as to who first settled in Ajiyolo. Counsel relied on Eboade v. Atomesin (1997) 5 NWLR (Pt.506) 490 at 507; Anyaduba v. N.R.T.C. Ltd. (1992) 5 NWLR (Pt.243) 535 and Mogaji v. Cadbury (1985) 2 NWLR (Pt.7) 393 at 430. It was further submitted that the evidence given by D.W.l should not be believed as he is a tainted witness: Mbenu v. State (1988) 3 NWLR (Pt.84) 615 at 626; UITHMB. v. Aluko (1996) 3 NWLR (Pt.434) 74 at 86; Udo v. Eshiet (1994) 8

NWLR (Pt.363) 483 at 501 and Ishola v. The State (1978) 9-10 SC.

Plaintiffs/appellants’ counsel argued that the plaintiffs called sufficient evidence to establish the native law and custom that the Aboko-Oche family always produced the Madakis in Ajiyolo Aboko-Oche. It was submitted that “a custom is a particular way of behaviour which because it has long been established among members of a social group or tribe can develop and acquire the force of right.” He argued that custom was a matter of fact to be pleaded and proved by evidence – Adeyeri II v. Atanda (1995) 5 NWLR (Pt.397) 512 at 537 and Giwa v. Erinmilokun (1961) NSCC 157 at 159, (1961) 1 SCNLR 377.

It was submitted that where a trial court has not made a proper use of the opportunity of seeing and hearing witnesses testify or where the finding was not supported by the printed record or where the finding was not the proper conclusion or inference to be drawn, the appellate court would interfere by altering, reversing or setting aside such perverse findings: Ogbuokwelu v. Umeanafunkwa (1994) 4 NWLR (Pt.341) 676; Nnajiofor v. Ukonu (1985) 2 NWLR (Pt.9) 686; Udeze v. Chidebe (1990) 1 NWLR (Pt.l25) 141 at 161; Woluchem v. Gudi (1981) 5 SC. 291 at 296 and Mogaji v. Odojin (1978) 4 SC.91.

The counsel for 1st and 2nd defendants in his brief reproduced, extracts from the evidence given by some of the witnesses who testified in his effort to show that there was no evidential support for the planks around which the plaintiffs’ case was built.

I think, with respect, that appellants’ counsel did not fully advert his mind to the principles guiding an appellate court in its approach to the findings of fact made by a trial court. When the findings of fact made by the trial court are followed in addition by the affirmatory findings of the Court of Appeal, counsel carries a big burden in persuading this court to intervene on such concurrent findings of fact.

Now in Okuoja v. Ishola (1982) 7 SC. 147 at 162-163 (Reprint), this court per Nnamani JSC discussing the approach of an appellate court to the findings of fact made by a trial court said: ‘The principles on which a Court of Appeal can interfere have been examined in so many authorities of this court, and the law is so settled, that it has almost become trite.

For a recent examination of these principles. See Chief Victor Woluchem & Ors. v. Chief Simon Gudi & Ors. (1981) 5 SC. 291 at 295 and 326. The basis of it all is that the trial court has the advantage of having seen the witnesses, an advantage which the Court of Appeal does not have limited as it is to the printed evidence. The presumption is that the findings of fact by the trial judge are right and the duty to displace such a presumption falls on the party challenging them. Kojo v. Bonsie (1953) 14 WACA 242, Akesse v. Ababio (1935) 2 WACA 264; Kisiedu & Ors. v. Dompreh & Ors. (1935) 2 WACA 268.

In a criminal case R. v. Ologen 2 WACA 333 it was the view of the West African Court of Appeal that:

‘it is not the function of a Court of Appeal to retry a case on the notes of evidence and to set aside the verdict, if it does not correspond with the conclusions at which the members of the court would have arrived on these notes.’”

See also Otogbolu v. Okeluwa (1981) 6-7 SC. 99 at 105-107. It is also important to bear in mind that where findings of fact made by a trial court are supported by evidence a Court of Appeal will not intervene: See Osayeme v. State (1966) NMLR 388, (1966) 1 SCNLR 254 and Adeyemi v. Bamidele (1968) 1 All NLR 31 at 38.

The trial court in the instant case at pages 161-162 of the record set out the findings of fact, which it made on the evidence thus:

“(1) That Ajiyolo Ofalemu village was first founded by Eyibo Adehi as contended by the 1st to 3rd defendants.

(2) That there are three clans, namely: Aboko-Oche for the plaintiffs; Idaka for the 1st defendant and Okoyi for the 2nd defendant in the said village.

(3) That the Madakiship of Ajiyolo Ofalemu is not a traditional institution nor a chieftaincy; it has no ruling houses nor Kingmakers.

(4) That the status of the Madaki in the said village is not a creation of the Dekina Local Government (4th defendant herein)

(5) That the 4th defendant had no business or power in confirming the appointment of the 1st and 2nd defendants as Madakis of their respective clans.

(6) That the Madakiship of the village is not the exclusive reserve of the plaintiffs’ Aboko-Oche clan or family.”

Further, at page 162 of the record of proceedings, the trial court in its judgment held thus:

“The P.W2 (Ist plaintiff), P.W3, P.W4 and PW9 all being members of the Aboko-Oche clan admitted that neither the 1st defendant nor the 2nd defendant is a Madaki over the Aboko-Oche clan. In the circumstance, I find that the selection and appointment of the 1st defendant as the Madaki of Idaka clan in Ajiyolo Ofalemu was by communal consensus of the said Idaka clan. I so hold.

I also find that the selection and appointment of 2nd defendant as the Madaki or Okoyi clan in Ajiyolo Oralemu was by communal consensus of the said Okoyi clan. I accordingly hold.

I am of the firm opinion that the plaintiffs have not shown by credible evidence in this case that the Madakiship of Ajiyolo Ofalemu, is rooted in the Aboko-Oche family clan exclusively and that the selection and appointment of the 1st and 2nd defendants as Madakis in the said village violated any Igala native law and custom. The plaintiffs have not proved the custom upon which their action is predicated.”

The court below in its judgment at page 333 while commenting on the findings of fact made by the trial court said:

“These are findings of fact made by the trial court based on the evidence adduced before it. It had found that the plaintiffs have not made out its claim, and the appointments of the Madakis by their respective clans is sustainable with or without the approval of the local government. The only conclusion to be arrived at by the trial court is the dismissal of the plaintiffs’ claim. This the court had done, and I see no need to disturb that finding for the trial Judge had properly considered all triable issues raised before him. As I had earlier mentioned a plaintiff succeeds on the strength of his case or on the evidence he adduces before the court. The most important factor in this case is the Igaia traditional customary law that entitles the plaintiffs to the Madakiship of Ajiyolo Aboko-Oche. They had not been able to prove the customary law, nor have they proved that their ancestors were the first settlers in the village, infact the defendants have shown otherwise. They can therefore not be entitled to the declaratory and injunctive reliefs they were seeking from the lower court.

An appellate court is always reluctant to disturb findings of fact made by a trial court unless such findings are perverse or not based as evidence that was before that court. In the instant case the findings of the lower court are based on the evidence before it and the only logical finding based on that evidence is the dismissal of the plaintiffs claim.”

With the affirmation of the findings of fact made by the trial court by the court below, we in this court are confronted with concurrent findings of fact with which we must not interfere except for special reasons shown. In Enang v. Ad (1981) 11- 12 SC. 17 at page 27 (reprint), this Court per Nnamani JSC said on concurrent findings:

“The task of the appellants on this ground of appeal is made more difficult by the fact that there are before us concurrent findings of fact by both the learned trial Chief Judge and the learned Justices of the Court of Appeal. It is settled law that such concurrent findings, where there is sufficient evidence to support them, should not be disturbed. Kofi v. Kofi 1 WACA 284. This rule of practice can only be obviated if there is some miscarriage of justice and violation of some principle of law or procedure. The Privy Council in The Stool of Abinabina v. Chief Kojo Enyimadu (1953) 12 WACA 171 at 173 quoted with approval, a definition of the miscarriage of justice necessary for such a purpose previously given by Lord Thankerton in Scrimati Bibhabati Devi v. Kumar Ramendre Narayan Roy 62 TLR 549.

This is that:

‘The violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition be corrected the findings cannot stand; or it may be the neglect of some principle of law or procedure, whose application will have the same effect.’

There is no such violation of any proposition of law or any principle of procedure in the instant case. This ground of appeal must also fail.”

The plaintiffs have not shown before us that there has been a violation of law or procedure of such a proportion or magnitude such as the violation or error if corrected will result in the findings becoming unsustainable or that there will be miscarriage of justice, It seems to me, that from the drift of the arguments of plaintiffs’ counsel, that learned senior counsel did not fully appreciate the potency of some of the findings of fact made or their devastating effect on the case made by the plaintiffs. For an instance, the finding that Eyibo Adehi and not Aboko and Oche founded Ajiyolo Ofalemu was enough to sustain the dismissal of the plaintiffs’ case. Another equally devastating finding to the plaintiffs’ case was the finding that there were three clans in Ajiyolo Ofalemu.

Once there is evidence, even if a weak one upon which the findings could be hinged, the appellate court could not interfere. In his evidence P.W.2 had testified under cross-examination:

“Egume is our ancestral home before our grand parents came to settle at Ajiyolo. I do not know how long ago that the village of Ajiyolo Aboko-Oche was founded. Aboko, the father of Onuche died at Egume. Oche the father of Edime also died at Agume. Neither Aboko nor Oche stepped into Ajiyolo.”

Another remarkable piece of evidence came from P.W.6 when he testified:

“There is no family that is particularly appointed as the Madaki of Ajiyolo Aboko-Oche. The first plaintiff is from the Ajiyolo Aboko-Oche family.”

Viewed against the background of the evidence available, the invitation to us to reverse the concurrent findings of fact made by the two courts below, cannot be accepted.

I now consider issue No.3. Under this issue the plaintiffs raised a poser as to whether the Madakiship in issue was a traditional office. The trial court decided that it was not and the court below confirmed this. It seems to me however that this issue is now purely hypothetical or academic as whichever answer is given to this issue will not affect the conclusion that the case was rightly dismissed.

The 4th issue raises the question whether the affidavit sworn to by late Chief Shaibu Ogbadu was rightly received in evidence. The plaintiffs had first brought their case by originating summons. At that time, one Chief Shaibu Ogbadu had sworn an affidavit in support of the plaintiffs’ suit. The plaintiff later filed a suit by writ of summons necessitating the filing of pleadings. Meanwhile, Chief Shaibu Ogbadu had died. In the course of hearing on 28/05/98, the plaintiffs attempted to tender through P.W.S the affidavit deposed to by Chief Shaibu Ogbadu. The trial court refused the affidavit in evidence. Before the court below, the plaintiffs raised the issue in their appeal. The court below in reacting to the issue said at pages 331-332:

“The facts of this case has shown that the affidavit evidence in issue was deposed to on 16 of October 1992 and the case was first initiated before the trial court on 8th January 1993. That affidavit was used in the first case between the parties. In the second case when the case was to be heard de-novo on pleadings as ordered by this court, Chief Shaibu Ogbadu was then deceased and the plaintiffs sought to tender a certified true copy of the deposition through a registrar before whom the deposition was made. An objection to its admissibility was raised which was upheld by the trial court.

Similarly the second document which was used in the first case was rejected when it was sought to be tendered. On the affidavit I am firmly of the view that proviso (b) to S.34(1) of the Evidence Act ‘that the adverse party to the first proceeding had the right and opportunity to cross-examine’ – will very much go against the admissibility of the document particularly if it is taken in light of the circumstances of this case. Similarly the trial court was right to have held that the affidavit was sworn to in anticipation of the case and that the two parts of S.91(3) are to be read differently. Where a document or a deposition is found to be made in anticipation of a case yet to be initiated it becomes inadmissible. The 2nd document was tendered twice before the trial court it was rejected on 29th May, 1998 and then sought to be tendered again through another witness in the course of the proceedings the trial court was therefore right to have held.”

Section 34(1) of the Evidence Act provides:

“34(1) Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable:

Provided –

(a) that the proceeding was between the same parties or their representatives in interest:

(b) that the adverse party in the first proceeding had the right and opportunity to cross-examine, and

(c) that the questions in issue were substantially the same in the first as in the second proceeding.”

The language of section 34(1) of the Evidence Act above is plain and simple to understand. Although, Chief Shaibu Ogbadu had deposed to the affidavit evidence in the earlier suit commenced by originating summons. The affidavit which he deposed to would be inadmissible in a subsequent case unless the conditions in the proviso to section 34(1) are satisfied. It is beyond argument that Chief Shaibu Ogbadu could not have been cross-examined under a suit commenced by originating summons unless the trial Judge in the event of a conflict on the affidavit evidence orders that parties or their witnesses give oral evidence. That was not the case here and so Chief Shaubu Ogbadu was not and could not have been cross-examined. The consequence in my humble view is that his deposition in an affidavit even if in a judicial proceeding could not be received in evidence. It is my view that the two courts below were right to reject the affidavit deposition by Chief Shaibu Ogbadu in evidence.

Lastly is the 5th issue. The trial court had in its judgment at page 151 said:

“Perhaps, if the 2nd, 3rd and 7th plaintiffs had testified in this matter, the story of the plaintiffs regarding the founding and naming of the village would have impressed me, more particularly the 3rd, and 7th plaintiffs who were said to have introduced the sweet orange seedlings and plants into the village and which allegedly gave momentum to the nicknaming or the village as Ajiyolo Ofalemu. The 2nd, 3rd and 7th plaintiffs were not reported to have died during the pendency of their action, in this court. I think this is an appropriate situation to invoke Section 149(d) of the Evidence Act, 1990, against the plaintiffs. And I so hold.”

The court below in its judgment at page 330 of the record was of the view that the trial court was wrong in its approach. The court below said:

“There is however no law which compels a plaintiff in a representative action to attend court to testify – See Kehinde v. Ogunbunmi (1967) 149 NLR 306 particularly so in a civil action where a party wins or falls on the strength of his case. He may choose to adduce evidence in support of his pleadings or he may choose not to do so in which case he looses. In the instant case, the plaintiffs had adduced evidence which they felt would support their claim and they have stated before the court that the 2nd, 3rd and 6th plaintiffs could not testify because of their age and ill health. The trial Judge was therefore wrong to have invoked the provisions of S.149(d) of the Evidence Act against the plaintiffs.”

It is necessary here to say that the trial court made the offending remark relative to the evidence of D.W.1, a 95-year-old man, who claimed to be a member of plaintiffs’ family. He testified that he had personally participated in the movement of the plaintiffs’ family from Ajiyolo Aji Odekpe Omeje to Ajiyolo Ofalemu and that on arrival at Ajiyolo Ofalemu, they met a person called Eyibo Adehi. It is the plaintiffs’ argument that the court below ought not have affirmed the trial court’s findings in view of the improper reliance placed by the trial court on Section 149 of the Evidence Act. Perhaps, a case would have arisen for the reconsideration of the findings of fact by the trial court, if the findings were hinged alone on the evidence of D.W.1. It seems to me that the implication of the improper reference by the trial court to Section 149(d) of the Evidence Act is simply that there was no evidence from the plaintiffs’ side, which could displace the evidence of D.W.1. As I observed earlier, P.W.2 called by the plaintiffs had in fact testified that both Aboko and Oche died at Egume and that neither stepped on Ajiyolo Ofalemu soil. There was therefore ample evidence on record to support the findings of fact made by the trial court. There was no necessity for the court below to interfere with those findings in consequence of the court below’s inability to agree with the trial court on its erroneous reliance on Section 149(d) of the Evidence Act.

On the whole, I am satisfied that this appeal has no merit. It is dismissed with N10,000.00 costs in favour of the defendants/respondents.

SC.373/2001