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Jacob Popoola & Ors. V. Joshua Oyeyemi Adeyemo & Anor. (1992)

LawGlobal-Hub Lead Judgment Report

U. MOHAMMED, J.S.C.

The plaintiffs, who are respondents in this Court commenced proceedings against the defendants now appellants in the Ogbomosho High Court of Oyo State and in their amended writ of summons claimed the following reliefs:-

“(a) Declaration that the defendants are not members of any of the five Ruling Houses of Ajawa and therefore cannot vie for contest and or be appointed as an Alajawa of Ajawa.

(b) Declaration that the chieftaincy declaration made pursuant to section 4(2) of the Chiefs Law 1957 in respect of Alajawa of Ajawa approved on the 15th day of September, 1958 and registered on the 16th day of September, 1958 is null and void and of no effect and is contrary to the custom and practice of Ajawa in so far as it included Olajolu Ruling House as one of the Ruling Houses in Ajawa.

(c) An order of injunction restraining the 3rd and 4th respondents from appointing, approving the appointment of either the 1st and 2nd defendant as Alajawa of Ajawa.

(d) An order to quash any appointment or approval of the 1st and for the 2nd defendant as an Alajawa of Ajawa by either the 3rd and/or 4th defendant.”

The trial ended in all the claims of the plaintiffs being dismissed.

At the trial court, there was no dispute on the facts that there was no chieftaincy declaration for the Alajawa chieftaincy, that the Olajolu Ruling House petitioned to be included in the proposed chieftaincy declaration, that a chieftaincy declaration relating to the Alajawa of Ajawa chieftaincy (Exhibit A) was approved on the 15th day of September, 1958 and registered on the 16th day of September, 1958 providing for five Ruling Houses as Laomo, Olajolu, Ibapala, Olumole and Olawusi. The Declaration was not published until 1976. It was also not in dispute that the appellant/defendant is a direct descendant of Falana and that Oyewole, the mother of Falana was the wife of Olajolu, a prince and son of Winjobi, a previous Alajawa of Ajawa. When Olajolu died, his wife, Oyewole, was inherited by his younger half brother according to native law and custom. Neither Olajolu nor Falana nor any descendant of Falana ever became an Alajawa of Ajawa.

In the High Court the following three main issues were determined:-

(a) Was the Olajolu Ruling House properly included in the Alajawa Chieftaincy Declaration of 1958 The trial court determined this issue in the affirmative.

(b) Was the Alajawa Chieftaincy Declaration of 1958 made without the knowledge or consent of all the Ruling Houses of Ajawa The trial court held that the Declaration was made after due consultation with all the Mogajis of the Ruling Houses, the kingmakers and the Ajawa community at large.

(c) Were the plaintiffs guilty of unreasonable delay in the prosecution of their claim against the defendants having regard to the fact that the declaration was made in 1958 Here again the trial High Court held that the plaintiffs were guilty of unreasonable and inexcusable delay in prosecuting their claim.

Dissatisfied with decision of the trial High Court (Famakinwa, J.), the plaintiffs appealed to the Court of Appeal, Ibadan Division, on

(i) The manner in which the High Court resolved the conflict of the traditional history on the paternity of Falana;

(ii) The weight given to factors relevant to weight and credibility of evidence; and

(iii) The issue of unreasonable delay.

The Court of Appeal allowed the appeal, with Ogundare, J.C.A. (as he then was) dissenting. That Court, among other reasons, held that the trial court did not evaluate the evidence of traditional history properly and that the approach of the trial Judge in resolving the conflict of traditional history, by considering the credibility of the witnesses, was wrong. The court further held that the ground upon which laches was held by the trial court was not strong enough.

The defendant was dissatisfied with the decision of the lower court and has appealed to this Court on the following grounds shorn of their particulars:-

The Court of Appeal erred in law in applying the provisions of section 44 of the Evidence Act to the issue of paternity of one of the parties when the said section 44 limits its application to “where the title or interest in family or communal land is in issue”
The Court erred in law in not giving effect to section 9 of the Chiefs Law of Oyo State Cap.21 which obliged the court to accept the registered Chieftaincy Declaration (Exhibit A) “to be the customary law regulating the selection of a person to be the holder of the Chieftaincy to the exclusion of any other customary usage or rule on the ground that the plaintiffs did not know of its existence.
The Court of Appeal misdirected itself on the fact by reason on non-direction on the issues relevant for the resolution of conflicts in the traditional history relating to the paternity of the Appellant.

In the brief filed on behalf of the appellant, Mr. Chukwurah formulated the following three issues for determination by this Court, namely:-

(i) Whether section 44 of the Evidence Act which restricts its application to where title or interest in family or communal land is in issue is applicable for the determination of the issue of paternity of Falana, the ancestor of the Appellant.

(ii) Whether the Court of Appeal can refuse to give effect to section 9 Chiefs Law of Oyo State, Cap. 21 which obliged the Court to accept the registered Chieftaincy Declaration (Exhibit A) as the customary law regulating the selection of a person to be a holder of the Chieftaincy to the exclusion of any other customary usage on the ground that the plaintiffs were ignorant of it.

(iii) Whether the Court of Appeal directed itself to the issues that are relevant to the resolution of the conflicting traditional history relating to the paternity of the Appellant.”

The brief filed on behalf of the Respondents by Mr. G.O.K. Ajayi, SAN, argued that only the second issue formulated for the appellant is for determination by this Court as issues (i) & (iii) cannot be raised in this Court without leave. The respondents brief went on to argue that issue (i) is being raised for the first time in this Court, that the question for the applicability of section 44, Evidence Act was never raised in the lower courts and that to allow the appellants to raise it for the first time in this Court would amount to allowing them to indirectly raise objection to the admissibility of evidence without specifying the particular piece of evidence that would be affected thereby.

Learned senior counsel went on to cite Ogunade v. Ogunade (1965) NMLR 136 at 139, Akpene v. Barclays Bank, (1977) 1 S.C 47 and Ejiofodomi v. Okonkwo (1982) 11 S.C. 74 on the discretion of this Court whether or not it will permit a new point to be raised on appeal. Ogunade’s case was relied upon for the proposition that such discretion will not be exercised if such would allow a party to raise a new issue not raised or canvassed at the trial.

On issue (iii) learned senior counsel argued that it is an issue of fact or at best of mixed law and fact both of which require the prior leave of court before they can be raised and that since no such leave was obtained by the appellant this Court would not have jurisdiction to hear the appellant on the issue.

On issue (ii) which respondents accept as the only issue for determination, learned SAN both in the brief and in his oral arguments submitted that although the Latin maxim “Ignorantia juris quod quisque scire tenetur non excusat” holds, the Court of Appeal had rightly held that where the law requires that a Declaration be made and registered, same must be published so that persons affected by it may know their position. If the Declaration is not made public, the issue of ignorance of the law (in this case the Declaration) cannot arise and a person cannot be guilty of laches in such a circumstance.

The 3rd Defendant filed five grounds of appeal and formulated four issues in his brief. Those issues appear to be similar to those filed in favour of the first defendant. The issues are:-

(i) Whether section 44 of the Evidence Act is applicable for the determination of the issue of the paternity of Falana, the ancestor of the Appellant.

(ii) Whether the Court of Appeal can refuse to give effect to section 9 of the Chiefs Law of Oyo State, Cap.21 which obliged the court to accept the registered Chieftaincy Declaration (Exhibit A) as the Customary Law regulating the selection of a person to be a holder of the chieftaincy to the exc1usion of any other customary usage.

(iii) Whether the Court of Appeal directed itself to the issues that are relevant to the resolution of the conflicting traditional history relating to the paternity of the Appellant.

(iv) Whether the Court of Appeal rightly found that the respondents were not aware of the Alajawa of Ajawa Chieftaincy Declaration before 1976 and that there was no evidence in support of laches and acquiescence,”

It is clear that the arguments and submissions of both appellants are similar and I propose to deal with them together. The first issue is the one relating to the application of section 44 Evidence Act by the Court of Appeal. It is clear from the evidence led at the trial court that both parties relied on traditional history to establish their respective cases. For instance the 2nd plaintiff on page 55B of the record, stated from paragraph 5 thus:

“The procedure for the appointment of an Alajawa is as follows:

When an Alajawa dies, the people of the town will immediately go to the oldest man of the town to sympathise with him. They will go away and then come back nine days later to ask the oldest man who should be the next Alajawa. The oldest member of the Ruling Houses would then consult with the principal members of the family who would then hand over a candidate to him for presentation to the king-makers. These are Balogun, Logun, Ikolaba, Areago, Jagun, Otun and Bara. This procedure was followed in the appointment of the last Alajawa. (Italics for emphasis)

I do not recognise the 1st and 2nd defendants as members of any of the five ruling houses I have just mentioned. They are only related to the ruling houses on the mother side and it is not possible for someone who is related to the ruling houses on the mother side to become Alajawa. (Italics mine)

The ancestor of the 1st and 2nd defendants was one Falana. He was not an Alajawa. None of the descendants of Falana became an Alajawa………….Ojo Molagbe………was a descendant of Falana He was never an Alajawa ………………. I am now the oldest member out of the five ruling houses in Ajawa.”

The first plaintiff at page 58c of the record also stated thus:

“The first Alajawa of Ajawa was Omoboyede. He was succeeded by Abapa, followed by Olamase. Next came Olaniran, succeeded by Olanipekun, after whom came Omoyigi. The 7th Alajawa was Odubiyi, followed by Ikudogbo, after whom came Ikupoluwun ……………..The last and 22nd Alajawa was Oyetunji Olabode, who died on 25th March, 1979.

The first and second defendants are the descendants of Falana who was the son of Oyewole Olajolu is now dead but without any issue of his own. He was never an Alajawa.

After the death ofOlajolu Olawusi inherited Oyewole………..Falana was never an Alajawa.

See also the evidence of 4 P.W. on page 62 particularly where he said:”

The action has been instituted when we discovered that the Declaration (Exhibit A) contains the name of Olajolu as a ruling house in Ajawa. There has never been Olajolu ruling house in Ajawa and the 1st and 2nd defendants claim to belong to an Olajolu ruling house.

I know one Falana. He was an ancestor of the 1st defendant. He was never an Alajawa. None of the ancestors of the 1st and 2nd defendants ever became an Alajawa.

…………………………..To the best of my knowledge Olajolu was never an Alajawa. He did not have any issue until his death.”

On the part of the defendants, the 1st defendant testified on page 77 an said, among other things as follows:

“The stool of Alajawa is now vacant. I am a candidate for the vacant stool, having been nominated by my family, the Olajolu family. The name of my father is Oloyede. He was the son of Falana, who in turn was(sic) Winjobi who was an Alajawa. Odubiyi was the father of Winjobi. Odubiyi was an Alajawa …………..

The last Alajawa, Oyetunji was from Oloamo ruling house.

The next ruling house to present a candidate is Olajolu ruling house……………..

Omobolade, the 2nd plaintiff is the most senior of the Mogajis of the five ruling houses. It is not the custom that the most senior Mogaji is responsible for handing over the candidate nominated for the stool of Alajawa. That is the responsibility of the Mogaji of the particular ruling house whose turn it is to present a candidate.

The 2nd plaintiff is older than me. But he does not know more about the custom and practices in Ajawa than myself………….”

The 3rd defendant stated at page 84 that:

“According to the native law and custom of Ajawa it is only a relative that can inherit the wife or wives of a deceased member of family.”

Even in the court below, the lead judgment of Nnaemeka-Agu, J.C.A. (as he then was) quite clearly shows that both parties fought their case at the trial court on the basis of traditional history and that the learned trial Judge grounded his decision on it.

Mr. Ajayi, SAN for respondents argued that the question of the applicability of section 44 of the Evidence Act is a totally new issue which this Court ought not to allow without prior leave. Learned Senior Counsel further submitted that to allow the issue to be canvassed, without prior leave would amount to permitting the appellants to indirectly raise objection to the admissibility of evidence without specifying the particular piece of evidence that would be affected thereby.

I am inclined to agree with Mr. Ajayi, SAN that the issue of the inapplicability of section 44 Evidence Act is being taken for the first time in this Court. But then it was the Court of Appeal which suo motu raised it in its judgment. The issue as couched in the briefs raises the possibility for the argument that the appellants need no leave of this Court to raise the issue. The appellants make the point, rather strongly that section 44 is strictly confined to title or interest in communal land and is not applicable to a chieftaincy dispute such as this. The appellants also argued that it was the Court of Appeal that made reference to the section at the judgment stage when it was too late for either party to have a say on it.

As far as I am aware, a strict interpretation of section 44 of the Evidence Act has always been adhered to. i.e. limiting its application to title or interest in communal land. By applying the provision of the said section to a chieftaincy dispute, the Court of Appeal, has perhaps in its quest to develop the law, too liberally interpreted it to apply to chieftaincy dispute.

I must, however point out that the reference to the section by the Court of Appeal was only in passing and its decision was not based solely on this. That Court emphasised and I am in total agreement with its view that both parties relied on traditional history to contest the matter in that court and in the trial court. There is, in the circumstances no basis whatever and it is too late to now turn round and object to the admissibility of that evidence under the guise of the inapplicability of section 44 of the Evidence Act Even if the appellants can validly raise the matter without prior leave of this Court, it would amount to a futile exercise as they are estopped from objecting to the admissibility of the only evidence they presented and relied upon at the trial court.

In these circumstances I am of the firm view that the Court of Appeal did not err by making reference in passing to the provision of section 44 Evidence Act although, as I have pointed out, the section does not apply to chieftaincy disputes.

The third issue as formulated by the appellant is whether the Court of Appeal directed itself to the issues that are relevant to the resolution of the conflicting traditional history relating to the paternity of the appellant and the issue of tribal marks. In other words, was there a conflict in the evidence of traditional history put forward by both parties which was resolved by the trial Judge, by reference to the credibility and can dour of witnesses Or did the learned trial Judge resolve the conflict by reference to facts of recent happenings Or indeed was there no conflict at all and that there was only a dearth of evidence by one side and the trial Judge had no option but to accept the evidence proffered on the issue by the other side

The learned trial Judge observed on page 113 of the record as follows:

“It is perhaps pertinent to mention in this respect that evidence relied upon by both sides on this issue was for most part traditional, It would therefore be helpful to bear in mind the possibility that the witnesses on one side or the other might have been speaking honestly but erroneously as to events which took place several years before their time but as related to them by their forefathers.

Since the witnesses are not speaking of their own personal knowledge whatever conflict that may exist in the two competing histories could not in the circumstances be resolved on the basis of how many witnesses testified on the point i.e., on the basis of the balance of probabilities when the history as related by each side is tested against recent facts as could be gathered from the evidence before the court. As has been rightly observed by Lord Denning, the proper course in the circumstances is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is more probable (see Kojo II v. Kwadzo Bonsie & Anor (1957) WLR 1223 at 1226).

In this connection, one cannot still help to comment on the apparent lack of candour of 2nd plaintiff with regard to his testimony of this issue.” (Italics mine)

There is no doubt that the above passage shows clearly that the learned trial Judge fully appreciated the principle of law laid down in the Kojo’ s case (supra). The question, however, is whether he applied the principle correctly. The Court of Appeal held he did not and I agree because the record shows that immediately after setting out the correct principle of law, he went on to resolve the conflict by not testing it by reference to facts in recent years as established by evidence and seeing which is more probable, but by merely assessing the credibility of the 2nd plaintiff whom he described as “most evasive as to whether Falana was the son of Olajolu.” He rejected the evidence of this witness not by the test laid down in the Kojo’s case but on his assessment of the credibility of the witness. I am of the view that if the learned trial Judge had followed the guide-line in the Kojo’s case, he would, on the evidence, have found for the plaintiffs.

In these circumstances the answer to the 3rd issue as formulated by the defendant is that the Court of Appeal did not misdirect itself on the relevant issues on the paternity of Falana, the forebear of the Appellant.

The second issue for determination as formulated by the defendants relates to the so-called failure of the Court of Appeal to give effect to section 9 of the Chiefs Law of Oyo State, Cap. 21 which obliged the Court to accept, the registered Chieftaincy Declaration (Exhibit A) “to be the customary law regulating the selection of a person to be the holder of the chieftaincy to the exclusion of any other customary usage” on the ground that the plaintiffs did not know of the existence of the Declaration. On page 119 of the record, the learned trial Judge had this to say:

“With regard to the question as to whether the plaintiffs have been guilty of unreasonable delay or laches in asserting whatever rights they thought they had, against the defendants, I must say I find it extremely difficult to believe the story of the 1st plaintiff that his ruling house got to know of the existence of the Ajawa Chieftaincy Declaration in 1976, considering the extensive consultation that was made before the Declaration was made.” (Italics mine)

The 1st plaintiff and his witnesses testified that the ruling houses were not consulted before the Declaration (Exhibit A) was made. The defendants asserted that there was consultation of the ruling houses and the Ajawa community in general. Obviously, the trial Judge, after evaluating the evidence believed, as he was entitled to do, the evidence of the defendants and found there was extensive consultation.

However, the issue was not that of consultation, but that of the Declaration itself. It was possible that even after the so-called extensive consultation, the Declaration might never have been made and the consultation would have come to nothing. The consultation, in this case did however result in the Declaration which did not in fact come into existence until 1976 in a booklet for the information of all concerned. Thus even if the plaintiffs were aware of the consultation way back in 1958, they did not know of the existence of the Declaration until it was made in 1976. They complained in 1977. They can not, in the circumstance be guilty of delay or sleeping on their right. They are not claiming ignorance of a law (The Chiefs Law) but ignorance of a fact (the Declaration) made pursuant to the provision of a Law. This Declaration came into existence only in 1976. I am in full agreement with the Court of Appeal that plaintiffs are not guilty of delay in the prosecution of their claim.

For the above reasons I find no merit in the appeal. I dismiss it and affirm the decision of the Court of Appeal. I award N1,000,00 costs to the plaintiffs/respondents.A. G. KARIBI-WHYTE, J.S.C: I have read the judgment of my learned brother Mohammed, J.S.C. I agree with him that this appeal lacks merit and should be dismissed. I only wish herein to express my own views on aspects of the reasoning in the leading judgment which I wish to amplify.

On the 30th April, 1987, the Court of Appeal, Nnaemeka-Agu, Ibrahim Kolapo Sulu-Gambari, J.J.C.A., Michael Ekundayo Ogundare. J.C.A., (dissenting), delivered its judgment allowing the appeal of the plaintiffs against the judgment of the High Court, Ogbomosho, wherein Ademakinwa, J., dismissed in its entirety the claim of the plaintiffs; against the defendants. This is an appeal against the judgment of the Court of Appeal.

On the 25tb January, 1982, plaintiffs brought an action, which was subsequently amended claiming for themselves and on behalf of the five ruling houses of Ajawa, against the defendants jointly and severally as follows:-

“(1) Declaration that the 1st and 2nd defendants were not members of any of the five Ruling Houses of Ajawa and therefore cannot vie for, contest and or be appointed as an Alajawa of Ajawa in Ogbomosho South Local Government Area.

(2) Declaration that the Chieftaincy Declaration made pursuant to section 4(2) of the Chiefs Law, 1957, in respect of Alajawa of Ajawa on 19th day of May, 1958 and approved on the 15th day of September, 1958 is null and void and is of no effect as it is contrary to the custom and practice of Ajawa people in so far as it includes Olajolu Ruling House as one of the Ruling Houses in Ajawa.

(3) An order of injunction restraining the 4th defendant from appointing or approving the appointment of either the 1st or the 2nd defendant as an Alajawa of Ajawa.

(4) An order to quash any appointment or approval of the 1st or 2nd defendant as an Alajawa of Ajawa by the 4th defendant.”

In dismissing plaintiffs claim in its entirety, the learned trial Judge held that:

(a) That Olajolu Ruling House was properly included in the Chieftaincy Declaration of 1958.

(b) The Declaration was made after due consultations with the Mogaji of the Ruling Houses, the Kingmakers and the Ajawa Community; and

Plaintiffs appealed to the Court of Appeal against (i) the manner in which the conflict in the traditional history as to the paternity of one of the parties was resolved. (ii) the weight given to certain factors relevant to weight and credibility of evidence. (iii) the issue of unreasonable delay and laches.

Allowing the appeal of the appellants, the Court of Appeal, agreed that the trial Court did not evaluate the evidence of the traditional history properly and that its resolution of the conflicting traditional evidence of the history of the parties was wrong. It was also held that the trial Court did not advert to the evidence in support of respondent’s case. It was held that there was no evidence to support the finding of the trial High Court of laches and acquiescence against the plaintiffs/appellants.

Defendants have appealed to this court on three grounds which are as follows:-

“1. The Court of Appeal erred in law in applying the provisions of Section 44 of the Evidence Act to the issue of paternity of one of the parties when the said Section 44 limits its application to: ‘where the title or interest in family or communal land is in issue.’

The Court of Appeal erred in law in not giving effect to Section 9 of the Chiefs Law of Oyo State Cap 21 which obliged the court to accept the registered Chieftaincy declaration (Exhibit A) ‘to be the customary law regulating the selection of a person to be the holder of the chieftaincy to the exclusion of any other customary usage or rule’ on the ground that the plaintiffs did not know of its existence.

PARTICULARS

Ignorantia juris quod quisque scire tenetur non excusat.

The Court of Appeal misdirected itself on the fact by reason of non-direction on the issues relevant for the resolution of the conflicts in the traditional history relating to the paternity of the appellant.

PARTICULARS

The Court did not advert to the undermentioned, (among others) matters:

(i) The issue as to the residence of the ancestor of the appellant;

(ii) The issue as to the tribal marks carried by the appellant (and those on the face of the respondents which bear no relationship to the marks worn by the descendants of Alajawa);

(iii) Appellants membership of the Ajawa Chieftaincy Committee:

(iv) The fact that appellants relations inherited royal widows;

(v) Appellant having previously been allowed to contest for the Oba Alajawa Chieftaincy title:

(vi) The fact that all Alajawas before Ibopola (who succeeded Winjobi) had no Ruling House named after them except Ikupoluwusi:

(vii) The content of the registered declaration (Exhibit A);

(viii) The omission of the issue in contest from the respondent’s petition Exhibit B and its effect on the case.”

The 3rd defendant filed five grounds of appeal. He also formulated four issues in his brief of argument. Similar to the issues formulated by the appellant.

Learned Counsel to the appellants has formulated three issues as arising from the grounds of appeal filed. These are:-

(i) Whether section 44 of the Evidence Act, which restricts its application to where the title or interest in a family or communal land in issue, is applicable for the determination of the issue of paternity of Falana, the ancestor of the appellant.

(ii) Whether the Court of Appeal can refuse to give effect to section 9 Chiefs Law of Oyo State Cap. 21 which obliged the court to accept the registered Chieftaincy Declaration (Exhibit A) as the customary law regulating the selection of a person to be a holder of the Chieftaincy to the exclusion of any other customary usage on the ground that plaintiffs were ignorant of it.

(iii) Whether the Court of Appeal directed itself to the issues that are relevant to the resolution of the conflicting traditional history relating to the paternity of the appellant.

The root cause of the complaint and consequent litigation is the inclusion of the Olajolu Ruling House in the Chieftaincy Declaration of 1958 as among the Five Ruling Houses of Ajawa in Ogbomosho South Local Government area. The crux of the rejection of Olajolu Ruling House is the contention by plaintiff that Olajolu died without issue, and that Falana who claims to be his descendant is not his son. Accordingly, Falana, through whom Olajolu Ruling House claims the right to Alajawa of Ajawa is not entitled to the claim. Herein lies the issue of paternity.

It is however necessary to dispose of the objection of learned Counsel to the respondents to the competence of appellants to argue issues 1 and 3. These issues are based on grounds 1 and 3 of the grounds of appeal filed. I have already reproduced the grounds of appeal in this judgment.

Chief G.O.K. Ajayi, S.A.N. in his submission contended that the question raised in the first issue for determination is new having been raised by the appellants for the first time in this court. The appellants got judgment in the trial court because the learned trial Judge found the traditional evidence in their favour.

In the Court of Appeal, they argued that their own version of the traditional history had not only been rightly accepted, but that the court should uphold it. The question of the applicability of section 44 of the Evidence Act was never an issue between the parties in both lower courts. It was submitted that raising the issue now would amount to allowing appellants indirectly to raise objection to the admissibility of evidence without specifying the particular pieces of evidence which would be affected thereby.

Learned counsel referred to the third issue and submitted that it is an issue of mixed law and fact or facts. Appellant requires prior leave of the Court of Appeal or of this court. Appellant has not sought and obtained leave of the court in respect of the issue. This court therefore has no jurisdiction to hear the issue.

In his oral argument before us, learned Counsel to the appellant in his reply submitted that grounds one and two being grounds of law are competent and that leave of the court was not necessary. Learned Counsel relied on Nwadike v. Ibekwe (1987) 4 N.W.L.R. (Pt. 67) 718 for his submission. It was also submitted that ground 3 raises a question of law in respect of which leave is not required.

The main thrust of the contention of learned Counsel to the appellant is that the Court of Appeal could not rely on the provisions of section 44 of the Evidence Act in the resolution of the conflicting traditional evidence of the parties. It was submitted that section 44 of the Evidence Act should be confined to proof of claims where the title or interest in family or communal land is in issue. This being a claim to a Chieftaincy, not involving title to or interest in family land the section is not applicable, The issue in this case is whether Olajolu Ruling House forms part of the five Ruling Houses recognised by the customary law of Ajawa.

Learned counsel submitted that the Court of Appeal was wrong to have evaluated the evidence of the witnesses after the evaluation of same by the trial Judge. It has no business assessing the credibility of a witness, a matter peculiarly within the province of the trial court. He relied on Nzeka v. Akpapuna (1983) 7 S.C. 1.

It was finally submitted that section 44 cannot be resorted to for the determination of the paternity of the appellant’s family. It was argued that the evidence of the appellant himself on his family and that of a member of Oyewale’s family, should be the best evidence for the purpose of establishing the truth therein. The traditional evidence to be subjected to Kojo II v. Bonsie (1957) 1 W.L.R. 1223 must be such that is plausible or capable of being believed.

I wish to consider this issue before turning to the others. The submission that appellant is not entitled to raise this issue for the first time in this court, except with leave of this court if successful, is critical to the case of the appellant. This is because the issue concerns the resolution of the traditional evidence relating to the claim to the disputed Chieftaincy, and involves the paternity of the claimants themselves.

The law is well settled that a point raised for the first time in this court can only be argued with leave of the court. See Fadiora v. Gbadebo (1978) 3 S.C. 219. This is because this court being an appellate court, with jurisdiction only to correct the errors of the court below on the issue and to know in what respect it can exercise its supervisory jurisdiction to correct any errors of that court. See Purnell v. Great Western Railways (1876) 1 Q.B.D. 636.

However, where the point raised, for the first time in this court arose only from the judgment of the Court of Appeal, the appellant is entitled to argue the point without leave of this court. This is because it could not have been argued in the court below, the point having not been raised at that stage. Chief G.O.K. Ajayi. S.A.N. has objected to the argument on section 44 of the Evidence Act on the ground that it was not raised in the court below, and could not be argued without leave in this court. I do not think that argument is well founded. I think it could be so argued without leave on the principle I have enunciated.The principal question is whether section 44 of the Evidence Act is confined to the admissibility of traditional evidence relating to interest in land, and could not be extended to traditional evidence establishing paternity. Section 44 of the Evidence Act provides as follows:.

“Where the title to or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is relevant.”

It is true section 44 speaks of “where title to or interest in family or communal land is in issue and that the oral evidence of family or communal tradition concerning such title or interest is relevant, it does not necessarily follow that any other oral evidence of family history or tradition where relevant in proof of any other issue before the court will be excluded. There is no doubt this is a common sense rule which constitutes an exception to the hearsay rule. It was developed by the courts to facilitate the admission of evidence which otherwise would be excluded. In Commissioner of Lands v. Kadiri Adagun (1937) 3 W.A.C.A. 206, the West African Court of Appeal observed that,

“……..Literacy among the people of this country does not go back very far, and the oral tradition is generally the only evidence available as to ownership of land earlier than the memory of living witnesses. The weight to be given to traditional evidence is of course another matter, depending on how far it is supported by other evidence of living people of facts within their own knowledge.”

The universal condition of illiteracy which enables admission of oral evidence, which affects title in our courts is not peculiar to ownership of land. It extends to proof of all claims to title which trace their origin in antiquity and could only be proved by oral evidence. Hence it has been suggested and accepted that the best way for the resolution of conflicting traditional evidence on such issues, is to test the traditional history by reference to the facts in recent years as established by evidence. It can then be determined which of the competing histories is the more probable. The claim to Chieftaincy comes within the purview of this rule.

I do not consider it juridically sound to argue, as learned counsel for the appellant has done, that the principle of section 44 of the Evidence Act, cannot be extended to claims other than land. I am of opinion it can be so extended. The underlying principle being the reliance on oral evidence of tradition in the establishment of title, the rationale is the same whether the claim relates to title to land or other title. I agree entirely with the Court of Appeal, when referring to admissibility of oral tradition it was said:

“Although since 1945 its admissibility has by section 44, of the Evidence Act been reduced into statutory form, which appears to limit it to where title to or interest in family or communal land is in issue, it was common ground in this case as well as the basis of the trial Judge’s decision that it is applicable to the instant case in which what is in issue is a Chieftaincy title of Alajawa of Ajawa. Each side relied on the history of the people to support its case.”

It is clear on careful reading and analysis of the judgment of the Court of Appeal that the court was not applying the provisions of section 44 of the Evidence Act to the facts of the case. It applied a general principle relating to the application of oral evidence of traditional history claims of titles rooted in such traditional history, which in section 44 of the Evidence Act has been reduced into statutory form with respect to claims to title to land.

Learned Counsel to the appellant therefore misconceived the reasoning in the judgment of the Court of Appeal on the point.

This misconception of the reasoning in the judgment has led appellant to raise this issue of the inapplicability of the principle in section 44 of the Evidence Act. This is why the submission of Chief G.O.K. Ajayi, S.A.N. that appellants cannot be heard on this issue which is directly opposed to their case in the courts below seems to me unanswerable.

In the trial Court, appellants relied on their traditional history which was accepted by the trial Judge. Again, in the Court of Appeal, their contention was that the judgment of the trial Judge based on the traditional history was right. In neither court did appellant contend that the rule in section 44 of the Evidence Act was inapplicable to the facts of the case. It is now too late for appellants to rely on the inapplicability of that rule even if it was conceded, having relied on the same rule for the evidence in support of their case in both courts below.

I now turn to the issue of the paternity of Falana, and the resolution of the conflicting traditional evidence by the court. There is no doubt that the evidence of the paternity of Falana relied upon by the parties were diametrically opposed and conflicting. The question which confronted the Court of Appeal was how the trial Judge resolved the conflict It is pertinent to quote the learned trial Judge, where at p.113 he said:

“It is perhaps pertinent to mention in this respect that evidence relied upon by both sides on this issue was for most part traditional. It would therefore be helpful to bear in mind the possibility that the witnesses on one side or the other might have been speaking honestly but erroneously as to events which took place several years before their time but as related to them by their forebears.

Since the witnesses are not speaking of their own personal knowledge whatever conflict may exist in the two competing histories could not in the circumstances be resolved on the basis of how many witnesses testified on the point i.e. on the basis of the balance of probabilities when the history as related to each side is tested against recent facts as could be gathered from the evidence before the court. As has been rightly observed by Lord Denning, the proper course in the circumstances is “to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is more probable (See Kojo II v. Kwadzo Bonsie & Anor (1957) 1 W.L.R. 1223 at page 1226.)”

One cannot but appreciate that from the above dictum the learned trial Judge was quite conversant with the principles applicable. Let us now consider his application of the principles. Immediately after the quotation above, at page 113 he stated:

“In this connection, one cannot still help to comment on the apparent lack of candour of 2nd plaintiff with regard to his testimony on this issue.”

The learned trial Judge went on to describe the evidence of 2nd plaintiff as “most evasive as to whether Falana was the son of Olajolu.” He rejected the evidence of 2nd plaintiff on his assessment of his credibility. The Court of Appeal held that the learned trial Judge did not apply the principle correctly. It is clear on the face of the record that rather than testing the competing traditional evidence by reference to facts in recent years as established by evidence and seeing which was more probable, he merely assessed the credibility of the 2nd plaintiff.

I agree entirely with the Court of Appeal, that the trial Judge has not applied the principle correctly. If he had adhered to the principles he had correctly enunciated, he would have found for the plaintiffs. I am therefore of the opinion that the Court of Appeal did not misdirect itself on the issue of the paternity of Falana, the ancestor of the appellants.

Stricto sensu, the third issue which called into question the resolution by the Court of Appeal of conflicting traditional history involves considerations of mixed law and fact. Appellants cannot without the leave of this court argue such grounds of appeal. See S. 213(3) of the Constitution 1979.

Mr. Chukwura for the appellants has submitted that the ground is entirely one of law which did not require leave. I think learned Counsel is wrong on the point. It is not possible to resolve conflicting traditional evidence and arrive at a conclusion based on such evidence without considering disputed facts. The ground 3 certainly consists of mixed law and facts. The second issue relates to whether the Court of Appeal was entitled to refuse to give effect to section 9 of the Chiefs Law of Oyo State Cup. 21.

Section 9 provides that,

“Where a declaration in respect of a recognised Chieftaincy is registered in this part, the matters therein stated ….. shall be deemed to be the customary law regulating the selection of a person to be the holder of that chieftaincy to the exclusion of any other customary usage or rule.”

The ground on which the court below held that the declaration made under Section 9 above could not be binding on the respondent was that:

” ………….. there was no publication of the Declaration. Nor was any step taken to bring it to the notice of those who might have been interested. ”

In considering the effect of the Declaration on the parties to be affected, the Court of Appeal held, at p.209

“Although there was evidence that the Declaration was approved and registered in 1958, it was agreed that there was no publication of the Declaration. Nor was any step taken to bring it to the notice of those who might have been interested. Surprisingly the Declaration was not gazetted. It was agreed that the first publication of it was in 1976 in a booklet Exh. H. in which it was published along with other Chieftaincy Declaration.”

Learned counsel to the appellants has contended before us that it is no excuse that the Declaration was not published and that respondent got to know about it only in 1976, or did not know about it at all, on the maxim ignorantia juris quod quisque scire tenetur non excusat. It was submitted that the Declaration was validly made, and was registered on 16th September, 1957 and became the binding subsisting customary law.

The question is whether registration of the Declaration only without publication is sufficient for giving notice to all affected Learned Counsel to the appellants has taken the view, and relying on the provisions of section 8 of the Chiefs Law that nothing further need be done.

It seems to me that where registration has followed upon compliance with the provisions of sections 4,5,7 and 8 of the Chiefs Law, all those who would be affected would have been apprised by the inquiries conducted that a Declaration of customary law relating to the Chieftaincy was imminent. In this case the Court of Appeal pointed out that although,

“the bulk of the evidence including Exhs, ‘J’ – ’01’ at best show that before the Chieftaincy Declaration was done in 1958 there was a good deal of consultation. There is no evidence really that the appellants or the Ruling Houses they came from were informed of these consultations.”

It is on these considerations and other factors that the Court of Appeal came to the conclusion that the respondents could not be bound by the Declaration relied upon. This view is consistent with Johnson v. Sargant & Sons (1918) 1 K.B.101 where it was held that a statutory order did not take effect until it became known.

In the instant case, although the Declaration was registered on the 16th September, 1957, it was not published in the Gazette until 1976. It was therefore not brought to the notice of those who would be affected. The purpose of publication is to acquaint the public with the law, and to provide an opportunity for criticism. These are the best and surest safeguards against authoritarianism and abuse of power. They constitute an effective insurance against clandestine exercise of arbitrary power.

There is an important aspect of this issue which ought to be highlighted. The procedure antecedent to the making of a Declaration under the Chiefs Law is prescribed in sections 5, 6, 7 and 8 of that law. It prescribes for extensive consultation among the Chieftaincy Ruling Houses likely to be affected.

The 1st plaintiff and his witnesses gave evidence that their Ruling Houses were not consulted before the Declaration, Exhibit A was made. The defendants testified that there was consultation of the Ruling Houses and the Ajawa Community as a whole. It was on this evidence that the learned trial Judge found that there was consultation. This is not the end of the issue.

The crux of the matter is not whether there was consultation, the question is whether in the circumstances the Declaration was binding. The evidence was that the Declaration was not published until 1976. Herein the issue whether plaintiffs have been guilty of unreasonable delay, or laches, in asserting their rights. Relying on his finding that extensive consultation was made before the Declaration, the learned trial Judge found they were guilty of delay and laches.

The evidence before the learned trial Judge was that plaintiffs did not know of the existence of the Declaration until 1976 when it was made. They promptly complained in 1977. Plaintiffs cannot in such circumstances be guilty of delay or to have slept over their rights after knowing of the existence of such rights. Plaintiffs are only saying that they were not aware of the existence of the Declaration which deprived them of their right. The finding of the learned trial Judge that plaintiffs were guilty of delay and laches is not consistent with the evidence before him and is accordingly perverse. It seems the learned trial Judge’s finding was based on the finding that there was extensive consultation. As against this was the evidence that the plaintiffs were never invited and were not consulted. The Court of Appeal was therefore right in reversing the finding of the learned trial Judge. See Nwosu v. Board of Customs & Excise (1988) 5 N.W.L.R. (Pt.93) 225, Olufosoye v. Olorunfemi (1989) 1 N.W.L.R. (Pt. 95) 26 S.C. Motunwase v. Sorunghe (1988) 5 N.W.L.R. (Pt. 92) 90 S.C. There was ample evidence before the trial Judge not based on the credibility of witnesses to support the finding of the Court of Appeal on the issue.

I am in complete agreement with the reasoning and decision of the Court of Appeal that plaintiffs were not guilty of delay or laches in the prosecution of their claim. I therefore find no merit in this appeal, which I hereby dismiss for the, reasons given above and the fuller reasons in the judgment of my learned brother Mohammed, J.S.C.

The judgment of the Court of Appeal is hereby affirmed. Appellants shall pay N 1,000.00 as costs to plaintiffs/respondents.S. KAWU, J.S.C.: The respondents in this appeal were the plaintiffs in the High Court claiming jointly and severally against the appellants as follows:

(2) Declaration that the Chieftaincy Declaration made pursuant to Section 4(2) of the Chiefs Law. 1957 in respect of Alajawa of Ajawaon 19th day of May, 1958 is null and void and is of no effect as it is contrary to the custom and practice of Ajawa people in so far as it includes Olajolu Ruling House as one of the Ruling Houses in Ajawa.

(3) An order of injunction restraining the 4th defendant from appointing or approving the appointment of either the 1st or the 2nd defendant as an Alajawa of Ajawa.

(4) An order to quash any appointment or approval of the 1st or 2nd Defendant as an Alajawa of Ajawa by the 4th Defendant.”

Both parties adduced considerable evidence in support of their respective claims. The main controversy was the paternity of one Falana who was the ancestor of the 1st and 2nd defendants. The plaintiffs’ claim, in substance, was that the 1st and 2nd defendants, who were the descendants of one Falana had no right to the throne of the Alajawa of Ajawa because their ancestor, Falana, was not a member of the five Ruling Houses of Ajawa. It was their contention that Falana was the son of a woman called Oyawole who was seduced by Prince Olajolu before marrying her. It was said that Falana’s real father was one Fashola and not Olajolu who was a prince and whose father – Winjobi was the Alajawa. On the other hand, the defendants claimed that Falana was in fact the blood son of Olajolu and since Olajolu was a prince, the descendants of Falana were entitled to the throne of the lajawa of Ajawa.

Both parties adduced traditional evidence in support of their respective claims, and in his judgment on the issue of traditional evidence, the learned trial Judge observed as follows:-

Since the witnesses are not speaking of their own personal knowledge whatever conflict may exist in the two competing histories could not in the circumstances be resolved on the basis of how many witnesses testified on the point i.e. on the basis of the balance of probabilities when the history as related by each side is tested against recent facts as could be gathered from the evidence before the Court. As has been rightly observed by Lord Denning, the proper course in the circumstances is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is more probable. (See; Kojo II v. Kwadzo Bonsie & Anor. (1957) 1 W.L.R. 1223 at 1226).

In this connection, one cannot still help but comment on the apparent lack of candour of the 2nd plaintiff with regard to his testimony on this issue.”

There is no doubt that the above passages show clearly that the learned trial Judgefully appreciated the principle of law laid down in Kojo’s case (supra). The question, however, is whether he applied that principle correctly. In my view, he did not because the record shows that immediately after setting out the correct principle of law, he went on to resolve the conflict in the traditional evidence adduced by both parties not by testing the traditional history by reference to the facts in recent years as established by evidence and seeing which of the two conflicting histories is more probable but by simply evaluating the evidence of traditional history adduced by the 2nd plaintiff whom he said to be “most part evasive, as to whether Falana was the son of Olajolu.” It was mainly on the credibility of the evidence of the 2nd plaintiff on the issue of traditional evidence that he rejected the plaintiffs’ case and wrongly, in my view, gave judgment in favour of the defendants. It is my view that if the learned trial Judge had, in resolving the conflicts in the traditional history, followed the guide-line enunciated in Kojo’s case (supra) he would have, on the evidence adduced found for the plaintiffs. It is for the above reasons and for the fuller reasons contained in the lead judgment of my learned brother, Mohammed, J.S.C. which I have had the advantage of reading in draft and with whom I am in agreement, that I too will dismiss the appeal and affirm the decision of the Court of Appeal. I too will award costs assessed at N1,000.00 to the respondents.A. B. WALI, J.S.C.: I have had a preview of the lead judgment of my learned brother. Mohammed, J.S.C, and i agree with his reasoning and conclusion that the appeal lacks merit and must be dismissed.

For those same reasons ably stated in the judgment of my learned brother, Mohammed, J.S.C..I also hereby dismiss this appeal with N1,000.00 costs to the Respondents.

O. OLATAWURA, J.S.C.: The main issue in this appeal is whether OLAJOLU is one of the five Ruling Houses of Ajawa. a town in Ogbomosho South Local Government of Oyo State.

It is not in dispute that Ajawa has five Ruling Houses. Apart from the one in dispute the others in respect of which all the parties agreed are; IBAPALA, OLAWUSI, OLUMOLE and OLAOMO. From the claims of the plaintiffs (now respondents in this court) IKUPULUMUSI was the fifth Ruling House as against OLAJOLU. It is not in dispute also that there exists a Chieftaincy Declaration admitted in evidence as Exhibit A. The plaintiffs’ claims against the Defendants (now appellants in this Court) as shown in the Amended Statement of Claim are as follows:

“(a) Declaration that the 1st and 2nd defendants are not members of any of the five Ruling Houses of Ajawa and therefore cannot vie for, contest and or be appointed as an Alajawa of Ajawa in Ogbomoso South Local Government Area.

(b) Declaration that the Chieftaincy Declaration made pursuant to Section 4(2) of the Chiefs Law 1957 in respect of Alajawa of Ajawa on 19th day of May, 1958 and approved on the 15th day of September, 1958 is null and void and is of no effect as it is contrary to the custom and practice of Ajawa people in so far as it included Olajolu Ruling House as one of the Ruling Houses in Ajawa.

(c) An order of injunction restraining the 4th defendant from appointing or approving the appointment of either the 1st and or 2nd defendant as an Alajawa of Ajawa.

(d) An order to quash any appointment or approval of the 1st and or 2nd defendant as an Alajawa of Ajawa by 4th defendant.”

The defendants denied the claims and in their own Statement of Defence denied that IKUPULUMUSI is a Ruling House but maintained that OLAJOLU is one of the Ruling Houses. Evidence was led in support of the pleadings and in a considered judgment Ademakinwa, J. dismissed the claims of the plaintiffs. The appeal to the Court of Appeal was allowed. The claims of plaintiffs were sustained by the Court of Appeal. Hence the appeal by the defendants to this Court.

Briefs were filed and exchanged. I will in the course of the judgment refer to the issues canvassed by the parties. It is pertinent to note however that in the lower Court, Ogundare, J.C.A. (as he then was) wrote a dissenting judgment. The grounds of appeal against the judgments of Nnaemeka-Agu, J.C.A. (as he then was) and Sulu-Gambari, J.C.A. filed by the 1st Defendant/Appellant read thus:

“1. The Court of Appeal erred in law in applying the provisions of Section 44 of the Evidence Act to the issue of paternity of one of the parties when the said Section 44 limits its application to: ‘Where the title or interest in family or communal land is in issue.’

The Court of Appeal erred in law in not giving effect to Section 9 of the Chiefs Law of Oyo State Cap 21 which obliged the Court to accept the registered Chieftaincy declaration (Exhibit A) “to be the customary law regulating the selection of a person to be the holder of the chieftaincy to the exclusion of any other customary usage or rule” on the ground that the Plaintiffs did not know of its existence.

PARTICULARS

Ignoramia juris quod quisque scire tenetur non excusat

The Court of Appeal misdirected itself on the fact by reason of non-direction on the issues relevant for the resolution of the conflicts in the traditional history relating to the paternity of the Appellant.The Court did not advert to the under-mentioned, (among others) matters:-

(i) the issue as to the residence of the ancestor of the appellant;

(ii) the issue as to the tribal marks carried by the Appellant (and those on the face of the Respondents which bear no relationship to the marks worn by the descendants of Alajawa);

(iii) Appellants’ membership of the Ajawa Chieftaincy Committee;

(iv) the fact that Appellants’ relations inherited royal widows;

(v) Appellant having previously been allowed to contest for the Oba Alajawa Chieftaincy title;

(vi) the fact that all Alajawas before Ibopola (who succeeded Winjobi) had no Ruling House named after them except Ikupoluwusi:

(vii) the content of the registered declaration (Exhibit A);

(viii) the omission or the issue in contest from the Respondents’ petition Exhibit B and its effect on the case.”

The 3rd Defendant/Appellant’s (i.e. the Governor of Oyo State) grounds of appeal (without the particulars) read thus;

“GROUND 1: The majority of the Court of Appeal erred in law in holding that the lower court did not make a correct approach to the issue of conflicting traditional evidence as laid down by Kojo II v. Bonsie & Anor (1957) 1 W.L.R. 1223 at p. 1226.

GROUND 2: The majority of the Court of Appeal misdirected itself in law and on fact in holding that the facts within living memory available at the trial supported the case of the appellants that Olajnlu was not entitled to be included as a ruling house in the Alajawa of Ajawa Chieftaincy Declaration.

GROUND 3: The majority of the Court of Appeal wrongly exercised its discretion and misdirected itself in setting aside the findings of fact by the lower Court that Falana was the natural son of Olajolu.

GROUND 4: The majority of the Court of Appeal erred in law and on fact in declaring the Alajawa of Ajawa Chieftaincy Declaration of 1958 null and void and of no effect as being contrary to custom and practice of Ajawa by including Olajolu Ruling House as one of the Ruling Houses in Ajawa.

GROUND 5: The decision of the majority of the Court of Appeal to the effect that the Plaintiffs/Appellants were not aware of the Alajawa of Ajawa Chieftaincy Declaration before 1976 and that there was no evidence in support of laches and acquiescence was wrong in law:’

It appears to me that the issues raised by the appellants in their respective briefs agree on the following issues:

Whether section 44 of the Evidence Act which restricts its application to where the title or interest in family or communal land is in issue applicable for the determination of the issue of the paternity of Falana, the ancestor of the Appellant.
Whether the Court of Appeal can refuse to give effect to section 9 Chiefs Law of Oyo State Cap 21 which obliged the court to accept the registered Chieftaincy Declaration (Exhibit A) as the customary law regulating the selection of a person to be holder of the Chieftaincy to the exclusion of any customary usage on the ground that the Plaintiffs were ignorant of it.
Whether the Court of Appeal directed itself to the issues that are relevant to the resolution of the conflicting traditional history relating to the paternity of the Appellant.

These three issues are in the main the grounds of complaint on which the appeal is based.

The 3rd Defendant/Appellant in addition to the issues above also relied on the equitable defence of laches.

It is remarkable that the learned Counsel to the 3rd defendant in her brief at this late stage of brief writing and despite the earlier authorities of this court, still bases the argument in the brief on grounds of appeal and NOT on the issues formulated by her: IDIKA V. ERISI (1988) 2 N.W.L.R. (Pt. 78) 563; ANUKWUA v. OHIA (1986) 5 N.W.L.R. (Pt. 40) 150; DIBIAMAKA v. OSAKWE (1989) 3 N.WLR. (Pt. 107) 101.

In his own brief. Chief G. O. K. Ajayi, S.A.N., the learned counsel for the respondent also referred to the issues raised by the 1st Defendant/Appellant already set out above but raised objection to issues (1) and (3) on the ground stated in his brief and submitted that the only issue left to be considered by this Court is the issue relating to Section 9 Chiefs Law of Oyo State. Despite the objection raised to these issues, the Appellants did not consider it necessary to file a reply brief as provided under Order 6 Rule 5(3) of the Supreme Court Rules 1985. However, in the oral submissions made in amplification of the brief filed, Mr. C. J. Chukwura, the learned counsel for the 1st defendant/appellant after adopting his brief, submitted that grounds 1 and 3 of the grounds of appeal which cover issues 1 and 3 of the issues for determination are proper and that no leave is required. Ground 3 deals with law alone. Learned counsel referred to and relied on NWADIKE V. IBEKWE & ORS. (1987) 4 N.W.L.R. (Pt. 67) 718. On issue 1, learned counsel submitted that no leave is required as it is a ground of law.

In his own reply, Chief G.O.K. Ajayi. S.A.N. adopted his brief. With regard to grounds 1 and 3 covered by the third issue formulated by him, learned counsel pointed out that what was in issue is whether or not the learned trial Judge used the evidence before him and arrived at the right conclusion. He then referred to the conflicting evidence, this, learned counsel submitted, is an issue of mixed law and fact. While the submission on behalf of the 1st Appellant was that the appellant was consistent in his evidence. The evaluation of evidence by the Court of Appeal was on the understanding that the trial Judge committed an error the way he approached the evidence. It is this determination of facts the 1st appellant attacked in his grounds of appeal and by asking the court to set aside the findings of fact made by the lower court, that ground of appeal is incompetent for the failure of the appellant to appeal against findings of fact without leave.

On issue number one, Chief Ajayi, S.A.N., contended that the appellant ought not to be permitted at this stage to argue that the traditional evidence on behalf of the 1st respondent should not have been acted upon by the lower courts. It is a new point not raised in the lower courts. Chief Ajayi pointed out that the plaintiff/respondent and his witnesses gave evidence of tradition. They were cross-examined and that the trial Judge gave judgment as the basis of the traditional evidence. Counsel further pointed out that the appellants contended in the lower court that the Judge was right but that they have suddenly changed their position in this Court where they now contend that the Judge was wrong: He cited OREDOYIN V. AROWOLO (1989) 4 N.W.L.R. (Pt.114) 172. The court should not allow a party to make a different case from what he had earlier set out to do.

On the issue of acquiescence, learned counsel relied on the conclusions of Nnaemeka-Agu. J.C.A. (as he then was) and that the court below found that the respondent (i.e. the appellant in the lower court) was not consulted.

Mr. Boade, the Acting Director of Litigation and Advisory Services to the 3rd appellant, relied on the brief filed on 23/3/90 and urged that the appeal be dismissed.

In reply, Mr. Chukwura merely pointed out that the appellant did not raise a new issue but that the lower court raised the issue of Section 44 of the Evidence Act for the first time.

I will first of all deal with the preliminary issues which have arisen in this appeal:

(a) Failure of the appellants to file a reply brief to the respondents brief.

(b) Whether leave of this Court or the lower court ought to have been obtained on what Chief Ajayi regarded as issues of fact.

Where a respondent’s brief raises issues or points of law not covered in the appellant’s brief, an appellant should file a reply. It helps to reduce the time an appellant may rake in replying to such issues or points during oral argument at the hearing of the appeal. It is true the filing of a reply is not mandatory under the rules. See Order 6 Rule 5(3) of the Supreme Court Rules (1985). Where an appellant files no reply to a point of law raised in the respondent’s brief and merely relies on or adopts his brief at the hearing of the appeal, without an oral reply, it may amount to a concession of the points of law or issues raised.

I will now consider whether leave is required as prescribed under section 213(3) of the Constitution of the Federal Republic of Nigeria 1979. The grounds attacked by the respondent’s counsel are grounds 1 and 3. It appears to me ground 1 which deals with Section 44 is a ground or law. For a better understanding or the issue, I quote the learned Justice of the Court of Appeal. He said:

“The issue raised in this aspect of the appeal calls for an in-depth examination of the nature of, and correct approach to, evidence of tradition. For this purpose very little assistance can be derived from purely English common law decisions: but many decisions of the Privy Council on decisions from West African Courts will provide some useful guides.

Such evidence is essentially a West African development which, as the West African Court of Appeal remarked in Commissioner of Lands v. Kadiri Adagun (1937) 3 W.A.C.A. 206, is admissible on the premises that as literacy among the people does not go so far back, oral tradition is generally the only evidence available in a case of disputed title beyond the memory of living witnesses. Although since 1945 its admissibility has, by Section 44 of the Evidence Act, been reduced into a statutory form, which appears to limit it to where title to or interest in family or communal land is in issue, it was common ground in this case as well as the basis of the trial Judge’s decision that it is applicable to the instant case in which what is in issue is a chieftaincy title of Alajawa of Ajawa.”

Section 44 of the Evidence Act reads:

“Where the title to or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is relevant.”

I cannot see the relevance of this section of the Evidence Act to an issue concerning the paternity of one of the parties so as to determine his entitlement to a chieftaincy title. I therefore disagree with the learned Justice that this section “is applicable to the instant case in which what is in issue is a chieftaincy title of Alajawa of Ajawa.”

With regard to ground three, I think Chief Ajayi is on a firm ground in so far as his objection is concerned. Where there is a complaint about conflicts in the traditional history, definitely the conflicts must he based on the evidence led. Besides the particulars of misdirection given under ground 3 show clearly that it is an issue of fact or at best mixed law and fact which requires leave of this Court or the court below before this ground can be restrained. See Section 213 of the 1979 Constitution. Since no leave was obtained, that ground of appeal is incompetent and it is hereby struck out: OGBECHIE & ORS. V. ONOCHIE & ORS. (1986) 1 N.S.C.C.443.(1986) 2 N.W.L.R.(Pt..23) 484: WELLI & ANOR. V. OKECHUKWU & ORS. (1985) 2 N.S.C.C. 830, (1985) 2 N.W.L.R. (Pt. 5) 63.

To complete the picture and to deal with the issue of raising a point not raised in the court below, it is true that the question of applicability of Section 44 of the Evidence Act was not an issue between the parties. However, where a court on its own raised an issue not raised by the parties in its judgment and it is an issue relied upon by the court to come to a decision, either party has the right to appeal against such an issue raised by the court where the party feels that the court not only relied on it hut that it ultimately tilts the scale of justice. I am of the view that in the circumstances of this appeal, the appellant can raise the issue on appeal.

With regard to the approach of the learned trial Judge concerning the evaluation of evidence and whether the lower court was right in re-evaluating the evidence of the court of trial, it was clearly found by the lower court the approach of the trial court as to credibility runs counter to the principle in KOJO II V. BONSIE & ANOR. (1957) 1 W.L.R. 1223/1226. The learned trial Judge had this in mind but unfortunately misapplied the principle by discrediting 2nd plaintiff before evaluating his evidence. Evaluation of evidence of a witness should precede his credibility. Once his evidence has been discredited before it is evaluated, it is difficult for the Judge to disabuse his mind about the evidence. I am therefore in complete agreement with Nnaemeka-Agu, J.C.A. (as he then was) when he said:

“It is sufficient at the moment to state that it is true that the learned Judge resorted to a resolution of the conflicting versions of the tradition both by wrongly attacking the credibility of the 2nd appellant and by the inconclusive custom of inheritance of relative’s wives, as I have shown. As these two bases of his conclusion have been successfully challenged, the matter becomes at large for a consideration of this court, by applying the principles in KOJO II v. BONSIE (supra).”

(Italics mine).

Where a trial Judge has wrongly appraised the evidence, and has also failed to make proper use of the singular advantage of seeing and hearing the witnesses testify and his inability to draw proper conclusions from the evidence, an appellate court will interfere: See CHIEF FRANK EBBA V. CHIEF OGODO (1984) S.C. 92: (1984) 1 S.C.N.L.R 372: AJADI V. OKENIHUN (1985) 1 N.W.L.R. (Pt.3) 484. NIGERIA AIRWAYS LTD. V. ABE (1988) 4 N.W.L.R.(Pt. 90) 524. AJAYI V. TEXACO (NIG.) LTD & ORS. (1987) 2 N.S.C.C.(Pt.11) 1149: (1987) 3 N.W.L.R. (Pt. 62) 577. It is for these reasons that the lower court, rightly in my view, intervened and set aside the findings. There was the unchallenged evidence of the 2nd plaintiff about his position as the oldest Mogaji in the five Ruling Houses. The case put forward by the 1st Defendant/Appellant was as if the other ruling houses ‘conspired’ against Olajolu ‘ruling’ house. This, as the evidence before the trial court, will be a wrong and baseless assumption. The evidence of the Mogajis and the Kingmakers is clearly against this assumption. On record the case that Fatana is a natural son of Olajolu has not been made out. No doubt the learned trial Judge made this as one of the three issues he considered, the learned trial Judge said inter alia:

“”The three main issues that would appear to call for determination in this case are: firstly, whether the Olajolu ruling house was properly included in the Alajawa Chieftaincy Declaration and this, of course, would depend on whether Falana, the ancestor of the 1st and 2nd Defendant (sic) was a natural or step son of Olajolu………………..”

This is the crux of this appeal. In his submission, Miss Oloko in the 3rd appellant’s brief said:

“It is submitted that the trial court did not base its criticism on the 2nd respondent’s demeanour but rather on his failure to be of much assistance to the court in getting out the truth having regard to his position in the Ruling Houses-the oldest Mogaji and his relationship with the Mogaji. Although the learned trial Judge made comments on the plaintiffs lack of candour and evasiveness he nevertheless evaluated his evidence and gave it weight it deserved.”

This cannot be correct as pointed out by the lower court. I agree with the Court of Appeal that the court of trial has greatly been influenced by the issue of demeanour as against the weight to be attached to the evidence of the 2nd plaintiff.

It is now necessary to consider section 9 of the Chiefs Law of Oyo State. The appellants have regarded that section of the Chiefs Law of Oyo State as sacrosanct.

That section is only deemed to have stated the customary law. Customary law as to appointment is different from those stated therein as being entitled to be a Chief within the ruling houses. The section cannot be used to accommodate inclusion of an unqualified person or unqualified ruling house in Chieftaincy Declaration. Section 9 of the Chiefs Law of Oyo State cannot be a cloak to perpetuate injustice. Once it is established that those entitled to be consulted or those who ought to know e.g. members of the Ruling Houses were shut out or excluded from the exercises leading to the registration of the Chieftaincy Declaration, it will be unjust to rely on such a declaration. It will amount to a violation of the right of those entitled to be consulted. Chieftaincy Declaration should not be shrouded in secrecy. It affects the right and interests of those who are to rule in accordance with their customs. If section 9 of the Oyo State Chiefs Law has gone further to state that once a Chieftaincy Declaration has been registered, it cannot be questioned in any court, then and until then the arguments being put forward by the respondents as to the validity of Exhibit A may, prima facie, be sound. But then it should be noted that the courts frown upon usurpation of its authority and the ousting of its jurisdiction. The Court of Appeal came to the conclusion that the Chieftaincy Declaration was not published. In fact section 4(4) if the Oyo Chiefs Law makes it mandatory and enjoins the Committee established under Section S of the Chiefs Law to ensure that “no family is declared a ruling house which is not generally recognized as such at the time of making the declaration……….” The lower court found that no publicity was given to the Declaration i.e. Exhibit A. The question of delay put forward by the appellants on the facts of this case, does not arise. If they were aware of the inclusion of Olajolu ruling house and then decided/not to bother, then it will be inequitable to object at this late stage. The, length of the delay and the act done by the other party to make the complaining party believe it has waived his right are matters to be considered in the doctrine of laches. Be it noted than it is neither an arbitrary nor a technical doctrine.

I will therefore dismiss the appeal with costs in favour of the respondents assessed at N1,000.00 against the appellants jointly and severally.

Appeal dismissed.

SC.292/1989

Jacob Popoola & Ors. V. Joshua Oyeyemi Adeyemo & Anor. (1992) LLJR-SC

Jacob Popoola & Ors. V. Joshua Oyeyemi Adeyemo & Anor. (1992)

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