Mallam Jimoh Salawu & Anor. V. Mallam Aliyu A. Yusuf & Anor (2007)

LAWGLOBAL HUB Lead Judgment Report

O. ADEREMI, J.S.C

This is an appeal against the judgment of the Court of Appeal, Ilorin Division in appeal No. CA/lL/5/2000 delivered on the 14th of June, 2001 dismissing the appeal against the judgment of the High Court of Justice of Kwara State sitting at Ilorin in suit No. KWS/2C/96: Mallam Jimoh Salawu and Mallam Hassan Akogun versus Aliyu A. Yusuf and Audu Ajide Agboola in which the trial Court had dismissed the suit and entered judgment in favour of the defendants/counterclaimants on the 11th of May, 1999. The plaintiffs (hereinafter referred to as the appellants) had at the trial court claimed against the defendants (hereinafter referred to as the respondents) as per paragraph 14 of the amended statement of claim the following reliefs:-

“I. A declaration that the purported appointment of the 2nd defendant by the 1st defendant is null and void as it is against the native law and custom of Akogun family of Babanla.

2. A perpetual injunction restraining the 1st defendant from further recognising and from further dealing with the 2nd defendant as Akogun of Babanla.
3. A perpetual injunction restraining the 2nd defendant from further parading himself and acting in the office of Akogun of Babanla.” The defendants sub-joined a counter-claim to their further amended statement of defence and in paragraph 34 thereof, they counter-claimed against the plaintiffs/appellants as follows:-

“1. A declaration that the chieftaincies of Akogun compound in Babanla are hereditary and are limited and exclusive to the respective families of the compound as follows:

Akogun Chieftaincy …

… lkukominlola Family Akaponna & Asaulu Chieftaincies Ogunbiyi Family Asoni Family.

2. A declaration that Chief Audu Agboola Akogun is the present Akogun of Babanla having been properly appointed and installed as such under native law and custom of Akogun Chieftaincy of Babanla.
3. A perpetual injunction restraining the plaintiffs/defendants to counter-claim – their privies and successors from claiming any right to the Akogun Chieftaincy of Babanla and from further challenging and/or disturbing the 2nd defendant in the performance of his functions and enjoyment of the perquisites of office.” The final amended pleadings filed, with the leave of court, and exchanged between the parties are the amended statement of claim and furtheramended statement of defence and counter-claim. Both sides called evidence in proof of the averments contained in their no respective pleadings. And sequel to the addresses of the different counsel to both sides, the learned trial Judge, in a reserve judgment delivered on the 11th of May, 1999, dismissed the plaintiffs/ appellants’ suit in toto but upheld the counter-claim of the defendants/respondents. Being dissatisfied with the said judgment, the plaintiffs now the appellants appealed to the court below via a notice of appeal, dated 20th July, 1999 but filed on 21st July, 1999 which notice contains ten grounds of appeal. Distilled there from for determination by the court below are three issues formulated by the appellants and set out on page 171 of the record. For their part, the respondents raised only two issues for determination by the Court below; they are contained on page 196 of the record. Sequel to the adoption of the briefs of the parties by their respective counsel, the court below, in a reserve judgment delivered on the 14th June, 2001, dismissed the appeal. Again being dissatisfied with the judgment of the Court below, the appellants are now approaching this Court by a notice of appeal dated 12th September, 2001. Three issues were raised by the appellants for determination by this court and as set out in their brief of argument, they are in the following terms:-

“1. Whether the court below was correct to have upheld the way and manner the learned trial Judge ignored the principles enunciated in the case of Kojo v. Bonsie (1957) 1 WLR 1223 at 1226 and whether this has not led to a miscarriage of justice in this case against the appellant.

2. Whether having regard to the evidence tendered by the parties and the numerous material contradiction in the case or the respondents and when from the totality of the ease of the parties the respondent’s case ought to fail.
3. Whether the court below was right to have agreed with the trial Court picking and choosing from the testimonies of the witnesses for the respondents, speculate on facts not before him and decided not to countenance all the arguments advanced on exhibits PI and P2 as canvassed under issue No.3 at the court.” For their part, the respondents formulated two issues for determination by this court, as contained in their brief of argument, they are as follows:-

“1. Whether in view of the apparent conflict in the evidence of traditional history of the parties, the Court of Appeal was right in affirming the decision of the trial Court which applied the principle in Kojo v. Bonsie in the determination of this matter.

Whether the judgment of the Court of Appeal, which upheld the findings of facts by the trial court, was supported by evidence.” When this appeal came before us on the 12th of February, 2007 for argument, Mr. Eleja, learned counsel for the appellants referred to and adopted his clients’ brief of argument filed on the 16th of May, 2003 and urged us to allow the appeal. Mr. Daramola, learned counsel for the respondents similarly referred to and adopted his clients’ brief of argument deemed properly filed on the 12th of February, 2001 and urged this court to dismiss the appeal. A careful examination of the issues raised by the parties leaves me in no doubt that issue No.1 on the appellants’ brief is similar to issue No.1 in the respondents’ brief and therefore both can be taken together. While issues Nos. 2 and 3 on the appellants’ brief can be taken along with issue No.2 on the respondents’ brief. I shall therefore treat the issues in the order I have set out. On issue No. I, the appellants in their brief, argued that the trial Judge did not properly apply the principle enunciated in Kojo v. Bonsie (1957) 1 WLR 1223 although he (the Judge) had correctly stated the principle in that case in the body of his judgment; this submission, they set out to justify by quoting a number of holdings of the trial Judge which the court below confirmed, although the two courts (the Court of first instance and the Court below) did not state expressly in their judgments adding that the fact that after Ogunbiyi, from the lineage of the appellants, his (Ogunbiyi) successors to Akogun of Babanla title were from Bogun lineage was not such recent act from which to test the testimonies as, according to them, the testimonies of the respondents were contradictory and, they further argued; contradictory and unbelievable evidence cannot constitute facts or acts in recent years with which to test conflict in traditional evidence. The rule in Kojo v. Bonsie, it was finally submitted on this point, was not properly annunciated by the two courts below; reliance being placed on decisions in

(1) Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301 and

(2) Olanrewajo v. Gov. of Oyo State (1992) 9 NWLR (Pt. 265) 335 at 360 and 361.

For their part and in their brief of argument, the respondents submitted that the parties gave conflicting traditional evidence of who the rounder or the Chieftaincy of Akogun of Babanla was and how that chieftaincy title was founded. And after reviewing the evidence led at the trial court, they further submitted that the evidence which the trial court believed was not evidence of traditional history but evidence of the acts of the witnesses who said they saw and partook in the recent activities. The court below (Court of Appeal) was therefore right, after reviewing the whole case, in upholding the decision of the trial court: while placing reliance on decisions such as lnko-Tariah v. Goodhead (1997) 4 NWLR (Pt. 500) 453 and (2) Oladoye v. Adm., Osun state (1996) 10 NWLR (Pt. 476) 38 at 60-61. I shall begin the consideration of these two crucial but similar issues by saying that the fundamental point that calls for determination in this appeal is whether the chieftaincy title of Akogun of Babanla is exclusive to lkukomilola (Bogun) family of Akogun compound or whether the Ogunbiyi family living in the same compound are also entitled to it. The case of the plaintiffs/appellants as could be gleaned from their pleadings is that the Akogun title is exclusively the affairs or Akogun family which title is that of a compound; the first Akogun or Babanla was Ogunbiyi who according to them, was the founder of Akogun of Babana. It was also their case that Bogun family who adopted the name Ikukomilola was a guest of Akogun family: he got integrated into the family and although he was allowed to assume the title of Akogun no member of his family was ever allowed to hold the title or assume the authority of the head of Akogun family. On the other hand. the case of the defendants/respondents as could be gathered from their further amended statement of defence and counter-claim is that the plaintiffs/appellants only belong to Akogun Compound of Babanla and that Akogun family is exclusively the family of the 2nd defendant/respondent; that Akogun Chieftaincy title, the subject-matter of this suit is a native Chieftaincy of Babanla and it is hereditary; that lkukomilola was the first Akogun of Babanla and all subsequent Akoguns of Babanla up to the 2nd defendant/respondent have been his (Ikukomilola) descendants. Ajogbejo Ogunbiyi, the progenitor of the plaintiffs/appellants took refuge under Ikukomiloa as he was then been pursued by Emir of Lafiagi. The intervention of Ikukomi fola resulted in the Emir of Lafiagi forgiving Ogunbiyi. Neither members or Ogunbiyi family nor members of Asuni family who were settled by Oba Dada with Ikukomilola were entitled to become Akogun of Babanla and that issue of plaintiffs/ appellants family were ever presented for the title which has never been in dispute. A period of 30 years elapsed before the installation of Akogun Adeniyi who was very young at the death of Akogun Ikukomilola, his father; although there were many grown up men in the family of the plaintiffs/appellants during the period of interregnum but because this family were not entitled to become an Akogun, none was presented from them. Going by the case presented by each party, both of them are relying, for the success of their different cases, on traditional history. Then, what was the evidence led before the trial Judge

PW 1 – one Hassan Alade Salawu under cross-examination said:

At the meeting of the Ogunbiyi family for the selection and appointment of an Akogun, people who are not members of the Ogunbiyi family are normally considered for selection. The chieftaincy title of Akogun was first established by Ogunbiyi who donated the title to Bogun his visitor. The title was meant to be hereditary but was donated to Bogun by Ogunbiyi whom Bogun served very faithfully. Ogunbiyi said that the title should be extended to Bogun after he (Ogunbiyi) would have died.” I pause to say that the first leg of the reliefs sought by the plaintiffs/appellants wherein they claim for a declaration that the purported appointment of the 2nd defendant (a confirmed member of Bogun and/or lkukomilola family) cannot stand since they (appellants) said that even though the title of Akogun is hereditary, it was donated to Bogun by Ogunbiyi who even went on to make a declaration that after his (Ogunbiyi) death, the title should still be extended to Bogun. That evidence by Hassan Alade Salawu is an admission against interest. Continuing his evidence, Salawu said:-