3PLR – ALHAJI ABDULLAHI ATANDA KOLAWOLE V. ALHAJI SALAMI ADISA OLORI

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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ALHAJI ABDULLAHI ATANDA KOLAWOLE

V.

ALHAJI SALAMI ADISA OLORI

IN THE COURT OF APPEAL OF NIGERIA

ON TUESDAY, THE 18TH DAY OF MARCH, 2008

CA/IL/90/2006

3PLR/2008/5 (CA)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS

HELEN MORONKEJI OGUNWUMIJU, JCA

HANNATU JUMMAI SANKEY, JCA

IGNATIUS IGWE AGUBE, JCA

 

BETWEEN

ALHAJI ABDULLAHI ATANDA KOLAWOLE (For himself and the family of JINADU KOLAWOLE OF GANMO – Appellant(s)

 

AND

ALHAJI SALAMI ADISA OLORI (Substituted for ALHAJI AILERU JUBRIL Baale of Ganmo suing for his and the family of Baale Sunmonu Okunoye – Respondent(s)

 

REPRESENTATION

J.S. Bamigboye Esq;

Raufu Ibrahim Esq,

I.W. Abdulsalam Esq,

J.O. Bayode Esq and

W.N. Eguonu Esq – For Appellant

 

AND

Roland Otaru (SAN);

Oyawoye Adedoyin (Miss) and

Akinbiyi Akinpelu Esq – For Respondent

 

MAIN ISSUES

 

1. WORDS AND PHRASES – “CAUSE OF ACTION”: Definition of “a cause of action”

“…it is necessary to have recourse to text writers and judicial authorities for guidance as to what constitutes a cause of action, Black’s Law Dictionary by Bryan Garner 7th Edition at 214 defines the term as “A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.” In the same text the Learned author quoted Edwin E. Bryant’s work captioned” The Law of Pleading Under the Codes of Civil Procedure P. 170 (2nd Edition 1899)” where the following appear:- “What is a cause of action? Jurists found it difficult to give a proper definition. It may be defined generally to be a situation or state of facts that entitles a party to maintain an action in a judicial tribunal. This state of facts may be – (a) a primary right of the Plaintiff actually violated by the Defendant; or (b) the threatened violation of such right, which violation the Plaintiff is entitled to restrain or prevent, as in the case of actions for injunctions or (c) it may be that there are doubts as to some duty or right, or the right is beclouded by some apparent adverse right or claim, which the Plaintiff is entitled to have cleared up, that he may safely perform the duty, or enjoy his property. ” See the case of CHIEF HAROLD SODIPO VS. LEMMINKAINEN OY & ANOR. (1992) 8 NWLR (Pt. 5S8) 229 at 242; THOMAS VS. OLUFOSOYE (1986) 1 NWLR (Pt. 18) 669; BELLO VS. A.G. OYO STATE (1986) 5 NWLR (Pt. 45) at 826 and ADIMORA VS. AJUFO (1988) 3 NWLR (pt. 80) 1. “Per AGUBE, J.C.A.(Pp. 61-62, paras. C-C)

 

2. WORDS AND PHRASES – “DETERMINE”: Definition of the word “determine”

“For the avoidance of doubt Webster’s Ninth New Collegiate Dictionary defines the word ‘determine’ as follows:- “To fix conclusively or authoritatively, to decide by judicial sentence, to settle or decide by choice of alternatives or possibilities; to put or set to an end; to find out or come to a decision about by investigation, reasoning or calculation in answer to a problem, to come to decision. ” Black’s Law Dictionary on the other hand defines it as “A final decision by a Court or administrative agency.”Per AGUBE, J.C.A.(P. 115, paras. D-G)

 

3. PRACTICE AND PROCEDURE – ABUSE OF COURT PROCESS: How the Abuse of Court Process can be inferred

“Finally on the vexed issue of abuse of Court process. See JIMOH VS. STARCO (NIG) LTD (1998) 7 NWLR (Pt. 558 (523; JADESIMI VS. 264. Abuse of Court process can be inferred from what the Plaintiffs have done in the multiplicity of the cases they have filed on the same subject matter and between the same parties to the chagrin of the Defendants. Where for instance a Court of concurrent jurisdiction had pronounced that it lacked jurisdiction to entertain a cause, it smacks of judicial arrogance or call it brigandage for such a cause to be allowed surreptitious entry through the back door of a sister Court as my Lord Ajayi J. has done. No matter the merits of the case or the Lawyer’s ingenuity or status, once the issue of jurisdiction is raised as in this case and the court below found that there is a pending decision there on which has not been appealed against, then the Plaintiff in such a case must be shown the way out no matter how painful this could be to him for he cannot profit from his illegality and indolence.”Per AGUBE, J.C.A.(Pp. 83-84, paras. D-B)

 

4. APPEAL – ARGUMENT IN A BRIEF: Basis of argument contained in a brief

“In MOMODU &. ORS VS. MOMOH &. ANOR (1991) 22 N.S.C.C. (pt. 1) 212 at 221 lines 25 – 29 Uwais J.S.C. (as he then was) delivering the lead judgment of the Supreme court put the issue beyond peradventure that: “It is the intendment of both the current Rules of the Court of Appeal and this Court that the argument contained in a brief shall be based on the issues formulated and not on the grounds of Appeal. Consequently, the courts resolve the controversy in appeals by reference to the issues for determination and not the grounds of Appeal.”Per AGUBE, J.C.A.(P. 49, paras. E-G)

 

5. EVIDENCE – BURDEN OF PROOF: On whom rests the burden of proof

“…suffice it to say that the burden of proof was on the Plaintiff to establish his case as set out by section 137(1) of the Evidence Act. His success depended on the strength of his case and not on the weakness of the Defendant’s case even though some times a Plaintiff could capitalize on the weakness of the Defendant’s case. See ELEMO & ORS. VS. OMOLADE & ORS. (1968) N.M.L.R. 359; OLOGUNLEKO DAWODU VS. SOLANKE (1959) L.L.R. 15 and JOHNSON VS. MAJA & ORS. (1951) 13 W.A.C.A 200.”Per AGUBE, J.C.A.(Pp. 85-86, paras. F-A)

 

6. ACTION – CAUSE OF ACTION: Distinction between a cause of action said to be statute barred and the cause of action ab initio not justiciable in law

“When a cause of action is said to be statute barred, it means that even though the cause of action is justiciable, there is a specific time limit on its justiciability and when the ‘action is brought outside the time provided by law, the cause of action abates, ceases to exist and is no longer justiciable. This is quite different from a situation where the cause of action is ab initio not justiciable in law – that is to say the law does not recognise the dispute brought before the court as one in which there is a legal remedy before the courts.”Per OGUNWUMIJU, J.C.A.(P. 121, paras. A-D)

 

7. ACTION – CAUSE OF ACTION: How to determine when a cause of action arose

“The learned trial judge was asked to determine when the cause of action arose. This can be done by looking only at the statement of claim where the court wants to determine whether the action is statute barred or not. See Oba Aremo II v. S. F. Adekanye and Ors (2004) 7 SCNJ 218. “Per OGUNWUMIJU, J.C.A.(P. 121, paras. E-F)

 

8. ARBITRATION AND CONCILIATION – DECISION OF ARBITRATORS: Effect of the decision of arbitrators over a dispute

“On the whole, it has been held hat where a body of men be they Chiefs (as in this case) or otherwise act as arbitrators over a dispute between two parties, their decision shall have binding effect; if it is shown firstly that both parties submitted to the arbitration: secondly that the parties accepted the terms of the arbitration, and thirdly, that they agree to be bound by the decision. Such decision has the same authority as the judgment of a judicial body and will be binding on the parties and will create estoppel. See ASSANPONG VS. KWEKU & ORS (1932) 1 WACA 192; NJOKU VS. EKEOCHA (1972) 2 ECSLR 199 per Ikpeazu J. and MGBAGBU VS. AGOCHUKWU (1973) 3 ESLR (Pt. 1) 90.”Per AGUBE, J.C.A.(Pp. 82-83, paras. G-B)

 

9. ACTION – DETERMINATION OF A CAUSE OF ACTION: Whether a cause of action must be decided in accordance with the Law as at the time the cause of action arose

“As the Learned Justice Oyeyipo has earlier decided citing the cases of UWAIFO VS. A.G. BENDEL STATE Supra and AUDU ADAMU VS. A.G. BENDEL STATE &. 3 ORS (1982) 3 N.C.L.R. 176 at 679, the laws applicable to this suit are those in force at the time the cause of action arose in 1978, which Laws had been stated earlier. See A.G. KWARA STATE VS. OLAWALE (1993) 24 N.S.C.C. (Pt. 1) 110 at 120 lines 43 – 50 where the Supreme Court held that: “This Court held that the cause of action must be determined from the substance of the case and that the cause of action arose in 1972 when the Defendant was first appointed and turbaned, not in 1981. So the case must in accordance with the principle in E. EEMENIMAYA & ORS. VS. OKPARA OKOROJI & ANOR (1987) 3 N.W.L.R. 14 AND UWAIFO VS. A.G., BENDEL STATE (1982) 7 S.C. 124 be decided in accordance with the Law as at the time the cause of action arose.”Per AGUBE, J.C.A.(P. 75, paras. A-E)

 

10. EVIDENCE – DOCUMENTARY EVIDENCE: Effect of documentary evidence which has more substantial support of the oral testimony

“Before rounding up let me reflect on the dictum of Nwaemeka Agu J.S.C. in KIMDEY & ORS VS. MILITARY GOVERNOR OF GONGOLA STATE & 7 ORS (1988) 5 S.C. 46 at 97 which is to the effect that where the documentary evidence before the court goes both ways and one side has a more substantial, support of the oral testimony before the trial Court, the set of documentary evidence which has more substantial support of the oral testimony out weighs the other and that if as it was the case before the Supreme Court, the trial Court prefers that set of documentary evidence, the appellate Court should not interfere. There is no doubt that the Learned Justice of the Supreme Court had stated the obvious. However, each case must be viewed and determined by the peculiar facts and circumstanoes surrounding it.”Per AGUBE, J.C.A.(P. 100, paras. A-D)

 

11. COURT – DUTY OF COURTS: Guiding principles on Courts in trial of Civil cases

“I wish to recall the immortal words of Fatayi Williams J.S.C. (as he then was) on the guiding principles on Courts In their trial of Civil cases as stated in the case of MOGAJI & ORS VS. ODOFIN & ANOR (1978) 4 S.C. 91 at 94 inter-alia: ……. “before a Judge whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the Plaintiff on one side of the scale and that of the defendant on the other side and weigh them together.” This in essence means that a trial Judge in a Civil case before him would normally set out the issues joined by the parties from their respective pleadings, assemble the evidence elicited by either side on the issues so joined and then weigh them in the imaginary scale of justice in order to find out which of the evidence preponderates the other by the quality of the probative value of the testimony of the witnesses and the documentary exhibits tendered. See AROMIRE VS. AWOYEMI (1972) 1 ALL N.L.R. 101 and also Per Eso J.S.C. in BELLO VS. EWEKA (1981) 1 S.C. 101 at 118 – 120.”Per AGUBE, J.C.A.(Pp. 84-85, paras. F-D)

 

12. EVIDENCE – ESTOPPEL PER REM JUDICATAM: Effect of a successful plea of statute of limitation

“I am of the view that a successful plea of statute of limitation can ground a plea of Estoppel per rem judicatam. I derive fortification from the recent case of ABUBAKAR VS. B.O. & A.P. LTD (2007) 18 NWLR (Pt. 1066) 319 which facts are almost in parimateria in all respects with this appeal except that it is not a Chieftaincy matter. The eminently Learned Justices of the Supreme Court and in particular per Ogbuagu J.S.C. appositely laid the question to rest when he held thus:- “Where a Court of competent jurisdiction, has settled, by a final decision, the matters in dispute between the parties none of the parties or his privy/privies may re-litigate that issue again by bringing a fresh action. The matter is said to be res judicata. The estoppel created is said to be by record inter partes. In other words, the rule of estoppel per rem judicatam requires that where a final decision is given by a Court of competent jurisdiction, the parties thereto cannot be heard to contradict the decision in any subsequent litigation between them respecting the same subject matter. The plea is based on the principle of public policy that since the adverse party has no cause of action against him especially where a court has given him a final decision (like deciding that it has no jurisdiction to entertain the matter and there is no appeal against that decision), the Court lacks the jurisdiction.” See the cases of OSURINDE VS. AJAMOGUN (1992) 6 NWLR (Pt. 240) 156; OLORIEGBE VS. OMOTESHO (1993) NWLR (pt. 270) 386; OMOKHAFE VS. ESEKWEMO (1993) 5 NWLR (Pt. 309) 58; OGBOGU VS. NDIRIBE (1992) 6 NWLR (pt. 245) 6 – 7 S.C. 221. I shall round up this issue of estoppel by referring to the Lead Judgment of Mukhatar J.S.C. at page 368, in the said ABUBAKAR VS. B.O. & A.P. LTD (supra) when she posited that once a matter is struck out for want of jurisdiction as was done on June 12th, 1985 by Oyeyipo emeritus C.J; the only option opened to the Plaintiff/Respondent and his famiiy as an aggrieved party was to proceed on appeal rather than reopen the case as they did before Fabiyi J. (he as then was) in 1990. The judgment of the Court of Appeal that set aside that of Fabiyi J. has not enhanced their status in this case.”Per AGUBE, J.C.A.(Pp. 78-80, paras. E-A)

 

13. APPEAL – INTERFERENCE WITH FINDINGS OF FACT OF A LOWER COURT: When an Appellate Court will interfere with findings of fact of the Trial Court

“It is trite that there is a presumption that the decision of a trial Court on facts are correct and within its province but where a trial Court abjudicates its responsibility of using the best opportunity of hearing and watching the demeanour of witnesses or deliberately shuts its eyes to observable facts or fails to draw proper inferences from observable facts like the judgments tendered by the Defendant then this Court in its appellate jurisdiction is in as good a position to interfere with such findings of fact of the trial Court and draw the necessary inferences. See Per Eso J.S.C. in OMOREGIE VS. IDUGIEMWANYE (1985) 2 NWLR (Pt. 5) 41 at 56; OGBECHIE VS. ONOCHIE (1986) 2 NWLR (pt. 23) 484 at 493.”Per AGUBE, J.C.A.(P. 100, paras. D-G)

 

14. COURT – JURISDICTION OF COURT: Whether the Trial Judge must pronounce on the jurisdictional issue raised by the Plaintiff

“I am minded to draw inspiration from the dictum of Nnaemeka Agu J.S.C. who posited in the case of A.G. KWARA STATE VS. OLAWALE (1993) 24 N.S.C.C. 110 AT 119 paragraphs 5 – 20 (a case which incidentally arose from Igbomina Ekiti Division and subsequently Irepodun Local Government and which subject matter like the present Appeal was a chieftaincy dispute) that:- “One fact that cannot be denied in practice is that it is recognized that because of the paramountcy of an issue of jurisdiction it is sometimes necessary for the court to hear some evidence first for a correct determination of it, even though it might have disposed of the issue in limine. In my view, when the issue of jurisdiction is determined on the pleadings, the law is that it is determined on the Plaintiffs pleadings in his Statement of Claim and not on the defendant’s answer in the Statement of Defense. For this see IZENKWE VS. NWADOZIE 14 W.A.C.A. 361 at P. 363, ADEYEMI & 4 ORS. VS. OPEYORI (1976) 9 -10 S.C. 31. In other words, when the Plaintiffs pleading in the Statement of Claim is unambiguous and clearly pleads facts from which the issue of jurisdiction could be settled one way or the other, it is proper material to determine that issue.” The Learned emeritus Justice of the Supreme Court held further that where the Court in the exercise of its undoubted power to inquire whether in fact its jurisdiction has been ousted (for which see Barclays Bank of Nigeria Ltd. vs. Central Bank of Nigeria (1976) 1 ALL NLR 409 at 42; sees the need to hear evidence in order to inquire into the ouster of its jurisdiction, the court cannot after evidence had been called, gloss over the evidence elicited by the Defence, even though in the final analysis, the Plaintiff’s case in the Statement of Claim is still the most important factor.”Per AGUBE, J.C.A.(Pp. 50-52, paras. G-A)

 

15. EVIDENCE – PROOF OF NATIVE LAW AND CUSTOM: Whether Native Law and custom judicially noticed must be proved by evidence

“Again, there are authorities galore on the well-established principle of Law that native Law and custom is a matter of fact, which must be proved by evidence to the satisfaction of the Court unless such custom has assumed such notoriety and has been so frequently followed by the Courts such that it becomes judicially noticed. See OLOWU VS. OLOWU (1985) 3 NWLR 372; AGBAI VS. OKOGBUE (1991) 7 NWLR 391; GIWA VS. ERINMILOKAN (1961) 1 ALL NLR 294 at 296 and ADEYEMI & ORS VS. BAMIDELE & ANOR (1968) 1 ALL NLR 1 at 6. See generally Section 14 (1), (2) and (3) of the Evidence Act.”Per AGUBE, J.C.A.(P. 86, paras. A-D)

 

16. LIMITATION LAW – STATUTORILY BARRED CLAIM: Effect of the Plaintiff’s claim being statute barred

“With the greatest respect, by the decision of the Supreme Court earlier cited, it has been settled that by striking out of the first suit for want of jurisdiction which decision has not been appealed against, the status quo ante still subsists. Moreover since the claim of the Plaintiff is statute barred it is stale dead and buried and never to be revived. The rights of the parties have been settled for good and by the Latin maxim ‘interest rei publica ut sit finis lituim’it is for the common good that there should be an end to litigation. See per Lord Guest in the case of CARL ZEIS STIFFTUNG VS. RAYNER & KEELERS (NO.2) (1967) 1 A.C. 853 at 933.”Per AGUBE, J.C.A.(Pp. 81-82, paras. G-B)

 

MAIN JUDGMENT

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment):

This is an appeal against the judgment of Honourable Justice O. Ajayi sitting at the Ilorin Division of the High Court of Kwara State whereby he granted all the reliefs sought by the Plaintiff. The said judgment was delivered on the 21st day of December, 2005. The Plaintiff (now Respondent) had in the lower court in his writ of summons and Further Amended Statement of Claim No.2 sought for the following reliefs: –

“i.      That under native law and custom of Ganmo, the position of or the right to become Bale of Ganmo, is the exclusive preserve or right of the plaintiff’s family who are the direct male descendants of the first Bale of Ganmo, Bale Sunmonu Okunoye.

“ii.      That there is no other family other than that of the plaintiff who are entitled to contest for and occupy the stool of Bale of Ganmo under the native law and custom.

“iii.     That the children, descendants or blood relations of the defendants are not entitled to become the Bale of Ganmo under the native law and Custom of Ganmo, they not being in any way related to the first Bale of Ganmo.

“iv.     DECLARATION that the Defendants alleged letter of appointment dated 17th October, 1990 is illegal inconsistent with history and official records on the head of Ganmo Community therefore, irregular improper and a nullity.

1. A DECLARATION that the Defendants alleged letter of appointment dated 17th October, 1990 is illegal inconsistent with history and official records on the head of Ganmo Community therefore, irregular improper and a nullity.
2. AN ORDER setting aside the purported appointment by the Ifelodun Local Government Council of the Defendant as baale of Ganmo.
3. AN ORDER directing the defendants to cease from interfering with or continue to desecrate the native law and Custom of Ganmo as declared by the Court and forthwith cease from parading, presenting, calling or introducing himself to any person or authority as the Bale of Ganmo in Ifelodun Local Government Kwara State.”

Issues were joined by the parties and at the close of pleadings parties called their respective witnesses and tendered documentary exhibits and further filed written Addresses which culminated in the judgment of the lower court. Dissatisfied with the decision of the lower Court the Appellant, through his Counsel filed a Notice of Appeal with five grounds which are hereby reproduced hereunder with their particulars as follows:

“(1). The learned trial Judge erred in law when he held inter alia: “The Plaintiff’s evidence was not controverted while the documents tendered fully support the case for the Plaintiff and this occasioned a miscarriage of justice. ”

PARTICULARS OF ERROR.

1. The evidence of the two witnesses called by the Plaintiff was challenged or controverted as they were rigorously cross-examined on all material facts.
2. The Defendant called two witnesses who gave very cogent evidence and tendered documents to controvert the case of the Plaintiff.

iii.      Most of the documents tendered by the Plaintiff are of no probative value having been made in a language unknown to the Court.

1. Documents tendered by the Defendant which have more probative value and super ceded those tendered by the Plaintiff were either not considered at all or improperly evaluated by the trial Court.

“GROUND (2): – The learned trial Judge erred in law when he held as follows: “I hold the plaintiff as the rightful person entitled to be called and established as the Baale of Ganmo …..” and this led to a miscarriage of justice.

PARTICULARS OF ERROR

1. The plaintiff did not claim that he was the Baale of Ganmo or that he was entitled to be so called.
2. The court lacked the jurisdiction to grant the relief not claimed by the plaintiff.

“(3). The learned trial Judge erred in law when he failed to make a pronouncement on the date the cause of action in this case arose and this failure occasioned miscarriage of justice to the Defendant.

PARTICULARS OF ERROR

1978. There is ample evidence by the Defendant before the trial Court that the cause of action arose in 1978.
1979. Both parties in their written addresses made an issue of the period of accrual of the cause of action.

iii.      By virtue of the law in force in 1978, the learned trial Judge lacked the jurisdiction to entertain the claims of the Plaintiff.

1. A court is duty bound to consider and make a pronouncement on all issues properly raised for determination before it.

“(4). The learned trial Judge erred in Law when he held as follows: ”Because the Defendant could not produce reports on the alleged investigation of who should be Baale by Local Government i.e. The Ifelodun/Irepodun Traditional Council the Plaintiff cannot be bound by a report signed by the Chairman and Secretary to the Council” and this led to a miscarriage of justice.

PARTICULARS OF ERROR

2. The Reports in question were admitted by the trial Court as Exhibits D1 and D2.
3. There was evidence before the court that both the Plaintiff and Defendant’s predecessors appeared and testified in Exhibit D2.

“5.     The judgment of the learned trial Judge is unwarranted, unreasonable and cannot be supported having regard to the weight of evidence.”

Briefs were exchanged in this Honourable court in accordance with the Rules and on the 24th day of January, 2008 when this appeal was heard, learned Counsel for the Appellant adopted the Appellant’s brief filed on the 18th day of January, 2007 and the Reply Brief dated 10th October, 2007 and filed same day and called on the court to discountenance the preliminary objection raised. In the Respondent’s Brief as regards Grounds 3, 4 and 5 of the Appellant’s Grounds of Appeal; allow the appeal and set aside the judgment of the lower Court. On the part of the Learned Counsel for the Respondent, he adopted the Respondent’s brief dated 10th September, 2007 and deemed filed on the 26/9/07. It would be recalled that the learned Counsel for the Respondent filed a Notice of Preliminary objection on the 16th of October, 2007 even after filing the Appellant’s Brief of Argument. However, on the hearing date – 24/1/08 – the Learned Counsel for the Respondent sought to abandon the objection in respect of Grounds 3 and 4 and limited same to Ground 5 only.

In the Brief settled by Joseph S. Bamigboye Esq. the learned Counsel to the Appellant, four issues were distilled from the Grounds of Appeal which are stated hereunder as follows:-

1. Whether the failure of the trial court to make a pronouncement on the fundamental issue of jurisdiction as raised by the Appellant on the date the cause of action arose did not rob the appellant of fair hearing.

Citing again ALHAJI MURIANA ADESOLA KAREEM VS. UNION BANK OF NIGERIA LTD & ANOR (1996) 5 S.C.N.J. 115, 126 the learned Counsel for the appellant urged us to hold that the issues raised as to the cause of action and jurisdiction were fundamental enough and the holding by the court that the cause of action arose in 1990 without any iota of reason was a miscarriage of justice and denial of fair hearing to the Appellant. He therefore urged us to answer issue Number One (1) in the affirmative and allow the appeal even on the issue alone.

On ISSUE NUMBER 2: whether the trial court’s findings which are not supported by evidence did not occasion a miscarriage of justice sufficient in law to vitiate the judgment of the lower court, learned counsel submitted that the reason for preferring the Respondent’s case is flawed and incorrect as the Respondent’s evidence was confronted frontally both in pleadings during cross-examination and by the Appellant’s testimony.

He noted that the Appeal did not only traverse the Respondent’s case but copiously led evidence as to the settlement of Ganmo, land ownership in Ganmo, the institution of the Bale of Ganmo’s stool, ascension and succession and the unbroken chain to the stool in the family which the trial court in the cause of stating the evidence elicited by the parties found out that the Appellant controverted the evidence of the Respondent.

It was therefore submitted that the holding of the learned trial Judge at page 305 of the Records and further that the documents tendered by the Appellant did not controvert the Respondent’s evidence is utterly without basis and perverse as even some of the Exhibits tendered by the Plaintiff/Respondent like Exhibits 1 and 12 written in Yoruba without English translations are worthless.
As for the reliefs claimed by the Respondent in the lower court, Counsel to the Appellant contended that none of them asked for the Respondent (Plaintiff) to be “called and established as Bale of Ganmo” but that their nearest relief is that the Respondent’s family has the exclusive preserve to become the Bale of Ganmo, even though from evidence the Respondent’s family had always assumed “Magaji” Ganmo.

Relying on OLADEJO ADEWUYI AJUWON VS. FADELE AKANNI (1993) 12 S.C.N.J. 32, 46 – 47 and OSENI VS. DAWODU (1994) 4 S.C.N.J. 197 at 207, he submitted that an appellate Court will not as a general rule interfere with the finding of facts of a trial court where the findings are supported by evidence but that where the findings of facts are not supported by evidence and are substantially erroneous on the face of the records then such findings are perverse and an appellate court will interfere and reverse the decision based on such findings.

According to learned Counsel to the Appellant, apart from the findings of the lower court being perverse, they showed a total lack of consideration of the case of the Appellant, his evidence and documents tendered and thereby occasioned a miscarriage of justice to the Appellant whose case was neither considered nor evaluated and cited again the dictum of the Supreme Court in MOSES OKHUAROBO VS. EGHAREVBA AIGBE (2002) 9 NWLR (Pt.771) 29, 85 on what is meant by a perverse judgment to urge the court to set aside the perverse judgment and answer Issue Number 2 in the affirmative and allow the appeal.
On ISSUE NUMBER 3 which is whether contrary to the court’s holding, the Respondent is not bound by Exhibits D1 and D2, a Decision and Report respectively of a panel of investigation on the Ganmo Bale stool to which his family voluntarily submitted and before which they copiously testified, Learned Counsel recalled that there is evidence before the lower court that in 1975 the Respondent’s family complained to the then Igbomina/Ekiti Division responsible for Ganmo against one Alhaji Karimu Kolawole, the Appellant’s immediate predecessor for parading himself as Bale of Ganmo which complaint necessitated Exhibit 31 addressed to the said Karimu Kolawole Akanbi and that the Kolawole family was unhappy with the letter which in effect stripped them of what was their rightful claim to the Bale of Ganmo stool as the Respondent’s family has never claimed to be Bale but Mogaji as the said Exhibit 31 would reveal.
The Appellant’s family then protested and challenged Exhibit 31 which led to the setting up of a Panel of Investigation of the Igbomina/Ekiti Traditional Council to investigate the claim of the parties to the Bale stool. It was submitted by learned Counsel that the applicable law then (1975/1978) was the Constitution of the Federal Republic of Nigeria 1963, Section 161(3) thereof which he quoted as having then ousted the jurisdiction of courts in Chieftaincy affairs noting that it follows then that the highest adjudicating body on Chieftaincy disputes was an Administrative panel of Inquiry which decision is binding on all parties to the dispute. Exhibits D1 and D2 show that the Appellant’s family and Respondent’s family submitted to the jurisdiction of the panel and copiously testified by oral and documentary evidence, he further submitted.

Learned Counsel again pointed out that the panel, based on the evidence found in favour of the Appellant’s family, and late Alhaji Karimu Kolawole, Appellant’s predecessor was confirmed by the Ifelodun Local Government (which succeeded Igbomina/Ekiti Division) as Bale of Ganmo and issued Exhibit D9.

Placing reliance on the cases of MICHAEL IFEANYI OJIBAH VS. UBAKA OJIBAH (1991) 7 S.C.N.J. 156 at 169 and EMMANUEL O. IGWEGO VS. FIDELIS OJUKWU EZEUGO (1992) 7 S.C.N.J. 284 at 297-298 on the binding effect of an Arbitration (Investigation Panel), he contended that by Exhibit D2 and D1 (the Proceedings and findings of the Panel), both the Appellant and Respondent are bound by the decision of the Panel which is to the effect that the Appellant’s family is entitled to the Bale of Ganmo stool as against the Respondent.

On the court’s reasons for holding that the Report of the panel of Investigation is not binding which are stated in paragraph 4.36 of the Appellant’s Brief the Learned Counsel for the Appellant posited on the first reason that the Report and decision thereon were submitted to the Ifelodun Local Government which implemented the recommendation by issuing Exhibit D9 to Appellant’s immediate predecessor-in-office Alhaji Karimu Kolawole. Thus, he added, Exhibit D9 repudiated Exhibit 31 upon which the Respondent and trial Court relied. Counsel then relied on Section 78(j) and (k) of the Kwara State Local Government Laws and Section 115 of the Evidence Act to submit that there is the presumption that Exhibits D1 and D2 are regular and made pursuant to the said Local Government Laws which presumption was not rebutted by the Respondent.
Further on the holding by the lower court that it discountenanced the said Exhibits D1 and D2 Learned Counsel argued that the said Exhibits are public Record of proceedings before a Statutorily provided for and authorized body and are therefore presumed to be genuine.

On the second ground why the said Exhibits were invalidated by the court below, the learned Counsel again submitted that the holding by the learned trial Judge that they were not produced and therefore non-existent, contradict the third ground that only the Chairman and Secretary Signed the Report. He then wondered how the learned trial Judge came to the conclusion that the Report was signed only by the Chairman and Secretary if it was nonexistent.
On the third reason which is that the Report was signed only by the Chairman and Secretary the learned Counsel for the Appellant observed that parties admitted submitting themselves to the panel and none of them has claimed to have been misrepresented in the panel Report neither did any of them complain of non-appraisal of any document which they submitted to the panel. Again he wondered who should sign an Investigation Panel’s Report if not the Chairman and Secretary particularly where no member of the panel has disclaimed the said Report. On the whole, he urged us to hold that the learned trial Judge’s finding in this respect is perverse and that this Honourable Court resolves Issue Number 3 in favour of the Appellant.

As for ISSUE Number 4 which is whether the judgment of the lower court is not against the weight of evidence, Learned Counsel for the Appellant submitted that parties agreed that ownership of Ganmo land by first settlement is directly related to the Chieftaincy stool of Bale, and therefore the owner of land by first settlement is by admission entitled to the Bale stool of Ganmo. Making references to paragraphs 24 and 25 of the Defendant/Appellant’s pleadings and paragraph 3 of the Plaintiff/Respondent’s Reply to paragraphs 27 and 28 of the Further Amended Statement of Defence, the Learned Counsel for the Appellant submitted that the area of divergence between the parties as far ownership of land and the stool by first settlement is concerned is that where as the Defendant/Appellant asserts ownership of Ganmo lands and pleads several judgments the Respondent’s family asserts that their land was never awarded to the Defendant/Appellant’s family by any subsisting judgments.

Thus the burden of proof lies in the respective parties, Counsel further submitted. According to him, the Appellant discharged that burden by tendering Exhibit D3 and D4 which are judgments in favour of Appellant against the whole Ganmo Community and its environment over the whole Ganmo land and its surrounding villages of which the Respondent family was a party therein, the whole Ganmo land was awarded to the Appellant’s family.

Not being satisfied, the Respondent’s family with others in Exhibits D3 appealed to the Court of Appeal and subsequently to the Supreme Court in Exhibit D4 which apex court confirmed the judgments of the Courts below on the ground that they (Respondents) had no answer to the first settlement established by the Appellant’s family.

The learned Counsel then pointed out that the learned trial Judge rejected the Supreme Court Judgment on the ground that it was not in existence when pleadings were settled, which is most spurious, as according to Counsel, the Supreme Court was not an interested party to the case.

Relying on the authority of BANKOLE VS. PELU (1991) 8 NWLR (Pt.211) 523 at 541 it was submitted that since the Appellant had by the Supreme Court judgment established and traced the ownership of Ganmo land to his progenitor, the onus shifted to the Respondent to show that his family land was not awarded to the Appellant’s family which the Respondent failed to do and the lower court refused to make a specific finding on this crucial fundamental and weighty evidence in favour of the entitlement of the Appellant to the Ganmo stool. Reference was again made to the case of OKENIYI VS. AKANBI (2002) WRN 147, 156-157 on the duty of a trial court to resolve conflicting issues by preferably making specific findings thereon in order to come to the just determination of a case. The failure of the learned trial Judge to do this, has warranted his assertion that the judgment is against the weight of evidence. Still on the findings and judgment of the court below the learned Counsel for the Appellant cited and relied on the cases of DURU VS. NWOSU (1989) 4 NWLR (Pt.113) 24, 35; CHIEF OPEOLA VS. S. O. FALADE (1991) 2 NWLR (pt.173) 303, 313 to urge this Court to resolve Issue Number 4 in favour of the Appellant and allow the appeal.

In the Brief settled by Roland Otaru Esq. (SAN) for the Respondent two Issues were formulated for determination after giving the gist of the case of the parties in the lower court. The Issues are as follows: –

“1.     Whether the learned trial Judge failed and/or refused to make a pronouncement or decision on the jurisdiction of court to adjudicate on the issues presented or submitted before her by the parties herein?

“2.     Whether the evaluation of evidence of the parties (both oral and documentary) by the trial court was proper, adequate and not perverse.”

Arguing Issue Number One (1) the learned Senior Counsel submitted that the learned trial Judge made a pronouncement and/or decided the threshold issue of jurisdiction contrary to the contention of Appellant’s Counsel that the trial Judge did not pronounce on the issue particularly as it related to the Statute of Limitation.

He drew our attention to paragraphs 27 and 28 (b) of the Defendant’s FURTHER AMENDED STATEMENT OF DEFENCE” which were quoted in extenso and the Plaintiff/Respondent’s averments in paragraphs 1, 3, 5 and 8 of his REPLY TO the Further Amended Statement of Defence in which the issue of jurisdiction was raised and countered by the parties.

The learned senior Advocate also, made references to the findings of the learned trial Judge at page 294 of the Record of proceedings and at pages 295 – 296 thereof where the Judge resolved the issue and held that she had the power to adjudicate on the matter and submitted that the crux of the matter is Exhibit D8 dated 17th day of October, 1990 culminating in the judgment of this Suit which was filed on the 5th day of April, 1991. Making further references to paragraphs 21(1) of the Further Amended Statement of claim No.2 and the averment of the plaintiff therein and paragraph 17 of the Further Amended Statement of Defence where the Defendant pleaded the said letter, he contended that the learned trial Judge was right in her findings that the lower court had jurisdiction in determining the plaintiff’s claim.

Placing reliance on the authorities of ADEYEMI VS. OPEYORI (1976) 1 FNR 36, OGBORU VS. S.P.D.C. NIG. LTD. (2005) 17 NWLR (pt.955) 596 at 614 per Abba Aji, J.C.A. and the holding of the learned trial Judge at page 296 he asserted that it has been held by a plethora of cases that it is the claim of the plaintiff that determines the jurisdiction of the court.

It was therefore his final submission on this first issue that the learned Counsel for the Appellant was wrong to contend that the learned trial Judge did not pronounce on the issue of jurisdiction. He urged this court to answer the question posed by Issue Number One (1) in favour of the Respondent and dismiss the appeal.

On ISSUE NUMBER 2, which touches on evaluation of evidence, the learned Senior Advocate submitted that the learned trial Court properly and adequately evaluated the oral and documentary evidence before arriving at its decision. Turning to the evidence of traditional history relating to the Baaleship of Ganmo it was argued that the Plaintiff elicited cogent, credible and unassailable evidence relating thereto and traced his genealogy from Summonu Okunoye as first settler in Ganmo as pleaded in paragraph 3 of the Further Amended Statement of claim No.2. Learned Counsel also alluded to evidence of Alhaji Jimoh Akanbi at pages 232 – 233 of the Records; that of PW2 Yekini Salawu at page 239 thereof; their answers to cross-examination and Exhibits 1 – 31, and Tax documents Exhibits 32 – 44 tendered by the Plaintiff/Respondent.
He also noted that the PW2 was not cross-examined on the traditional history and the unbroken claim of ascension to the Baaleship stool of Ganmo by the Plaintiff’s progenitors. Learned Counsel for the Respondent further alluded to the evidence of DW1 Abdul Ganiyu Abdul Kadiri the Ikolaba of Ganmo and one of the purported Kingmakers who according him made certain admissions under cross-examination as to the plaintiff being a descendant of Sunmonu Okunoye and the rest of his Survivors. Also the evidence of the DW 2 Joshua Akande the secretary of Igbomina Traditional Council, Ajassepo was highlighted as well as the documentary Exhibits tendered by Plaintiff/Respondent and submitting that the Plaintiff pleaded and gave evidence that Zuberu was one of the Village heads of Ganmo from Sunmonu Okunoye family which evidence was accepted by DW1 and relying on the case of OYEBISI VS. GOVERNOR OF OYO STATE & 9 ORS. (1998) 11 NWLR (pt.574) 441 at 454 per Adamu J.C.A. as to Customary Law and usages and the nature of evidence thereof which the courts would act upon he contended that the DW 1 was the only person who gave evidence for the Defendant on Custom but that DW 2 is not indigenous to Ganmo and knows nothing about the founder of Ganmo. On the other hand it was submitted, the evidence of PW1 was corroborated by that of the PW2 on native law and custom relating to the Baaleship of Ganmo Chieftaincy.

On the importance of records kept by former Colonial masters, he referred to the dictum of Uwaifo J.C.A. (as he then was) in OGOLOGO VS. UCHE (1998) 11 NWLR (Pt.572) 34 at 46 and submitted that the Plaintiff proved beyond peradventure the rightful claim to the Baaleship of Ganmo by Sunmonu Okunoye and family to the exclusion of others based on the oral and documentary evidence which were not faulted by the Appellant.
Turning to the findings of the court vis-a-vis the evaluation of evidence before the court learned senior Counsel asserted that the court painstakingly evaluated the evidence of parties based on the oral testimonies and documents before her and came to the conclusion at pages 297 – 298 of the Record. He particularly focused on Exhibit D14 dated 6th March, 1978 and submitted that the Defendant surreptitiously obtained the said Exhibit in order to give the impression that he was authorized to collect taxes by the Ifelodun Local Government but that the document was stamped as dispatched on the 20-6-2000 when the Suit was still pending. On the other hand, learned Senior Counsel maintained, the same Local Government vide a letter dated 25th May, 1984 wrote to the Plaintiff’s progenitor Mallam Aileru Jibril Baale/Mogaji of Ganmo expressing Council’s gratitude to him for prompt collection of taxes from his domain. Tax receipts for the said collections were tendered as Exhibits 33, 34, 35 – 41 with their respective dates, learned counsel further submitted.

Other documents highlighted by the learned senior Advocate as establishing that the right to the Baaleship stool of Ganmo resides in the Plaintiff’s family include Exhibit 44 dated 14th June, 1979 from Ifelodun Local Government to Mallam Aileru Jibril which is titled “STANDARD BANK DRAFT NO. IL002235 FOR N2,187.00 SBX,” which according to Counsel knocks out the bottom of the Appellant’s case that his progenitor was appointed Baale of Ganmo in 1978; Exhibit 45 a “LETTER OF CONDOLENCE” from the Chairman Ifelodun Local Government dated 1stday of July, 1999 to the Elders of Ganmo Community on the death of Mallam Ailera Jibril described in the said letter as the “12th baale of Ganmo” thus supporting the Plaintiff/Respondent’s pleadings and evidence that Mallam Ailera Jibril was the 12th Baale of Ganmo in paragraph 3 of the further Amended Statement of Claim Number 2.

On the submission by the Learned Counsel for the Appellant that the Lower Court based her judgment on documents which were not written in the language of the Court the Learned Senior Counsel countered that Exhibit 1 was the Minutes of meeting of the Idofian District Council held on the 12th day of November, 1960 and that the purpose for tendering the said document was to show that the then Baale of Ganmo “Amodu Bale Ganmoh” who was one of the Plaintiff’s Predecessors attended the meeting as Number II on the said Exhibit and that his name needs no interpretation.

As for Exhibits 2 – 27 he noted that they had their English interpretation. The said documents were then enumerated and analyzed with their English Equivalents at pages 33 – 34 of the Respondent’s Brief to submit that from the analysis it is clear that the learned trial Judge based her judgment on oral and documentary evidence tendered before her.

Citing the authority of KIMDEY 8 ORS VS. MILITARY GOVERNOR OF GONGOLA STATE & 7 ORS (1988) 5 S.C. 46 at 97 Per Nnaemeka-Agu J.S.C., he urged this Court to hold that the findings of the Court based on the oral and documentary evidence are unassailable as the Plaintiff/Respondent’s documentary evidence more substantially support this oral testimony as against those of the Appellant.
On the Learned trial Judge’s findings on the power(s) of the Local Government Traditional Council to appoint the Baale of Ganmo, it was submitted by the Learned Senior Counsel for the Respondent that the Learned trial Judge rightly held that based on evidence and decided authorities relating to the relevant Kwara State Laws, the Traditional Council has no power or authority to appoint the Baale of Ganmo. He referred to pages 300 – 302 of the transcript record of proceedings and reproduced verbatim the findings of the Court on the issue in pages 36 – 39 of the Respondent’s Brief.

Our attention was drawn to the case of AMUDA VS. ALHAJI ABDULKADIR ADELODUN & ANOR (1997) 5 NWLR (pt. 506) 480 at 487 cited by the Learned Counsel in his consideration of the power of the traditional Council noting that the same Ifelodun/Irepodun Traditional Council that recommended the appointment of the Appellant in the case of AMUDA VS. ADELODUN (Supra) also recommended the appointment of the Appellant in this appeal.

Again, it was the Learned Counsel for the Respondent’s further contention that the Baaleship of Ganmo is not a graded Chief and deriving authority from the dictum of Mahmud Mohammed, J.C.A. (as he then was) where section 15(1) of the Chiefs (Appointment and Deposition) Law of Kwara State (as amended) was interpreted, the case of JUBRIL VS. KOLAWOLE (1999) 5 NWLR (pt. 446) 34 at 44 – 45 was cited, it was submitted that from the above cited case the Ifelodun/Irepodun Local Traditional Council is not saddled with the responsibility to appoint the Appellant herein.

The Learned Senior Advocate noted that JUBRIL VS. KOLAWOLE above referred was an interlocutory appeal emanating from this present case and the Court of Appeal held that the Balle of Ganmo is not a Chief under the provisions of the Chiefs (Appointment and Deposition) Law of Kwara State (as amended).
In response to the submissions of the Learned Counsel for the Appellant at page 15 paragraphs 4.42 – 4.48 the Learned Senior Advocate submitted as follows:-
1. That there was no evidence before the trial Court that the parties admitted that the Baaleship stool is determined by ownership of land through the first settler. Referring to the averments of the Respondent in paragraphs 3 and 6 of the Further Amended Statement of Defence and the evidence of the PW1 Alhaji Jimoh Akanbi who was said to be (read) not less than 100 years old as at 18/11/97 when’ he gave evidence to the effect that Ganmo was founded by Baale Sunmonu Okunoye which witness was not cross-examined, he urged the Court to resolve the issue of the traditional history of founding of Ganmo in favour of the Plaintiff/Respondent.

Rounding up his submissions with the authority of AJAO VS. ADEMOLA (2005) 3 NWLR (Pt. 13) 636 at 656 which is to the effect that the ascription of probative value to the evidence of parties is pre-eminently, the duty of a trial Judge or Court he urged this Honourable Court to uphold the Judgment of the Learned trial Court and dismiss the Appellant’s appeal in its entirely.

Before resolving the issues as formulated by the parties, it is only necessary to state the facts of this case as pleaded by the parties in their respective Statement of Claim and Statement of Defence.

The Plaintiff/Respondent claims to be the Baale of Ganmo – the Traditional Head of Ganmo and a direct descendant of Baale Sunmonu Okunoye, the first Baale of Ganmo – who has brought this action far himself and in representative capacity of the Baale Okundye family of Ganmo who are of the same stock with the Mogaji Are family of Ilorin both being descendants of Afonja. He asserts that Ganmo is substantially a Yoruba Community/Settlement and according to Yoruba custom the first settler assumes the position of Baale or Head of the community and his descendants in male line are entitled to occupy the position.
The Plaintiff’s predecessors who were the traditional Heads of Ganmo and direct descendants who like their direct descendants originally settled at Ilorin were traced as follows:-

(1) Sunmonu Okunoye; (2) Idris; (3) Jubril; (4) Mamanu; (5) Haruna; (6) Garuba; (7) Hassan (8) Zuberu; (9) Atiku; (10) Hamadu; (11) Suberu Naibu (12) Aileru Jibril and (12) Salami Olori (the present Baale/Magaji of Ganmo).
The Plaintiff alleges that the Defendant, to his prejudice has been deliberately distorting the history and native law and custom of the Baale of Ganmo to the effect that 1st Defendant’s ancestor was the founder of Ganmo and therefore the first Baale and Head of Ganmo Community.

The Plaintiff contends that Ganmo had never been part of Ajase-Ipo Community and that there was no law that gives the Oba of Ajase-Ipo power to act as Prescribed Authority to install or turban the Baale of Ganmo and that Ganmo is a traditional ruling house Chieftaincy not graded or recognized by the Government of Kwara State and as such there being no legal Notice, order or regulation to this effect, the nomination, approval or appointment and installation of Baale of Ganmo are never the affairs of the Government of Kwara State or any of its legal and constitutional agencies but a domestic matter of the ruling house and Community.

He relies on copies of letters in respect of notification of his appointment as Baale of Ganmo and asserts further that under native law and custom the late Sunmonu Okunoye sometimes addressed or called Baale or Magaji led the first settlers at Ganmo and became the first Baale of Ganmo, consequently, his children of the male line only, became and have continued to be and entitled to become the Traditional Heads of Ganmo and evidence to that effect world be led.
It is to the knowledge of the Defendant and before the irregular disruption of the Plaintiff’s tenure that it was the Plaintiff who at various times collected taxes and represented Ganmo as its Head, Magaji or Baale of Ganmo and that the late Olupo of Ajase- Ipo, Oba Salin Alebrosu in his personal capacity without any traditional customary or historical precedent, power or authority announced his right to install and turban Baale of Ganmo.

The Plaintiff further asserts that the first Baale Okunoye appointed Sub-chiefs (Ilu King Makers) which title holders have continued till date to be in the families of their original holders and that the traditional and customary procedures which is normally associated with appointment and installation were fulfilled by the Plaintiff’s family before he was so installed by the Community without opposition from any quarters.

He also avers how he ascended the office of Head of Ganmo Community in 1983 after the passing on of his predecessor and since then has been acting in that capacity and that after the installation ceremonies letters were written and delivered to the Ifelodun Local Government Council to that effect and there after the Plaintiff collected taxes from Ganmo Community which the Ifelodun Local Government acknowledge receipts.

It is also the Plaintiff’s case that the position of tax collector is the same as that of the Traditional Head of the Community and no Government Order or declaration had deposed or restrained him or any of his predecessors as the Baale of Ganmo. Furthermore, when the Defendant’s predecessor threatened disruption of peace of Ganmo by arrogating to himself the title of Baale the matter was fully investigated and the Plaintiff’s predecessor Was affirmed as the Baale and the Defendant’s predecessor declared as an impostor and warned in writing but the Defendant did not challenge the decision which prohibited his predecessor from calling or parading himself as the Head of Ganmo and that all the latter days contrived and produced traditional Council report are influenced and not genuine.

The crux of the Plaintiff’s claim appears to be the averments of the Plaintiff in paragraphs 21(i) and (ii) that sometime in October, 1990, the Defendant, in total disregard and desecration of the history and native law and custom of Ganmo and the order and directive of Igbomina/Ekiti Local Authority Omuaran, purported to be appointed successor to one Karimu Kolawole, as the Baale of Ganmo by Ifelodun Local Government Council.

The Plaintiff also contends that the claim of the Defendant to the authority of the Ifelodun Local Government, as his appointing body was the first and only in history and that he would lead evidence to show that the appointment of the Defendant was in deliberate disregard for or in suppression of official records in so far as they relate to the Plaintiff’s predecessors long occupation of the office of the Baale of Ganmo for about 100 years.

The Plaintiff then pleaded several documents and various correspondences between his predecessors, himself and the various authorities on matters affecting Ganmo Community which documents he enumerated in the Statement of Claim.

The case of the Defendant on the other hand is that the first settler of Ganmo who was his great grandfather was installed the first Baale of Ganmo and not that he assumed that position and that it is true that the Head of Ganmo represented the Community while it was under Ilorin Native authority in the colonial Administration. It was admitted that Ganmo is a town in Ifelodun Local government Area and that the founder of the town, his said great grandfather, was a hunter called Ganna-Nganku who hailed from Oyo also known (as Oyo-Ile) or the (first Oyo).

The people of Ganmo paid obeisance to the Alafin of Oyo in recognition of this fact and Ganmo derived its name from the founder Ganmo-Nganku otherwise called Ganna who was appointed and installed the first Baale of Ganmo by the Alafin of Oyo. ado Maro and Idi Iyalode according the Defendant have symbolic connection with Ganna as the founder of Ganmo which evidence would be given at the trial.

Ganmo, the Defendant insisted had been in existence before Ilorin was founded and thereafter the following people came from Oyo to settle with the original founder Ganna-Nganku:

1. a) Abede, a hunter who settled at Ile Ikolaba in Ganmo,
2. b) Ogunsokun who settled at Ile Igbo in Ganmo
3. c) Adeite who settled at IIe Adeite in Ganmo.
4. d) Okansoso Ekun settled at Ile-Ikolobo in Ganmo.
5. e) Awututu-bi-Olosonu who settled in lie Olu-Ode in Ganmo.
6. f) Bagbayan a “bata” drummer who settled at lie Alubata in Ganmo and
7. g) Agbaleke-Lowoore-Bodi who settled at IIe Agbaleke in Ganmo.

The said Ganna who was installed the Baale of Ganmo in the tenth year of settlement in Ganmo by then Alaafin of Oyo Oba Olabisi Awonbioju during one of his annual homage visits to Oyo, was directed by the Alafin to confer other Chieftaincy titles on deserving lieutenants in Ganmo and on Ganna’s return to Ganmo conferred the said tittles on the following:

1. i) Ikolaba         –         On Abedo
2. ii) Eesa         –      Ogunsokun

iii) Odofln              –        Okansoso – Ekun

1. iv) Ojomu     –     Adeite
2. v) Saiwo           –        Abioye
3. vi) Aro         –     Agbaleke-Lowoore-Bodi

vii) Olu-Ode          –        Awutu-bi-Olosonu.

viii) Alagba            –        Bannimore

1. ix) Iyalode     –     The wife of Bannigbayan.

The Defendant asserted that contrary to the contention of the Plaintiff in paragraph 3 of the Statement of Claim none of the persons’ mentioned in the paragraph was ever installed/recognized as the Baale of Ganmo and none acted in that capacity. According to him, the first man from Ilorin to settle in Ganmo was called Egbarundogbon who was a slave to Sununonu Okunoye, the progenitor of the Plaintiff and before his arrival the following persons had reigned in Ganmo:-

1. a) Bale Ganna-Nganku otherwise called Ganna.
2. b) Bale Akanuru-Ode
3. c) Bale Araka – Nsaka and the said Egbarundogbon came to settle at Ganmo during the reign of Bale Araka-Nsaka. Egbarundogba according to Defendant was the nick-name given to Summon Okunoye’s slave and means 970 cowries which was the amount paid by the slave for the piece of, land allocated to him by Baale Araka-Nsaka and there is still a compound called “lie Egbarundogbon” in Ganmo today.

The Defendant further stated:

1. Mogaji Are or his younger brattier or his descendants never became the Mogaji/Baale or Head of Ganmo and that the following of his (Defendant’s) lineage had reigned as Bale and village Head of Ganmo:-
2. a) Ganna-Nganku ottlerwise Garina
   b) Bale Akanmu-Ode
   c) Bale Araka-Nsaka
   d) Bale Buraimoh
   e) Bale Jinadu
   f) Bale Abefe
   g) Bale Raji Akanbi
   h) Bale Momodu Amoo
   i) Bale Karimu Kolawole
   j) Bale Abdullahi Atanda Kolawole (Defendant)
3. That only members of the Ganna family can aspire to and are entitled to be installed as the Baale of Ganmo, and that contrary to paragraph 9 of the Plaintiff’s Statement of Claim the Baale and Village Headship of Ganmo is a traditional institution recognized by the Government of Kwara state and the Ifelodun Local Government under the jurisdiction of which Ganmo is located as can be gleaned from the letter of Appointment of late Alhaji Karimu Kollawole (the Defendant’s predecessor-in-office) as the Bale or Village Head of Ganmo dated 5th October, 1978 from Ifelodun/Irepodun Traditional Council and another letter dated 17th October, 1990 from Ifelodun Local Government. That there are five kingmakers in Ganmo namely:-
4. a) Chief Ikolaba     –     from Ile Ikolaba
   b) Chief Eesa        –    from Ile Eesa
   c) Chief Ojomu       –     from Ile Adiete
   d) Chief Odofin     –    from Ile Kolobo
   e) Chief Aro       –    from Ile Agbaleke;

and following the death of Alhaji Karimu Kolawole on the 24th day of May, 1990 the King makers in Ganmo under native law and custom unanimously nominated and installed the Defendant as the Baale and thereafter sent his nomination to the Local Government and Military Governor’s office Ilorin which Department approved the Defendant’s appointment. The letter dated 17th October, 1990 conveyed the appointment to the Defendant.

4. That MOGAJI and “BAALE” mean two different things and there is no traditional office known as “Mogaji” existing in Ganmo or any part of the district under Ifelodun Local Government and although the Plaintiff calls himself Magaji he has not been so officially installed by anyone and that neither Sumunonu Okunoye nor any of his descendants has ever installed and will ever be installed Baale of Ganmo.
5. That in response to the allegation of arrogation of title and subsequent prohibition by the Local authority of OMU-ARAN, when the said letter was issued the Defendant’s family protested to the relevant authority which led to the setting up of the Traditional Council Committee on Ganmo Chieftaincy in 1978 which committee took evidence from both decides and a formal Report was published approving the Defendant’s predecessor-in-office Alhaji Karimu Kolawole but the Plaintiff never challenged same until 1980 and 1987 through Court proceedings that went against the Plaintiff’s interest.
6. That with respect to the reliance on tax collection and receipts by the Plaintiff, the then Colonial Administration introduced the Position of Tax collectors without recourse to tradition or custom and while the son of Sumonu Okunoye was appointed tax collector, other persons from Ilorin were also appointed an example of which was one Ajia for Osi- Opin but that there was never a time that the Plaintiff or his predecessor was recognized as Village Head of Ganmo.
7. That by a letter dated 15th February, 1978 and Referenced IF/IL/CHF/3/VOL.II/220 the late Suberu Noibi whom the Plaintiff claimed he succeeded as Magaji, has his appointment terminated as Tax collector for Ganmo for acts of disloyalty and abuse of confidence and that the tax receipts in possession of the Plaintiff and whatever payments he made to the Local Government were arrears of taxes by his late brother Noibi before termination of his appointment more so, where being a Tax collector does not ipso facto confer automatic status of Baale or Village Head.
8. That in reply to paragraph 12 of the Plaintiff Statement of Claim the title of “Mogaji” was an arrogation by some ambitious aliens mostly Moslems from lIorin to Ganmo and other villages and towns in Kwara State. For instance the following persons are said to have arrogated such title to themselves in Ganmo till date:-
9. a) Mogaji Ile Okunoye        –    Aileru Jubril (the initial Plaintiff)
   b) Mogaji Oko              –        Aminu Mogaji
   c) Mogaji Ile Sanmoni        –    Late Lawani Mogaji
   d) Mogaji Ile Elesin-Na        –    Late Atiku Mogaji
   e) Mogaji Ile Mumuni           –        Late Aliu Adegba Mogaji;

Whereas the Plaintiff’s family is not a land owning family in Ganmo and therefore cannot grant land to another person or family.;

9. That Sunmonu Okunoye was never installed Baale of Ganmo and therefore had no right or power to appoint Sub-Chiefs or King makers (Ilu King makers) as purported by the Plaintiff and that the post of Bale of Ganmo was not vacant at any time in 1983 as the Defendants predecessor-in-office (Late Alhaji Kaminu Kolawole) reigned from 1978 to 1990.
10. That it is usual under the Tradition of the Yorubas, including Ganmo Community that the first settler or founder owns the land and the chieftaincy of the new settlement as the first settler and which said custom or ownership of land and Baale chieftaincy of Ganmo revolves around the Defendant’s progenitors who do allocate and sell same to deserving people and that the Defendant shall rely on various rulings and judgments of the Courts to that effect.
11. That the Olupo of Ajase-Ipo as the chairman of Igbomina/Ekiti Traditional council has interest in the appointment/installation of the Baale of Ganmo.
12. That the Defendant will rely on the court processes of previous proceedings between the parties to show that the Plaintiff’s Claim is incompetent for being statute barred, caught by estoppel, and for lacking the proper parties, He contends that Ifelodun Local Government never recognized the Plaintiff’s family or any of his predecessors as the Baale of Ganmo and any document in his possession with such title was obtained by misrepresentation and deceit.

My Lords, permit me to deal with the preliminary objection as raised by Roland Otaru SAN (the Learned Counsel for the Respondent) who had submitted by way of oral argument on the 24th of January, 2008 when this Appeal came up for hearing that Ground 5 of the NOTICE OF APPEAL as filed by the Appellant is contrary to Order 6 Rule 3 of the Court of Appeal Rules, 2007 and ought to be struck out as the authorities have decided that such grounds are better fitted for criminal appeals, No such authority was however cited for his proposition.
In any case the Learned Counsel for the Appellant J.S. Bamigboye Esq had argued that the Respondent’s Counsel had in the Brief filed on the 26/9/07 distilled issues from the so-called incompetent ground and argued same extensively such that the Learned Senior Counsel cannot be heard to complain on that ground.

Order 6 Rule 3 of the Court of Appeal Rules, 2007 which has been allegedly breached provides that:

“3.     Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted save the general ground that the judgment is against the weight of evidence, and a ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court on its own motion or on application by the Respondent”

On the other hand, Ground 5 of the Notice of Appeal which is the subject of the preliminary objection by the Learned Senior  Advocate states thus:

“5.     The judgment of the Learned trial Judge is unwarranted, unreasonable and cannot be supported having regard to the weight of evidence.”

The above ground is in line with Order 6 Rule 3 of the Court of Appeal Rules 2007 as it is in tandem with “the general ground that the judgment is against the weight of evidence. “This general or omnibus ground simply complains that the judgment of the lower Court cannot be supported from the totality of the evidence led by the Plaintiff. In essence it calls on the Appellate court to determine whether the evidence adduced by the Plaintiff/Respondent was rightly accepted by the lower Court or whether the lower Court drew the necessary and correct inferences to justify its judgment. Alternatively, that ground as it is couched presupposes that when the evidence adduced by the parities is placed on the imaginary scale of justice for which (See MOGAJI VS. ODOFIN) (1978) 4 S.C. 91 at 93, the judgment given in favour of the Respondent cannot stand the scrutiny of the Appellate Court as it is against the totality of the evidence before the Court. The complaint also questions the appraisal and evaluation of all the evidence adduced by the parties at the trial Court. See generally the case of FINIH VS. IMADE (1992) 1 NWLR 511 at 543; ANYAOKE VS. ADI (1986) 3 NWLR 73, and AJIBONA VS. KOLAWOLE (1996) 12 S.C.N.J. 270 at 277 and 280.
There is no doubt as the Learned Senior Advocate has submitted on behalf of the Respondent, that the Ground of Appeal as formulated is best fitted for Criminal Appeals. See CHIEF MICHAEL OWHOTENU-KOWO & ANOR VS. THE STATE (1983) 5 S.C. 17 at 22 cited at page 809 of “Civil Procedure in Nigeria” by Fidelis Nwadialo where the Learned author remarked that in relation to the omnibus ground in criminal appeals the ground is normally couched to wit; “The verdict cannot be supported having regard to the evidence. see also BAKARE VS. THE STATE (1987) NWLR 579.”

The Learned Counsel for the Appellant has conceded this much when he cited SUNDAY BARIDAN VS. THE STATE (1994) 1 S.C.N.J. 18 (a criminal matter), but insisted that Ground 5 is a valid ground in civil cases and acknowledged as the standard general/omnibus ground of Appeal. On my part, I consider the manner in which the ground is couched as a mere inelegance which this court wiil gloss over more so, as the Learned Senior Advocate has formulated issues there from and argued same copiously in the Respondent’s Brief.

In MOMODU &. ORS VS. MOMOH &. ANOR (1991) 22 N.S.C.C. (pt. 1) 212 at 221 lines 25 – 29 Uwais J.S.C. (as he then was) delivering the lead judgment of the Supreme court put the issue beyond peradventure that:

“It is the intendment of both the current Rules of the Court of Appeal and this Court that the argument contained in a brief shall be based on the issues formulated and not on the grounds of Appeal. Consequently, the courts resolve the controversy in appeals by reference to the issues for determination and not the grounds of Appeal.”

Having therefore formulated issues, from the supposedly incompetent ground of Appeal, the learned senior Advocate with the greatest respect, cannot approbate and reprobate at the same time. He has waived his right to complain having conceded to a wrong procedural step. The preliminary objection shall therefore be discounted and is accordingly dismissed.

I shall now proceed to deal with the issues as raised in the substantive Appeal. Before then I must say that I have paused and reflected on the issues formulated in the respective briefs of the parties and I am of the considered view that the four issues formulated by the Appellant’s and the two by the Respondent’s counsel can be encapsulated under two issues which I shall formulated as follows:-

1. Whether the learned Trial Judge failed and/or refused to make a pronouncement on the fundamental issue of jurisdiction as raised by the Appellant as to the date the cause of action arose thereby robbing the appellant of his right to fair bearing?
2. Whether from the totality of the evidence elicited by the parties, the judgment of the lower Court was against the weight of evidence?

ISSUE NUMBER 1 (ONE) whether the learned trial Judge failed to pronounce on the jurisdictional issue raised by the Appellant. In the quest to answer this question, I am minded to draw inspiration from the dictum of Nnaemeka Agu J.S.C. who posited in the case of A.G. KWARA STATE VS. OLAWALE (1993) 24 N.S.C.C. 110 AT 119 paragraphs 5 – 20 (a case which incidentally arose from Igbomina Ekiti Division and subsequently Irepodun Local Government and which subject matter like the present Appeal was a chieftaincy dispute) that:-
“One fact that cannot be denied in practice is that it is recognized that because of the paramountcy of an issue of jurisdiction it is sometimes necessary for the court to hear some evidence first for a correct determination of it, even though it might have disposed of the issue in limine. In my view, when the issue of jurisdiction is determined on the pleadings, the law is that it is determined on the Plaintiffs pleadings in his Statement of Claim and not on the defendant’s answer in the Statement of Defense. For this see IZENKWE VS. NWADOZIE 14 W.A.C.A. 361 at P. 363, ADEYEMI & 4 ORS. VS. OPEYORI (1976) 9 -10 S.C. 31. In other words, when the Plaintiffs pleading in the Statement of Claim is unambiguous and clearly pleads facts from which the issue of jurisdiction could be settled one way or the other, it is proper material to determine that issue.”
The Learned emeritus Justice of the Supreme Court held further that where the Court in the exercise of its undoubted power to inquire whether in fact its jurisdiction has been ousted (for which see Barclays Bank of Nigeria Ltd. vs. Central Bank of Nigeria (1976) 1 ALL NLR 409 at 42; sees the need to hear evidence in order to inquire into the ouster of its jurisdiction, the court cannot after evidence had been called, gloss over the evidence elicited by the Defence, even though in the final analysis, the Plaintiff’s case in the Statement of Claim is still the most important factor. Taking a guide from the principle enunciated above, we shall now look at the Plaintiff’s Statement of Claim in order to find out whether the Court lacked jurisdiction to entertain same as pleaded by the Defendant in some paragraphs of his Statement of Defence.

For instance, in paragraph 17 of his statement of claim, he pleads thus:

“17.   The Plaintiff states that he ascended the office of head of Ganmo Community in 1983 after the passing on of his predecessor and has since remained in that capacity. The Plaintiff states that after all the traditional ceremonies of installation letters were written and delivered to the Ifelodun Local Government Council to that effect. He thereafter collected taxes from Ganmo Community, which tax the Ifelodun Local Government Council acknowledged the receipts, Plaintiff will tender tax receipts and letters on this matter.”

Earlier in paragraphs 7 and 8 of the Plaintiff’s Statement of Claim he had asserted thus:-

“7      The Plaintiff states that the 1st Defendant is the Head of Jinadu Kolawole family of Ganmo who claimed a right to become Bale of Ganmo, and when he arrogated to himself the title of Head of Ganmo the Local Authority of Omu-Aran banned and prohibited him from calling and specifically parading himself as Baale of Ganmo.

“8      Plaintiff sates that Ganmo had never been an extension of Ajasse-Ipo Community and there existed no law which gives the Oba of Ajasse-Ipo power to act, parade or present himself as authority with power to install or turban, the 8aale of Ganmo.”

In what appears to be the crux of this matter he pleaded in paragraphs 20 and 21 of the Statement of Claim inter-alia:-

”20.   The Plaintiff avers that the defendants’ predecessor when he threatened disruption of the peace of Ganmo by arrogating calling, parading and putting himself out as Baale (The Community Head) of Ganmo the matter was fully investigated and a decision was taken whereby the Plaintiff’s predecessor was affirmed as the Baale while the defendant’s predecessor was declared to be an impostor and he was warned in writing.

”21.   The Plaintiff avers that the defendant did not challenge the decision which prohibited his predecessor from parading calling, introducing or representing himself as head of Ganmo, all the latter-day contrived and procured traditional council report are influenced and not genuine.”

“21 (i).The Plaintiff avers that sometime in October 1990, the Defendant, in total disregard and desecration of the history, native law and custom of Ganmo and in disregard for the order and directive of Igbomina/Ekiti Local Authority Omuaran, purported to be appointed successor to one Karimu Kolawole, as Baale of Ganmo by Ifelodun Local Government Council.

“21 (ii). The Plaintiff further states that the Claim of the Defendant to the Authority of the Ifelodun Local Government, as his appointing body, was the first and only in the history of Ganmo. Plaintiff will lead evidence to show that the appointment was procured in negation of history and deliberate disregard for or in suppression of official records in so far as they relate to the Plaintiff’s predecessors’ long occupation of the office of Head of the Ganmo for about 100 years.”

It would appear from the paragraphs reproduced above that there had been a dispute as to the Baaleship of Ganmo before 1983 when the Plaintiff purported to have been installed but the precise year when the Defendant’s predecessor arrogated to himself the Baaleship and threatened disruption of the peace in Ganmo was not pleaded.

However, the picture becomes clearer when we examine the Defendant’s averments in certain paragraphs of his Statement by Defence. In paragraph 1 of the Further And Consequential Amended Statement of Defence he stated as follows:-

“1.     The Defendant denies paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 23 of the Further Amended Statement of Claim and puts the Plaintiff to the strictest proof thereof.”

“6(a). In response to paragraph 7 of the Further Amended Statement of Claim No. 2 when the purported letter of prohibition was issued, there was protest from the Defendant’s family to the relevant authority which led to the establishment by the Traditional Council, of a Committee on Ganmo chieftaincy in 1978, the Committee sat and took evidence from both sides a formal report made and approved while the Plaintiff’s predecessors did not challenge the decision of the Traditional Council that formally adopted the report and approved the appointment of Alhaii Karimu Kolawole in 1978 until 1980 and 1987 through Court proceedings that went against the Plaintiff’s interest.

“6(b). The Defendant shall contend at the trial that the Plaintiff or his family is estopped from contesting the decision of the Traditional Council made in 1978 having voluntarily participated in the proceedings of the Committee set up by the Traditional Council.”

Subsequently, in response to the averments of the Plaintiff as highlighted earlier the Defendant further pleaded:-

“13.   The Defendant avers that only male members of Ganna family can aspire to and are entitled to be installed as Baale of Ganmo.

“14.   In answer to paragraph 9 of the Further Amended Statement of Claim, the Defendant states that the Baale and Village Head of Ganmo is traditional Chieftaincy title recognized by the Government of Kwara State and the ifelodun Local Government under which jurisdiction/territory Ganmo is located.”

The Defendant then pleaded in support-

‘i)       Letter of appointment of Late Alhaji Karimu Kolawole (The Defendant’s predecessor in Office) as the Bale and village Head of Ganmo dated 5th October, 1978 written by the Ifelodun/Irepodun Traditional Council.

“ii)     Letter dated 17th October, 1990 written by Ifelodun Local Government to the Defendant appointing the Defendant as the Baale of Ganmo.”

“15.   The Defendant further states that there are five King makers in Ganmo namely:

1. a) Chief Ikolaba       –    from Ile Ikolaba
   b) Chief     Eesa       –    from Ile Eesa
   c) Chief Ojomu       –    from Ile Adiete
   d) Chief Odofin       –    from Ile Kolobo
   e) Chief Aro       –    from Ile Agbaleke

“16.   Following the death of Late Alhaji Karimu Kolawole on the 24th day of May, 1990 the King makers in Ganmo under native law and custom of Ganmo unanimously nominated and installed the Defendant as the Baale of Ganmo thereafter sent his nomination to the department of Local Government, Military Governor’s Office, Ilorin, which said Department approved the Defendant’s appointment.

“17.   By a letter dated 17th October, 1990 from Ifelodun Local government the Defendant’s Appointment was conveyed to him.”

In response to the assertion of the Plaintiff that having been installed the Baale of Ganmo in 1983 he collected taxes which the Ifelodun Local Government Council acknowledged receipts, and that the Defendant in 1990 purported to be appointed successor to one Karimu Kolawole, as Baale of Ganmo by the Ifelodun Local Government Council, the Defendant pleaded as follows:-

”20.   By a letter reference number IF/ILC/CHF/3/VOL.11/220 of 15th February, 1978 the Late Suberu Noibi (whom the Plaintiff Claims to succeed as Mogaji) had his appointment as Tax Collector for Ganmo terminated for acts of disloyalty and abuse of confidence.

”21.   The Defendant says that the tax receipts in possession of the Plaintiff and whatever payments he had made to the Ifelodun Local Government were overdue payments for taxes collected by the Late Suberu Noibi before the termination of his appointment, returns of which he had not made prior to that time. The Defendant says further that being a Tax Collector does not ipso facto confer the status of Bale or Village head on such Tax Collector. The Defendant will tender evidence of tax collection by his predecessors.”

In paragraph 26A the Defendant in specific traverse of paragraph 8 of the Further Amended Statement of Claim No.2 stated that:-

“26A.           The Defendant avers that the Olupo of Ajase-Ipo as the chairman of Igbomina/Ekiti Traditional Council has interest in his appointment/installation of Baale of Ganmo.”

The Defendant in response to the allegation that his predecessor-In-title arrogated to himself the title of Baale and was then prohibited and termed an impostor (paragraphs 20 and 21 in the Further Amended Statement of Claim No.2) stated thus:

’28A. In answer to paragraphs 20 and 21 of the Further Amended Statement of Claim the Defendant’s predecessors never threatened peace of Ganmo and there was never a time the Plaintiff’s predecessors were called or known as Baale of Ganmo. The Defendant avers that both the relevant Local Government, Traditional council and the Government of Kwara State or its agencies knew and recognized the Defendant and his predecessors as Baale and Head of Ganmo.

’28(b). In response to paragraphs 21 (i) and 21 (ii) of the Further Amended Statement of Claim No. 2 the Defendant avers that he was appointed under native law and custom by the King makers who in turn sent his name to the appropriate Kwara State Government who in turn sent his name to the appropriate Kwara State Government Agencies involved in Chieftaincy matters before the Ifelodun Local Government Area formally issued letter of appointment and the appointment was not a negation of history or disregard or suppression of official record. The Plaintiffs family never challenged the decision of the Traditional Council in 1978 when the Defendant’s family was recognized as the family entitled to the Chieftaincy after a thorough hearing.”

Earlier on the Defendant had in paragraph 27 of the Further Statement of Defence averred that he would lead evidence to the effect that the suit as constituted was incompetent: an abuse of court process and liable to be dismissed. The Defendant pleaded the writs, Statement of Claim and previous proceedings between the Plaintiff and his privies against the Defendant and his privies and that he would contend at the trial that the suit was statute barred, caught by estoppel, proper parties to the suit not being before the lower court and that the court lacked the necessary jurisdiction to entertain the matter.
It has to be noted that the Plaintiff filed a Reply to the defendant’s Further consequential Amended Statement of Defence wherein denied almost all the averments in the Statement of Defence and particularly in paragraph 3 contended that there was/is no Court judgment subsisting which granted any of the Plaintiff’s family land or property to the defendant and as such there was no basis for the applicability of the doctrine of res judicata or abuse of Court process as alleged by the Defendant.

As for the claim by the Defendant that his family was recognized as the Chieftaincy holder in Ganmo, paragraph 4 of the reply described the assertion as false and misleading and a mere contrivance created by the Defendant and his cohorts.

In paragraph 5, the Plaintiff averred that the land disputes between the various communities had nothing to do with the Baale of Ganmo Chieftaincy.
In paragraph 8 he further averred that in reply to the Defendant’s averments in paragraphs 28(a) and 28(b) of his statement of Defence No.2; no authority directed demanded or requested the Traditional Council to determine questions relating to Ganmo Chieftaincy matter and no report was issued to any authority.
Finally he stated in paragraph 9 thereof that the Traditional Council had no power to appoint and/or approve the appointment of the Baale of Ganmo and that the purported approval of appointment was made secretly as the Report of the Council was never published in any newspaper delivered to the Plaintiff. Moreover, the actions of the Council were illegal and cannot form the basis for any defence by the Defendant.

From what I have been able to sift out of the disparate positions taken by the parties in this suit, it would appear that the Plaintiff’s claim is anchored on the letter of recognition issued to the Defendant by the Ifelodun Local Government Council in 1990 following the alleged selection and installation of the Defendant by the five King-makers of Ganmo and the subsequent forwarding of his name to the authorities as the successor to his late brother Karimu Kolawole who was then the Baale of Ganmo as claimed by the Defendant.

On the other hand, the Defendant Claims that the issue of who and which family was entitled to the Baale Chieftaincy or Village Head of Ganmo had long been settled in 1978 when the letter purporting to prohibit his said late brother from parading himself as the Baale was written to his said brother and his family protested to the relevant authority which set up a committee on the Ganmo Chieftaincy in 1978 which Committee sat and took evidence from the parties in this suit and a Report was subsequently published and approved without the Plaintiff’s predecessors who participated in the Committee’s proceedings challenging the decision of the Committee appointing the said Alhaji Karimu Kolawole as the Baale. It was not until 1980 and 1987 that the Plaintiff’s family initiated Court proceedings to challenge the said appointment, which went against the Plaintiff’s interest. The contention of the Defendant is that the Committee’s proceedings and report finally determined the rights of the parties in 1978 since during that period the 1963 constitution of the Federal Republic of Nigeria excluded the jurisdiction of courts from being exercised in Chieftaincy matters.

The resolution of this issue will therefore turn on when the cause of action of the Plaintiff arose. To answer this question it is necessary to have recourse to text writers and judicial authorities for guidance as to what constitutes a cause of action, Black’s Law Dictionary by Bryan Garner 7th Edition at 214 defines the term as “A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.”

In the same text the Learned author quoted Edwin E. Bryant’s work captioned” The Law of Pleading Under the Codes of Civil Procedure P. 170 (2nd Edition 1899)” where the following appear:-

“What is a cause of action? Jurists found it difficult to give a proper definition. It may be defined generally to be a situation or state of facts that entitles a party to maintain an action in a judicial tribunal. This state of facts may be – (a) a primary right of the Plaintiff actually violated by the Defendant; or (b) the threatened violation of such right, which violation the Plaintiff is entitled to restrain or prevent, as in the case of actions for injunctions or (c) it may be that there are doubts as to some duty or right, or the right is beclouded by some apparent adverse right or claim, which the Plaintiff is entitled to have cleared up, that he may safely perform the duty, or enjoy his property. ” See the case of CHIEF HAROLD SODIPO VS. LEMMINKAINEN OY & ANOR. (1992) 8 NWLR (Pt. 5S8) 229 at 242; THOMAS VS. OLUFOSOYE (1986) 1 NWLR (Pt. 18) 669; BELLO VS. A.G. OYO STATE (1986) 5 NWLR (Pt. 45) at 826 and ADIMORA VS. AJUFO (1988) 3 NWLR (pt. 80) 1.

I adopt the above definitions and the analogies given by the learned authors as mine as they fit the bill as far as this case is concerned. Here there appears to be two rival contestants to the throne of the Baale of Ganmo each claiming to be a successor to the throne of his ancestors. In order for the Court to be seised of jurisdiction the question would legally turn on when the cause of action arose or accrued to the Plaintiff since the Defendant, amongst other defences, which we shall in due course also consider, pleads that the claim of the Plaintiff is statute barred?

The lower court in her wisdom held on this issue of statute of limitation as follows:-

“On the issue of statute of limitation raised by the defence counsel, he ought to have expressly pleaded the statute of limitation on which he relies giving particulars of the date of accrual of the cause of action, the time the action was filed and the justification for limitation statute must be pleaded I agree with Chief Awomolo SAN that this action is not statute barred because the cause of action is the unprecedented appointment of a defendant as the Baale of Ganmo in 1990 by Exhibit 08 which was admitted by the Defence. In the case of Chief Harold Sodipo vs. Lemikainen (1992) 8 NWLR (Pt. 258 page 229 at 242 where Niki Tobi (as he then was) held:-

“A cause of action consists of a combination of facts which give a party a right to judicial relief or a right which a party has to institute a judicial proceeding.”

I must hasten to disagree most vehemently with the holding of the learned trial Judge that the statute of limitation ought to be pleaded with particulars, which the Defendant failed to do. In the first place the Defendant had given adequate notice to the Court and the Plaintiff in his paragraphs 6 (a) and 6 (b) of his Further Consequential Amended Statement of Defence when he stated that following the letter of prohibition issued to his late brother Alhaji Karimu Kolawole, his family protested to the appropriate authority which set up the Committee on Ganmo Chieftaincy before whom the parties submitted themselves and a Report on the decision submitted which culminated in the recognition and appointment of the said Alhaji Kamiru Kolawole in 1978 and that the Plaintiff’s family acquiesced in this decision until 1980 and 1987 when they embarked on the court proceedings which did not favour them.
Again, the Defendant has also notified the court and Plaintiff that the Plaintiff and his family were estopped from contesting the decision of the Traditional Council made in 1978 having voluntarily participated in the proceedings of the Committee set up by the Traditional Council.

As if these particulars were not enough, the Defendant capped them up with the Notice given in paragraph 27 that he will lead evidence that the suit as presently constituted is incompetent, an abuse of Court process and liable to be dismissed,” Apart from pleading the processes of previous litigations between the parities and their privies, the Defendant further gave notice that he would “contend” at the hearing that the claim is statute barred.

Except that in the course of eliciting evidence, the Defendant did not satisfy the Learned trial Judge that the claim was statute barred, the reasons advanced for agreeing with the Learned Senior Advocate of Nigeria is ludicrous for it is elementary that pleadings should contain facts and facts alone. The plea of Statute of Limitation is an issue of law and jurisdiction, which can be raised by the Defendant even in limine. If at the trial for instance, the Learned Counsel cites the law upon which the limitation is anchored then the onus shall shift to the Defendant to show to the contrary that the suit is not caught by any limitation Law.

In any case, if the Defendant did not furnish particulars or plead the Limitation Law, the Plaintiff had in paragraph 1 of his Reply denied paragraphs 6 (a) and 6 (b) and 27 of the Defendant’s Further Amended Statement of Defence and put the Defendant to the strictest proof thereof. He did not seek for further particulars in which case the Plaintiff was not misled. It is pertinent to note that it was even the Plaintiff who introduced the issue of the Defendant’s predecessor who arrogated to himself the Baale title and that the matter was investigated and a decision was taken affirming the Plaintiff’s predecessor as the Baale while the Defendant’s predecessor was declared an impostor and was warned in writing.

By paragraphs 1, 2, 3, 5, 7, 10, 12, 14, 17, 20, 21, 21 (1) of the Plaintiff’s Further Amended Statement of Claim No.2 and the  Defendant’s paragraphs 6(a) and 6(b), 9(a), 11 (a), 12, 13, 14, 23, 24, 25, 26, 27, 28, 28 (a) and 28 (b) it is clear that parties are both claiming succession to their respective predecessors-in-title.

Note that the Plaintiff was not bold enough to tell the Court the year the Defendant’s predecessor arrogated to himself the title of Baale, which culminated in his being prohibited. The Defendant on the other hand specifically pleaded that the question of who was the Baale of Ganmo was settled in 1978. This fact is borne out clearly from the address of the Learned Counsel for the Defendant at pages 113 and 114 of the record of proceedings where he submitted thus:

“From Exhibit 025, the Hon. Chief Judge determined two issues. The first was that the suit raised Ganmo Chieftaincy dispute and the cause of action arose in 1978, the Court had no jurisdiction to entertain the action based on the applicable law when the cause of action arose. See also Exhibit 48, 49, D1 and D2.

”It is humbly submitted that the relevant Law when the cause of action arose determines the jurisdiction of the Court and same is not determined as a result of subsequent changes in the Law after the cause of action had accrued. See UWAIFO VS. A.G. BENDEL STATE & ORS (1982) 7 S.C. 124.”

In the last paragraph of page 114 he maintained:-

“It is humbly submitted that the demise of Alhaji Karimu Kolawole in 1990 does not create a new cause of action for the Ganmo Baale Chieftaincy. It is submitted that there is continuity in the stool and all that needed to be done was the substitution of the Defendant herein. See OKOTIE VS. OLUIGHOR (1995) S.C-N.J. 217 at 226.”

Although the issue of estoppel shall be addressed later on, the Learned Counsel also submitted in the penultimate paragraph at page 114 of the Record of Proceedings that:

“Simply put, the Plaintiff is estopped by res judicata to institute and prosecute the suit having regard to the issues decided in Exhibit D25 wherein it was held that Ganmo Baale Chieftaincy dispute arose in 1978, jurisdiction is governed by the 1963 Constitution. ”

The same argument has been replicated in the Appellant’s Brief of Argument (See Paragraphs 4.12 to 4.16 at pages 5 -7) and in sum the Learned Counsel for the Appellant contends that parties by their respective positions as reflected in their pleadings and submissions in the address agree that if the cause of action arose in 1978 then the trial Court had no jurisdiction as the suit was incompetent by virtue of Sections 161(3) and 165(1) of the 1963 Constitution which was the applicable Law in 1978. On the other hand, if the cause of action arose in 1990 then the Court would have been seised of the jurisdiction to entertain the plaintiff’s case.

I have had a careful perusal of Exhibit D25, which is the Judgment of Justice T.A Oyeyipo the emeritus Chief Judge of Kwara State who in his characteristic brilliance heard and determined this said suit No. KWS/121/80 Between:

1) MALLAM SUBERU NAIBI (Substituted by MALLAM ALERU MAGAJI)
2) ALHAJI SALAMI OLORI AND
3) ALHAJI JIMOH AKANBI
VS.
1) ALHAJI KARIMU KOLAWOLE
2) IFELODUN LOCALGOVERNMENT;

and although the particulars of claim were not stated, it can be gleaned from pages 5 and 6 of the Exhibit where the issue of locus standi was considered, that the Plaintiffs as members of the Sunmonu Okunoye family of Ganmo claimed from the Defendant that their Plaintiff’s family was the only family by native Law and custom of Ganmo to provide or present a person to be appointed Baale or Mogaji of Ganmo and that the action was to challenge the appointment of the 1st Defendant (whom the Plaintiffs regard as an impostor, not being a member of the Okunoye family), as the Baale of Ganmo, to protect the Plaintiffs’ family interest.

In the Ruling on the preliminary objection which questioned the jurisdiction of the trial Court by reason of the provisions of section 11 of the Chiefs (Appointment and Deposition) Law cap. 20 Laws of Northern Nigeria and Sections 161 and 165 of the 1963 constitution of the Federation of Nigeria and lack of locus standi, the Learned Chief Judge held inter-alia at page 7 paragraph 2:-

“With regard to the question of jurisdiction, it is manifest from the pleadings of the parties herein that this suit raises an issue as to Chieftaincy question. Indeed Mallam Salaman Learned Counsel for the Plaintiffs has conceded this point.”

The Learned Law Lord continued subsequently that:-

“It is common ground from the pleadings of parties that the cause of action in this matter arose in 1978 and the relevant applicable Laws to Chieftaincy matters in Kwara State at the material time were the 1963 constitution of the Federal Republic of Nigeria; the Constitution of Northern Nigeria and the Chiefs (Appointment and Deposition) Law cap. 20 of the Laws of Northern Nigeria applicable in Kwara State.”

His Lordship further held on the authorities of F.S. Uwaifo vs. Attorney General of Bendel State and 4 Ors (1982) 7 S.C. 124 and Chief Audu Adamu & 3 Ors. vs. the A.G. of BENDEL STATE (1982) 3 N.C.L.R. 676 at 679 that the Law to apply on the preponderance of authorities, in trying an action is the Law in force at the time the cause of action arose.

Now Sections 11 of the Chiefs (Appointment and Deposition) Law of Northern Nigeria as applicable in Kwara State, 78(6) of the Constitution of Northern Nigeria and 161(3) of the 1963 Constitution of the Federation, were said to be identically worded to the effect that they expressly ousted the jurisdiction of Courts in all Chieftaincy matters.

Section 161(3) of the 1963 Constitution for instance provided that:-

“Not withstanding anything in any other provision of the Constitution (including in particular Sections 32 and 53 of this Constitution) but without prejudice to the proviso in subsection (1) of section 22 and subsection (4) of section 27 of the Constitution, no Chieftaincy question shall be entertained by any Court of Law in Nigeria … H

The provisions of Section 165 of the said Constitution defined Chieftaincy question as: “any question as to the validity of the selection, appointment, approval of appointment, recognition, installation, grading, disposition or abdication of a Chief.”

On the other hand, Section 3 of the Interpretation Act then Cap. 52 of the Laws of Northern Nigeria defined a ‘Chief’ as ”any native whose authority and control is recognized by a native Community. Going by the provisions of these statute and Constitutions, the Learned Judge upheld the preliminary objection and struck out the Plaintiffs’ Claim.

The Ruling of the Learned Chief Judge was delivered in 1985 and there was/is neither an appeal against it nor was it ever set aside by any Superior Court. The implication is that the status quo ante remained as at 1978 when the Defendant’s predecessor-in-title Alhaji Karimu Kolawole was installed and subsequently appointed the Baale of Ganmo.

In 1990 about twelve years after the ruling of Oyeyipo C.J. another suit Exhibit D26 was initiated as No. KWS/OM/30/90 between the Plaintiffs family then represented by their predecessor-in-title ALHAJI AILERU JUBRIL. (Bale of Ganna) and Alhaji Abdulahi Atanda (for himself and the family of Jinadu and Raji Kolawole), and Ifelodun Local Government Council as Respondents. That suit was struck out again this time on the ground that the plaintiffs did not fulfill the condition precedent provided for by section 15(1) of Edict No.3 1988 (the Chiefs Appointment and Deposition) Amendment Edict No.3 of 1988.

In the case the Plaintiff sought for a “Declaration that the office/position of Bale of Ganna under the native law and custom of Ganna is the exclusive right of male descendants only of Bale Sumonu Okunoye, the first Bale of Ganna. Order restraining the 1st Defendant from parading or further parading, calling, introducing or presenting himself to any person howsoever, as Bale of Ganna.” The Plaintiff also sought a further order of injunction restraining the Defendant from holding himself out or performing all important functions of Bale of Ganna and for the 2nd Defendant from recognizing or accepting, addressing or designating, the Defendant as the Bale of Ganna.

The matter eventually went to the Court of Appeal Kaduna Division which set aside the Ruling of Fabiyi J. (as he then was), on the ground that the Baale or Village Head was not a Chief under the chiefs (Appointment and Deposition) Law Kwara State and therefore the Plaintiffs were not bound to pay N10,000.00 before commencing the action to challenge the Defendant’s appointment as Baale but the Judgment of Oyeyipo C.J. has not been set aside and no judgment has been tendered by the Plaintiff/Respondent tending to show that, that decision of Oyeyipo C.J. which established that the cause of action arose in 1978 has been set aside.

It is therefore idle to contend as the Learned Senior Advocate nay the Learned trial Judge had done at page 295 of the Records that Exhibit D25 did not decide the rights of the parties neither did it consider the merits of case.
With the greatest respect Exhibit D25 was anchored on Exhibits D1 and D2 which are “MINUTES OF THE MEETING OF THE IREPODUN/IFELODUN TRADITIONAL COUNCIL HELD ON THE 27TH JULY, 1978 AT AREA COUNCIL HALL AJASSE-IPO”, AND “COMPREHENSIVE REPORTS ON CHIEFTAINCY WRANGUNGS AT GAMA CONDUCTED BY IFELODUN/IREPODUN TRADITIONAL COUNCIL AT AJASSE-IPO ON 12/7/78” as a result of the protest by the Defendants predecessor following his being given Exhibit 31.

Exhibit D1 at page 2 in the part captioned: “REPORT OF COMMMITTEEES OR DEPARTMENT OFFICERS GAMA CHIEFTAINCY COMMITTEE”; states thus:

“the committee above recommended in sum of follows:

1. a) That Alhaji Karimu Kolawole is the direct descendant of the Alafin of Oyo.
2. b) That members of the COmmittee went round the Constituent towns and Villages surrounding Ganma namely Idofiari, Amayo and Olorunjare on a fact finding mission and discovered beyond reasonable doubt that Alhaji Kolawole was entitled to be appointed Bale of Gatnma and his appointment as tax collector by the Ifelodun Local Government was welcomed.
3. c) That it would be repugnant to natural justice, equity and good conscience if an alien like Magaji of Ganma – Mallam Suberu Naibi is allowed to be ruling Ganma to the disadvantage of a native Alhaji Karimu Kolawole, whose great grand fathers suffered both days and nights to see that this ancient town was established.
   Moreover, the Committee informed the council that it would be incompatible with public policy then in force to allow the Magaji of Ganma head of Ganma now that nearly all communities in Kwara State are trying to free themselves from the yoke of colonialism.
4. d) Alhaji Karimu Kolawole had a genuine right to become the Baale of Ganma as well as Tax Collector for Ganma and its environs. Therefore he should be recopmised as such.
5. e) That Alhaji Karimu be officially recognized as the Bale of Ganma as well as the Tax collector of Ganma.
6. ii) That the position of Mallam Suberu Naibi formerly was a mere Revenue Collector imposed upon the people by the defunct Ilorin Native Authority and in as much as he has already been relieved of his post as Revenue Collector by Ifelodun Local Government, he has no other choice than to resign to his fate and henceforth stop from parading himself as Magaji of Ganmo.”

It would be recalled that the secretary to the committee informed the council that Magaji of Ganmo – Mallam Suberu Naibi was popular amongst the people of Ganmo, but that Alhaji Karimu Kolawole was an indigence of Ganmo who hails from the Ruling family.

The Chairman on his part objected to the decision of council on the ground that his ancestor gave land to the great grand fathers of the Magaji and not to Alhaji Karimu Kolawole and therefore urged Council to reverse the decision. Council however unanimously overruled the Chairman and Alhaji Kolawole was recognized as the Baale of Ganmo and Tax Collector with the Chairman eventually signing the report. Exhibit D2 on the other hand is a record of the proceedings of the council on the Ganmo Chieftaincy dispute, which gave rise to Exhibit D1. In it Alhaji Jimoh Akanbi, the representative-in-interest of the Plaintiff’s family testified on behalf of the Plaintiff and gave the chronological history of his family and their succession to the Bale or Magaji stool. From the foregoing it is not true as the learned trial Judge held that the action is based solely on the unprecedented appointment of the Defendant as the Baale of Ganmo in 1990 by Exhibit D8 which was admitted by the Defence.
Thus, even if we go by the statement of claim of the Plaintiff and some of the paragraphs highlighted, the claim of the Plaintiff is statute barred from the reliefs sought in paragraphs 23(i) – (iii) thereof as it was the predecessor-in-title to the Defendant whom the Plaintiff has himself acknowledged ”purported to be appointed successor to one Karimu Kolawole as Baale of Ganmo by Ifelodun Local Government Council. “There was therefore precedence of appointment and recognition of the Defendant’s predecessor Alhaji Karimu Kolawole in 1978 and the Defendant is merely succeeding the said Kolawole as Baale. See paragraph 21(1) and the averment in paragraph 17 of the Plaintiff’s Statement of Claim that he ascended the office of Head of Ganmo in 1983 after his predecessor had passed on.

I am in total agreement with counsel for the Appellant that the Learned trial Judge did not appreciate the defence proffered by the Defendant when she held that she had the jurisdiction to entertain the case as the rights of the parties had not been decided by the Ruling tendered as Exhibit D25 which struck out the claim of the Plaintiff’s predecessors-in-title for want of jurisdiction because the cause of action arose in 1978.

As the Learned Justice Oyeyipo has earlier decided citing the cases of UWAIFO VS. A.G. BENDEL STATE Supra and AUDU ADAMU VS. A.G. BENDEL STATE &. 3 ORS (1982) 3 N.C.L.R. 176 at 679, the laws applicable to this suit are those in force at the time the cause of action arose in 1978, which Laws had been stated earlier. See A.G. KWARA STATE VS. OLAWALE (1993) 24 N.S.C.C. (Pt. 1) 110 at 120 lines 43 – 50 where the Supreme Court held that:

“This Court held that the cause of action must be determined from the substance of the case and that the cause of action arose in 1972 when the Defendant was first appointed and turbaned, not in 1981. So the case must in  accordance with the principle in E. EEMENIMAYA & ORS. VS. OKPARA OKOROJI & ANOR (1987) 3 N.W.L.R. 14 AND UWAIFO VS. A.G., BENDEL STATE (1982) 7 S.C. 124 be decided in accordance with the Law as at the time the cause of action arose.”

This brings me naturally to the issue of Res judicata and the question posed by the Learned Counsel in the Appellant’s Brief in issue Number 3 whether the Plaintiff/Appellant is bound by Exhibit D1 and D2, the decision and Report of the panel of investigation on the Ganmo Baale stool to which the family of the Respondent submitted.

To answer this question I am minded to have recourse to the provisions relating to the functions of Traditional Council established by the Governor under Section 76(1) of the Local Government Law cap. 92 Laws of Kwara State which commencement date was 1st September, 1976 and under which Exhibit D1 and D2 were made.

Section 78 thereof stipulates:

“78. The functions of a Council established under this part shall be:-

“(g)   to determine questions relating to Chieftaincy matters and offices, and where such matters are within the exclusive prerogative of the Emir or Oba Chief to give advice where so requested.

“(h)   to determine Customary Law and practice on all matters governed by Customary Law, including matters pertaining to land. subject to the provision of the Land use Decree 1978.

“(i)     to make representations or express opinions to the State Government or any other organization on behalf of the Local Government or as the case may require, the collective behalf of all such Local Governments on any matter of concern to the emirates, Chiefdom or to the area as a whole whether or not such a matter is within the Legislative competence of any such Local Government.”

It is pertinent to observe that Exhibit 31 tendered by the Plaintiff emanated from the Divisional office of the Igbomina/Ekiti Division which letter is dated the 6th day of November, 1975 to Alhaji Karimu Kolawole Akanbi warning him that the office was aware of a publication in the Nigerian Herald of Thursday August, 7th 1975 in which the said Alhaji Kolawole was reported to have been turbaned as the Baale of Ganmo by the Chief Imam of Ganmo. The letter made it abundantly clear that: “this office does not recognize any title in Ganmo Village other than that of the Magafi of Ganmo who is the Village Head and tax collector for Ganmo Village Area.”

He was therefore warned to desist henceforth from parading himself as the Baale and Magaji Ganmo at the same time.

Sequel to this letter, the family of the said Alhaji Kolawole protested to the Traditional Council who in the exercise of the powers conferred on members by Section 78(g) and (h) set up the Committee that came up with Exhibits D1 and D2. As was said earlier on, the Plaintiff family participated in the Arbitration. The tenns of reference of the panel was made clear in paragraph 4 of the Exhibit (D2) page 1 thereof where the Chairman in his opening speech said:

“The Chairman made it clear to the participants that the panel is to investigate the Chieftaincy wranqlings at Ganmo and to make recommendation which will bring a lasting solution to the Chieftaincy troubles at Ganmo. The panel will then recommend suitable person who will be village Head to the Traditional Council for trial ratification.”

Alhaji Jimoh Akanbi represented and testified on behalf of the Plaintiff’s family while Alhaji Kamiru Kolawole the Baale of Ganmo testified for the Defendant’s family at the end of which the panel found for the Defendant’s predecessor-in-title and forwarded the Report to the council which in accordance with the statutory powers conferred on it by Section 78(g) and (h) issued Exhibit D9 approving his appointment as the Baale and Village Head of Ganmo with effect from 4th October, 1978.

In my respectfully view, since the Courts’ jurisdiction were ousted by the 1963 Constitution, the Constitution of Northern Nigeria and the Chiefs Law of Kwara State, the Traditional Council of Irepodun/Ifedlodun Local Government became vested by Section 78 of the Local Government Law 1976 with the power to determine Customary Law and practice on all matters governed by Customary Law and in particular “to determine questions relating to Chieftaincy matters and offices” like the Baale of Ganmo. In fact the tone of Exhibit D9 is clear that they acted for the Ifelodun Local Government.

That Council recommended the predecessor-in-title to Defendant in 1978 and nothing was done until 1980 when the suit before Oyeyipo C.J. was filed. I am of the view that a successful plea of statute of limitation can ground a plea of Estoppel per rem judicatam. I derive fortification from the recent case of ABUBAKAR VS. B.O. & A.P. LTD (2007) 18 NWLR (Pt. 1066) 319 which facts are almost in parimateria in all respects with this appeal except that it is not a Chieftaincy matter. The eminently Learned Justices of the Supreme Court and in particular per Ogbuagu J.S.C. appositely laid the question to rest when he held thus:-

“Where a Court of competent jurisdiction, has settled, by a final decision, the matters in dispute between the parties none of the parties or his privy/privies may re-litigate that issue again by bringing a fresh action. The matter is said to be res judicata. The estoppel created is said to be by record inter partes. In other words, the rule of estoppel per rem judicatam requires that where a final decision is given by a Court of competent jurisdiction, the parties thereto cannot be heard to contradict the decision in any subsequent litigation between them respecting the same subject matter.

The plea is based on the principle of public policy that since the adverse party has no cause of action against him especially where a court has given him a final decision (like deciding that it has no jurisdiction to entertain the matter and there is no appeal against that decision), the Court lacks the jurisdiction.” See the cases of OSURINDE VS. AJAMOGUN (1992) 6 NWLR (Pt. 240) 156; OLORIEGBE VS. OMOTESHO (1993) NWLR (pt. 270) 386; OMOKHAFE VS. ESEKWEMO (1993) 5 NWLR (Pt. 309) 58; OGBOGU VS. NDIRIBE (1992) 6 NWLR (pt. 245) 6 – 7 S.C. 221.

I shall round up this issue of estoppel by referring to the Lead Judgment of Mukhatar J.S.C. at page 368, in the said ABUBAKAR VS. B.O. & A.P. LTD (supra) when she posited that once a matter is struck out for want of jurisdiction as was done on June 12th, 1985 by Oyeyipo emeritus C.J; the only option opened to the Plaintiff/Respondent and his family as an aggrieved party was to proceed on appeal rather than reopen the case as they did before Fabiyi J. (he as then was) in 1990. The judgment of the Court of Appeal that set aside that of Fabiyi J. has not enhanced their status in this case.

Indeed the present suit is a replication of suit No KWS/121/80 that was struck out by Oyeyipo C.J. for want of jurisdiction. All the ingredients of a successful plea of Estoppel per rem judicatam exist mutatis mutandis.
For example the parties in suit number KWS/121/80 were:

1) Mallam Suberu Naibi (substituted by Mallam ALERU MAGAJI)
2) Alhaji Salami Olori
3) Aihaji Jimoh Akanbi

Vs.

1) Alhaji Karimu Kolawole
2) Ifelodun Local Government (Defendants).
In suit number KWS/OM/30/90, the parties were: (1) Alhaji Aileru Jubril (Baale of Ganmo) suing for himself and family of Baale Sunmonu Okunoye as Plaintiffs

Vs.

1. Alhaji Abdulahi Atanda (for himself and the family of Jinadu and Raji Kolawole)
2. Ifelodun Local Government Council.

The issues and subject matter were the same, that is that as members of Sunmonu Okunoye family they are the only family entitled under native Law and custom to provide a person to be appointed Baale or Mogaji of Ganmo and they instituted the actions to challenge the respective 1st Defendants as members of the Jinadu family’s appointment as Bale of Ganmo the Defendants being impostors.

As regard this present suit on appeal KWS/OM/5/91 the self same Alhaji Aileru Jubril who died and was substituted by Saiami Adisa Olori (now substituted by Alhaji Anafi Zubair as Plaintiffs) sued in representative capacity for themselves and on behalf the family of Baale Sunmonu Okunoye against Alhajl Atanda Kolawole (for himself and the family of Jinadu Kolawole of Ganmo).

The subject matter and the issue are both the same in the previous suits that by native Law and custom the Plaintiff’s family and no other one in Ganmo has the exclusive right to become the Baale of Ganmo and they challenge the Defendant who is a successor to the late Baale Karimu Kolawole of Jinadu Kolawole family (the Defendants claim they are of Ganna Nganku the founder of Ganmo) stock.
From all indications, it is clear that even though the learned trial Judge agreed that parties in Exhibits D25 and DW26 were the same as in the present suit she missed the boat when she erroneously held that: “the two Exhibits did not go to the merit of the matter neither did the rulings determine the rights of both parties. “With the greatest respect, by the decision of the Supreme Court earlier cited, it has been settled that by striking out of the first suit for want of jurisdiction which decision has not been appealed against, the status quo ante still subsists. Moreover since the claim of the Plaintiff is statute barred it is stale dead and buried and never to be revived. The rights of the parties have been settled for good and by the Latin maxim ‘interest rei publica ut sit finis lituim’it is for the common good that there should be an end to litigation. See per Lord Guest in the case of CARL ZEIS STIFFTUNG VS. RAYNER & KEELERS (NO.2) (1967) 1 A.C. 853 at 933.

I shall not bother myself with an elaborate consideration on the customary Arbitration to which the Plaintiffs predecessors-in-title subjected to themselves. Suffice it to say that the Traditional Council was the body statutorily charged with the responsibility of determining Chieftaincy issues. The argument and the Court of Appeal and Supreme Court cases relied upon to submit that the Council had no power to appoint the Defendants as Bale of Ganmo, were cited out of context.

In the first place the Council only recommended to the Local Government for Karimu Kolawole to be accorded recognition officially as the Baale of Ganmo and tax coliector for the obvious reasons stated by the panel. They did not appoint him Baale and Tax collector. The tone of the letter is clear that the Local Government would determine the Baale’s remuneration.

On the whole, it has been held hat where a body of men be they Chiefs (as in this case) or otherwise act as arbitrators over a dispute between two parties, their decision shall have binding effect; if it is shown firstly that both parties submitted to the arbitration: secondly that the parties accepted the terms of the arbitration, and thirdly, that they agree to be bound by the decision. Such decision has the same authority as the judgment of a judicial body and will be binding on the parties and will create estoppel. See ASSANPONG VS. KWEKU & ORS (1932) 1 WACA 192; NJOKU VS. EKEOCHA (1972) 2 ECSLR 199 per Ikpeazu J. and MGBAGBU VS. AGOCHUKWU (1973) 3 ESLR (Pt. 1) 90.
The Plaintiffs having not protested that they were not bound at the earliest opportunity the Chairman and Secretary who did that on their behalf were supposed to be impartial members and in any case they were oVer ruled by majority of the members based on the historical antecedents of the parties and the said Secretary and Chairman signed the report.

Finally on the vexed issue of abuse of Court process. See JIMOH VS. STARCO (NIG) LTD (1998) 7 NWLR (Pt. 558 (523; JADESIMI VS. 264. Abuse of Court process can be inferred from what the Plaintiffs have done in the multiplicity of the cases they have filed on the same subject matter and between the same parties to the chagrin of the Defendants. Where for instance a Court of concurrent jurisdiction had pronounced that it lacked jurisdiction to entertain a cause, it smacks of judicial arrogance or call it brigandage for such a cause to be allowed surreptitious entry through the back door of a sister Court as my Lord Ajayi J. has done. No matter the merits of the case or the Lawyer’s ingenuity or status, once the issue of jurisdiction is raised as in this case and the court below found that there is a pending decision there on which has not been appealed against, then the Plaintiff in such a case must be shown the way out no matter how painful this could be to him for he cannot profit from his illegality and indolence.

Issue Number ONE (1) is hereby resolved in favour of the Appellant and Ground 3 of the Grounds of Appeal shall succeed since the lower court lacked jurisdiction to entertain this suit and refused to pronounce state the obvious but rather assumed jurisdiction in breach of the Appellant’s right to fair hearing.

From my holding every other argument on the substance of the case becomes a mere academic exercise which I ought to ignore but as an intermediate Court, I am bound to consider any other issue raised by the parties assuming my decision on the issue of jurisdiction is in error. This brings us to issue Number 2 whether from the totality of the evidence elicited by the parties the judgment of the Lower Court was against the weight of evidence.

Before resolving this issue, I wish to recall the immortal words of Fatayi Williams J.S.C. (as he then was) on the guiding principles on Courts In their trial of Civil cases as stated in the case of MOGAJI & ORS VS. ODOFIN & ANOR (1978) 4 S.C. 91 at 94 inter-alia:

……. “before a Judge whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the Plaintiff on one side of the scale and that of the defendant on the other side and weigh them together.”

This in essence means that a trial Judge in a Civil case before him would normally set out the issues joined by the parties from their respective pleadings, assemble the evidence elicited by either side on the issues so joined and then weigh them in the imaginary scale of justice in order to find out which of the evidence preponderates the other by the quality of the probative value of the testimony of the witnesses and the documentary exhibits tendered. See AROMIRE VS. AWOYEMI (1972) 1 ALL N.L.R. 101 and also Per Eso J.S.C. in BELLO VS. EWEKA (1981) 1 S.C. 101 at 118 – 120.

In the case at hand each of the parties anchored his case on traditional evidence and documentary Exhibits as to the founder or first settler of Ganmo and traced their genealogies to several pedigrees of Baales. I need not repeat their respective pleadings herein but suffice it to say that the burden of proof was on the Plaintiff to establish his case as set out by section 137(1) of the Evidence Act. His success depended on the strength of his case and not on the weakness of the Defendant’s case even though sometimes a Plaintiff could capitalize on the weakness of the Defendant’s case. See ELEMO & ORS. VS. OMOLADE & ORS. (1968) N.M.L.R. 359; OLOGUNLEKO DAWODU VS. SOLANKE (1959) L.L.R. 15 and JOHNSON VS. MAJA & ORS. (1951) 13 W.A.C.A 200.
Again, there are authorities galore on the well-established principle of Law that native Law and custom is a matter of fact, which must be proved by evidence to the satisfaction of the Court unless such custom has assumed such notoriety and has been so frequently followed by the Courts such that it becomes judicially noticed. See OLOWU VS. OLOWU (1985) 3 NWLR 372; AGBAI VS. OKOGBUE (1991) 7 NWLR 391; GIWA VS. ERINMILOKAN (1961) 1 ALL NLR 294 at 296 and ADEYEMI & ORS VS. BAMIDELE & ANOR (1968) 1 ALL NLR 1 at 6. See generally Section 14 (1), (2) and (3) of the Evidence Act.

The Learned Counsel for the Respondent has highlighted the evidence of the witnesses for the Plaintiff which according to him were unassailable, cogent etc. He has also enumerated all the Exhibits tendered by the Plaintiff to establish their Claim to the Baaleship of Ganmo. This might well be so. Again, the Court of Appeal and Supreme Court authorities cited may have been apposite to the peculiar circumstances of the cases decided. In this case, the Court below was carried away by the avalanche of records of Colonial masters and the past administrators of the Community as far as the Baaleship is concerned which documents may have beclouded her sense of justice.

In my humble view, it is not the volume of documentary evidence tendered and the number of witnesses called that determine the truth behind a case but the quality and probative value of such testimonies and documentary exhibits tendered. The crux of this case to me is whose family as between Sunmonu Okunoye and Ganaganku (the progenitors of the Plaintiff/Respondent and Defendant/Appellant) by historical antecedents and the native Law and Custom was/is entitled to the Baaleship of Ganmo in the face of the plea and the evidence by the parties that the Ganmo people are autochothonous Yorubas.
The answer to this question will settle this appeal once and for all. For purposes of emphasis, I dare reproduce some salient excerps from the Pleadings of the parties:

“Paragraph 2 of the Plaintiff/Respondent’s FURTHER AMENDED STATEMENT OF CLAIM NO. 2 states in clear terms:

“2.     The Plaintiff states that Ganmo is substantially a Yoruba Community/Settlement and according to Yoruba Custom the first settler assumes the position of Baale or Head of the community and his descendants in male line are entitled to occupy the position.”

One piece of evidence, which I find germane to the above avenment, is from the PW2 Yekini Salawu from Eleshinla compound. He had stated in his evidence-in-Chief that:

“When Ganmo was first established, the head was called Baale, later on they were called Mogaji due to the influence of Islamic Religion. It is the duty of the Baale to collect tax from the Community and pay it to Government purse.”
To prove that the Ganmo people are of Yoruba Stock and that Sunmonu Okunoye the founder of Ganmo was Yoruba, the witness had stated:
“The founder of Ganmo came from Oyo and settled at Ilorin in Idi Ape. After settling at Ilorin Okunoye left Idi Ape in Ilorin to establish Ganmo.”
When cross-examined by Counsel to the Defendant he replied thus:-
”I know the difference between Baale and Bale. Baale is a family Head while Bale is the Head of a whole town or Village.”
Earlier on, the PW1 had stated thus in his evidence-in-chief:
“Okunoye came from Ilorin’; and after relating how the original name of Yakoyo was changed to Ganmo by Okunoye and tracing the genealogy of succession to the Baale stool of Ganmo from the said Okunoye to Jibril the 1st Plaintiff he added:-

”All the people I have mentioned are all descendants of Okunoye. They are all Yorubas. After Okunoye had founded Ganmo the following families also came to settle with him. These are Mogaji Oko, Mogaji Samoni Balogun, Elemeso, and Mumuni. These are Kingmakers. It was Okunoye who gave all these families land to settle. “Underlining mine for emphasis.

The last underlined statement goes to buttress the fact as established by the DW1 the Ikolaba of Ganmo Chief/Alhaji Abdul Ganiyu Abdul who testified as follows:

“The family of Sunmonu Okunoye has never been Baale of Ganmo and the have no right to the throne. The family entitled to the Baale of Ganmo is called Ganna family. That family has always had the right to the throne and they are the one there today. The Ganmo people are Yorubas and we adopt all Yorubas customs in Ganmo. The relationshio is that the owner of the land and (read) is the Baale of the land. See page 249 of the Records.”

At page 250 the witness continued:-

“The family of Alhaji Karimu Kolawole and the Defendant are founders of Ganmo and 1st Baale of Ganmo. It is not true that the Defendant’s predecessor was a stranger at Ganmo. Alhaji Karimu Kolawole was a descendant of Ganmo family Ganna. Alhaji Jinadu is also one of the grand children of Ganna family. Gannanganku is the 1st founder of Ganmo. Gannanganku the 1st founder came from Oyo Oranninyan. Alafin founder of Ganmo. The name Ganmo ‘was carved from the name of the founder. I know the history of the 1st settler between Ganmo and Ilorin. Ganmo 1st settled before Ilorin. ”

On the status of the Plaintiff, the witness said in the last paragraph of page 350:-

”Sunmonu Okunoyos family used to have the title Mogaji (sic) was is title for stangers. In the history of Ganmo, I have heard of Baale Akanmu Ode. He was the successor of Gannaganku Arakansaka became the Baale of Ganmo after Akanmu Ode, Buraimoh followed after Arakansaka, then Baale Jinadu Baale Abefe followed Jinadu, Baale Raji Akanbi followed Abefe Momodu Amao followed Raji. Baale Karimu Kolawole is the one after Momodu Amao. The current Baale of Ganmo is Alh. Abdulahi Atanda Kolawole. As King maker of Ganmo, it is the male children of Ganna family (read who) have the right to the post of Baale.” At page 254 the witness went further to state:-

“The title Baale and Mogaji are not the same. Ganmo is a Yoruba settlement. They came from Oyo. The meaning of Baale is Oba Onile. There is nowhere the Title Mogaji is being used for their Chief. In Ganmo nobody installs a Mogaji. Those who came from Ilorin to reside with Ganmo people usually refer to themselves as Mogaji. In Ganmo today the Plaintiff is known as Mogaji Okunoye. There is also Mogaji Sanmori at sanmori compound in Ganmo. There is also Mogaji Mumumi in Ganmo. There is Mogaji at Ile-Okoo. Mogaji Okoo is now dead. There is mogaji in lie Elesinnla. The Plaintiff is the Mogaji of Okunoye family.”

To put a seal to the doom of the claim of the Plaintiffs the witness at pages 255 and 262 of the Record of proceedings continued in his evidence-in-chief as follows on ownership of land and Baale stool:-

“It is not true that the Plaintiffs ancestors are not (read are) the first settlers at Ganmo town. “I know Alhaji Akosile and Jimoh Akanbi.
Ganna family owns the land in Ganmo. In 1981 Alhajj Garuba Akosile and others sued the defendants family at the High Court. I can identify the judgment of the Court

“COURT: The document” (the certified True Copy of the Judgment in Suit No. KWS/115/81 delivered on 7/9/89) “is admitted as Exhibit D3.”

“DW1 continues: After Exhibit 03 the case went to appeal to Kaduna at Kaduna it favoured the Defendant so they went further to the Supreme Court I can identify the above judgments. Witness identifies the judgments”

Surprisingly, when the Learned Counsel to the Defendant sought to tender the said Supreme Court Judgment which should have guided the learned trial Judge in the just and final determination of this protracted Chieftaincy dispute, same was rejected on the ostensible but in-excusable ground that the judgment was not in existence and could not have been pleaded. This spurious reason was given in rejecting the apex Court’s judgment inspite of the specific pleading by the Defendant in paragraph 25 of his FURTHER AMENDED STATEMENT OF DEFENCE that:

“25.   The Defendant avers further that the family owns the land in Ganmo in the same vein as the Bale Chieftaincy in Ganmo. The Defendant shall rely on the various rulings and judgments of the various Courts showing and awarding the land in Ganmo and/its environs/suburbs to the Defendant’s family/predecessors.”

However, in his Lordship’s magnanimity he nevertheless allowed the Judgment of the Court of Appeal, which was said to have been upheld by the Supreme Court to be admitted as Exhibit D4.

The witness continued at page 262 thus:

“On page 14 of Exhibit 06 (another Judgment of the Appellate Division of the Kwara State High Court) the appeal succeeds. Land was awarded to the 2nd Appellant. The first settler is the owner of the land and he becomes the Head of that settlement. The Ganna family owns the land in Ganmo and they are the Baales of Ganmo. The Plaintiffs are never referred to as Baales of Ganmo. It is the Ganna family which is entitled to be the Baale of Ganmo.” (Underling mine for emphasis).

Under cross-examination, the DW1 admitted that there is no Chieftaincy declaration relating to Baale specifically. He denied that the title of the Plaintiff was Baale although they recognized Mogaji as an important Title under the Baale of Ganmo. He admitted that the title of Mogaji is honoured in the Community but they have no authority.

After the death of a Mogaji it is the duty of his family to present the next Mogaji to the Baale and that the King makers do appoint the Baales and present them to the Traditional Council then to Government and then to the Local Government for approval and the Local Government will convey approval through the letter of appointment to the Baale concemed. He admitted that the Baale Chieftaincy is not graded and that it is the Plaintiff’s family that refers to the Plaintiff as the Mogaji but he is not recognized by the Town. He admitted that Ganmo was at a time in the past under Ajassepo and Idofian District and that Exhibits 1, 4, 5, 6, 7, 8 and 9, 12, 13 and 14, 24, 29 and 46 all exoept 46 are addressed to the predecessor of the Plaintiff while Exhibits 10, 11, 12, 25, 26, 27, 28, 30, 31 and 32 came from Idofian or Ajassepo District Council and they are addressed to Mogaji Ganmo.

On the other hand, he further admitted, Exhibits 1, 4, 5, 6 – 7, 8 – 9, 12, 13, 14 – 24 and 29 refer to the addressees as the Bale of Ganmo and that in Exhibits 11 and 13, the Plaintiff was given the authority to oollect tax by Igbomina/Ekiti Division.

The witness also admitted that it was the colonial Administration that created Idofian/ Ajassepo District and that the colonial masters must have published in the Gazette the activities in Idofian/Ajassepo District. Exhibit 49 the Gazeteer of Ajasse District was therefore tendered by the Plaintiff’s Counsel.

The attention of the OWl was then drawn to page 27 of the said Exhibit 49 where in the Village Area Head of Ganmo Zuberu is referred to as the younger brother of Mogaji Are. He however, insisted that even today the titie “Mogaji Are” is from Idiape in Ilorin and that the Idofian/Ajassepo have been using the title “Mogaji” and Baale interchangeably. He further admitted that Exhibits 8 and 9 were addressed to one Amadu.

It is very pertinent to note that throughout the gamut of the cross-examination of the witness the Learned Senior Advocate neither in the least alluded to any of the Judgments tendered as Exhibits D3, D4 and D6, nor were the assertions of the witness severally that the first settler who was Gannanganku, the progenitor of the Defendant, also owns the Baale and that only the male descendants of Baale Gananganku can ascend the Baaleship of Ganmo, was contradicted.
The Defendant had tendered Exhibits D3, b4 and D6 and the rejected Supreme Court Judgment that incidentally is not before me, to prove that he and his family own the entire land in Ganmo. I shall for this purpose refer to the portions of the Judgment to buttress this fact.

Exhibit D3 is the Judgment of J.A. Kolawole J. of the Ilorin Division dated 7th day of September, 1989 in suit No KWS/113/81 the parties were:

1. ALHAJI GARBA AKOSILE
   2. ALHAJI JIMOH AKANBI
   3. ALHAJI LAWANI SANI (for themselves and representing Ganmo Community)
   4. ALHAJI KARIMU AREMU MOGAJI (for himself and as representative of ALE-MILAYA Community).
   5. ALHAJI SUBERU AMOO (for himself and ADILEJU Community) and
   6. ALHAJI AMINU AREMU (for himself and as representing Gbagede Community).

   AND

   1. ALHAJI KARIMU, FULLY KNOWN AND CALLED ALHAJI KARIMU KOLAWOLE (for himself and as representing Ganna family).
   2. IFELODUN LOCAL GOVERNMENT OF KWARA STATE.
   3. IREPODUN LOCAL GOVERNMENT OF KWARA STATE.
   4. IFEDAPO LOCAL GOVERNMENT OF KWARA STATE.
   5. ASA LOCAL GOVERNMENT OF KWARA STATE (as a party having interest in the subject matter of the Suit).

The Claim of the Plaintiffs which included the 2nd Plaintiff, Alhaji Jimoh Akanbi the representative-in-interest of the present Plaintiff/Respondent, among others as representatives of the Ganmo Community and the suburbs of Ganmo sued the 1st Defendant as predecessor-in-title of the present Defendant and the four Local Governments (2nd, 3rd, 4th, and 5th Defendants) for:

“(1)   A declaration that the grant by the 2nd, 3rd and 4th Defendants of ‘Permit to Alienate Land No. 0239 with Customary Right of Occupancy 77 title No 283′ and the sketch plan on which such permit is based are unconstitutional, vague, irregular ambiguous, illegal and therefore null and void and of no effect.

”2.     A perpetual injunction restraining the 1st Defendant, his servants, and/or agents AND MEMBERS OF HIS FAMILY and all other persons claiming through them from exercising right of occupancy and/or ownership over the land in Ganmo Alemilaya, Adileju and Gbagede Villages by virtue of the said Alienation permit granted by the 2nd, 3rd and 4th Defendants. ”

In their Defence the Defendants pleaded Estoppel on the ground that the Plaintiffs had earlier sued them at the Upper Area Court in Suit No. UACI/CVF/25/1975 Ganmo Village and suburbs Communities vs. Alhaji Karimu Kolawole where representatives of Ganmo Community, Alemilaya, Adiloju and Gbagede Community, all joined to claim for Declaration of title and injunction and that in Appeal Number KWS/27A/76 between Alhaji Karimu Kolawole vs. Alfa Raji Balogun, the Ilorin High Court of Appeal on the 10th day of February, 1978, dismissed the Plaintiff’s Claim and set aside the Judgment of the Area Court in suit No UACI/CVF/25/75 and that the Plaintiffs were all representatives of Ganma Community, Alemilaya, Adileju and Gbagede Communities. Some other documents were tendered in support of the plea and the Learned trial Judge held:-

“From my observation of Exhibits D2, D3 and D4 particularly D4, I discovered that the subject matter is the same. The Plaintiffs sued on behalf of the same Communities. It will therefore be most inappropriate in my view to allow the members of the same Communities to come forward one after the other and at will, to institute actions on the same piece of land as in this case. I am also in full agreement with Mr. Babalola that all those Communities represented in Exhibits D2, D3 and D4 are bound by the decision therein. “(See page 8 of said Exhibit D3).

At page 11 of the judgment, His Lordship concluded thus:-

“On the other hand, I hold that the Plaintiffs are estopped from instituting this action in view of exhibit D2, D3 and D4. in addition, I find that the Plaintiffs have failed to prove their case to the satisfaction of the court to justify the grant of their claims. Consequently, the claim of the Plaintiffs fails and it is hereby dismissed.”

The Plaintiffs were not done yet and they’ subsequently proceeded to the Court of Appeal in Suit No CA/K/69/90 where Umaru Abdulahi J.C.A. (now P.C.A,) in his lead judgment of the Kaduna Division of this Court, Mahmud Mohammed JCA (as he then was) and Okuchukwu Opene JCA concurring) in his very ludd judgment traced the history of the case and at page 2 of that judgment delivered on the 20th day of December, 1994 found that:-

“The facts of this case briefly out are that the 1st Respondent is head of the Ganna family and also a descendant of the founder of Ganna Community: and the members of his family have from time immemorial been in possession of all the land being occuoied by other Communities with the permission of his ancestors.”

The Learned Justice recalled that the genesis of the case was the issuance of permit to Alienate Land No. 0239 with Customary Right of Occupancy titled No. 283 to the 1st Respondent following the submission of a sketch plan of all the Ganmo and suburb communities lands to the Igbomina/Ekiti Local Government by the 1st Respondent the sketch plan and the permit were tendered admitted and marked Exhibits 4 and 5. In Exhibit 5, the 1st Respondent claimed for himself and family substantial part of Ganma land including land alleged to belong to Alemilaya, Adiloju and Gbagede Villages.

It was discovered that the appellants never appealed against the judgment of the High Court setting aside the Judgment of the Upper Area Court in Suit No. UACI/CVF/25/75, which was instituted against the 1st Respondent by Balogun-Adnini for himself and on behalf of the Suburb communities of Ganmo and that inspite of the subsistence of the said Judgment the same Appellants, instituted suit No. KWS/11/81, which was by the same parties and same subject matter – the grant of alienation permit and customary Right of Occupancy over Ganmo land. See the judgment of Kawu C.J; A.A.M. Ekundayo (J.) and A.A. Orire Grand Khadi in Appeal No KWS/27A/76.

After a careful analysis of the principles underlying the plea of Estoppel per rem judicatam the Learned Justice held:-

”Applying these principles of Law there is no gainsaying that Exhibits D1, D2, D3 and to a large extent exhibit D4 clearly brought: home the point that the appellants are actually the same plaintiffs referred to in these Exhibits. “(Page 11 line 3 to 37 of Exhibit D4)

At page 12 lines 18 – 21 he further held:-

“In the circumstances, I agree with the finding of the learned trial Judge that the parties, and subject matter are the same and the principles of res judicata applies. This is my view is enough to dispose the mean appeal.” He accordingly dismissed the appeal.

Having shown from the Judgments tendered that the Defendant’s progeniture actually owned (owns) the land in Ganmo and that members of his family have from time immemorial been in exclusive possession of all the land being occupied by other communities (including the Mogaji or Baale Okunoye family) who are the Ganna family tenants, the Onus shifted to them to show why they should assume the Baaleship of Ganmo inspite of the fact that they are customary tenants who are not land owners in view of their admission that under Customary Law the 1st settler is the owner of the land and Baale Stool.
Of course the Plaintiffs knew their limitations when they restricted themselves to “the position of Baale or Head of the community,” in the pleading in paragraph 2 of their Further Amended Statement of Claim No.2. The Plaintiffs have failed to tender a single judgment whether from the Area Court, High Court, Court of Appeal or Supreme Court, as the Defendants have done in this case to prove ownership of the land in Ganmo. Having failed so to do it then means that all the Exhibits tendered by the Plaintiff/Respondent as 1 – 49 pale into insignificance as they may have been issued in error or against the custom of the Ganmo nay the Yorubas as regards Baale Chieftaincy which should inhere in the Defendant and family. The ascription of the title of Baale of Ganmo to the Plaintiff/Respondent and his family, with the greatest respect to the colonialist and the Idofian/Ajassepo Councils, was done in defiance of the Customary Law and usages of the Ganmo and Yoruba race, which the parties profess.
Before rounding up let me reflect on the dictum of Nwaemeka Agu J.S.C. in KIMDEY & ORS VS. MILITARY GOVERNOR OF GONGOLA STATE & 7 ORS (1988) 5 S.C. 46 at 97 which is to the effect that where the documentary evidence before the court goes both ways and one side has a more substantial, support of the oral testimony before the trial Court, the set of documentary evidence which has more substantial support of the oral testimony outweighs the other and that if as it was the case before the Supreme Court, the trial Court prefers that set of documentary evidence, the appellate Court should not interfere. There is no doubt that the Learned Justice of the Supreme Court had stated the obvious. However, each case must be viewed and determined by the peculiar facts and circumstances surrounding it.
It is trite that there is a presumption that the decision of a trial Court on facts are correct and within its province but where a trial Court abjudicates its responsibility of using the best opportunity of hearing and watching the demeanour of witnesses or deliberately shuts its eyes to observable facts or fails to draw proper inferences from observable facts like the judgments tendered by the Defendant then this Court in its appellate jurisdiction is in as good a position to interfere with such findings of fact of the trial Court and draw the necessary inferences. See Per Eso J.S.C. in OMOREGIE VS. IDUGIEMWANYE (1985) 2 NWLR (Pt. 5) 41 at 56; OGBECHIE VS. ONOCHIE (1986) 2 NWLR (pt. 23) 484 at 493.

Even if we go by the authority of KIMDEY VS. MILITARY GOVERNOR OF GONGOLA STATE (Supra), a careful scrutiny of the documentary Exhibits tendered amply support the oral evidence of the Defendant that the Plaintiff’s family ought not and is not entitled to be vested with the Baleship of Ganmo they being not the original founders and therefore owners of the land in accordance with Yoruba Custom.

Let us begin by making reference to Exhibit C which is the Text “The History of The Yoruba; From the Earliest Times to the Beginning of British Protectorate)”, by the Rev. Samuel Johnson at page 75 thereof where the following appears in respect of Provincial Governments and Titles of the Yorubas thus:
“Every town, village or hamlet is under a responsible head either ‘king’ or of a Baale (mayor). In every case the title is hereditary (excepting Ibadan) as such heads are invariable the founder or descendants of the founder of their town.” This document rather supports the case of Defendant/Appellant.
Next is Exhibit 49 on which much premium has been placed to confer the title of Baale on the family of Sunmonu Okunoye as the founder of Ganmo. Clearly the following appear in the said Exhibit 49 the “Gazetteer of Ajasse District” at page 27:

“Ganna Village Area.       Tribe Yoruba
Village Area Head:-       Zuberu Younger brother of the Mogaji Are
10th year of servants Mohammedan
Sarantu-          Mogaji
Ilu:-             Magajin Oko
Elemoso
Elemoso
Mijin dadi
Magaji Semani
Women’s Sarantu       Nil
Hamlets:           Alamilaye, Alufakuga, Apata, Olagbemi, Budo, Adulolu, Budu Musa Gbabida.

History:-”

A perusal of the record above would show and confirm what the PW2 said in his evidence-in-chief that originally the Ganna Area Head was called Baale but because of the influence of Islamic immigrants from Ilorin one of which was the younger brother of the Magajin Are by name Zuberu who was in his 10th year of Suzerainty, the Village Head of Ganmo then, Baale was changed to Mangaji.
Also the only Ilus or Ille mentioned were those of the Magajis, which the DW1 described as the appellation of the settlers who came from Ilorin. Surprisingly, the original founders whom the Plaintiff Claim are strangers and had sued as the family of Ganna were not mentioned reflected inspite of the fact that by Exhibit D6 Alamilaya, Adiloju Gbagede and even Ganmo land have been adjudged to belong to Ganna family as the founders of Ganmo Community. Curiously too, the History column of the Gazetteer in respect of Ganna is empty either by way of deliberate suppression of facts or by omission.

It would appear that things remained as they were until around 1973 when the Defendant’s stirred the hornest’s nests and got the permit from the Local Government to Alienate Land in exerdse of their undoubted right as original founders/owners in possession. Then came the avalanche of cases unleashed on them by the Plaintiff and their cohorts culminating in the Judgment of the Supreme Court.

Again in 1975 the Defendant’s family selected installed and caused to be turbaned Alhaji Karimu Kolawole Akanbi as the Baale of Ganmo, and his name sent to the appropriate authorities and published in the Nigerian Herald of Thursday 7th August, 1975 which warranted his being warned by the Divisional office of Igbomina – Ekiti Division by a letter dated 6th November, 1975 to desist from parading himself as the Bale of Ganmo village as the Government did not recognize any other title in Ganmo Village than the Mogaji of Ganmo a position occupied by a member of the Plaintiff’s family and the present Plaintiff’s predecessor-in-title. See Exhibit 31.

Following the receipt of Exhibit 31 the Defendant’s family protested and this led to the setting up of the investigation panel by the Irepodun/Ifelodun Traditional Council which recommended the said Alhaji Kolawole to be appointed the Baale of Ganmo. Exhibits D1 and D2 have been the subject of intense criticism from the submissions of the learned senior Advornte. However, It would appear that the findings of the panel notwithstanding that the Chairman raised objection and called for a review, accords with all the judgments of the High Court, the court of Appeal and the Supreme ,Court, and is also amply Supported by Exhibit C that:

(a) Alhaji Karimu Kolawole and indeed his successors-in-title being direct descendants of Alafin Oyo and Ganaganku the original founder of Ganmo were and are entitled to be appointed as Baale of Ganmo and as tax collectors, since it is the Village head who collects taxes on behalf of Government.

2. That it would be repugnant to natural justice, equity and good conscience if an alien like Magaji of Ganmo – Mallam Suberu Naibi was allowed to be ruling in Ganmo to the disadvantage of a native Alhaji Karimu Kolawole, whose great grand fathers suffered both days and might to see that the ancient town was established.
3. That the committee informed the Council that it would be incompatible with public policy then in force to allow the Magaji of Ganmo Mallam suberu Naibi as Village Head of Ganmo when nearly all Communities in Kwara State were trying to free themselves from the yoke of colonialism.

IN EXHIBIT D2 at page 6, after hearing evidence from Alhaji Jimoh Akanbi then representing the Plaintiffs Respondents and Alhaji Karimu’ Kolawole as representative of the Defendant/Appellant the panal concluded as follows:-

“(a)    After a careful consideration of the evidence before the panel, the panel came to the conclusion that it was the family of AIhaji Karimu Kolawole the Bale of Ganmo who first settled at Ganmo.

“(b)    That Alhaji Kolawole family was Yoruba from Oyo Ile.

“(c)    That Alhaji Karimu Kolawole’s family should continue to be Bale of Ganmo.

“(d)   As in (b).

“(e)    That from two or three witnesses shall we establish the truth, that evidences from Amayo, Idofian and Olorunjale confirmed and supported Alhaji Kolawole’s case.

“(f)    Because of this the panel agreed that Alhaji Karimu Kolawole should continue to be the Bale and Traditional Village Head of G,anmo.”

Needless to say that as a result of the findings and Recommendations in Exhibits D1 and D2 Exhibit D9 a letter of appointment of Mallam Karimu Kolawole as the Bale and Village Head of Ganmo was conveyed to him by the Ifelodun/Irepodun Traditional Council. In the letter Ref. No. IR/IF/TRA/APP/1/128 and dated 5th October, 1978, it was stated by the Secretary of Council who signed same that the was “directed by the Ifelodun/Irepodun Traditional Council to convey the approval of your appointment as the Bale and village Head of Ganmo with effect from 4th October, 1978. Matters relating to your remuneration will be determined by the Ifelodun Local government.”

Sequel to this letter of appointment, the Plaintiff waited until 1980 and then initiated the proceedings in Exhibits D25 and D26. It would appear from Exhibit 44 dated 14th June, 1979 that Mallam Suberu was stripped of his Baaleship as he was simply addressed as Mallam Suberu Naibi of Ile Mogaji Ganmo, via Ilorin.
However, Exhibits 33 – 43 were receipts of collection and remittances of Development funds to the Local Government and some are addressed as Mogaji’s compound and dated 1984. A letter dated 25th May, 1984 also addressed Aileru Jubril as “Magaji of Ganmo, Magaji’s compound” acknowledged a letter written by the said Mallam Jibril assuring the Sole Administrator of prompt collection and remittance of taxes. This letter is inspite of Exhibit 30 captioned” Termination of Appointment as Tax Collector” from the Local Govemment Secretary.

It would appear that in 1984 following the purported ascension of the Headship of Ganmo in 1983 by the Plaintiff following the demise of Magaji Jibril Naibi, the Plaintiff then Alhaji Aileru Jubirl complained about the installation and recognition of Alhaji Kolawole as the Baale of Ganmo and Village Head thereof and in a letter referred MLGRD/LG/S/L/235/S.I./VOL.2/438 OF 8th October, 1984 from the Permanent Secretary Ministry of Local Government and Rural Development, Ilorin, and captioned “RE GANMO CHIEFTAINCY AFFAIR.” The sole Administrator in his reply dated 2nd November, 1984 and Referenced No. IFLG/S/89/S.9/132 expressly stated.”

“that the Ifelodun Local Government has not made any fresh appointment of Bale of Ganmo. The issue of a neat exercise does not therefore arise. Alhaji Kolawole was installed as the Baale and Village Head of Ganmo in 1978 when the then Igbomina/Ekiti Local Government abolished the post of Magaji/Village Head throughout Igbomina/Ekiti land. It was a policy decision, which has its genesis in the Ministry. It will be appropriate to dig ito the record to ascertain the neatness of that policy.

 

“2.     Meanwhile Alhaji Aileru Jubril has been told that the Local Government deals only with the Bale and this position were not vacant Alhaji Jubril put the blame correctly where it should in paragraph 2 of his petition of 12th October, 1984, on the Ifelodunj/Irepodun Traditional Council that decided the issue initially.

Signed
YUSUF MAMAN
Sole Administrator
Ifelodun Local Government.”

The permanent Secretary Local government in his letter of 10th December, 1984 marked Exhibit 49 expressed the Ministry’s satisfaction on the light thrown on the issue and paragraph 2 of the Administrator’s Letter was acceptable.
In 1990, a letter from the Ifelodun/Irepodun Traditional Council dated 25th May, 1990 and addressed to the family of Alhaji Karimu Kolawole (Bale of Ganmo) captioned

“LETTER OF CONDOLENCE,” the Council condoled Bale Kolawole’s family on the demise of Alhaji Karimu Kolawole.

All these correspondences went to show that Alhaji Karimu Kowiawole was the recognized Bale of Ganmo but in 1999 following a letter from the Council of Elders Ganmo Community dated 15th June, 1999 the Chairman of Ifelodun Local Government was informed of the sudden demise of Mallam Aileru Jubril the 12th Bale of Ganmo from the Okunoye Ruling House. See Exhibit 47. A letter of condolence from the Chairman of Council was addressed to the Council of Elders. The letter dated 1st July, 1999 was tendered as Exhibit 45.

But in a swift reaction by Council the Chairman through one Mr. J. Akande wrote back Exhibit D10 to the Council of Elders dedaring the letter wherein they described Mallam Aileru Jubril as the 12th Bale of Ganmo as an inadvertence and therefore null and void and of no effect whatsoever.

It would be recalled that before then Alhaji Karimu Kolawole the installed Bale had between 1984 and 1989 been dealt with by the Administrator of the Local Government and the Chairman of the Ifelodun Local Government as Bale to the exclusion of the Plaintiff’s predecessors.
See (1) Exhibit D19 dated 17th ay, 1984;

(2)     Exhibit D20 dated 26th October, 1984.

(3)     Another invitation by the Sole Administrator by a letter dated 18th March, 1985.

(4)     Appointment as member of the Committee to look into the position of OBAS/CHIEFS in IFELODUN Local Government Area; all which show that as at 1983 when the Plaintiff purported to succeed his late brother as Bale there was no vacancy to the stool as Alhaji Abdulahi Kolawole had been appointed by Ifelodun Local Government Council.

In 1999 for instance by Exhibit D12 the Chairman of the Ifelodun Local Government Council published a “PUBLIC ANNOUNCEMENT” dated 28th July, 1999 to inform the general public that the announcement made by one Abdulkareen Olola Kaawu that Bale of Ganmo was dead was false. He warned citizens of the Community to go about their Lawful businesses and to desist henceforth from uncivilized and barbaric actions, which would precipate crisis within the council Area.

On the 17th of October, 1990 the Chairman of Ifelodun Local Government conveyed a letter of Appointment of the present Defendant as the successor to Alhaji Karimu Kolawole the late Bale of Ganmo. This Letter sparked off the present suit and eventually this Appeal. See paragraphs 21(i) and 21(ii) and reliefs Numbers IV – VI as claimed by the Plaintiff/Respondent in his Further Amended Statement of Claim No.2.

By Exhibit D23 the Central Administrator continued to deal with the Defendant/Appellant as the Baale. See also Exhibit D16 a letter dated 24th December, 1999 inviting the plaintiff for a meeting with Chairman to discuss issues affecting Ganmo Community; Exhibit D17 also addressed to him from Council informing him about the observation of Id-prayers during that year’s Id-El-Fitri Celebration at Ganmo.

By Exhibit D18, it would appear that the Plaintiff’s family complained in 1999 on the nomination of a successor to Bale Aileru Jubril of Ganmo and by that letter dated 5th July, 1999, the Secretary to the Traditional Council wrote back to the Plaintiff’s family that they did not know Aileru Jubril as the Bale of Ganmo but that it was Alhaji Abdulahi Kolawole that the Council knew as the Baale. They pointed out that the question of succession did not arise since the said Abdulahi Kolawole was neither sick nor dead.

Exhibits D11 and D13 are replies to letters to follow up letters by the Plaintiff dated 13th January, 2000 and 27th January, 2000 respectively. In the said letters dated 8th March, 2000 and 23rd May, 2000, the Chairman Ifelodun Local Government expressly stated that Ifelodun Local Government recognizes only the stool of Baale of Ganmo while Alhaji Kolawole the Defendant/Appellant was the authentic Baale.

Secondly, the Local Government and the Government of Kwara State had made it clear that the choice of the said Baale was made purely on undistorted historical facts and that the Local Government made it abundantly clear that the position of Alhaji Kolawole was not threatened as it did not recognize any other person, be he from Magaji family or else where.

I have gone to this length in view of the submission by the Learned counsel to the Appellant that inspite of paragraphs 24 and 28 of this client’s claim and the feeble plea of the Plaintiff that there is no subsisting judgment which granted any of the Plaintiff’s family land or property of his fore bears to the Defendant the Plaintiff/Respondent ought to have proved the contrary after the Appellant had shown that judgment was actually given in his favour confirming that there are subsisting judgments which granted the Plaintiff’s family land or property of his fore bears to the Defendant/Appellant’s family.

I had already stated that by Exhibits D3, D4 and D6, the Defendant had discharged the burden cast upon him to show that the Respondent’s purported family land and property was awarded to him but the concomitant burden which shifted to him (the Plaintiff), to prove the contrary, has not been discharged. see JOHN BANKOLE VS. MOJIDI PELU (1991) 8 NWLR (Pt. 211) 523 at 541 cited by the Learned Counsel for the Defendant.

I also agree with the learned Counsel to the Appellant that on the authority of OKEWUYI VS. MOGAJI O. AKANBI (2002) W.R.N. 147 at 156 – 157; DURU VS. NWOSU (1989) 4 NWLR (Pt 113) 24 at 35 and OPEOLA & ORS VS. S.O.P. FALADE (1991) 2 NWLR (Pt. 173) 303 at 313 that the trial judge completely ignored the evidence of Appellant’s ownership of Ganmo land and the apurtenant Baaleship which is an incident of 1st founder and settler in accordance with Yoruba custom which act occasioned a great miscarriage of Justice.

She also failed to weigh this vital evidence with the non-evidence of ownership of land by the Respondent, which was neither Challenged nor discredited, in finding for the Plaintiff/Respondent.

I have already held that all the avalanche documentary evidence and indeed the testimonies of the Plaintiff’s witness were of no consequence, as they have nothing to do with the fact that the Respondent’s predecessor-in-title was the first settler and founder of Ganmo and therefore entitled to the Ganmo Baaleship as was discovered in the judgments tendered.

Let me comment on the issue of illegal installation of Baale of Ganmo as contained in paragraph 6.06 pages 21 and 22. With reference to the content of Exhibit 49 paragraph 7 page 4 thereof that “the villages of Ganmo, Idofia and Elanjare were easily conquered and their inhabitants were either impressed into the Kankafos armies or forced to migrate to Ilorin to strengthen the growing city, “the quotation does not show that Sunmonu Okunoye first settled in Ganmo or was a land owning family in the land. The Plaintiff has aiso not told the court that he conquered the Ganmo family and took their land.

From the Exhibits tendered it has been demonstrated that government as a matter of public policy decided to change Magaji to its traditional Yoruba appellation of Baale, reconstruct the distorted history of Ganmo and to right the wrongs of the past which deprived the founders of a community of their right to rule according to custom which the council in its wisdom found to be repugnant to natural Justice Equity and good conscience. See Exhibit D1 and D2 and Exhibits D3, D4 and D6.

There is no doubt that OGOLOGO VS. UCHE (1998) 11 NWLR (Pt. 572) 34 at 46 decided that intelligence reports prepared by colonial masters are not only a source of history out useful information materials to which reference may be made as at when necessary. The intelligence report tendered as Exhibit 49 is not useful to this case as the history column thereof is obliterated either deliberately or otherwise.

I have the discretion to attach weight to it but in this case I attach no weight to it because it is distorted. The Plaintiff therefore did not prove beyond peradventure the rightful claim to the Baaleship of Ganmo and has no right or at all to the exclusion of any other family through oral evidence oral documentary evidence which the Appellant has completely displaced by the quality of the evidence of the DW1 and DW2. These pieces of evidence are amply supported by recent events and documentary Exhibits like the Judgment, which is Superior to any other document, tendered by the Plaintiff.

The findings of the Court as reproduced in pages 26 to 28 of the Respondent Brief are a product lopsidedness crafted to ‘deprive the Appellant of his rightful inheritance.

All the arguments of the learned Senior Advocate based on documents like Exhibits C1 and C2, which the DW2 said the traditional Council did not consider, will go to no issue. Even the quarrel with Exhibit 14 and discrepancy in dates is of no moment since it is very clear from the stamp that the date refers to the date of certification and dispatch and not the date it was written.

In any case, there is presumption of regularity in favour of the document. See Sections 115, 112 and 114 of the Evidence Act and the case of R.V. WEAVER (1873) L.R. 2 C.C. R 85, 12 cox 52 and RAYMOND IHEOMA VS. SIMON OBIUKWU (1994) 1 NWLR 594; ODUBEKO VS. FOWLER &  ANOR. (1993) 7 NWLR 637 S.C. and JULES VS. AFANI (1980) 5 – 7 S.C. 96.

On the trial Court’s findings on the powers of the Traditional Council to appoint Baales, I am of the view that the learned trial Judge completely ignored the clear purport of Section 78 cap. 92 laws of Kwara State 1976, which was applicable when the cause of action arose. Expressly, section 98 (g) empowers the Council “to determine” questions relating to Chieftaincy matters and offices and, where such matters are within the exclusive prerogative of the Emir or Oba Chief to give advice thereon where so requested and by section 98(h) to determine Customary law and practice on all matters governed by Customary law, including matters pertaining to land subject to the land Use Decree of 1978″

With the greatest respect it is only where such matters are within the exclusive prerogative of the Emir of Oba Chief and the Emir or Oba Chief so requests that they (the Council) can give advice thereon. In this case it has not been shown by the Plaintiff that the matter was within the exclusive prerogative of the Emir or Oba Chief so as to warrant the holding of the trial Judge at pages 300 – 301 of the Record of proceedings.

It is also curious that the Local Government, which set up the Traditional council and charged it with the determination of Chieftaincy questions would direct or call on the Council to advise before it does that. It is within the prerogative rather of the Council to determine who is entitled as in this case to the Baaleship and send its recommendation as they have done in the case of D1 and D2 where parties submitted themselves voluntarily to it and they need not seek clearance from any Emir, Oba Chief or Council before exercising their power of determining any Chieftaincy or office question as in this case.

For the avoidance of doubt Webster’s Ninth New Collegiate Dictionary defines the word ‘determine’ as follows:-

“To fix conclusively or authoritatively, to decide by judicial sentence, to settle or decide by choice of alternatives or possibilities; to put or set to an end; to find out or come to a decision about by investigation, reasoning or calculation in answer to a problem, to come to decision.”

Black’s Law Dictionary on the other hand defines it as “A final decision by a Court or administrative agency.”From the foregoings it is crystal clear that once the Council as the Administrative Agency takes a decision on Chieftaincy matter or question such a decision is final.

The learned trial Judge descended into the arena when she wondered into the realm of speculation to insinuate that: “it is however, not unlikely that the defendant paid his way to enter into the council to secure such favourable report or recommendation.”

There is no question of irregularity in the letters appointing the Defendant as Baale of Ganmo, Rather the letter was borne out, as we discovered in Judgments tendered by the Defendant that indeed his family members are the rightful persons entitled to the stool of the Baaleship, which the Counil confirmed; by their investigation. If Exhibit 11 was irregularly acquired what of Exhibit D9?
On the question of appointment, the facts of this case are not like that of Elesa of Oke Ode Chieftaincy and the Apex Court’s holding in AMUDA VS. ADELOGUN & ANOTHER (1997) 5 NWLR (Pt. 506) 480 at 487 as quoted at page 17 of the Respondents Briefs is not applicable to the facts of this case. In the case at hand the Defendant had been appointed by the Kingmakers as the descendant of the authentic founder and land owing family and who by custom was entitled to the Baaleship in accordance with custom, see the evidence of DW1 and DW2.
He was then installed after performing all customary rights as stated by the DW1 at page 264 of the record of proceedings that as the Head of the Kingmakers, the tradition is that when Baale is to be installed, the family will present one Omo aye with a Ram and money and they the Kingmakers would install the Omo aye in accordance with tradition. In the case of the Defendant this process was fulfilled. The Defendant’s name was forwarded to the Local Government by the Kingmakers and the Local Government and the entire people recognized him.
Even the tone of the letter of Appointment clearly shows that council merely recommended the Defendant to the Local Government and the Government of Kwara State for appointment. In the case of the Respondent’s predecessor-in-title who was recognized in 1978 he was even turbaned and published in the Herald of 7th August, 1975 before his eventual recognition. See Exhibit 31 for confirmation.

As for the submission and holding by the Learned Senior Advocate and the lower court that the Law does not permit the Local Government Council to manage the name of the Head of the Community, the Council discovered that it was contrary to Natural Justice, Equity and good conscience to retain the name “Magaji” which is an appellation from strangers rather than Baale which is indigenous and the Plaintiff admits that it is now used inter-changeable, with Magaji. The Learned Senior Advocate cannot approbate at and reprobate at the same time.
Besides, by Section 78 (g) and (k) the Council is empowered to determine any question relating to Chieftaincy and office and Council can decide to change the name of any Chieftaincy or office which does not fit the custom of the people of the area as in this case. See Per Karibi whyte J.S.C in KIMDEY & ORS VS. MILITARY GOVERNOR OF GONGOLA STATE (1988) 5 S.C.N.J. 28 at 43 and 47.
On the non-graded nature of Ganmo Baleship, even if Baaleship is not graded, it is an office recognized by the Local Government and there is nothing in the Chiefs Law that stops Government from recognizing a Baale as Chief when in the true sense of the word it is akin to a Village Head. See Section 3 of the Interpretation Act cap. 52 of the then Northern Nigeria which was applicable when the cause of action arose and defined a chief as any native whose authority is recognized by a native community so the question of Baaleship not being graded does not arise in this case. Thus even if we go by the Interpretation of Act 1990 (Section 18 thereof) the Baaleship has been recognized by the Ganmo Community and the Local Government which accorded it the status of a Village Head or Chief or an office under the Local Government Law cap. 92 Laws of Kwara State 1976.

As regards the reply to the submission of the Appellant’s Counsel at page 15 paragraphs 4.42 to 4.48 there is ample evidence of Exhibit D2, – D4 and D6 and the evidence of the DW1 on the meaning of Baale as the owner of the land has not been contradicted. Assuming but not conceding that Baaleship is not determined by the owner of the land through first settlement, Exhibit D4 and D6 have put it beyond question that the Defendant’s forefathers were the first settlers/founders of Ganmo and therefore entitled to the Baaleship in accordance with Yoruba custom.

In the final analysis, I am of the considered view that the holding of the learned trial Judge at page 305 of the record is without basis in the face of the evidence of the Defendant’s witness and the Judgments tendered one of which came from the apex Court and which the trial Judge rejected without just cause. I reiterate here that the findings are perverse and they are not supported by the preponderance of evidence. Both counsel are ad idem that as a general rule this Court should not interfere with the findings of fact of a trial Court. See AJAO VS. ADEMOLA (2005) 3 NWLR (Pt. 913) 636 at 656 cited by the Learned Senior Advocate, but where the findings of facts are not supported by evidence and where the Court below failed to draw the correct inferences from proved facts this court can draw the necessary inferences particularly in a case which surfeit with an avalanche of documentary Exhibits. See AJUWON VS. AKANNI (1993) 12 S.C.N.J. 32, 46 – 47, OSENI V DAWODU (1984) 4 S.C.N.J. 197 at 209.
Finally see on this point the dictum of Eso J.S.C. in EBBA VS. OGODO (1984) 4 S.C.84 at 96 and 98 – 99.

On the whole even if the cause of action arose in 1990, which is not the case here the claim of the Plaintiff/Respondent to the Baaleship of Ganmo ought to fail. Issue Number 2 shall also be resolved in favour of the Appellant. Grounds 1, 2, 4 and 5 shall succeed.

This appeal is meritorious and it succeeds in its entirely. The judgment of the lower Court is hereby set aside and the Claim of the Plaintiff/Respondent ought to be and is hereby dismissed with N30,0000.00 costs.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.:

I have read the judgment just delivered by my learned brother IGNATIUS IGWE AGUBE. I am in complete agreement with his reasoning and conclusions. I will add a few words.
The first issue raised by the appellants is that the learned trial judge did not address or decide the isssue of jurisdiction. The appellants had raised the following issues of jurisdiction in their statement of Defence at the lower court and led evidence in proof of same during the trial. The appellants had urged the court to dismiss the Respondents’ claims on the following grounds:

(i) That the action was statute barred.
(ii) That it is caught up by estoppel
(iii) That the proper parties were not before the court.

On the first leg of statute bar; the appellants argued that the Ganmo Baale dispute arose in 1978 and thus governed by the 1963 Constitution which made chieftaincy disputes not justiciable. On this issue, the learned trial judge held as follows Pg. 296 of the record.

“I agree with Chief Awomolo SAN, that this action is not statute barred because the cause of action is the unprecedented appointment of the defendant as the bale of Gamno in 1990 by Exhibit D8 which was admitted by the defence”

It is important to point out that the appellants even though they stated that the suit was statute barred, they meant to advance the view that the action was not justiciable. These are quite two different legal state of affairs. When a cause of action is said to be statute barred, it means that even though the cause of action is justiciable, there is a specific time limit on its justiciability and when the ‘action is brought outside the time provided by law, the cause of action abates, ceases to exist and is no longer justiciable. This is quite different from a situation where the cause of action is ab initio not justiciable in law – that is to say the law does not recognise the dispute brought before the court as one in which there is a legal remedy before the courts.

It is pertinent to note that the respondents are claiming a declaration that the respondents’ family as against the appellants’ family are the only family under Ganmo native law and custom entitled to hold the position of Baale of Ganmo. The learned trial judge was asked to determine when the cause of action arose. This can be done by looking only at the statement of claim where the court wants to determine whether the action is statute barred or not. See Oba Aremo II v. S. F. Adekanye and Ors (2004) 7 SCNJ 218.

Paragraph 21(i) and 21(ii) of the further amended statement of claim filed on 8th April, 2005 states that his right was disturbed sometime in October 1990 when the appellant was appointed as Baale of Ganmo by the Ifelodun Local Government. A cause of action is an entire set of facts or circumstances that would give rise to an enforceable claim. See John Emiantor v. Nigerian Army (1999) 9 SCNJ 52. From the statement of claim therefore, the cause of action arose in 1990. Since the applicable law to a cause of action is the law when the cause of action arose, then, the law applicable would be the 1979 Constitution which made chieftaincy matters justiciable. See Akibu v. Oduntan (2001) 7 SCNJ 189.

The appellants also argued that the action was caught by estoppel. The learned trial judge on Pg 295 of the record held that both the decisions being relied on as estoppel by the appellants -‘ Exh D25 and D26 did not decide to finality the rights of the parties and neither did they consider the cases on the merits. The learned trial judge was quite explicit and clear in the correct interpretation of the purport and weight to be attached to both cases while determining whether or not they constituted estoppel. A successful plea of estoppel- res judicata deprives the court of jurisdiction. See Chief Salami Adesina v. The Commissioner, Boundary Commission, Osogbo (1996) 4 SCNJ 111. However, a judgment or ruling not on the merit cannot ground a plea of estoppel res judicata. See Kossen v. Savannah Bank (1995) 12 SCNJ 29. Thus the learned trial judge was right in rejecting the defence of estoppel put up by the appellants at the lower court.

I am of the firm view that the lower court was right in its evaluation of the evidence and the law in this case and that this appeal is wholly unmeritorious and it is hereby dismissed. I abide by the order as to costs.

JUMMAI HANNATU SANKEY, J.C.A.:

My learned brother, Agube, J.C.A., who prepared the lead judgment, has very carefully dealt with all the live issues arising in this Appeal. I agree with the lead judgment and have nothing more of great value to add to it. I adopt as mine all the consequential orders made.