Adeyemo v. Popoola (1987)

578
Adeyemo v. Popoola
14 December 1987

      1.
JOSHUA OYEDEMI A. ADEYEMO

      2.
OYELADE OMOBOLADE

            (for themselves and on behalf of other

            members of the five Ruling Houses at Ajawa)

        V.

      1
JACOB POPOOLA

      2
REV. ATILADE JOKOTOYE

      3.
GOVERNOR OF OYO

COURT OF APPEAL

(IBADAN DIVISION)

CA/1/179/84

PHILIP NNAEMEKA-AGU, J.C.A. (Presided and Delivering the Lead Judgment)

MICHAEL EKUNDAYO OGUNDARE, J.C.A.

IBRAHIM KOLAPO SULU-GAMBARI, J.C.A.

FRIDAY, 3RD APRIL 1987

APPEALS – On findings of fact – Attitude of appellate court.

APPEALS – Evaluation of evidence – Role of appellate courts.

APPEALS – Findings of facts – Credibility of witnesses – Whether demeanour is test of truth.

APPEALS – Findings of facts – interference with findings of trial court – When proper.

CHIEFTAINCY – Chieftaincy – Declaration made under the Chiefs Law 1957 – Declaration in respects of Ruling Houses – Whether valid – Sections 4(2); 4(4), Chiefs Law 1957.

CHIEFTAINCY – Recognition of Ruling Houses – How determined – Chiefs Law 1957, Section 4(4)

EQUITY – Laches and Acquiescence – Meaning of.

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EQUITY – Doctrine of laches and acquiescence – Principles applicable.

EVIDENCE – Evidence of traditional history – Nature of.

EVIDENCE – Admissibility – Evidence of traditional history – Guiding principle.

EVIDENCE – Conflicting versions of traditional history – How resolved.

EVIDENCE – Witnesses – Credibility of – Relevance in determining truth of

traditional history.

Issues:

1.
Whether the learned trial Judge did not fall into error in the manner in which he proceeded to resolve the conflict in traditional history before him.

2.
Whether the learned trial Judge gave due weight to other factors relevant to weight and credibility of evidence.

3.
Whether the appellants lost their right of action by laches and acquiescence.

Facts:

In the High Court of Justice, Ogbomosho, the plaintiffs/appellants claimed for themselves and on behalf of all the five Ruling Houses of Ajawa, against the defendants/respondents jointly and severally as follows:

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

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

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

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

At the trial, the appellants contended that there were five Ruling Houses in respect of Alajawa of Ajawa Chieftaincy) namely (i) Ikupoluwusi; (ii) Olawusi; (iii) Olumole (iv) Ibapala and (v) Laomo.

When the Chieftaincy declaration of 1958 was drawn up, Ikupoluwusi was not included among the five Ruling Houses. Instead, Olajolu was included as one of the five Ruling Houses. Thus, while agreeing on the correctness of four of the ruling houses, the only point of controversy between the parties was that while the appellants maintained that it was Ikupoluwusi who should be the 5th Ruling

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house, the respondents, on the other hand, insisted that it should be Olajolu. The Chieftaincy declaration of 1958 listed Qlajolu as the 5th ruling house in favour of the respondents. The appellants therefore argued that though Olajolu was a prince, he was never an Alajawa and that since he died childless, he could not constitute a Ruling House.

It was appellant’s contention that Falana, who was the ancestor of the Is1 and 2nd respondents was not a natural son of Olajolu but his step son. They submitted that Oyewole, the mother of Falana, begat Falana to one Fasola who was her previous husband before she got married to Olajolu. This Fasola, they claimed was not a member of any of the Ruling Houses. The appellants further claimed that they were not aware of the declaration of 1958 which included Lajolu as one of the ruling houses and said that they learnt of it in 1976.

The respondents on the other hand, contended that there was full consultation with all the representatives of the ruling houses of Ajawa before the 1958 declaration was made, that, the number and identity of the five named ruling houses were correctly set out and it included Olajolu. That Falana who is the ancestor of the 1st and 2nd respondents was the son of this Olajolu and Oyewale his mother begat him for Olajolu.

After considering the issues involved the learned trial Judge found against the plaintiffs and dismissed all their claims. Whereupon the plaintiffs appealed.

In the Court of Appeal, Mr. G. O.K. Ajayi, S.A.N. for the appellants submitted that the learned trial Judge having recognised the fact that the issues in this case depended on the conflicting evidence of traditional history as related by both sides, it would not be right for him to resolve the conflict in the traditional evidence by considering the demeanour of witnesses or by assessing the credibility of witnesses in the relating of their traditional history. According to him, where such conflict exists, the proper thing for the learned trial Judge to do was to test the traditional history by reference to facts in recent years as established by evidence and find which of the two competing stories was more probable. Counsel also attacked the findings of the trial Court that the appellants were guilty of laches and acquiescence in instituting the present action.

In his reply, learned counsel for the 1st respondent, Mr. Atilade Ojo, submitted that the trial Judge proceeded in the right direction in that “a trial Judge before whom oral evidence is given has a primary duty of appraisal of the oral evidence and ascription of probative values to such evidence. This is because a witness has first to be believed before a court can be satisfied of his testimony”. He went on to submit that “Where the evidence relied upon is based on traditional history a trial court in evaluating such evidence must determine first whether a witness is truthfully recounting what his ancestors told him and secondly whether his story is true.” Learned counsel finally urged the court not to disturb the findings of fact made by the trial Judge.

Held (Allowing the Appeal by a majority; Ogundare, J.C.A. dissenting):

1.
There is a presumption that the decision of a court of trial on the facts is correct and that presumption must be displaced by the appellant before an appellate court can Intervene. [Williams v. Johnson 2 WACA 233 & 234 refers.]

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     2.
It is not the function of the Court of Appeal to substitute its own views for those of the court of trial, particularly where the Issue depends on credibility of witnesses. [Ogbero Egri v. Edeho Uperi (1974) NMLR 22 refers.]

     3.
The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because It unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then be at large for the appellate Court. (Laws Burainoh & Ors. v. Selicitu Abike Williams & Ors. (1956) 1 FSC 87; Onwoainanam v. Fatuade (1986) 2 . 199 at 203 – 204; Akibu v. Opaleye & Anor. (1974) II S.C. 189 followed.] at pp.197 and 203.

4.
When there is conflicting evidence of tradition, the conflict was not one that was capable of being resaved from demeanour of witness but by testing the traditional history by reference to facts in recent years as established by evidence and by seeing thus which of the two competing histories is more probable. [Buraimoh Olorlode v Oyebi 1984 5 S.C. 1 at pp. 17-18 applied.]

5.
Evidence of traditional history is essentially a West African development which is admissible on the premises that as literacy among the people does not go so far back, oral tradition is generally the only evidence available in a case of disputed title beyond the memory of living witnesses. Although, since 1945 its admissibility has by seciiqn 44 of the Evidence Act been reduced into statutory form, which limits it to where title to or interest in family or communal land is in issue.

6.
From the very nature of traditional evidence not only that its acceptability should not be tested in the ordinary manner of testing direct evidence, but also that it is not suitable for the usual strict standard of precision and consistency that characterise other evidence.

7.
In dealing with evidence of traditional history, the test presupposes that the demeanour or the credibility of the witness relating the traditional history win not be considered nor will it be proper to consider whether what the witness was relating was true or not.

8.
If the evidence of a witness is to be analysed and evaluated before accepting it as a traditional history so as to resolve the conijict in the evidence of traditional history of the parties by facts in recent years, then once a decision is made that a

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witness relating a traditional evidence is not worthy of any credibility, there is nothing more to consider in respect of facts in recent years and that would he the end of the case.

9.
Where there are two conflicting sets of traditional history. It is not right to assess or determine first which or both of the two sets of traditional evidence was plausible or credible before reference is made or consideration is given to the facts In recent years.

10.
Per NNAEMEKA-AGU, J.C.A. at page 589

“Although it was suggested in Lajide Onanogha Akuru v. Olubadan-in-Council (1954) 14 W.A..C.A. 523 at p. 524, that “the weight to be attached to traditional evidence is a matter which is left to the experience and wisdom of the Judge,” yet it Is my view that, on the general principles which guide appellate courts in their approach to Issues of fact… this court ought to interfere if it is satisfied that the court of trial did not make a correct approach to the issue of conflicting evidence.”

11.
In contradistinction to direct evidence which is based on what witnessps see or otherwise perceive by themselves, evidence of tradition is based on what witnesses have been told, usually by persons who had died long ago and quite often who were told the story by someone else.

12.
In a strict sense, traditional evidence is no more than hearsay evidence. It is evidence as to rights alleged to have existed beyond the time of living memory. It is therefore recognised that the witness who are called upon to give traditional evidence would not necessarily be in a position to give an eyewitness account. [F.M. Made v. Lawrence Awo (1915) 4 S.C. 215 at pp. 223-224 refers.]

13.
Per NNAEMEM-AGU, J.CA. at page 590

“It appears to follow from this very nature of traditional evidence not only that its acceptability should be tested not in the ordinary manner of testing direct evidence but also that it is not suitable for the usual strict standard of precision and consistency that characterise other evidence. For it is recognised that in the narration of what has been handed down by word of mouth from generation to generation witnesses may speak honestly but erroneously. There may even be some lapses here and there. But as long as the general story is consistent with the party’s own version of the tradition, the court should proceed to apply the proper test as to which of

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the conflicting versions is the more probable. Afterall, the witness is not speaking as to his own knowledge of the events but on admissible hearsay”

[Adenle v. Oyegbade (1967) NMLR 136; Ben Ikpan & On. v. Chief Sam Edoho & Anor. (1978) 6 & 7 S.C. 221 at pp.247-250 refers.]

14.
When it is stated that evidence called by both sides should be put on either side of an Imaginary balance and weighed together, what should be weighed together is evidence of the same type and quality. [Mogaji & Ors. v. Rabiatu Odofin & Ors. (1918) 4 S.C. 91 at pp.94-91 followed.]

15.
Per NNAEMEKA-AGU, J.C.A. at page 594-595:

“In my opinion, It is the evidence of the views and attitudes of the Mogaji, the Ruling Houses, and the Kingmakers who are, because of their positions, the custodians of native law and tradition, that can be validly applied as acts within living memory which can be the proper determinant as to which of the two competing stories is the more probable. There can be no doubt that if this proper approach was made, the version of the story of the tradition of the people as told by the appellant’s would have been seen as the more probable.”

16.
It is settled that before laches and acquiescence could deprive a person of his legal right, the delay and circumstances must have been such as to make it fraudulent for him to wake up and assert his rights. It is not enough that there has been mere lapse of time. [Agbeyegbe v. Ikomi (1946) 12 WACA 383; Taylor & Ors. v. Kingsway Stores of Nig. Ltd. & Ors. (1965) 1 All N.L.R. 10 distinguished.]

17.
Where the delay is such that the plaintiff knowing the full facts including the defendants claim induces the defendant by his inaction to alter his position to his detriment on the reasonable belief that the property or right is his own, then equitable plea of laches and acquiescence will he available to the defence. [Alhaja Sabalemotu Kaiyaola & Ors. v. Lasisi Egunla (1974) 12 S.C. 55 at p. 65; Wilfred Okpalaka & Ors. v. Umeh & Ors. (1976 10 S.C. 269 at p. 295 refers.]

18.
In the instant case, the bulk of the evidence show that before the Chieftaincy Declaration was done in 1958 there was a good deal of consultation. However, there is no evidence that the appellants or the Ruling Houses they came from were informed of this consultations. Consequently, the finding of laches and acquiescence against the appellants cannot be supported by the evidence.

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14 December 1987

      OGUNDARE, J.C.A. (Dissenting):

1.
The traditional evidence that may be subjected to the recognised test must be one that is plausible or capable of being believed; it cannot be one that is intrinsically untruthful or unhelpful or badly discredited under cross-examination.

2.
Where a judgment is appealed from on the ground of weight of evidence, the appeal court can make up its own mind on the evidence, not disregarding the judgment and not shrinking from overruling it, if, on full consideration, it comes to the conclusion that the judgment is wrong. If, however, the appeal court is in doubt, the appeal must be dismissed, since the burden of proving that the judgment is wrong is on the appellant. [Ababi II v. Catholic Mission (1935) 2 WACA 380 applied.]

3.
Where a court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of a Court of Appeal to substitute its own views for the views of the trial court. [Akinloye v. Eyiyola (1968) NMLR 92 applied.]

4.
It is within the power of a Court of Appeal to interfere with the decision of the court below where such decision is shown to be perverse or not a proper exercise of judicial discretion. [Fatoyinbo v. Williams (1956) 1 F.S.C. 87, p.89 refers.]

5.
Per OGUNDARE, J.C.A. at page 607:

“In a situation such as where the matter is at large for the appellate court, it is my humble view that for this court to properly perform its duty, it has to consider the evidence as a whole and decide at the end of the day where the imaginary scale tilts. It cannot but consider the evidence as a whole if it is not to fall into the same trap of being accused of not properly evaluating the evidence. Such an exercise does not, in my respectful view, require a cross-appeal by the respondents nor a respondents’ notice. It is the appellants who are contending that the judgment is against the weight of evidence. And to determine this, evidence on both sides has to be considered and put on the imaginary scale as decided by the Supreme Court in Mogaji v. Odofin (1978) 4 S.C. 91, 93-94”

6.
In this case, appellants contended that Oyewale was first married to one Fashola of AJagase for whom she begat Falana before leaving Fashola to marry Glajolu, a prince of Ajawa. The marriage of Ola Join was admitted by the defence but her marriage to Fashola was denied. Consequently, the marriage

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to Fashola having become an issue In this, the onus was on the appellants to strictly prove it and they failed to do so. [Lawal & Ors. v. Younan & Sons & Anor. (1961) WNLR 197 followed.]

1.
Per OGUNDARE, J.C.A. at page 617

“In short, on the evidence available at the trial it would be difficult indeed to hold that the appellants had discharged the burden on them to prove the customary law that recognised Ikupoluwusi Ruling House. Their tasks is made more difficult by section 4(4) of the Chiefs Law which provides:

‘(4)     In exercise of their powers under this section a committee shall ensure that no family is declared as a ruling house which is not generally recognised as such at the time of making the declaration by the community with which the Chief concerned is associated, and in particular shall not declare as a ruling house a family which has been in the remote past so recognised but is not recognised at the time of making the declaration.”

2.
A plaintiff is required in equity to prosecute his claim without undue delay. If he were to sleep on his right for a long time he would be barred by laches.

3.
In the instant case, the appellants were guilty of Inches and acquiescence, for, their delay in prosecuting whatever claims they imagined they had against the respondents in this case, has been most unreasonable and inexcusable.

Nigerian Cases Referred to In the Judgment:

Abinabina, Stool ofv. Enyimade XII WACA 171 at p. 172

Adenle v. Oyegbade (1967) NMLR 136

Agbeyegbe v. Ikomi (1949) 12 WACA 383

Agboruja, Estate of In Re 19 NLR 38

Aileru v. Anibi 20 NLR 46

Akibu v. Opal eye & Anor. (1974) 11 SC 189 at pp. 197 and 203

Akinloye v. Eyiyola (1968) NMLR 92

Akuru v. Olubadan-In-Council (1954) 14 WACA 523 at p. 524

Alade v. Avvo (1975) 4 SC 215 at pp. 223-224

Commissioner of Lands v. Adagun (1937) 3 WACA 206

Egri v. Uperi (1974) NMLR 22

Fatoyinbo & Ors. v. Williams & Ors. (1956) 1 FSC 87 at 89 (1956) SCNLR 274

Ikpan & Ors. v. Edoho & Anor (1978) 6 & 7 SC 221 at pp. 247-250

Jadesimi v. Okotie-Eboh (1986) 1 . (Pt. 16) 264, 274-275

586
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14 December 1987

Kaiyaola & Ors. v. Egunla (1974) 12 SC 55 at p.65

A.L.C.C. v. Ajayi (1970) 1 All N.L.R. 291 at pp. 295-296

Lawal & Ors. v. Younam & Sons (1959) WRNLR 155; 1961 197

Macaulay v. Tukurit (1899) 1 NLR 35

Mogaji & Ors. v. Odofin & Ors. (1978) 4 SC 91 at pp. 93, 94-97

Ntiaro v. Akpan (1918) 3 NLR 11 (PC.)

Okpaloka & Ors. v. Umeh & Ors. (1976) 10 SC 269 at p. 295

Olonode & Ors. v. Oyebi & Ors. (1984) 5 SC 1 at pp. 17-18

Onwoamanam v. Fatuade (1986) 2 . 199 at p.203-204

Queen v. Ozogula 11 Ex Parte Ekpenga (1962) 1 All NLR 265 at p.268

Taylor & Ors. v. Kingsway Stores Ltd. (1965) 1 All NLR 10

Williams v. Johnson (1937) 2 WACA 253 at p.254

Foreign Cases Referred to In the Judgment:

Ababio II v. Catholic Mission (1935) 2 WACA 380

Alkard v. Skinner (1887) 36 Ch.D. 145

Colonial Securities Trust Co. v. Massey 65 LJQB 101

Kojo II v. Bonsie & Anor (1957) 1 WLR 1223 at p. 1226

Ramsden v. Dysen (1866) L.R. 1HL. 129

Watt or Thomas v. Thomas (1947) AC 484 at pp. 487- 488

Nigerian Statutes Referred to In the Judgment:

Chiefs Law 1957 Section 4(2) (4)

Chiefs Law Cap 19 Laws of Western Region of Nigeria 1959 Chiefs Law, Cap 21 Laws of Oyo State, 1978

Evidence Act Cap. 62 Sections 44

Appeal:

This was an appeal from the decision of the High Court of Oyo State which dismissed the claims of the appellant. The Court of Appeal however allowed the appeal by a majority.

History of the Case:

Court of Appeal:

Division of the Court of Appeal to which the appeal was brought : Court of Appeal, Ibadan.

Names of Justices that sat on the Appeal: Philip Nnaemeka-Agu, J.C.A. (Presided and Read the Lead Judgment); Michael Ekundayo Ogundare, J.C.A. (Read a Dissenting Judgment); Ibrahim Kolapo Sulu-Gambari, J.C.A.

Appeal No.: CA/I/179/84

Date of Judgment: Friday, 3rd April 1987

Names of Counsel: G. O. K. Ajayi, SAN (Bayo Jacobs with him) – for the Appellants.

Atilade Ojo – for the 1st Respondent J. O. Oyegoke – for the 2nd Respondent.

C. A. Boade Senior State counsel – for the 4th Respondent.

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A

B

C

D

E

F

G

H

          High Court:

Name of High Court: High Court of Justice, Ogbomosho

Name of Judge: Ademakinwa, J.

Counsel:

G. O. K. Ajayi Esq. SAN (Bayo Jacobs with him) – for the Appellants.

Atilade Ojo Esq. – for the lst Respondent J. A. Oyegoke Esq. – for the 2nd Respondent

C. A. Boade Esq., Senior State Counsel (Oyo State) – for the 3rd Respondent.

NNAEMEKA-AGU, J.C.A. (Delivering the Lead Judgment): By an amended writ of summons filed in an Ogbomosho High Court the plaintiffs claimed for themselves and on behalf of all the five ruling houses severally as follows:

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

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

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

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

After considering the issues one by one it found against the plaintiffs and dismissed their claim in its entirety.

The plaintiffs (hereinafter called the appellants) have appealed. They have also filed their brief of argument and had leave to file an amended brief through their counsel. Each of the 1st and 2nd defendants (respondents) filed and duly amended their briefs. The 4th respondent filed a brief. So this appeal was argued on the amended briefs of the appellants and the 1st and 2nd respondents and the brief of the 4th respondent.

The issues for determination in this appeal were summarized by the learned senior advocate for the appellants, Mr. Ajayi, as follows:

(i)
Whether the learned trial Judge did not fall into error in the manner in which he proceeded to resolve the conflict in traditional history before him.

(ii)
Whether the learned trial Judge gave due weight to other factors relevant to weight and credibility of evidence, and

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A

B

C

D

E

F

G

H

(iii)     Whether the appellants lost their right of action by laches and acquiescence.

The first issue necessarily involves an area in which an appellate court must have to approach the issue most cautiously. This is because issues of fact are preeminently those of a court of trial. There is a presumption that the decision of a court of trial on the fads is correct and that presumption must be displaced by the appellant before an appellate court can intervene. See Williams v. Johnson (1937) 2 W.A.C.A. 253, at p.254. Also Colonial Securities Trust Co. v Massey 65 L.J.Q.B. 101, per Lord Esher. It is not the function of this court to substitute its own views for those of the court of trial, particularly where the issue depends on credibility of witnesses. Ogbero Egri v. Edeho Uperi (1974) . 22. But the main thrust of Mr. Ajayi’s submissions in this appeal is that the all important issue of evidence of tradition upon which the learned trial Judge hoisted his decision to accept the case for the defence is not one that is capable of being resolved on credibility of witnesses and that the learned Judge approached the evidence wrongly. If he is right then this court has the right indeed the duty to intervene. For as Lord Thankerton stated in Watt or Thomas v Thomas (1947) A.C. 484, at pp.487 – 488.

“The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen or heard the witnesses, and the matter will then be at large for the appellate court.”

This principle was cited with approval by the Federal Supreme Court in the case of Lawal Buraimoh Fatayinbo & Ors. v. Saliatu Abike Williams Alias Sanni & Ors. (1956) 1 F.S.C. 87. See also the decision of this court in F. C. Onwoamanam v. S. Fatunde (1986) 2 . 199, at p.203) 204. See also Alhaji A.W. Akibu v. Joseph Okpaleye & Anor. (1974) 11 S.C. 189, at pp.197 and 203.

The learned Judge himself recognized the fact that the issue depended on the conflicting evidence of tradition as given by both sides to the conflict. Quoting the dicta of Denning, L.J., in Kojo liv Bonsie & Anort (1957) I W.L.R.1223, at p.1226, he noted – rightly in my view – that the conflict was not one that was capable of being resolved from demeanour of witnesses, but by testing the traditional history by reference to facts in recent years as established by evidence and by seeing thus which of the two competing histories is the more probable. I should note that the principle in Kojo’s case (supra) has been cited with approval in many binding decisions of both this court and the Supreme Court. See, for an example, the decision of the Supreme Court per Irikefe, J.S.C. (as he then was) in Buraimoh Olonode & Ors. v. Simeon Oyebi & Ors. (1984) 5 S.C. 1 at pp.17) 18.

It is helpful to quote here the relevant ipsissima verba of Lord Denning’s decision.

He said:

“Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case, demeanour is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is the more probable.”

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      How then did the learned Judge resolve the conflict in this case? Mr. Ajayi, for the appellants, in sum, submitted that the learned Judge ascribed wrong probative value to some evidence of tradition as given by the defence, did not consider adequately or at all some relevant evidence of tradition given by the appellants, and contrary to the principle recognized by him, wrongly allowed his mind to be influenced by the demeanour of the 2nd appellant.

       Before I can usefully proceed to examine the above contentions in detail, it is necessary to outline the various contentions of both sides in the case. Both of them agree that there are five ruling houses in the Alajawa Chieftaincy. They are that Oluwusi, Olumole, Ibakpala, and Laomo are four of these ruling houses. Appellants say that the remaining one is Ikupoluwusi from which the appellants on record hail whereas the respondents say it is Olajolu, from which the 1st and 2nd respondents hail. Both sides also substantially agree on the history and number of Alajawa, to the 22nd Alajawa, but disagreed on whether or not Ikupoluwasi was ever an Alajawa. Appellants’s case is that he was and that it was from him that the ruling house got its name. Respondents maintain that he was never an Alajawa. It was also agreed that Olajolu, through whom the respondents claim, was a Prince but never an Alajawa but that his half brothers (according to) appellants Laomo, Olabisi and Olawusi in turn became Alajawa.

    Olajolu, it was also agreed, married Oyewale who on his death, was inherited by his brother or half-brother, Olawusi (later an Alajawa). It is also noteworthy and agreed that Oyewale had other two children, one of whom was a male, Mobolade, later an Alajawa. The 2nd appellant, the head of the Mogaji of the five ruling houses is a descendant of Olawusi, through Mobolade.

    The real bone of contention is Falana, through whom the respondents claim. The appellants’ contention is that although he was the son of Oyewale, Olajolu was not his father and that Olajolu never had any issue in his life-time. He was only a half-brother to Mobolade (Omobolade) by their mother, Oyewale. According to the appellants, Falana’s father was in fact Fashola, the former husband of Oyewale before she married Qlajolu. The respondents’ case is that Falana was the full blooded son of Olajolu and Oyewale and by reason of the fact that his father was a prince, he could have been an Alajawa. It was also because of this relationship that his three wives were inherited by the children of Olawusi, the grandfather of the 2nd appellant, they contended.

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

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

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instant case in which what is in issue is a chieftaincy title of Alajawa of Ajawa. Each side relied on the history of the people to support its case. The contest is as to whether the learned trial Judge made a proper approach to the evidence.

I must pause here to ask myself the question whether the learned Judge’s rejection of the evidence of tradition tendered by the appellants and acceptance of that given for the respondents is necessarily conclusive. Although it was suggested in Lajide Onamogba Akuru v. Olubadan-in-Council (1954) 14 W.A.C.A. 523, at p.524, that “the weight to be attached to traditional evidence is a matter which is left to the experience and wisdom of the Judge.” Yet it is my view that, on the general principles which guide appellate courts in their approach to issues of fact which I have discussed above, this court ought to interfere if it is satisfied that the court of trial did not make a correct approach to issue of conflicting evidence.

What then is the true nature of evidence of tradition’ In contradistinction to direct evidence which is based on what witnesses see or otherwise percieve by themselves, it is based on what witnesses have been told, usually by persons who had died long ago and quite often who were told the story by someone else. In this respect it is helpful to recall the dicta of the Supreme Court, per Ibekwe, J.S.C. (as he then was) in F.M. Alade v. Lawrence Awo (1975) 4 S.C. 215, at pp. 223-224 where he said:

“We are satisfied that the learned trial Judge’s reason for rejecting the plaintiff’s traditional evidence is tantamount to a misdirection of a very grave nature. It seems to us that it is sometimes, not fully appreciated that, in a strict sense, traditional evidence is no more than hearsay evidence. As a matter of fact, it is hearsay upon hearsay, in that it deals with events which occurred long ago, and the history of which has been handed down from father to son, or from generation to generation. In the words of Lord Cohen, in the Privy Council case of The Stool of Abinabina v. Enyimadu, reported in Vol. XII W.A.C.A.171, at page 172, it is “evidence as to rights alleged to have existed beyond the time of living memory….

Implicit in the above quoted definition is the truth of the matter. More often than not, the rights which the parties seek to establish by traditional evidence are such as had existed outside living memory. It is therefore, recognised that the witnesses who are called upon to give traditional evidence would not necessarily be in a position to give an eye-witness account. Such witnesses cannot speak from personal knowledge; they merely repeat the story which their ancestors had told them. Our legal system, in its wisdom, allows such evidence, most probably, in view of the fact that much of our past is practically unrecorded”

(The italics is ours)

It appears to be to follow from this very nature of traditional evidence not only that its acceptability should be tested not in the ordinary manner of testing direct evidence but also that it is not suitable for the usual strict standard of decision and consistency that characterise other evidence. For it is recognized that in the narration of what has been handed down by word of mouth from

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generation to generation witnesses may speak honestly but erroneously. There may even be some lapses here and there. But as long as the general story is consistent with the party’s own version of the tradition, the court should proceed to apply the proper test as to which of the conflicting versions is the more probable. After all the witness is not speaking as to his own knowledge of the events but on admissible hearsay: See Adenle v. Onyegbade (1967) . 136; Ben Ikpan & Ors. v. Chief Sam Edoho & Anor, (1978) 6 & 7 S.C. 221, at pp.247 -250. I should bear these in mind in my consideration of this case.

       The first point that must be accepted from Mr. Ajayi’s submissions is that the learned Judge, quite contrary to the principle in Kojo’s Case (supra) which he correctly referred to, decided largely to disbelieve the evidence of the 2nd appellant, the star witness of the appellants, on grounds which go to credibility rather than the principle he enunciated. It is useful to refer to some of the passages in his judgment. He said at p.l 13 line 21 to 23:

“In this connection, one cannot still help but comment on the apparent lack of candour of the 2nd plaintiff with regard to his testimony on this issue.” At lines 31 to 35 ibid the learned Judge, after reviewing his position in the community as the oldest of the Magaji and a relation of the defendants, said:

“The evidence of the 2nd plaintiff would therefore have been a probative value in this sense if he has been forthright enough. But as it turned out he was for the most part evasive, as on most other vital matters in this case, on the crucial issue as to whether Falana was the son of Olajolu.”

                           Also at p. l14 lines 15- 19, he commented:

“It is significant that the 2nd plaintiff in his evidence in chief did not specifically mention anything as to whether Falana was the son of Olajolu or not or whether there was any relationship between the two men. He merely concentrated on the fact that neither of the two men was an Alajawa.”

                 Then he put it beyond dispute that one of the reasons why he did not believe the 2nd plaintiff was because of his omission to say certain things which the 1st plaintiff and other witnesses of the plaintiff who were younger than the 2nd plaintiff testified to. Then he concluded:

“I must say that I do not find the evidence adduced by the plaintiffs on this point convincing at all. I believe that the 2nd plaintiff knew the correct history on this point but for reasons best known to him was deliberately hiding the facts from the court.”

Hence, apart from inheritance of the wives of Falana, which I shall deal with later in this judgment, the learned Judge contrary to the principle in Kojo’s case (supra) decided to reject the appellants’ evidence of tradition because of what he described as the lack of condour, evasiveness and omission to testify on certain facts to which other appellants’ witnesses testified. The learned Judge did not consider whether the omissions in the testimony were due to the inherent nature of the evidence, as discussed or the advanced age of the witness and lapse of memory that sometimes comes with age; in fact, the 2nd appellant himself testified:

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“I cannot remember the names of all of them now, because I am old and age is telling on me.”

In any event, such grounds are surely not the valid grounds for rejecting evidence of tradition offered by the appellants.

In appellant counsel’s submission it was not even correct that the 2nd appellant omitted to say that Falana was not the son of Olajolu, because he said so by implication He referred to that portion of the evidence of 2nd appellant when he said:

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

I believe learned counsel was right. By saying that the defendants were related to the ruling houses on the mother side he was certainly referring to the common maternity between Falana, from whom the defendants (respondents) descended, and the male lint of Olawusi, who inherited Oyewale and begot Mobolade and through whom the 2nd appellant claims. This issue was very vital to the learned Judge’s judgment. Like evidence of tradition, which the learned Judge accepted, it was not properly evaluated. Counsel pointed out that the Judge accepted the evidence of the alleged custom that only relatives could inherit the wives of deceased relatives. The Judge pointed out that three of Falana’s wives were inherited by the children of Olawusi, the grandfather of the 2nd appellant. Also, that Olaleye, the first son of Falana inherited Segilola the wife of Mobolade, the father of the 2nd appellant. He concluded that if Falana was not related to any of the ruling houses, the children of Olawusi would have been prevented from inheriting the wife of Mobolade. The learned senior advocate in his brief attacked the acceptance on two grounds, namely: that even a stranger could marry any dead man’s wives and that the testimony of the respondents on the point lacked any additional support to make it tredible. He relied on the case of The Queen v. Ozogula II ex parte Ekpenga (1962) 1 All N.L.R. 265, p.268 in support.

Quite apart from these, I believe that what makes that fact inconclusive is the point made by the learned senior advocate in his oral submission before us. He pointed out that the respondents’ case on the point was never that only brothers of full blood could inherit their brother’s wives, according to the custom. Their case was that it was that relatives who could inherit them and that the word relatives was wide enough to include brothers and half blood, such as Falana was to Mobolade (Omobolade) through their mother Oyewale. I believe counsel was right in this. For in ordinary English usage, “relative” means a person who is connected to another by blood or affinity.

The evidence from the appellants on Falana was that he had been born by his mother Oyewale to her first husband, Fashola, but that after the latter’s death and Oyewale’s subsequent marriage to Olajolu, she brought Falana to Olajolu’s house and brought him up there. In my view, even inthis context, both by common maternity and upbringing Falana, was a relative of Mobolade. The fact that Olajolu’s wife, Oyewale, was on his death inherited by his half-brother (according to the appellants) is only a part of the same trend) It follows therefore,

[1987] 4 .
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that the finding that only relatives could inherit the wives of a deceased relative does not necessarily mean that only brothers of full blood could inherit. It is wide enough to include brothers of half-blood as well. So, it is not conclusive of the fad that Falana was a brother of full blood to Mobolade. It follows therefore that the learned Judge was in error on the two grounds for which he decided to prefer the evidence of the respondents, namely his non-belief of the evidence of the 2nd appellant and his conclusion that the fact that only relatives could inherit wives of their relatives and the inheritance of Falana’s wives proved that he was the son of Qlajolu. Also, he submitted that if the learned Judge had not – wrongly he contended – destroyed the evidence of the 2nd appellant by wrongly introducing the issue of credibility to his evidence of tradition but rather taken due cognizance of his position as the head of the Mogaji and a relation to the respondents he would have given proper value to his testimony.

        I must pause here to observe, as indeed did the learned Judge at page 112 lines 20-41 of his judgment that abundant evidence was called by both sides in support of their case as to the true paternity of Falana. The 1st plaintiff, 3rd P.W., Joseph Okunoye Oyekola from Olawusi ruling house, the 4th P.W. Joseph Oyeyemi from Olabusi/Olaomo ruling house, 5th P.W., Samuel Olaniyi Ayoola from Ibapala ruling house, the 6th P.W. Daniel Omotoye from Olumole ruling house, and the 7th P.W., Yesufu Oyedeji, the Ikolaba of Ajawa and one of the kingmakers all supported the version of the story put forward by the appellants. On the other hand, the following supported the version put forward by the respondents, namely: 1st and 2nd defendants, 3rd D.W., Abraham Aremu Oladeji from Olawusi ruling house and 5th P.W. Oyewusi Otunbi and Alaomo ruling  house. I shall deal with the weight of evidence of these witnesses later on. I do not see how the failure of the appellants to state in Exh. B that Olajolu had no issue could have been a proper test of the untruth of their evidence of tradition when the geneological table included in the exhibit shows that Falana was not entitled. Nor do I see how the directions by government officials as to whom to appoint could rightly be regarded as relevant acts within living memory. It is sufficient at the moment to state that it is true that the learned Judge resorted to a resolution of the conflicting versions of the tradition both by wrongly attacking the credibility of the 2nd appellant and by the inconclusive custom of inheritance of relative’s wives, as I have shown. As these two bases of his conclusion have been successfully challenged, the matter becomes at large for a consideration of this court, by applying the principle in Kojo II v. Bonsie (supra).

        In his further submission with which I agree facts within living memory rather support the case of the appellants. First, the 2nd appellant’s evidence that he was the eldest of the five Mogaji in Ajawa and that his testimony represented the position of the five Mogaji was neither challenged nor contradicted. Secondly, the position of the appellants was supported by 3rd P.W., Mr. J.O. Oyekola, who was admitted to be the secretary of all the five ruling houses. He testified that he agreed with the contents of the letter of protest, Exh.B. That letter supported the case of the appellants. Thirdly, members of each of the five ruling houses gave evidence in support of the appellants. They are 2nd plaintiff and 3rd P.W. Oyekola; 5th P.W. Ayoola, for Ibapala; 6th P.W., Omotoye, for Olumole; and the 1st plaintiff for Ikupoluwasi. One cannot claim such a support from the ruling houses for the respondents. Apart from they themselves and government officials (D.W.2

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and D.W.4), their other witnesses were D.W.l, Joseph Bankole who described himself as “a plank seller at Caretaker area, Ogbomosho.” Quite apart from his self-contradictions under cross-examination he did not show what connection he had with any of the ruling houses. The only support for the respondents’ case from the ruling houses was from D.W.3 from Olawusi ruling house. For a correct assessment, the evidence of D.W.3 should be weighted against that of the witnesses from the same ruling house, that is 2nd appellant, the head of the Mogaji, and 3 P.W. Mr. Oyekola. Similarly the evidence of D.W.5 should be weighted against that of P.W.4. Considering the fact that the respondents’ case had no support from any of the other three Ruling Houses, Mr. Ajayi appears to me to be correct in his submission that from any of the other three Ruling Houses, Mr. Ajayi appears to me to be correct in his submission that from the wider spread of the appellants’ support, their case ought to outweigh that of the respondents at least on the point of support from the ruling houses. Of course when it is stated that evidence called by both sides should be put on either side of an imaginary balance and weighed together (for which see A.R. Mogaji & Ors. v Madam Rabiatu Odojin & Ors. (1978) 4 S.C. 91, pp. 94)97), what should be weighed together is evidence of the same type and quality. This being an inquiry into the tradition of the people, I would have made very little out of the evidence of government officials, D.W.2 and 4, especially as the report of the inquiry which was the foundation of their actions and conclusions was not before the court below. An attempt to tender it in this Court was successfully resisted by the respondents.

Fourthly – By far the strongest case in favour of the appellants and against the respondents is the stance of the Kingmakers in the conflict. Because of the importance of the evidence of 7th P.W., one of the Kingmakers.

I wish to set out in full his evidence in chief. It runs thus:

“7th RW. Yesufu Oyedeji, sworn on Koran and states in Yoruba. I live at Ikolaba’s compound, Ajawa. I am a farmer and the Ikolaba of Ajawa. I am one of the Kingmakers in Ajawa.

I know the two plaintiffs. I also know the 1st and 2nd defendants, I knew one Falana. He was ancestor of the 1st and 2nd defendants. Falana was never an Alajawa. None descendants of Falana ever became an Alajawa. I have been a Kingmaker in Ajawa for about 15 years now. I knew Oba Oyetunji. He is now dead. After the death of Oba Oyetunji, the members of the ruling houses started meeting with a view to selecting a successor. The 1st plaintiff was eventually appointed, and was presented to us as Kingmakers. But the Secretary to the Ogbomosho South Local Government subsequently wrote asking us to appoint a candidate from Olajolu Ruling House. We wrote back to the Secretary to the council to say that the persons claiming to be members of Olajolu ruling house have no right to the Alajawa Chieftaincy. The reason for our action is there are only five ruling houses in Ajawa and Olajolu ruling is not one of them. The five ruling houses are:- 1. Ofawusi, 2. Olaomo, 3. Ikupoluwusi, 4. Ibapala and Olumole. The 1st and 2nd defendants who were suggested by the Secretary to the Local Government do not belong to any of these five ruling houses.

[1987] 4 .
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                       I have heard of Olajolu before. He was an Ajawa Prince. But he never became an Ajawa and had no issue succeeding him.

He was never really cross-examined or shaken in the main trusts of his evidence, namely that all the ruling houses met after the death of the last Alajawa and unanimously appointed the 1st appellant and presented him to the Kingmakers as the next Alajawa; that, after the appointment, the Secretary of Ogbomosho South Local Government wrote to the Kingmakers to appoint a candidate from Olajolu ruling house, but that they wrote back to the Secretary to say that Olajolu was not one of the ruling houses and that the lst.and 2nd respondents did not belong to any of the five ruling houses. Exh. E and F are minutes of two meetings of all the Kingmakers of Ajawa held on 3rd August, 1981, and 10th September, 1981. They were recorded in Yoruba; but we ordered them to be translated. They show that the Kingmakers were unanimous in saying that according to the history and custom of Ajawa Olajolu Family was not one of the ruling houses of Ajawa. On that ground they stood their ground and rejected the 1st and 2nd respondents even at the teeth of government pressure to the contrary.

    It is most significant that throughout the learned Judge’s judgment he never really adverted to this over-whelming support of the appellants’ case by all the Mogaji, the ruling houses, and Kingmakers of Ajawa. What he relied upon was rather the fact that the Government conducted an inquiry which published a report, after which they decided to appoint the respondents the findings of the inquiry were not before the court. In my judgment, in an inquiry in the court below into the entitlement of either of the candidates to the Chieftaincy title of Ajawa, involving, as I see it, an indept probe into the interstices of the custom and traditions of the people which alone can validly form the correct foundation of government action in the matter, without the report, what action the government took pities into secondary significance. It is rather surprising that it was the respondents themselves, who would have relied on the report to justify government action in the face of overwhelming evidence of the adverse stance of the Mogaji, ruling houses and Kingmakers to the contrary, who resisted the tendering of the report. In my opinion, it is the evidence of the views and attitudes of the Mogaji, the ruling houses, and the Kingmakers who are, because of their positions, and custodians of native law and tradition, that can be validly applied as acts within living memory which can be the proper determinant as to which of the two competing stories is then under probable. There can be no doubt that if this proper approach was made, the version of the story of the tradition of the people as told by the appellants, and which supports their case, would have been seen as the more probable. For this reason, I should find in favour of the appellants on the first two issues, which I regard as the main issues in this appeal.

        I must point out that as the respondents did not appeal or even file a respondents’ notice that the decision be supported on grounds other than those relied upon by the learned Judge, it is not open to us to pore through the record, as has been suggested,to find other facts which might support the decision: see C.C. v. Ajayi (1970) 1 All N.L.L. 291, at p.295-6. Assuming, but not agreeing, that we can, I cannot see any other helpful way of resolving the conflict in the crucial and decisive issue of the paternity of Falana.

The last issue is that of laches and acquiescence. The learned Judge said:

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“A plaintiff is required in equity to prosecute his claim without undue delay. If he were to sleep on his right for a long time, he would be barred by laches (See: Agbeyegbe v. Ikomi (1949) 12 W.A.C.A. 383; Taylor & Ors. vs. Kings way Stores of Nig. Ltd. & D Ors. (1965) 1 All N.L.R. 10). It seems to me that the delay of the 1st plaintiff’s family in prosecuting whatever claims they imagined they had against the defendants in this case has been most unreasonable and inexcusable.”

I must observe, with respect, that the case of Agbeyegbe v. Ikomi (supra) has nothing to do with laches and acquiescence at all. It was a case of inordinate delay in bringing an application to relist a case which was struck out. The real point for decision in Taylor & Ors. v. Kingsway Stores of Nigeria Ltd. (supra) was that the appellants knew in 1938 that the respondent had a grant in fee simple to the land to which they laid claim; they subsequently stood by and watched them expend their money on it and did not challenge them until 1962. It did not decide that mere delay was enough. I think it is now perfectly settled by all the decided cases that before laches and acquiescence could deprive a person of his legal right the delay and circumstances must have been such as to make it fraudulent for him to wake up and assert his rights. It is not enough that there has been mere lapse of time. Where the delay is such that, the plaintiff knowing the full facts including the defendant’s claim induces the defendant by his inaction to alter his position to his detriment on the reasonable belief that the property or right is his own, then equitable plea of laches and acquiescence will be available to the defence. See on this Alkard v. Skinner (1987) 36 Ch. D. 145; Alhadja Sabalemotu A. Kaiyaola & Ors. v. Lasisi Egunla (1974) 12 S.C. 55, at p.65: Wilfred Okpaloka & Ors. v. Umeh & Ors. (1976) 10 S.C. 269, at p.265; Ramsden v. Dysen (1866) L.R.l H.L. 129. In the instant case the bulk of the evidence including EThs. ‘3’- “01” at best show that before the Chieftaincy Declaration was done in 1958 there was a good deal of consultation. There is no evidence really that the appellants or the ruling houses they came from were informed of these consultations. In this respect, exhibit N is most significant. It is a letter dated 3rd January, 1958, written by the Secretary Ogbomosho District Council inviting the Mogaji of the ruling houses to attend a meeting in the palace of the Shoun of Oshogbo to state their claims to the Alajawa Chieftaincy with a view to their respective families being included in the declaration. The Mogaji for the appellants’ Ikupoluwusi Family was not invited. This is the more surprisng because the geneological table contained in Exh. “O” a letter written by the Local Government Adviser to the Permanent Secretary, Ministry of Local Government on the 18th of January, 1958, clearly shows Mobolade, through whom the appellants claim as an Alajawa. As they had at least a right to be informed but were not I do not see how any one could raise a question of laches or acquiescence on that fact. Although there was evidence that the Declaration was approved and registered in 1958, it was agreed that there was no publication of the declaration. Nor was any step taken to bring it to the notice of those who might have been interested. Surprisingly the Declaration was not gazatted. It was agreed that the first publication of it was in 1970 in a booklet Exh.H in which it was published along with other chieftaincy declarations. The positive evidence of the appellants, which is uncontroverted, is that they first got to know about the Declaration in 1976 and soon after took

[1987] 4 .
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              steps to petition against it and made representations before a review commission. In addition there has been no chieftaincy dispute in the interval that could have put them on their inquiry. On this state of facts, I agree with Ajayi that there is no evidence in support of the finding of laches and acquiescence.

In the result, I allow the appeal, set aside the decision of Ademakinwa, J., including the order as to costs made in the High Court. In its place judgment is hereby entered for the appellants in terms of their claims as set out at the beginning of this judgment.

I assess and award costs inclusive of out of pocket expenses against the respondents and in favour of the appellants as follows:

(i)
in the court below, N300.00 against each of 1st, 2nd and 4th defendants; and

              (ii)     in this court, N400.00 against each of the 1st, 2nd and 4th defendants.

SULU-GAMBARI, J.C.A.: I have had the privilege of reading in advance the judgment just delivered by my learned brother, Nnaemeka-Agu, J.C.A. with which I am in entire agreement. I would however add a few words of my own.

          I need not to recount the facts of this case as they have been ably set out in the lead judgment except to say in the main that the appellants contended that there are five ruling houses in respect of Alajawa of Ajawa Chieftaincy, namely – (i) Ikupoluwusi; (ii) Olawusi; (iii) Olumole; (iv) Ibapala; and (v) Laomo.

       When the Chieftaincy Declaration of 1958 was drawn up, Ikupoluwusi was not included among the five ruling houses. Instead, Olajolu was included as one of the five ruling houses. Both the appellants and the respondents agreed that Olawusi; Olumole; Ibapala and Laomo – all the four ruling houses were correctly inserted in the list. The only point of controversy was that while the appellants maintained that it is Ikupoluwusi who should be the 5th ruling house, the respondents, on the other hand, insisted that it should be Olajolu. The Chieftaincy Declaration of 1958 listed Olajolu as the 5th ruling house in favour of the respondents. The appellants therefore submitted that though Olajolu was prince, he was never an Alajawa and that since he died childless, he could not constitute a ruling house.

        It is their contention that Falana who was the ancestor of the 1st and 2nd respondents was not a natural son of Olajolu but his step son. They submitted that Oyewale (f), the mother of Falana, begat Falana to one Fasola who was her previous husband before she got married to Olajolu. This Fasola, they claimed, was not a member of any of the ruling houses. The appellants further claimed that they were not aware of the declaration of 1958 which included Lajolu as one of the ruling houses and said that they learnt of it in 1976.

The respondents, on the other hand, contended that there was full consultation with all the representatives of the ruling houses of Ajawa before the 1958 Declaration was made. That the number and identity of the five named ruling houses were correctly set out and it included Olajolu. That Falana who is the ancestor of the 1st and 2nd respondents was the son of this Olajolu and Oyewale his mother begat him for Olajolu.

Mr. G.O.K. Ajayi, S.A.N., in the brief filed on behalf of the appellants set out aptly the issues for determination in this appeal thus:

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(i)
Whether the learned trial Judge did not fall into error in the manner in which he proceeded to resolve the conflict in traditional history before him.

(ii)
Whether the learned trial Judge gave due weight to other factors relevant to weight and credibility of evidence, and

(iii)
Whether the appellants lost their right of action by laches and acquiescence.

The learned senior advocate submitted that the learned trial Judge having recognized the fact that the issue in this case depended on the conflicting evidence of traditional history as related by both sides, it would not be right for him to resolve the conflict in the traditional evidence by considering the demeanour of witness(es) or by assessing the credibility of witnesses in the relating of their traditional history. According to him, where such conflict exists, the proper thing for the learned trial Judge to do is to test the traditional history by reference to facts in recent years as established by evidence and which of the two competing stories is more probable.

Going through the record, it appears the learned trial judge was not unaware of the acid test laid down in the case of Kojo II v. Bonsie (1957) 1 W.L.R. 123 but proceeded first to consider the demeanour of the witness(es) and indeed on what he called the apparent lack of candour of the 1st appellant before considering other fads in recent years to resolve the conflict in the traditional evidence.

The learned trial Judge said the following:

“In this connection, one cannot still help but comment on the apparent lack of candour of the 2nd plaintiff with regard to his testimony between the parties that the 2nd plaintiff is the oldest Mogaji among the Mogajis of the five ruling houses in Ajawa. It is also common ground that he is at least related to the 1st and 2nd defendants on the mother side in the sense that Oyewale, the mother of Falana, the ancestor of 1st and 2nd defendants was also the mother of Omobolade, the father of the 2nd plaintiff, through Olawusi who inherited Oyewale from Olajolu. The evidence of the 2nd plaintiff would therefore have been of probative value in this case if he has been forthright enough. But as it turned out, he was for the most pail evasive, as on most other vital matters in this case, on the crucial issue as to whether Falana was the son of Olajolu. All that could be made of his evidence was that the descendants of Falana could not be considered as members of any of the ruling houses in Ajawa because they are only related to the ruling houses on the mother side and neither their ancestor Falana nor his father Olajolu was an Alajawa.

The relevant passage from the evidence in chief of the 2nd plaintiff before the court is quite instructive. It read thus:

“I do not recognise the 1st and 2nd defendants as members of the five ruling houses I have just mentioned. They are only related to the ruling houses on the mother side and it is not possible for someone who is related to the ruling houses on the mother side to become an Alajawa. The ancestor of the 1st and 2nd defendants was one Falana. He was not an Alajawa. None of the decendants

[1987] 4 .
Adeyemo v. Popoola
(Sulu-Gambari, J.C.A.)
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                     of Falana became an Alajawa.

I know one Olajolu. He was a brother to Olawusi who was my own grandfather. Olajolu never became an Alajawa. I know one Ojo Mojolagbe. He was also a descendant of Falana like the 1st and 2nd defendants. He was never an Alajawa. I am the oldest member out of the five ruling houses in Ajawa.”

                  The learned trial Judge further said that it is significant that the 2nd plaintiff in his evidence in chief did not mention anything specifically as to whether Falana was the son of Olajolu or not or whether there was any relationship between the two men. He merely concentrated on the fact that neither of the two men was an Alajawa and also when his knowledge of the background of Falana was being probed under cross-examination, he sought refuge in evasiveness.

       By those comments, the learned trial Judge considered the demeanour of the 2nd appellant, his lack of conduct and ascribed to him evasiveness in his testimony. In this manner, the learned trial Judge was lamenting on the 2nd appellant’s failure to be of much help to the court in discerning the truth.

        I am not prepared to subscribe to the proposition that the learned trial Judge was perfectly entitled so to comment on the credibility of the evidence of the witness at least before assessing the evidence led on facts in recent times to determine which of the two competing histories is to be accepted as. more probable.

Lord Denning in Kojo v. Bonsie II (supra) among other things said in the main that:

“In respect of the traditional history which have been down… it must be recognized that in the course of transmission from generation to generation, mistakes may occur without any dishonest motive whatsoever. Witnesses of utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case, demeanour is little guide to the truth.

The best way to test the traditional history is by reference to the facts in recents years as established by evidence and seeing which of the two competing histories is the more probable.”

        The learned trial Judge recognized this but it must be emphasized here that this acid test presuppases that the demeanour or the credibility of the witness relating the traditional history will not be considered nor will it be proper whether what the witness was relating was true or not.

In my view, the learned trial Judge cannot say “let me see if the witness is telling the truth or if he is a reliable person or whether his evidence is audible before I can accept the traditional history so related and before it can be compared with the traditional history also recounted by the other party.”

        It is my humble view that that will be putting the cart before the horse. It will amount to a complete reverse of the time honoured dictum of Lord Denningin Bonsie’s case.

If the evidence of a witness is to be analysed and evaluated before accepting it as a traditional history so as to resolve the conflict in the evidence of traditional history of the parties by facts in recent years, then once a decision is made that

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a witness relating a traditional history is not worthy of any credibility, there is nothing more to consider in respect of facts in recent years and that would be the end of the case.

Put in other words, it is my strong view also that where there are two conflicting sets of traditional history, it is not right to assess or determine first which of or both of the two sets of traditional evidence was plausible or credible before reference is made or consideration is given to the facts in recent years.That will amount to nailing the coffin of the time honoured dictum propounded by Lord Denning, which has been cited with approval in numerous cases in this country and which has been received as part of our law on practice and procedure.

To this extent therefore, I will agree with the submission of the learned senior advocate for the appellants that the learned trial Judge fell into error in the manner in which he proceeded to resolve the conflict in the traditional evidence.

As the main bone of contention in this case is centred on the paternity of Falana namely whether Falana was the son of Olajolu – a Prince of Alajawa, as submitted by the respondents, or whether in fact he was the son of Fashola who is not a member of any of the ruling houses which is the case of the appellants. It has been pointed out by the learned senior advocate and I will go along with the submission that contrary to the principle in Kojo’s case, the learned trial Judge disbelieved the evidence of the 2nd appellant – a very important witness for the appellants, on the basis of credibility rather than on the principle enunciated in Kojo’s case. The learned trial Judge emphatically disbelieved the traditional history related by the 2nd appellant thus:

“I must say that I do not find the evidence adduced by the plaintiffs on this point convincing at all. I believe the 2nd plaintiff knew the correct history on this point but for reason best known to him, was deliberately hiding the facts from the court”

The learned trial Judge cannot test the traditional history related by this witness by embarking on the assessment or evaluation of his evidence to arrive at the conclusion whether such evidence is probable as it is related; whether he is mistaken or incredible, and test it by reference to the facts in recent years to resolve the conflict in such traditional evidence as related by the contesting parties.

Among the reasons advanced by the learned trial Judge for not accepting the evidence of the 2nd appellant, was the omission or evasiveness of the 2nd appellant for not stating categorically whether or not Falana was the son of Olajolu or of Fasola. To my mind, the witness said by implication that- Falana was not the son of Olajolu. He said and I quote:

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

Whether the fad was supplied by implication or expressly may depend on the nature of question put to the witness and provided the evidence is obtained, it matters not whether it is arrived at by implication. It was the case of the appellants that Oyewale – the mother of Falana – married Olajolu and that after his death, the

[1987] 4 .
Adeyemo v. Popoola
(Sulu-Gambari, J.C.A.)
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mother was inherited as a wife by Olawusi who was the junior brother of Olajolu. This mother, Oyewale, had two more children, namely, Yewehin and Mobolade for Olawusi.

    The learned trial Judge pointed out that three of Falana’s wives were inherited by the children of Olawusi and also that Olaleye the first son of Falana inherited Segilola, the wife of Mobolade who is the father of the 2nd appellant. He therefore concluded that if Falana was not related to any of the ruling houses, the children of Olawusi would not have been able to inherit the wife of Mobolade. He suggests that Falana is related to Olawusi paternally.

       It is again pointed out by the learned senior advocate that relationship between Falana and Olawusi may be maternal and if so, nothing would have prevented any member of such related families to inherit the wife of the other who is deceased under customary law. It follows therefore that the finding that only relatives could inherit the wife of the deceased relatives does not necessarily mean only brothers through paternal relationship.

     I also will accept the submission of the learned senior advocate that there was no evidence in support of laches and acquiescence. The evidence of the appellants that they got to know about the declaration in 1976 and that they took prompt steps to petition against it and that they made representations before the review commission remained uncontradicted and should be accepted.

        Finally, I will also allow the appeal, set aside the decision of Ademakinwa J., including the order as to costs made by him. I hereby enter judgment for the appellants in terms of their claims as set out at the beginning of the lead judgment. I also abide with the order of costs as assessed in the lead judgment.

OGUNDARE, J.C.A. (Dissenting): By a writ of summons, subsequently amended, the plaintiffs (hereinafter are referred to as the appellants’) claimed from the defendants (hereinafter are referred to as the respondents’) as follows:

(a)
Declaration that the defendants are not members of any of the five ruling houses of Ajawa and therefore cannot vie for, contest, be appointed as an Alajawa of Ajawa.

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

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

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

In the course of his final address at the trial, Chief Akande learned counsel who appeared for the appellants at the trial applied to withdraw claim (d). No order was made on this application and it would appear that this claim was considered along with the other claims in the judgment of the court below.

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There were originally four defendants but the 3rd defendants, that is, secretary, Ogbomoso South Local Government, was, in the course of the trial, struck off the action, leaving only three defendants who are now the respondents before us.

Pleadings were filed and exchanged by both sides and, by leave of the trial court, the statement of claim and the 4th defendant’s statement of defence were subsequently amended. After. evidence had been led on both sides and learned counsel for the parties had addressed the court, the teamed trial Judge, in a considered judgment, found the claims not proved and dismissed them in their entirety. It is against this order of dismissal that the appellants have now appealed to this court. Briefs were filed on behalf of the parties by their respective counsel.

With leave of this court, the appellants and the 1st and 2nd respondents filed amended briefs. 

The ease put forward by the appellants in the court below both in their pleadings and evidence was to the effect that there were five ruling houses in respect of the Alajawa of Ajawa Chieftaincy, namely:

Ikupolijwusi, Olawusi, Olumole, Ibapala and Laomo.

The appellants contended that the Chieftaincy Declaration relating to the said chieftaincy which was approved and registered in September 1958 also provided for five ruling houses but excluded Ikupoluwusi ruling house while including Olajolu ruling house. It was their case that there was no Olajolu ruling house as Olajolu after whom that house was named, though a prince, was never an Alajawa and that, in any event, he died childless. They contended that Falana, the ancestor of the 1st and 2nd respondents was only a step-son to Olajolu as Olajolu’s wife, Oyewale begat Falana for one Fashola of Ajagase before she was g seduced by Olajolu and subsequently married Olajolu. The appellants further claimed that they were not in the know when the Chieftaincy Declaration was made and no one in Ajawa was consulted. They came to know of the existence of the Declaration in 1976 and protested against the inclusion of the Olajolu ruling house. When they failed to obtain redress from the Government of Oyo State they instituted this action, challenging in effect, the correctness of the declaration.

The respondents’ case, on the other hand, was that the number and identity of the ruling houses entitled to the Alajawa Chieftaincy were correctly set out in the Chieftaincy Declaration approved and registered in 1958. They further contended that there were full consultations with the Alajawa Osunpaimo, his chiefs and representatives of the ruling houses before the Declaration was made.

        They claimed that Oyewale’s only husband was Olajolu for whom she begat Falana, the ancestor of 1st and 2nd respondents.

Mr. G.O.K. Ajayi, SAN set out in the appellants’ amended brief the following issues as calling for determination in this appeal:

(i)
Whether the learned trial Judge did not fall into error in the manner in which he proceeded to resolve the conflict in traditional evidence before him;

(ii)
Whether the learned trial Judge gave due weight to other factors relevant to weight and credibility of evidence; and

(iii)
Whether the appellants lost their right of action by laches and acquiescence.

I shall now proceed to consider these issues.

[1987] 4 .
Adeyemo v. Popoola
(Ogundare, J.C.A.)
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         On the first two issues, the learned senior advocate, both in his brief and oral argument before us, criticized the way the learned trial Judge dealt with the evidence of the 2nd appellant. Learned counsel referred us to the dictum of Lord Denning in Kojo II v. Bonsie (1957) 1 WLR 1223, 1226 where the acid test was laid down as to the way conflict in traditional evidence is to be resolved and submitted that the learned trial Judge in the case now on appeal did what he was required not to do. Learned senior advocate observed that the major conflict in the case for the parties centred on the paternity of Falana. He referred us to portions of the evidence of the 2nd appellant and submitted that the witness, by implication, had said that Falana was not the blood son of Olajolu. He further submitted that the trial Judge was wrong to have criticized the witness for not saying explicitly that Falana was a stepson to Olajolu. Learned senior advocate contended that there were factors which the trial Judge should have considered in placing value on the evidence of the 2nd appellant such as (a) that he was the oldest member of the ruling families and (b) he was a maternal relation of the Is1 and 2nd respondents. Learned counsel submitted that the learned trial Judge recognised the meaning of the evidence of the 2nd appellant but refused to give effect to it. The Learned senior advocate further submitted that the fact of inheritance of wives as given in evidence was of no help to the respondents’ case as Oyewale was Falana’s mother and the children of Olawusi by Oyewale would be brothers of Falana and so entitled to inherit Falana’s wives.

        Mr. Atilade Ojo, learned counsel for the 1st respondent, in his brief which he adopted at the hearing of this appeal and offered no oral argument, submitted that the trial Judge proceeded in the right direction in that even though he had cause to comment adversely on the 2nd appellant he nevertheless applied the acid test laid down in Lord Denning’s dictum. Learned counsel submitted that “a trial Judge before whom oral evidence is given has a primary duty of appraisal of the oral evidence and ascription of probative values to such evidence. This is because a witness has first to be believed before a court can be satisfied on his testimony”. He went on to submit that “where the evidence relied upon is based on traditional history a trial court in evaluating such evidence must determine first whether a witness is truthfully recounting what his ancestors told him and secondly whether his story is true.” Learned counsel finally urged this court not to disturb the findings of fact made by the trial Judge.

        The submissions of Mr. Oyegoke for the 2nd respondent and Mr. Boade, learned senior State Counsel (Oyo State) for the 3rd respondent followed on the same line as that of Mr. Ojo.

        In his judgment, the learned trial Judge after reviewing the case for the two sides, set out the main issues to be decided by him in these words:

“The three main issues that would appear to call for determination in this case are: firstly, whether the Olajolu ruling house was properly included in the Alajawa Chieftaincy Declaration and this, of course, would depend on whether Falana, the ancestor of the 1st and 2nd defendants was a natural or step son of Olajolu; secondly, whether the Alajawa Chieftaincy Declaration of 1958 was made without the knowledge or consent of all the five ruling houses in Ajawa and finally, whether the plaintiffs in this case had

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been guilty of unreasonable delay in prosecuting whatever claims they might have had against the defendants.”

Dealing with the first issue, he has this to say:

“On the first issue as to whether Falana was a natural or step son of Olajolu, who as admitted by both parties was a prince of Ajawa, being one of the sons of Winjobi, a former Alajawa, the contention of the plaintiffs was that Falana was only a step son of Olajolu. As far as the plaintiffs are concerned, Olajolu had no issues throughout his lifetime. Falana’s mother, Oyewale was said to have earlier married one Fashola, who was alleged to have been the natural father of Falana. The 1st plaintiff, the 3rd P.W. (Joseph Oyeyemi from Olabisi/Olaomo ruling house), the 5th P.W. (Samuel Olaniyi Ayoola from Ibapala ruling house), the 6th P.W. (Daniel Omotoye from Olumole ruling house) and the 7th P.W. (Yesufu Oyediji, the Ikolaba of Ajawa and one of the Kingmakers) testified in support of the Plaintiffs’ allegation. As against this is the contention of the defendants that Falana was the only and natural son of Olajolu. The 1st and 2nd defendants, the 3rd D.W. (Abraham Aremu Oladeji, from Olawusi ruling house and the son of Oba Iyiola Oshunpaimo, the second to the last Alajawa) and the 5th D.W. (Oyewusi Atunbi from Olaomo ruling house) testified respectively in support of the defendants’ contention.”

He then discussed his approach to resolving the apparent conflict in the case for the appellants as against that for the respondents. The learned Judge said:

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

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

Before proceeding as he indicated in the above passage, the learned trial H Judge digressed by commenting on the “apparent lack of candour” of the 2nd appellant. He said:

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

[1987] 4 .
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testimony on this issue. It is common ground between the parties that the 2nd plaintiff is the oldest Mogaji among the Mogajis of the five ruling houses in Ajawa. It is also common ground that he is at least related to the 1st and 2nd defendants on the mother side in the sense that Oyewale, the mother of Falana, the ancestor of the 1st and 2nd defendants was also the mother of Omobolade, the father of the 2nd plaintiff, through Olawusi who inherited Oyewale from Olajolu. The evidence of the 2nd plaintiff would therefore have been of probative value in this case if he has been forthright enough. But as it turned out he was for the most part evasive, as on most other vital matters in this case, on the crucial issue as to whether Falana was the son of Olajolu. All that could be made of his evidence was that the descendants of Falana could not be considered as members of any of ruling houses in Ajawa because they are only related to the ruling houses on the mother side and neither their ancestor Falana nor his father Olajolu was an Alajawa. The relevant passage from the evidence-in-chief of the 2nd plaintiff before the court is quite instructive. It reads thus: “I do not recognise the 1st and 2nd defendants as members of the five ruling houses I have just mentioned. They are only related to the ruling houses on the mother side and it is not possible for someone who is related to the ruling houses on the mother side to become an Alajawa. The ancestor of the 1st and 2nd defendants was one Ealana. He was not an Alajawa. None of the descendants of Falana became an Alajawa. I know one Olajolu. He was a brother to Olawusi who was my own grandfather. Olajolu never became an Alajawa. I know one Ojo Mojolagbe. He was also a descendant of Falana like the 1st and 2nd defendants. He was never an Alajawa. I am the oldest member out of the five ruling houses in Ajawa.”

It is significant that the 2nd plaintiff in his evidence-in-chief did not mention anything specifically as to whether Falana was the son of Olajolu or not or whether there fwas any relationship between the two men. He merely concentrated on the fact that neither of the two men was an Alajawa. But when his knowledge of the background of Falana was being probed under crosssexamination, he merely sought refuge in evasiveness. Part of his evidence under cross-examination is as follows:

“Olawusi was an Alajawa. Omobolade was the son of Olawusi. Oyewale was the mother of Omobolade.

Oyewale was the first wife of Olajolu. Olawusi inherited Oyewale after the death of Olajolu. Olajolu was the son of Winjobi. I do not know whether the other wives of Olajolu apart from Oyewale were Ajolabi and Otegbeye. I do not know whether Ajolabi and Otegbeye were inherited by Olaomo I do not know whether Olaomo was an Alajawa. I also do not know the father of Falana since I was not yet born then.”

It seems rather curious that while the 1st plaintiff and the other witnesses for the plaintiff, who were much younger and not as closely related to the 1st

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and 2nd defendants as the 2nd plaintiff could testify without any inhibition that the father of Falana was one Fashola, the 2nd plaintiff merely pleaded ignorance on the ground that he was not yet born then. I must say that I do not find the evidence adduced by the plaintiffs on this point convincing at all. I believe that the 2nd plaintiff knew the correct history on this point but for reasons best known to him was deliberately hiding the facts from the court.”

It is this passage of the judgment that has come under heavy attack by appellants’ counsel. The question now is: was the learned trial Judge right in commenting as he did, on the 2nd appellant? Before answering this question I better first set out the dictum of Lord Denning in Kojo 11 v. Bonsie (supra). In the said case, the learned Law Lord (as he then was) said:

“Their Lordships notice that the Judges in the appeal court who were in favour of upholding the decision of the Asantehene’s court, did so on two grounds: first, that it was a decision of fact depending on the demeanour of the witness and almost inviolable on that account: second, that on a review of the evidence it was the correct decision.

So far as the first ground is concerned, their Lordships do not think it was the coned approach to this case. Their Lordships notice that there was no dispute as to the primary facts, that is, the facts which the witnesses actually observed with their own eyes or know of their own knowledge in their own lifetime. The dispute was all as to the traditional history which had been handed down by word of mouth from their forefathers. In this regard it must be recognised that, in the course of transmission from generation, mistakes may occur without any dishonest motives whatever. Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case demeanour is little guide to the truth. The best way to test the traditional history is by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is the more probable.” (Italics mine).

This dictum has been cited with approval in numerous cases in this country that it has become part of our law on practice and procedure.

It is noteworthy that in criticizing 2nd appellant, the learned trial Judge spoke of his lack of candour and evasiveness and cited instances in the former’s testimony to justify his criticisms. The 2nd appellant did not testify before us but before the trial Judge. It was the trial Judge who had the singular opportunity of seeing him give evidence. We must give due deference to his observations. He has not based his criticisms on the 2nd appellant’s demeanour but rather lamented the failure of the witness to be of much help to the court in discerning the truth, given his position in the ruling families – the oldest Mogaji and his relationship td the 1st and 2nd respondents. The relevant portions of the evidence of this witness are highlighted in the passage of the judgment earlier quoted. I dare say that the learned trial Judge was perfectly justified in his comments on the 2nd appellant. I can find nothing in the dictum of Lord Denning precluding the learned trial Judge

[1987] 4 .
Adeyemo v. Popoola
(Ogundare, J.C.A.)
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from making the comments he made. In my view, the traditional evidence that may be subject to the test laid down in that dictum must be one that is plausible or capable of being believed; it cannot be one that is intrinsically untruthful or unhelpful or badly discredited under cross-examination. My understanding of the dictum of Lord Denning is that where there are two conflicting sets of traditional evidence each of which is plausible and capable of belief, it is not right to accept one merely on the basis of demeanour of witnesses but the two sets must be looked at from the facts of events in recent times to determine which of them ought to be preferred.

It is not disputed that the learned trial Judge afterall applied the test in Lord Denning’s dictum; the appellants criticisms centre on his not taking certain factors into consideration and making wrong use of admitted facts. In view of these criticisms, I shall consider the facts adduced in evidence in order to determine whether or not to uphold the lower court’s judgment. It was laid down in the case of Maca Ulay v. Tukuru (1899) 1 NLR 35 and followed in numerous cases thereafter that where a judgment is appealed from on the ground of the weight of evidence the appeal court can make up its own mind on the evidence, not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from overruling it, if, on full consideration, it comes to the conclusion that the judgment is wrong. If, however, the appeal court is in doubt, the appeal must be dismissed, since the burden of proving that the judgment is wrong is on the appellant. See also: Ababio I1 v. Catholic Mission (1935) 2 WACA 380. It is equally the law that where a court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of a Court of Appeal to substitute its own views for the views of the trial court – Akinloye v. Eyiyola (1968) NMLR 92. Of course, it is within the power of a Court of Appeal to interfere with the decision of the court below where such decision is shown to be perverse or not a proper exercise of judicial discretion – Ntiaro v. Akpan (1918) 3 NLR 11 (P.C.). See also:

Watt or Thomas v. Thomas (1947) Ac 484, 487, 488, Fatoyinbo v. Williams (1956) 1 FSC 87, 89. In Watt or Thomas v. Thomas (supra), Lord Thankerton said:

“The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then be at large for the appellate court.”

In a situation such as where the matter is at large for the appellate court, it is my humble view that for this court to properly perform its duty, it has to consider the evidence as a whole and decide at the end of the day where the imaginary scale tilts. It cannot but consider the evidence as a whole if it is not to fall into the same trap of being accused of not properly evaluating the evidence. Such an exercise does not, in my respectful view, require a cross-appeal by the respondents nor a respondents’ notice. It is the appellants who are contending that the judgment is against the weight of evidence. And to determine this, evidence on both sides has to be considered and put on the imaginary scale as decided by the Supreme Court in Mogaji v. Odofin (1978) 4 SC 91,93-94 where Fatayi-Williams JSC (as he then was) said:

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“When an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondents, the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before him. In other words, the totality of the evidence should be considered in order to determine which has no weight at all. Therefore, in deciding whether a certain set of facts given in evidence by one party in a civil case before a court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial Judge, after a summary of all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weigh more, accept it in preference to the other, and then apply the appropriate law to it; if that law supports it beating in mind the cause of action, he will then find for the plaintiff. If not, the plaintiff’s claim will be dismissed. In certain circumstances, however, the claim is either struck out or the plaintiff is non-suited. Incidentally, in deciding which evidence has more weight than the other, a trial Judge sometimes seeks the aid of admissions made by one party to add more to the weight of the evidence adduced by the other party. This is precisely why the totality of the evidence must be considered and why a trial Judge must weigh the conflicting evidence adduced by both parties and then draw his own conclusions. Of course, the procedure set out above will be unnecessary if the plaintiffs case is so patently bad that no reasonable tribunal could possibly act upon it. In such a case, the trial Judge will dismiss the plaintiff’s claim without calling upon the defence.”

(italics mine)

See also Jadesimi v. Okotie-Eboh (1986) 1 . 264, 174-275. The appellants were plaintiffs in the court below. The onus, therefore, was on them to prove their case and they must rely on the strength of their case and not on the weakness of the defence. From the pleadings and the evidence the following facts are not in dispute:

     1.
that there is in existence a chieftaincy declaration relating to the Alajawa of Ajawa Chieftaincy;

     2.
that the declaration provided for ruling houses whose identities are: Laomo, Olajolu, Ibapala, Olumole and Olawusi;

     3.
that the declaration was approved on 15th September 1958 and registered, as provided by law, on the following day;

     4.
that the 1st and 2nd respondents are descendants of one Falana;

     5.
that one Oyewale was the mother of Falana and was wife to Olajolu, a prince of Ajawa and son of a previous Alawaja called Winjobi;

     6.
that on the death of Olajolu, his widow Oyewale was inherited by his younger half brother of a different mother Olawusi;

     7.
that Olawusi became Alajawa;

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                 8.      that Oyewale had two children for Olawusi – Yewehin (a female) and         Mobolade (a male) who too became an Alajawa;

    9.
 that Mobolade was the father of the 2nd appellant;

  10.
  that neither Olajolu nor Falana nor any descendant of Falana became an   Alajawa.

     By section 9 of the Chiefs Law, Cap 21 Laws of Oyo State, 1978, the existing Declaration (exhibit A) is “deemed to be the customary law regulating the selection of a person to be the holder of (the Alajawa chieftaincy) to the exclusion of any other customary usage or rule”. The onus was therefore on the appellants to show that exhibit “A” did not correctly state the customary law regulating the selection of a person to be the holder of the Alajawa chieftaincy. What are the facts relied on by them in the discharge of this burden of proof. The appellants’ main contention is that Olajolu died childless in that Falana who outlived him, was not his blood son but only a step-son. This contention put in issue the paternity of Falana. In proof of it, the appellants contended that Falana’s mother, Oyewale was previously married to Fashola of Ajagase and begat Falana for Fashola before she married Olajolu for whom she had no issue. The 1st and 2nd respondents countered this and claimed that Oyewale was never married to Fashola but that her first husband was Olajolu. The couple remained childless for a time and the Ifa oracle was consulted. As a result, Oyewale became pregnant and the resultant child, a male was named Falana meaning “Ifa-la-ona”, that is, Ifa opened the way. Olajolu had two other wives on whom he paid dowry but both of whom had not moved into his house when he died. His half brother by another mother, Olawusi inherited Oyewale while another half-brother Olaomo inherited the other two wives. Falana and Oyewale lived with Olajolu during his lifetime and, after his death, Falana lived with Olawusi who inherited his mother. Oyewale had two issues for Olawusi, that is, a daughter and …

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