ALHAJI BABA ELEKO OKUNRINJEJE & ANOR V. MALLAM ALFANLA AJIKOBI
In The Court of Appeal of Nigeria
On Tuesday, the 3rd day of July, 2018
Before Their Lordships
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
1. ALHAJI BABA ELEKO OKUNRINJEJE
2. FUNSHO AJIKOBI
(Substituted for Alhaji Issa Jimoh Ajikobi who was himself only substituted for original defendant Alhaji Usman Baba Olobi Ajikobi) –Appellants
MALLAM ALFANLA AJIKOBI
(Suing for himself and on behalf of Aliyu Lineage of Balogun Ajikobi) –Respondent
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Kwara State delivered by I.B. Garba, J., on the 28th day of July, 2016, granting the claims of the respondent.
By a writ of summons dated 23/09/2008 but filed on 24/09/2008, the present respondent, along with one Mallam Garba Nageri Ajikobi who died during the pendency of this appeal, sued one also now Late Alhaji Baba Olobi Ajikobi claiming against him:
1. A declaration that late Aliyu Usman (Uthman) the great grandfather of the Claimants was a son of the first Balogun Ajikobi Usman (Uthman) Balogun Ajikobi and being the descendants of Aliyu Usman (Uthman) are entitled to all the rights, privileges and Daudu Ipaye and the Balogun Ajikobi whenever same becomes vacant.
2. A declaration that the Defendant cannot exclude or continue to exclude or refuse to consider or forward the name of any of the descendants of the late Aliu Usman (Uthman), one of the children of the 1st Balogun Ajikobi in the nomination process for the vacant District Head of Ipaiye to the Emir of Ilorin.
3. An order compelling the 1st defendant to submit and forward any name or candidate approved/selected by the descendants of the claimants Aliyu Usman (Uthman) lineage to the Emir of Ilorin to contest or fill the vacant Dauda Ipaiye stool.
4. An order of perpetual injunction restraining the Defendant his servants, agents or privies or any person howsoever called from alleging or asserting that the descendants of Aliyu Usman (Uthman) was/is/are not members of the Balogun family.
5. An order of injunction restraining the Defendant, their servants, agents or privies or any person acting through or in concert or connivance with them from excising or the denying the Claimants lineage as descendants of Aliyu Usman (Uthman) from aspiring to any office or post or position enjoyed or capable of being enjoyed or aspired to including the stool of Daudu Ipaye or that of Balogun Ajikobi or any other right/entitlements meant for the Balogun Ajikobi dynasty of Ilorin.
In their 39-paragraph original statement of claim contained at pages 3 -9 of the records, respondents averred to what triggered their action, or better still their cause of action,against the said Usman Baba Olobi Ajikobi. Their case, as is also evident from their claims aforementioned, was that they along with the said Usman Baba Olobi Ajikobi are all descendants of the founder of the Balogun Ajikobi dynasty, Usman Balogun Ajikobi, they (claimants/respondents) having descended from him through his last son, Aliyu Usman (Uthman) their great grandfather while original defendant Usman Baba Olobi Ajikobi and other descendants of the same 1st Balogun Ajikobi descended from four other male children of the same 1st Balogun Ajikobi. This fact, they claimed, had been acknowledged by Ajikobi Family/dynasty of Ilorin who they further asserted had in the past even nominated Alhaji Aliyu Baba Nageri (father of the original 1st claimant, Mallam Garba Nageri Ajikobi) along with Alhaji Baba Olobi Ajikobi to the Emir of Ilorin for the stool of Balogun Ajikobi of Ilorin, for which Baba Olobi Ajikobi was eventually appointed.
They also averred, and it is confirmed by the record of proceedings tendered before the lower Court by respondents and appellant as Exhibits B and K respectively, that Alhaji Usman Baba Olobi Ajikobi had earlier on, on 07/12/1994, confirmed in the High Court of Kwara State before Orilonise J., in Suit No. KWS/48/94 that respondents grandfather are descendants of his ancestor 1st Balogun Ajikobi, Usman Balogun Ajikobi, the founder of the Ajikobi family/dynasty of Ilorin, through his son Aliyu.
The immediate cause of respondent’s action however is that, upon ascension of Alhaji Usman Baba Olobi Ajikobi to the more preeminent Balogun Ajikobi dynasty chieftaincy of Balogun Ajikobi of Ilorin, members of respondents Aliyu lineage expressed interest in the then still vacant other Balogun Ajikobi dynasty stool/office of Dauda Ipaiye stool but were rebuffed by Alhaji Usman Baba Olobi Ajikobi who changed his earlier stance and contended to their utmost surprise, if I may quote them, that they were ineligible to contest the said stool because their father/grandfather Aliyu was not a descendant of Balogun. Incensed by that pronouncement, they commenced action against him which also informed their five reliefs against him already reproduced.
Unfortunately, Alhaji Usman Baba Olobi died on 8th December, 2009 even before commencement of hearing of the suit.
At that point, it appears from the records that claimants/respondents were themselves flustered and at a loss on the next step to take given that the only person who made the offensive contention for which they took out action was no longer available. They were therefore compelled to seek for an indefinite adjournment of the case from the trial Court on 28/01/2010 to enable them see if, as their lawyer B.R. Gold put it, there will be a denial again of their right to the throne so that they can apply for substitution (see p. 342 of the records). That prayer was opposed by Mr. Aiyegbami for the defendant who there and then prayed that that the action be struck out as same in his view did not survive Baba Olobi Ajikobi. He relied strongly on respondents averments in paragraphs 33 and 34 of their statement of claim for this contention. He was however overruled by the trial judge, Garba J., in a considered ruling on 11/2/2010, with His Lordship saying:
The utterances of the deceased, which the learned counsel to the defendant referred to in the above quoted paragraphs [paragraphs 33 and 34] as constituting the cause of action are but evidential ingredients necessary for ascendancy of the claimants claim to an accepted standard and cannot be taken in isolation to mean that the defendant was sued in personal capacity to warrant striking out the case.
Without dissipating much energy on frivolity on the pleadings filed and facts contained therein, it is the officially recognized occupier of the status of Balogun Ajikobi which happens to be the deceased that was sued and not the deceased in his personal capacity. Therefore the action survives the occupier.
On that note the sine die adjournment sought by the respondents was granted and Late Baba Olobi Ajikobi was later substituted, at the instance of the respondents, with now also late Alhaji Issa Jimoh Ajikobi who incidentally also succeeded Baba Olobi Ajikobi as Balogun Ajikobi. The validity of that substitution – that is, whether the respondents action actually survived Alhaji Usman Baba Olobi’s death – is still a major issue in this appeal which was brought by Alhaji Issa Jimoh Ajikobi and was prosecuted by him until he himself also died after argument of the appeal and was substituted by the present appellants on record.
With His Lordship having ruled against appellant’s counsel and substituted Late Baba Olobi Ajikobi with Late Issa Jimoh Ajikobi, who it is worthy of note was also simply substituted in his own name, leave of Court was sought and obtained by the respondents to amend the writ of summons and statement of claim. The said amended processes were filed but the averments of respondents still remained basically the same. Respondents still relied on the same pronouncement of Alhaji Usman Baba Olobi and his previous acts, including his evidence before Orilonise, J., of 7th December, 1994 in Suit No. KWS/48/94: B/w Alfa Oba & Ors: Ahmed Abdullahi Onikijipa & Ors, as the basis of their action. The reliefs were however slightly amended with former relief 3 even out-rightly abandoned and the remaining reading as follows:
44. WHEREOF the Claimants claim against the Defendant as follows:-
a. A declaration that late Aliyu Usman (Uthman) the great grandfather of the Claimants was a son of the first Balogun Ajikobi Usman (Uthman) Balogun Ajikobi and being the descendants of Aliyu Usman (Uthman) are entitled to all the rights, privileges and Daudu Ipaye and the Balogun Ajikobi whenever same becomes vacant.
b. A declaration that the Defendant cannot exclude or continue to exclude or refuse to consider or forward the name of the descendants of the late Aliyu Usman (Uthman) one of the children of the 1st Balogun Ajikobi in the nomination process for any vacant stool of district of head of Ipaye to the Emir of Ilorin whenever the said stool is vacant.
c. An order of perpetual injunction restraining the Defendant his servants, agents or privies or any person howsoever called from alleging or asserting that the descendants of Aliyu Usman (Uthman) was/is/are not members of the Balogun dynasty.
d. An order of injunction restraining the Defendant his servant, agents or privies or any person acting through or in concert or connivance with him from exercising or the denying the Claimants lineage as descendants of Aliyu Usman (Uthman) from aspiring to any office or post or position enjoyed or capable of being enjoyed or aspired to including the stool of Daudu Ipaye or that of Balogun Ajikobi or any other right/entitlements meant for the Balogun dynasty.
Alhaji Issa Jimoh Ajikobi as substituted defendant responded with a statement of a defence which he later amended. In it he, like his predecessor, denied that the respondents had any blood relationship with his ancestor, 1st Balogun Ajikobi of Ilorin, Usman Ajikobi. He asserted that Usman Ajikobi was survived by only three sons in Lawani, Yesufu (also called Yusuf) and Zubair (also known as Zubairu); that respondents progenitor Aliyu was not a son of Usman Balogun Ajikobi so they are not entitled to contest his two family Chieftaincy stools of Balogun Ajikobi and Daudu Ipaiye. He asserted that respondents grandfather Aliyu was rather a mere gateman/slave/Apadi/messenger to one Balogun Ahmadu Biala who lived with one Bello Ahmadu, big brother of one Bello Babalubi in Usman Ajikobi’s Kaa Gboro Quarters in Ilorin taking care of Balogun Ahmadus immediate family. He asserted too that the descendants of Bello Babalubi, Dada (another messenger/slave/gateman) and Aliyu among others are still living in Kaa Gboro Quarters but have no right to Balogun Ajikobi and Dauda Ipaiye stools. He denied that true descendants of the Usman Ajikobi ever Alhaji supported nomination of claimants grandfather Aliyu Baba Nageri to the two Ajikobi Balogun chieftaincy stools of Balogun Ajikobi and Daudu Ipaiye or ever recognized him as a descendant of Usman Balogun Ajikobi. To further buttress his assertion that respondents are not descendants of Usman Balogun Ajikobi, appellant relied among others on historical records including a Gazetteer of Ilorin Province compiled a British Colonial Administrator, one Hon. H.B. Hermon Hodge, a former Resident of Ilorin Province (received as further evidence by this Court on appellants application and marked Exhibit AE); a book called Shaykh Muhammad Kamalud-Deen Al-Adabiyy (Exhibit H), written in 1992 by one Ahmed Abdullahi Onikijapa Al-Adabiyy, where the author chronicled the genealogical tree of not only Balogun Ajikobi Ilorin but all four Baloguns of Ilorin. Incidentally, the contents of the said book and its exclusion of respondents from the genealogical tree he illustrated for Balogun Ajikobi Ilorin was the subject of litigation by respondents against its author in Suit No. KWS/48/94: B/w Alfa Oba & Ors V. Ahmed Abdullahi Onikijipa & Ors which was heard and decided by before Orilonise, J. Alhaji Issa Jimoh Ajikobi asserted that any other genealogical tree brandished or pleaded by respondents that includes respondents progenitor Aliyu as a descendant of 1st Balogun Ajikobi of Ilorin is vague, forged and concocted.
The respondents filed a Reply in which they averred among others that the genealogical tree of Balogun Ajikobi as recorded in the Gazetteer of Ilorin Province 1929 (Exhibit AE) was to the knowledge of members of Balogun Ajikobi dynasty/family incomplete as same left out their Aliyu lineage. This, they said, was also made known to the authorities in the year 1944 by respected members of Balogun Ajikobi dynasty including Alhaji Tukur (also called Tukuru) Ajao who later became Balogun Ajikobi and reigned from 1955 to 1992. They pleaded a copy of the said complaint (Exhibit I) of Balogun Ajikobi Tukur (Tukuru) Ajao in the National Archives. To further support their membership of Usman Ajikobi family, respondents also averred that only core members or descendants of Usman Ajikobi who can ascend the throne of either Balogun Ajikobi or Daudu Ipaye are allowed to build houses within the area called Kaa Gboro segment of Ajikobi compound in Ilorin; that their father Aliyu Nageri, former Balogun Ajikobi Tukur Ajao and the immediate past Balogun Ajikobi, Alhaji Usman Baba Olobi Ajikobi (original defendant) all have their houses in the same exclusive Kaa Gboro area with Alhaji Usman Baba Olobi???s house even next to that of Aliyu Nageri. They also pleaded a copy of the genealogical tree of Balogun Ajikobi reflecting five sons of Usman Balogun Ajikobi including their Aliyu.
The case went to trial before Garba, J., after pretrial conference and filing of witness depositions by both parties. Respondents as claimants opened their case with one Anafi Adewole but later sought and got leave of Court (with appellant not opposing it) to expunge his evidence from the records on the grounds that he had taken ill and they were not sure when and whether he would be able to continue his evidence which up to that time was still at the stage of examination-in-chief. Thereafter they called Alhaji Mohammed Yusuf Adewole of one Ile Ologbin family who claimed to be chief-makers of Balogun Ajikobi family/dynasty.One Oba Ajikobi Aliyu of their Aliyu Lineage next testified for them as C.W.2. Through these witnesses (C.W.1 and 2) Exhibits A, B, C, D, E, F, G, G1 and I were tendered.
Exhibits F, G, G1 and I, I must point out, were certified copies of archival documents produced from the National Archives in Kaduna. That is even I deem it necessary to observe in earnest that the said documents were simply certified with an ordinary stamp by one Salawu O.N. who identified himself as Archivist 1. There is no seal of the Director of Archives on the said documents, nor any suggestion that the said Archivist 1 did the certification on the direction of the Director of Archives as required by Section 31 of the National Archives Act. I shall later in this judgment revisit this certification and its consequence more closely.
At the close of the claimants/respondents case, the appellant in response/rebuttal called two witnesses in Funsho Ajikobi (present 2nd appellant) and Alhaja Fatimoh Kilaribe, all of Ajikobi compound. Substituted defendant Issa Jimoh Ajikobi closed appellant’s defence as D.W.3. Appellant tendered Exhibits J, K, L and M at the trial.
Exhibit L, also from the National Archives, Kaduna, like Exhibits F, G, G1 and I, bore no seal.
In his judgment of 28/07/2016 Garba, J., took the view that respondents proved their claims and therefore entered judgment in their favour as claimed.
The substituted appellant Issa Jimoh Ajikobi was dissatisfied with that judgment hence this appeal. He initially filed 13 grounds of appeal but later sought and got leave of this Court to amend and indeed amended his Notice of appeal to include two additional grounds of appeal, bringing his grounds of appeal to fifteen. His fifteenth ground of appeal questioned the jurisdiction of the lower Court to continue with the suit after the death of the Alhaji Usman Olobi Ajikobi. He complained in that ground as follows:
15. The learned trial judge misdirected himself in law when he assumed jurisdiction to entertain the suit and/or heard this suit after the death of original defendant i.e. Alhaji Usman Olobi Ajikobi
1. The original defendant i.e. Alhaji Usman Olobi Ajikobi was sued in his personal capacity and not on the representative capacity i.e. Head of the Ajikobi family.
2. Ex-facie the writ, it is clearly stated in what capacity the defendant was sued and on what capacity the claimants filed the suit.
3. None of the averments in the statement of claim describes the original defendant i.e. Alhaji Usman Olobi Ajikobi as the Head of the Balogun Ajikobi family or was he sued to represent the entire family members.
4. Having been so sued on his personal capacity, his death brings this suit number KWS/161/2008 to an end.
From this and his other fourteen grounds of appeal, late Issa Jimoh Ajikobi, now substituted by the appellants on record, in his amended brief of argument prepared and adopted on his behalf by Mr. A. A. Ibraheem distilled the following five issues for determination:
1. Whether the claimants/respondents are not stopped by the decision of Justice Orilonise in Suit No. KWS/48/94 between Alfa Oba & 2 Ors v, Ahmed Abdullahi Onikijapa & 1 Or delivered on the 21st day of October, 1996 from re-litigating on the subject matter of this present Suit/Appeal as foundation of the claims for reliefs/declarations in the present suit/appeal were in controversy in the first Suit No. KWS/48/94.
2. Whether an action of this nature can survive a party who was not sued in a representative capacity?
3. Whether the Exhibits G and G1 are two obvious conflicting genealogical trees of Balogun Ajikobi of Ilorin to warrant the holding of the learned trial judge that the genealogical tree of Balogun Ajikobi is not static.
4. Whether it is not the duty of the person/party seeking to rely on due execution of a document or that the writing or signature on a document is that of a particular person to call such a person as his own witness.
5. Whether the claimants have by preponderance of evidence proved Royal blood relationship with Usman Ajikobi, the 1st Balogun Ajikobi of Ilorin and entitled to any of the reliefs/declarations and injunctions sought.
On his part (original 1st claimant having also died during the pendency of this appeal and struck out before the hearing) the respondent, in his brief of argument prepared by Mr. Adewale T. Olatunde but adopted by John Olushola Baiyeshea, S.A.N., leading Mr. Adewale T. Olatunde and others, framed the following four questions for determination:
1. Whether in the circumstances of the case the lower Court was right to have disregarded Exhibits G, G1, H and J on the genealogical trees of Usman Ajikobi having held same to be conflicting and then proceeded to examine other documentary, traditional/oral evidence on record to found for the respondents.
2. Whether having regard to the state of evidence on record the learned trial Judge was right in holding that the respondents case succeeded on preponderance of evidence, thereby granting their reliefs.
3. Whether from the state of pleadings, the available evidence the lower Court was right in substituting the appellant who is the sitting Balogun Ajikobi for the deceased Balogun Ajikobi initially sued as defendant in his capacity as Balogun Ajikobi was the lower Court right to have exercised jurisdiction over the case now on appeal?
4. Whether the respondents case is caught by estoppel in any form whatsoever.
Arguing appellant’s first issue, Mr. Ibraheem submitted that respondents were stopped by the decision of Orilonise J., from litigating the present suit as according to him the issues and subject matter of both cases related to their membership of Balogun Ajikobi Dynasty of Ilorin. Citing Agbogunleri v. Depo & Ors (2008) 1 S.C. (PT 11) 158 @ 170 -176 counsel argued that where an issue has been conclusively decided in a previous suit by a Court of competent jurisdiction, as he reasoned the issue of respondents membership was decided by Orilonise J., in Exhibit K, it binds every other Court so Garba J., was wrong in entertaining this case or giving a contrary decision.
On appellants issue 2 (of whether the action survived the death of the original defendant Baba Olobi Ajikobi), Mr. Ibraheem submitted that the case as originally constituted was brought in a personal, not representative, capacity against Baba Olobi Ajikobi so it died with him on 08/12/2009 and the lower Court denied of jurisdiction to continue hearing it. Citing Momodu v. Momoh (1991) 2 S.C 1 @ 11 and Oyeyemi v. Commissioner of Local Government (1992) 2 NWLR (PT. 226) 651, Osagunna v. Military Governor of Ekiti State (2001) 4 SCN 30 and Arowolo v. Akapo (2009) ALL FWLR (PT. 345) 200, counsel submitted that an action can survive a dead person where (1) the deceased sued or was sued in a representative capacity, (2) the cause of action survives the deceased plaintiff, or defendant as the case may be, or (3) though the plaintiff did not sue in a representative capacity the pleadings show conclusively a representative capacity, none of which is the case here so by the common law rule of actio personalis moritur cum personalis – personal actions die with the person – the suit against Baba Olobi Ajikobi died with him. He submitted that the amendment of respondents processes on 14th January, 2012 in the lower Court did not also change the situation.
Issue 3 of appellant was about the trial judge’s holding that Exhibits G and G1 procured from the National Archives by respondents are conflicting with the effect that the genealogical tree of Balogun Ajikobi is not static, and that following the dictum of the Supreme Court in Agbonifo v. Aiwereoba & Anor (1988) 2 S.C. (PT. 11) 51 @ 66, when two presumptions conflict, they cancel out one another. Mr. Ibraheem argued that Garba J., misapplied the dictum in Agbonifo v. Aiwereoba & Anor as the facts of that case were different from this one. In Aiwereoba, he argued, there was an allegation of forgery and tampering of Exhibits H1 and J therein, whereas in this case there was no such allegation against Exhibits G and G1.
Counsel also argued that the respondents failed to produce the genealogical tree they averred in their statement of defence as reflecting five lineages of Usman Ajikobi dynasty rather than three. For this reason counsel urged us to invoke Section 167(d) of the Evidence Act against respondents. Counsel finally urged us to uphold this ground too.
Mr. Ibraheem argued too that there was no conflict in the genealogical trees tendered by appellants. Exhibit G tendered by respondents which Garba J., relied on for his conclusion of conflict, he submitted, even has no source or origin, unlike Exhibits G1, H and J which have their origin from the Gazetteer of Ilorin Province (Exhibit AE). Counsel labeled Exhibit G an invention by claimants/respondents in connivance with Salawu O.N. of the National Archives Kaduna to becloud the justice of this case and urged us to expunge it from the records and set aside the finding of the lower Court that the said Exhibit G conflicts with Exhibit G1.
Counsel also complained that the lower Court did not do a proper evaluation of the said Exhibit G vis–vis Exhibits G1, H, J and I. He complained that if His Lordship had done proper evaluation he would not have concluded the way he did.
The pith of the argument of Mr. Ibraheem for appellant on his issue 4 is that the respondents having pleaded Exhibits A, B, D and E (the letters allegedly issued and signed by members of Ajikobi Dynasty including late Baba Olobi Ajikobi and Alhaji Baba Eleko Okunrinjeje) nominating Late Nageri Aliyu Ajikobi as Balogun Ajikobi and Daudu Ipaye and appellant having joined issues with them by denying the said letters, the onus of proof was on respondents to adduce satisfactory evidence of the said letters. Counsel cited G. Chitex Industries Ltd v. Oceanic Bank International (Nig.) Ltd (2005) 14 NWLR (PT. 945) 392 @ 411 to argue that where the authenticity of a document is impugned the maker of the document must be called to support it otherwise no weight would be attached to it. C.W.1 is not the maker of Exhibits A, B, C and D and there was no explanation for the absence of their makers so they remained hearsay, he argued. Learned counsel then drew our attention to Section 93 of the Evidence Act stating that if a document is alleged to be signed or written wholly or in part by any person, the signature or handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his writing. He submitted too that it is the person who perceives that a particular witness is vital to his case that has the burden to call that person, not his opponent. He cited the cases of Ekpo v. Kanu (2012) 12 WRN 132 @ 142 and Ayanru v. Mandilas Ltd (2007) 4 S.C. (PT 111) 58 @ 77 for this. The case of Aderounmu v. Olowu (2000) 2 S.C. (PT. 11) 1 @ 6 cited by the learned trial judge, counsel argued, did not support his conclusion. He said the relevant document in Aderounmu v. Olowu was a Power of Attorney that was executed before a Magistrate which the Evidence Act enjoins the Court to presume due execution, whereas Exhibits A, B, C, D and E in issue here are private documents that do not enjoy such presumption.
Counsel argued too that CW1 did not say and so Garba J., speculated when he said CW1 said he used to interpret Exhibits A, B, C and D to their makers yet CW1 was not challenged on this evidence.
Counsel submitted that there is even no jurat on Exhibits A, B, C and D to suggest that they were interpreted. The same Exhibits A, B, C and D, learned counsel further argued, are not even genealogical trees but mere alleged processes of nomination to the two chieftaincy stools so they are not even material until it be first established that claimants are members of Balogun Ajikobi family. Counsel implored us to resolve this issue too in favour of appellant.
On appellants issue 5, Mr. Ibraheem attacked the weight of evidence on which the lower Court entered judgment for respondents. He took issues with the assessment and evaluation of evidence by the trial judge. He is of the opinion that the trial judge was biased against Late Issa Jimoh Ajikobi and did little assessment and evaluation of the evidence presented by him. He complained, for instance, that the trial judge copied out the witness depositions of C.W.1 and 2 but only tersely reviewed their answers under cross-examination on the areas that were unfavourable to respondents, meanwhile, only mere references he said, were made to the evidence of D.W.1, 2 and 3 by the trial judge.
Evidence which did not form part of respondents case as pleaded was according to him invented to favour them. Among the evidence not assessed, according to counsel, is page 18 of Exhibits I and F (Exhibits I and F is the same document separately tendered by both parties) relating to the purported correction of the Balogun Ajikobi’s family genealogical tree by Tukur Ajao. Counsel submitted that the said document has no addressee and the name of its maker or even the date of its making are not stated just as it is also of different characters from other documents coming from the National Archives. Its source to National Archives, it was submitted, was not provided. Counsel observed too that C.W.2., Mr. Oba Ajikobi Aliyu who tendered it did not reveal its source, maker or even the date they were made. Counsel submitted that no single document was made by Tukur Ajao and no genealogical tree was produced by respondents to support their contention of five lineages/descendants of Usman Ajikobi family.
Mr. Ibraheem also attacked the use made by Garba J. of the previous evidence (Exhibit B) of Late Alhaji Usman Baba Olobi (the original defendant) before Orilonise J., in Suit No. KWS/48/94. Relying on Section 46 (1) of the Evidence Act 2011, learned counsel argued that in so far as the conditions stated in the proviso to that section of the Evidence Act, namely that the previous proceeding must be between the parties herein, appellants had the opportunity to cross-examine the said witness in the previous proceeding and the issues in the two proceedings are substantially the same were not met, Exhibit B was inadmissible and not available to be used by Garba J. Counsel cited the locus classicus of Alade v. Aborishade 5 FSC 167 among other cases and described the lower Court???s reliance on Exhibit B and his use of same as estoppel pursuant to Section 169 of the Evidence Act perverse, erroneous, wrong application of the law and a serious misdirection, for which we should intervene.
Learned counsel further argued that it is not evident on Exhibit B that Alhaji Usman Baba Olobi who was not even Balogun Ajikobi at the time he testified in KWS/48/1994 testified on behalf of Usman Balogun Ajikobi family. He submitted that Baba Olobi Ajikobi did not have Balogun Ajikobi family’s express or implied authority so the provisions of Sections 21(1) and 22 of the Evidence Act are even inapplicable and his evidence does not bind Usman Balogun Ajikobi’s descendants.
Counsel also attacked the claim of Ologbin/Olodo family of C.W.1 as chief makers of Usman Balogun Ajikobi family. He submitted that not only was that assertion denied by appellant in his statement of defence, even C.W.1 admitted under cross-examination that the Emir of Ilorin who appoints Balogun Ajikobi has the prerogative to appoint whoever it pleases him, with or without the recommendation of Ologbin/olodo family. Besides, he added, C.W.1 also admitted that whenever the seat of Balogun Ajikobi becomes vacant the incumbent Daudu Ipaye automatically ascends it, which position he contends is at variance with Exhibit D tendered by respondents. He submitted that Aliyu Baba Nageri who was never Daudu Ipaye could not have contested for Balogun Ajikobi contrary to the claim of respondents that he was recommended for Balogun Ajikobi by Ologbin/Olodo family.
For all these reasons, counsel submitted that the respondents did not prove their discretionary reliefs of Declaration as members of Balogun Ajikobi family/dynasty entitled to be appointed Daudu Ipaye and Balogun Ajikobi so we should intervene and set aside the decision of the lower Court and dismiss all the claims of the respondents.
Commencing his response with respondent’s issue 1, Mr. Olatunde for respondents supported the lower Court’s decision that Exhibit G and G1 conflicted on the number of male children that survived 1st Balogun, Usman Balogun Ajikobi and so cancelled out each other, with the consequence that the genealogical tree of Balogun Ajikobi Ajikobi was not static. He relied on the same case of Agbonifo v. Aiwereoba (1988) 2 S.C. (PT. 11) 51 @ 66 cited by the learned trial Judge. Counsel argued that even the three names of the male children of Usman Balogun Ajikobi in Exhibit H are different from the three names in the genealogical trees in Exhibits J and Exhibit AE tendered as further evidence in this Court.
Further pointing to paragraph 11 of appellant’s amended statement of defence where they alleged that any genealogical tree of Usman Ajikobi of Ilorin other than the one published in Gazetteer of Ilorin Province is vague, forged and concocted by the
plaintiffs and their cronies, counsel argued that that is an allegation of commission of crime that needs to be pleaded with particulars and proved beyond reasonable doubt. Appellants he said failed to plead particulars of the forgery let alone prove it beyond reasonable doubt so the trial judge was right in finding forgery not proved and discountenancing all the conflicting documents which excluded respondents Aliyu lineage from the genealogical tree of Usman Balogun Ajikobi dynasty. He submitted that Issa Jimoh Ajikobi’s new stance in this Court that there was no allegation of tampering and forgery with Exhibits G and G1 is a somersault from his pleading in his amended statement of defence which he cannot properly do.
Counsel next submitted that if those unreliable genealogical trees of appellants are discountenanced, the oral evidence of C.W.1 and 2 in proof of respondents case was credible and proved that Usman Balogun Ajikobi was survived by five male children including respondent’s progenitor Aliyu, also called Allihu Abidekun, who was his last male child but omitted even in Exhibit I obtained from the National Archive, Kaduna. The fact that even one of the three male children admitted by appellant as a male child of Usman Balugun Ajikobi was omitted from one of the archive documents, Mr Olatunde argued, shows that the said archive documents were not even foolproof as far as the genealogical tree of Usman Balogun Ajikobi is concerned. In the light of that, oral traditional evidence adduced by C.W.1 and 2 sufficed to prove respondent’s membership of Balogun Ajikobi family through their progenitor Aliyu, it was submitted. Counsel reminded us that C.W.1 and 2 were not even cross-examined on that important issue, meaning that appellants are deemed to have accepted their evidence and the Court at liberty to act on it.
As for respondents failure to tender the genealogical tree of Usman Balogun Ajikobi reflecting five male children that they averred to in their statement of claim and Mr. Ibraheem’s contention that that amounted to withholding evidence, Mr. Olatunde differed saying it at worst only meant that paragraph 18 of the statement of claim where that was pleaded by respondents is deemed abandoned. Counsel cited dictum in Oyediran v. Alebiosu (1992) 7 SCNJ (PT. 1) 187 @ 192 for this view. He submitted that the issue of withholding evidence now raised by appellants was not canvassed in the lower Court so it is a new issue for which leave of this Court ought to have been sought, and since that was not obtained, it should be discountenanced. He cited Dagaci of Dere v. Dagaci of Ebwa (2006) NWLR (PT. 979) 382 @ 445 for this. It was also argued in the alternative that going by the decision in Oyediran v. Alebiosu, even if respondents failed to produce a genealogical tree showing five male children of Usman Balogun Ajikobi, they adduced sufficient oral evidence to prove their case.
Counsel argued that where the appellate Court is confronted with the issue of proper evaluation of evidence, its duty is to scrutinize the record before it carefully and find out if there is evidence on which the lower Court could have acted; that once there is evidence the appellate Court will not interfere. For this, counsel cited the case ofObi v. Uzoewulu (2009) ALL FWLR (PT. 499) 518 @ 525.
On their omnibus issue 2 – of whether having regard to the state of evidence on record the learned trial Judge was right in holding that the respondents case succeeded on preponderance of evidence, thereby granting their reliefs, Mr. Olatunde for respondents devoted a whopping 20 pages of his tightly written respondents brief of argument going through in great details the pleadings of parties, evidence adduced and the trial judge’s evaluation of that evidence and submitted that the trial judge did a good job and was correct in entering judgment for respondents on their claims.
Coming to his issue 3 of whether the suit did survive the original defendant Usman Baba Olobi Ajikobi’s death, Mr. Olatunde argued that the said original defendant was actually sued in a representative capacity in his office as Balogun Ajikobi and custodian of the customs and traditions of the Usman Ajikobi dynasty of Ilorin so the suit survived his death and the lower Court right in continuing with it after his demise. Counsel argued that where the right of action survives a deceased person as in this case, he/she can be substituted irrespective of whether or not he/she was sued in a representative capacity. For this proposition counsel relied strongly on Arowolo v. Akapo (2006) ALL FWLR (PT. 345) 200 particularly the dictum of Onnoghen, J.S.C. (now C.J.N.) at p. 107-108 (also cited by appellant) as well as Okotie v. Olughor (1995) 5 SCNJ 217 @ 226. Learned counsel further argued that when arguments about the substitution of the said original defendant upon his death arose in the lower Court, the Court held (at page 345 lines 4-11 of the records) that: It is the officially recognized occupier of the position or status of the Balogun Ajikobi which happen to be the deceased that was sued and not the deceased in his personal capacity. Therefore the action survives the occupier. This finding/ruling, counsel submitted, was not specifically appealed against so it subsists, for which he referred us to the cases of Dabup v. Kolo (1993) 12 SCNJ 1 @ 10; K.R.K.H. (Nig.) Ltd v. FBN Ltd (2017) ALL FWLR (PT. 878) 539 @ 549-550. Counsel finally prayed us to also resolve this issue against appellant.
On respondent’s issue 4 relating to appellants contention that the decision of Orilonise J. in Suit No KWS/48/1994 between Alfa Oba & Ors v. Ahmed Abdullahi Onikijapa & Ors stopped the respondents from taking out this suit and the lower Court wrong in entertaining it, counsel argued that that suit did not stop respondents in this suit because the ingredients of estoppel per rem judicatem, namely sameness of parties, issues, subject matter and finality of the previous decision, were not present in this case. He pointed out that Mr. Ibraheem for appellants also admitted that in the lower Court so it was not open to him to argue the contrary of that. Counsel urged us to also resolve this issue against appellant and dismiss his appeal.
In response to all these, appellant filed what he called a Reply the substance of which is simply a re-argument and continuation of the arguments of his main brief of argument spiced with some attempt to distinguish the cases cited by respondents. The purpose of a Reply brief under Order 19 Rule 5(1) of the Rules of this Court 2016 is to deal with new points arising from the Respondent’s brief, and not to re-argue issues already argued.
RESOLUTION OF ISSUES
1. Whether the suit as originally constituted survived the death of original defendant Alhaji Usman Baba Olobi Ajikobi on 8/12/2009 or died with him.
The natural starting point for consideration of the issues in this appeal has to be appellant’s contention (1ssue 2, which is Issue 3 of respondents) that the action respondents brought against original defendant Alhaji Usman Baba Olobi Ajikobi did not survive his death on 8th December, 2009. That issue has to be resolved first, because if the action truly did not survive Baba Olobi Ajikobi’s death which happened long before evidence was called in the case, it means that the labourers (the parties and trial Court) may have labored in vain and all the other arguments which revolve around what happened in the trial after his death will simply amount to chasing shadows. If the action died with Alhaji Baba Olobi Ajikobi on 8/12/2009, it will be a feature in the case that will prevent the lower Court from proceeding further with it: Madukolu v. Nkemdilim (1962) 1 ALL NLR 586.
It is settled law that the issue of whether there was a competent litigant in a suit or appeal to be substituted is not a mere procedural defect or irregularity but a radical and fundamental one which borders on the jurisdiction of the Court.
There must be a competent suit or appeal before one may be substituted for another, for in the absence of a pending appeal or suit, the issue of substitution becomes an exercise in futility as ex nihilo nihil fit: Okotie v. Olughor (1995) 5 SCNJ 217 @ 227 (Iguh, JSC). Of course issues which tend to challenge the jurisdiction of the Court must be resolved first. They are also never too late to be raised. In fact, such issues can even be raised orally in Court: Agbiti v. Nigerian Navy (2011) 4 NWLR (PT. 1236) 175 @ 207.
Now, Order 14 Rule 29 of the Kwara State High Court (Civil Procedure) Rules 2005 dealing with alteration of parties upon death and so forth reads:
No proceeding shall abate by reason of death or bankruptcy of any of the parties if the cause of action survivesand shall not become defective by the assignment, creation or devolution of any estate or pendente lite, and whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the finding on issues of fact and judgment, but judgment may be given in such case notwithstanding the death.
The relevant part of this provision for our purposes is the first portion saying No proceeding shall abate by reason of death or bankruptcy of any of the parties if the cause of action survives, special emphasis being put on the phrase if the cause of action survives. By this provision the focus of the Court as to whether the action survived the death of any of the parties is the cause of action in the suit as originally brought. If the cause of action survives the party, the action survives and the late party can be substituted. If the cause of action does not survive, the dead litigant, that is the end of the matter.
So what does the phrase cause of action mean? It means the act on the part of a defendant which gives the plaintiff a cause of complaint or cause of action. It is the accrual of the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action. See Labode v. Otubu (2001) FWLR (PT. 43) 207 @ 232; Attorney-General of Lagos State v. Eko Hotels Ltd (2006) LPELR-3161 (SC) P.55; In Owie v. Ighiwi (2005) 1 S.C. (PT. 11) 16, (2005) 1 NWLR (PT. 917) 184; (2005) LPELR-2846 (SC).
Relating that to this case, there is no doubt that respondent’s cause of action against Baba Olobi Ajikobi is as averred by them in paragraphs 33 and 34 of their original statement of claim where they said
33. The Claimants aver that to the utmost surprise of the Claimants, the Defendant Balogun Ajikobi, Alhaji Usman Baba Olobi Ajikobi contrary to the truthful position he had hitherto held made a volte face by contending that the Claimants lineage members are not descendants of Usman, the 1st Balogun Ajikobi of Ilorin and are therefore not entitled to be considered or appointed to fill the vacant stool. Claimant shall lead evidence of the utterances and pronouncements made by Alhaji Usman Baba Olobi Ajikobi the immediate past Balogun Ajikobi at various fora.
34. The Claimants aver that Alhaji Usman Baba Olobi Ajikobi’s new posture is a clear afterthought and is inconsistent with the position he had maintained in the immediate past. Claimants shall found on the evidence on Oath of Alhaji Usma Baba Olobi Ajikobi given in suit No. KWS/48/94: Between Alfa Oba & Ors v. Ahmed Abdullahi Onikijipa & Ors on 7th December, 1994 and shall contend that he cannot resile from that position which represents the true position. The Claimants shall found on certified true copy of the said testimony at the trial.
This fact that respondent’s Aliyu lineage’s case against Baba Olobi Ajikobi was for his personal misfeasance, was further confirmed by C.W.2, Oba Ajikobi Aliyu, even long after the death of Baba Olobi Ajikobi, when he testified under cross-examination (p. 374 of the record) as follows:
Q. Alhaji Usman Baba Olobi was the former defendant in this case?
Q. Is it true by your paragraph 13 of the written statement on oath deposed to on 23/4/14 that this suit was filed against the former defendant Alhaji Usman Baba Olobi when he maintained that Aliyu and his descendants are not descendants of the 1st Balogun Ajikobi of Ilorin?
A. It was when he changed the position he had earlier maintained that provided the institution of this suit. (Emphasis mine.)
I have earlier reproduced the submission of counsel to appellant for indefinite adjournment when he announced to the lower Court the death of original defendant Baba Olobi Ajikobi; how he said respondents wanted to see if there will be again another challenge of the respondents entitlement to the throne, apparently so that they can then identify who to hold responsible to substitute.
The lower Court was therefore mistaken and wrong when it held while overruling appellant’s counsel on 11/02/2010 that:
the utterances of the deceased, which the learned counsel to the defendant referred to in the above quoted paragraphs [paragraphs 33 and 34] as constituting the cause of action are but evidential ingredients necessary for ascendancy of the claimants claim to an accepted standard [whatever that means] and cannot be taken in isolation to mean that the defendant was sued in personal capacity to warrant striking out the case.
If Late Alhaji Usman Baba Olobi Ajikobi had not changed his position and contended that respondent???s Aliyu’s lineage people are not descendants of late Usman Balogun Ajikobi and so not entitled to contest or ascend his two Chieftaincy stools there would have been no problem and no cause of action in respondents against him or anybody else.
Respondents action was akin to one for defamation which dies with the defendant.
Now I am not unmindful of the contention of Mr. Olatunde that the learned trial judge while ruling on 11/02/2010 against appellants counsel’s objection to the substitution also held that it is the officially recognized occupier of the position or status of the Balogun Ajikobi which happen to be the deceased that was sued and not the deceased in his personal capacity’, and there is no specific ground of appeal against that finding. Much as I am even of the clear view that, that finding is subsumed in the appeal challenging the order of substitution, I do not see how any omission in that regard helps the respondents to keep their already dead case alive. What is dead is dead. I am not even sure that it would have made any difference if appellant had not even raised the issue of invalid substitution in their Notice and Grounds of appeal but had only orally drawn this Court’s attention to it during the hearing of the appeal. An issue of jurisdiction, especially an extremely fundamental one of this type, cannot be ignored nor swept under the carpet for any reason whatsoever: Eze v. A.G. of Rivers State (2002) FWLR (PT. 89) 1109 @ 1142 para F-G (S.C). Lack of jurisdiction in a Court that gave judgment can be raised at any time, in any manner and anyhow including orally: see Petrojessica Enterprises Ltd v. Leventis Technical Co. Ltd (1992) 5 NWLR (PT. 224) 675 @ 693; Gaji v. Paye (2003) FWLR (PT. 163) 1 @ 13; Oyakhire v. State (2007) ALL FWLR (PT. 344) 1 @ 10; Akegbejo v Ataga (1998)1 NWLR (PT. 534) 459 @ 466; Agbiti v. Nigerian Navy (2011) 4 NWLR (PT. 1236) 175 @ 207. The legal principle cited by respondents is therefore inapplicable here. Non-survival of cause of action following the death of Baba Olobi Ajikobi being a complaint that challenges the jurisdiction of Court, it will be entertained at anytime as anything that happened afterwards in the said suit would have nothing to sustain it and therefore a nullity: see Lord Denning in Macfoy v. U.A.C. Ltd (1961) 3 WLR 1409 -1410; Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417 @ 451 (Oputa, J.S.C.,)
Order 19 R. 10 of the Rules of this Court 2016 also invests on this Court very wide power in hearing appeals. It says:
No interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the Court from giving such decision upon the appeal as may seem just.
This provision has been interpreted in a number of decisions. In Ikomi v. Agbeyegbe 12 WACA 379 @ 381 the appellant had filed a valid appeal against the final judgment of the High Court. The issue that arose before the West African Court of Appeal was whether or not the appellant could raise an issue concerning an interlocutory order in respect of which there had been no appeal. Verity C. J. at page 381 of the report said thus:
As to failure to appeal against the order, we think that this is covered, in the circumstances of this case, Rule 30 of the West African Court of Appeal Rules 1937, now Rule 34 of the of the West African Court of Appeal Rules 1950 which provides that:
No interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the Court from giving such decision upon the appeal as may seem just.
See also Ige v. Obiwale (1967) 5 NSCC 267; (1967) 1 ALL NLR 276.
It is not also correct that original defendant Alhaji Usman Baba Olobi Ajikobi was sued in a representative capacity as Ajikobi Balogun and as custodian of the native laws and customs of Ajikobi family. The fact that the respondents added his title Balogun Ajikobi to his name does not in any way suggest that he was sued on behalf of Balogun Ajikobi family/dynasty of Ilorin. The capacity in which a person sues or is sued, especially when it is in a representative capacity, is never a matter for conjecture; it is one the Rules of Court require that it be clearly endorsed in the originating process. In that respect Order 5 Rule 2 of the Kwara State High Court (Civil Procedure) Rules 2005 states as follows:
O. 5 R. 2 Where a claimant sues, or the defendant or any of several defendants is sued in a representative capacity, the originating process shall state that capacity.
The respondents who complied with this rule with respect to their representative capacity but never did so with Baba Olobi Ajikobi should not have been allowed by the lower Court to argue, and cannot be heard to contend here that Baba Olobi Ajikobi was actually sued in a representative capacity.
Just as legal submissions are no substitute for evidence so are they not for pleadings too. In Osagunna v. Military Governor of Ekiti State (2001) 4 SCNJ 30 @ 49 – 50, a similar chieftaincy action which also had to do with whether the action survived the plaintiff who did not endorse his writ as suing in a representative capacity, the apex Court reacted thus:
The deceased plaintiff could not have sued in a representative capacity as his writ was not so endorsed as required by Order 5 R. 11 (1) (a) of the Ondo State High Court (Civil Procedure) Rules, 1987, which provides that:
Before a writ is issued it shall be endorsed
Where the plaintiff sues in a representative capacity, with a statement of the capacity in which he is sued.
Now, while I will recognize that whether an action survives a dead party, especially a defendant, may not depend entirely on whether he was actually sued in a personal capacity rather than in a representative capacity, as there are causes of action which can survive the party even if taken out in a personal capacity (see Arowolo v. Akapo(2006) 18 NWLR (PT. 1010) 94; (2007) ALL FWLR (PT. 345) 200) just as there are others which can never survive the party and will die with him in keeping with the principle that personal actions die with the person, I am of the view that the case of Arowolo v. Akapo (2006) 18 NWLR (PT. 1010) 94; (2007) ALL FWLR (PT. 345) 200 and the dictum of Onnoghen referenced by respondents counsel do not apply here. In Arowolo’s case the defendant Jimoh Arowolo who died while the appeal was pending in the Supreme Court was sued in respect of a Chieftaincy seat, the Oba of Itele, to which he was nominated by his Olaforinkanre Ruling House and had even been enthroned. The plaintiff brought action against him claiming that there were four ruling houses in respect of the said chieftaincy and Arowolo’s Olaforinkanre Ruling House was not one of them. The action went to trial and members of the Olaforinkanre Ruling House testified that they nominated him. Judgment was nevertheless entered against Arowolo. His appeal to this Court being also unsuccessful, he appealed further to the Supreme Court but died while that appeal was pending. It is the application made by members of his Olaforinkanre Ruling House to substitute
him that the Supreme Court granted against the opposition of the claimants/respondents, on the ground that even though Mr. Arowolo was sued in a personal capacity, he was in fact representing his Olaforinkanre Ruling House whose turn it was to present the Oba for the chieftaincy in issue so they can be substituted for him. It was on those rather peculiar facts and not a personal misfeasance of the defendant as we have in this case that the apex Court held that the cause of action of the plaintiffs against Arowolo survived him for the benefit of his Olaforinkanre family that nominated him for the Obaship. The following dictum of Onnoghen, J.S.C., at p. 197 -198 of NWLR will further make the reasoning of the Supreme Court clear:
It follows that before a person is selected or elected by the kingmakers to be the holder of or entitled to a chieftaincy title, e.g. Oba, he must first and foremost be presented by his family or the ruling house or houses concerned to represent it or them in the contest. Though he enters the contest as an individual, he is representing the family that put him up because it is his membership of that family that qualifies him to contest for the chieftaincy or stool in the first place.
I am of the firm view that though Jimoh Arowolo appears to have been sued in his personal capacity, the main issue before the Court of trial as revealed by the pleadings is whether or not the Olaforinkanre family being the ruling house that presented the original appellant for the stool of Oba of Itele forms part of the four ruling houses earlier carved out of the Adogun-Atele family so as to be eligible to hold the title of Oba of Itele.
It is therefore clear, and I hereby hold that this is a proper case for substitution so as to protect the interest of the family or ruling house that presented the original appellant for the Obaship of Itele particularly as the interest of that family in the dispute survives the death of the original appellant.
Arowolo’s case would have applied if the tables were turned and it is respondents that all died. In that case, it would have been open to any member of their Aliyu lineage to continue the suit against Baba Olobi Ajikobi.
Their case against him Baba Olobi Ajikobi died with him. If any other person, including Late Issa Jimoh Ajikobi or the present appellants, made similar contentions after Baba Olobi Ajikobi’s death, the proper course for respondents is to institute separate suit(s) against such persons as such will only constitute fresh and separate causes of action. The action instituted by them to challenge the personal contention of Alhaji Usman Baba Olobi Ajikobi cannot be used as a vehicle for such perceived new sentiments or even causes of action. In fact the decisions applicable to this case are In re: Adeosun (2001) 8 NWLR (PT. 714) 200 and Osagunna v. Military Governor of Ekiti State (2001) 4 SCNJ 30 @ 49 ??? 50 where the Supreme held that both chieftaincy cases did not survive the death of the original litigant.
For all these reasons, I resolve this issue in favour of the appellant. I hold that Suit No KWS/161/2008 of respondents against Alhaji Usman Baba Olobi Ajikobi died with him on 08/12/2010 and same ought to have been struck out by the lower Court upon his death.
That should ordinarily be the end of this appeal as every other issue in it relating to the trial and whether the case was proved against Late Alhaji Issa Jimoh Ajikobi and a fortiori the present appellants becomes academic. But mindful of the fact that this is only an intermediate appellate Court, we are constrained to resolve them even as doing so will only compel me to only consider them in the hypothetical.
With that, I proceed to consider those other issues.
Other Issues in the Appeal
I start with appellant’s contention in his issue 1 (Respondents Issue 4) that the decision of Orilonise J. of 21/10/1996 in Suit No. KWS/ 48/1994 between Alfa Oba & 2 Ors. v. Ahmed Abdullahi Onikijipa & 1 Or, contained in Exhibit K, stopped the respondents from re-litigating this action. That contention, I agree with the respondents, is a complete non-sequitur. For a judgment in a previous suit to act as estoppel per rem judicatam in a subsequent suit, not only must the parties, issues and subject matter of both suits be the same, the decision in the previous suit itself must also be final and decided by a Court of competent jurisdiction: Ladimeji v. Salami(1998) 4 S.C. 1 @ 11.
Here the action before Orilonise J., in Exhibit K relied on by appellant did not meet any of these conditions. Not only was appellant and those he represents not parties to the proceeding before Orilonise J., which case was also between the respondents and two strangers called Ahmed Abdullahi Onikijipa and the publisher of his book Shaykh Muhammad kamalud-Deen Al-Adabiyy, the contents of which the respondents felt defamed them by suggesting that they were not descendants of 1st Balogun Ajikobi, Usman Balogun Ajikobi, the suit was at the end of the day even struck out by Orilonise, J., albeit after trial on its merits, on grounds of improper Constitution of the action by reason of respondents failure to join the larger Balogun Ajikobi descendants. An order striking out a suit is not a final judgment, it rather keeps the claim alive, leaving the losing claimant at liberty to start afresh: see Ogbechie & Ors v. Onochie & Ors (1988) 1 NSCC 211 @ 230 – 231. This issue is accordingly resolved against appellant without further ado.
All other issues
I think the other three issues of appellants, namely:
1. Whether the Exhibits G and G1 are two obvious conflicting genealogical trees of Balogun Ajikobi of Ilorin to warrant the holding of the learned trial judge that the genealogical tree of Balogun Ajikobi is not static.
2. Whether it is not the duty of the person/party seeking to rely on due execution of a document or that the writing or signature on a document is that of a particular person to call such a person as his own witness.
3. Whether the claimants have by preponderance of evidence proved Royal blood relationship with Usman Ajikobi, the 1st Balogun Ajikobi of Ilorin and entitled to any of the reliefs/declarations and injunctions sought.
And the respondents two remaining issues of:
1. Whether in the circumstances of the case, the lower Court was right to have disregarded Exhibits G, G1, H and J on the genealogical trees of Usman Ajikobi having held same to be conflicting and then proceeded to examine other documentary, traditional/oral evidence on record to found for the respondents.
2. Whether having regard to the state of evidence on record the learned trial Judge was right in holding that the respondents case succeeded on preponderance of evidence, thereby granting their reliefs.
Can be conveniently considered under the rubric of respondent’s fourth issue (which corresponds with appellant’s second issue) namely:
Whether having regard to the state of evidence on record the learned trial Judge was right in holding that the respondents case succeeded on preponderance of evidence, thereby granting their reliefs.
Falling directly within this issue is the use, including findings, the trial judge made of the evidence, documentary and otherwise, that was adduced before him and whether that evidence was sufficient to sustain the claims of the respondents, assuming that the action was still alive to be heard and determined by him after the death of the original defendant. Implicit in this are also the issues of admissibility of evidence, the evaluation of the said evidence including the correctness or otherwise of the decision of the lower Court entering judgment for respondents on their claims.
In considering that omnibus issue I wish to first express my extreme discomfort with the admission and use of Exhibits F, G, G1, I, J and L from the National Archives, Kaduna, all of which were severally tendered by both parties. Incidentally, a good part of the appellant’s arguments in this appeal revolve around alleged insufficient evaluation and assessment or use of these documents by the trial judge. Most of these documents, purportedly certified copies of documents obtained from the National Archives, Kaduna, were certified by one Salawu O.N. who described himself as an Archivist 1. They were also largely tendered without objection. Now, Section 31 of the National Archives Act, Cap N6, Laws of the Federation of Nigeria, 2004 states the procedure for certification, authentication and admissibility of documents from the National Archives thus:
S.31: A copy or extract from any archives in the National Archives, including the micro-copies and photocopies of such a copy or extract, purporting to be duly certified as true and authentic by the Director or by the custodian of the public archives in any place of deposit where such archives are kept, and authenticated by having impressed thereon the official seal of the Director or the place of deposit, shall be admissible in evidence, if the original document or documents would have been admissible in evidence in the proceedings.
These provisions were not met as what Archivist 1, Salami O.N., used to certify Exhibits F, G, G1, I, J and L is a mere stamp instead of the seal of the Director of Archives required by Section 31 above.
The whole essence of this special certification procedure for authentication of archival documents by the seal of the Director of National Archives, rather than the simpler general procedure for certification of public documents under Section 104 of the Evidence Act 2011, is to ensure the authenticity and reliability of documents purporting to have been obtained from the National Archives for admission in Court. It is to avoid the kind of accusations and counter accusations we heard in this appeal where appellant and his counsel accused respondents and Archivist Salawu O.N. of conniving to invent Exhibit G to throw dust on their case, and respondents also asserting in turn that Exhibit G is actually an authentic document procured by them from the National Archives in Kaduna.
I can recall that when this Court (my humble self) during argument put the question to Mr. John Baiyeshea, learned Senior Advocate of Nigeria (who also doubles as Pastor) for respondent whether there was not a special procedure for certification and admissibility of archive documents, he answered, honestly and commendably, albeit off record, that he had done a number of cases on this area and none of the said documents would be admissible if properly subjected to the provisions of the National Archives Act. Learned senior counsel could not have been more correct, for in ONOCHIE v. ODOGWU (2006) 6 NWLR (PT. 975) 65 the apex Court (Ogbuagu, J.S.C. – with his brothers Onu, Katsina-Alu, Oguntade and Mahmud Mohammed concurring), while upholding the decision of this Court (reported in Odogwu v. Onochie (2002) 8 NWLR (PT. 769) 254) declaring inadmissible archive documents which were neither certified with the Director’s seal nor shown to have been made at his direction as required by Section 7 of the then Public Archives Act, Laws of the Federation of Nigeria, 1990 (the equivalent of Section 31 of Cap N6 the 2004 Laws of the Federation), held thus at p. 87 paras. G- H:
The Court below was therefore right in my respectful view when it held at the said p.248 of the records that the absence of the Director’s authorization of P.W.1 as well as the absence of the Director’s seal is a clear non-compliance with the provisions of Section 7 of the Public Archives Act.
I also agree with the Court below that the absence of the Director’s official seal has certainly affected the authenticity of Exhibit 4, thereby rendering it inadmissible under the said Act. The Court below was right also when it held that the error of law committed by the trial Court occasioned a substantial miscarriage of justice and that without the admission of Exhibit 4 in evidence the decision of the Court would have been otherwise. (Emphasis mine)
Exhibits F, G, G1, I, J and L purportedly obtained and certified by the National Archives but without the Director’s seal are not just inadmissible in evidence but inadmissible in any circumstance and remained so regardless of absence of objection to their admission at the trial Court. The fact that both parties connived to admit them in evidence and did not even make it an issue here did not change their status.A document which is inadmissible in any circumstance like these ones are cannot be used by the Court. The Court is bound to found its decision on only admissible evidence. In fact, it was said in Onochie v. Odogwu (2006) 6 NWLR (PT. 975) 65 by the apex Court (Ogbuagu, J.S.C) that the jurisdiction to expunge evidence that is inadmissible in any circumstance inheres in an Appellate Court. Hear His Lordship at p. 86 para B-C:
It is firmly established that if a document is wrongly received in evidence before the trial Court, an appellate Court has the inherent jurisdiction to exclude it although counsel at the lower Court did not object to its going in.
See also Citizens International v. SCOA Ltd and Ors (2006) ALL FWLR (PT. 323) 1680 @ 1702 where it was held that Where inadmissible evidence, as in the instant appeal, is inadvertently admitted the Court in the course of writing judgment is entitled to expunge the offending piece of evidence notwithstanding that parties to the proceedings were not heard.
Thankfully, even the trial judge, except for p.18 of Exhibit I which he relied on to find a complaint by Tukur Ajao to Aliyu lineage’s exclusion from the Ilorin Gazetteer, ended up not relying on the said documents from the archives. That is even as he held albeit through a different (and I dare say, even inapplicable) reasoning that Exhibits G and G1 differed and raised conflicting presumptions which cancelled out each other. If the said archive documents were inadmissible in evidence as they undoubtedly are, whatever His Lordship said about presumptions in favour of the said Exhibits G and G1 cancelling out each other, which is the subject of issue 3 of appellant equally become irrelevant and academic.
But even going further than that and assuming that the said archive documents were properly certified and so admissible, the weight to be placed on them is quite another matter as admissibility of evidence and weight to be placed on such admitted evidence are two different things. The fact that a document is certified does not also mean that it will automatically attract weight, or sufficient weight, to prove whatever it was tendered to support; certification does not amount to proof as probative value is another matter altogether: see Wike Ezenwo Nyesom v. Hon. (Dr.) Dakuku Adol Peterside (2016) 7 NWLR (PT. 1512) 452 @ 522 – 526 (Kekere-Ekun, JS.C.).
It is equally not true, neither is it the law, as was wrongly implied by the submissions of appellant’s counsel, that because Exhibits F, G, G1, I, J and L, Exhibit H and Exhibit AE are in print their contents automatically amount to truth. What attaches to certified documents, when properly certified as required by the relevant statute, is rather their genuineness as documents emanating from where they are purportedly made from and as true representation of the copy they are certified from, and not that their contents are also equally gospel truth of what they profess.
And on that, I note that Exhibits G and G1 are rather one-page documents showing only genealogical trees of Usman Balogun Ajikobi family of Ilorin. Nothing is said of their source and who compiled the genealogical graph there contained. That can hardly be reliable documents for the Court to attach weight. Exhibits F and H its p.19 relied on by the trial judge for Tukur Ajao’s alleged protest of non-inclusion of respondents’ Aliyu does not fare better either as it also has no clear source of the maker of the said exhibits or the person who supplied the information there.
The two books, Exhibits H and AE, will also have to be taken with a pinch of salt as their authors, Ahmed Abdullahi Onikijapa AlAdabiyy and Hon. H.B. Hermon Hodge respectively, never claimed to have witnessed the historical events they chronicled in their works. They also simply relied on information they claim to have gathered from other sources, which even makes their narratives also hearsay. In any event, why were these two authors/compilers not called by appellants to face cross-examination to authenticate the contents of their works? After all it was not said in evidence that they were dead. Books cannot be cross-examined. Here, I find very relevant the dictum of the Supreme Court in the landmark decision of Idundun & Ors v. Okumagba & Ors (1976) NSCC 443 @ 453; (1976) LPELR-1431 P. 23 and 24 where it was said as follows:
As for the law involved, we would like to point out that it is now well settled that there are five ways in which ownership of land may be proved.
In our view, not only was the evidence of the witnesses called by the appellants rightly rejected by the learned trial Judge for good and sufficient reasons, we also think that he was right in not attaching any weight to the views expressed in the books cited in support of such traditional evidence. As Lionel Brett, J.S.C., (as he then was), rightly in our view, once pointed out in a learned address given by him at the University of Lagos to the Nigerian Association of Law Teachers:
The Courts are not to be hypnotized by the authority of print. The crucial fact is that books cannot be cross-examined, either as to the opinion expressed, or as to the claims of the author to have special knowledge. If the author is living, there is no reason why he should not be tendered as an expert witness, when this difficulty would varnish.
No evidence was adduced to show that any of these books is generally acknowledged either in Nigeria or elsewhere as a standard work or as appropriate authority on the relevant traditional history so as to enable the Court to resort, with justification to its aid. (See Sections 58 and 73(2) of the Evidence Act, Cap. 62 and Adedibu v. Adewoyin 13 WACA 191 @ page 192). Moreover, none of the authors of these books testified in support of the views stated therein and no explanation was given for the omission. For all these reasons, we share the apprehensions of the learned trial Judge about the value or weight of the traditional history as narrated by each of these authors, particularly as the authenticity and impartiality of the sources of their narratives cannot, for obvious reasons, be easily ascertained.
So much for documentary evidence in terms of archive documents, Exhibits F, G, G1, I, J and L, and text books and compiled history of Ilorin in terms of Exhibits H and AE. I think the less said about them the better.
That virtually leaves us with the learned trial judge’s evaluation of the oral and other documentary evidence, including Exhibits A, B, C, D and E, adduced by the respondent’s as claimants in support of their case of descendants of 1st Balogun Ajikobi, Usman Balogun Ajikobi vis-a-vis the denial of that assertion by appellant.
Let me start from Exhibit B which is the evidence of the original defendant Alhaji Usman Baba Olobi Ajikobi before Orilonise J., in Suit No KWS/48/94 between Alfa Oba & Ors v. Ahmed Ahmed Abdullahi Onikijapa & Anor. Baba Olobi Ajikobi who later became Balogun Ajikobi of Ilorin and therefore leader of respondent’s family swore on the Holy Quran on 7/12/1994 that respondents who sued in a representative capacity in that case were descendants of his progenitor Usman Balogun and entitled to the stool of Balogun Ajikobi. Hear him at page 1 of Exhibit B:
My names are Baba Olobi Ajikobi. I live at Balogun Ajikobi compound, Ilorin. I am a traditional cloth weaver. I am a direct descendant of Usman. Usman was my great grandfather.
I know the plaintiffs. They are from Ajikob’s compound. All the descendants of Usman are entitled to the stool of Balogun Ajikobi. The plaintiffs are descendants of Usman from Aliyu lineage.
I am a direct descendant of Balogun Ajikobi called Biala. He was my grandfather. Usman was first Balogun.
The main objection of Mr. Ibraheem for appellant to the use of this evidence by the trial judge was that, since the said evidence was made by now late Baba Olobi Ajikobi in a previous proceeding, it is only admissible for purposes of cross-examining him and even then upon fulfillment of the conditions set out in Section 46 of the Evidence Act, particularly its proviso stating that (a) the proceeding must have been between the same parties or their representatives in interest, (b) the adverse party in the first proceeding had the right and opportunity to cross-examine and (c) the questions in issue were substantially the same in the first and second proceeding. Counsel argues that these conditions were not met by respondents so appellants Exhibit B was inadmissible. Respondents on the other hand contend that the previous evidence of Baba Olobi Ajikobi is relevant as an admission under Section 20 of the Evidence Act and so admissible in evidence. I am afraid Mr. Ibraheem is confusing the use of a witness evidence in a previous proceeding for purposes of examination as to credit of the witness – which is the subject of Section 232 of the Evidence Act and Alade v. Aborishade supra), the use of the same previous evidence of a witness in a subsequent case or later stage of the same case, for instance in a de novo trial as if the witness testified before the Judge trying the latter case- which is the subject of Section 46 of the Evidence Act), and finally the use of such evidence for its relevance as admission – which is the subject of Sections 20 to 27 of the Evidence Act 2011. These three uses of previous evidence are different and distinct. Thus whereas previous evidence of witness may not be admissible if tendered for one of these purposes, it may be perfectly admissible for one or even both of the other purposes, after all it is also settled that evidence that may not be admissible for one purpose may be admissible for another. If authority is needed, see: Okonji v. Njokanma (1999) 4 NWLR (PT. 638) 250 (S.C.); Bayol v. Ahemba (1999) 10 NWLR (PT. 623) 381 (S.C.), Akinduro v. Alaya (2007) 15 NWLR (PT. 1057) 312 @ 339 (S.C.); Daggash v. Bulama (2004) ALL FWLR (PT. 212) 1666 @ 1738 F-H. The clearest statement of the law on the various uses of previous evidence of witnesses is contained in Ajide v. Kelani (1985) 3 NWLR (PT. 12) 248 @ 260. There, the apex Court (Bello, J.S.C.) stated the true position as follows:
It is pertinent to reiterate the authorities permitting the evidence given by a party in a previous suit to be admitted in a subsequent judicial proceeding. The authorities may be categorized as follows:
(1) Under Section 34 of the Evidence Act evidence given by a witness in a previous judicial proceeding, whether the witness was a party or not to the previous judicial proceeding, is admissible in a subsequent judicial proceeding to prove the truth of the facts when the conditions specified by the section have been satisfied.
(2) Though admissions are not conclusive proof of the matters admitted, an admission of any fact in issue or relevant fact made by a party or his agent, whether the admission was made in previous judicial proceeding or not, is admissible in a judicial proceeding against or on behalf of the maker under Sections 19 to 26 [now Sections 20-27] inclusive of the Evidence Act:
(3) Under Section 198 of the Evidence Act evidence given by a witness in a previous judicial proceeding is admissible in a subsequent judicial proceeding to discredit the witness provided the conditions prescribed by the section have been satisfied: Nahman v. Odutola (supra) and Alade v. Aborishade (supra).”
See also Saka’s Law of Evidence, 16th Edn. (Reprint) 2009, Vol. 1 @ p.422 where the learned authors stated the position correctly thus:
“[Admissions] are substantive evidence by themselves in view of Section 17 and 21 of the Evidence Act [Indian Evidence Act], though they are not conclusive proof of the matters admitted. The admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether such party when appearing as witness was confronted with those statements in case it made statements contrary to those admissions. The purpose of contradicting the witness under Section 145 [our Section 232 as further explained in Alade v. Aborishade] of the Evidence Act is quite different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and only serves the purpose of throwing doubt on the veracity of the witness.”
Exhibit B (the previous evidence of Baba Olobi Ajikobi) was only tendered to prove admission. The relevant provisions of the Evidence Act 2011 for its admission are Sections 20, 21 and 24 of the Evidence Act 2011. The said provisions read:
S.20 An admission is a statement oral or documentary, or conduct which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and in the circumstances, mentioned in this Act.
S.21(1) Statements made by a party to the proceeding or by an agent to any such party, whom the Court regards, in the circumstances of the case, as expressly or impliedly authorized by him to make them, are admissions.
S.24. Admissions are relevant and may be proved as against the person who makes them or his representative in interest, but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, in the following cases:
(a) An admission may be proved by or on behalf of the person making it when it is of such a nature that, if the person making it cannot be called as a witness, it would be relevant as between third parties under Section 39 to 45.
(b) An admission may be proved by or on behalf of person making it, when it consists of a statement of the existence of any state of mind or body relevant or in the issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable; and
(c) An admission may be proved by or on behalf of person making it, if it is relevant to otherwise than as an admission.
True it is that Baba Olobi Ajikobi has passed away and so is not a party to this suit for his admission to be used against him, but Section 24 (a) above clearly states that: An admission may be proved by or on behalf of the person making it when it is of such a nature that, if the person making it cannot be called as a witness, it would be relevant as between third parties under Section 39 to 45. That is where the provisions of Section 44 of the Evidence Act become very relevant. That section provides thus:
44(1) Subject to Subsection (2) of this section, a statement is admissible when it relates to the existence of relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge.
(4) A statement referred to in Subsection (1) of this Section shall not be admissible under the following conditions-
(a) that it is deemed to be relevant only in a case in which the pedigree to which it relates is in issue, and not to a case in which it is only relevant to the issue, and
(b) That it must be made by a declarant shown to be related by blood to the person to whom it relates, or by husband or wife of such a person.
Pedigree of the respondents as descendants of 1st Balogun Ajikobi, Usman is the direct issue in this suit so Paragraph (a) Subsection 2 of Section 44 of the Evidence Act was complied with.
Late Alhaji Baba Olobi Ajikobi was also undoubtedly related to the present appellants and Late Issa Jimoh Ajikobi so again the provisions of Paragraph (b) of Subsection 2 of Section 44 are fulfilled.
It cannot also be gainsaid that the statement of Late Baba Olobi Ajikobi admitting that the respondents of Aliyu lineage are descendants of his great grandfather First Balogun Ajikobi, Usman Ajikobi, progenitor of appellant, is not an admission of existence of relationship by blood between appellants who are undisputed descendants of the same 1st Balogun Ajikobi, Usman and the members of Aliyu lineage represented by the respondent.
It cannot be argued that Late Alhaji Baba Olobi Ajikobi who later ascended Balogun Ajikobi family’s highest Chieftaincy stool of Balogun Ajikobi of Ilorin and so became the family’s leader so to speak would not have had special knowledge of what he admitted before Orilonise J., on the Quran, the symbol of his Faith. In fact, C.W.2, Alhaja Fatimoh Kilaribe of Ajikobi Compound, an undisputed influential elderly daughter of Balogun Ajikobi family confirmed that Baba Olobi Ajikobi was at the time he made the admission in issue a principal member of appellant’s Balogun Ajikobi family. Alhaja Kilaribe also admitted that Balogun Ajikobi family later became aware of his testimony and berated him, for which he apologized, albeit, according to her, as an afterthought. The same witness also confirmed that Balogun Ajikobi dynasty/family later nominated same Baba Olobi Ajikobi to the Emir of Ilorin for appointment as Balogun Ajikobi of Ilorin and he was so appointed and reigned in that high capacity until his death. (See pages 390 -391 of the record for all this). Section 44(1) of the Evidence Act is therefore properly covered.
The learned trial Judge attached a lot of weight to this admission of Alhaji Baba Olobi Okobi before Orilonise J., and held it against Jimoh Issa Ajikobi, his successor. I see no reason to disagree with him. A principal member of a family who would not only falsify the history of his family on an issue as sensitive as this but even do so on oath would not normally end up being rewarded by the same family with a nomination for the highest family office. No serious family would entrust its affairs to such an unreliable person. Things don’t work that way in real life. The fact that appellant and his family still proceeded to nominate the same Baba Olobi Ajikobi as their Balogun Ajikobi speaks volumes about the correctness of his admission before Orilonise J.
I am also in agreement with the learned trial judge on his contention that since appellant asserted that Exhibits A, C, D and E bearing what purports to be signatures or endorsements of undisputed members of Usman Balogun Ajikobi family of Ilorin acknowledging respondents Late
Nageri Aliyu as member of Usman Balogun Aajikobi family of appellant were vague, forged and concocted, the onus of proof and to do so beyond reasonable doubt that they were forged, which is a criminal allegation, was on appellant and not on respondents. That is the exact purport of the dictum of the Supreme Court (Ayoola, J.S.C), in the case of Aderounmu v. Olowu (2000) 2 S.C. (PT. 11) 1 @ 6, (2000) LPELR-141 (S.C.) P.12 cited by the learned trial Judge in support of his position. In Aderounmu, it was said that:
Where in a claim for declaration of title to land, the defendant alleges that the document relied on by the plaintiff is a forgery the evidential burden is on the defendant, notwithstanding the general onus on the plaintiff.
The apex Court (Iguh, J.S.C) had earlier reasoned the same way in Okotie v. Olughor (1985) SCNJ 217 @ 230 – 231 saying:
The applicants in the present proceedings are accused by the 1st and 2nd respondents with the criminal offence of forgery of the two receipts Exhibits PE3 and PE4 against which the Notice of Appeal in issue was filed. The burden of proving that the applicants have been guilty of this offence of forgery is clearly on the 1st and 2nd respondents who assert the affirmative. As I have already observed, they must, to succeed, establish their allegation beyond all reasonable doubt as required in criminal law notwithstanding the fact that the commission of the offence has arisen in a civil proceeding.
Going by all this, the onus was on the appellant’s (I again agree with the learned trial judge) to call members of his family whose names were reflected in the said Exhibits A, C, D and E, especially Exhibit E, to deny their signatures and prove his assertion of forgery and concoction of the said documents by respondents. Interestingly, just like the learned trial judge again observed, correctly, in his judgment at p.441 of the records, the appellant himself as D.W.3, under cross-examination at p. 393, agreed that at least two true sons of his family, including now 1st appellant Alhaji Baba Eleko Okunrinjeje who were also shown to have signed Exhibit E nominating respondent’s Nageri Aliyu Ajikobi among others as Balogun Ajikobi were alive at the time of his testimony yet he never showed them Exhibit E.
This is the dialogue appellant had with respondent’s counsel on this issue:
Q. Do you know Alhaji Baba Eleko Okunrinjeje?
A. I know him. He is the current Daudu Ipaiye. I also know Akanbi Tinko Okunrinjeje. They are true sons (i.e. Baba Olobi Bolaji, Baba Eleko Okunrinjeje and Alhaji Akanbi Tinko Okunrinjeje) of Balogun compound.
Q. It is true that Alhaji Baba Olobi Bolaji, Baba Eleko Okunrinjeje and Alhaji Akanbi Tinko Okunrinjeje are signatories to Exhibit E.
A. Yes, they are. Alhaji Baba Olobi Bolaji is dead while the remaining two are alife (sic).
Q. Up till now you are (sic: not) aware that Baba Eleko Okunrinjeje complained that he did not participate in making Exhibit E.
A. I am not aware. Baba Eleko can never sign Exhibit E. Baba Eleko is not aware of Exhibit E.
Q. Did you show Exhibit E to Baba Eleko?
A. I did not show him Exhibit E.
Exhibit E which appellant never saw necessary to show his fellow true sons of Balogun Ajikobi family is one of the documents frontloaded by respondents’ right from the inception of the suit in 2008 so I just cannot fathom how late Alhaji Issa Jimoh Ajikobi who averred that Exhibit E never existed but was concocted and forged by respondents would not find it necessary to call his two living true son kinsmen of Ajikobi compound to prove that their signatures on Exhibit E are fake and it is actually a forgery. It is said that all men stamp as improbable that which they would not do under similar circumstances: Bozin v. The State (1985) 2 NWLR (PT. 8) 465 and Onuoha v. The State (1989) 1 N.S.C.C. 411 (Oputa, J.S.C.). Section 167 of the Evidence Act 2011 also enjoins the Court to presume the existence of any fact which is likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relationship to the facts of the particular case. These documents, particularly Exhibit E, is/are strong evidence against the assertion of appellant of respondents being sons of a slave or gate keeper in Ajikobi compound.
Besides all this is also the admission of the appellant’s witnesses (all of them) that members of Aliyu lineage of respondents live together in the same Kaa Gboro area of Ajikobi compound with the so-called true sons of Ajikiobi dynasty, with some of them like Late Baba Aliyu Nageri Ajikobi and his son Memudu even having their buildings right next to that of the original defendant Late Baba Olobi Okobi Ajikobi, a Balogun Ajikobi, in Kaa Gboro (see p. 393 of the records amongst others). In fact it was also admitted by D.W.2, Alhaja Kilaribe, that Late Baba Aliyu Nageri Ajiklbi was even buried there (p. 393 of the records). That is even as same D.W. 2, a true daughter of Balogun Ajikobi dynasty confirmed under cross-examination (at p.393 of the records) that Usman Balogun Ajikobi, the founder of Balogun Ajikobi Dynasty, was a Yoruba man and that in:
[In Yoruba custom] it is a taboo for slaves and master to live in the same place.
True it is that a claimant for declaration must depend on the strength of his case for his success, but the law allows him to take advantage of any aspect of the respondents’ case that supports his own: Akinola v. Oluwo(1962) ALL NLR 224 @ 225, (1962) SCNLR 352; Awote v. Owodunni (1987) 1 NSCC 590 594. The foregoing admissions are strong evidence from the appellant supporting the respondents’ case which they are entitled to rely on and was properly adverted to by the trial judge in entering judgment for them.
Unfortunately, all that go to no issue as the case respondents brought against Baba Olobi Ajikobi died with him on 8/12/2010 long before all this evidence was adduced. So, correct as His Lordship???s findings on the trial may have been if all was well, I am constrained to allow the appeal on the basis of the non-survival of the cause of action upon the death of the original defendant Alhaji Usman Baba Olobi Ajikobi and the consequential invalid substitution of Issa Jimoh in his place by the lower Court.
The appeal is accordingly allowed, the judgment of Garba J., of the High Court of Kwara State of 28/07/2016 in Suit No. KWS/161/2008 granting the claims of the respondents of Aliyu lineage of Balogun Ajikobi family against Alhaji Issa Jimoh Ajikobi is set aside and in its stead an order is made striking out the said Suit No. KWS/161/2008 from the High Court of Kwara State with effect from 8/12/2009 when the original defendant Alhaji Usman Baba Olobi Ajikobi died.
Parties shall bear their costs.
CHIDI NWAOMA UWA, J.C.A.: I read in advance the judgment delivered by my learned brother BOLOUKUROMO MOSES UGO, JCA. My learned brother has comprehensively and painstakingly resolved the issues that arose in the appeal and I agree with his reasoning and conclusion arrived at. I adopt same as mine, including the consequential orders made therein and abide by the orders made as to costs
HAMMA AKAWU BARKA, J.C.A.: I was opportune to have read in draft the judgment of my learned brother BOLOUKUROMO MOSES UGO, JCA in its draft form.
Having considered the record of proceedings, and the submissions of the learned counsel on both sides on the issues propped up for resolution, I am satisfied and do agree with the reasoning and conclusion reached to the extent that I have nothing useful to add.
I adopt the reasoning and conclusions therein as mine, thus allowing the appeal and setting aside the decision of the lower Court delivered on the 28/07/2016 in suit No: KWS/161/2008. I abide on all consequential orders made in the lead judgment, including the order as to cost.
A.A Ibraheem Esq. with him, A.O. Ajiboye Esq. and S.A Aderinto Esq. –For Appellant
John Olusola Baiyeshea, S.A.N., with him, A.T. Olatunde Esq., A. B. Adeshina Esq., Y.A. Dikko Esq., A.S. Oladimeji Esq. and Y.L. Olowosegun Esq. –For Respondent