Suit Number:CA/L/304/2009
Judges:IBRAHIM M. M. SAULAWA JCA (Presided and Read the Lead Judgment) SIDI DAUDA BAGE JCA RITA NOSAKHARE PEMU JCA
Counsel:Gbenga Ojo, Esq. and Joe Opute, Esq. - for the Appellants.
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Sh ak ir u O mo laja, Esq . and Bolatito Bab aso la - fo r th e Respondents .
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SAULAWA JCA (Delivering the Lead Judgment): The present appeal is against the judgment of the Lagos State High Court, Ikeja Judicial Division which was delivered on 26 January 2009 by the Hon. Justice
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H.A.O. Abiru. By the said judgment, the lower court granted all the reliefs sought by the respondents in suit No. IKD/73/05, and accordingly
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dismissed the appellants’ counterclaim in the entirety thereof.
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Facts and circumstances leading to the appeal:
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On 18 November 2005, the respondents filed both a writ of summons (registered as suit No. IK/73/05) and a statement of claim in the court below seeking various reliefs against the appellants. By the statement of
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claim thereof, the relief sought by the respondents’ against the appellants are to the following effects: A declaration that the installation of the 2nd defendant as the head of Olofin chieftaincy family, by the 1st defendant, with the connivance of the 3rd, 4th, 5th and 6th defendants is null and void and of no effect whatsoever. (b) A declaration that the claimant is the bona fide and incumbent head of Olofin chieftaincy family of Ofin-Ile
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who is entitled to exercise all rights and privileges attached to the position of head of Olofin chieftaincy family of Ofin Ile via Igbogbo, in Ikorodu Local Government of Lagos
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State.
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(c) An order of perpetual injunction restraining the 2nd
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defendants from all rights and privileges of head of family and/or presenting and parading himself as head of Olofin chieftaincy family of Ofin Ile.
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(d) An order of perpetual injunction restraining the defendants and their agent, servant or whosoever persons appointed by
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the defendants, from collecting any money, on behalf of the Olofin chieftaincy family, from anyone, either constructing any
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structure or laying foundation, or roofing any house or for A whatever purpose, on any portion of the Olofin chieftaincy family land at Ofin-Ile via Igbogbo in Ikorodu Local Government Council of Lagos State.
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Parties filed and served their respective pleadings. Eventually,
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the case proceeded to trial. At the conclusion of which, the lower court B
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delivered the judgment in question to the effect, inter alia , thus:
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It is hereby declared that the app ointment and the installation of the second defendant as the head of the Olofin chieftaincy family by the 1st defendant with the connivance of the 3rd to the 6th defendants is null and void and of no
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effect whatsoever. C
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It is hereby declared that the first claimant is the bona fide and incumbent head of the Olofin chieftaincy family of Ofin-Ile and the person entitled to exercise all rights and privileges attached to the position of head of Olofin chieftaincy family of Ofin-Ile via Igbogbo in Ikorodu Local D
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Government of Lagos State.
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An order of injunction is hereby made restraining the second defendant from all rights and privileges of head and/or presenting and parading himself as head of Olofin
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chieftaincy family of Ofin-Ile. E
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An order of injunction is also hereby made restraining the
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defendants, their agents, servants or whatsoever persons appointed by the defendants family, from anyone either constructing any structure or laying foundation or roofing any house for whatsoever purpose on any portion of the Olofin
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chieftaincy family land atOfin-Ile via Igbogbo in Ikorodu Local F Government Council of Lagos State. (v) The counterclaim of the defendants fails in its entirety and it is hereby dismissed. (vi) The claimants are awarded the cost of this action at N25,000.00 (twenty-five thousand naira) These shall be the cost orders of this court. G Dated this 26 January 2009 Signed Honorable Justice H.A.O. Abiru
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Not unnaturally, the judgment of the lower court in question H
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obviously has not gone down well with the appellants. Thus, resulting
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in their filing of a notice of appeal in the lower court on 5 February 2009 against the said judgment. The notice of appeal was predicated upon a total
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of five grounds.
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In compliance with the rules of this court, the parties filed their respective briefs of argument. Most particularly, the appellants’ brief was filed on 22 December 2009, but deemed to have been properly filed and served on 23 February 2010. On the other hand, the respondents’
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brief was filed on 12 May 2011, but deemed to have been properly filed and served on 18 May 2010. A reply to the respondents’brief was equally filed
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by the appellants on 11 June 2010.
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In the brief thereof, the appellants have formulated three issues for determination, viz :
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Issue 1
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Whether the removal of the 1st respondent as the head of Ofin Ile chieftaincy family while the 1st respondent was/is still alive was/is valid under Yoruba native law and custom
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applicable in Ofin Ile. (Grounds a).
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Issue 2
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Whether the appellants on preponderance of evidence established the removal of the 1st respondent as the head of Ofin Ile chieftaincy family and his replacement by 2nd
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appellant in accordance with Yoruba native law and custom applicable in Ofin Ile. (Ground b).
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Issue 3
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Whether the 1st respondent as the head of family, Ofin Ile
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chieftaincy family has satisfactory rendered account of proceeds of income and expenditure of monies realized from the sale of family land or whether the respondents are stopped from seeking account from the 1st respondent
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as the head of their family. (Grounds c and e).
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On issue No. 1 thereof, the appellants submitted, inter alia , that the principles of law governing the recognition, appointment, succession and removal of a head of family under the Yoruba native law and custom, applicable to Ofin Ile near Ikorodu, Lagos State, have been well
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formulated and settled over the years. The case of Ejilemeje v. Opara (2003) 8 MJSC 205 was cited and relied upon, regarding the three modes of succession recognized by the Yoruba native law and custom. Also Lewis
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v. Bankole (1908) 1 NLR 81; Yusuf v. Dada (1990) 4 NWLR (Pt. 146) 657; Falomo v. Onakanmi (2005) 1 NWLR (Pt. 935) 126, (2006) All FWLR
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H (Pt. 298) 1242; Otun v. Otun (2004) 14 NWLR (Pt. 893) 381 regarding succession by the operation of law.
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The second mode of succession is by appointment of election by members of the family: Taiwo v. Sarumi (1913) 2 NLR 106; Nyang v.
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Ita (1929) 9 NLR 84 at 85; Ejilemeje v. Opara . A
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The third mode of succession is by appointment by the founder:
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Sogbesan v. Adebiyi (1941) 16 NLR 26.
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The appellants conceded to the finding of the lower court, at page 376 of record, regarding the first mode of succession of the head of a
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family. However, it was contended, that the lower court came to an B
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obviously wrong conclusion, when it held further that -
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Implicit in these decision (sic) is the fact that under the Yoruba customary law as judicially noticed by the courts, it is only on the death of incumbent head of family that another head of the family succeeds to the headship of the
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family. This is in tandem with the case of the claim. C
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It was contended, that the lower court was wrong in law, to have held that it’s only on the death of an incumbent head that another person can be appointed to replace him. That, the head of the family can be removed in his life time and replaced by another person, on account of
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mismanagement of family fund: Nelson v. Nelson (1952) 1 WACA 215 D
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at 216; Akande v. Akande (1967) 1 All NRL 102; Fynn v. Gardner (1953)
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14 WACA 260.
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Thus, it was argued, that under Yoruba native law and custom, applicable to Ofin Ile, The Ofin chieftaincy family has the power to
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remove the 1st respondent as the head of the family in his life time. E
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On issue No. 2, it was submitted that parties agreed, and the court
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has found, that the 1st respondent was unanimously appointed by 33 members of the family in attendance at the meeting summoned by the 1st appellant, as the Baale (head) of the entire community. That, DW1 vide his written statement on oath, gave copious evidence of sale of family land
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to the 1st respondent. The receipts for such sale were admitted as exhibits F
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D2, D3, D4, D8, D9 and D10, respectively. And that, the 1st respondent failed or refused to appear before the family meeting to give accounts of the proceedings realized from the sale of the family land in question.
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According to the counsel on 27August 2005, the family resolved ata meeting
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to replace the 1st respondent with the 2nd appellant as new head of the G Ofin chieftaincy family. That, ever since his appointment, the 2nd appellant opened family account at Union Bank, Ikorodu Branch, into which family
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funds were lodged. All this pieces of evidence were allegedly neither contradicted, nor challenged: Ogunyade v. Oshunkeye (2007) All FWLR
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(Pt. 389) 1179, (2007) 7 SC (Pt. 11) 60. Nigeria Maritime Services Ltd v. H
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Afolabi (1978) 2 SC 79; Odulaja v. Haddad (1973) 11 SC 357; Ajomale
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v. Yaduat (No.2) (1991) 5 NWLR (Pt. 191) 266, (2003) FWLR (Pt. 182)
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1913; Odogwu v. Odogwu (1992) 7 NWLR (Pt. 253) 344.
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A The court has been urged upon to set aside the finding and conclusion of the lower court, that the removal of 1st respondent and his replacement by the 2nd appellant is contrary to the established Yoruba native law and custom for being perverse: Folorunsho v. Adeyenu (1975) NMLR 128;
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Ogbechie v. Onochie (1998) 1 NWLR (Pt. 70) 370; Balogun v. Agboola
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B (1974) 10 SC 111, (1974) 1 All NLR (Pt. 2) 612; Ebba v. Ogbodo (1984) 1
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SCNLR 372, (2000) FWLR (Pt. 27) 2094; Kuforiji v. VVBY (Nig.) Ltd
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(1981) 6 - 7 SC 460 (Reprint); Oyewole v. Aka (2009) LPELR 8; Ajiboye
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v. Ishola (2006) All FWLR (Pt. 331) 1209, (2006) 11 MJSC 191; Yaro v.
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Arewa Const. Ltd (2007) 6 KLR (Pt. 240) 2905 , (2008) All FWLR (Pt.
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400) 603; U.T.B. (Nig.) v. Ozoemena (2007) All FWLR (Pt. 358) 1014,
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(2007) 1 KLR (Pt. 228) 585; Garuba v. Yahaya (2007) All FWLR (Pt.
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357) 862, (2007) 1 KLR (Pt. 227) 27; Bunge v. Governor, Rivers State (2006) All FWLR (Pt. 325) 1, (2006) KLR (Pt. 220) 2077; Ifeta v. Shell Petroleum Development Co. (Nig.) Ltd (2006) All FWLR (Pt. 314) 305, (2006) 4 KLR (Pt. 214) 1041; Esan v. Faro (1947) 12 WACA 135
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respectively.
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It was finally contended on the second issue, that the court cannot force a head on the family after the removed thereof. The court has thus been urged upon to set aside the finding of the lower court that there was no evidence of customary practice of replacing a head of family in
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his life time.
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On the third issue, it was submitted that it’s an inflexible rule and
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practice, that a family head under the Yoruba native law and custom must render account of rent and profits realized from the sale of family land: Taiwo v. Dosunmu (1966) NMLR 94; Archibong v. Archibong (1947) 18 NLR 117.
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It was contended, that there was no satisfactory explanation as to how the income realized from sale of the family land was kept. And that
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the 1st respondent did not discharge his obligation to render account of the family fund with him, thus his removal by the family at a general family meeting summoned by the 1st appellant was proper and valid.
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That, the counterclaim for account ought to have been upheld by the lower court. The court has been urged to so hold. In conclusion, the learned counsel urged that the appeal be allowed, set aside the judgment of the lower court,
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dismiss all thereliefs granted in favour of the 1st respondent, and accordingly allow the counterclaim of the appellants.
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On the part thereof, the respondents have so far formulated three issues, viz : Whether the 1st claimant/respondent was ever validly removed as the Head of the Olofin chieftaincy family of Ofin-Ile,
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Ikorodu. A
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Whether if the answer to issue No. 1 is in the negative, the
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purported installation of the 2nd defendant/appellant as the head of the Olofin chieftaincy family of Ofin Ile Ikorodu, is legally supportable or cognizable in law.
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Whether the claimants/respondents are liable to render B
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accounts to the defendants/respondents.
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On issue No. 1, it was submitted, inter alia , that (i) the evidence of the appellants’ only witness, Nurudeen Alimi Olomo, (though) full of contradictions and unreliable, did not leave the court in any doubt that the 1st respondent has been the head of the Olofin chieftaincy family
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for 12 years since 1992; and (ii) that, the 2nd appellant had been C restrained by a court order from parading himself as the head of the family in question.
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It was contended, that by that evidence, the entire acts of the appellants in purporting to convene family meetings and installing the 2nd appellant as the head of the family in question were exercises in D
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futility. That, the lower court was correct in holding that under Yoruba
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customary law, it’s only on death of an incumbent head of the family that another head succeeds to the headship of the family: Lewis v. Bankole (1908) 16 NLR 81; Taiwo v. Sarumi (1913) 2 NLR 106; Sogbesan v.
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Adebiyi (1941) 16 NLR 26; Adeseye v. Taiwo (1956) SCNLR 265; Eyesan E
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v. Sanusi (1984) 1 SCNLR 353; Olowu v. Olowu (1985) 3 NWLR (Pt.
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13) 372; Folami v. Cole (1990) 2 NWLR (Pt. 133) 445; Yusuf v. Dada (1990) 4 NWLR (Pt. 146) 657; Otun v. Otun (2004) 14 NWLR (Pt. 893) 381; Falomo v. Onakanmi (2005) 1 NWLR (Pt. 935) 126, (2006) All FWLR (Pt. 298) 1242, respectively.
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It was equally postulated, that it’s a settled law, that the onus is F
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on the party who claims the existence of a particular customary law applicable to the situation, to call evidence to establish that custom: Sections 135, 136 and 137(1) of the Evidence Act, Cap. 112 Laws of the Federation of Nigeria, 1990; Adeyeri II & Ors. v. Aderibigbe Atanda
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& Ors. (1995) 5 NWLR (Pt. 397) 512; Adeogun v. Ekunrin (2004) 2 G NWLR (Pt. 856) 52; Magomya v. Attorney-General, Adamawa State (2007) 5 NWLR (Pt. 1028) 567; Samuel v. Adedeji (1997) 8 NWLR (Pt.
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517) 447; Ogolo v. Ogolo (2004) FWLR (Pt. 194) 517, (2004) 2 MJSC
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174 at 182.
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That, customary law is the organic law of the indigenous people H
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of Nigeria regulating their lives and transactions. Thus, it’s a question
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of fact to be proved by evidence if established as required by sections 14(2) and 73 of the Evidence Act. See Ogolo v. Ogolo (2004) FWLR
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A (Pt. 194) 517, (2004) 2 MJSC 174 at 182; Oyewunmi v. Ogunesan (1990)
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3 NWLR (Pt. 137) 182 at 207; Taiwo v. Dosunmu (1966) NMLR 67;
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Otogbolu v. Okeluwu (1981) 67 SC 99; Akande v. Akanse (1967) 1 All
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NLR 102; Usiobafio v. Usiobafio (2005) 4 MJSC 82 at 101.
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That in the instant case, the appellants placed nothing of value
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B before the lower court to entitle them to their counterclaim or justify their defence: Woluchem v. Gudi (1981) 5 SC 291 at 326 per Niki Tobi, JSC.
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On issue No. 2, it was submitted that the oral testimony of the only appellants’ witness supports the respondents’ case that at the time of the purported installation of 2nd appellant as head of the family, there was no vacancy in Olofin chieftaincy family: Mcfoy v. U.A.C. (1961) 3 All ER
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C 1169, 1172; Ogolo v. Ogolo (2004) FWLR (Pt. 194) 517, (2004) 2 MSJSC
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174 at 188 to , the effect that you cannot put something on nothing.
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It was also contended, that the only legal means for appellants to get the respondents to render accounts to the family was to institute an action for accounts as provided by law or seek to judicially declare void all sales of
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family land by head of the family without requisite authority: Ekpendu v. Erika (1959) 4 FSC 79; Esan v. Faro (1947) 12 WACA 135; Alli v.
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Ikusebiala (1985) 1 NWLR (Pt. 4) 630; Adejumo v. Ayantegbe (1989) 3
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NWLR (Pt. 110) 417.
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It was equally argued that the respondent’s testimony that the
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proceeds from the sale of the land of the family by the family were utilized by 1st respondent to commence the binding of the Olofin palace
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was not contradicted or challenged. Thus, what is admitted needs no proof: section 75 of the Evidence Act; Okoya v. Santilli (1991) 7 NWLR (Pt. 206) 753.
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The court has been urged upon to dismiss the appeal as totally
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lacking in merits and accordingly uphold the judgment of the lower court.
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The appellants’ reply brief alluded to above was filed on 11 June 2010. Regarding the respondent’s submission (paragraph 5.08(b) of the brief thereof), the appellants referred to paragraphs 6, 7, 8 and 11 of the
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statement of claim and deposition of DW1 (exhibit D1) at pages 333 and 284 - 285 of the record, to the effect that the evidence was unchallenged. That, the said respondents’ submission flies in the face of exhibits D2 - 9.
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The court has been urged to hold that the finding of the lower court was perverse: Mini Lodge Ltd v. Ngeli (2009) 12 MJSC; State v. Ajie
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H (2000) FWLR (Pt. 16) 2831, (2000) 11 NWLR (Pt. 678) 434; Atolagbe v.
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Shorun (1985) 1 NWLR (Pt. 2) 369; Adimora v. Ajufo (1988) 3 NWLR
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(Pt. 80) 1; Akinloye v. Eyiyiola (1968) NMLR 92; Woluchem v. Gudi
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(1981) 5 SC 291; Balogun v. Agboola (1974) 10 SC 111; Kaydee Ventures
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Ltd v. Hon. Min. F.C.T. (2010) 1 - 2 MJSC 129 at 166. A
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Allegedly, the lower court’s failure to consider exhibits D2 - 9 was perverse. The court is urged to reverse that finding.
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On consequences of failure by 1st respondent to render account to the family, it was argued that the traditional remedy is not to sue for
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account but to remove the head of the family: I. O. Smith: Practical B
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Approach to Law of Real Property in Nigeria : Ecowatch Publications
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(Nigeria) Ltd 1999 at 37; Nelson v. Nelson 1 WACA 215 at 216.
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The court has been urged to accordingly allow the appeal, and set aside the judgment of the lower court.
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I h av e acco rd ed an am ple r egar d up on the n atur e an d circumstances surrounding the appeal, the submissions of the learned C
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counsel, contained in their respective briefs of argument vis-a-vis the record of appeal as a whole. Undoubtedly, the three issues formulated in each of the appellants’ and respondents’ briefs of argument are not mutually exclusive. Thus, I have deemed it most appropriate to determine
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the appeal on the basis of the three issues raised in the appellants’ brief. D After all, it’s their own appeal. Moreover, unlike the appellants’ issues, none of the three issues formulated in the respondents’ brief was indicated to have been distilled from any ground of appeal.
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Issues 1 and 2
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Both issues 1 and 2 will be discussed together anon. E
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The first issue raises the vexed question of whether the removal
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of the 1st respondent as the head of Ofin Ile chieftaincy family while the 1st respondent was still alive is valid under Yoruba native law and custom, applicable to Ofin Ile. The extant issue was indicated to have been distilled from ground (a) of the notice of appeal. The second issue,
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on the other hand, raises the question of whether the appellants on F
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preponderance of evidence established the removal of the 1st respondent as the head of the Ofin Ile chieftaincy family and his replacement by 2nd appellant in accordance with Yoruba native law and custom applicable in Ofin Ile. The issue is indicated to have been predicated
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upon ground (b) of the notice of appeal. G
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There is no gainsaying the fact, that this issue is garmaine to the
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apt determination of the appeal. By virtue of the well setout provisions of section 14 of the Evidence Act, customary law pleaded by a party must be established in any of the following two ways, viz :
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by the court taking judicial notice of its existence; or H by the party pleading same, by leading evidence in the
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particular case.
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Oyewunmi v. Ogunesan (1990) 3 NWLR (Pt. 137) 182; Egbuta v. Onuna
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A (2007) 10 NWLR (Pt. 1042) 298 at 315, paragraphs E - F.
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It is pertinent to allude, at this point in time, that most ironically, native law and custom has very often been misconceived as archaic, primitive and savage. However, the truth of the matter is that native law and custom is organic and dynamic. I had a course to pontificate on the
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vexed question of native law and custom in the case of Iroegbu v. Mpama
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(2010) All FWLR (Pt. 549) 1116 at 1151- 1152, paragraphs H - D thus:
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The importance of customary law vis-a-vis Customary Courts to adjudication process or administration of justice system in Nigeria cannot be overemphasized. The sui generis nature of Customary Courts vis-a-vis the practice
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and procedure thereof have also been alluded to above. Regrettably, ever since the emergence of the sociological ideas of Roscoe Pound, with particular regard to the modern
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co ncep t of law in a d ev elop in g society, th e mo st unreasonable and highly misplaced criticism about African
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law (customary and nature is that it is merely custom, and not law).
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However, most cherishingly, concerted efforts have so far been made to sweep away the cobwebs, the myths, prejudices, and philosophical doubts of those who have all
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along denied that there was any such thing as African law, customary or native law. Professor Allott, formerly of the
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School of OrientalAand African Studies, Universityof London, was most pertinent when he wrote, inter alia , thus:
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‘African law (customary law) is, in short, reasoned. It is not arbitrary savage or non-existent. The
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difference between African and Western law is one of degree, not of kind.’
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La w Qu ar terl y Review , 1957, pages 106 - 110; Fundamentals of Nigeria Law , 1989 at page 10 edited by Professor M. A. Ajomo.
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In the instant case, from the pleadings of both parties, it has become rather obvious that the 1st respondent was selected and appointed as head (Olootu) of the Olofin chieftaincy family of Ofin-Ile on 16 January
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1992. And the venue for the selection and appointment of the 1st respondent in question was the residence of the appellant, the Baale
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(traditional head of Ofin-Ile community). Paragraphs 1, 9, 10, 11, 13
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and 28 statement of claim; paragraphs 3, 11, 12 and 14 of the 1st
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respondent’s statement on oath; paragraphs 6, 7, 8, 13, 14, 15 and 17 of the 2nd respondent; exhibit C3, (if the conferment of chieftaincy title certificate,
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dated 19 January 1992); paragraphs 1, 2, and 3 of the statement of the A appellants; and paragraphs 1, 2 and 3 of the DW1’s statement on oath, respectively.
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However, the pertinent question is whether the 1st respondent’s removal as the head of the Ofin chieftaincy family was valid under the
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Yoruba customary law. It is indeed a trite and well established principle, B
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that there are three ways by which a person can be validly recognized as
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a head of a family under Yoruba customary law:
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by operation of law; by election by members of the family concerned; and by direct appointment by the founder of the family.
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Invariably, the most senior member of a family is the head of C each branch of the family thereof. In most cases, he is the eldest child of each wife: Ejilemele v. Opara (2003) 8 MJSC 188 at 205, paragraph A
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per Niki Tobi, JSC; Lewis v. Bankole (1908) 1 NLR 81; Olowu v. Olowu
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(1985) 3 NWLR (Pt. 13) 372 revisited.
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It should be reiterated, that the principle regarding succession D
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under Yoruba native law and custom has long been settled in a plethora of authorities. In Lewis v. Bankole . Most especially, the findings of the privy council are to the effect that:
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when the founder of a family dies, the eldest son called the
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“Dawodu” succeeds to the headship of the family with all E
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that that implies, including residence and the giving of orders
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in his father’s house or compound;
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on the death of the eldest surviving son, the next eldest surviving child of the founder, whether male or female, is the proper person to succeed as head of the family;
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(i i) if thereis going to be any important dealing with family property F
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all branches of the family must be consulted, and representation on the family council is also per stripes according as there are wives with children.
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the division is into equal shares between the respective branches; regard being had to any property already received G by any of the founder’s children during his lifetime; the founder’s grandchildren only succeed to such rights as their immediate parents had in the family property; the founder’s compound or house is usually regarded as
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the “family house” which must be preserved for posterity. H
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Also Falomo v. Onakanmi (2005) 1 NWLR (Pt. 935 - 937) 126 at
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142 - 143, (2006) All FWLR (Pt. 298) 1242.
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At page 376, lines 28 - 32 of the record, the lower court was recorded
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to have held that:
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Implicit in these decision is the fact that under the Yoruba Customary Law, as judicially noticed by the courts it is only on the death of an incumbent head of family that another head of family succeeds to the headship of the
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family. This is in tandem with the case of the claimants.
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According to the applicants’ learned counsel, the above finding
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was partially correct, to the extent that on the death of the founder of the family, the eldest surviving son steps into his shoes as the new head of the family. However, the family may decide otherwise and appoint another person, and that the founder may deny the surviving eldest son
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and appoint another person as the head of the family. That, the traditional remedy of getting rid of the head of the family who mismanages family property is removal: Nelson v. Nelson at 216.
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There’s no doubt, that the principle has been settled, to the effect that where the family finds the head thereof misappropriating the family
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possession or property and squandering them, the only remedy is to remove him and appoint another fit and trust worthy person acceptable to the family: Nelson v. Nelson at 216 per Mitchelin J. Also Akande v.
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Akande (1967) 1 All NLR 102; Fynn v. Gardner (1953) 14 WACA 260. Not surprisingly, the respondents’ learned counsel very much
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appreciates the position of the law on that issue. He however raises the pertinent question as to -
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“Whether the defendants/appellants established their allegation of mismanagement of the family property against the claimants/respondents.”
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The respondents’ learned counsel, without much ado, answered
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the above poser in the negative.
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I have no difficulty whatsoever, in appreciating the fact that there is so far nothing on the record to indicate that the appellants have alleged that the respondent had actually misappropriated or mismanaged any family fund or property. Conversely, what is evident in the record is that
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it was the 1st respondent, who as a matter of fact, filed various suits notice against the appellants. Paragraphs 3, 16, 17 and 21 of the statement
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of claim and paragraphs 4, 16, 17, 18 and 22 of the statement on oath of
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1st respondent and paragraphs 8, 20, 21 and 26 of the 2nd respondent’s statement on oath, respectively.
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In paragraphs 14, 15 and 16 of the statement of claim, it was alleged by the respondents that the 1st appellant had resorted to “unlawful
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sale” of the family land thus resulting in the filing of the court cases against him by the 1st respondent. The court cases filed by the 1st respondent
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against the 1st appellant and others were registered as (i) 10/1994/94; (ii) A 10/1441/2002; (iii) IKD/67/05; and (iv) IKD/60/05, respectively. The appellants had not filed any court case against the respondents. Consequent
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upon the intervention of well meaning personalities, the parties agreed to amicably settle among themselves. Exhibit C4 is the enrolled order, dated
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12 April 2001, endorsed by the trial judge, the Hon. Justice A. A. Adesanya B
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on the following terms -
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In the High Court of Lagos State In the Ikeja Judicial Division Holden at Ikeja
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Between:
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Suit No. ID/1994/94
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Chief Yinusa Agunbiade } (Head of Olofin chieftaincy family) } Otunba Baale Chief Nasiru Badmus} Rafiu Alimi } Plaintiffs Taiwo Mohammed } D Omotayo Sulaimon } Mustapha Yusuf } And
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Chief Saliu Igara } Defendant
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Enrolled Order E
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Upon this suit coming today 22 May 2001. Before the
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Honorable Justice A. A. Adesanya sitting at High Court of Lagos State. And after hearing Mr. P.O. Ige, counsel for the plaintiff while Seyidone holds the brief of Mr. A. F. Okunuga for the defendant. The defendant Mr. P. O. Ige says he has
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withdrawn against Lagos State Government and Local F
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Government. He says they have filed terms of settlement dated 12 April 2001 and filed on the same date. He urges the court to make the terms of settlement the judgment of the court. Mr. Seyidone has no objection.
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A.A. Adesanya G
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The court make the following orders:
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The judgment of this court is as per the terms of settlement dated 12 April 2001.
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Terms of settlement H
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As a result of intervention by respondent and respected
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elders within and outside Ofin-Ile town near Ikorodu and with genuine desires and theneed to have cohesion among members
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of Olofin chieftaincy family, Ofin-Ile near Ikorodu in Lagos State coupled with letter of appeal by the defendant that this matter be resolved amicably out of court, the plaintiff and the
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defendant have agreed to settle the said suit on the following terms:-
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1. The defendant accepts the plaintiffs and the defendant
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are all of Olofin chieftaincy family Ofin-Ile and are
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joint owners of a landed properties of Olofin chieftaincy family in Ofin-Ile near Ikorodu in Lagos State.
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The defendant accepts that he alone and his son C cannot sell any portion of Olofin chieftaincy family land in Ofin-Ile aforesaid but that the family land of
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Olofin ch ief taincy fam ily can be so ld b y the accredited representatives of Olofin chieftaincy family Ofin-Ile including the head of family (1st
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plaintiff herein). That defendant is the Baale Ofin-Ile near Ikorodu
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Lagos State aforesaid.
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The 1st plaintiff Chief Yinusa Agunbiade is the head of Olofin chieftaincy family near Ikorodu Lagos State. 5. That the entire Olofin chieftaincy family land is
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situated lying and being at Ofin-Ile near Ikorodu in
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Lagos State and it is described and delineated on plan No. MA/27S/78 dated 30 May 1978.
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The parties hereto agreed that the land described in 5 above is jointly owned by all members of Olofin chieftaincy family and must be dealt with jointly as family property of Olofin chieftaincy family. That the following persons are authorized to sell portion of Olofin chieftaincy family land for and on behalf of Olofin chieftaincy family namely: 1. Chief Yinusa Agunbiade (Head of family Olofin chieftaincy family) Chief Saliuigara (Baale of Ofin-Ile) Mr. Seyi Alimi - Secretary Otunba Baale Chief Nasiru Badmus 5. Mr. Taiwo Mohammed Alhaji Omotayo Sulaimo Alhaji Fatal Badaru Madam Silifatu Tijani Mr. Karimu Salawa A That the said accredited representatives are also authorized to issue receipt and sign other relevant documents for and on behalf of Olofin chieftaincy family The plaintiffs and the defendant undertake to live in B
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peace, harmony and friendlyrelationship with one another
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at all times.
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That each party shall bear his own cost and that this term of settlement be made the judgment of this honorable court.
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Dated this 12 April 2001 C
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Chief Yinusa Agunbiade Otunba Baale Chief Nasiru Badmus Rafiu Alimi Taiwo Omotayo Sulaimo D Mustapha Yusuf
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A. A. Adesanya Judge
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.....................................
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(Sgd) P.O. Ige Esq. E
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Plaintiffs’ Solicitor
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...............................................
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(Sgd.) Chief Saliu Igara
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(Defendant)
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..................................................
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(Sgd.) A.f. Okunuga, Esq. F
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Defendant’s Solicitor
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As painstakingly alluded to above, it is so obvious that the appellants have failed to discharge their onerous obligation of proving before the lower court that there was any valid charge or allegation of corruption, mismanagement or misappropriation against the 1st respondent, to justify G
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his removal as the head of the family in question. Thus, the answers to both
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issues 1 and 2 are in the negative, they are accordingly hereby resolved against the appellants.
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Issue No. 3
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The third issue raises the vexed question of whether the 1st H
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respondent as the head of Ofin-Ile chieftaincy family has satisfactorily
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rendered account of proceeds of income and expenditure of monies realized from the sale of family land, or whether the respondents are
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estopped from seeking account of the proceedings from the 1st respondent as head of their family. The issue in question was indicated to have been predicated on grounds (c) and (e) of the notice of appeal.
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On this vexed issue, I think I would rather uphold the respondents’ learned counsel’s contention, to the effect that the legal remedy available
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to the appellants to get the respondents to render accounts to the family was to institute an action to render the said accounts, or to seek to declare
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void all sales or transactions regarding the family land by the head of the family without requisite authority. This, I believe is the most civilized and legal option which the appellants ought to have taken advantage of, rather than the criminal and most uncivilized private self help they had shamelessly
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embarked upon. Undoubtedly, as rightly postulated by the respondents’ learned counsel in the brief thereof, the procedure of seeking to compel a head of a family to give an account of the family property has long been
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settled by a plethora of authorities: Ekpendu v. Erika (1959) 4 FSC 79;
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Esan v. Faro (1947) 12 WACA 135; Alli v. Ikusebiala (1985) 1 NWLR
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(Pt. 4) 630; Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417, et al.
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In the instant case, the greatest undoing of the appellants was that they resorted to a private self help, rather than opting for the rule of law by instituting an action in the court of competent jurisdiction to resolve their dispute.
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It is evident from the record of appeal, that the lower court made some specific findings against the appellants regarding their claim for
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accounts of the family property or fund. The court’s findings were predicated upon the strength of the unchallenged evidence of the respondents that the 1st and 4th appellants were members of the land committee under the chair of the 1st respondent. It was indeed in
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evidence, that 1st and 4th appellants executed land sale agreements in conjunction with the 1st and 2nd respondents, as duly established by
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exhibits D3 and D9. Most ironically, the appellants have come to equity with soiled hands. Yet, it’s a settled fundamental principle, that he who comes to equity, must come with clean hands.
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What’s more, the 1st respondent has testified to the effect, inter alia , that the proceeds from the sale of the family land by the family land committee were utilized by the said land committee to commence
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the building of the Oloofin (1st appellant’s) palace. Most unfortunately for the appellants, that piece of evidence has been neither challenged,
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nor contradicted by them. Thus, that piece of evidence is deemed admitted. And it’s a trite fundamental principle of the law of evidence, that
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an admitted assertion of fact needs no proof: section 75 of the Evidence Act; Okoya v. Santilli (1991) 7 NWLR (Pt. 2006) 753.
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Thus, in view of the above postulations, there is every cogent A
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reason for me to equally resolve issue No. 3 against the appellants. And I so hold.
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Hence, having resolved all the three issues above against the appellants, there is no gainsaying the fact, that the appeal is grossly
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unmeritorious, and same is hereby dismissed by me. B
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Consequently, the judgment of the lower court, delivered on 26
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January 2009 is hereby affirmed.
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Parties shall bear their respective costs of litigation.
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Epilogue :
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Before putting down the very last dot to this judgment, I have deemed
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it expedient to reiterate the trite fundamental principle that asjudicial officers, C judges are bound by their judicial oaths to dispense justice to parties without fear, favour, affection, or ill will. On the other hand, lawyers as veritable
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members of the learned and most honourable profession on this planet earth, have an onerous duty to uphold the well cherished tenets and ethics laid down in the Legal Practitioners Act, 2004, the Rules of Professional Conduct D for Legal Practitioners made pursuant to that Act.
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I think, it was Lord Denning, MR, that legendary common law jurist of all time, who likened the famous Francis Bacon to the character portrayed by Robert Louis Stevenson in the strange case of Dr. Jekyll and Mr Hyde.
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Jekyll is portrayed as the ‘good guy’. Hyde, on the other hand, was the bad E
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guy; predisposed to evil. According to Lord Denning, MR:
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So with Francis Bacon. He had an intellect of the first quality. He had superb command of language. He laid down moral principles of high worth. But he failed miserably to keep them himself. His mind was golden but his feet of clay. His fame
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was broken in pieces and carried away with the wind like the F
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image in Nebuchadnezzar’s dream:
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This image’s head was of fine gold, his breast and his arms of silver, his belly and his thighs of brass, his legs of iron, his feet part of clay.
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In the dream a stone smote the image upon the feet and G brake them in pieces, bringing down the whole image. The pieces became like the chaff of the summer threshing floors:
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and the wind carried them away.
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Landmarks in the Law, Oxford University press, 2005 edition at 32; Daniel 2: 32 - 33 (Authorized version). H
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BAGE JCA: I have read in draft the very lucid judgment just delivered by
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All FWLR Agara v. Agunbiade (Pemu JCA) 1925
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my learned brother, Saulawa, JCA and I agree with the reasoning and conclusions. I also abide by the consequential order made that the appeal is grossly unmeritorious and same is hereby dismissed accordingly. PEMU JCA: I have had a preview of the judgment just delivered by my brother, Ibrahim Mohammed Musa Saulawa, JCA and I agree with the
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reasoning and conclusions and I adopt same as mine.
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I also abide by the consequential order made that the appeal is grossly unmeritorious and same is hereby accordingly dismissed while the judgment of the lower court, delivered on the 26 January 2009 coram
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H.A.O. Abiru is hereby affirmed.
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Parties shall bear their own costs respectively.
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Appeal dismissed
