BEST LAW REPORT SUBSCRIPTION PRICE!!

  • Yusuf v. Toluhi
  • 119
  • 2002-09-09
  • ₦ 200
  • Buy Now

Yusuf v. Toluhi

MICHAEL YUSUF

OBA PATRICK OWOLEKE OBADOFIN

OBA JOEL K. A. OBAJEMU

CHIEF ABEJIRIN OBADOKA

CHIEF TOWOENI OBARULA

V

MR. SAMUEL AFOLABI TOLUHI

CHIEF FIDELIS OLOWOHUNWA

( THE OBARINNAKO OF OWELAND )

COURT OF APPEAL

( ABUJA DIVISION )

MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, JCA ( Presided )

ZAINAB ADAMU BULKACHUWA, JCA

ALBERT GBADEBO ODUYEMI, JCA ( Read the Lead Judgment )

CA/A/73/99

TUESDAY, 11TH DECEMBER, 2001

CUSTOMARY LAW - Customary law - Aplicability of a particular customary law - Establishing same - Whose duty

CUSTOMARY LAW - Native Law and Custom - Proof of - Need therefor When can be dispensed with

EVIDENCE - Burden of proof - On whom lies - Section 136, Evidence Act

EVIDENCE - Customary law - Establishing the applicability of a particular customary law - Whose duty

EVIDENCE - Evidence Act, section 132 therof - Application of

PLEADINGS - Allegation of fact not denied - Effect thereof


PLEADINGS - Documents referred or relied on in an action - Need to plead and tender - Section 132, Evidence Act

PLEADINGS - Essence and aim of

PLEADINGS - General traverse - Adoption of - When permissible and when not

PRACTICE AND PROCEDURE - Document referred to or relied on in an action - Need to plead and tender - Section 132, Evidence Act

PRACTICE AND PROCEDURE - Pleadings - General traverse - Adoption of - When permissible and when not

Issues:

1.            Whether the trial court was right to hold that only the Obaro has the prerogative to confer chieftaincy title in Oweland and the blessings of the 2nd and 3rd respondents constitute in Owe Custom the concurrence of the three Ololus.

2.            Whether the pleadings and the evidence established in this case with regard to the Owe Custom on the appointment of an Obani of Oweland justified the reference by the learned trial Judge to the Latin maxim “qui prior est tempore potior est jure”.

Facts:

The case in the lower court had to do with the appointment of a successor to the title of Obani of Oweland, Kabba in the Kabba/Bunu Local Government Area of Kogi State after the death of Chief S. M. Fadile - the last Obani of Oweland.

The respondents, as plaintiffs at the Kabba Judicial Division of the High Court of Kogi State sued the appellants, as defendants, for declaratory and injunctive reliefs amongst a declaration that by the custom and tradition of Oweland, the 1st respondent is entitled to be conferred with the title of Obani of Oweland and that the purported conferment of title of Obani of Oweland on the 1st appellant by the 2nd and 3rd appellants on 12/12/97 is in violation of the custom and tradition of Oweland, and is therefore null and void.

It was the case of the respondents before the lower court, that following the death of the last Obani, Chief S. M. Fagbile, the 1st respondent, according to the custom and tradition of Oweland promptly applied by letter to the Obaro as it is the prerogative of the Obaro of Kabba to confer all traditional titles in Oweland including the Obani to indicate his interest in taking the title, that the Obaro signified his acceptance on the same day by letter and directed that 1st respondent should notify 2nd and 3rd appellants of the Obaro’s acceptance.  It was the respondents further contention that in compliance with the directive of the Obaro, he sent delegations to 2nd and 3rd appellants, neither of whom showed any opposition.  That subsequently, in violation of the customs of Owe/Kabba land, the 2nd and 3rd appellants in concert with 4th and 5th appellants went to the house of the 1st appellant and unlawfully conferred on the 1st appellant on 12/12/97 the title of Obani of Oweland, and that 1st appellant has since been wearing the traditional red cap to signify that he has been conferred with the title of Obani.

At the conclusion of evidence and after taking submission of counsel the trial Judge found for the respondents in terms of the reliefs claimed in the writ of summons duly repeated in the statement of claim.

The appellants being dissatisfied with the judgment appealed to the Court of Appeal.  The Court of Appeal considered the provisions of Order 25  rules, 9, 13, 14 of the High Court of Kogi State (Civil Procedure) Rules which provides thus:-

“Rule 9 - Every allegation of fact in any pleading, not being a petition or summons, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the opposing party, shall be taken to be admitted, except as against an infant, lunatic or person of unsound mind not adjudged a lunatic.

Rule 13 - It shall not be sufficient to deny generally the facts alleged by the statement of claim, but the defendant shall deal specifically with them, either admitting or denying the truth of each allegation of fact seriatim, as the truth or falsehood of each is within his knowledge, or (as the case may be) stating that he does not know whether any given allegation is true or otherwise.

Rule 14(1)   When a party denies an allegation of fact he shall not do so evasively, but shall answer the point of substance.

 (2) And when a matter of fact is alleged with diverse circumstances it shall not be sufficient to deny it as alleged along with those circumstances, but a full and substantial answer shall be given.”