Chieftaincy Matters

………………………A…………………….

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Ruling of the Kwara State High Court of Justice sitting in Ilorin delivered on the 14th day of October 2016 by Hon. Justice S. M. Akanbi.

The Appellants who were Claimants at the trial Court instituted an action against the Respondents vide a Writ of Summons and Statement of Claim on the 21st Day of May 2015 praying for the following reliefs:
i. A declaration that the only recognized and existing Ruling house in Igboidun is the Onidun Ruling house.
ii. A declaration that the appointment and approval of the 1st Defendant by the 2nd, 3rd and 4th Defendants as the Onidun of Igboidun is wrongful, unlawful, against Igboidun native law and custom of appointing Onidun of Igboidun and therefore null, void and of no effect whatsoever.
iii. A declaration that the nomination and appointment of HRH Oba Yinusa Adebayo Adeyemo Oyedepo III by the Igboidun Kingmakers and Igboidun Community is proper, and in accordance with native law and custom of Igboidun community.
iv. A declaration that having being recommended by the Igboidun Kingmakers and Igboidun community, the 1st Claimant, HRH Oba Yinusa Adebayo Adeyemo Oyedepo III is the person entitled to approval by the 2nd to 4th Defendants as the Onidun of Igboidun.
v. An order compelling the 2nd to 4th Defendants to approve and accept the appointment nomination of the 1st Claimant as the substantive Onidun of Igboidun having performed the public traditional rituals of selection by the community.
vi. An order of perpetual injunction restraining the 1st Defendant from parading himself as Onidun of Igboidun and performing any functions or benefits from any person howsoever or whatsoever of the Onidun of Igboidun.
vii. An interim order of this honourable Court restraining the 2nd to 4th Defendants from treating or according to the 1st Defendant any benefits or functions of Onidun of Igboidun.

Upon being served with the Appellants Claimants Writ of Summons, Statement of Claim and other accompanied Court processes the 1st Respondent Defendant filed his Statement of Defence. The 2nd Respondent Defendant entered a conditional appearance. The 1st and 2nd Respondents Defendants as well as the 3rd and 4th Respondents Defendants filed separate Notices of Preliminary Objection praying that the Appellants Claimants Suit is incompetent having not complied with the provisions of the necessary laws/bye laws that the 4th Respondent Defendant is a Local Government which is statutorily required to be served a pre -action Notice and that the failure of the Appellants Claimants to give a pre action Notice to the 4th Respondent Defendant as statutorily required amounts to a non-compliance with a condition precedent in breach of Section 88(1) and (2) Part XI of the Local Government (Miscellaneous) Law Cap. L8 Laws of Kwara State 2006. And that the jurisdiction of the trial Court can only be invoked when all the required steps have been taken and/or compiled with by a party, who approaches the Court for redress.
On the Preliminary Objection by the two sets of Respondents Defendants, the learned trial Judge held at Pages 252 to 253 of the Record of Appeal as follows:
First,
It is my view that this action is incompetent for non-compliance with Section 88 (1) and (2) part XI of the Local Government (Miscellaneous) Law Cap L.8 Laws of Kwara State.
See: ALHAJI ISOHO DAN AMALE VS. SOKOTO LOCAL GOVERNMENT AND 2 OTHERS (2012) 1-2 MJSC P.1--
Second,
Having failed to comply with the necessary law or statute, this action is incompetent where a statement (Sic) statute provides a legal line of action for determining an issue whether administration (Sic) or chieftaincy matter, the aggrieved party must exhaust all remedies in that law before going to Court. See: CHIEF ISREAL ARIBISALA & OTHERS VS. JOLABI OGUNYEMI & 2 OTHERS (2005) ALL FWLR PAGE 451, OWOSENI VS. FALOYE (2005) 14 NWLR (PART 946) PAGE 719.
Besides, Chieftaincy disputes make provision for settlement or resolution before the institution of action, the breath of which touches on jurisdiction. The Court could only come in after all the steps have been taken. Again this is incompetent and is struck out.
Dissatisfied with the decision/Ruling the Appellants filed a Notice of Appeal containing three (3) Grounds of Appeal into this Court on 05/01/2017.
The relevant Briefs of Argument for the Appeal are as follows:
1. Appellants’ Brief of Argument dated 25/07/2017 and filed on the same day but deemed filed on 09/05/2018. It is settled by B. A. Oladipo, Esq.
2. 1st and 2nd Respondents/ Brief of Argument dated 27/11/2017 and filed on 29/11/2017 but deemed filed on 09/05/2018. It is settled by S. A. Bamidele, Esq.
3. 3rd and 4th Respondents’ Brief of Argument dated 20/02/2018 and filed on 08/03/2018 but deemed filed on 09/05/2018. It is settled by T. A. Hammed, Esq.
4. Appellants’ Reply Brief of Argument to the 1st and 2nd Respondents dated 22/01/2018 and filed on 24/01/2018 but deemed filed on 09/ 05/2018. It is settled by B. A. Oladipo, Esq.
5. Appellants’ Reply Brief of Argument to the 3rd and 4th Respondents dated and filed on 21/03/2018 but deemed filed on 09/05/2018. It is settled by T. A. Gidado, Esq.

………………………B…………………….

Learned Counsel for the Appellants nominated three (3) Issues for the determination of the Appeal. They are:
I. Whether in the peculiar circumstance of this case, the trial Judge was not wrong in striking out the Appellants’ suit in its entirety having held that conditions contained in statute is for the benefit of a person mention in the statute and it can be waived (Ground 1)
II. Whether the trial Court was right in holding that the Appellant did not exhaust the settlement or resolution clause, when there is no statutory provision of such nor is there any evidence of such in the Native Law & Custom applicable in the substantive Native Law and Custom of the parties. (Ground 2)
III. Whether the trial judge was right in holding that the provision relating to the Pre-action Notice cannot be waived, by the benefiting parties particularly in chieftaincy matter being a public right and that the filing of unconditional appearance by the 4th Appellant do not amount to a waiver. (Ground 3)
Learned Counsel for the 1st and 2nd Respondents also formulated three (3) Issues for the determination of the Appeal. They are:
I. Whether the learned trial Judge was not right in striking out the Appellants’ suit in its entirety having failed to serve pre action notice on the 4th Defendant (now 4th Respondent) which is a condition precedent to the nature of the Appellants’ case. (Ground 1)
II. Whether from the circumstances of this case, it could be said that the 3rd and 4th Respondents waived their right on failure to serve them pre action notice (Ground 3)
III. Whether the trial Court was not right in holding that the Appellants did not exhaust the settlement or resolution clause as it is mandatory condition precedent before the Appellants can approach the Court (Ground 2).
Learned Counsel for the 3rd and 4th Respondents on the other hand formulated only two Issues for the determination of the Appeal. They are:
I. Whether the learned trial Judge was right in striking out the Appellant suit having failed to comply with the extant law that required them to serve pre-action notice on the 4th Respondent (Grounds 1 & 3).
II. Whether from the circumstances of this case, the 3rd and 4th Respondents have waived their right on failure to serve them pre action notice (Ground 2).
I have carefully gone through the Record of Appeal and the processes filed by the parties in this case. I am convinced that the following Three (3) Issues which are modifications of the Issues formulated by the Appellants and/or admixture of the Issues formulated by the parties would meet the Justice of this Appeal. They are:
1. Whether the learned trial Judge was right in striking out the Appellants case in its entirety for failure to serve pre-action notice on the 4th Respondent. (Ground One)
2. Whether from the circumstances of the case the 3rd and 4th Respondents waived their right on failure to serve them pre-action notice (Ground Three).
3. Whether the trial Court was right in holding that the Appellant did not exhaust the settlement or resolution clause, when there is no statutory provision of such nor is there any evidence of such in the Native Law and custom applicable in the substantive law and custom of the parties (Ground Two)
In considering the above three (3) Issues, the submissions of the Appellants will be placed on one side of the scale of Justice while the submissions of the two sets of Respondents that is the 1st and 2nd Respondents and the 3rd and 4th Respondents shall be treated in one piece as the submissions of the Respondents. This is for the reason of the shared common interest between the two sets of Respondents and also for convenience of treatment of issues.
On Issue One, learned Counsel for the Appellants submitted that the learned trial Judge was wrong in striking out the Appellants Suit in its entirety having previously held that conditions contained in statutes is for the benefit of a person in the statute and it can be waived.
He referred to the case of: MOBIL PRODUCING NIG. UNLTD VS. LASEPA (2003) FWLR (Pt. 137) 1029 at 1054 and submitted that the learned trial Judge departed from the correct position of law by striking out the Suit in its entirety, for failure to serve pre-action notice, in compliance with Section 88 (1) and (2) of the Kwara State Local Government Law Part XI Cap L8 Laws of Kwara State 2006.
He submitted that the lack of service of pre-action notice has nothing to do with the Appellant’s cause of action because it is not a substantive requirement but rather a procedural requirement in which a party who is to benefit from the requirement is entitled.
Appellants’ Counsel referred to the case of EZE VS. OKECHUKWU (2003) FWLR (PT. 140) PAGE 1710 at PAGES 1727- 1728 and emphasized that non compliance with the requirement of pre -action notice cannot/does not abrogate the Appellants right to approach the Court or defeat their cause of action, so far the subject matter falls within the jurisdiction of the Court.
At best, said Counsel, the trial Court may abate the proceeding as against the 4th Respondent pending compliance to pre-action notice.

………………………C…………………….

He submitted that the abatement of the proceedings against the 4th Respondent will not substantially affect the claim of the Appellant.
He referred to the case of: XINET SINGAPORE LTD. VS. M.S.L. (NIG) LTD (2014) ALL FWLR (PT. 715) 305 at 330 and submitted that as long as the Appellants Claimant cause of action subsists, the non service of pre-action notice on the 4th Respondent cannot defeat or abrogate the right of the Appellant to approach the Court.
He referred to the cases of:
AKINSETE VS. KILADEJO (2013) ALL FWLR (PT. 707) 726 at 737-738;
OJUKWU VS. YAR’ADUA (2009) ALL FWLR (PT. 482) PAGE 1065; and MOBIL PRODUCING NIG. UNLTD VS. LASEPA (2003)Â FWLR (PT. 137) 1029 at 1054.
on the meaning of cause of action and submitted that from the claim of the Appellants as endorsed on their Statement of Claim and all the averment therein, allegations were shown from the face of it that a real issue or serious issues exist that were capable of leading to the grant of a relief sought by the Appellants.
He reiterated that the Provision of Section 88 (1) and (2) of the Local Government (Miscellaneous provisions) Law Cap L8 Part XI of the Laws of Kwara State 2006 only cater for and is limited to the 4th Respondent (Offa Local Government Council) and the rest Respondents cannot say that they are not subjected to the jurisdiction of the Court.
He reproduced the said provision and submitted relying on the case of A-G, KWARA STATE VS. ADEYEMO (2017) ALL FWLR (Pt.868) 616 at 645 that the Provision of Section 88 (1) and (2) of the Local Government (Miscellaneous Provision) law is not ambiguous and should therefore be given its ordinary meaning.
Appellants’ Counsel referred again to the case of: MOBIL PRODUCING NIG. UNLTD VS. LASEPA (Supra) at PAGE 1052 and submitted that pre-action notice is a procedural requirement and not an issue of substantive law, which will affect the right of the Appellant and that it is not an integral part of the process of initiating proceedings in a law Court.
He urged us to resolve the Issue in favour of the Appellants.
Learned Counsel for the Respondent on the other hand submitted that the failure to serve pre-action notice on the 3rd and 4th Respondents in accordance with Section 88 (1) and (2) of the Local Government (Miscellaneous Provision) Law of Kwara State is a fundamental defect which rendered the Appellants action incompetent.
That in the instant case, the consequence of the Appellants not complying with laws is detrimental to the action instituted and it robs the Court jurisdiction to entertain the action as instituted pending compliance.
They referred on this to the case of NIGERCARE DEVELOPMENT CO. LTD. VS. ADAMAWA STATE WATER BOARD & OTHERS (2008) ALL FWLR (PT. 422) 1052 at 1072.
They submitted that there is no how the learned trial Judge will strike out the Appellants’ case only against the 3rd and 4th Respondents without affecting the entire suit. This,Counsel said is because by the time Paragraphs 6, 8, 11, 12, 22, 25, 26, 27, 28, 30, 32, 33, 37, 41, 43, 44, and 45 of the Appellants’ Statement of Claim and Claims II, IV, V and VII all of which are in relation to the 3rd and 4th Respondents are struck out, there would not be any reasonable cause of action against the 1st and 2nd Respondents.
They reminded us that even in the case of: XINET SINGAPORE LTD. VS. M.S.L. (NIG) LTD (2014) ALL FWLR (Pt. 715) 305 at 330 relied upon by the Appellants, Hon. Justice Iyizoba opined thus:
-- in other words, there is no total absence of jurisdiction such that the suit could not be continued against other parties. The suit could be continued against other parties provided there is a reasonable cause of action disclosed against the remaining parties in the absence of the party struck out for non service of pre-action notice.

Respondents Counsel submitted further that by the nature of the Appellants suit being a chieftaincy matter, the 4th Respondent, Offa Local Government Council is a necessary party without whose presence the suit cannot be effectually and effectively determined.

………………………D…………………….

They referred to the case of: DR. (PRINCE) MOSES OYELEKE TANIMOWO VS. PA EZEKIEL ODEWOYE & OTHERS(2008) ALL FWLR (PT. 424) 1513 at 1542-1543 and submitted that both the 3rd and 4th Respondents are necessary parties who appointed and installed the 1st Respondent as Onidun of Igboidun, their presence are therefore crucial to the resolution of the Appellants suit.
The Respondents further submitted that the cases of:
AKINSETE VS. KILADEJO (Supra);
OJUKWU VS. YAR’ADUA (Supra);and
MOBIL PRODUCING OIL UNLTD VS. LASEPA (Supra)
relied on to support their argument that cause of action still subsist if the names of the 3rd and 4th Respondents are struck out are not apposite to the case at hand.
Respondents Counsel reiterated their position that a pre-action notice though a procedural step must be taken before an action is filed in Court. That it is a condition precedent but does not mean that it impedes the constitutional right of access to Courts. A party is only qualified to approach the Court when he has done what the law requires him to do.On this, they (Respondents) referred to the cases of:
AMADI VS. N.N.P.C (2000) FWLR (Pt. 9) 1527 at 1553;
ALHAJI ABBA ASHEIKH VS. ALHAJI KAKA MALLAM YALE (2012) ALL FWLR (Pt. 625) 297 at 319;
NNPC VS. TIJANI (2007) ALL FWLR (PT. 344) 129 at 140.
The Respondents concluded on Issue one that the order of striking out of the Appellants suit was most appropriate because at the time of instituting the action, the Appellants suit was premature.
On this, they referred to the case of KASUNMU VS. SHITTA BEY (2007) ALL FWLR (PT. 356) 741 at 783 and urged us to resolve the Issue in favour of the Respondents.
I must point out in respect of Issue One that the Courts are agreed that a pre-action notice is a procedural requirement of jurisdiction and not a substantive matter of jurisdiction.
Despite this general agreement, precedents on pre-action notices are not unanimous on the effect or consequences of upholding an objection to a suit based on non filing of pre -action notice by a Claimant.
Three possible consequences are discernable from the views expressed by the Courts.
The first is that failure on the part of a Plaintiff to serve a pre – action notice on the Defendant gives the Defendant a private right, solely for his benefit, to insist on such notice before the Plaintiff may approach the Court.
See e.g.
MOBIL PRODUCING NIG. UNLTD VS. LASEPA (2003) FWLR (PT. 137) 1029 at 1054 (per Ayoola, JSC),
EZE VS. OKECHUKWU (2003) FWLR (PT. 140) 1710 at 1727-1728 (per Uwaifo, JSC)
The second view which sounds like a mid way approach, between two seemingly extreme views is that:
There is no total absence of jurisdiction such that the suit could not be continued against other parties. The suit could be continued against other parties provided there is a reasonable cause of action disclosed against the remaining parties in the absence of the party struck out for non service of Pre-action notice.
See e.g.
XINET SINGAPORE LTD. VS. M.S.L. (NIG) LTD (2014) ALL FWLR (Pt. 715) 305 at 330 (per Iyizoba, JCA).
The third view which seems to have gained more acceptance in recent times is that failure to serve pre-action notice puts the jurisdiction of the Court in abeyance and any suit commenced in contravention of the provisions of such law is wrongly commenced and should not be entertained by any Court.
See e.g.
NIGERCARE DEVELOPMENT Co. LTD VS. ADAMAWA STATE WATER BOARD & OTHERS (2008) ALL FWLR (PT. 422) 1052 at 1072.
A full statement of the law as it is now reads as follows;
Non-compliance with the requirement of a pre- action notice does not take away the constitutional right of access to the Courts from the litigants, neither does it defeat his cause of action. If the Subject matter is within the jurisdiction of the Court, failure on the part of the Plaintiff to serve a pre-action notice on the Defendant gives the Defendant a private right to insist on such notice before the Plaintiff may approach the Court. In effect, non service of a pre action notice merely puts the jurisdiction of a Court on hold pending compliance with the pre-condition
See:-
ETI-OSA-LOCAL GOVERNMENT VS. JEGEDE (2007) 10 NWLR (PT. 1043) 537;
ARO VS. LAGOS ISLAND L.G (2002) 4 NWLR (PT.757) 385; and
NNONYE VS. ANYICHIE (2005) 2 NWLR (PT. 910) 623.

………………………E…………………….

In the instant case, the learned trial Judge was right to have struck out the Appellants Suit in its entirety for failure to give pre-action notice to the 3rd and 4th Respondents by virtue of the Provision of Section 88 (1) and (2) of the Local Government (Miscellaneous Provisions) Law of Kwara State 2006.
Issue One is resolved against the Appellants.
On Issue Two, learned Counsel for the Appellants submitted on the authority of the cases of:
DANJOR VS. ATTORNEY GENERAL BENUE STATE (2002) FWLR (PT. 121) 1971 at 1987;
LADEJOBI VS. OGUNTAYO (2001) FWLR (PT. 45) 780 at 797;
OKULATE VS. AWOSANYA (2000) FWLR (PT. 25) 1666 at 1686; and
MOBIL PRODUCING NIG. UNLTD VS. LASEPA (SUPRA) at 1056 that
The right to be served with a pre-action Notice does not fall within the category of rights which cannot be waived.
In relation to the present case, Appellants’ Counsel submitted that the 3rd and 4th Respondents filed an unconditional Memorandum of Appearance on 3rd June, 2015. That by so doing waive their right to pre-action notice and can no longer insist on their right by the application of 24th June 2015 brought three (3) weeks after.
He referred again to the case of: EZE VS. OKECHUKWU (2003) FWLR (PT. 140) 1710 at 1728 and submitted that by the filing of an unconditional appearance by the 4th Respondent, it has by its action acquiesce, repudiate its right to insist on pre-action notice.
He urged us to hold that by the filing of unconditional appearance, by the 4th Respondent, it is conclusive indication of its intention to waive its right, and it is estopped from re-probating that intention.
That having waived its right to a pre-action notice, the Court was wrong in striking out the suit of the Appellants.
The Respondents on the other hand submitted on Issue Two that the 3rd and 4th Respondents could not be said to have waived their right on non-service of pre-action notice by the Appellants merely because they filed an unconditional appearance. This, they said is because non-service of pre-action notice goes to the jurisdiction of the Court and can therefore be taken at any stage of the proceedings. They (Respondents) submitted that the two sets of Respondents that is the 1st and 2nd Respondents and the 3rd and 4th Respondents filed Notices of Preliminary Objection challenging the competence of the suit for non compliance with the Provisions of Section 88 (1) and (2) of the Local Government (Miscellaneous Law) Kwara State. The Respondents submitted that the objection is enough challenge on none service of the pre-action notice on the 4th Respondent.
They (Respondents) referred to the decision of the Supreme Court in DOMINIC E. NTIERO VS. NIGERIAN PORTS AUTHORITY (2008) ALL FWLR (PT. 430) 683 at 703-704 and submitted that the submission of the Appellants Counsel that entering of unconditional appearance amount to waiver is highly misplaced.
The Respondents distinguished the case of: EZE VS. OKECHUKWU (Supra) relied upon by the learned Counsel for the Appellants on the ground that nowhere in that case did the Supreme Court mention the entering of types of appearances as amounting to waiver of non-service of pre-action notice.
I do not think it is right for the learned Counsel for the Appellants to suggest that the entering of appearance by the 3rd and 4th Respondents amounted to waiver of non-service of pre-action notice.
In the first place and by way of correction for the learned Counsel for the Appellants there is nothing in law called unconditional appearance
A Counsel in a case could put up appearance or when dissatisfied with processes could put up conditional appearance the formulation of unconditional appearance in this appeal is merely a coinage of the learned Counsel for the Appellants.
Be that as it may, a party to a case could not be said to have waived his right to the commencement of an irregular proceeding merely for the reason of an appearance in the case.
A party to a proceeding can only be said to have waived his right to an irregular proceeding when he sleeps over his right after the proceedings have commenced or long commenced. In the instant case, the two sets of Respondents objected timeously to the commencement of proceedings by filing Preliminary Objections that the 4th Respondent was not served pre-action notice by the Appellants.
By their Notices of Preliminary Objection, the Respondents moved early enough to intimate the Court that they did not intend to waive non-service of pre-action notice on the 4th Respondent by the Appellants.

………………………F…………………….

Clearly, therefore, the Respondents in this case did not in any form waive the right of non-service of pre-action notice on the 4th Respondent.
The Supreme Court in the case of: DOMINIC E. NTIERO VS. NIGERIAN PORTS AUTHORITY (2008) ALL FWLR (PT. 430) 688 at 703-704 held thus:
… The effect of non service of a pre-action notice, where it is statutoryly required is only an irregularity which however renders an action incompetent. It follows that the irregularity can be waived by a Defendant who fails to raise it either by motion or plead it in the statement of defence. If a Defendant refuses to waive it and he raises it, then the issue becomes a condition precedent which must be met before the Court could exercise its jurisdiction.
In the instant case, the 4th Respondent could not be said to have waived its right to be served with pre-action notice when All the Respondents timeously filed Notices of Preliminary Objection to the Appellants suit on account of non-service of pre-action notice on the 4th Respondent. Also, a Defendant could not be said to have waived his right to be served with pre-action notice merely by filing memorandum of appearance in an action instituted against him.
Issue two is resolved against the Appellants.
On Issue Three, learned Counsel for the Appellants submitted that the trial Court was wrong in holding that every Chieftaincy dispute makes provision for settlement or resolution before the institution of action.
He submitted that it is trite law that in Chieftaincy matter where there is no formal declaration as regards to the issue of appointment and selection or the stool is not recognized by law or upgraded, the native law, custom and tradition of the community or people will be strictly adhered to in selection and appointment of any person to the vacant stool.
On this, Counsel referred to the case of: AKANDE VS. ADISA (2012) ALL FWLR (PT.635) 250 at 275 and submitted further that the stool of Onidun of Igboidun is not regulated by the Chiefs (Appointment and Deposition) Law Vol. 1 Cap. C9, Laws of Kwara State 2006 but rather regulated purely by the Native Law, Custom and tradition of Igboidun Community.
Appellants’ Counsel distinguished the facts of the case of:
ARIBISALA VS. OGUNYEMI (2005) ALL FWLR (PT. 252) PAGE 451 relied on by the learned trial Judge from the facts and circumstances of the present case. He submitted that the stool in contention in the Aribisala’s case relied on by the Court is a statutory stool regulated by the Chiefs Law Ondo State 1978 but that the case in hand deals with ungraded stool which is not regulated by the Chiefs (appointment and deposition) Laws of Kwara State 2006 or any other law.
He referred to the case of: TIMOTHY ADEKO ADEFULU & 12 ORS VS. BELLO OYESILE & 3 ORS (1989) ALL NLR PAGE 698 at 720 and submitted that a dispute in the stool of Onidun of Igboidun which is not a graded stool and not regulated by the Chiefs Law of Kwara State should be resolved in accordance with the Native Law, Custom and Tradition of the people of Igboidun.
He submitted that the trial Court was wrong to dismiss the Suit of the Appellants on the ground that they failed to exhaust all remedies in the law before going to Court when there is no such thing disclosed in the pleadings of the parties as regards the stool of Onidun.
He submitted that the finding of the trial Court that the Appellants failed to exhaust all remedies provided for by the law or statute is perverse because there is no evidence or facts before the trial Court to show that there is a law or statute that regulate the stool of Onidun of Igboidun. He stated that a perverse finding has been defined by the Court in case of:IRONKWE VS. UBA PLC(2017) ALL FWLR PT. 879 PG 650 @ P. 684, PARAS A-B as thus:
A perverse finding is a finding which is merely speculative and not based on any evidence before the Court. It is a finding that is unreasonable and unacceptable because it is wrong and completely outside the evidence before the Court.
He further submitted that the uninhibited right of every citizen to approach the Court seeking a relief or determination of any question as to his civil right is guaranteed by the Constitution of the Federal Republic of Nigeria which should not or cannot be prevented by any domestic arrangement or remedies. He referred to the case of: MUSENDIKU VS. LIADI (2012) ALL FWLR PT. 611 PG 1609 @ P. 1619, PARAS A-B where the Court held thus:
By the Provisions of Section 6 (6) (b) of the Constitution of the Federal Republic of Nigeria 1999,the uninhibited right of every person to go to Court seeking a determination of any question as to his civil rights and/or obligation is guaranteed. For any condition to the exercise of that constitutional right to be effective; it must be constitutional, legally and expressly provided.
He concluded on Issue Three that the Chiefs Law of Kwara State 2006 being not applicable in this suit should not be used to justify the position of the Lower Court to prevent the Appellants from approaching a Court of law.
He urged us to resolve the Issue in favour of the Appellant.

………………………G…………………….

The Respondents more especially through the 1st and 2nd Respondents contend on Issue Three that the learned trial Judge was right to have held at Page 253 of the Record that Chieftaincy disputes make provision for settlement or resolution before the institution of action, the breadth of which touches on jurisdiction and that the Court could only come in after all steps have been taken. The Respondents further supported this general proposition by the learned trial Judge with the cases of:
AYENI VS. OBASA (2012) ALL FWLR (PT. 611) 1509 at 1533;
and PRINCE OLUSEGUN ADEOLA & OTHERS VS. MR. ISAAC ADEYINKA AYEOBA & OTHERS (2009) ALL FWLR (PT. 458) 355.
They (Respondents) submitted that apart from the pleadings filed by parties wherein the roles of the appointing Royal families, the King makers, Traditional Council and the Local Government Council were mentioned, the Provisions of Sections 34 and 36 of the Local Government (Miscellaneous Provisions) Law Cap. L8 Laws of Kwara State 2006 state the duties of the 2nd Respondent in the area relating to Chieftaincy matters thus:
36(a) ----------------
(b) ---------------–
(c) ---------------–
(d) ---------------–
(e) ---------------–
(f) ----------------
(g) To determine questions relating to Chieftaincy matters and offices and where such matters are within the exclusive prerogative of the Emirate or Oba Chief to give advice there on where so requested.
The Respondents submitted that the 2nd Respondent herein has a duty to play in matter relating to Chieftaincy including where there is dispute relating to selection, appointment and approval. They (Respondents) added that the cases of:
TIMOTHY ADEKO ADEFULU & 12 ORS VS. BELLO OYESILE & ORS. (Supra);
IRONKWE VS. UBA PLC (Supra); and
MUSENDIKU VS. LIADI (Supra).
cited and relied on by the Appellants Counsel are irrelevant and inapposite to the case at hand.
In his Reply Brief, learned Counsel for the Appellants submitted that the reason for the decision to exhaust domestic remedies before approaching the Courts in the cases of:
AYENI VS. OBASA (2012) FWLR (PT. 611) 1509 at 1503; and
PRINCE OLUSEGUN ADESOLA & OTHERS VS. MR. ISAAC ADEYINKA AYEOBA & ORS (2009) FWLR (PT. 458) 355 at 378.
relied upon by the Counsel to the Respondents is that those cases were based on Section 13(2) and (5) of the Chiefs Edict of 1984 (as amended) of Ondo State as applicable to Ekiti State. But, that the Onidun of Igboidun under contention is not regulated by any state declaration being an ungraded stool.
That, in fact, in the case of: AYENI VS. OBASA (Supra) at Page 1534, it was held that:
the Respondents did not exhaust domestic remedies before deciding to ventilate their grievances in Court - it was therefore incompetent as the statutory remedies were yet to be fully explored.
He submitted that the resolution clause being a statutory provision that does not govern the stool in dispute, it cannot be said to be mandatory for the Appellants to exhaust before commencing the present suit.
On another wicket, Appellants Counsel submitted that by the combine reading of Section 33, 34 and 36 of the Local Government (Miscellaneous Provision) Law, Kwara State with Section 7 of Chiefs (Appointment and Disposition) Law Cap. C9 Laws of Kwara State, the functions of the Oba/Emir or the traditional Council as the case may be is to give advice to Local Government and not to serve as dispute resolution body in Chieftaincy matters.
He submitted that if the makers of the law had intended to give the Emir/Oba or Traditional Council the power to serve such purpose as a mediating body before any person can approach a law Court in respect of un-graded stool, it would have been stated clearly in the Chief Laws of Kwara State and the procedure provided clearly to meet such demand.
Appellants Counsel concluded that it is a general principle of law that where judicial or administrative power is granted by a statute, procedure to meet such would ordinarily be provided but, in respect of Sections 33, 34 and36 of the Local Government (Miscellaneous Provision) Law of Kwara State, it is obvious that the position of the Traditional Council is advisory to the government in Authority.
Also, that this is strengthened by Section 7 (2) and (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
I do not think it is right for the learned trial Judge to hold generally and in respect of the Appellants case that every Chieftaincy dispute makes provision for settlement or resolution before the institution of action .
The starting point for the position of the law in this regard is that the issue as to who is qualified to ascend to any traditional stool or throne is subject to the Customary Law and traditions of the people concerned which in turn is a question of fact to be proved by calling evidence unless

………………………H…………………….

same has made it to attain the legal status of notoriety so as to be judicially noticeable. Also, that where there is no formal declaration in respect of the appointment and selection in a particular Chieftaincy, the custom and tradition of the people concerned must be strictly adhered to.
MAFIMISEBI VS. EHUWA (2007) 2 NWLR (PT. 1018) 385 SC;
OLOWU VS. OLOWU (1985) 3 NWLR (PT. 1018) 385 SC; and
UMORU VS. ZIBIRI (2003) 11 NWLR (PT. 832) 647 SC.
The simple contention of the learned Counsel for the Appellants in this regard is that there is no formal provision regulating the internal or customary resolution of the ungraded Chieftaincy stool of Onidun of Igboidun outside of the custom and tradition of the people of Igboidun.
That for one to be sure that the custom and tradition of Igboidun has such practices, it must be established by calling evidence and cannot be assumed.
It seems to me in this respect that the learned Counsel for the Appellants is right. The learned trial Judge in his own Judgment did not demonstrate the statute if any that compels the exhaustion of local and/or administrative remedies before approaching the Courts in relation to the un-graded stool of the Onidun of Igboidun. Clearly, the authorities referred to by the learned trial Judge in his Judgment particularly the cases of:
ARIBISALA VS. OGUNYEMI (2005) ALL FWLR (PT. 252) PAGE 451; and
OWOSENI VS. FALOYE (2005) ALL FWLR (PT. 284) 220
deal with graded Chieftaincies and not un-graded Chieftaincy as in the present case.
Indeed, the need to exhaust administrative remedies in those cases became mandatory because statute provides a legal line of action.
Similarly, neither the Provision of Sections 34 and 36 of the Local Government (Miscellaneous Provision) Law Cap. L.8 Kwara State 2006 nor the cases of:
AYENI VS. OBASA (2012) ALL FWLR (PT. 611) 1509 at 1533;
and
PRINCE OLUSEGUN ADEOLA & OTHERS VS. MR. ISAAC ADEYINKA AYEOBA & OTHERS (2009) ALL FWLR (PT. 458) 355
relied upon by learned Counsel for the 1st and 2nd Respondents are relevant to the case in hand.
The crux of the matter in relation to Issue Three is that the stool of Onidun of Igboidun is regulated not by statute but by the native law and custom of Igboidun community.
Therefore, the provision for mandatorily exhausting domestic remedies before access to the Courts is not applicable until proved by evidence.
The objection by the Respondents in the instant case was taken by Notices of Preliminary Objection and there was no proof of any tradition compelling the Appellants to exhaust domestic remedies before approaching the Courts.
Issue Three is resolved in favour of the Appellants.
Three Issues were formulated for the determination of this Appeal. Issues One and Two were resolved against the Appellants while Issue Three was resolved in favour of the Appellants.
For this reason, the Appeal is allowed in part.
The portion of the Ruling of the learned trial Judge which in addition struck out the Appellants Claimants case for failure to exhaust domestic remedies is hereby set aside.
However, the portion of the Ruling of the learned trial Judge striking out the Appellants Claimants case for failure to serve pre-action notice on the 4th Respondent is hereby affirmed.
There shall be no Order as to costs.
HAMMA AKAWU BARKA, J.C.A.: The judgment of my learned brother MOJEED ADEKUNLE OWOADE JCA. was made available to me in draft. I wholly agree with the reasoning and conclusions reached thereby allowing the appeal in part as in the lead judgment. I also abide on order made as to costs
BOLOUKUROMO MOSES UGO, J.C.A.: I had the privilege of reading in draft the judgment of my learned brother MOJEED ADEKUNLE OWOADE, J.C.A. and I am in complete agreement with his reasoning and conclusion that this appeal fails except for issue 3 which succeeds but still does not turn its fortunes in any significant way. At the end of the day the contested ruling of the lower Court turned on appellants’ failure to serve the required pre-action notice on the 3rd and 4th respondents who are by the nature of the case undoubtedly necessary parties to the entire action
While appellant relied on the decision of the Supreme Court (Ayoola J.S.C.) in the case of Mobil Producing Nigeria Unlimited v. Lagos State Environmental Protection’ Agency (LASEPA) & Ors. (2003) FWLR (PT 137) 1029, (2003) LPELR-1887 (S.C.) where it was decided that the requirement of service of pre- action notice is for the benefit of the party required by statute to be so served so he can waive it and is deemed to have waived it if he does not raise it in his defence, 3rd and 4th respondents anchored their objection on the later decision of the same Court inNigercare Development Co. Ltd v. Adamawa State Water Board (2008) ALL FWLR (PT 422) 10p2, (2008);34-NSCQR 226 where it was held that because service of pre-action notice, where required by statute, is a condition precedent to exercise of jurisdiction by the Court, it can be raised at any time and the failure to plead it does not affect its efficacy. Incidentally, in Nigercarethe issue of service of pre-action notice was not raised by the defendant in its pleading or even in final address, it was rather the trial judge who while writing judgment stumbled on it and asked counsel to address him on it after which he declined jurisdiction and struck out the case on that ground. The apex Court on appeal by the plaintiff held, unanimously, that the trial judge was in order. By reason of the decision in Nigercare this Court (Ejembi Eko, J.C.A. as he then was) was even prompted to declare in Port Harcourt Refining Co. Ltd v. Okoro (2012) ALL FWLR (PT 606) 466 @ p. 485 – 466 that the long-revered authority of Katsina Local Authority v. Makudawa (1971) 1 NMLR 100 which had held that a condition precedent like service of pre- action notice is deemed waived if not pleaded, which case was incidentally copiously cited and considered in Nigercare, no longer represents the position of the law Much as the objection in Mobil Producing Nigeria, Unlimited v. Lagos State Environmental Protection Agency (LASEPA) & Ors. was raised by another party in the action instead of Lagos State Environmental Protection Agency (LASEPA) who was entitled to it, unlike this one where it was raised directly by 3rd and 4th respondents who the Kwara State Local Government Law requires that pre-action notice be served, it seems to me that Nigercare conflicts with Mobil Producing Nigeria Unlimitedwhen read between the lines as to precondition for raising objection of non-service of pre-action notice. Nevertheless, the former, Nigercare, having been decided by the apex Court ih 2008 is five years more recent than Mobil Producing Nigeria Unlimited of 2003. By rules of stare decisis this Court cannot pick and choose between the two cases. We are bound by the more recent of the two. That, the apex Court made clear in Osakue v. F.C.E. (Tech.) Asaba (2010) ALL FWLR (Pt. 52) 1601 @ 1619& 1622-1625 (2010) 2-3.S.C.(PT 111) 158 and Obiuweubi v. C.B. N. (2011) NWLR (PT 1247) 465 @ 501 (S.C.), (2011) LPELR 2185 (S.C.). For this little embroidery of the lead judgment of my learned brother Owade, J.C.A., which judgment I here adopt, I also dismiss this appeal and order that parties bear their costs.

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.

…………………….B…………………….

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.

…………………….C…………………….

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.

…………………….D…………………….

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
Particulars
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.

…………………….E…………………….

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

…………………….F…………………….

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.

…………………….G…………………….

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:
O.14 R.29:
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?
A. Yes.
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.

…………………….H…………………….

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

…………………….I…………………….

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
1. Estoppel
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.

…………………….J…………………….

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.

…………………….K…………………….

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).”

…………………….L…………………….

“[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.
Italics mine.
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

…………………….M…………………….

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.

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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.

…………………….B…………………….

will at the trial of the suit, rely on the notice of appeal and motion for stay of execution filed by the 1st defendants and other respondents at the Court of Appeal and same are hereby pleaded.
22. …….
23. ….
24. …..
25. The 3rd defendant cannot register, enter and/or list the 1st defendants name in the register of Chieftaincy titles in Delta State as Iyase of Ogwashi-Uku until the Supreme Court have made pronouncement on the appeal before it.
26. The claimant avers that the 3rd defendant cannot register, enter and/or list the 1st defendants name in the register of Chieftaincy titles in Delta State as Iyase of Ogwashi-Uku until the Supreme Court have made pronouncement on the appeal before it.
27. Any registration or enlistment of the 1st defendant in the Official Gazette of the Delta State Government purporting to recognise the 1st defendant as the Iyase of Ogwashi-Uku before the determination of the appeal pending before the Supreme Court of Nigeria will gravely undermine the decision of the apex Court.
The appellant, as the 2nd defendant in the trial Court, filed a statement of defence and a counterclaim on 30/06/2015 in which he counterclaimed for:
(a) a declaration that the claimants claim to be the Iyase of Ogwashi-Uku is illegal, null and void as the title was conferred on him by a person who was not an Obi/Traditional Ruler of Ogwashi-Uku under Ogwashi-Uku native law and custom and/or in flagrant breach of the Rule of Law.
(b) an order of perpetual injunction restraining the claimant from parading or continuing to parade himself as the Iyase of Ogwashi-Uku community, addressing himself as such, allowing or permitting himself to be addressed as such or taking any action whatsoever which only the Iyase of Ogwashi-Uku or chiefs of Ogwashi-Uku community are entitled to take including dressing as a chief of Ogwashi-Uku or using an umbrella to cover himself during the annual Inne festival of Ogwashi-Uku and the associated procession to and from the palace of the traditional ruler of Ogwashi-Uku and/or other parts of Ogwashi-Uku during the festival or other traditional festivals in Ogwashi-Uku.
(c) any other order or such further orders as the honourable Court may deem fit to make in the interest of justice.
The respondent filed a notice of preliminary objection on 12/08/2015 whereby he sought:
An Order striking out and/or dismissing the 2nd defendant/respondents counter claim dated 15th day of June, 2015 as constituted in that this Honourable Court lacks jurisdiction to entertain same.
By a motion on notice filed on 12/08/2015, the respondent prayed for an order of the lower Court setting down for argument the points of law raised in paragraphs 19, 20, 21, 25, 26 and 27 of his statement of claim and the application was granted vide a ruling delivered on 21/01/2016. The respondents points of law and his preliminary objection to the appellants counterclaim were set down and argued together. After hearing the respondents and the appellants arguments on the respondents said points of law and preliminary objection, the trial Court delivered its ruling on 02/02/2016.
In its ruling, the trial Court stated on pages 365 366 of the record of appeal that:
This Court will adopt the following issues in resolving the two applications:
1. Whether the claimant/applicant has made out a case based on the points of law raised in paragraphs

…………………….C…………………….

19, 20, 21, 25, 26 and 27 of the statement of claim to entitle it(sic) to the reliefs sought in his statement of claim.
2. Whether this Honourable Court lacks jurisdiction to enter and determine the reliefs sought by the 2nd defendant in his counter claim.
The trial Court resolved the above two issues in favour of the respondent and concluded as follows:
This action succeeds. It is the order of this Court as follows:
1. Any registration/purported listing of the 1st Defendants name in the Register of Recognized Chiefs of Delta State Government and/or Official Gazette of Delta Government is null, void and of no effect, there being a pending appeal at the Supreme Court on who is the legally installed Iyase of Ogwashi-Uku Kingdom which has not been determined in favour of any party.
2. The entering of the 1st Defendants name as the Iyase of Ogwashi-Uku Kingdom in the Register of Recognized Chiefs in Delta State and/or Official Gazette of Delta State by the 3rd Defendant is preemptive, null, void and of no effect the appeal filed by the 1st Defendant challenging the validation of the installation of the Claimant as the substantive Iyase of Ogwashi-Uku Kingdom not having been determined.
3. The 1st and 2nd Defendants, whether by themselves, their agents, privies and servants are restrained from holding out or parading the 1st Defendant as the Iyase of Ogwashi-Uku Kingdom until determination of the appeal pending before the Supreme Court of the Federal Republic of Nigeria on who is validly installed Iyase of Ogwashi-Uku.
4. The 3rd Defendant, his privies or servant are restrained from recognizing and/or registering or listing the name of the 1st Defendant or anyone else in the Register of Recognized Chiefs of Delta State Government and/or Official Gazette of Delta Government as the Iyase of Ogwashi-Uku until determination of the appeal filed by 1st Defendant at the Supreme Court challenging the validity of the claimant as the substantive Iyase of Ogwashi-Uku Kingdom.
5. The 3rd Defendant, his privies, agents or servants are directed by this Court to immediately delist/expunge the 1st Defendants name from the Register of Recognized Chiefs of Delta State Government and/or Official Gazette of Delta Government where such registration exists, there being a pending appeal before the Supreme Court on who is validly installed Iyase of Ogwashi-Uku between the Claimant ad the 1st Defendant.
6. The 3rd Defendant, his cronies, subordinates, and/or anyone else having authority to register Chieftaincy in Delta State are to forthwith deregister and/or expunge the 1st Defendants name from the register of Recognized Chiefs of Delta State Government and/or Official Gazette of Delta Government as any registration in disregard of the pending appeal before the Supreme Court will be null, void and of no effect.
7. The Counter-claim fails because this Court lacks jurisdiction to determine the reliefs sought by the 2nd Defendant in his counter-claim.
The appeal is against the said ruling.
The appellants brief was filed on 10/02/2017 and in it learned counsel formulated the following six issues for determination:
1. Whether the lower Court was right to have declined jurisdiction to entertain and determine the appellants counter-claim on the ground that the reliefs sought therein are on all fours with the reliefs sought and obtained in Suit No. O/9/2005. (Ground 1).

…………………….D…………………….

2. Whether the lower Court was right to have granted the reliefs sought by the respondent without taking or hearing evidence from the parties. (Ground 2).
3. Whether the trial Courts grant of the reliefs sought by the respondent in the statement of claim without considering the averments in the appellants statement of defence sufficiently or at all or giving the appellant the opportunity to presenting his defence is not a breach of the appellants right to fair hearing. (Ground 3).
4. Whether the lower Court was right to grant the reliefs sought by the respondent in his statement of claim without a prayer to that effect and without first giving the appellant the opportunity to address it on the propriety or otherwise of granting same. (Ground 4).
5. Whether the lower Court was right to have raised, suo motu, the issue of whether the respondent made out a case based on the points of law raised in paragraphs 19 21 and 25 27 of the statement of claim to entitle him to the reliefs sought in the statement of claim and resolved same in favour of the respondent without first calling on the parties to address it on the issue. (Ground 5).
6. Whether it is the Supreme Court where Appeal NO. SC/55/2011 is pending that has jurisdiction to entertain the complaint made by the respondent in this suit and make any order/s it deems necessary to maintain the integrity of the appeal before it and ensure that the parties thereto do not take any action that would render whatever decision it would arrive at nugatory. (Ground 6).

The respondents brief was filed on 10/04/2017 but it was deemed as properly filed on 07/06/2017. Learned counsel distilled only two issues for determination:
i. Whether having regard to the peculiar circumstances of this case, the learned trial judge was right in setting down the issues of law raised in paragraphs 19, 20, 21, 25, 26 and 27 of the respondents statement of claim for hearing and finally determining the suit by granting the reliefs sought by the respondent in his statement of claim without calling for oral evidence? (Distilled from grounds 2, 3, 5, & 6).
ii. Whether the learned trial judge was wrong to have declined jurisdiction to entertain the counter-claim of the appellant as presently constituted and conceived and by so doing denied the appellant the right to fair hearing? (Distilled from grounds 1 & 4).

The issues framed by the learned counsel for the respondent have properly encapsulated all the six issues identified by the appellant and rightly condensed them into two. I adopt the issues as formulated by the learned counsel for the respondent to determine this appeal.
ISSUE NO. 1
Whether having regard to the peculiar circumstances of this case, the learned trial judge was right in setting down the issues of law raised in paragraphs 19, 20, 21, 25, 26 and 27 of the respondents statement of claim for hearing and finally determining the suit by granting the reliefs sought by the respondent in his statement of claim without calling for oral evidence?

Learned counsel for the appellant stated that the first two reliefs sought by the respondent in his suit are declaratory reliefs which can only be granted after a Court has satisfied itself from the evidence led and not on the basis of admissions or default of defence or pleadings. In support of this submission, learned counsel referred to the cases of Jikantoro v. Dantoro (2004) All FWLR (Pt. 216) 390 at 409 410 and Nwokediaso v. Onuoha (2001) FWLR (Pt. 59) 1326.

O.W. Chibuogwu, Esq., learned counsel for the appellant relied on Sections 16 and 18(1) of the Evidence

…………………….E…………………….

Act, 2011 and the case of Oyediran v. Alebiosu (1992) 7 SCNJ (Pt. 1) 187 at 194 and submitted that:
The decision is also wrong because the claimant did not lead any evidence to prove that he was conferred with the Iyase title according to Ogwashi-Uku native law and custom as he claimed, the appellant having denied same. It is trite law that every alleged custom, except where judicially noticeable, has to be proved by evidence.
In his response, Prof. Oludayo G. Amokaye, learned counsel for the respondent contended that Order 22 Rule 2 of the Delta State High Court (Civil Procedure) Rules, 2014 gives the Court the power, upon an application of a party, to set down for hearing and to determine at anytime a question of law raised in his pleadings. He argued that the lower Court was right to have decided the action in limine there being no need to call any evidence and since to do otherwise will amount to wasting the precious time of the Court. To back up this argument, learned counsel for the respondent referred the Court to the cases of Mills v. Renner (1990) 6 WACA 144 at 145 and Elabanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76 at 138 139.

Without wasting time, the cases relied on by the learned counsel for the respondent in submitting that the trial Court was right to have decided the respondents action or claim in limine without calling any evidence are grossly inapplicable to this case. For example, in the case ofMr. Popoola Elabanjo & Anor. v. Chief (Mrs.) Ganiat Dawodu (2006) 15 NWLR (Pt. 1001) 76 the application was by the defendant asking the trial Court to dismiss the suit on the ground that it lacked jurisdiction to entertain the action which was statute barred.
In this case, the purported points of law were raised by the respondent and the application was also made by the respondent, who was in fact the plaintiff or claimant in the case.
The law is well settled, by a litany of decisions of this Court and the Supreme Court, that the Court cannot grant a declaratory relief on the admission of a defendant. See G.E. Intl Operations (Nig.) Ltd. v. Q-Oil & Gas Services Ltd. (2016) 10 NWLR (Pt. 1520) 304. Bluntly put, a party seeking a declaratory relief has a burden to establish his case both by his pleadings and by evidence. See Hon. James Abiodun Faleke v. Independent National Electoral Commission & Anor. (2016) 18 NWLR (Pt. 1543) 61 at 149 per Kekere-Ekun, JSC where the Supreme Court stated that:
The onus was on the appellant seeking declaratory reliefs to establish his case by his pleadings and by evidence led in support thereof on the preponderance of evidence.
In other words, a plaintiff or claimant who seeks a declaratory relief has a duty to establish his claim by evidence. See Okereke v. Umahi (2016) 11 NWLR (Pt. 1524) 438.

The trial Court, without more, was wrong to have granted the respondents claims, which were declaratory and injunctive reliefs, without hearing evidence from the claimant/respondent.
I resolve this issue in favour of the appellant and against the respondent.
ISSUE NO. 2
Whether the learned trial judge was wrong to have declined jurisdiction to entertain the counter-claim of the appellant as presently constituted and conceived and by so doing denied the appellant the right to fair hearing?

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I do not wish to dissipate much judicial energy and time on this issue, because the respondents preliminary objection to the appellants counterclaim was anchored on the following two grounds:
1. The relief sought by the 2nd defendant/respondent in his counter claim as presently constituted (i.e. who is the rightful person as between the claimant and the 1st defendant to take over the traditional title of Iyase of Ogwashi-Uku after the demise of the previous Iyase sometime in May, 2004) had already been resolved in favour of the claimant by the Court of Appeal in Appeal No. CA/B/94/2009 and unless upturned by the Apex Court, it remains the law and cannot be re-litigated.
2. The 2nd defendants counter claim as presently constituted amounts to a gross abuse of the process of this Honourable Court.

In its ruling, the trial Court reproduced the reliefs in Suit No. O/9/2005, the decision of the trial Court and decision of the Court of Appeal in respect of Appeal No. CA/B/94/2009 which emanated from the judgement of the trial Court. All the parties agree that an appeal in respect of whether or not the respondent is the Iyase of Ogwashi-Uku is now pending before the Supreme Court.
The trial Court, in its ruling of 02/02/2016, stated inter alia, that:
…..careful perusal of the reliefs sought and obtained in this Court which has been set aside by the Court of Appeal is on all fours with the counter claim, no matter the beauty of the construction.
Since the issue of whether the claimant/respondent is the Iyase of Ogwashi-Uku is still pending before the Supreme Court, it is better for the parties to tarry and await the decision of the Supreme Court. If the appellant here was interested in Suit No. O/9/2005 and Appeal No. CA/B/94/2009 and was not made a party to those cases, there is a remedy open to him. That remedy is to apply to seek leave to appeal or join the existing appeal in the Supreme Court as an interested party, since he is now aware of the pendency of the case on the issue of whether the claimant/respondent is the Iyase of Ogwashi-Uku.
For the foregoing reasons, I agree that the appellants counterclaim was rightly struck out by the trial Court.
I resolve Issue 2 in favour of the respondent and against the appellant.
CONCLUSION
Having resolved Issue 1 in favour of the appellant and Issue 2 against him, the appeal succeeds only in part and it is allowed in part.
The decision of the trial Court upholding the claimants/respondents points of law and granting the reliefs sought by him in Suit No. O/11/2015 is hereby set aside.
The decision of the trial Court striking out the appellants/2nd defendants counterclaim in Suit No. O/11/2015 is hereby upheld.
Suit No. O/11/2015 between CHIEF MIKE CHUKWUKA NWAUKONI v. COLLINS UCHE AFUWAH & 3 ORS is hereby remitted to the High Court of Delta State, which upon a directive of the Honourable Chief Judge of Delta State shall be heard and determined on its merits, without the 2nd defendant s/appellants counterclaim, by any Judge other than Okpu, J.
There is no order for costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the opportunity of reading before now the lead judgment just delivered by my learned brother M.A.A. ADUMEIN, JCA.
The reasoning and conclusion contained therein are quite apt, succinct and in tandem with the relevant

…………………….G…………………….

laws and authorities on the issue in contention. I have nothing extra to add and I agree that the Appeal succeeds in part. I also allow same in part.
I abide by the consequential orders made in the lead judgment inclusive of that of costs.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother, MOORE ASEIMO ABRAHAM ADUMEIN, JCA. The facts are well set out and the issues canvassed in the appeal ably considered. I therefore agree with the reasoning and conclusion that the appeal succeeds only in part and it is allowed in part.
I abide by the consequential orders made therein, including that for cost.