He who asserts, must prove -Ibrahim Tanko Muhammed JSC

JUDGMENT(Delivered by I. T. Muhammad, JSC) The appellant, herein, as plaintiff at the High Court of Kwara State (trial court) holden at Ilorin, took out a writ of summon, claiming some declaratory reliefs against the respondent herein, as defendants. The plaintiff’s statement of claim contains the reliefs sought as follows:i. a declaration that he is […]

JUDGMENT
(Delivered by I. T. Muhammad, JSC)

The appellant, herein, as plaintiff at the High Court of Kwara State (trial court) holden at Ilorin, took out a writ of summon, claiming some declaratory reliefs against the respondent herein, as defendants. The plaintiff’s statement of claim contains the reliefs sought as follows:
i. a declaration that he is the Alagar of Agar
ii. a declaration that the 1st defendant is not the Alagar of Agar in that he is not appoint able since he is not a member of Abdul Salami family of Agar and (ii) his appointer has no power to appoint an Alagar and;
iii. a perpetual injunction prohibiting the 1st defendant from parading himself as the Alagar and the 2nd defendant from so treating him.”
In their respective statements of defence, both the 1st and 2nd respondents, as defendants, at the trial court, denied the claims of the appellant. Full trial including addresses by the parties were taken by the trial court. At the conclusion of hearing, the learned trial judge delivered his judgment on 11/7/2002 wherein he made a finding that the plaintiff had failed to establish a credible case to entitle him have the declarations sought. He accordingly dismissed the plaintiff’s action.
Dissatisfied, the plaintiff appealed to the Court of Appeal, Ilorin Division (the court below). After having reviewed the proceedings of the trial court, counsel’s submissions and the prevailing law, the court below dismissed the appeal.
Dissatisfied, further, the plaintiff/appellant appealed to this court on four grounds of appeal urging this court to allow his appeal.
Briefs were filed by the parties. On the hearing date, learned counsel for the appellant adopted his brief of argument and urged us to allow the appeal. Learned counsel for the 1st respondent adopted the brief filed on behalf of the 1st respondent. He urged this court to dismiss the appeal.
The suit proceeded to full trial. Both sides called evidence in support of their pleadings. At the end of trial, the learned trial judge made his findings and held as follows:
“It appears from the pleadings and the evidence that there is some seeming confusion about the titles interchangeably used in this case. The titles are Alagar of Agar. Alangwa or Alangua of Agar, and, village Head. Alagar of Agar is the Yoruba version of the Fulani title viz Alangua or Alangwa. The two titles are synonymous with the headship of the community. The first appears traditional while the second is an administrative coinage but the two titles never co-exist at Agar. In any case, both Alagar and the Alangua must need be turbaned by the Emir to be recognized as validly appointed. Being in control or in charge of affairs in the village is the essence of the headship and, there always must be a head of the village or community.
I find that in this case Alangwa in Hausa/Fulani means the village head.
In the instant case, the plaintiff claims that he is appointed as the Alagar of Agar by his family while the defendants deny the existence of such an appointment saying that it was he the 1st defendant who was appointed the Alangwa of Agar (Village Head) as shown by Exhibits D1 and D2 written by the Emirate Council and the Moro Local Government respectively. There is nothing to show that the Local Government gave the plaintiff’s appointment its blessing. It is not seriously disputed that Alangwa (village head, Oaudu (District Head) and Emir are titles commonly used in More Local Government. There is no disputing in that both the plaintiff and the 1st defendant are maternally related by blood and that they are both Egba settlers from Abeokuta at Agar a Yoruba Community using Fulani titles. Without any challenge, evidence was given of past Alangwas and that one Ibrahim Lawani was a past Alangwa with his house becoming the only (sole) Alangwa Ruling House. Also without any challenges, the names of the past Alangwa is said to have control over Mogajis who head smaller neighbouring communities and in the case of Agar, there are 17 such communities under Agar. Agar is in Malete District under the control of the Daudu (District Head) of Malete accountable to the Emir of Ilorin. From the evidence, this is the established hierarchy of command (rulership) applicable to Agar. There is no challenge to this vital evidence which complies with pleadings and I believe it.

The plaintiff, according to the evidence, was selected or (if you like) appointed by his family as the Alagar of Agar. He did not plead any native law and custom or tradition and procedure for appointing an Alagar and did not adduce any evidence of any such procedure and compliance therewith. Neither was the plaintiff shown to the 17 communities under Agar as proffered in evidence nor was he taken before the District Head of Malete nor was he taken before the Emir of Ilorin for turbaning. There is no evidence that the Moro Local Government was also informed of the plaintiff’s appointment talkless of the Local Government approving or blessing his appointment as the Alagar of Agar. He did not say when he was appointed i.e. the day, the month and the year.
It is essential that in a case like this, the plaintiff has to plead and lead evidence in support of such facts as the history, native law and custom or tradition and procedure governing the appointment to the traditional stool of Alagar. It is not sufficient to make very bare assertion. The failure to plead the essential relevant facts is fatal to the case of the plaintiff.
For the plaintiff to succeed in seeking this chieftaincy declaration that he was validly nominated and appointed in accordance with the native law and custom relating to Alagar of Agar chieftaincy, the onus is on him to plead and give evidence in line with his pleadings to prove that he was validly nominated and appointed.
Interestingly, both sides agree the turbaning by the Emir of Ilorin of any one appointed as the head of Agar is a necessity. In a situation where the evidence of the adversary favours or supports that of his opponent, any such admission against interest only strengthens the latter’s position.
In this case, the plaintiff has failed to establish a credible case to entitle him have the declarations sought. As for the third claim of perpetual injunction, the 1st defendant has not claimed to be appointed as the Alagar of Agar. The plaintiff has failed to show that the 1st defendant holds himself out to be so appointed. The 2nd defendant was not shown by evidence to have appointed or turbaned the 1st defendant as the Alagar of Agar. An injunction, in the circumstance of this case is, unwarranted.

Consequently, this action is, accordingly, dismissed.”
In affirming the decision of the trial court, the court below held inter alia:
“From all these, it is obvious that if the totality of the evidence adduced by both parties should be put on an imaginary scale, the evidence adduced by the appellant and his witness on one side of the scale, and that of the respondents and their witnesses on the other side, and weighed, the evidence of the respondents will be heavier I agree therefore with the learned trial judge that:
‘In this case, the plaintiff has failed to establish a credible case to entitle him have the declarations sought. As for the third claim of perpetual injunction, the 1st defendant has not claimed to the appointed as the Alagar of Agar. The plaintiff has failed to show that. The1st defendant, holds himself out as to be so appointed. The 2nd defendant was not shown by evidence to have appointed or turbaned the 1st defendant as the Alagar of Agar. An injunction, in the circumstance of this case is unwarranted.’
The lone ground is resolved in favour of the respondent. The appeal fails and is hereby dismissed.
The judgment of Gbadeyan J., delivered on 11/7/2002 in Suit No. KWS/74/98 is hereby affirmed.”

The above holding by the court below makes it to be a concurrent decision of which I have no reason to tamper with unless it is shown to be perverse or contrary to known principles of the law which the appellant failed to show.
My Lords, there is no dispute that this is a civil appeal. There is no dispute also that it is an appeal on chieftaincy matter. The requirements of the law in all civil appeals is that the plaintiff should rely on the strength of his case rather than rely on the weakness of the defendants case. All the law requires from him is to discharge the burden placed on him by the law. As far back as 1976, this court settled the law in the case of Lewis& Peat (NRI) Ltd. v. Akhimun (1976) 10 NSCC 160 at 365, as follows:
“where there is no issue the question of burden of proof does not arise.
I think I have no cause to tamper with the decision of the court below which affirmed the decision of the trial court. I affirm the decision and dismiss this appeal, the respondents each, is entitled to N50,000.00 costs from the appellant.