The respondents herein as plaintiffs in the High court sued the appellants, as defendants, for:
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i
A declaration that the purported appointment and installation of the 2nd defendant as the Baatisin of ILESA by the 1st defendant on or about the 28th day of March, 1986 is wrongful, invalid and repugnant to the customary law relating to the BAATISIN Chieftaincy and is, therefore, null and void and of no effect whatsoever.
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ii
A declaration that the 4th plaintiff having been duly selected and presented to the Ogboni of Ilesa in accordance with native law and custom by the entire BAATISIN Chieftaincy family of Ilesa as their BAATISIN elect in or about the month of March, 1986 is the proper and rightful person or candidate for consideration and approval by the 1st defendant for appointment and installation, as BAATISIN of Ilesa.
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iii
An injunction restraining the 2nd defendant from acting or parading himself as the BAATISIN of Ilesa.
The case of the appellant that the 2nd appellant was validly appointed and installed as the Baaatisin of Ilesa, his appointment and installation having been done by the first appellant.
On the other hand, the respondents contended that the appointment and installation of the 2nd appellant was invalid as it did not conform with the customary law applicable to the Baastisin Chieftaincy Family of Ilesa. It was further contended by the respondents that the 1st appellant only approves the appointment of a new Baatisin while the installation of the new Baatisin is done by the Ogboni at Aralu - a place in front of the Ogboni's palace. The respondents further contended that the 4th respondent having gone through the due customary law process of the appointment and installation of Baatisin is the new Baatisin of Ilesa.
At the conclusion of the evidence, the learned trial Judge found proved, the customary law applicable to the Baatisin Chieftaincy as pleaded and canvassed by the respondents, gave judgment in their favour and declared the 4th respondent as having been duly selected and presented to the Ogboni of Ilesa and thus the proper person to be installed forthwith as the Baatisin of Ilesa. In particular, the learned trial Judge held:
"In consequence, I hereby give judgment in favour of the plaintiffs against 1st and 2nd defendants, jointly and severally, the following terms:
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i
A declaration is hereby granted that the purported appointment and installation of the 2nd defendant as BAATISIN OF ILESA by the 1st defendant on or about the 1st day of April, 1986 is wrongful, invalid, repugnant to the customary laws relating to BAATISIN Chieftaincy and is therefore NULL and VOID and of no effect whatsoever.
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ii
A declaration is hereby granted that the 4th plaintiff has been duly selected and presented to the Ogboni of Ilesa in accordance with Native Law and Custom by the members of the BAATISIN Chieftaincy Family of Ilesa, entitled to do so, as their BAATISIN ELECT sometime in the month of March, 1986 and that having been properly presented by the Ogboni to the 1st defendant who approved of his candidature and blessed him, he is the proper person to be installed forth with as the BAATISIN of Ilesa at ARALU in the front the Ogboni's compound at Ilesa ..."
The appellants felt dissatisfied with the judgment of the High Court and appealed to the court of Appeal.
In the consideration of the appeal, the court of Appeal examined the provisions of sections 14(1), (2) & (3) 134 (1) (2) 137(1) & (2) of the Evidence Act. They provide:-
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14(1)
A custom maybe adopted as part of the law governing a particular set of circumstances if it can be noticed judicially or can be proved to exist by evidence. The burden of proving a custom shall lie upon the person alleging its existence.
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14(2)
A custom may be judicially noticed by the court if it has been acted upon by a court of superior or co-ordinate jurisdiction in the same area to the extent which justifies the court asked, to apply it in assuming that the persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration.
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14(3)
Where a custom cannot be established as one judicially noticed it may be established and adopted as part of the law governing particular circumstances by calling evidence to show that persons or the class of persons concerned in the particular area regard the alleged custom as binding upon them.
Provided that in case of any custom relied upon in any judicial proceedings it shall not be enforced as law if it is contrary to public policy and is not in accordance with natural justice, equity and good conscience."
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134(1)
"Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
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134(2)
When a person is bound to prove the existence of any fact it is said that the burden of proof is on that person.
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137(1))
"In civil cases the burden of first proving the existence or non existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
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137(2))
If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with."
