1. IN THE HIGH COURT OF KWARA STATE
IN THE ILORIN JUDICIAL DIVISION
HOLDEN AT ILORIN
SUIT NO: KWS/242/20114
BETWEEN:
ALHAJI DARO ALFA UMAR ………………… CLAIMANT
(The Biogbanegi of Gbane)
AND
1. H.R.H ALHAJI USMAN UMAR SARIKI
(The Emir of Yashikira) DEFENDANTS
2. MALLAM LAFIA SAKO
CLAIMANT’S FINAL WRITTEN ADDRESS
0.1:00 INTRODUCTION
01:01 The Claimant’s claim is as contained in the writ of summons and statement of
claim dated and filed on the 9th
day of August, 2012 by the Claimant.
(i) A DECLARATION that title of “Bio Gbanegi” is the same as “CHIEF OF
GBANE” and the traditional roles attached to the “Chief of Gbane” is the
same being performed by any incumbent “Bio Gbanegi” from the time
immemorial.
(ii) A DECLARATION that the resolution and declaration made by the 1st
Defendant on the 11th
May, 2012 stripping off the customary, traditional and
conventional roles of Biogbanegi and the creation of new title of Albarika
Yashikira or Duadun Gbane to take charge of those responsibility(ies) or
roles as uncustomary, untraditional, unconventional, null and void.
(iii) A DECLARATION that allowing the 1st
Defendant to give effect to his
resolution/declaration of 11th
May, 2012 would alter the customary heritage
of Biogbanegi and distort the historical lineage of Gbane Village of Yashikira
District, Baruten Local Government Area, Kwara State.
(iv) THE SUM OF N2,000,000:00k (Two Million Naira) only being general
damages for the psychological/mental agony experienced or suffered by the
claimant as a result of the action of the 1st
Defendant.
(v) A PERPETUAL INJUNCTION restraining the 1st
Defendant, his servants,
heirs, privies, personal representatives and any person(s) deriving authority
from him from stripping the claimant of his traditional and conventional
roles, duties and benefits as Biogbanegi, and/or from giving recognization to
the 2nd
Defendnat as Albarika Yashikira or Daudun Gbane.
(vi) A PERPECTUAL INJUNCTION restraining the 2nd
Defendant, his heirs,
privies, personal representative and/or any person(s) deriving authority from

2. him from parading himself as Albarika Yerima or Daudun Gwane or from
discharging any of the roles ascribed to the said newly created title.
01:02 My Lord, in proving his case, the Claimant called (5) five witnesses and
tendered the following documents which were marked as EXHIBITS A; A1-
A3; B,C and D; My Lord, Sir,
(i) EXHIBIT ‘A’ is the letter of application for the post of Head
(Chief) of Gbane written by the Claimant dated 15th
March, 2012.
(ii) EXHIBIT ‘A1’ is the curiculum vitae of the Claimant, an annexture
to EXHIBIT ‘A’.
(iii) EXHIBIT ‘A2’ is the Genological tree of the Biogbanegi Dynasty
equally an annexture to EXHIBIT ‘A’.
(iv) EXHIBIT ‘A3’ is the summary of Bio-Gbanegi Dynasty of Gwane of
about 14th
century, equally an annexture to EXHIBIT ‘A’.
(v) EXHIBIT ‘B’ is the copy of the letter written by the Claimant’s
Counsel, O. Yahaya, Gobir, Esq., dated 13th
July, 2012 addressed to
the 1st
Defendant.
(vi) EXHIBIT ‘C’ is the copy of the reply to the Claimant’s Counsel’s
letter (EXHIBIT ‘B’) dated 28/7/2012 with reference No.
H.RH/EV/2012/38 written by the 1st
Defendant.
(vii) EXHIBIT ‘D’ is the poster of the Fidau Prayer of Mohammed Sero
who died on the 7th
March, 2012.
01:03 The Defendant’s Statement of Defence filed vide an application dated
28/1/2013 for extension time to file same out of timeand deemed same as
properly filed and served. The Defendant called three(3) witnesses and
tendered a document marked as EXHIBIT ‘E’. The said EXHIBIT ‘E’ is the
letter of appointment of the 2nd
Defendant issued by the Baruten Local
Government dated 08/05/2012.
02:00 REVIEW OF EVIDENCE
02:01 PW1. The Claimant gave evidence as PW1, he adopted his statement on
oath dated the 9th
August, 2012 and tendered documents which were marked
as EXHIBIT A; A1;-A3;B,C and D by the Honourable Court. Under cross-
examination, PW1, stated that any interested candidate to the stool of
Gbane would forward his application letter to the 1st
Defendant with a copy
to Baruten Local Government to put them on notice. PW1 further stressed
that it is not the duty of the 1st
Defendant to appoint the Chief of Gbane
but rather that of the Kingmakers of Gbane. PW1 admitted that he was
turbaned by the 1st
Defendant as Biogbanegi and that the office of
Biogbanegi and Gbanesumo are one and the same as there is no different
between the two.

3. 02:02 PW1 equally stated that in his letter of application (EXHIBIT ‘A’) he applied
for the post of Head (Chief) of Gbane which was what the words
“Biogbenegi” and “Gbanesuno” translates to in English Language. He further
stated that the picture in EXHIBIT ‘D’ is not that of the last Village Head
of Gbane.
02:03 PW2. PW2 is by name Adamu Banni who also adopted his written statement
on oath dated 9th
August, 2012 as his evidence in this case. Under cross-
examination, he stated that he is one of the community leaders in Gbane and
that the picture in EXHIBIT ‘D’ did not reflect the last Gbanesuno of
Gbane, he said that the Claimant was the 1st
Biogbenegi to be appointed by
the 1st
defendant. He finally said that the office of Biogbanegi and
Gbanesuno are the same. The only difference is the pronounciation.
02:04 PW3. Mr. Abraham Boni Gomuna testified as PW3 and he equally adopted his
statement on oath dated 9th
August, 2012 . Under cross-examination he
stated that there has been seven(7) Gbanesuno so far appointed and that
he only witnessed the appointment of only two of the seven; these two were
woru Gore and weru sika while others were appointed before he was born. He
further stated that the two(2) Gbanesuno he witnessed their appointment
were appointed with the consent of Denosuno.
02:05 PW3 further stated that the ruling Head of Gbane is called Gbanesuno. He
disagreed that there is a difference between the title of Biogbenegi and
Gbanesuno. He said that the 2nd
Defendant was recognized by Baruten Local
Government as the head of Gbane and that the Claimant was disallowed from
functioning as Biogbengi.
02:06 PW4 PW4 is one Sabi Yarima Gbane who adopted his statement on oath
dated 9th
August, 2012. He stated under cross-examination that he was 75
years old and that he had witnessed the appointment of three people as
Chief of Gbane and the three are (i) Weru Gare, (ii) Wenengobi and the
Claimant herein. He further stated that he is among the kingmakers in
Gbane. He said that Denosuno was the Head of Yashikira District to whom
recommendation on appointment were formerly being made before the 1st
Defendant recently assumed the same position.
02:07 PW4 further stated that Biogbanegi is also the same person known as
Gbanesuno and that the Chief of Gbane is also known as Gbanesuno.
02:08 PW5 Mallam Musa Borgu gave evidence as PW5 and upon adoption of his
statement on oath he sated under cross-examination he is 66 years old and
that he witnessed the appointment 2(two) chiefs as chief of Gbane who were
Wenengobi and Worugore. He stated that the most suitable candidate is
usually appointed from the Gbane Royal Family. He further stated the

4. history of Chiefs of Gbane starting from Batia started over 600 years ago.
He said that the history of Gbane was narrated to him by an old woman who
is late.
03:00 DEFENDANT’S EVIDENCE
03:01 DW1 Ahaji Ahmed Bio Suleiman who testified as DW1 adopted his
statement on oath dated 7th
February, 2014. He tendered a document which
was marked as EXHIBIT ‘E’. EXHIBIT ‘E’ is the letter of appointment of
the 2nd
Defendant issued by Baruten Local Government Area dated
08/05/2012.
03:02 Under cross-examination, he stated that he is not an indigene of Gbane and
that he does not live in Gbane village. He stated that Batia was the founder
of Old-Gbane but does not know the founder of new Gbane. He, therefore,
admitted that the people in the old Gbane are the same people in the new
Gbane.
03:03 He further stated that he know Sidi Umar who was the 1st
“Wassangari”
(Prince of Yashikira) to be appointed to ruled Gbane. That he know
Mohammed Sero who ruled Gbane as “Kotopru Karu” and that the title of
“Gbanesuno” did not reflect in EXHHIBIT ‘D’ .
03:04 DW1 stated further that after the death of Mohammed Sero, the 1st
Defendant set-up a committee to bringout fact about historical background
of Gbane regarding cheiftainancy affairs. That he acted as secretary to the
committee which submitted his report to the 1st
Defendant and it was after
the submission of the committee’s report that the 2nd
Defendant was
appointed as Daudun Gbane which was part of the recommendation of the
committee. In his answer to the question under cross-examination, he
admitted that the Baruten Local Government authority would recognized any
name that received the approval of the 1st
Defendant. He admitted that
appointment into the stool of Gbane is not by committee.
03:05 DW2. Alhaji Ganiyu Alabi equally adopted his statement on oath dated the
29/1/2013 as his evidence in the case. In response to the question put to
him under cross-examination, he stated that he is not an indigene of Gbane
but a Yoruba by tribe from Kishi in Oyo State. He admitted that he was not
present when the appointment of the Claimant and the 2nd
Defendant were
made and as a result he would not be able to know the procedure adopted.
03:06 He stated that he is 71 years old and witnessed the appointment of Sidi
Umar and that before the appointment of Sidi Umar, there was no Chief in
Gbane. He admitted that the word “SUNO” is popularly used by every title
holders in Batonou in addition to their real title, like Emir of Okuta who is
equally known as “OKUTA SUNO” Emir of Gwanara who is known also as

5. “Gwanara Suno” and that Gbane Village is not left out where the word
“Suno” is added to the title, that is “Gbanesuno”.
03:07 He further stated that he only know little about history of Gbane and that
1st
Defendant would approved the appointment and send the approved name
to the Local Government for official recognition.
03:08 DW3 The 2nd
Defendant gave evidence as DW3; he adopted his statement on
oath. Under cross-examination, he stated that he is the present “DAUDUN
GBANE”, he stated that he is not an indigene of Gbane and that he knew
little about Gbane history. He stated that has never heard of any title in
Gbane which is known as Biogbenegi. That Mohammed Sero died as
Kotoprukaru.
03:09 He further stated that he is a prince of yashikira (wassangari) and that his
appointment as Daudun Gbane was sequel to the recommendation of the
committee set-up by the 1st
Defendant, he finally stated that the Baruten
Local Government recognized him as Daudun of Gbane because 1st
Defendant
sent his name forward.
04:00 ISSUE FOR DETERMINATION
04:01 The Claimant will adopt the 3(three) issues formulated by the defendant and
formulate one(1) additional issue to make (4)four issues.
The issues are:
(i) Whether in view of traditional evidence led by the parties at the
trial, the traditional title of Biogbanegi and Gbanesuno or village
head of Gbane are separate, distirct and independent of each
other.
(ii) Whether having regard to the age-long existing and prevalent
custom and practice of Gbane people, the Claimant’s appointment
as Biogbanegi of Gbane can be equated with the 2nd
Defendant
appointment as Gbanesuno or village head of Gbane to confer on
him the right to exercise the powers, functional and duties of the
office of village Head of Gbane being exercise by the 2nd
Defendant at all material time sequel to the 2nd
Defendant’s
appointment as the village head of Gbane.
(iii) Whether having being duly appointed as the village head or
Gbanesuno, the 2nd
Defendant can be precluded from performing
the function and duties of his own office under the prevalence
custom and tradition of Gbane people, and
(iv) Whether having regard to the totality of the evidence before this
Honourable Court, the Claimant is entitled to the claim before the
court.

6. 05:00 ARGUMENT OF ISSUE(S)
05:01 ISSUE I Whether in view of traditional evidence led by the parties at the
trial, the traditional title of Biogbanegi and Gbanesuno or village head of
Gbane are separate, distirct and independent of each other.
05:02 We submit with due respect that there are ample evidence before this
Honourable Court to the effect that the stool of BIOGBANEGI of Gbane is
the same as GBANESUNO of Gbane.
05:03 It is our further submission that for a customary law to have been said to
be proved, evidence must be led to proof the facts alleged unless and until it
has been judicially noticed. In this case, the claimant (PW1) in his additional
statement on oath attached to the reply to statement of defence stated
that the titles of Biogbnegi and Gbanesuno are one and the same and both
are used interchangeable and that the word “Chief of Gbane” or “Head of
Gbane” are English translation of the words biogbengi and Gbanesuno and
does not have any bearing with the custom or tradition of Gbane. Refers to
paragraphs 3, 4 and 5 of the additional statement on oath of PW1 (Claimant)
attached to the reply to statement of defence.
05:04 PW1 maintained his stance when he stated under cross examination that he
agreed that he was turbaned as Biogbanegi by the 1st
Defendant and that
there is no difference between the title of Biogbanegi and Gbanesuno. He
further stated that Gbanesuno translates to Chief of Gbane and that he
applied for the post of Head of Gbane in Exhibit “A”.
05:05 PW5 (Musa Borgu) also buttressed the above assertion in paragraphs 4, 5
and 6 of his statement on oath attached to the reply to statement of
defence. The above assertion by PW5 was not challenged under cross-
examination. PW1 maintained his stance when he stated under cross-
examination that he agreed he was turbaned as BIogbanegi by the 1st
Defendant and that there is no difference between the title of Biogbanegi
and Gbanesuno and that Gbanesuno translates to Chief of Gbane. He further
stated that he applied for Head of Gbane in EXHIBIT ‘A’.
05:06 My Lord, it is noteworthy that PW2, PW3 and PW4 equally maintained under
cross-exmaination that both the title of Biogbanegi and Gbanesuno are one
and the same.
05:07 We submit with respect that with the above evidence of the Claimant and
his witnesses, the Claimant had proved by way of evidence that customarily,
the word Biogbanegi and Gbanesuno are the same and both are used
interchangeably. Comment to court the case of CHARLES CHUKKA
OSADEBE VS ARINZE OSADEBE (2013) 3NWLR (Pt 1342)584 at 603-
604 para. G-C

7. 05:08 Must humbly submit that a custom may be adopted as part of the law
governing a particular set of circumstances if it can be noticed judiciary or
can be proved to exist by evidence. Refer to the case of OSADEBE (Supra)
at 603 para. B-C. Urged the court to hold that the Claimant has proved
his case as to adopt same as part of law governing a particular set of
circumstances in Gbane Villlage.
05:09 We equally submit with respect that where the evidence of the defendant
supports the Claimant’s case, such piece of evidence shall be treated by the
court as an admission.
05:10 We submit with respect that the defendant’s evidence (DW2) is in total
support of the Claimant’s assertion that the title of Biogbenegi and
Gbanesuno are one and the same and that the two are being used by the
natives interchangeably; DW2 stated under cross-examination that the word
“SUNO” is generally used by all title holders in Batinou. That every title
holders in Batinou add the word “SUNO” to their real title and he even cited
instances like Emir of Gwanara who is also called ‘Gwanara Suno” and Emir of
Okuta who is also know as “Okuta Suno”. The witness, DW2 admitted that
Gbane Village is not an exception as the word “Gbanesuno” is equally added
to the village real title. Case of EBLA CONSTRUCTION LTD VS.
CONSTAIN (WEST AFRICA) PLC (2011) 6NWLR (Pt 1242) 110 at 128
Para. A.C where the court held,
“Where the Defendant “evidence clearly supports the case of the
Plaintiff, the trial court is entitle to treat such an evidence as an
admission and the Plaintiff is entitle to rely on same in further
reinforcement of his case.
05:11 Also refer to the case of AUGUSTUS WUYOPONDI KIMDEY & 11ORS
VS. MILITARY GOVERNOR OF GONGOLA STATE & 7ORS (1988)1
NSCC (vol 19) 827 at 829 H5 where the Supreme Court held that evidence
against interest is always admissible against the maker.
05:12 We submit with respect that the evidence of the Claimant that the title of
Biogbanegi and Gbanesuno are one and the same having been admitted under
cross-examiantion by DW2, no further proof is required from the Claimant.
Refers to WEMA BANK PLC VS. LINTON INDUSTRIES TRADING
NIGERIA LIMITED (2011)6 NWLR (Pt 1244) 479 at 500 para. D-E
where it was held
“Once there is an admission, then there is no dispute and so the need
for proof does not arise, admission act as a short cut in the judicial
process as they save so much valuable litigation time”

8. 05:13 We further submit with respect that the submission of the Defendants on
issue No.1 of their final written address is entirely misleading as the
Defendants misrepresented facts in that issue. In a numbers of authority
(ies) the counsels had been enjoined to always be on the side of law and not
to mislead the court even if it would be against them. Refers to the case of
MR. JOHN AYO ADE VS. SPRING BANK PLC & 1ORS. (2014) 4 NWLR
(Pt 1396) 93 at 127-128. Para H-A.
05:14 We urged Your Lordship to hold that the title of “Biogbanegi” and
“Gbanesuno” are one and the same.
06:00 ISSUE II
06:01 ISSUE II Whether having regard to the age-long existing and prevalent
custom and practice of Gbane people, the Claimant’s appointment as
Biogbanegi of Gbane can be equated with the 2nd
Defendant appointment as
Gbanesuno or village head of Gbane to confer on him the right to exercise
the powers, functional and duties of the office of village Head of Gbane
being exercise by the 2nd
Defendant at all material time sequel to the 2nd
Defendant’s appointment as the village head of Gbane.
06:02 My Lord, Sir, if our submission with respect to issue No1 finds favour of
your Lordship, and coupled with the evidence of the parties and their
witnesses adduced in the course of proceeding before this Honourable
Court, the most paramount question that comes to mind is, was the 2nd
Defendant actually appointed by the 1st
Defendant as “Gbanesuno”? The
answer is No.
06:03 We submit with utmost respect that the only way customary law could be
proved or established is either by being judicially noticed or by proof of
evidence. Thus, customary law is a question of fact which would necessitate
being proof by evidence. In this case, the Claimant had established by
evidence that his forefather by name Batia was the founder of Gbane Village
and he was the 1st
Biogbanegi of Gbane (Chief of Gbane). He narrated the
history of the village and its Chiefs up till his own appointment- Refers to
paragraphs 4-35, 49, 50, 51, 52 and 53 of the Claimant’s (PW1) statement
on oath; paragraphs 5-51 of the statement on oath of PW2; paragraphs 5-51
of the statement on oaths of the PW3 and paragraph 5-51 of the statement
on oath of the PW4.
06:04 We further submit that all the Claimant’s witnesses (PW1-PW4) maintained
their stance under cross-examintion. We referred to the case of KIMDEY
&ORS VS. MILLITARY GOV. OF GONGOLA STATE (Supra) at 829 H3
where the Supreme Court held thus;

9. “The customary law is a question of fact to be proved by evidence
before the learned judge which if accepted will lead to the
recognition of the custom that the right to the Languda chieftaincy is
shared, between the Bonsibe and Bonkubebe. The evidence which has
been admitted of the donation of burial materials and the handingover
of the chieftaincy are indicative of the existence of such a custom
customary law has been described as the mirror of accepted usage”.
See also OSADEBE V OSADEBE (Supra) at 604 para. A-D.
06:05 Urged the court to hold that the Claimant had discharged the Burden placed
on him.
06:06 My Lord, Sir, we submit that having established that this is the custom and
practice in Gbane Village for over 600 years (14th
century), the court is
enjoined to adopt same as part of law governing a particular set of
circumstances in Gbane. Refers to paragraphs 4 and 56 of statement on oath
and paragraphs 10 and 26 of additional statement on oath of PW1;
paragraph 5 and 54 of statement on oath of PW3 and PW4.
06:07 DW1, equally admitted under cross-examination that the village of Gbane
has been in existence before the advent/coming of the colonialist. Refers to
the case of OSADEBE VS. OSEDEBE (Supra) at 603 para. B-C.
06:08 We further submit that it is not possible for a stool (Gbanesuno) to have
been in existence for over a century, as claimed by the Defendant, not to be
evidenced in a single document. The Claimant (PW1) in his additional
statement on oath attached to the reply to statement of defence (Refers to
Paragraph 5 and 6) also paragraphs 6 and 7 of PW5 statement on oath
attached to the reply to statement of defence. Claimed that each prince
(wassangaris) appointed as caretakers has no recognized title attached to
the post but that each of them ascribed different appellation to the post.
This is evidence in EXHIBIT ‘D’ where the last caretaker to the post is
regarded as kotoprukaru and not as Gbanesuno. The submission of the
Defendant that the title appellation of kotoprukaru is an appellation of the
said Mohammed Sero is not true. If the Defendant’s claim is true, then why
was the real title not stated in EXHIBIT ‘D’ ?., why was the appellation
preferred over the real title as not to mention the real title (Gbanesuno) in
Exhibit ‘D’? and why was the real title (Gbanesuno) not reflected in the
letter of appointment (Exhibit ‘E’) issued to the 2nd
Defendant by Baruten
Local Government on the instruction of the 1st
Defendant?. My Lord, these
are puzzle questions which must resolved in favour of the Claimant.
06:09 My Lord, Sir, there is no evidence (documentary) indicating that the
caretakers appointed before Mohammed Sero (see EXHIBIT ‘D’) were

10. referred to as Gbanesuno. My Lord, in the absence of contrary document to
EXHIBIT ‘D’, oral evidence given by the Defendant and his witnesses to the
effect that the past Princes of Yashikira appointed to rule Gbane ruled the
village as Gbanesuno would not operate to displaced EXHIBIT ‘D’ urged the
court to so hold.
06:10 We submit that where the evidence of the Defendant buttresses the claim
of the Claimant, the Claimant is enjoined to make use of same to further his
claim. DW1 and DW3 (Defendant) under cross-examination admitted that
upon the death of Mohammed Sero (Kotoprukaru), different applications
were forwarded to the 1st
Defendant who appointed the Claimant as
substantive Biogbanegi. The 1st
Defendant subsequently set-up a committee
to looked into Gbane chieftaincy affair. DW1 acting as secretary to the
committee submitted their report and in the said report, all the
recommendation of the committee were implemented which saw the 2nd
Defendant emerging as Daudun Gbane, a title which not in existence before
the said Committee was set-up. It was equally part of the recommendation
of the said committee that the appointed Daudun Gbane be given
admistrative functions of Gbane to execute. The report of the said
committee is annexture ‘B’ referred to in EXHIBIT ‘C’. Refers to the last
paragraph of the said report. We equally comment to court the case of
KIMDEY & ORS (Supra) at 827 H5. See also WEMA BANK PLC (Supra)
at 500 para. D-E urged the court to hold that this is an evidence against
the interest of the maker.
06:11 We further submit with respect that parol or oral evidence can not be use
to contradict the content of a document tendered. In this case, the
evidence of DW1 and DW2 under cross-examination to the effect that
DW2 was appointed Daudun Gbane after the submission of the report of the
committee and the contents of EXHIBIT ‘D’ is a proved that non of the
Defendant’s linage has been appointed as Gbanesuno of Gbane.
06:12 The oral or parol evidence of the Defendant and his witnesses that the 1st
Defendnat and his linage were appointed as Gbanesuno would not operate to
contradict the documentary evidence already before the court. (i.e.
annexture ‘B’ to EXHIBIT ‘C’ which is the report of the committee and
EXHIBIT ‘D’, the postal of the Fidau Prayer of Mohammed Sero). Refers to
the case of ANTHONY TIPPI VS SULVESTER NOTANI (2011) 8NWLR
(pt 1249) 285 at 305-306 para. H-D. Also refers to S.132(1)(2) and (3)
of the evidence Act.
06:13 We submit with respect that once a customary law has been established to
be in existence as in this case, unless it is declared as invalid by competent

11. court of law, it remains valid and subsistence. The evidence of DW1, under
cross-examination that the 1st
Defendant is the custodian of the culture,
traditional values and custom of the people and that the 1st
Defendant as the
Emir has power to create new titles and place the newly created title over
and above the existing and older ones is illegal and improper for a person
shrouded with power to protect the traditional values of his people. Thus,
placing new title (Daudun Gbane) over and above the title (Biogbanegi) which
has been existing over 600 years is anti culture. Refers to the case of
ADEKOYA JOMU & 1ORS VS IKORODU LOCAL GOVERNMENT & 3ORS
(2007) ALL FWLR (Pt 394) Pg. 245 at 270-271 para H-A. where it was
held.
“A customary law can either be declared as invalid by a competent
court because it is against Public Policy and/or not in consonance with
natural justice, equality and good conscience or amended by
legislation, where such declaration is not made, such customary law is
valid and subsisting”.
06:14 It is equally our contention that it is elementary principle of law that an
existing native law and custom may be altered or entirely abrogated by a
valid legislation in conflict with it. The decision of the 1st
Defendant to set
up a committee and acted upon the report of the said committee by
appointing the 2nd
Defendant as the Daudun Gbane and place same over and
above Biogbanegi or Gbanesuno is absurd and illegal. Thus, anything that has
to do with either alteration or abrogation of the existing native law and
custom would have to be by legislation or court of law. Refers to KIMDEY &
ORS (Supra) at 829 H6. Where it was held.
“ It is an elementary and fundamental principle of our law that an
existing native law and custom may be altered or entirely abrogated
by a valid legislation in conflict with it. Accordingly, where the status
regulated is not a creation of native law and custom, any native law
and custom which has developed and grown around it can be abolished
or indeed control by suitable contrary legislation”.
Urged the court to hold that the act of the 1st
Defendant at altering the
custom of Gbane by creating new title to be superior over the long existing
Biogbanegi is an attempt to destroy the culture of Gbane and therefore
illegal.
06:15 Finally, on issue II, we urged your Lordship to hold that the title of
Biogbanegi and Gbanesuno having been used by the natives interchangeable
and since there is no proved and/or evidence that the 2nd
Defendant was
appointed as Gbanesuno but rather as Dandun Gbane, the newly created

12. Daudun Gbane to which the 2nd
Defendant was appointed by the 1st
Defendant cannot in any may be equated with the title of Biogbanegi or
Gbanesuno.
07:00 ISSUE III
07:01 ISSUE III Whether having being duly appointed as the village head or
Gbanesuno, the 2nd
Defendant can be precluded from performing the
function and duties of his own office under the prevalence custom and
tradition of Gbane people.
07:02 We submit with due respect that the 2nd
Defendant having been appointed
as Dandun Gbane (not as Gbanesuno), the 2nd
Defendant can be precluded
from performing the functions and duties associated with the office of
Biogbanegi or Gbanesuno under the prevailing custom and tradition of Gbane
people.
07:03 We submit with respect, Sir, that evidence abounds that the 2nd
Defendant
or any of his descendant was never appointed as Gbanesuno. The evidence of
DW3 (2nd
Defendant) is contradictory in that regard. DW3 in his paragraph
4 of statement on oath stated that he is the incumbent Biogbanegi while in
paragraph 44 of his statement on oath, he stated that he was turbaned by
the 1st
Defendant as Gbanesuno. My Lord, Sir, the 2nd
Defendant (DW3)
while answering questions under cross examination stated in one breath that
he was appointed as Kotoprukaru while in another breath, he said he was
appointed as Daudun Gbane.
07:04 We submit that these are material contradiction which had not only created
vacum/lacuna but equally misleading and it is elementary principle of law that
where there are material contradiction in the evidence of a witness, it would
be resolve in favour of his opponent. We urged your Lordship to hold that
the 2nd
Defendant was appointed as Daudun Gbane.
07:05 We submit that the assertion of DW3 (2nd
Defendant) in paragraphs 5,6,35
and 43 of his statement on oath that the title of Daudun Gbane was an
appellation he adopted after his appointment as Gbanesuno are mere fallacy
as the said title is not an appellation but the product of the report of the
committee (annexture ‘B’ of EXHIBIT’C’). Also refers to the cross-
examination of DW1 who was the secretary of the said committee. Urged
the court to hold that the title of Daudun Gbane is not an appellation but
real title to which the 2nd
Defendant was appointed.
07:06 Submit with due respect that the fact that a custom may be breached
cannot grand a finding that it does not exist. In this case, the Claimant has
proved that Gbane village has been in existence before the coming of
colonialists (over 600 years) and that when the colonial arrived the

13. Biogbanegi has been acting for and on behalf of the colonialist by performing
the administrative functions spelt out in paragraphs 44 of the statement of
claim and paragraph 44 of the Claimant (PW1) statement on oath.
07:07 We equally submit that these functions have been performed by any
incumbent Biogbanegi from the time immemorial, referred to paragraphs
4,12,13,14,15,16,44 and 62 of the statement of claim and paragraphs
4,12,13,14,15,16,44 and 62 of the statement on oath of PW1 (The Claimant).
Urged the court to hold that the claimant has proved that by custom,
Biogbanegi has been performing the administrative functions.
07:08 DW1 and DW2 under cross-examination stated that they knew the 1st
Prince
of Yashikira (wassangari) by name Sidi Umar whom the Claimant claimed
ruled Gbane as caretaker (Refer to paragraphs 18,24,25,26,27,45,46,47, and
48 of PW1 (Claimant’s) statement on oath . DW2 claimed that he has been
living in Gbane for about 71 years and he knew Sidi Umar. My Lord, if Sidi
Umar who was the 1st
prince to rule Gbani ruled the village about 71 years
ago, the question to be ask now is, who has been performing the functions
highlighted in paragraph 44 of the statement of claim before the
appointment of Sidi Umar?
07:09 The answer to the question is not far fetched as same could be found in the
evidence of the Claimant and his witnesses. Refers to paragraphs mentioned
in paragraphs 07:08 above. Urged the court to hold that the administrative
functions referred to in paragraphs 44 of the statement of claim has been
in existence since the coming of colonialist and that same has been
performed by Biogbanegis.
07:10 My Lord, Sir, the evidence of the Claimant that he was turbaned on the 4th
May, 2012 and that on the 11th
may, 2012, the 1st
Defendant summoned
another meeting where the 1st
Defendant declared that in compliance with
the recommendation of the committee on chieftaincy position in Gbane, he
has resolved to appoint a new title known as Daudun Gbane who shall
carryout the administrative functions earlier performed by Biogbanegi.
Refers to paragraphs 54 and 55 of statement of claim. The Defendant did
not specifically challenged this piece of evidence in their statement of
defence. The only paragraphs that denied the above paragraphs of
statement of claim is paragraphs 35 and 36 of statement of defence which
did not specifically deny the fact that the 1st
Defendant summoned a
meeting on the 11th
May, 2012. Failure to specifically deny the assertions
that a meeting was converned at the instance of the 1st
Defendant as well as
what transpired at the said meeting amount to an admission of the fact on
the part of the defendant and we urged your Lordship to so hold.

14. 07:11 We further submit that the fact that it is part of the recommendation of
the committee (refers to the report of the committee) that the
administrative functions be given to the newly created and appointed Daudun
Gbane who must be a royal prince from Yashikira is a clear cut evidence that
the administrative functions were stripped away from the Claimant for the
Defendant. Comment to the case of KIMDEY & ORS (Supra) at 828 H2
where it was held thus
“That the fact that a custom may be breached is not evidence that it
does not exist. The evidence of the witnesses is not that no such
custom exists with respect to the Lugunda chieftaincy. It is that it
either not obligatory or that it has been abolished”.
07:12 Urged the court to hold that since evidence abounds that the functions has
been performed by incumbent Biogbanegi, the fact that the 1st
Defendant
stripped the duty(ies) from the day Claimant does not mean that the
previous Biogbanegis has not been performing the duties.
07:13 We further submit that the fact that the Baruten Local Government issued
out the letter of appointment to the 2nd
Defendant does not make the
appointment final and legal. It is in evidence that the Local Government
Authority were acting on the instruction of the 1st
Defendant.
07:14 Finally, on this issue, we urged your Lordship to hold that the 2nd
Defendant
having been appointed as Daudun Gbane (a newly created title), he is not
entitle to perform the duties functions ascribed to the office of Biogbanegi
or Gbanesuno.
08:00 ISSUE IV
08:01 ISSUE IV Whether having regard to the totality of the evidence before
this Honourable Court, the Claimant is entitled to the claim before the
court.
08:02 We submit that the Claimant has discharged the burden of proof placed on
him by the law to entitle him to the claims before the court. The Claimant
shall adopt his submission on Issue I,II and III and urged the court to hold
that the burden has been discharged.
08:03 We submit with respect that proof of customary law needs no corroboration,
thus, a community of witnesses is not required, what is important is the
quality of evidence given by the available witnesses. In this case, the
Claimant called 5 good witnesses who have given quality evidence. One of
such witness (PW4 ) is one of the kingmakers in Gbane. The evidence of the
5 witnesses were not shaken even under cross-examination. My Lord, the
Defendants in their attempt to countered and defend the claim of the
Claimant called 3 witnesses who are neither an indigene of Gbane nor lives in

15. the said village. The witnesses (DW1-DW3) however, confessed that they
knew little about the history of Gbane, even the 2nd
Defendant (DW3) who
was appointed to rule the village claimed to know little about the history of
the village. My Lord, placing the evidence of parties in the scale, the
evidence proffered by the Claimant is much heavier in quality than that
proffered by the Defendants.
08:04 Comment to court the case of MR. ALFRED OSIOBAIFO & 1ORS VS
CHRISTOPHER OSIOBAIFO & 1ORS (2005) ALL FWLR (pt 250) 131 at
144 para C-E.
“Proof of customary law is not one of the areas, in our adjective law
that needs corroboration. While it could be desirable that a person
other than the person asserting the customary law should testify in
support if the customary law, it is not a desideration. This is because
the evidence Act does not so provide. It simply provides in section
14(1) that ‘a custom can be proved to exist by evidence’. This warrant
that a single witness or more witnesses may suffice. However, a
community of witnesses is not required but the quality of evidence
given by the single witness or more witnesses”.
08:05 Finally, urged the court to hold that the Claimant has proved his case as
required by the law so as to entitle him to the claim before the court.
Most obliged
Dated this 4th
day of August, 2014.
O. Yahaya Gobir, Esq.,
Jemilat R. Yusuf (Mrs.),
I.M. Adedo, Esq.,
Lukman Raji, Esq.,
Gobir, Imam & Co.,
Applicant’s Counsel,
69, Sabo-Line Street, Opposite Social
Welfare Office, Ilorin.
FOR SERVICE ON:
The Defendants,
C/O Their Counsel,
Tunji Ojuokaye Esq.,
A.K. Ajibaye, & Associates,
Eminent Chambers
45, Sultan Road, Ibrahim Taiwo Road, Ilorin.