3PLR – AMOS BAMGBOYE & ORS V. RAIMI OLANREWAJU

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]

AMOS BAMGBOYE & ORS

V.

RAIMI OLANREWAJU

SUPREME COURT OF NIGERIA

APPEAL NO. S.C. 233/1988

17TH MAY, 1991

3PLR/1991/62  (SC)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS

OBASEKI, J.S.C.

UWAIS, J.S.C.

KARIBI WHYTE, J.S.C.

BELGORE, J.S.C.

OLATAWURA, J.S.C.

 

REPRESENTATION

Kayode Sofola (with Mrs. S. Shiraba), – for the appellants

  1. O. Ijaodola, – for the respondent

 

MAIN ISSUES

PRACTICE AND PROCEDURE – Appeals -Grounds -Nature of -Need to confine issues for determination within grounds – trial court – Findings of fact by – When may Court of Appeal interfere.

PRACTICE AND PROCEDURE – Issues – Raised suo motu by court and decision given thereon – Whether proper- Civil matter – Effect of decision on subsidiary matter therein – Party’s failure to raise issues relevant to the determination of his case – Consequence thereof.

 

MAIN JUDGEMENT

BELGORE, J.S.C. (Delivering the Lead Judgment):

The plaintiff, Raimi Olarewaju, was before the High Court of Kwara sitting at Ilorin, claiming from the defendants (now appellants) as follows:-

(i)      a declaration that the plaintiff is the rightful successor to the late Odofin Aran, Chief Salawu Adefila.

(ii)     a declaration that it is not yet the turn of the first defendant’s branch to produce an Odofin Aran on the demise of the late Odofin Aran, Chief Salawu Adefila.

(iii)    a declaration that the purported nomination of the first defendant by the second and third defendants is null and void and of no effect whatsoever and

(iv)    a perpetual injunction prohibiting the first defendant from parading himself or acting as the new Odofin Aran in succession to the late Chief Salawu Adefila.

The Odofin Aran, the title that allegedly ranks next to that of Head Chief of Omu Aran, The Olomu, died and a new one had to be appointed. At a meeting presided over by Chief Bello Clod 0kesan, one Alhaji Salawu Dogo Baba Isale the sectional head of Okesan Odosare, the Adure was asked to bring a successor to the Odofin. According to the plaintiff, the second defendant, Chief Abidoye Aniyiloro Edemo, without the permission or consent of Okesan family, which to him is the same as Okesan Odosare lie Adure section, whose turn it was to present a new Odofin, took the first defendant, Amos Bamgboye to the third defendant, Chief Abidoye Aniyiloro Edemo as the new Odofin Aran. The plaintiff contends that three sections of Okesan family exist, namely.

(i)      Okesan Odosare Ile Adure;

(i)      Okesan lie Odun; and

(iii)    Okesan Ileti.

The first defendant, says the plaintiff, is from Okesan Ile Odun while he is from Okesan Ile Adure and the late Odofin, Chief Salawu Adefila came from Okesan Ileti. The plaintiff contends that the appointment was rotated between these three branches and that his own branch, Okesan Odosare lie Adure, was to produce the present Odofin. He gave a breakdown of the nomination procedure to be followed by Okesan family before the Odofin elect would be presented to the Olomu of Omu-Aran for installation.

As against the aforementioned averments, the defendants threw a new light on the matter in their statement of defence. They averred that Odofin title of Omu-Aran is exclusive to two compounds of that town, to wit, lie Odun and lie Okankan. It was admitted there is Okesan family of Omu-Aran comprising of lie Odun, Ile Okankan, Odosare and Ileti as averred in the statement of claim. The list of Odofins since the existence of Omu-Aran was given, the last one, Odofin Salawu Adefila, being the twelfth. All the previous Odofins before Adefila were from either lie Odun or lie Okankan; but Adefila came from Ileti, an unusual departure from custom. The reason was given in paragraphs 5 and 6 of the statement of defence as follows:

“After the reign of Awcfaran Ariwajoye (No. 10 above) it was the turn of lie Odun to present an Odofin but because the reigning Alaran was from lie Odun it was thought unreasonable to concentrate the two highest chieftaincy office in one family at the same time hence there was a compromise to allow an Odofin from lie Okankan.

The installation of Adefila from Ileti Compound of Omu-Aran was an emergency measure to solve a crisis situation. The decision became a regrettable one as the rightful family never condoned the act and worst still the Odofin installed spent half of his reign bed-ridden.”

The Odofin is the next chief in rank to Olomu of Omu-Aran and thus it accords with common sense that once reigning Olomu comes from any of the two com-pounds producing Odofin the next Odofin should be appointed from the other family. The appointment of the last Odofin, according to the defendants was dictated by special circumstance in that the incumbent Olomu of Omu-Aran came from one of the compounds, the Odofin could come from Ileti, an affiliated compound of the Okankan. Soon record, according to the defendants, there have been twelve Odofins since the existence of Omu-Aran -first, second, fourth, sixth, seventh and ninethfrom lie Odun; third, fifth, eighth and eleventh from Ile Okankan. Only the twelfth came from Ileti as explained earlier. The statement of defence prompted a reply by the plaintiff whereby it was averred that only lie Adure, lie Odun and Ileti could produce an Odofin, and that throughout the history of Omu-Aran, only three Odofins existed -Odofin Olode Okuta of Ile Adure Odusare, Odofin Moronfoye of Ile Odun and Odofin Adefila of Ileti. It is to be observed that Omu-Aran was settled by the people from the neighbouring Aran Towns to wit -Arandun, Ara-Orun and Ara Ward now merged with Omu – Aran Town. These were the conflicts between the parties and their respective evidence flowed along their pleadings. It is to be noted that both parties pleaded the normal procedure for appointment of Odofin.

Learned trial judge, after reviewing all the evidence before him found as follows:

“First, it is conclusively settled that both the plaintiff and the first defendant are members of Okesan family of Omu Aran and that in the absence of an Odofin, PW 2, Chief Bello Olomu is the head of Okesan family only in virtue of his being the oldest member and in that capacity presided over the Okesan family meetings to select a new Odofin. I believe for the defence especially the first defendant, D.W.2 and D.W.4 that Omu- Aran, Arandun and Aran-Orin people were one.”

and further he also held thus:-

“It is significant that even the centenarian P .W2 did not give and, possibly could not give the name of the Odofin whom Ileti once produced before Odofin Adefila who died over a year ago. It strikes me as definitely too late to now contest Iletis upgrading to the status of a ruling house after PW.2 has apparently scored that success for his own Ileti section by producing Odofin Adefila. In conclu-sion, I find as a fact that four sections make up Okesan with only Okankan and Odun which are related by blood as the 2 dominant ruling houses and the IIeti’s Odofin Adefila’s reign as the only aberration in the entire history of the Okesan family. Odosare’s desire to be a ruling house is, at present, merely wishful as it is without any known precedent.”

Learned judge finally found that the procedure for the appointment of the 1st defendant was in accordance with the customs. He dismissed the entire claim and found that the appointment of the first defendant was validly made and he refused the injunction asked for. This led to the appeal in the Court of Appeal, Kaduna.

The appeal in the Court of Appeal was argued on issues of errors in law and misdirection. More importantly the grounds alleged that the trial judge relied on evidence given on matters not pleaded which should normally not be in issue. The issues for determination in the Court of Appeal were formulated as follows for the plaintiff:

“ISSUES FOR DETERMINATION

There are 3 main issues for determination in this appeal; viz

  1. whether or not the learned trial judge was entitled to hold, as he did that the plaintiff’s section of Okesan family was not bloodly related to the list defendant’s section and that the plaintiff’s section had no claim to the Odofin Aran stool as per page 93 lines 1-3 and page 99 line 18 to page 100 line 3 of the record;
  2. whether or not the defendants had satisfied the burden of proof entitled to claim the Odofin Aran stool even though the plaintiff’s section was a branch of Okesan family; and
  3. whether or not the decision of the learned trial judge was reasonable in the light of the parties’ pleadings and the evidence adduced in support.” It seems to me that the parties fought shy of the real issues in the Court of Appeal. The real issue, fundamental to the case, is whether the procedure whereby the first defendant was appointed Odofin was valid. Unfortunately the issues fought by the parties revolve around admissibility of evidence as to the eligibility of Ileti family to produce an Odofin. To my mind this alluding to the real issue precluded the Court of Appeal from alluding to the real issue. The summary of the decision of the Court of Appeal is as follows:-

(1)     Having regard to the pleadings, the position is that the fact that the three or four sub-families descended from the same ancestor was not in dispute. It is settled law that parties were bound by their pleadings. A party would not be allowed to set up a claim different from that in his pleadings.

(2)     Just as evidence not supported by the pleadings go to no issue, so also do the pleadings not supported by evidence go to no issue, unless they are admitted in the opponent’s pleadings.

(3)     Having erroneously had at the back of his mind that Ileti and Odosare sections of Okesan family were not of a common ancestor with Ile Odun and Ile Okankan, which was not the case for the defence, the learned trial judge was bound to arrive at wrong findings of fact.

Appeal allowed.

The appeal to this court raised many issues of law and fact, and of misdirection. But it is pertinent to set out the issues for determination by the defendants/appellants, to wit:

ISSUES FOR DETERMINATION

In the appellants’ view, the issues for determination by this Honourable Court are as follows:

(a)     Whether the learned Justice of Court of Appeal who delivered the lead judgment was not in error when he formulated a new issue between the parties, an issue which was not raised by the plaintiff nor by the defendants.

(b)     Whether the learned Justice of Appeal was right to have set aside the finding of fact by the learned trial judge that the reign of Odofin Adefila from Ileti section was nothing but an aberration.

(c)     Whether the learned Justice of Court of Appeal was not in error when he held that some piece of evidence elicited from witnesses for the plaintiff under cross-examination by counsel for the defence was inadmissible, since it was not so canvassed in the statement of defence.

(d)     Whether the learned Justice of Court of Appeal was not in error to have reversed the findings of fact made by the learned trial judge, and whether on the findings of the trial judge, the defendants were not entitled to the judgment of the court.

The complaint of the defendants (appellants) is that the Court of Appeal formulated a new issue for the parties when Akpata, J.C.A. (as he then was) in the lead judgment said as follows:-

“There is, to my mind a fourth issue which is whether the learned trial judge was right to have described the reign of Odofin Adefila from Ileti section of the Okesan family as an aberration in the light of the pleadings and evidence adduced by the defence, and whether Ileti is not in fact a ruling house.”

It is true that the court should desist from raising new frontiers in the battle by the parties to a cause. What the parties have pleaded at the trial court, their complaints in the grounds of appeal on which briefs are written, and the issues they have raised in the briefs should dictate what the court must adjudicate upon. To raise new Issues is like extending the scope of the litigation and unless amendments are made to the pleadings or grounds of appeal are added to or amended or issues for determination are reformulated or added to, the court should not venture to raise new matters for the parties. The exception to this rule Is where a matter of law or Constitution going to the root of cause Itself arises; and in such a case the parties must be afforded the opportunity of addressing the court on such an Issue. See Adeniyi & Ors. v. Tawa & Ors. (1972) 1 All N.L.R. 298; Oke-Bola & Ors. v. Molake (1975) 12 S.C. 61; Graham & Ors. v. Esumai & Ors. (1984) 11 S.C. 123. The Court of Appeal certainly raised a new Issue in their judgment and It is clear the parties were not called upon to address it on the issue.

There were some pertinent points of fact that the teamed trial judge found upon and believed which the Court of Appeal set aside. The trial court believed the defendant’s story and held the plaintiffs version could not be true. Trial court held on the evidence before it that there were twelve previous Odofins of Omu-Aran as contended by the defendants and disbelieved the plaintiff’s story that there were only three. The question whether Ileti compound were blood relations of the other compounds, with respect is not the big storm in the tea cup it is made to look, in the circumstance of this case. Assuming, there were only three previous Odofins as contended by the plaintiff, each came from a different house; whether they were blood relations or not is not what is relevant. The thrust of the litigation in the lower court must be clearly identified; it was not whether the plaintiff was entitled to be the Odofin or qualified to be the Odofin, it is whether the procedure whereby the first defendant was selected the Odofin was valid in accordance with Omu-Aran native law and custom for such a selection.

To my mind, the trial court made certain far-reaching findings of fact touching the pith of the case which should not be disturbed Insofar as they are not perverse or against the law, or are not inadmissible as evidence. Once a court of trial has made a finding of fact, it is no more within the competence of the appellate court to Interfere with those findings except in certain circum-stances. The real reason behind this attitude of appellate court is that the court hearing the appeal is at a disadvantage as to the demeanour of the witnesses in the lower court as they are not seen and heard by the appellate court. It is not right for the appellate court to substitute its own eyes and ears for those of the trial court which physically saw the witnesses and heard them and thus able to form opinion as to what weight to place on their evidence. Frank Ebbs v. Warri Ogodo & Anor (1984) 4 S.C. 84; Soleh Boneh Overseas Nig. Ltd. v. Ayodele (1989) 1 N.W.L.R. (Part 99) 549; Awote v. Owodunni (1986) 5 N.WL.R. (part 46) 941.

The occasions whereby the appellate court will interfere are those where the findings of fact do not relate to the evidence or are not even in evidence in which case the court relied on facts not in evidence before it. Ogundule v. Chief Olabode (1973) 2 S.C. 71, 80; Balogun v. Akanji (1988) 1 N.WL.R. (part 70) 301; Adeyeye v. Ajiboye (1987) 3 N.W.L. R. (part 61) 4321. There are occasions when some facts in evidence are not adverted to or considered by the trial court. The appellate court can if possible make its own findings from such facts if they are of a nature not Involving demeanour e.g. documentary evidence (See Olufosoye v. Olorunfemi (1989) 1 N.W.L.R. (part 95) 26). But where such facts involve credibility of witnesses, the proper step to take by the appellate court is to order retrial, (See Onwuka v. Ediala (1989) 1 N.W.L.R. (part 96) 182). Similarly where the trial court fail to make findings on crucial issue (Idika v. Esid (1988) 2 N.W.L.R. (part 78) 663).

Thus it is clear the Court of Appeal went out of its way to head off the cause of action the parties brought from trial court on appeal before it and decided the matter on a completely irrelevant issue. The issue at the court of trial is clear and if the Court of Appeal had adverted to this and the grounds of appeal it would have been found that the appeal was based on grounds diametrically irrelevant to the issue. The fact whether Ileti people are blood relations or not of the people entitled to bid for appointment as Odofin is not the issue; rather the bone of contention is whether the nomination of the first defendant was validly made. The trial judge found the nomination was valid and the first defendant’s appointment as Odofin Aran was in order. The other issue whether the plaintiff could be made Odofin or not is just by the side. What is clearly in evidence is that all could vie for the post whether in the manner advanced in the evidence of plaintiff insisting only three Odofins existed in Omu-Aran history or as contended by the defendants that twelve Odofins existed. In each case, it is found that each section of the families had at one time or the other an Odofin appointed. There is no evidence on each side indicating the order of succession; for example, as averred by plaintiff/appellant in paragraph 4 of Reply of statement of defence, only three Odofins were appointed in Omu-Aran history to wit:-

(i)      Odofin Olode Okuta – Ile Adure Odusare;

(ii)     Odofin Moronfoye – Ile Odun;

(iii)    Odofin Adefila – Ileti,

manifesting that each family had a bite. If the order of succession is equitable and there are three ruling houses, the next Odofin should come from Ile Adure Odusare. But this is not the claim of any of the parties. The defendants’ order of twelve previous Odofins has no fixed pattern, as there were in many cases two successive Odofins from the same house. Thus what was claimed was a declaration that the nomination and appointment of the first defendant as Odofin should be declared null and void, and in doing so to enter injunction against him from parading himself as the Odofin. The trial court held on the evidence that the plaintiff’s case was not proved. I can find nothing perverse in this conclusion. The Court of Appeal by the grounds of appeal headed off the real issue and faced with the issue of admitting the evidence on whether the people of Ileti compound are blood relations of the other Odofin producing houses, a subsidiary matter indeed to the real issue and a matter unpleaded. In formulating an additional issue to the three in the appellant’s brief (now respondent in this court), the Court of Appeal veered further away from the substantive issue. In any civil matter, what matters Is the decision on specific and substantive issue, any subsidiary matter that do not touch on the merit of the main issue is not of relevance. The findings of fad on the specific and real issue between the parties i.e. the validity of nomination and appointment of the first defendant, is clear and supported by the evidence and the Court of Appeal erred in its decision by opening up the findings and setting them aside to the extent of relegating the real issue to the back ground.

For the foregoing reasons this appeal has merit and I hereby allow it. I set aside the decision of the Court of Appeal and restore the decision of the trial court which dismissed the plaintiff’s action in its entirety. I award N300.00 as costs in the Court of Appeal and N500.00 as costs in this court against the plaintiff/respondent.

OBASEKI, J.S.C.: I have had the advantage of reading in advance the draft of the judgment just delivered by my learned brother, Belgore, J.S.C. and I find the opinions expressed therein on all the issues for determination in this appeal in accord with mine. I accordingly adopt them as my own. Accordingly I hereby allow the appeal.

The decision of the Court of Appeal is hereby set aside and in its stead, the judgment of the High Court, dismissing the plaintiff’s/respondent’s claim as improved in toto is hereby restored.

The appellants are entitled to costs in this appeal fixed at N300.00 in the Court of Appeal and N500.00 in this court.

UWAIS, J.S.C.: I have had the advantage of reading in draft the judgment read by my learned brother, Belgore, J.S.C. I agree that the appeal has merit and that it should be allowed with costs as assessed by him.

KARIBI-WHYTE, J.S.C.: i have read the judgment of my learned brother, S.M.A. Belgore, J.S.C. I agree entirely that this appeal be allowed. I however wish to make some contribution on all issues.

The Court of Appeal Division Kaduna on the 31st day of March, 1987, allowed the appeal of the plaintiff/respondent, in this court, against the judgment of the High Court of Ilorin. On the 25th January, 1985 Gbadeyan, J., dismissed the claim of the plaintiff in its entirety against the defendants in the action seeking the following reliefs:-

“(i)     A declaration that the plaintiff is the rightful successor to (the) Salawu Adefila as the Odofin Aran, having been so appointed in July, 1983 by Okesan Odosare Ile Adure section of Odofin Aran family whose turn it is to produce the new Odofin Aran, and

(ii)     A declaration that it is not yet the turn of the first defendant who is from Okesan Ile to become the new Odofin Aran, and

(iii)    A perpetual injunction prohibiting the second and third defendants and their servants and/or agents from presenting the first defendant to His Highness, the Olomu of Omu-Aran as the new Odofin Aran and prohibiting the first defendant from parading himself as the new Odofin Aran.

On a careful reading and analysis of the statement of claim, it seems to me that the plaintiff is relying on the following assertions.

First, that on the death of Salawu Adefila of Ileti, the last Odofin Aran, it was the turn of Odosare lie Adure of Okesan to produce the next Odofin.

Secondly, that the Odofin Chieftaincy rotates between the three sections of Okesan, namely: Ile Adure, Ile Odun and Ileti.

Thirdly, Salami Dogo Baba Isale, the sectional leader of Odosare Ile Adure had promised to bring the Odofin elect on 16/7/83 and that on 4/7/83 the first defendant was presented to the 3rd defendant, by the 2nd defendant as the Odofin-elect.

Fourthly, the presentation of the 1st defendant to 3rd defendant as the Odofin elect was without the consent of the Okesan family and without due compliance with the native law and custom of Omuaran regarding the Odofin chieftancy.

Fifthly, the 2nd defendant had rejected the nomination of the plaintiff and wrongly supports the 1st defendant who is not qualified.

Sixthly, the traditional procedure for selecting the new Odofin-Aran was pleaded in paragraph 7, 8, 9, 10 of the statement of claim. Finally, there have only been three Odofins in Omu-Aran, shared by lie Adure Odosare, Ile Odun and Ileti, who are all descendants of the same ancestor.

In their statement of defence, the defendants averred that, firstly, there are four sections of the Okesan family, as against the three pleaded by plaintiffs. These are lie Odun, Ile Okankan, Odosare and Ileti. Secondly, out of the four sections, only Odun and Okankan have exlcusive right to ascend the Odofin stool of Aran people comprising Aran Ward of Omu-Aran, Arandun town and Aran Orin with the Odofin as the next to the Head Chief in each of the towns. Thirdly, Salawu Adefila of Ileti was an exception to the 12 past reigning Odofins. Fourthly, at the time Salawu Adefila was appointed, it was the turn of the Odun section to produce an Odofin. Fifthly, that Salawu Adefila was appointed Odofin to avoid the situation whereby the reigning Olomu or Oba and the Odofin would have come from the same Odun section. Sixthly, the defendants pleaded the procedure for choosing an Odofin.

After hearing evidence, the learned trial judge made the following findings:-

“That both plaintiff and first defendant are members of Okesan family of Omu-Aran. In the absence of an Odofin, Chief Bello Olomu being the oldest member is the head of the family and in that capacity presides over the Okesan family meetings to select a new Odofin.

That Omuaran, Arandun and Aran-Orin were one. The learned judge did not believe the plaintiff that there is historical link between Omuaran, Arandun and Aran-Orin. That the Odofin Aran is second in rank to the Olomu of Omu-Aran.

That four sections make up Okesan with only Okankan and Odun which are related by blood as the dominant ruling houses. The Ileti’s Odofin Adefila’s reign is the only aberration in the entire history of Okesan family. The plaintiff nomination was not ratified by Okesan family in accordance with the custom of Omu-Aran.

That Amos Bamgboye the first defendant was nominated and presented to the appropriate authorities in Omu-Aran with the active participation of p.w2 and p.w.3.

That the Odofin Chieftaincy belongs exclusively to the Okesan family who is to nominate a candidate from among its members from the next rightful ruling house.

That this procedure has been complied with in respect of Amos Bamgboye’s appointment and installation.

That there was no outside interference in the nomination, processing and ratification of the appointment by the other Omu-Aran Chiefs and the Olomu-in-Council.”

The learned trial judge also found that Okesan consists of 4 sections out of which only 2 are blood relations sharing a common ancestry.

In the Court of Appeal, plaintiff, who was the appellant filed four grounds of appeal, challenging

(a)     the finding that Okesan consists of four sections out of which 2 are blood relations sharing a common ancestry;

(b)     that Odosare has no claim whatsoever to the Odofin stool;

(c)     that the plaintiff’s case was disbelieved as a result of reliance on non-is-sues.

Only three issues for determination were formulated which are as follows:-

  1. Whether or not the learned trial judge was entitled to hold, as he did, that the plaintiff’s section of Okesan family was not bloodly related to the 1st defendant’s section and that the plaintiff’s section had no claim to the Odofin Aran stool as per page 93 lines 13 and page 99 line 18 to page 100 line 3 of the record;
  2. Whether or not the defendants had satisfied the burden of proof entitled to claim the Odofin Aran stool even though the plaintiff’s section was a branch of Okesan family; and
  3. Whether or not the decision of the learned trial judge was reasonable in the light of the parties pleadings and the evidence adduced in support. In the court below learned counsel to the respondent formulated only a single issue for determination, namely:-

whether the trial court was right in believing one set of witnesses rather than the other and accepted as proven a particular averment of and evidence of native law and custom.

A careful study of the grounds of appeal relied upon for the formulation of these issues discloses how little reliance was placed by learned counsel on the grounds of appeal filed for the formulation of the issues. I have already in this judgment summarised the grounds of appeal in the court below. Whereas the grounds 2, 3 and 4 in the court below is a challenge of the learned trial judge’s judgment for deciding the matter on facts not pleaded before him, the 1st is the general ground of appeal. It may be legitimate to assume that this prompted the casual approach to the formulation of the issues adopted by learned counsel to the respondent in the court below. He formulated one issue based on the evidence accepted and believed by the learned trial judge.

In the judgment of the Court of Appeal, the learned justice of the Court of Appeal who wrote the judgment of the court considered it necessary for the decision to add a fourth issue to the issues formulated by learned counsel to the appellant. The issue so formulated is:-

“Whether the learned trial judge was right to have described the reign of Odofin Adefila from Ileti section of the Okesan family as an aberration in the light of the pleadings and evidence adduced by the defence, and whether Ileti is not in fact a ruling house.”

It is pertinent to point out that grounds 2, 3 and 4 of the grounds of appeal before the court below were complaints against specific violations of the observance of the rules governing pleadings. The issues raised in those grounds of appeal did not question the comment on the description of the reign of Odofin Adefila from Ileti section as an aberration. Again the issue whether Ileti is not in fact a ruling house was not raised.

In the judgment of Akpata, J.C.A. (as he then was), but now of this court, and concurred in by Wali and Ogundare, JJ.C.A. allowed the appeal. It was held that the single appointment of Odofin Adefila made from the Ileti family was not an aberration forced by an emergency, and that the learned trial judge was wrong to so hold. He held that No evidence of any emergency was adduced and no crisis situation was shown to have existed at the time of his installation. There was no evidence that any branch of Okesan family as a body opposed the nomination and installation of Adefila as the Odofin. The learned justice of the Court of Appeal further observed as follows:-

‘To suggest that his selection as Odofin was a stop-gap measure would amount to a deliberate distortion of history.”         (See page 135).

After a detailed critical analysis of the findings of the learned trial judge on the issue, the learned justice said that the trial judge relied for his strange explanation of why Odofin Adefila was chosen on facts which were neither pleaded nor given in evidence. The court below holding that the findings of fact of the trial judge was perverse went on to reject the finding that Odofin Adefila was the 12th Odofin in the line of succession. He held that Odofin Adefila was the 3rd Odofin in Omu-Aran and not the twelfth. It was also held that No section of Okesan family had produced more than one Odofin at Omu-Aran before Odofin Adefila was selected from the Red section. He was therefore from all indications enthroned as of right from a legitimate ruling Ileti compound or section.

The court went on to ask the intractable question which it put to itself as follows and the resolution of which it would appear to have decided the appeal. It is this:-

“The gnawing question therefore is why Odosare or Ile Adure should be the only branch of Okesan family not a ruling house, if the case of the respondents must be accepted as did the learned trialiudge.”

It does not appear from the pleadings that this was in issue between the parties. But the court below held as follows at p.139.

“Since it was not shown before the learned trial judge that there was any stigma attaching to Odosare section disqualifying them from producing an Odofin, it is obvious that on the demise of Adefila it was the turn of Odosare from whatever angle one looks at the case to produce an Odofin.”

The Court of Appeal held that the learned trial judge was wrong to have adverted to the averment relating to the twelve Odofins which was not supported by evidence. It was also held that since it was not the case of the defence that Ileti and Odosare sections of Okesan family were not of a common ancestor with Ile Odun and Ile Okankan, the learned trial judge ought not to have relied on the evidence adduced in respect thereon. Finally, the court below allowing the appeal held:

(i)      that it would be wrong to declare the plaintiff as the rightful successor of the late Odofin Chief Salawu Adefila as prayed without qualification. The court then held that it was the turn of Odosare Ile Adure to produce an Odofin and that plaintiff has been so produced.

(ii)     the nomination of the first defendant and his purported installation are accordingly declared null and void.

(iii)    the first defendant is prohibited from parading himself or acting as the new Odofin-Aran in succession to the late Chief Salawu Adefila.

This is the judgment of the court below now before us on appeal by the defendants. Six grounds of appeal were filed. Learned counsel to the appellants and respondent have filed their briefs of argument, which they have adopted and relied upon in their oral expatiation of the arguments advanced therein. Four issues for determination have been formulated by learned counsel to the appellants and accepted and adopted by respondent’s counsel.

I consider it more convenient to set out the issues for determination in this appeal. Since they adequately cover the grounds of appeal filed and on which they are formulated it is unnecessary to reproduce the grounds of appeal. The issues in this appeal therefore are as follow:-

In the appellants’ view, the issues for determination by this Honourable Court are as follows:-

(a)     Whether the learned Justice of Appeal who delivered the lead judgment was not in error when he formulated a new issue between the parties, an issue which was not raised by the plaintiff nor by the defendants.

(b)     Whether the learned Justice of Appeal was right to have set aside the finding of fact by the learned trial judge that the reign of Odofin Adefila from Ileti section was nothing but an aberration.

(c)     Whether the learned Justice of Appeal was not in error when he held that some piece of evidence elicited from witnesses for the plaintiff under cross-examination by counsel for the defence was inadmissible since it was not so canvassed in the statement of defence.

(d)     Whether the learned Justice of Appeal was not in error to have reversed the findings of fact made by the learned trial judge, and whether on the findings of the trial judge, the defendants were not entitled to the judgment of the court.

Taking the first issue, it is relevant to consider whether the fourth issue formulated by the court below suo motu was an issue raised by the appellant in the grounds of appeal filed.

Learned counsel to the appellants has in his submission pointed out that only three issues were formulated for determination by the appellants. This is conceded by Mr. Ijaodola for the respondent. The point of difference is that whereas Mr. Kayode Sofola for the appellants contends that the learned justice of the Court of Appeal was in error to have formulated his own issue and to have allowed the appeal on such issue, M r. Ijaodola in his reply submitted that learned justice of the Court of Appeal was under a duty to formulate the fourth issue since the issue so formulated was covered by the three main issues raised by the issues formulated and amply covered by the four grounds of appeal file by the appellants.

Both learned counsel have relied on the same decided case of Adeniyi & Ors. v. Tawa Adeniyi & Ors. (1972) 1 All N.L.R. (part 1) 298; Oke-Bola & Ors. v. Molake (1975) 12 S.C. 61 and Veronica Graham & Ors. v. Lawrence Esumai & Ors. (1984) 11 S.C. 23.

Mr. Kayode Sofola has submitted and I agree entirely, since, in our adversary system of the administration of justice, the Judge is expected to be an unbiased umpire between the parties. I am aware of the English case of Calvert v. Fallon (1960) 1 All E.R. 281 where this principle was applied. The judge is not allowed to formulate the claim, defence or arguments for either of the parties, so can he not formulate Issues for a party in the determination of the case before him. Where a party failed to raise an issue relevant to the determination of his case such Issue would be deemed to be irrelevant qua the party; and he would be presumed not to be seeking the decision of the court on that Issue. It is however not disapproved for a trial judge to formulate an Issue or Issues for the parties arising from their pleadings. See Adeniji & Ors. v. Adeniji & Ors. (supra). This could be done with consent of the parties to narrow down the areas of controversy and agree on the Issues actually In dispute. It saves valuable time and reduces the cost of litigation to remove the weeds of irrelevancies and cobwebs of matters unnecessarily beclouding otherwise clear Issues.

This court has held in Oke-Bola & Ors. v. Alhaji A. T. Molake (1979) 12 S.C. 61 at p.62, that:-

The formulation of issues by a trial court, not based on the pleadings filed by the parties in a case, may invalidate a judgment because it was based on issues, which either party in the case did not raise in their pleadings, but for which they require a judicial decision.

Again in African Continental Seaways Ltd. V. Nigerian Dredging Roads and General Works Ltd. (1977) 5 S.C. 235 at p.248. Irikefe, J.S.C. emphasized the need for courts to limit themselves severely to the issues raised by the parties. He pointed out that the rationale for the rule is that:

“To do otherwise might well result in a denial of justice to one or other of the two contesting parties.”

The following cases were cited in supported -N.I.PC. Ltd. v. Bank of West Africa (1962) 1 All N.L.R. (part 4) at 559; Kalio & Ors. (1969) 1 All N.L.R. p.71 and Metalimpex v. A-G. Leventis & Co. Ltd. (1976) 2 S.C. p.91.

However, the important consideration is not merely that the issue was formulated suo motu, it has to be shown also that it was not related to the grounds of appeal filed and relied upon, and that the Court of Appeal based its decision reversing the trial judge on the issue so formulated.

This court has emphasised the essential requirement that the issues formulated for determination must not only be related to the grounds of appeal, but must fall within the grounds of appeal. If it is otherwise, the issue cannot claim to be based on the grounds of appeal and are not arguments in support of the grounds of appeal.

The grounds of appeal are attempts at demonstrating the errors of law or fact disclosed in the judgment appealed against. Hence, unless the issues for determination come within the grounds, there is no legitimate challenge to the judgment appealed against.

I have already referred to the fourth issue formulated in the court below. A clear analysis reveals that there are two issues rolled into one, in the fourth issue. There is the issue whether the trial judge was right to have described the reign of Odofin Adefila as an aberration, and the issue whether Ileti is not in fact a ruling house. I am not satisfied that the two issues are covered by any of the ground of appeal filed in the court below, or as Mr. Ijaodola suggests that they are covered by the three main issues of the four grounds of appeal. With due respect to the submission of learned counsel to the respondent, it is difficult to conceive of a necessity to formulate a new issue already covered by the issues formulated.

I have been unable to find in any of the three issues formulated, or grounds of appeal filed any issue related to the fourth issue formulated in the court below. Consequently the issue is not related to any of the grounds of appeal filed and cannot be correctly regarded as an issue for determination in the appeal.

There is an aspect referred to in learned counsel to the appellant’s brief which ought to be developed. This is the question of the denial of justice arising from the exercise. It is not denied that the learned justice of the Court of Appeal formulated the issue for the appellants in the court below. This is clear from the fact that he described it as the fourth issue. Again, there was no opportunity to the respondents in the court below to oppose or accept the formulation of the issue.

1 have already pointed out that by his action in formulating the fourth not related to the grounds of appeal filed for one of the parties, the learned justice of the Court of Appeal had negatived the presumption of impartiality and thrown his consider-able weight on the side of the appellant in the court below. This, he certainly cannot in the interest of justice do as the resulting effect is a denial of justice to the other side. It is well settled that in a civil suit the judge has no power to call a witness not called by either side without the consent of both parties – See Re Enoch, & Zaretsky, Bock & Co. (1910) IRB. 327. In the circumstances our principles for the administration of justice will strongly deprecate the judge formulating an issue for determination for one of the parties in this appeal without the consent of the other. The denial of justice is on the formulation of the issue as described in this judgment.

Now, although the formulation of the fourth issue for determination suo motu and without opportunity for the respondent to oppose or accept by itself is an incurable defect in the proceedings sufficient to set aside the appeal, see Madukolu v. Nkemdilim (1962) 1 All N.L.R. 598, the more fatal defect is that the court below based the determination of the appeal on the resolution of the fourth issue. The grounds on which the learned trial judge’s decision was set aside were that the findings of fact that the appointment of Odofin Salawu Adefila was an aberration, and that the Ileti was not a ruling house were perverse. In his judgment the learned justice of the Court of Appeal went on to show that the appointment of Odofin Salawu Adefila was not an aberration, and that this ascension to the ‘throne’ was not an emergency measure prompted by a crisis situation. The judgment also went on to hold that from all indications Odofin Salawu Adefila was enthroned as of right from a legitimate Ileti compound or section.

I do not think the above findings were relevant to the issues before the trial judge. The issues in respect of which the declaration was sought were whether the plaintiff is the rightful successor to Odofin Salawu Adefila, and a declaration that it was not yet the turn of the 1st defendant to become the new Odofin-Aran. The determination whether the appointment of Odofin Salawu Adefila is an aber-ration or whether he Salawu Adefila was appointed as of right from a legitimate Ileti compound or section are not issues relevant in the determination of those ques-tions.

I now turn to the second issue for determination, which is whether the learned justice of the Court of Appeal was right to have set aside the finding of fact by the learned trial judge that the reign of Odofin Salawu Adefila from Ileti section was nothing but an aberration.

The learned justice of the Court of Appeal rejected the finding of fact because on his evaluation of the evidence there was nothing to support the opinion expressed that the installation of Odofin Salawu Adefila was an emergency measure to solve a crisis situation. He found neither evidence of any emergency nor of a crisis at the time of the installation. There was also no evidence that any branch of Okesan family as a body opposed the nomination and installation. The learned justice was particularly swayed by the fact that a member of each of the three sections of the Okesan family has been the Odofin of Omu-Aran since the inception of the town. He therefore rejected the list of 12 Odofins past and present relied upon by the defendants as having been appointed from the four sections of the Okesan family and in respect of the associated town. Out of these 12 only one was from Ileti, and that was Odofin Salawu Adefila. This averment was rejected because it was not supported by any evidence, and therefore went to no issue.

I accept the submission of Mr. Sofola for the appellants, that the learned justice of the Court of Appeal clearly ignored the evidence of D.W2 who stated that he conveyed his displeasure to Odofin Salawu Adefila, for the surrender of his D. W 2’s father turn as Odofin to Odofin Salawu Adefila. Similar evidence was given by D.W.4. As I have already pointed out this was not any of the issues relevant to the determination of the case. However, since the trial judge who had seen and heard the witnesses believed them, as against the witnesses of the plaintiff, the issue is one of credibility in respect of which the appellate court cannot interfere – See Ogundulu v. Phillips (1973) N.M.L.R. 267. It is strictly speaking not a question of the evaluation of the evidence-See Kponuglo v. Kodaya (1933) 2 W.A.C.A. 24. The Court of Appeal not having seen the witnesses is not in a position to comment on their credibility. The Court of Appeal had no business in substituting their own views of the evidence of the witnesses for what the learned trial judge had accepted as to how Odofin Salawu Adefila came to be appointed Odofin – See Egri v. Uperi (1974) 1 N.M.L.R. 22; Balogun v. Agboola (1974) 1 All N.L.R. (part 2) 66. It seems to me in this case that the court below chose to substitute a finding it considered on the facts the learned trial judge ought to have made. This in cannot do. See Kuma v. Kuma (1938) 5 W.A.C.A. 4.

The third issue relates to the rejection by the court below of the evidence elicited from witnesses under cross-examination on the grounds that having not been pleaded in the statement of defence was inadmissible. The court below relied on the two cases of George v. U.B.A. (1972) 1 All N.L.R. (part 2) 347 and George v. Dominion Flour Mills (1963) 1 All N.L.R. 71.

The evidence thus rejected as inadmissible is the evidence that the four sections of the Okesan family had no common ancestor, and that only the Ile Odun and Okankan are related by blood.

Mr Ijaodola for the respondent in support of the view held in the court below submitted that what the court meant was that parties are bound by their pleadings, and that a party could not set up a claim different from that in his pleadings. Learned counsel argued that since the object of cross-examination is to test the veracity of the witness it can only be used to demolish the case of the adversary and not to build a case different from that relied upon in the pleadings.

George v. U.B.A. Ltd. (supra) relied upon was with reference to the case of the plaintiffs who had not in the statement of claim pleaded, the assignment to plaintiffs of the assets of the British & French Bank, which was subsequently bought over by U.B.A. Ltd. A witness for the plaintiff bank, admitted in cross-examination that the assets of the British and French Bank were taken over by the U.B.A. Ltd. The trial judge relied on this piece of evidence and held that the account of the British & French Bank was taken over by the U.B.A. Ltd., and accordingly the U.B.A. Ltd. took over the previous indebtedness of the defendant to the British & French Bank. The debt was still due, was still accruing interest and was to be paid by him to the U.B.A. Ltd. the plaintiffs. This court set aside the judgment. Commenting on the evidence relied upon it was declared as follows – at p. 354:-

“On the basis of their pleadings alone, the plaintiffs/respondents did not show that they had taken over or had been assigned the assets and liabilities of the British and French Bank including the debt, if any, owed to that bank, by the defendant/appellant. Even the evidence adduced which to our mind, should not have been admitted and should have therefore been ignored, did not appear to improve the situation.”

Here the evidence rejected and declared inadmissible was evidence of plain-tiff’s witness which if admitted would have operated as an amendment to the statement of claim. This is because the evidence elicited having not been pleaded could not be admitted in this manner.

Similarly in George & Ors. v. Dominion Flour Mills Ltd. (Supra) the questions during cross-examination directed to show illegality, and evidence of illegality was given. The learned trial judge in his judgment refused to consider the evidence of illegality as illegality was not specifically pleaded. An application to amend the statement of defence to include a defence of illegality was refused. This court approved the position taken by the learned trial judge. It was held that he was right in disregarding all evidence bearing on illegality, whether in the cross-examination of the plaintiff’s witness or in the issues for adjudication.

In each of these case the principle relied upon by the court was that evidence in respect of which no Issue has been joined goes to no Issue and is accordingly Inadmissible. This Is the legal position whether B Is evidence elicited In Chief or during cross-examination. However, this court had held, despite the rule that a party may not be allowed to lead evidence outside his pleadings, that a plaintiff will be entitled to lead evidence on a point raised in defendant’s pleadings – See Emegokwe & Ors. v. Okadigbo & Ors. (1973) 4 S.C. 113. It seems to me consistent with principle that evidence led during cross-examination on issues joined, is not Inadmissible, merely because such evidence Is not supported by the pleading of the party eliciting the evidence. For instance in the instant case, although the defendants did not plead the fact that all the sections of the Okesan family had a common ancestor, the reference to the fact that they were all of the same family by paragraph 6 of the statement of claim was sufficient for the admission of any evidence establishing or negating that fact. And this is so whether on cross- examination.

The rationale for rejecting evidence is on the ground of inadmissibility and not relevance to the issues joined. The evidence rejected are not inadmissible and ought not to have been rejected.

The fourth issue was based on the reversal by the court below of the findings of fact of the learned trial judge.

The principles of law for interfering with primary findings of fact are well settled and our courts have been most reluctant in departing from them.

The learned trial judge found as a fact that there are four sections of the Okesan family. He relied for these findings on the evidence of defence witnesses which he believed. He also found on the evidence of witnesses that two of the four sections of the Okesan family were related by blood, and by custom were the only sections which are entitled to be appointed to the Odofin Chieftaincy. It was the submission of Mr. Sofola that the pieces of evidence being rejected by the court below were all accepted by the learned trial judge who saw, heard and observed the witnesses. It was therefore not within the competence of the court below to reverse the findings. It was contended that the court below acted largely on the logicality of the evidence, which it was submitted was not a proper yard stick for the acceptance of custom. Learned counsel referred to the finding on the number of Odofins and pointed out that the court below completely misunderstood the point of the defendants.

Mr. Ijaodola for the respondents supported the reversal of the findings of fact of the trial judge. He referred to the finding that the appointment of Odofin Salawu Adefila was an aberration and supported the criticism that the finding was perverse. Learned counsel submitted that the custom restricting the appointment of the Odofin of Omu-Aran to only two of the four sections of the family was not proved.

It is important to bear in mind that the fourth issue under consideration is concerned entirely with the reversal of findings of fact of the trial judge. The principle is well settled that there is a presumption that the decision of the court of trial on the facts is correct. The person arguing the contrary has the burden of displacing the presumption – See Williams v. Johnson (1937) 2 W.A.C.A. 253. The findings of fact are matters peculiarly within the exclusive jurisdiction of the court of trial. The Court of Appeal has no jurisdiction to interfere by substituting its own views. In the instant case, the findings of facts reversed by the court below related to the credibility of the witnesses, in respect of which the court below cannot interfere. See The Military Governor Western State v. Afolabi Laniba & Anor (1974) 1 All N.L.R. (part 2) 179.

The court below surprisingly did not attack the findings of fact by pointing out any defects in them. This has to be so because they were based on the evidence of witnesses which the learned trial judge believed. The Court of Appeal was wrong to have reversed the findings.

I have accordingly resolved all the issues for determination in favour of the appellants. The appeal is therefore allowed. The judgment of the Court of Appeal dated 31st March, 1987 is therefore set aside. Judgment of the High Court of Ilorin dated 25th January, 1985 is therefore hereby restored.

I wish to point out that if the courts had confined the determination of the case, both at the trial and on appeal, to the claim before the court, the unnecessary excursion to irrelevant issues, though related would have been avoided.

Appellants shall have costs of this appeal assessed at N500.00 in this court, and N300.00 in the court below.

OLATAWURA, J.S.C.: I had a preview of the judgment just delivered by my learned brother, Belgore, J.S.C. I agree with his reasons and conclusions. I will adopt them as mine. I have nothing more to add. I will also allow the appeal; set aside the decision of the lower court and I hereby restore the decision of Gbadeyan, J., delivered on 25th January, 1985. Costs in the lower court are assessed at N300.00 in favour of the respondents in that court. Costs of N500.00 are awarded in favour of the appellants in this court.

Appeal allowed.

 

error: Our Content is protected!! Contact us to get the resources...
Subscribe!