AYOBOADE v. OJO & ORS
(2020)LCN/14496(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Friday, July 17, 2020
CA/AK/227/2017
Before Our Lordships:
Oyebisi Folayemi Omoleye Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
PRINCE RAIMI ATOYEBI AYOBOADE (Suing For Himself And On Behalf Of The Oyeboade Ruling House, Ile Orisa, Ile, Olorunda (Themselves And On Behalf Of The Akinwunmi) Local Government Area Of Osun State) APPELANT(S)
And
- CHIEF BURAIMOH OJO & ORS (For Himself And On Behalf Of The Kingmakers, Ile, Olorunda Local Government, Osun State) 2. KILANI OLADOSU ADEBIYI OGUNLANA (For Himself And On Behalf Of The Siyanbola Family) 3. HAREEM OLADAPO OLAGUNSOYE OGUNJOKE (For Himself And On Behalf Of The Orisajenyo Family) 4. THE GOVERNOR OSUN STATE 5. ATTORNEY GENERAL OF OSUN STATE 6. COMMISSIONER FOR LOCAL GOVERNMENT & COMM, DEVELOPMENT, OSUN STATE (Joined By The Order Of Court Dated 20/11/2003) 7. KOLAWOLE NAJEEM (For Himself And On Behalf Of The Subulubi Family) RESPONDENT(S)
RATIO
WHETHER OR NOT THE ONUS OF PROOF RESTS ON A PARTY SEEKING FOR DECLARATORY RELIEFS UPON WHICH THE INJUNCTIVE RELIEFS ARE BASED
The appellant at the trial Court sought for declaratory reliefs upon which the injunctive reliefs are based. The onus of proof by law is imposed on the Appellant to entitle him to the declaratory reliefs sought. See the case of CENTRAL BANK OF NIGERIA v. JACOB OLADELE AMAO & 2 ORS (SUPRA) and AYANRU RTD. V. MANDILAS LTD (SUPRA) where the Apex Court held:
“The requirement of the law regarding the onus placed on a party claiming a declaratory relief as claimed by the Appellant in the present case is trite. A claim for relief of declaration, whether of title to land or not, is not established by admission by the Defendant, because the plaintiff must satisfy the Court by cogent and credible evidence called by him to prove that as a claimant, he is entitled to the declaratory relief. It is the law that a Court does not grant declaration on admission of parties because the Court must be satisfied that the Plaintiff on his own evidence, is entitled to the relief claimed.” PER ABDULLAHI, J.C.A.
RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Osun State, sitting at Ejigbo Judicial Division, delivered on 29/6/2017 dismissing the Appellant’s claims. The said judgment is at pp. 219 – 252 of the record.
The Appellant herein as plaintiff before the trial Court prayed the Court for Declarations and Injunctions.
The writ of Summons can be found at pp. 10 – 11 of the record and the 3rd Amended Statement of Claim and the accompanied processes can be found at pp. 119 -125 of the record.
The Lower Court delivered its judgment on the 29th June, 2017 and being dissatisfied, the Appellant filed a Notice of Appeal containing seven grounds on the 22nd July, 2017 as can be found at pp. 253 – 263 of the Record of Appeal transmitted on 9th October, 2017.
BACKGROUND FACTS
The Suit, leading to the instant appeal, was commenced by Appellant’s Family, the Oyeboade Family, through the then head of the family, in the person of Buriamoh Oyeboade, by virtue of a Writ of Summons and Statement of claim filed on 14th
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September, 2001. As a result of changes of the parties in the suit and need to properly reflect all the relevant facts to the just determination of the dispute before the Court, there were several amendments to the pleadings of the parties. The Appellant, by his last amended processes, therefore filed his 3rd Amended Statement of Claim, dated 18th June, 2013, but filed on 26th June, 2013, wherein he sought for the following reliefs:
i. A DECLARATION that an application law that regulates the nomination, selection and appointment of Alie of Ilie Chieftaincy is the Alie Chieftaincy Declaration dated 17th August, 1978 and approved on 30th June, 1980.
ii. A DECLARATION that by virtue of the applicable Alie of Ilie Chieftaincy Declaration dated 17th August, 1978 and approved on 30th June 1980, the only ruling houses which have the right to provide candidate for the Alie of Ilie Chieftaincy are kuaru and Oyeboade Ruling Houses.
iii. A DECLRATION that according to the customary law of Alie of Ilie Chieftaincy, the 2nd and 3rd, 7th, Defendants’ Families are not members of Oyeboade Ruling House and therefore not competent or entitle to provide
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any candidate to fill the vacant stool of Alie of Ilie under the applicable rule.
iv. AN ORDER OF INJUNCTION restraining the 1st, 4th and 6th defendants from recognizing, conferring the title of the Alie of Ilie on members of the 2nd, 3rd, and 7th Defendants’ families.
v. AN ORDER OF INJUNTION restraining the 1st, 4th, and 6th defendants from accepting nomination or selecting, appointing and/or conferring the title of Alie Ilie on any other person from any family except the Oyeboade Ruling family.
vi. AN ORDER that the 1st, 4th, and 6th defendants do forthwith announce the name of Oyeboade Ruling House, being represented by the Plaintiff, as the ruling house entitle under the applicable Alie of Ilie Chieftaincy dated 17th August, 1978 and approved on 30th June, 1980, to nominate candidate to fill the vacant stool of Alie of Ilie Chieftaincy.
All the Respondents, as Defendants, joined issues with the Appellant in respect of claim before the Court, by filing their respective Statements of Defence.
In line with the Rules of this Court, the parties filed and exchanged Briefs of Argument in this appeal which were identified and
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adopted by their legal representatives on the date slated for hearing of the appeal. Oludotun Osho Esq. who settled the Appellant’s Brief, referred to and adopted same which contained three (3) issues for determination as follows:
1. Whether the learned trial Judge was right when he held that the Appellant premised his case on the purported admission of the 1st, 2nd, 3rd, and 7th Respondents in proof of the reliefs sought before the Court.
2. Whether the Appellant had not discharged the burden of proof required to sustain the reliefs that it is only Oyeboade Ruling House of the Appellant that is entitled to fill the vacancy of Alie of Ilie Chieftaincy, in accordance with the Chieftaincy Declaration of 1980 (Exhibit P2).
3. Whether the learned trial Judge was right to have held that the 2nd and 3rd Respondents had established that their grandfather was an Alie.
Adewale Afolabi Esq. who settled the 1st, 2nd, 3rd, and 7th Respondents’ Brief appeared with T.I. Ibikunle Esq. and adopted the said brief which contained the same three (3) issues as formulated by the Appellant. Ambali Adisa (Asst. Director) MOJ of Osun State referred
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to and adopted the 4th, 5th, and 6th Respondents’ Brief settled by Dr. S. A. Basiru (Att. General) MOJ, Osun State which contained a lone issue, to wit:
(i) Whether the learned trial judge was right when he held that the Appellant could not succeed in this case based on any purported admission by the Defendants and that the Appellant had not discharged the burden of proof required to succeed on the reliefs claimed (Grounds 1, 2, 3, 4, 5, 6, and 7).
The Appellant’s Brief of Argument was filed on 22/11/2017; the 1st, 2nd, 3rd, and 7th Respondents’ Brief of Argument was filed on 19/12/2017 and 4th, 5th and 6th Respondents’ Brief of Argument was filed on 7/3/2018 but deemed properly filed and served on 2/5/2018. All the three Briefs were identified and adopted on 16/3/2020 together with the Appellant’s Reply Brief filed on 10/10/2018 but deemed properly filed and served on 16/3/2020.
TREATMENT OF THE ISSUES
The issues as enumerated above are to be treated as serially treated by the learned Counsel for the Appellant, since the treatment encompassed the sole issue of the 4th – 6th Respondents.
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ISSUES 1 and 2 TOGETHER
These two issues were argued together by the learned counsel for the Appellant with reference to the holden of the learned trial Judge who held inter alia as follows:
“In the present case, Reliefs (i), (ii), and (iii) sought by the plaintiff are declaratory reliefs while other reliefs are orders deriving from the declaratory reliefs. It is therefore not enough for the plaintiff’s Counsel to premise his case on the purported admission of the 1st, 2nd, 3rd and 7th defendants: the law expects him to prove his case before he can be entitled to the declaratory reliefs he is seeking from this Court. In the light of this, I hold that purported admission of the plaintiff’s claim by the 1st, 2nd, 3rd, and 7th Defendants will not avail in this case. This issue is therefore resolved in favour of the 1st, 2nd, 3rd and 7th Defendants.”
He submitted that by virtue of the nature of the pleadings and evidence relied upon by the Appellant, his case was never predicated or premised on the admission of the 1st, 2nd, 3rd and 7th Respondents. That the crux and fulcrum of the Appellant’s case upon which he gave evidence is
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that by virtue of the 1980 ALIE of ILIE CHIEFTANCY DECLARATION (Exhibits P2 and D4, only the person/candidate presented by the OYEBOADE (Appellant’s) family is entitled to fill the vacancy of Alie of Ilie Chieftaincy, upon the demise of the last occupant of the Chieftaincy from kuaru family.
He referred to the Amended Statement of Claim, Amended Reply of the Appellant and the evidence of PW1. He said that the Appellant also pleaded copiously and led evidence of the unbroken traditional history from KUARU (the founder of the Chieftaincy of Alie and the town itself) to the Appellant.
That the Appellant through the PW1 tendered six documents marked as Exhibits P1 – P6. He contended that the learned trial judge failed to consider the nature of the evidence given in support of the case of the Plaintiff/Appellant, in relation to the fact in issue as to whether the 1980 ALIE OF ILIE CHIEFTAINCY DECLARATION (Exhibits P2 and P4) recognized any other Ruling House other than KUARU and OYEBOADE Ruling Houses.
That the 1st – 3rd and 7th Respondents in their Consequential Amended statement of Defence admitted the averments contained in paras. 2,
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3, 5, 6, 7, 8, 9, 10, 11, 13, 14, 16, 17, 18, 20, 24 and 25 of the 2nd Amended Statement of Claim which are in pari–material with the 3rd Amended Statement of Claim. He submitted that facts admitted need no further proof. Referred to K. P. R. C. v. ONUORAH (2000) FWLR (pt. 27) 1959; UDO v. WILLIAMS (1997) 1 NWLR (pt. 483) 548 at 563 and OLAGBEGI v. OGUNOYE II (1996) 5 NWLR (pt. 448) 332 at 357.
He said that the learned trial Judge insisted that the non disputed facts must be proved simply because the case before him involved Declaration of Rights. That all the witnesses of the Respondents agreed in their respective testimony on one thing, that the last ALIE of ILIE was the grandfather of the Appellant. He referred to the testimonies of DW1 (3rd Respondent) at page 211 lines 6 – 7; DW2 (2nd Respondent) at pages 213 lines 27 – 29, 214 line 1 and DW3 (7th Respondents) at page 215 lines 20 – 22 of the Record of Appeal.
Counsel submitted that the Appellant is entitled to take benefit of the evidence of the Respondents which supported his case. Relied on ALHAJI AMUDA I. ADEBAMBO & ORS v. ALHAJI LAMIDI DAODU OLOWOSAGO & ORS
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(1985) LPLER – 21281 (CA) 18 paras. B – F.
He contended that the learned trial judge failed to recognize the facts in dispute or in issue from the facts which were admitted by pleadings of the Defendants/Respondents, thereby approaching the nature of the burden of proof on the Appellant from fundamentally wrong perspective. That at any rate, the Appellant never premised his entitlement to the reliefs sought on the facts admitted but on facts which were already established by evidence. Cited SANUSI v. AMEYOGUN (1992) 4 NWLR (pt. 237) 527 at 550 paras. E – G.
He said that in this case, the learned trial Judge failed completely to consider the evidence contained in the two depositions of the Appellant, together with the six (6) exhibits tendered before coming to an erroneous conclusion at page 291. Lines 19 – 25 of the Records, thus:
“It is therefore not enough for the plaintiff’s Counsel to premise his case on the purported admission of the 1st, 2nd, 3rd, and 7th Defendants: the law expects him to prove his case before he can be entitled to the declaratory reliefs he is seeking from the Court. In the light of
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this, I hold that the purported admission of plaintiff’s
Claim by the 1st, 2nd, 3rd, and 7th Defendants will not avail in this case.”
Counsel submitted that where a Court is presented with oral and documentary evidence in proof of the same set of facts, the document will be used as the hanger upon which the veracity of the oral evidence will be tested. Relied on EBEM & ANR. V. NSEYEN (2016) LPELR 40122 (CA) 20 – 21, paras. A – B.
That since there is no dispute about the facts that the Appellant is a member of the OYEBOADE Ruling house of ALIE of ILIE (ALIE OYEDARE), who reigned between 1953 – 1961; the only question that the learned trial Judge should have considered in the evidence before him is: whether the 2nd, 3rd and 7th Defendants are members of Oyeboade Ruling House. That it is the case of the Appellant that 2nd, 3rd and 7th Respondents are not members of Oyeboade Ruling House.
Counsel said that the pleading history of the Appellant on tradition and evidence led in support is cogent, compelling and conclusive. That in order to consider the cogency of the traditional history relied on by the
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Plaintiff/Appellant, the Court must look at the relevant aspects of the pleadings and evidence. Relied on AKPAN v. UDOETUK (1993) 3 NWLR (pt. 279) 94 at 103.
That the Respondents never contradicted the Appellant on his line of history and genealogy from KUARU to the original Plaintiff as well as Appellant. Referred to OZIGBU ENG. V. IWUAMADI (2009) 16 NWLR (pt. 1166) 44 at 63 paras. D – E
It is submitted that the traditional history and narration given by PW1 in support of the case of the Appellant was substantially different from that of the traditional history of 1st, 2nd, 3rd and 7th Respondents.
Counsel opined that the Appellant only had the burden to prove the averments contained in his pleadings and nothing more. That having shown to have done so by oral and documentary evidence, the learned trial judge had no right to impose any burden of proof outside the Appellant’s pleadings. Cited NWOKOROBIA v. NWOGU (2009) 10 NWLR (pt.1150) 553 at 572 – 573 paras. G – A.
That the learned trial Judge imputed the contradictions in the case presented by the 1st, 2nd, 3rd and 7th Respondents on the Appellant as if the
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Appellant had the legal burden to prove the averments contained in the statements of Defence filed by the 1st, 2nd, 3rd and 7th Respondents. That the Appellant had no such burden.
He submitted that the Appellant by his evidence on record is a member of the OYEBOADE Ruling House and grandson of the last ALIE of ILIE; who reigned between 1953 – 1961. That the 2nd, 3rd, and 7th Respondents are not members of Oyeboade Ruling House shows the Appellant had discharged the burden of proof required by his pleadings. Accordingly, the onus automatically shifted to the Respondents to show that they are members of OYEBOADE Ruling House. Relied on OKUPE v. IFEMEMBI (1974) 3 SC. 97 at 140.
In the light of the foregoing submissions and arguments, the learned Counsel for the Appellant urged the Court to sustain grounds 1, 2, 3, 4 and 7 of the grounds of appeal and resolve issues 1 and 2 distilled therefrom in favour of the Appellant.
In response to issues 1 and 2, the learned Counsel to the 1st, 2nd, 3rd and 7th Respondents argued that the Appellant sought for declaratory reliefs at the trial Court and must discharge the onus of proof imposed on him by law
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to entitle him the reliefs sought. Referred to CENTRAL BANK OF NIGERIA v. JACOB OLADELE AMAO & 2 ORS. (2010) LPELR – 838 (SC) and AYANRU RTD. V. MANDILAS LTD (2007) LPELR – 670 (SC)16 – 17 paras. E – C.
That the 1st – 3rd and 7th Respondents admitted paras. 2, 3, 5, 6, 7, 8, 9, 10, 11, 13, 14, 16, 17 18, 20, 24, and 25 of the 2nd Amended statement of claim in para. 2 of their consequential Amended Statement of Defence but in subsequent paragraphs stated a case different from that of the Appellant, particularly the genealogy of the 2nd, 3rd and 7th Respondents at paras. 6 – 16. He referred to their denial of the assertion that they were not members of OYEBOADE Ruling House by pleading their roots and connecting themselves to a previous ALIE OGUNLANDA in paras. 15, 18 and 24 while also establishing the different family branches and components that exist in the OYEBOADE Ruling House and the Respondents’ connection with them in paras. 19 and 20.
Counsel referred to the holden of the trial Court at page 241 of the Record and submitted that it is fortified in its decision. He said that admission ought to be
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direct, positive, non-evasive, clear and unequivocal. Relied on SAMABEY INTNAL COMMUNICATION LTD v. CELTEL NIG. LTD (2013) LPELR – 20758 (CA) 31 – 32 paras. G –D.
That the facts admitted by the Respondents are those not in dispute. However, other facts were in dispute in respect of which evidence had to be led which the Respondents made out a totally different case from that of the Appellant.
Counsel contended that the holding of the trial Judge that the Appellant ought to prove his case and not to rely on an admission is law as basic as it is. Referred to ODUTOLA v. PAPERSACK NIG. LTD (2006) LPELR – 2259 (SC) 29 – 30 paras. F – G.
That the purported admissions were not proving the material evidence required of the Appellant, who needed evidence to substantiate the crux of his case that the 2nd, 3rd, and 7th Respondents were not members of Oyeboade Ruling House. He said that no such thing was ever admitted by any of the pleadings and evidence of the Respondents throughout the length and breath of the proceedings. He who asserts must prove as required by the law, especially where declarations are concerned. He
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said that burden of proof does not shift to the Respondents, unless the Appellant led evidence to show that they do not belong to the said Ruling House. Cited AMADI v. ORJI (2016) 9 NWLR (pt. 1516) 154 at 170 paras. F – G; B.O.I. LTD v. AWOJUGBAGBE LIGHT IND. LTD (2016) 1 NWLR (pt. 1493) 280 at 328 para. B and SEAMARINE V. AYETORO BAY AGENCY (2016) 4 NWLR (pt. 1502) 313 CA.
Counsel argued that no one joined issues with the Appellant to the effect that the Appellant is not a member of a Ruling House of Ilie, therefore Counsel for the Appellant’s argument that the evidence of DW1, DW2 and DW3 supported Appellant’s case hold no water and an exercise in futility. That the said witnesses simply said that they know the plaintiff and that his grandfather was once an Alie of Ilie.
He further argued that the evidence of the Defence witnesses did not support the case of the Appellant that the 1st, 2nd, 3rd, and 7th Respondents are not entitled to the stool, as such the Appellant’s pleadings in this regards remains unsubstantiated by a credible evidence before the lower Court. Relied on UDOM v. UMANA (2016) 12 NWLR (pt. 1526) 179 at 218 paras, D – F.
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That the said evidence of D1, D2 and D3 only established the Appellant, his father and grandfather were members of the OYEBOADE Ruling House and nothing more.
Counsel contended that the Appellant’s sole witness, PW1 under Cross – examination contrary to his evidence in chief said that the 2nd, 3rd, and 7th Respondents are not descendant of Dada Ogbegun and therefore not entitled to Alie of Ilie Chieftaincy, admitted that 7th Respondent is from Subulubi section while confirming himself (PW1) to be a grandson of Subulubi. He said that PW1 and 7th Respondent were from the same Subulubi family, a component/branch of OYEBOADE Ruling House, from where the Appellant himself had every right to vie for the vacant seat of Alie of Ilie, being a male member. Invariably, both of them are entitled to vie for the stool.
He further stated that the question as to the 7th Respondent’s membership of Subulubi family of OYEBOADE Ruling House was already well settled by reason of PW1’s admission. That it was therefore a matter of sound Judgment for the Court to hold at page 243 of the Record that the 7th Respondent was a member of
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the said family in OYEBOADE Ruling House.
Counsel went further to align the holding of the trial Court to the pleadings and evidence of the 2nd, 3rd and 7th Respondents. This is because the Appellant denied that any person by the name Alie Ogunlana ever reigned in Ilie. Whereas the 1st, 2nd, 3rd and 7th Respondents’ case is to the effect that not only did such a person by the name of Alie Ogunlana existed in the history of Alie of Ilie Chieftaincy but that the 2nd, 3rd and 7th Respondents were connected with him by blood and are thereby entitled to the stool of Alie. He made reference to paras. 4, 5, 16 and 24 of the Respondents’ Consequential Amended Statement of Defence on Record. Further referred to Exhibit 5 being a Record of proceedings in case No. 3/1932; REX v. AKINYOYE of IFON (at page 251 of the Record of Appeal). He referred to series of documents admitted as exhibits relevant to the said issue and oral evidence adduced in proof thereof.
The response of the 4th, 5th, and 6th Respondents is based on the lone issue elected by them, having withdrawn and abandoned the Preliminary Objection and argument in support thereof contained on
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pages 7 – 9 of their Brief of Argument.
The learned counsel to the 4th, 5th and 6th Respondents stated that from the pleadings and evidence, the crux of the Appellant’s case really turns on whether the Appellant has established his case as expected by law; that the 2nd, 3rd and 7th Respondents’ families are not members of OYEBOADE Ruling House and therefore are not competent or entitled to provide any candidate to fill the vacant stool of Alie of Ilie under the applicable rule. He said that in a well – considered judgment and upon proper evaluation of evidence called by the parties, the learned trial Judge held that the principal reliefs being declarative in nature cannot be granted upon admission, if any. (Referred to pages 240 – 241 of the Record.) He furthered, the Court went ahead to evaluate the evidence of the parties and held that the Appellant did not call reliable evidence in support of his declarative relief that the 2nd, 3rd and 7th Respondents’ families are not members of OYEBOADE Ruling House and therefore not competent or entitled to provide any candidate to fill the vacant stool of Alie of Ilie under the
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applicable Rule (pages 242 – 252 of the Record).
Counsel contended that the relevant portions of the judgment on the issue of admission is on pages 240 -241 of the Record. Contrary to Ground one (1) of the Notice of Appeal, the learned trial judge never decided the case on the basis that the Appellant solely predicted his case on admission. Rather, the Court rightly held that assuming that there was admission, the Court cannot grant declaratory reliefs on admission by the defendants. He furthered that the Court dismissed the case of the Appellant because upon evaluation of evidence of the parties, it rightly found that the Appellant failed to discharge the burden of proof to entitle the Appellant to the reliefs sought. He submitted that the learned trial Judge was right in his decision that the Appellant failed to discharge the legal duty upon him to prove his case to the standard required by the law. Relied on AKPAN v. U. B. A PLC (2011) 2 NWLR (pt. 1231) 399 at 403 and EDWARD NKWEGU OKEREKE v. NWEZE DAVID UMAHI (2016) 11 NWLR (pt. 1524) 438.
That the Appellant must succeed not on the weakness of the Respondents’ defence, if any. That
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the reliefs sought by the Appellant cannot be granted even on the admission of the Respondents as the Defendants at the lower Court. He referred to the 1st, 2nd, 3rd and 7th Respondents’ Amended Statement of Defence at pages 24 to 29 of the Record and submitted that there is no other place where the Respondents admitted any other claim of the Appellant during the trial apart from the admission at para. 2 of the Statement.
Counsel opined that the averments contained in para. 2 admitted by the Respondents are those issues which are not in dispute among the parties; such as the number of Ruling houses in Alie Chieftaincy, how OYEBOADE Ruling house came about, the Ascendants of OYEBOADE and the meeting with OLORUNDA Local Government Secretary. That being so, the so called admission cannot help the case of the Appellant in any way, as those averments do not support the case of the Appellant.
He then submitted that the learned trial judge was right to have held that:
“In the present case, Reliefs (i), (ii) and (iii) sought by the Plaintiff are declaratory reliefs, while the other reliefs are orders deriving from the declaratory
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reliefs. It is therefore not enough for the Plaintiff’s Counsel to premise his case on the purported admission of the 1st, 2nd, 3rd, & 7th Defendants, the law expects him to prove his case before he can be entitled to the declaratory reliefs…” (Page 241 of the Record of Appeal).
It is submitted that upon proper evaluation of evidence, the Appellant failed to prove that the 1st, 2nd, 3rd and 7th Respondents are not from OYEBOADE Ruling House.
That the complaints of the Appellant in Grounds 5 and 6 of the Notice of Appeal became of no moment in view of the unassailable finding as to unreliability of the evidence of PW1 and failure of the Appellant to establish by evidence entitlement to the Reliefs sought.
In reaction to the 1st, 2nd, 3rd and 7th Respondents’ response in the Appellant’s Reply Brief, the learned Counsel for the Appellant contended that parties are bound by their pleadings as well as Court, which lacks power to consider issues or facts outside the pleadings of parties. Relied on TUBONEMI v. DIKIBO (2006) 5 NWLR (pt.974) 565 at 584 paras. B – C and
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OVERSEAS CONT. CO. (NIG.) LTD v. CREEK ENTERPRISE (NIG) LTD (1986) 3 NWLR 407 at 419.
He argued that the grave error or misdirection of the learned trial Judge in considering the wrong basis for the claim of the Appellant outside the pleaded facts and evidence in support thereof, amounts to breach of the principle of fair hearing. Referred to KUDU v. ALIYU (1992) 3 NWLR (pt. 231) 651 at 631 – 632.
He submitted that the burden of providing the fact that the 2nd, 3rd and 7th Respondents’ families are members of OYEBOADE family, recognized in the 1980 ALIE OF ILIE CHIEFTAINCY DECLARATION (Exhibits P2 and D4) is certainly on the 2nd, 3rd and 7th Respondents which cannot be placed on the Appellant. That the onus is automatically shifted to the Respondents to show that they are members of OYEBOADE Ruling House, having positively asserted/pleaded same in para. 10 of their Amended statement of Defence. Cited OKUPE v. IFEMEMBI (1974) 3 SC, 97 at 104; OKOYE v. NWANKWO (2014) 15 NWLR (pt. 1429) 93 at 138 -139 paras. F –A; BELLO V. GOVR. GOMBE STATE (2016) 8 NWLR (pt. 1514) 219 at 287 paras. A – D and F.B.N. PLC V. M. O. NWADIALU & SONS LTD (2016) 18 NWLR (pt. 1543) 1 at
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30 – 31 paras. G- A.
Also referred to Sections 131 and 133 (1) (2) of the Evidence Act, 2011.
Counsel argued that the Exhibits D2, D3 and D7 elicited through the evidence of DW1, DW2 and DW3 in establishing the assertion of being members of OYEBOADE Ruling House of 2nd, 3rd and 7th Respondents are not Chieftaincy Declaration applicable to the Chieftaincy in dispute. That the attempt to elevate the said exhibits to the status of ALIE OF ILIE CHIEFTAINCY DECLARATION is therefore misconceived. CitedDARAMOLA v. A. G ONDO STATE (2000) 7 NWLR (pt. 665) 440 at 472 and OLANREWAJU v. OYESOMI (2014) 11 NWLR (pt. 1418) 258 at 292 – 293 paras. H – A.
He furthered that the argument of the learned counsel on whether the 2nd, 3rd and 7th Respondents have discharged their burden of proof by virtue of the evidence of DW1, DW2 and DW3 together with Exhibits D2, D3 and D4 was answered by this Court in OGUNDIPE v. AKINLOYE (2002) 10 NWLR (pt. 775) 312 at 335.
In the light of the foregoing, we are urged to reject the contentions of the 1st, 2nd, 3rd and 7th Respondents’ Counsel and resolved issues 1 and 2 in favour of the Appellant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Learned Counsel for the Appellant adopt the Appellant’s Reply and arguments in respect of issues 1 and 2 as reply to the response of the 4th, 5th and 6th Respondents’ lone issue. He then urged us to resolve same in favour of the Appellant.
ISSUE THREE (3)
In arguing this issue 3, the learned counsel for the Appellant referred to the holden of the learned trial Judge at page 247, lines 3 – 4 of the Record of Appeal. Thus:
“Exhibits D2, D3 and D5 also established that the Grandfather of the 2nd and 3rd Defendants was Alie Ogunlana who reigned between 1918 and 1933.”
That the above findings cannot be supported by the pleadings of the 1st, 2nd, 3rd and 7th Respondents, i.e. Consequential Amended Statement of Defence dated 7/7/2011 but filed on 9/7/2014.
That the 2nd, 3rd and 7th Respondents failed in their pleadings to trace their genealogy in an unbroken chain to DADA OGBEGUN, the very first female line through whom they claim by virtue of paragraph 10 of the 1st, 1st, 2nd, 3rd and 7th Defendants’/Respondents’ Consequential Amended Statement of Defence.
He contended that parties and Court
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are bound by the pleadings upon which a case is being litigated and cannot depart therefrom to formulate a case different from the facts contained in their pleadings. Referred to OVERSEAS CONST. CO. LTD V. CREEK ENTERPRISES (NIG) LTD (1985) 3 NWLR (PT. 13) 407 at 419 and OGIDA V. OLIHA (1986) 1 NWLR (pt. 19) 786 at 798.
He submitted that there are contractions in the testimonies of DW1, DW2 and DW3 vis-a-vis the pleadings of the 1st, 2nd, 3rd and 7th Respondents.
He further submitted that Exhibits D2, D3 and D5 heavily relied upon by the learned trial judge in coming to his conclusion are not registered Declarations and incapable of substituting the extant and applicable 1980 ALIE OF ILIE CHIEFTANCY DECLARATION (Exhibits P2 and D4). He stated that the learned trial Judge erroneously treated Exhibits D2, D3, and D5 as sufficient proof of the averments contained in the Respondents’ Statement of Defence, entitling them to membership of OYEBOADE Ruling House under 1980 ALIE OF ILIE CHIEFTAINCY DECLARATION (Exhibits P2 and D4), notwithstanding that the Respondents had already admitted under Cross- examination that their family names were not mentioned
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in the applicable chieftaincy Declaration.
Counsel submitted that since Exhibits D2, D3 and D5 predated the extant and applicable law of 1980 which was never challenged by the Respondents, they ought to be treated by the learned trial judge as spent, even if they were relevant at the material times, at all.
He contended that, it is settled that for evidence of traditional history to be ascribed with some measures of credibility and to have positive effect on the side of a party, it must be uncontradicted, cogent and conclusive. Referred to AYINDE v. ABIODUN (1999) 8 NWLR (pt. 616) 587 at 575 and JOLAYEMI v. ALAOYE (2004) 12 NWLR (pt. 887) 323.
Counsel opined that since the averment in 2nd, 3rd and 7th Defendants/Respondents’ Amended Statement of Defence was that there was six (6) children of Orisajenyo, each of which constitutes a branch and component part of OYEBOADE Ruling House, they cannot be allowed to rely on pieces of evidence tending to create three (3) branches of the same OYEBOADE Ruling House.
That the Respondents having failed their traditional history cannot be allowed to create a substitute to the facts pleaded in their
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defence. Cited and relied on OLANREWAJU v. OYEYEMI (2001) 2 NWLR (pt. 696) 229 at 254 – 255.
We are urged to sustain Grounds 5 and 6 and resolve issue 3 in favour of the Appellant.
In response to the arguments on issue 3, the learned Counsel to the 1st, 2nd, 3rd and 7th Respondents referred to the Appellant’s pleadings contained at page 122 of the Records, particularly paragraphs 22 and 23 of the 3rd Amended Statement of Claim. Also referred to paragraphs 15 and 16 of the 1st, 2nd, 3rd and 7th Respondents’ Consequential Amended Statement of Defence in response to the Appellant’s assertions. He said that evidence led, both oral and documentary by the 2nd, 3rd and 7th Respondents as witnesses fully supported the pleadings related to whether or not the grandfather of the 2nd, 3rd and 7th Respondents was an Alie. Referred to the Depositions of DW1, DW2 and DW3 at pages 34, 39 and 40 of the Records together with Exhibits D2, D3 and D5 tendered at the trial.
It was submitted that the issue relating to the 7th Respondent was settled by the Appellant’s admission under Cross- examination when he said:
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“Alie Subulubi had once reigned as Alie of Ilie. The 7th Respondent is from Subulubi section of their own section. I am the grandson of Subulubi…”
Counsel contended that on the basis of the evidence of the Appellant, the learned trial Judge correctly found that PW1, the sole witness of the Appellant is not a witness of the truth when he held at page 244 of the Record:
“From the answer of the plaintiff in the witness – box, he does not appear to me as a witness of truth. In his frantic effort to prove that the 2nd, 3rd and 7th Respondents are not from Oyeboade Ruling House, he ended up contradicting himself.”
That the learned trial Judge clearly identified this issue when at page 242 of the Records had this to say:
“The main issue in this case is whether the 2nd, 3rd and 7th Respondents are members of Oyeboade Ruling House. It is the case of the plaintiff that the 2nd, 3rd and 7th Defendants are not members of Oyeboade Ruling House.”
That in resolving the issue, the learned trial Judge at pages 242 – 251 of the Records properly evaluated the evidence of the Appellant as the only witness and the evidence
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put forward by the 2nd, 3rd and 7th Defendants/Respondents.
That while considering the evidence of the Appellant on this point, the learned trial Judge held as follows:
“Earlier on I had reproduced the answer of PW1 as to the existence of documents on those who had been Alie of Ilie since 1900. He first denied the existence of such documents in one breath, but in another breath, he acknowledged the existence of such documents. In my opinion PW1 did not give a traditional history of Ilie. What he gave at best was partial or abridged story to support his narration and this is not acceptable in law.” Referred to page 245 of the Records.
Counsel submitted that the learned trial Judge called in mind the extant position of the law as stated inAJIBI v. OLAEWE (2003) 8 NWLR (pt. 822) 237 considering the oral evidence led by the 2nd, 3rd and 7th Respondents and placed in view the purport of Exhibits D1 – D5. He referred to page 246 of the Records where the learned trial Judge held thus:
“The 2nd and 3rd Defendants testified that they are from Siyanbola section of OYEBOADE Ruling House of Ilie. They also testified that their
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grandfather, Ogunlana reigned as Alie of Ilie between 1918 and 1933. In support of their case they tendered Exhibits D1 – D5. Exhibit D1 is page 5 of Exhibit P7.”(Page 246 lines 12 -14 of the Records).
He further submitted that the learned trial Judge, having thoroughly reviewed Exhibits D2, D3 and D5 at pages 246 – 251 of the Records vis-a-vis the pleadings and evidence of both parties held correctly as follows:
“The contents of Exhibits D2, D3, and D5 have established a very important fact: Ogunlana reigned as Bale (Alie) of Ilie sometimes between 1918 and 1933 after which one OYESIJI became the Alie. Oyesiji also reigned as Alie until his desmise in 1952 when ORISADARE became Alie after a contest with SHITTU LANLOKUN, the son of Alie OGUNLANA. The same Alie OGUNLANA was the grandfather of the 2nd and 3rd Defendants according to evidence adduced by the 2nd and 3rd Defendants before this Court. All the above oral and documentary evidence where never challenged or controverted by the plaintiff.”
Counsel opined that the conclusion of the trial Court that Exhibits D2, D3 and D5 also established that the grandfather
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of the 2nd and 3rd Respondents was Alie Ogunlan who reigned between 1918 and 1933 is unassailable and cannot be faulted that the presumption that the findings of facts by the trial Court are right enures in favour of this decision. Relied onONU v. IDU (2006) 12 NWLR (pt. 955) 675 at 672 – 673 paras. H – B.
In conclusion, Counsel urged us to resolve this issue 3 in favour of the Respondents.
The response of the learned Counsel to the 4th, 5th, and 6th Respondents to the issue under reference is mostly related to that of the 1st, 2nd, 3rd and 7th Respondents. He referred to Exhibits P7 and P8 which are minutes of meetings held among the Princes of Alie Chieftaincy and the officials of Government of Osun State between 2001 and 2002 which culminated in the selection and appointment of Alie of Ilie.
That the Appellant was in attendance at the two decisive meetings with the 3rd and 7th Respondents and others. The Appellant did not protest to the presence of the 3rd and 7th Respondents and others for not being members of OYEDOADE Ruling House. He said that the 3rd and 7th Respondents were also nominated as candidates for the Alie
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Chieftaincy which the 3rd Respondent finally won and became the Alie. That Appellant also seconded the candidature of his own candidate, one Prince Ismaila Oyewale Oyeniran who did not secure enough votes to emerge as Alie.
Counsel submitted that having waited for so long, behaved, allowed and conducted himself, with the belief that the 2nd, 3rd and 7th Respondents are part and parcel of the Majestic OYEBOADE Ruling House; he is caught by the Doctrine of Estoppel as contained in Section 169 of the Evidence Act, 2011 (as amended). Cited A. G. RIVERS STATE v. A. G. AKWA – IBOM STATE (2011) 2 SCM. 1, Ratio 5.
It was further submitted that the Appellant cannot be relied upon in the face of inconsistency in his evidence before the trial Court.
Learned Counsel to the 4th, 5th, and 6th Respondents urged us to resolve this issue in favour of the Respondents. In conclusion, urged the Court to dismiss this appeal based on the submissions of the 4th, 5th, and 6th Respondents.
By way of reaction on Issue 3, the learned Counsel for the Appellant adopted his reactions to Issues 1 and 2 as reply on Issue 3 in urging us to resolve issue three (3) in
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favour of the Appellant. He said that the basis of this position is that once this Court finds that the 2nd, 3rd and 7th Respondents are not members of OYEBOADE Ruling House, recognized by the ALIE OF ILIE CHIEFTAINCY DECLARATION, 1980, the entire submissions of both the 1st, 2nd, 3rd and 7th Respondents’ Counsel and the 4th, 5th, and 6th Respondents’ Counsel become numb and otiose.
In conclusion, the learned Counsel for the Appellant urged this Court to resolve all the issues in favour of the Appellant and against the Respondents.
RESOLUTION
ISSUE 1 AND 2 distilled from Grounds 1, 2,3, 4 and 7 of the Notice of Appeal are predicated on the discharge of burden of proof required to sustain the Reliefs sought by the Appellant as Plaintiff before the lower Court in his 3rd Amended Statement of claim dated 18th June, 2013. The Reliefs are as earlier enumerated in this judgment.
I painstakingly perused the Record of Appeal together with exhibits transmitted to this Court to ascertain the discharge of burden of proof required to sustain the Reliefs sought by the Appellant.
It is undoubtedly shown from the pleadings and
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evidence, the crux of the Appellant’s case really turns on whether the Appellant has established his case as is expected by law, that the 2nd, 3rd and 7th Respondents’ families are not members of OYEBOADE Ruling House and therefore not competent or entitled to provide any candidate to the vacant stool of Alie of Ilie under the applicable rule.
The appellant at the trial Court sought for declaratory reliefs upon which the injunctive reliefs are based. The onus of proof by law is imposed on the Appellant to entitle him to the declaratory reliefs sought. See the case of CENTRAL BANK OF NIGERIA v. JACOB OLADELE AMAO & 2 ORS (SUPRA) and AYANRU RTD. V. MANDILAS LTD (SUPRA) where the Apex Court held:
“The requirement of the law regarding the onus placed on a party claiming a declaratory relief as claimed by the Appellant in the present case is trite. A claim for relief of declaration, whether of title to land or not, is not established by admission by the Defendant, because the plaintiff must satisfy the Court by cogent and credible evidence called by him to prove that as a claimant, he is entitled to the declaratory relief. It is the
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law that a Court does not grant declaration on admission of parties because the Court must be satisfied that the Plaintiff on his own evidence, is entitled to the relief claimed.”
The Appellant in his written address at the trial Court (pages 167-168 of the Record) stated that since the admission in paragraph 2 of the 1st, 2nd, 3rd and 7th Respondents’ Consequential Amended Statement of Defence has been made in the pleadings, the Appellant’s case need no further proof.
There are exceptions to the general rule on admission and one of such is an action for declaratory relief(s) as demonstrated in the case of AKPAN v. UBA PLC (SUPRA) AND EDWARD NKWEGU OKEREKE v. NWEZE DAVID UMAHI (SUPRA) where it was held that a party seeking declaratory reliefs has the burden to establish his claim. He must succeed on the strength of his case and not on the weakness of the defence, if any. Such reliefs will not be granted even on the admission of the Defendant.
The claim by the learned Counsel for the Appellant that the pleaded traditional history of the Appellant, on which evidence was led, is cogent, compelling and conclusive has not been
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substantiated. The argument that the Respondents never contradicted the Appellant on his line of history and genealogy from KUARU to the original plaintiff as well as the present Appellant holds no water.
A further claim at paragraph 5.29 of the Appellant’s Brief of Argument thus: “having shown in this Brief that the Appellant by his evidence on record, both Oral and Documentary is a member of the OYEBOADE Ruling House of Alie of Ilie (Alie Oyedare) and grandson of the last Alie of Ilie, who reigned between 1953 – 1961, and that the 2nd, 3rd, and 7th Respondents are ‘Not members of Oyeboade Ruling House; the Appellant should be deemed to have discharged the burden required by his pleadings.” It is so bare, having regard to the pleadings and evidence on Record.
From the Record, the evidence of the Respondents’ witnesses did not support the case of the Appellant that the 2nd, 3rd, and 7th Respondents are not entitled to the stool, as such, the Appellant’s pleadings in this regard remained unsubstantiated by credible evidence. See the case ofUDOM v. UMANA (SUPRA), where the Court held that averments in pleadings
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not supported by evidence are unavailing to the pleader.
It is worthy to note that the trial Court found at pages 243 – 244 of the Records that the PW1, sole witness of the Appellant was not a witness of truth, thus:
“From the answers of the Plaintiff in the witness – box he does not appear to me as a witness of truth. In his frantic efforts to prove that the 2nd and 3rd Defendants are not from Oyeboade Ruling House, he ended up contradicting himself. He was the one who tendered Exhibit P4 which was the minutes of meetings purportedly held at the family house of Oyeboade Ruling House on 22/07/2001. In the minutes (Exhibit P4), PW1 was said to have, together with one Prince Tiamiyu Oduola Oyedare sponsored Ismaila Oyewale Oyediran for the vacant stool of Alie of Ilie. Under cross – examination however, he denied that meeting was held on 22/07/2001. His response was: “It is not true that our family held a meeting on 22/07/2001.”
I am of the opinion that a party should be consistent in stating his case and consistent in proving it. This is because justice is more than a game of hide and seek. I so hold.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Flowing from the afore-stated, the burden of proof required to sustain the Reliefs sought by the Appellant as plaintiff at the lower Court has not been discharged in accordance with the law. I so found and hold that the Appellant failed to establish his case for the success of the combined issues 1 and 2 under reference.
The two (2) issues are resolved against the Appellant and in favour of the Respondents.
ISSUE 3 distilled from Grounds 5 and 6 of the Notice of Appeal is predicated on the relationship of the 2nd and 3rd Respondents with the stool of Alie of Ilie.
The Record of Appeal with the exhibits transmitted to this Court are – ‘Res-ipso liquitor’ on this issue. The evidence led, both Oral and Documentary by the 2nd 3rd and 7th Respondents as witnesses before the trial Court fully support the pleadings relating to whether or not the grandfather of the 2nd, 3rd and 7th Respondents was an Alie of Ilie. Paragraphs 19 – 22 of the deposition of DW1 (at page 34 of the Record), Paragraphs 20 – 23 deposition of DW2, (at page 39 of Records) and paragraphs 20 -23 of DW3 deposition (at page 46 of the Records.)
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Documentary evidence in the nature of Exhibits D2, D3 and D5 tendered at the trial, all speak volumes related to the issue.
The learned trial Judge clearly identified this issue when at page 242 of the Records said:
“The main issue in this case is whether the 2nd, 3rd and 7th Respondents are members of OYEABOADE Ruling House. It is the case of the plaintiff that the 2nd, 3rd and 7th Respondents are not members of Oyeboade Ruling House.”
In resolving the issue, the learned trial Judge from pages 242 – 251 of the Records properly evaluated the evidence of the Appellant as sole witness and the evidence put forward by the 2nd, 3rd and 7th Respondents. While considering the evidence of the Appellant on this point, held as follow:
“Earlier on I had reproduced the answer of PW1 as to the existence of documents on those who had been Alie of Ilie since 1900. He first denied the existence of such documents in one breath, but in another breath, he acknowledged the existence of such documents. In my view, PW1 did not give a total narration of traditional history of Ilie. What he gave at best was partial or abridged story to
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support his narration and this is not acceptable in law.”
The learned trial Judge called in mind the extant position of the law as stated in AJIBI v. OLAEWE (SUPRA), considering the oral evidence led by the 2nd, 3rd, and 7th Respondents and placed in view the purport of Exhibits D1 – D5. He held thus:
“The 2nd and 3rd Defendants testified that they are from Siyanbola section of Oyeboade Ruling House of Ilie. They also testified that their grandfather, Ogunlana reigned as Alie of Ilie between 1918 and 1933. In support of their case they tendered Exhibits D1 – D5. Exhibit D1 is page 5 of Exhibit P7.”
It is my humble view that the learned trial Judge, having thoroughly reviewed the oral and documentary evidence vis-a-vis the pleadings of the parties was right to have held that the 2nd and 3rd Respondents had established that their grandfather was an Alie of Ilie. He also underlook proper evaluation of the case of the parties and evidence adduced to decide that 2nd and 3rd Respondents had their link to OYEBOADE Ruling House of Ilie through Alie Ogunlana who reigned between 1919 – 1933.
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In view of the afore-said, this issue 3 is resolved against the Appellant and in favour of the Respondents.
Having resolved the three (3) issues against the Appellant herein, this appeal failed and hereby dismissed. The judgment of the lower Court delivered on 29th June 2017 by Hon. Justice A. A. Aderibigbe is affirmed.
No Order as to Cost.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading judgment, in this appeal, just rendered by my learned Brother, Ridwan Maiwada Abdullahi, JCA.
I agree that the appeal is lacking in merit, dismiss it and consequentially affirm the judgment of the trial Court appealed against by the Appellant.
PATRICIA AJUMA MAHMOUD, J.C.A.: I have read in draft the lead judgment of my learned brother, R. M. Abdullahi, JCA, and I agree with him that this appeal lacks merit and deserves to be dismissed.
The appellant’s counsel is clearly wrong in his contention that the appellant is entitled to take benefit of the evidence of the respondents which supported his case even though the claim of the appellant in the lower Court was mainly declaratory. The Law is settled that a
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declaratory relief must be pleaded and proved on the strength of the plaintiff’s case and is not granted even on admission by the defendant: KWAJAFFA & ORS V. BON LTD (2004) 13 NWLR, PT 889, 146; MOHAMMED V. WAMMAKO & ORS (2017) LPELR-42667 (SC), IHEMEREMADU & ORS V. OKPECHI & ORS (2018) LPELR- 44767 (CA) and DIKE & ORS V. AG ANAMBRA STATE & ORS (2019) LPELR-46497 (CA).
For this and the fuller reasons given in the lead judgment I too dismiss this appeal for being unmeritorious. I make no order as to costs.
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Appearances:
Oludotun Osho, Esq. For Appellant(s)
Adewale Afolabi, with him, T. I. Ibikunle, Esq. – for the 1st, 2nd, 3rd and 7th Respondents
Ambali Adisa, (AD) MOJ, Osun State – for 4th, 5th and 6th Respondents For Respondent(s)
