OBA EMMANUEL ADEBOWALE ADEBAYO v. CHIEF JULIUS ADEDURO OKEYA
(2015)LCN/8056(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 29th day of December, 2015
CA/EK/76/2014
RATIO
PRACTICE AND PROCEDURE: ADDRESS OF COUNSEL; WHETHER THE ADDRESS OF COUNSEL CAN TAKE THE PLACE OF EVIDENCE
The address of counsel cannot take the place of evidence and it cannot be the basis upon which an appeal will be decided. per. AHMAD OLAREWAJU BELGORE, J.C.A.
APPEAL: ISSUES FOR DETERMINATION; WHETHER PARTIES ARE BOUND BY ISSUES THEY FRAMED AND WHETHER THEY CAN ARGUE OUTSIDE THE ORBIT OF THE ISSUE SO FORMULATED
What appellant tried to do before the Lower Court was to extend or enlarge the horizon of the case presented before that Court beyond the scope of what the two parties agreed or disagreed to be tried. Such a course will be resisted by the Court. Both parties had agreed and made the trial Court to believe that it was the Chiefs Law of Ekiti State 2010 that applied to the cause of action. It was, therefore, late in the day for one of the parties to start to introduce another law during the stage of address contrary to what had been agreed upon during the trial. In OGIDI V THE STATE (2005)124 LRCN 420 at 459, per PAT-ACHOLONU, JSC.
The issue in this case as adumbrated by the Appellants is a narrow one. It the course of his argument, the learned counsel for the Appellants tried to improvise his case by enlarging the amplitude and horizon of the issue by attempting to incorporate a Subsection of (S.) 36 of the Constitution, to wit: the point on interpretation which does not in fact form the fulcrum of his case. He cannot bring in new issues in an effort to embellish his case to give it veil it never more or conceived. In this Court parties are bound by the issues they framed and they cannot argue outside the orbit of the issue so formulated.
This is true of every Court of Law. A party cannot argue outside the orbit of the case presented to the Court for adjudication. per. AHMAD OLAREWAJU BELGORE, J.C.A.
JUSTICES:
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
OBA EMMANUEL ADEBOWALE ADEBAYO
(The Elemure of Emure-Ekiti) – Appellant(s)
AND
CHIEF JULIUS ADEDURO OKEYA
(The Baale of Eporo) – Respondent(s)
AHMAD OLAREWAJU BELGORE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Ekiti State High Court of Justice, holden at Emure-Ekiti (Hereinafter referred to as (The trial Court) contained in the Judgment of L. O. Ogundana, J, delivered on the 26th day of June, 2014 whereby he declared the removal from office of the claimant (Now, The Respondent) by the defendant (Now, The Appellant) as being illegal, unlawful, null, void and of no legal consequence whatsoever after having declared that the appellant lacked the legal capacity to unilaterally and without recourse to the Executive Council of Ekiti State or the Governor of Ekiti State to remove or depose the respondent as the Baale of Eporo as purportedly done in Exhibit E.
Three of the four reliefs sought by the respondent, viz:
4. AN ORDER setting aside and/or nullifying the Defendants purported removal or deposition of the Plaintiff as theBaale of Eporo as contained in his letter dated 3rd day of December, 2011 and Ref. No. Elemek 40A/22.
5. AN ORDER OF PERPETUAL INJUNCTION restraining
the Defendant, his agents, privies, servants or any person(s) however described acting for and/or on behalf of the Defendant from making further attempts at removing or deposing the Plaintiff as the Baale (of) Eporo without the authority so to do delegated to him by the State Executive Council or the Governor of Ekiti State and for any reasons outside those provided by the Chiefs law of Ekiti State
6. AN ORDER of this Honourable Court on the Defendant to pay to the Plaintiff all the arrears of his salaries or stipends paid by the Emure Local Government to the Defendant from March, 2003 until August, 2013 and thereafter till Judgment is delivered in this case.
were granted almost verbatim. The relief No. 6 for N50 Million damages/compensation sought by the respondent was refused by the learned trial Judge for the reasons adduced by him.
It is against this judgment that the appellant has appealed to this Court vide a Notice of Appeal containing three (3) grounds of appeal. This Notice of Appeal was later amended by the leave of this Court on the 4th day of May, 2015 by
(i) Substituting 9th day of March, 2012 for 8th day of March,
2012 in particular 2, ground one;
(ii) Deleting ground Two (2) of appeal;
(iii) Renumbering Ground Three of the Notice of Appeal as Ground Two.
The two grounds of appeal of the amended notice of appeal read as follows:-
GROUNDS OF APPEAL
1. The learned trial Judge erred in law when he held that he took Judicial notice of the fact that the relevant law in force in Ekiti State as at 2011 when the Claimants cause of action arose being one relating to the deposition of a minor Chief is the Chiefs Law of Ekiti State 2010 the commencement date of which is 1st January, 1984 when the law was not yet in operation not having being (Sic) signed into law.
Particulars
i. Until a law of House of Assembly in respect of State audit Act in the case of National Assembly is duly assented to by the executive is not yet in operation.
ii. Judicial Notice is taken of the fact that the Chiefs Law of Ekiti State along with other compendium of Law of Ekitiwere signed into law by the Executive Governor of Ekiti State on 9th day of March, 2012.
iii. It is a notorious fact that prior to the enactment of the Laws of Ekiti
State notwithstanding the commencement date of Chiefs Law of Ekiti State on 1st January, 1984, Laws of Ondo State were in operation in Ekiti State by virtue of Section 4 of State (Creation and Transitional Provisions) Decree No. 36 of 1996 uptill (SIC) the signing into law of the Laws of Ekiti State on 9th day of March, 2012.
iv. The appropriate and relevant law in force at the time the cause of action arose was Chief Laws of Ondo State including its subsidiary legislation.
2. The learned trial Judge erred in law when he directed and ordered the Appellant to pay to the Respondent who was removed on the 30th day of December, 2011 arrears of his salary and stipend (Sic) paid through him by the Emure Local Government since March, 2003 till date when trial Judge had earlier found that the cause of action in this case arose on the 3rd of December, 2011.
Particulars
1. The cause of action was found to arise on 3rd day of December, 2011 and not March, 2003 when the Respondent was suspended.
2. The cause of action was as removal as Baale of Eporo Emure-Ekiti and not on suspension as Baale Eporo Emure-Ekiti.
3. Relief No. 6
is an alternative relief to relief No. 2 as claimed and granted.
4. The law in force as found by the Court was chiefs law of Ekiti State, 2010.
5. No proof that the salary of the Respondent is in the custody of the Appellant.
A brief statement of the facts of the case runs thus:-
The appellant is the Prescribed Authority over all minor Chiefs in Emure-Ekiti and its environ, while the respondent was the Baale of Eporo, a minor Chief and a member of the Elemure-in-Council before his suspension as Baale of Eporo by Oba A. B. Oshin (deceased), the appellants predecessor in office on the 14th day of March, 2003 vide a letter bearing that date which is Exhibit 1 in this case. The respondent was subsequently removed, by the appellant, as the Baale of Eporo in Emure-Ekiti with effect from the 4th day of December, 2011 through a letter dated 3rd day of December, 2011 and signed by the appellant. The very foundation of the acrimony between the parties is the issue of ownership of the land of Eporo which the respondent claims for his family. The crisis was inherited by the appellant from his predecessor in office, Oba A. B. Oshin.
It was in reaction to this letter of deposition that the respondent instituted an action before the trial Court, holden at Emure-Ekiti and which gave rise to this appeal.
Briefs of argument have been filed and exchanged by the parties hereto. The appellant has also filed a reply brief in response to the preliminary objection raised by the respondent in his brief of argument. At the hearing of this appeal, the respondent failed to move his preliminary objection and allowed the appellant to argue the appeal. I will return, anon, to the subject matter of the preliminary objection since it is a live issue in this appeal.
In the appellants brief of argument, two issues were raised as calling for determination in this appeal, namely:-
1. Whether the learned trial Judge was right in holding that the applicable law at the time the cause of action arose in year 2011 was the Chiefs Law of Ekiti State, 2010 when the Governor of Ekiti State had not assented to the bill enacting the said Chiefs Law (Ground 1).
2. Whether the Lower Court having held that the cause of action arose on the 3rd December, 2011 was right in granting an order directing the
Appellant to pay to the Respondent his salary and stipends since the time of his suspension in year 2003. (Ground 3).
In the respondents brief of argument, these two issues have been adopted verbatim. I will therefore, treat the issues in the order in which they are formulated. Issue One related to ground one of the amended notice of appeal, while Issue Two relates to ground two of the amended notice of appeal. I have earlier on in this judgment, replicated the two grounds of appeal together with their respective particulars.
ISSUE ONE
It is submitted for the appellant that the learned trial Judge correctly stated the principle of law when he held at page 100 of the record of appeal that:-
The substantive law existing at the time a cause of action arose is the law that governs the determination of the action and the rights and obligations of the parties.
Wale F. Omotosho Esq., learned counsel for the appellant, however, disagreed with the learned trial Judge when the latter held that:-
I take judicial notice of the fact that the relevant law in force in Ekiti State as at 2011 when the claimants cause of action arose being one relating to the deposition of minor Chief is the Chiefs Law of Ekiti State 2010, the commencement date of which is 1st January, 1984
Learned counsel for the appellant submitted that following the carving out of Ekiti State from Ondo State on the 1st day of October, 1996, and by virtue of Section 4 of State (Creation and Transitional Provisions) Decree No. 36 of 1996, the law in force in Ekiti State was the Ondo State Laws, and they continued to be in operation until the enactment of Ekiti State Laws which are contained in a Compendium of Laws of Ekiti State of Nigeria, first Edition which the Governor of Ekiti assented to on the 9th day of March, 2012. It is submitted that a law is not in existence until it is assented to by the Governor, in case of the bill passed by the House of Assembly of a State and by the President in case of the National Assembly. He calls in aid the Supreme Court decisions in NWORA V NWABUEZE (2013)16 NWLR (Pt. 1379) 1 at 21; N. N. P.C. V. ORIHOWASELE (2013) 13 NWLR (Pt. 1371) 211 at 226; and Section 100(1)-(3) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. He also cites the authority of the Supreme Court in YARE V. NUNKU (1995) 5 NWLR (Pt. 394) 129 at 144; OGBORU V. UDUEGHAN (2011) 17 NWLR (Pt. 1277) 727 at 758-759; and AMUSA V. STATE (2003) FWLR (Pt. 148) 1296, 1305.
It is also submitted that it is the delegation of town chiefs dated 1958, part of the Chiefs Law of Ondo State 1978 that is applicable to the cause of action in this case, i.e. the removal of the respondent as Baale of Eporo by the appellant on 3rd day of December, 2011. It is further submitted that by the application of the delegation of functions, the appellant employed the right procedure in the exercise of his disciplinary power within the confine of and as permitted by the Chiefs Law of Ondo State which was the law at the time the cause of action in this case arose in 2011. It is urged that this issue be resolved in favour of the appellant.
For the respondent, Deacon Oluwafemi Balogun, learned counsel for the respondent, submitted that address of counsel of brief of argument cannot take the place of evidence. He submits that the arguments of learned counsel as to when the Chiefs Law of Ekiti State was assented to go to no issue since both parties during the trial had agreed that it was the Chiefs Law of Ekiti State that is applicable to the cause of action in this case. He submits that the Chiefs Law of Ondo State having not been pleaded and having not been the basis upon which the case was fought before the trial Court as evidenced by the record of appeal, the issue as raised by the appellant in ground 1 of his amended notice of appeal. Reference made to EKE U. UDUKWE V. THE LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE & ANOR (2007) 146 LRCN 891, 841; EZEKIEL OKOLI V. MORECAR FINANCE (NIG). LTD (2000) 5 NWLR (Pt. 658) 669, 690. Learned counsel for the respondent submitted that the applicable law is the Chiefs Law of Ondo State, 1984 (as amended). Section 20 of which is in parimateria with Section 17 of Chiefs Law of Ondo State, 1984 (as amended) is revised and tagged Chapter 27 in the Laws of Ondo State, 2006. Learned counsel for the respondent agrees that if his submissions in this regard are accepted by this Court, it is a tacit admission that the learned trial Judge made a mistake in his judgment to the effect that the Chiefs Law of Ekiti is applicable to this case.
As to legal consequence of this, it is submitted for the respondent, that the position of the law is settled to the effect that it is not every mistake or error made by a Lower Court that would lead to the decision reached in the proceedings being set aside by the Appellate Court, unless such error or mistake is so substantial as to lead to a miscarriage of justice. Reliance is placed on BERNARD AMASIKE V. THE REGISTRATER GENERAL CORPORATE AFFAIRS COMMISSIONER & ANOR (2010) 188 LRCN 85 at 123; TSORWA MOTORS (NIG.) LTD V. UBA PLC (2008) 156 LRCN 1 at 25 & 26; A.G. LEVENTIS NIG.PLC V. CHIEF CHRISTIAN AKPU (2008) 156 LRCN 163 at 186; FIRST BANK OF NIG.PLC V. ALEXANDER V. OZOKWERE (2013) LRCN (Pt. 2) 1 at 30; CORPORAL LIIVINUS UGWU V. THE STATE (2013) 222 LRCN (Pt. 1) 36 at 64; ENGINEER & 3 ORS (2006) 139 LRCN 1767; and L. A. AKAYEPE & ANOR V. G.A AKAYEPE (2009) 175 LRCN 175, 192.
It is further submitted that the appellant failed to show that the mistake or error committed by the Lower Court has substantially affected the merit of the case or that it has occasioned a miscarriage of justice to make this Court form the opinion that it is reasonably probable that a result more favourable is the appellant would have been reached in the absence of the error complained of. Learned counsel relies on CHIEF IMEH ALBERT AKPAN V. SENATOR EFFIONG BOB & ORS (2011) 193 LRCN 78, 142. It is submitted that no miscarriage of justice has been occasioned by this mistake because if the learned trial Judge had applied Section 20 (3) of the Chiefs Law of Ondo State 1984 which is the applicable provision in this case instead of Ekiti State, 2010 applied by him, the result would still have been the same as the two provisions are in parimateria.
I did mention earlier in this judgment that the respondent, in his brief of argument, had raised a preliminary objection to ground one of the amended notice of appeal and the issue distilled therefrom, and the fact that the respondent did allow the appeal to be argued without having moved his preliminary objection.
The basis of the objection was that the issue of the Chiefs Law of Ondo State being the applicable law to the cause of action did not form parts of the case as canvassed and contested before the trial Court and that the issue only surfaced in the address of the learned counsel
for the appellant under the guise of adumbrating certain aspects of his written address. This preliminary objection prays that ground one of the amended notice of appeal and issue one distilled therefore be declared incompetent and struck out.
I have to state straight away that failure to move the preliminary objection prior to the appeal being argued pre-supposes that the respondent has abandoned the preliminary objection and the same is liable to be struck out. The preliminary objection is accordingly hereby struck out.
It is curious to observe that in arguing issue one, the respondent ended up agreeing that the trial Court was in error to have taken judicial notice that the applicable law to the cause of action is the Chiefs Law of Ekiti State, 2010. It is the submission of learned counsel for the respondent that the applicable law is Section 20 (3) of Chiefs Law of Ondo State, 1984 instead of Section 17 (3) of Chiefs Law of Ekiti State, 2010. This submission is a subtitle way of admitting and giving teeth to the stand taken by the appellant that it is the Chiefs Law of Ondo State that is applicable and not the Chiefs Law of Ekiti as found and applied by the learned trial Judge.
I do agreed with the respondent that the issue as to when the Laws of Ekiti State was assented to by the Governor of Ekiti State can only be determined by evidence or as stated in the Laws. According to Section 3 of the First Edition (Laws of Ekiti State of Nigeria) Law, 2010.
3. Appointed date
The House of Assembly shall on the recommendation of the Attorney General prescribe the appointed date.
Section 4 of the same Law provides as follows:
(1) The First Edition when brought into force in accordance with Section 5 of this Law shall be taken by all Courts and for purposes whatsoever to be the authentic edition of enactment in the State, enacted on or before the appointed day.
Section 5(1) and (2) provides that:-
(1) On the approval of the memorandum submitted by the Attorney General to the Executive Council, the Attorney General shall forward copies of the First Edition to the House of Assembly with the recommendation thereon as to the appointed date.
(2) Section 4 of this Law shall apply to the part of the First Edition so brought into force.
All this provisions contemplate a date to be appointed so as to bring the Law into force. I have looked up the entire Laws contained in the First Edition, there is nowhere where a date was so appointed. To complicate the matter, there is no provision for the assent of the Governor of Ekiti State. It is, therefore, wrong for the learned appellants counsel to have submitted that the Law was assented to by Governor in 2012 when there was/is no such evidence before the Court.
The address of counsel cannot take the place of evidence and it cannot be the basis upon which an appeal will be decided.
What appellant tried to do before the Lower Court was to extend or enlarge the horizon of the case presented before that Court beyond the scope of what the two parties agreed or disagreed to be tried. Such a course will be resisted by the Court. Both parties had agreed and made the trial Court to believe that it was the Chiefs Law of Ekiti State 2010 that applied to the cause of action. It was, therefore, late in the day for one of the parties to start to introduce another law during the stage of address contrary to what had been agreed upon during the trial. In OGIDI V THE STATE (2005)124 LRCN 420 at 459, per PAT-ACHOLONU, JSC.
The issue in this case as adumbrated by the Appellants is a narrow one. It the course of his argument, the learned counsel for the Appellants tried to improvise his case by enlarging the amplitude and horizon of the issue by attempting to incorporate a Subsection of (S.) 36 of the Constitution, to wit: the point on interpretation which does not in fact form the fulcrum of his case. He cannot bring in new issues in an effort to embellish his case to give it veil it never more or conceived. In this Court parties are bound by the issues they framed and they cannot argue outside the orbit of the issue so formulated.
This is true of every Court of Law. A party cannot argue outside the orbit of the case presented to the Court for adjudication.
Even though the respondent herein has tacitly agreed with the Appellant that it is the Chief Law of Ondo that is applicable to the case, the fact remain that issue was not presented to Lower Court for adjudication and it will be wrong to hold that the Lower Court was in error. It is in the light of the foregoing that I find it difficult to determine this issue in favour of the appellant.
ISSUE TWO
This issue is anchored on the decision of the Lower Court which runs thus:-
The claimant will, in the present circumstance of his removal upon which the withholding of his salary is predicated having been declared null and void be entitled to an order of the Court sought in relief 6 of the Originating Summons directing the Defendant to release and pay to the Claimant the arrears of his Salary and stipend paid through him by the Emure Local Government since March, 2003 till date.
It is submitted for the appellant that the main claim of the respondent is premised on his removal as Baale Eporo, Emure-Ekiti by the appellant as contained in the latters letter dated the 3rd day of December, 2011. It is also submitted that the learned trial Judge in his Judgment correctly found that the cause of action in this case arose in 2011 when the respondent was removed as Baale Eporo, but fell into error when he back-dated the award to March, 2003 instead of 2011 when the cause of action arose. It is submitted that the respondent should have limited his claim of arrears to the year 2011 when his cause of action arose and certainly not from the year 2003 when he was suspended. It is further submitted that the respondent could not have taken action in 2011 to claim accrued salaries since 2003 or to challenge his suspension that took place in 2003 by virtue of Section 4 of the Limitation of Ondo State, 1978 . His right of action would have been extinguished. It is submitted that the respondent could not hide under the declaration of his removal as being null and void to claim salaries from the time of his suspension which was already statute barred. Reliance is placed on OGUNLADE V. ADELEYE (1992) 8 NWLR (Pt. 260) 409.
It is submitted, for the appellant, that a claim of arrears of Salary is a claim of special damages which must be strictly proved and which the respondent has failed to do in this case. In support of his submissions in that behalf, the learned counsel for the appellant calls in aid the following cases:-
UDEGBUNAM V. F.C.D.A. (1996) 5 NWLR (Pt. 449) 474 at 485; CALABAR EAST COOP V. TKOT (1999) 14 NWLR (Pt. 638) 225 at 248; PRIME MERCHANT BANK LTD V. MAN-MOUNTAIN CO. (2000) 6 NWLR (Pt.661) 524 at
531; and ACHIBONG V. ITA (2004) 2 NWLR (Pt. 858) 590.
The Court is urged to resolve this issue in favour of the appellant.
The respondents counsel submits that the depositions in paragraphs 23 and 24 of the affidavit in support of the Originating Summons were not frontally denied in paragraphs 25 and 26 of the Counter Affidavit. It is indeed submitted that paragraphs 25 and 26 of the counter affidavit are a tacit admission of the depositions in paragraphs 23 and 24 of the affidavit in support of the Originating Summons. It is submitted that any deposition in an affidavit not denied is deemed admitted. Reliance is placed on the following cases:-
SUNDAY OFFOR & ANOR V. THE STATE (2012) 214 LRCN 186 at 211; UNIBIZ NIG. LTD. V. COMMERCIAL BANK (C.L. NIG.) LTD (2005) 128 LRCN 1484 at 1495-1496; HENRY STEPHENS ENG. LTD V. S. A. YAKUBU (NIG.) LTD. (2009) 176 LRCN 134 at 146; GODWIN UGWUANYI V. NICON INSURANCE PLC (2013) 220 LRCN (Pt.2) 46 at 81; AJOMALE V. YADUAT (No. 2) (1991) 5 NWLR (Pt. 191) 257 at 270.
It is further submitted that it is settled law that affidavit evidence that is neither challenged nor debunked remains good and reliable evidence which ought to be relied upon by a Court. In support of this submission, learned counsel for the respondent cites the following cases:-
THE REGISTERED TRUSTEES OF NATIONAL ASSOCIATION OF COMMUNITY HEALTH PRACTITIONERS OF NIGERIA & ORS. V. MEDICAL & HEALTH WORKERS UNION OF NIGERIA & ORS. (2008) 158 LRCN 251 at 287 and 288; and ATTORNEY GENERAL, PLATEAU STATE V. ATTORNEY GENERAL, NASARAWA STATE (2005) 9 NWLR (Pt.930) 421.
It is, therefore, submitted that the learned trial Judge was right in accepting and relying on deposition in paragraphs 23 and 24 of the affidavit in support of the Originating Summons. It is urged that this issue be resolved in favour of the respondent.
At page 100 of the record of appeal, the learned trial Judge found that:-
“The deposition or removal complained of herein was communicated by the defendant to the claimant vide Exhibit E dated 3rd day of December, 2011. This in effect means that the cause of action of the claimant herein crystalised on or about 3rd December, 2011.”
Having so found, the learned trial judgment on to award arrears of salary and stipend to the respondent against the appellant commencing from a date (2003) prior to the date when the cause of action accrued to the respondent. It is clear that the respondent did not sue in respect of his suspension as Baale of Eporo, it is, therefore, not within the power of the Lower Court to award damages in respect of a matter that was not before it. It should have occurred to the learned trial Judge that the respondents suspension still subsists because it did not form part of the instant case, and for that reason, a claim for arrears of salary and stipend from 2003 is not maintainable and cannot be granted within the framework of the instant case. The respondent did not institute an action against his suspension of 2003 whereby his salary was stopped, he now wants to claim arrears of such salary in respect of the suspension against which he did not institute an action. It is enough that his removal or deposition as Baale of Eporo has been declared to be null and void. His salary was not stopped because of his deposition. It was stopped as a result of his suspension. He cannot claim any arrears of salary predicated upon his suspension.
The award of salary and stipend as handed down by the learned trial Judge was done without jurisdiction. No Court can adjudicate upon a matter that is not placed before it.
The award of relief 6 was wrong and the same is hereby set aside. This issue is resolved in favour of the appellant.
In sum, this appeal succeeds in part. Ground 1 of the amended notice of appeal and the issue formulated therefrom fails and the same hereby dismissed. Ground 2 succeeds and the same is accordingly hereby allowed.
I make no order as to cost.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree
BOLOUKUROMO MOSES UGO, J.C.A.: I agree
Appearances
Wale F. Omotoso, Esq. For Appellant
AND
Deacon Oluwafemi Balogun For Respondent
