ALHAJI CHIEF PA. SULE JUBRIL & ORS V. ATTORNEY-GENERAL OF EDO STATE
(2013)LCN/6276(CA)
In The Court of Appeal of Nigeria
On Monday, the 10th day of June, 2013
CA/B/199/2011
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
1. ALHAJI CHIEF PA. SULE JUBRIL
2. ALHAJI CHIEF M. K. MUHAMMED
3. ALHAJI CHIEF MOMOH ABU
4. ALHAJI CHIEF ABUDU SULE
5. MUALIM HAMBALI IBN UMARU Appellant(s)
AND
ATTORNEY-GENERAL OF EDO STATE Respondent(s)
RATIO
THE POSITION OF THE LAW ON ISSUES FORMULATED FOR THE DETERMINATION OF AN APPEAL BY PARTIES
The settled position of law regarding issues formulated for the determination of an appeal by the parties therein, is not only that the issues so formulated must flow from the grounds of appeal (not particulars of grounds of appeal), but also that the grounds of appeal themselves must find their foundation in the judgment appealed against. PER LOKULO-SODIPE, J.C.A.
THE PURPOSE OF PLEADINGS TO A CASE
Authorities have consistently held to the effect that “pleadings” are summary of the facts of a case that must be served on an opponent to enable him have notice of facts that will be in contention at the hearing. Hence authorities have also consistently held to the effect that the basic purpose or function of “pleadings” is to avoid springing surprises on the other party; accordingly parties are bound by their “pleadings” and must not go beyond what they have pleaded in their evidence, as doing this will render evidence so given, to be in respect of a non-issue, and liable to be struck out or discountenanced by the court. See ATANDA V. LIASU (2013) 6 NWLR (Pt.1351) 529 at 562; AGBOOLA V. UBA PLC (2011) 45 NSCQR 335 at 358; ALIBO V. OKUSIN [2010] All FWLR (Pt.529) 1059 and ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY V. EKWENEM (2009) 40 NSCQR 51 at 72. In other words, the issues that call for resolution in a case being tried on pleadings are circumscribed and fixed by the pleadings of the parties before the court and parties are to adduce evidence in relation thereto only. PER LOKULO-SODIPE, J.C.A.
WHETHER OR NOT IT IS THE PLAINTIFF WHO BRINGS A SUIT BEFORE THE COURT THAT ALSO PRIMARILY NOMINATES THE ISSUES FOR DECISION IN THE CASE
It is also settled law that it is the plaintiff who brings a suit before the court that also primarily nominates the issues for decision in the case. See LONGE V. FIRST BANK OF NIGERIA PLC [2012] All FWLR (Pt. 525) 258; and NKUMA V. ODILI [2006] All FWLR (Pt.313] 24. This being the situation, all that a defendant need do, is to resist the plaintiff’s claims on the facts pleaded. It is not for a defendant to set up facts which would convey that he is not just setting up a defence to the plaintiff’s suit but setting up a new case of his own. A defendant is only permitted to do this, when he is setting up a counter-claim. See DIAMOND BANK PLC v. MONANU [2013] 7 WRN 110. PER LOKULO-SODIPE, J.C.A.
WHETHER OR NOT A TRIAL COURT IS OBLIGATED TO DECIDE ISSUES SUBMITTED TO IT BY PARTIES
A trial court is no doubt obligated to decide issues submitted to it by the parties. It must however be noted that it is only in respect of matters upon which parties have properly joined issues on the pleadings, in a trial conducted upon pleadings, that a court has the bounden duty to decide. Hence the consideration by appellate courts of the pleadings of the parties in order to have a clear understanding of the nature of the dispute between the parties in an appeal and how the lower court approached the issue. See KOPEK CONSTRUCTION LTD V. EKISOLA [2010] All FWLR (pt. 519) 1035. PER LOKULO-SODIPE, J.C.A.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment delivered on 20/4/2009 by the High Court of Justice, Edo State holden in the Benin Judicial Division (hereafter simply referred to as “the lower court”) presided over by Hon. Justice D. I. Okungbowa (hereafter simply referred to as “the learned trial Judge”). The Appellants herein were the Plaintiffs before the lower court and the said court in its judgment dismissed all the claims of the Appellants against the Defendant (now Respondent).
The Appellants commenced the instant case against the Respondent by way of Originating Summons. The lower court however later ordered parties to file pleadings. The latest of the Appellants’ pleadings are their Amended Statement of Claim dated 11/2/2002 and Reply to Statement of Defence dated 1/6/2004. These processes were filed on 3/12/2002 and 1/6/2004 respectively.
The latest of the Respondent’s pleading is its Amended Statement of Defence dated 21/7/2006 and filed on 24/7/2006.
The case of the Appellants as set up in their pleadings is to the effect that the Bendel State Legal Notice (BSLN) No. 15 of 1991 with retrospective commencement date of 1/7/1984 but dated 12/7/1991 which approved the appointment of late Prince Umoru Omogua as the Onogie (Clan Head) of Jagbe in Etsako West Local Government Area of Edo State is null and void. This is because the same is contrary to the Traditional Rulers and Chief Edict, 1979 wherein the mode of succession to the clan headship of Jagbe is by gerontocracy i.e. to say the most senior male member of Jagbe clan automatically becomes the Onogie upon a vacancy and not by primogeniture i.e. from father to son. The Appellants averred that as provided by law, the late Prince Umoru Omogua was not qualified to have been made an Onogie (Clan Head) of Jagbe. In the premises, the Appellants claimed the following reliefs against the Respondent –
“(i) A declaration that the Legal Notice B.S.L.N. 15 of 1991 with retrospective commencement date of 1st July, 1984 but dated the 12th day of July, 1991 wherein the Governor of Edo state of Nigeria purportedly approved the appointment of late Prince Umoru Omogua as the Onogie (clan Head) of Jagbe in Etsako West Local Government Area of Edo state is null and void same being contrary to the Traditional Rulers and Chiefs Edict, 1979.
(ii) A declaration that by the provision of the Traditional Rulers and Chiefs Edict, 1979, the mode of succession to the clan Headship of Jagbe is by gerontocracy, that is to say, the most senior male member of the Clan before the Clan Head, and not by primogeniture.
(iii) A perpetual injunction restraining the Defendant from recognizing and/or conferring on any member of Jagbe community the title of Onogie of Jagbe except as stated above.”
In the main, the Respondent in its pleading controverted the case of the Appellants as set up in their pleadings. While admitting that the Appellants by Originating Summons sought a declaration in relation to BSLN No. 14 of 1991, the Respondent denied that such a declaration was sought in relation thereto in the instant action. That it was in respect of BSLN No.15 of 1991 that they sought a declaration. It is the stance of the Respondent that the Onogie is a chieftaincy to which Part II of the Traditional Rulers and Chiefs Edict No. 1 of 1979 applied and that the approved and registered declaration published as BSLN No. 38 of 1979 applicable thereto, having been found to be defective was set aside by another approved and registered declaration published as BSLN No. 14 of 1991. The Respondent made further averments to the effect that the registered declaration published as BSLN No.14 of 1991 was made in accordance with the provisions of the law relating to the making of Chieftaincy Declarations.
The Appellants called one witness in the proof of their case; while the Respondent called two witnesses in this regard. The lower court having had the benefit of the addresses of the parties and after evaluating the evidence adduced before it, found the Appellants’ action to fail in its entirety and accordingly dismissed the same.
The Appellants being aggrieved with judgment of the lower court lodged an appeal against the same, by a Notice of Appeal (undated) but filed on 20/7/2009. The Notice of Appeal contains five grounds of appeal.
In accordance with the Rules of this Court, parties filed and exchanged Briefs of Arguments. Appellants’ Brief of Argument is dated 28/10/2011 and filed on the same date. Appellants’ Reply Brief is dated 6/12/2011 and filed on 7/12/2011. Both Briefs were settled by Isaac Oseghale Esq. Respondent’s Brief of Argument dated 18/11/2011 and filed on the 21/11/2011 was settled by C.A. Ebosele (Mrs.) Chief State Counsel (CSC), Ministry of Justice, Edo State. The appeal was entertained on 14/3/2013, and both learned Senior lead counsel for the Appellants, A. Akpomudje SAN, and learned CSC leading P.O. Aigbokhaebholo (Miss) (Legal Officer) adopted and relied on the Briefs of Arguments hereinbefore identified, filed on behalf of their respective clients in aid of their positions in the appeal. It is pertinent to note that at the hearing of the appeal, learned CSC for the Respondent specifically declared that the record of appeal compiled by the Appellants is alright. That the Respondent has no grouse with the record of appeal as transmitted to this Court by the Appellants.
The Appellants formulated two issues for the determination of the appeal in their Brief of Argument. The issues read thus: –
“ISSUE ONE
Whether the trial court was right to have dismissed the appellants’ claim in its entirety based on issues not raised, canversed (sic) by any of the parties at trial or during final address of both counsel to the parties.
Ground (sic) one and four of the record of appeal.
(Whatever this means).
ISSUE TWO
Whether the Court of Appeal can re-evaluate the evidence of the appellants properly and rely on Section 15 of the Court of Appeal Act, 2004 amend and grant the reliefs of the appellants and thereby decide the case of the parties on the merit.
Grounds two and three of the record of appeal.” (whatever this means).
Three issues are formulated for the determination of the appeal in the Respondent’s Brief of Argument. The issues read thus: –
“ISSUE 1
Whether where an approved Declaration of Legal Notice B.S.L.N. No. 14 of 1991 with retrospective commencement date of July 1st 1984 dated 12th day of July, 1991 exist made under the enabling law regulating Chieftaincy matters, resort can still be had to former Notice B.S.L.N. 138 of 1979.
ISSUE II
Whether the New Declaration B.S.L.N 14 of 1991 Stating (sic) the customary law regulating succession to the title of Onogie of Jagbe setting aside the former B.S.L.N 138 of 1979 is based on primogeniture or gerontocracy.
ISSUE III
Whether the trial court took a wrong decision on the entire case before it to necessitate re-evaluation by the Court of Appeal.”
Grounds two and three of the Appellants’ grounds of appeal from which their issue Two has been distilled read thus:-
GROUND TWO
The learned trial Judge erred in dismissing the Appellants (sic) claims in its (sic) entirety when a proper evaluation of the evidence led and a resolution of the issues for determination would have led to the amendment of the reliefs or at worse non-suit, the Appellants and thereby came to a wrong decision.
PARTICULARS OF ERROR
(i) Since the evidence on the relief concerning the validity of Legal Notice No. 14 was before the Court as a relief claimed by the Appellant (sic) though not stated in the relief it was a situation that can be cured by an amendment of the pleadings to bring same in line with the evidence led either at the court of trial or at the Appellate Court.
(ii) The trial court was under a duty in order to do substantial Justice to grant the relief asking for the setting aside the Legal Notice 14 as a consequential relief since the facts with which to prove the relief was proved by the Appellant.
(iii) By dismissed (sic) of Appellants claim in its entirety the trial Judge by necessary implication also dismissed the issue of whether or not Legal Notice No. 14 was lawfully made without making any finding of fact on the issue which if properly determined in favour of Appellants can in law operate as issue estoppel.
GROUND THREE
The learned trial Judge did not consider at all the difference between evidence led in support of pleadings and pleadings simpliciter as well as the reliefs claimed based on the pleadings which when properly considered and applied would have made the Lower court not to dismiss Appellants (sic) claim.
PARTICULARS OF ERROR
(i) The trial Judge in dismissing the Appellants (sic) case considered only the pleadings and in particular the reliefs without the evidence led in support of the entire case.
(ii) A consideration of the Appellants (sic) relief can only come after the court had considered the pleadings, evidence led in support, issues arising for determination from the evidence and pleading of the parties and resolution of the issues before considering the reliefs whether as they are framed and based on the pleadings and evidence the same can be granted.
(iii) The trial Judge started on a very wrong premise by a consideration of the reliefs first as if he was deliberately shying away from making a clear pronouncement on the issues the parties were disputing bearing in mind that the case was against the Edo State Government.
(iv) All trial courts have been admonished by the Court of Appeal and Supreme Court to make a pronouncement or decision on every issue submitted for adjudication by the parties even if the case can be decided on one point or issue alone. This can only be done by a consideration of the entire case before looking at the reliefs claimed.
(v) The approach adopted by the trial Judge has occasioned substantive injustice to the Appellant (sic) in not having its (sic) case determined on the merits of the issues in dispute and the order of dismissal made could not have been made if the whole case was considered.”
The settled position of law regarding issues formulated for the determination of an appeal by the parties therein, is not only that the issues so formulated must flow from the grounds of appeal (not particulars of grounds of appeal), but also that the grounds of appeal themselves must find their foundation in the judgment appealed against. I have hereinbefore re-produced Appellants’ issue Two as contained in their Brief of Argument and I cannot but wonder how it can be said that the said issue flows from the grounds of appeal from which they are purported to have been distilled. The invitation to this Court to exercise its power under Section 15 of the Court of Appeal Act, 2004 and to amend Appellants reliefs clearly cannot be pursued by way of an issue for determination. They are glaringly some form of reliefs. Against the backdrop of what I have stated, I will discountenance issue two as formulated by the Appellants.
The Respondent on its own part did not marry the issues it formulated to the grounds of appeal from which they were distilled. However as it is clear from the respective cases of the parties on the pleadings that the whole of the Appellants’ case questions the act carried out under a declaration different from BSLN No. 138 of 1979, I consider the Respondent’s issues 1 and 3 very relevant to the determination of the instant appeal and I will therefore dwell on the same. In other words the appeal will be determined upon Appellants’ issue 1 and Respondent’s issues 1 and 3.
APPELLANTS’ ISSUE 1
Dwelling on the issue, the Appellants stated to the effect that the lower court knew the reliefs which they were claiming before it having regard to the totality of the evidence led by both parties in support of their respective cases on the pleadings and their final addresses. That it was in the knowledge of this that the lower court held as follows: –
“In my view a declaration that BSLN No. 14 of 1991 is null and void and of no effect whatsoever and an order setting it aside are substantive prayers which cannot be granted is consequential orders”
The Appellants said that the lower court deliberately refused to consider any of the issues raised, agreed to and formulated by the parties for determination by the court based on their pleadings and oral evidence of all the witnesses that testified for the respective parties. That indeed, the lower court in the judgment did not resolve any issue in dispute between the parties. Having set out the issues formulated for the resolution of the lower court by the parties, and which the lower court also re-produced in its judgment at pages 146 – 147 and 152 – 153 respectively of the record, the Appellants submitted to the effect that the lower court started on a wrong premise by the consideration of the reliefs first and refusing to make any pronouncement on or resolve any of the issues raised by them (i.e. Appellants) and thereby occasioning them a miscarriage of justice. That the lower court failed in its statutory responsibility to properly and adequately consider all issues submitted to it by the parties. Tanko v. UBA Plc (2010) 17 NWLR (Pt 122) (this part as cited is obviously wrong) 80 at pages 93-94, was cited in aid. The Appellants submitted to the effect that if the lower court had considered the issues raised, canvassed and addressed on by the parties, it would not have made an order of dismissal of their claims in their entirety.
The Appellants made the point that at all material time before the judgment delivered by the lower court, they had procured the leave to amend “BSLN No.15 of 1991” as it appeared in paragraph 8(i) of their pleading to read “Bendel State Legal Notice No. 14 of 1991”. And that the application in this regard was not opposed by the Respondent. Therefore, that this Court can amend Bendel State Legal Notice No. 15 of 1991, to read Bendel State Legal Notice No. 14 of 1991 and enter judgment in favour of the Appellants. Section 15 of Court of Appeal Act 2004 was cited in aid. That the lower court in dismissing the Appellants’ case considered only the pleading and in particular the reliefs without considering the evidence of the only witness to the Appellants in support of their entire case. That the lower court, should have given the parties the opportunity to have addressed it; if it had any doubt regarding the reliefs being claimed by them (Appellants). That had the lower court done this, they (Appellants) would have had the opportunity to have directed it (lower court), to its previous record wherein they (Appellants), had orally applied to amend their reliefs, to pray for the setting aside of Legal Notice No. 14 of 1991. The Appellants submitted that it is trite that the decision of a court must be based on the issues the parties have submitted for its consideration and if the court is to rely on any other point or issue, the court must afford the parties an opportunity of being heard. The Appellants further submitted that it was wrong of the lower court to have decided their case on a point the lower court raised suo-motu without affording the parties the opportunity to address it on the same. This Court was urged to resolve this issue in favour of the Appellants.
The Respondent would appear to have dwelled on this issue in some parts of its arguments on its issues 1 and 3. Under its issue 1, the Respondent stated to the effect that succession to Clan Head in Jagbe Clan is governed by the 1991 Declaration and not by the 1979 Declaration which was revoked by then Bendel State Government after due process. The Respondent submitted to the effect that once there is an approved Declaration made under an enabling law regulating Chieftaincy matters resort can no longer be had to the revoked Declaration. Also the cases of Oladele v. Aromolaran II (1996) 39 LRCN 937 at 940; and Ayoade v. Military Governor of Ogun State (1993) 8 NWLR (Pt. 111) 127 at 128, were cited in aid of the purpose of a registered Chieftaincy Declaration.
The Respondent also submitted to the effect that the lower court did not arrive at a wrong decision on the facts of the case as placed before it. In this regard, the Respondent referred to the declaration by the lower court to wit: “In the instant case therefore, it seems to me that with the revocation of the B.S.L.N 138 of 1979 by B.S.L.N No. 14 of 1991 ceased to exist and ceased to have any legal effect. Thus, the applicable customary law on the Onogie (Clan Head) of Jagbe is the 1991 declaration contained in legal Notice B.S.L.N No. 14 of 1991”. The Respondent submitted to the effect that the lower court dealt extensively with the issues that were at stake in the case as presented before it and that particularly in the light of the reliefs sought, the lower court made proper use of the case of Adesanoye v. Adenole, in its judgment.
For the proper resolution of this issue, I consider it pertinent to avert to some trite principles of law.
Authorities have consistently held to the effect that “pleadings” are summary of the facts of a case that must be served on an opponent to enable him have notice of facts that will be in contention at the hearing. Hence authorities have also consistently held to the effect that the basic purpose or function of “pleadings” is to avoid springing surprises on the other party; accordingly parties are bound by their “pleadings” and must not go beyond what they have pleaded in their evidence, as doing this will render evidence so given, to be in respect of a non-issue, and liable to be struck out or discountenanced by the court. See ATANDA V. LIASU (2013) 6 NWLR (Pt.1351) 529 at 562; AGBOOLA V. UBA PLC (2011) 45 NSCQR 335 at 358; ALIBO V. OKUSIN [2010] All FWLR (Pt.529) 1059 and ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY V. EKWENEM (2009) 40 NSCQR 51 at 72. In other words, the issues that call for resolution in a case being tried on pleadings are circumscribed and fixed by the pleadings of the parties before the court and parties are to adduce evidence in relation thereto only.
It is also settled law that it is the plaintiff who brings a suit before the court that also primarily nominates the issues for decision in the case. See LONGE V. FIRST BANK OF NIGERIA PLC [2012] All FWLR (Pt. 525) 258; and NKUMA V. ODILI [2006] All FWLR (Pt.313] 24. This being the situation, all that a defendant need do, is to resist the plaintiff’s claims on the facts pleaded. It is not for a defendant to set up facts which would convey that he is not just setting up a defence to the plaintiff’s suit but setting up a new case of his own. A defendant is only permitted to do this, when he is setting up a counter-claim. See DIAMOND BANK PLC v. MONANU [2013] 7 WRN 110.
A trial court is no doubt obligated to decide issues submitted to it by the parties. It must however be noted that it is only in respect of matters upon which parties have properly joined issues on the pleadings, in a trial conducted upon pleadings, that a court has the bounden duty to decide. Hence the consideration by appellate courts of the pleadings of the parties in order to have a clear understanding of the nature of the dispute between the parties in an appeal and how the lower court approached the issue. See KOPEK CONSTRUCTION LTD V. EKISOLA [2010] All FWLR (pt. 519) 1035.
It is in my considered view clear from the pleadings of the parties as placed before the lower court at all material times to its judgment that BSLN No. 14 of 1991 was not a document or piece of documentary evidence the Appellants indicated that they relied upon for any purpose at all. The said Legal Notice also never featured in any part of their claims as set out in their pleadings before the lower court. Hearing in the case commenced before the lower court as presided over by the learned trial Judge on 2/5/2006 and the case was adjourned to various dates for continuation of hearing until the proceedings before the lower court came to an end upon the delivery of judgment therein on 20/4/2009. It is not the case of the Appellants that they at anytime during the course of the hearing of the case amended their pleading or caused the fact of the previous amendment to their pleadings to include a declaration regarding BSLN No. 14 of 1991, to be placed before the lower court as presided over by the learned trial Judge. The Appellants in accusing the lower court as presided over by the learned trial Judge of not considering all the issues placed before the said court for consideration would appear to have lost sight of the position of the law that the issues in controversy in a case tried on pleadings that a court is duty bound to pronounce upon, are the ones that properly arises on the pleadings before the said court. See CHIDOKA V. FIRST CITY FINANCE CO. LTD [2013] All FWLR (pt.659) 1024 at page 1038 whereat the Supreme Court per Muntaka-Coomassie, JSC; stated thus: –
“As a preliminary point, I must state that I have perused the statement of claim and the statement of defence and I could not see where issue of the illegality was raised. To make matters worse, the appellants did not utter any evidence in defence or in support of their statement of defence. It is settled law that the court is only bound to consider and determine issues properly placed before it. It cannot embark on its voyage to fish out issues for parties: Lasisi Ogbe v. Sule Asade (2009) 18 NWLR (pt.1172) 106, (2010) All FWLR (Pt.510) 612. It is my view that this issue having not been raised in the pleadings before the trial court is not worthy of any determination.”
Against the backdrop of the position of the law as hereinbefore stated, it is simply incomprehensible how the Appellants expected the lower court to have dwelled on any issue concerning BSLN No. 14 of 1991 when they did not put the document in issue in any manner in their pleadings. It is equally incomprehensible how the Appellants expected the lower court to have embarked on the evaluation of any evidence adduced by them in relation to the said BSLN No. 14 of 1991 against the backdrop of the position of the law that evidence adduced in respect of a matter that is not in issue in a case goes to no issue. Again I cannot but express my amazement regarding the submissions of the Appellants to the effect that the lower court ought to have given them a hearing before it found their case to have failed on the basis of the non-challenge of the validity of BSLN No. 14 of 1991. I definitely do not understand the Appellants as saying in their Briefs of Argument that they ever could have been entitled to their claims without their having successfully challenged the validity of the said BSLN No. 14 of 1991. The case which the Appellants placed before the lower court as presided over by the learned trial Judge, I must say again is as disclosed by their pleadings which were never amended before the learned trial Judge and the previous amendment of which was never brought to the notice of the learned trial Judge. This being the situation, the Appellants to all intent and purposes, rested their case before the learned trial Judge upon their pleading as shown on pages 1 and 2 of the record. Therefore there was no need for the learned trial Judge to have called on the Appellants to address him regarding the impossibility of granting their reliefs without their successfully challenging BSLN No. 14 of 1991 upon their pleading vis-a-vis the evidence they adduced. This is because the law is that “the court cannot call on parties to address it on an issue on which they have rested their respective cases. See PERETU V. GARIGA (2013) 5 NWLR (Pt.1348) 415.
The Appellants in arguing the issue under consideration, surprisingly have placed no fault whatsoever at their own doorsteps. All manner of faults the Appellants could think of have been placed at the doorstep of the learned trial Judge and they even went further to accuse the learned trial Judge of deliberately ignoring their claim in relation to BSLN No. 14 of 1991 as it were in the light of the final addresses of parties. The Appellants would appear to have lost sight of the fact that address of counsel no matter how brilliant cannot turn the fortunes of an ill-prepared or ill-conceived case. They have also lost sight of the fact that courts do not have the power of telepathy and cannot properly know of what has not been brought to their attention. In this regard see the case of AKPAN V. BOB [2010] 17 NWLR (Pt.1223) 421 at 467, whereat Muhammad, JSC; stated thus: –
“….. A court of law, it is my belief does not possess a power of telepathy to know of facts that have not been brought to its attention by any of the parties involved in a dispute before it or by the Registry of that court. In spite of what Order 11 rule 4 of the Court of Appeal Rules, 2007 (as amended) provides, I believe the court is entitled to be informed of the correct position of any process before it so as to know that court’s reaction on such a pending process. Where that is not done, justice has not been done to the court itself. Thus, the court below can hardly be blamed for proceeding to deliver judgment on the main appeal when its attention had never been drawn to any pending matter by it and could not say anything on the pending notice of withdrawal of the 5th respondent’s cross-appeal as it had no knowledge of its pendency. So, since there was no pronouncement by the court below on the notice of withdrawal of the 5th respondent’s cross-appeal, the appellant could not have validly raised any ground of appeal on the notice of withdrawal of the 5th respondent’s cross-appeal. Accordingly, grounds 4, 6, 7, 8 and 9 of the appellant’s notice of appeal are incompetent and are hereby struck out.”
The Appellants at all material times prior to the commencement of hearing before the lower court as presided over by the learned trial Judge and till judgment was delivered in the case never filed an amended pleading reflecting the amendment they had secured to their reliefs. The fact of the amendment therefore remained peculiarly within the knowledge of the Appellants and it is simply not expected of the lower court to have started racking up appropriate reliefs for the Appellants.
The lower court in its judgment patently averted its mind to the evidence adduced by the parties before it, and displaying clear understanding of the claims of the Appellants (declarations and injunction), and the law applicable thereto clearly found the Appellants not entitled to the reliefs which they sought against the Respondent.
The entitlement of a party to the relief or reliefs which he seeks in a case, on the evidence before the a court vis-a-vis the pleading of the party is clearly not a matter that a court should call afresh for an address and the lower court in reaching its decision in the instant case has certainly not committed any infraction of law having regard to the state of pleadings before it.
Flowing from the foregoing is that Appellants’ issue 1 is resolved against them.
RESPONDENT’S ISSUE 3:
The Respondent submitted to the effect that the lower court did not arrive at a wrong decision on the facts of this case and so it is not necessary for this Court as an appellate court to re-evaluate the case. Stating that the lower court dealt extensively with the issues that were at stake before it, the Respondent submitted to the effect that an appellate court cannot interfere with the findings of a trial court where the latter has evaluated evidence and correctly ascribed probative value thereto. The cases of Igago v. State (1999) 73 LRCN 3502 at 3509; Abisi v. Ewwealor (1993) 6 NWLR (Pt. 302) 643; and Okolo v. UBN Ltd (1998) 2 NWLR (Pt.539) 618, were cited in aid. It is the stance of the Respondent that the lower court haven discharged its primary function of evaluating the evidence before it properly and correctly ascribing probative value thereto as can be seen in its judgment, this Court cannot properly embark on the re-evaluation of the case. That the lower court was duty bound to apply the provisions of the existing and extant registered Chieftaincy Declaration before it (i.e. BSLN No. 14 of 1991) and not BSLN 138 of 1979 which had been revoked. The case of Adekeye v. Adesina (2011) LRCN 65 at 74 was cited in aid.
In their Reply Brief, the Appellants stated to the effect that the Respondent must be taken to have conceded their argument in respect of the instant case being based on or predicated on the amendment to their reliefs before the lower court as presided over by another Judge and in this regard cited the case of Aliyu v. Adewuyi (1996) 4 NWLR (Pt.442) 284 at 292. It is the stance of the Appellants that as the Respondent has not disputed the fact of the amendment of BSLN No. 15 of 1991 to read BSLN No. 14 of 1991, it (i.e. Respondent) cannot be heard to say that the lower court had any basis for dismissing their case. That in the circumstance the decision of the lower court was perverse. The Appellants made the point that BSLN No. 14 of 1991 was not made by due process contrary to the submissions of the Respondent in that respect.
It had hereinbefore been stated that at the hearing of the appeal, learned CSC for the Respondent specifically declared that the record of appeal compiled by the Appellants is alright. That the Respondent has no grouse with the record of appeal as transmitted to this Court by the Appellants. The position in the instant appeal therefore is that even though the Appellants never placed before the lower court the fact of the amendment of BSLN 15 of 1991 to read BSLN No. 14 of 1991, the Respondent has before this Court now clearly conceded this. This is in the light of pages 24 – 29 of the record which the Respondent has no grouse with. The position before this Court therefore is whether there is now need for this Court to re-evaluate the evidence adduced in this case, even though I have hereinbefore resolved Appellants’ issue 1 against them on the ground that the lower court committed no infraction in the manner canvassed by the Appellants against the backdrop of the pleadings before it.
The Respondent has clearly stated that there is no need for the re-evaluation of the evidence adduced in the case as the lower court was right in its decision. On the other hand the Appellants having regard to the relief which they seek in the instant appeal clearly see the need for the re-evaluation of the evidence adduced in the case inasmuch as they have invited this Court to decide all the issues in dispute and grant all their claims as per their amended reliefs.
It is in my considered view obvious that in the light of the position of the reliefs sought in the instant case and as agreed or admitted by the Respondent to wit: that the declaration sought by the Appellants related to BSLN No. 14 of 1991, it has become imperative for this Court to now re-evaluate the evidence adduced by the parties in relation to the said BSLN No. 14 of 1991, but which went to no issue before the lower court inasmuch as the said lower court never had the fact of the amendment in that regard placed before it. This Court in my considered view can properly embark upon the re-evaluation of the evidence adduced before the lower court pursuant to its powers under Section 15 of its Act and against the settled position of law that where the lower court has failed in its duty of properly evaluating the evidence before it, this Court can intervene by evaluating the evidence so as to make its own findings and draw its conclusions provided that the exercise will not involve or entail the assessment of credibility of witnesses. See TUKUR V. UBA (2013) 4 NWLR (Pt.1343) 90 at 128 and 129; ANYANWU V. UZOUAKA (2009) 40 NSCQR 1 at 16; and ODEBUNMI V. ABDULLAHI (1997) 2 SCNJ 112.
The Appellants, having regard to the amendment they had procured for BSLN No. 15 of 1991 to read BSLN No. 14 of 1991 in their pleading, clearly adduced evidence through their sole witness (5th Appellant) to the effect that making of the declaration published as BSLN No. 14 of 1991 did not follow due process. It is the case of the Respondent on its pleading that the declaration published as BSLN No. 14 of 1991 was made in compliance with due process and it led evidence as to how the said declaration published as BSLN No. 14 of 1991 came to be made through its witnesses.
The Appellants in their address before the lower court maintained that it was the Traditional Council upon the bidding or directive of the Executive Council that is empowered to amend an existing registered chieftaincy declaration by virtue of Sections 8 and 9 of Edict No. 6 of 1979 and that the Chairman of a Local Government Council has no right to set up the Traditional Council for this purpose. The Respondent clearly did not deny the position of the Appellants haven regard to its pleading, particularly as it averred to the effect that the Traditional Council is involved in the making of a registered chieftaincy declaration.
The evidence of the Respondent’s two witnesses can be found at pages 35 – 38 of the record. It is clear therefrom that the Respondent never placed before the lower court, evidence of the involvement of the Etsako Traditional Council in the making of any registered chieftaincy declaration in respect of the chieftaincy involved in the instant case. I am aware that a letter dated 31/10/90 and under the hand of R. I. Edugie for and on behalf of the Chairman of Etsako Local Government was admitted as Exhibit “C” (see pages 93 – 99 of the record.) I however cannot but observe that the minutes of the Traditional Council meeting which could somehow have gone to establish the fact of the involvement of the Traditional Council in the making of the registered chieftaincy declaration published as BSLN No. 14 of 1991 was not tendered with or along with the said Exhibit. Glaringly too, the Respondent never called any member of the Traditional Council to testify as to what that Council did in the making of the registered chieftaincy declaration in question. Certainly, all that is stated in Exhibit “C” to have been done by the Traditional Council is clearly in the realm of hearsay in the circumstances.
The question that begs for an answer therefore, is whether it can be said in the absence of any iota of evidence establishing the involvement of the Traditional Council in the making of the declaration published as BSLN No. 14 of 1991, that the said registered declaration (i.e. BSLN No.14 of 1991 at page 116 of the record), was made in compliance with due process as maintained by the Respondent. The glaring answer is that the Respondent adduced no evidence establishing due process in the making of the chieftaincy declaration published as BSLN No. 14 of 1991. In the circumstances, I find the Appellants to have established their entitlement to the declaration which they sought regarding the declaration published as BSLN No. 14 of 1991. Furthermore, the Appellants having been found to be entitled to the declaration which they seek regarding the declaration published as BSLN No. 14 of 1991 are entitled to the other two reliefs they seek in the instant case as the Respondent which has predicated it actions on the said BSLN No. 14 of 1991 by failing to establish that it was made by due process cannot rightly rely on the same as having revoked the chieftaincy declaration published as BSLN No. 138 of 1979.
Flowing from all that has been said above is that Respondent’s issue 3 is resolved against it.
In the final analysis, and despite the initial resolution of Appellants’ issue 1 against them, I still find the instant appeal to be meritorious in the light of the resolution of Respondent’s issue 3 against it. Furthermore, and this is against the backdrop of the findings I have made hereinbefore, I hereby set aside the judgment of the lower court dismissing the case of the Appellants delivered on 20/4/2009 in ignorance of the fact that the Appellants had at a stage in the proceeding amended BSLN No. 15 of 1991 that appeared in their pleading to read BSLN No. 14 of 1991. In place of the judgment of the lower court, I now grant the reliefs sought by the Appellants against the Respondent, namely: –
“(i) A declaration that the Legal Notice B.S.L.N. 14 of 1991 with retrospective commencement date of 1st July, 1984 but dated the 12th day of July, 1991 wherein the Governor of Edo State of Nigeria purportedly approved the appointment of late Prince Umoru Omogua as the Onogie (Clan Head) of Jagbe in Etsako West Local Government Area of Edo State is null and void same being contrary to the Traditional Rulers and Chiefs Edict, 1979.
(ii) A declaration that by the provision of the Traditional Rulers and Chiefs Edict, 1979, the mode of succession to the Clan Headship of Jagbe is by gerontocracy, that is to say, the most senior male member of the Clan before the Clan Head, and not by primogeniture.
(iii) A perpetual injunction restraining the Defendant from recognizing and/or conferring on any member of Jagbe community the title of Onogie of Jagbe except as stated above.
I make no order as to costs.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the Judgment just delivered by AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A:. I am in complete agreement with his reasoning and conclusion that on the whole the appeal is meritorious having regard to the resolution of the third issue against the Respondent. I also concur to grant all the reliefs sought by the Appellants against the Respondent as set out in the lead judgment. I make no order as to costs.
TOM SHAIBU YAKUBU, J.C.A.: I read before now, the judgment of this Court, just delivered by my learned brother – AYOBODE O. LOKULO-SODIPE, JCA. His Lordship has comprehensively dealt with all the relevant issues for determination to my satisfaction, hence I am in complete agreement with his reasoning and conclusion.
I, too therefore set aside the judgment of the Court below and subscribe to the grant of the appellant’s reliefs contained in the said lead judgment.
Each side to bear own costs.
Appearances
A. Akpomudje SAN with I. Orwighorienta; Onome Egbon; and I. K. E. OseghaleFor Appellant
AND
C. A. Ebosele (Mrs.) (Chief State Counsel), Ministry of Justice, Edo State) with P. O. Aigbokhaebholo (Miss) (Legal Officer, Ministry of Justice Edo State)For Respondent
