APOSTLE ADEOLU AINA v. MR. GBENGA G. SONAIYA SONUGA & ORS
(2014)LCN/7579(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 2nd day of December, 2014
CA/I/206/2014
RATIO
ACTION: CAUSE OF ACTION; WHETHER A CASE IS DECIDED ON THE LEGISLATION IN FORCE AT THE TIE THE CAUSE OF ACTION AROSE AND NOT WHEN THE ACTION WAS FILED
Next is the applicable laws which govern the situation. The Learned trial Judge was right on the point when he held as trite law the proposition that a case is decided on the legislation in force at the time the cause of action arose and not when the action was filed, in this case 2006. The cause of action arose in 2004 when the Ewusi of Makun, as prescribed, appointed the 1st respondent as Baale of Simawa community. The relevant law, the trial Judge found was Ogun State Legal Notice No.11 of 1980 the validity of which has never been challenged. per. NONYEREM OKORONKWO, J.C.A.
APPEAL: FINDINGS NOT APPEALED AGAINST; THE EFFECT OF THE FINDINGS BY THE TRIAL COURT WHICH ARE NOT APPEALED AGAINST
It is the settled law that any findings made by the trial court which are not appealed against are deemed accepted. In other words, an Appellant who does not appeal against specific findings of the trial court, is deemed to have accepted those findings.
Thus, any findings of made by a trial court for which there is no appeal remain valid and subsisting. Such findings are deemed admitted by the person against whom they were made, and an appellate court will be right to act on it. See Ebenighe v. Achi (2011) 2 NWLR (Pt.1230) p.65; S.P.O.C. Ltd v. Ejebu (2011) 17 NWLR (Pt.1276) and C.P.C. v. I.N.E.C. (2011) 18 NWLR (Pt.1279) p.493. per. HARUNA SIMON TSAMMANI, J.C.A. per. NONYEREM OKORONKWO, J.C.A.
JUSTICES
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
Between
APOSTLE ADEOLU AINA
(For himself and on behalf of Gunsenemo Royal Family) Appellant(s)
AND
1. MR. GBENGA G. SONAIYA SONUGA
2. EWUSI OF MAKUN SAGAMU
(Oba Timothy Oyesola Akinsanya Arugba II)
3. REMO TRADITIONAL COUNCIL Respondent(s)
NONYEREM OKORONKWO, J.C.A.(Delivering the Leading Judgment): By a “2nd further amended statement of claim”, the appellant herein, as claimant in the High Court of Justice of Ogun State at Sagamu, claimed against respondent as follows;
1. Declaration that;
a. According to Yoruba native law and custom and according to the Chiefs Law of Ogun state, Cap 20, the appointment and occupation of the Royal stool of Simawa by the 1st defendant is null, void and of no effect.
2. A perpetual injunction restraining the 1st defendant from parading himself as Oba of Simawa.
3. A perpetual injunction restraining the 2nd and 3rd defendants their agents or privies from recognizing the 1st defendant as the Oba of Simawa.
By his pleadings, the appellant who sued as head of Gunsenemo Royal Family avers that by tradition it was originally appellants’ family that always occupied the Baaleship of Simawa until the inclusion of the Royal Families of Ajenukan and Nuren.
Appellant pleads that the 1st defendant is not of any Royal lineage in Simawa and that the installation of 1st defendant/respondent was contrary to Yoruba native law and custom and contrary to the Chiefs Law Cap 20 of Ogun State.
Appellant aver that the first Baale of Simawa was Oba Kehinde Onadein who was from the appellants’ family and who was recognized and paid a stipend by the Government until his demise. It was then that a fourth ruling house, the Agaga family was included in the list of Ruling houses.
After the turn of the Agaga ruling house with the death of Saula Agaga, appellant contends that it became the turn of his family to “present one of their own for occupation of the throne”. But that contrary to native law and custom of Simawa, the then Oba of Makun, Oba E.O. Ogunsowo “imposed the 1st defendant (1st respondent) in place of the plaintiff (appellant) under the title of Oba Gbenga Gbadebo Shonuga, Ogbodo 1 as Fadesewa of Simawa. “Simawa village is within the area traditionally associated with Makun Sagamu.”
Appellant contends in his pleadings that 1st respondent’s family was never associated with the ruling house of Ogunekun-Ogbodo and in previous suits between the family of the appellant and 1st respondent including in suit No.SC/16/74, 1st respondent’s family never traced their ancestry to appellants Ogunekun/Ogbodo.
Appellant further pleads that in May 2004, there was a publication to the effect that the 1st respondent was appointed and installed as the new Baale/Oba of Simawa and from 10th November, 2007 1st respondent was fraudulently recognized as Oba of Simawa contrary to native law and custom of Simawa.
Appellants then pleaded a list of persons who from ancient times have occupied the Baaleship of Simawa.
For the 1st respondent,the material averments of the appellant were denied but specifically 1st respondent plead that Simawa village is in Shagamu Local Government Area of Ogun state and that the Ewusi of Makin is the appropriate authority who consents to the appointment of any one selected by the appropriate ruling house for the post of Oba of Simawa. Simawa, the 1st respondent pleaded had Olori Ewu or village head or Baale in the past but that the title Oba was of recent origin.
1st respondent pleads that his ancestor Ogbodo who was a great warrior and farmer was one of the first settlers of Simawa. 1st respondent then traced his lineage to Ogbodo through a line of succession. 1st respondent pleads that his ancestor Ogbodo was a cousin of Ogunekun who was the claimants ancestor.
1st respondents pleads that his family the Ogbodo-Sonuga family is one of the many ruling houses in Simawa but that in Simawa, there is no declaration regulating succession. In Simawa succession to the “Olori-Ewu” or Baaleship was rotatory among the families of the settlers which were the Asenukans, the Ogbodo/Ogunekuns, the Agagas, the Otasanyas, the Awolajas and the Nurens.
1st respondent deny that it is the prerogative of the appellants family to produce a candidate for the Bale of Simawa but that on the contrary the position is rotated among the ruling houses and that the immediate past Baale or Oba of Simawa Samuel Saula Okeowo Agaga was from the Agaga family. 1st respondent pleaded eleven Baales or Obas of Simawa who came from the various ruling houses of Simawa. After the demise of Baale Kehinde Onadein, the then Ewusi of Makun installed Saula Okeowo Agaga and at the death of Saula Okeowo Agaga, the family of the 1st respondent the Ogbodo-Sonuga family was invited to present a candidate by the Ewusi of Makun and 1st respondent who selected and installed Baale of Simawa by the Ewusi of Makun Sagamu on 11th day of April, 2004, 1st respondent pleads that the Ewusi of Makun recommended him for Obaship through the Remo Traditional Council to the Governor who gave approval for 1st respondent’s ascendancy to Obaship. 1st respondent contends that his appointment as Baale and later as Oba of Simawa followed due procedure for the appointment and installation of Baale and Oba.
1st respondent further contends that he has been performing the duties and functions of his office as Baale and later in 2007, as Oba of Simawa and that Simawa Community has benefitted from his reign as Oba.
Evidence was led by the parties, the appellant called 2 witnesses CW1 and CW2. The 1st respondent called 2 witnesses. Numerous exhibits were tendered.
In evaluating the evidence led, the learned trial judge A. Rotimi Balogun adopted the issues as formulated by the appellant which are as follows:
“1. Whether if the totality of evidence adduced before this court is placed on an imaginary scale the evidence of the Claimants two witnesses is able to prove that the 1st defendants appointment and installation as Baale and subsequent elevation to Oba of Simawa is contrary to Yoruba native law and custom and the Chiefs law of Ogun State Cap 20 and hence null and void.
2. Whether the Claimants are entitled to the reliefs sought.
The trial judge then proceeded to list in the judgment the essential paragraphs of the amended statement of claim of the appellant from paragraph 1 to 20 thereof and listed paragraphs 3, 4, 5,5(a b c 6, 7, 9, 13, 22, 23, 24 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 39, 40, 41, 42, 43, 44, 45, of the statement on Oath of CW1, Dauda Olokun as not pleaded.
For appellants CW2 Olutayo Onafuwa paragraphs 3, 4, 5, 6,7, 9, 10, 14, 22 and 25 of the statement on oath were listed by the trial Judge as evidence not in conformity with the pleadings of the appellant specifically the learned trial judge observed at page 33 thus:
“Reading the statement of Oath of CW1 the following paragraphs were definitely not pleaded.
They are paragraphs 3, 4, , 5(b), 5(c), 6, 7, 9, 13, 22 – 45. With respect to the statement on Oath of the CW2 paragraphs 3, 4, 5 a – c, 7 10, 14a – a25 were not pleaded”. ‘All these evidence on Oath” the learned judge continued “have no supporting averments in the 2nd further amended statement of claim which is the last amendment of the claimant and the pleading which determines the live issue in this case.
Those depositions are therefore worthless and they have to be discountenanced or disregarded and I so hold.”
Largely for the reasons of lack of pleadings and consequently failure of proof, the learned trial Judge A. Rotimi-Balogun in a judgment delivered 10th February, 2014 dismissed the appellants, claims.
The appellant filed a Notice and Grounds of appeal which allege as follows:
GROUND ONE
The Learned Trial Judge erred in law in holding that no evidence was adduced by the claimants to convince the court that due process was not followed in the exercise leading to the selection and appointment of the 1st defendant as Baale.
PARTICULARS
1. The power delegated upon a Prescribed Authority by subsections (1) and (2) of Section 26 of the Chiefs Law Cap 20 Laws of Ogun State 1978 cannot be further delegated to an agent by the Prescribed Authority.
2. Activities carried out under exhibits D2 and D3 negate due process in the exercise leading to the selection and appointment of the 1st defendant as Baale; and exhibits D2 and D3 were produced to prove the 2nd defendant/respondent duly carried out his function in appointing an installing the first Respondent according to the Chiefs Law Cap of Ogun state.
GROUND TWO
The Learned Trial Judge erred in law in holding that the relevant law at the time the cause of action arose was the Ogun State Legal Notice No. 11 of 1980, which amended Section 18 of the Chiefs Law (Cap 19) of 1957 Western Region of Nigeria.
PARTICULARS
1. Ogun State was created by the states (Creation and Transitional Provisions) Decree, 1976, which came into operation on the 3rd February, 1976.
The territory contained in the State was formerly part of the Western State and the Laws of the Western State applicable to any part of Ogun State remain in force until repealed or amended by the appropriate law-making authority of Ogun State. The Law applicable in the Western State and equally applicable in Ogun State was Western Region revised Law 1959; 1957 Laws of Western State having been repealed and replaced by Western region Laws of 1959.
2. The sole authentic edition of the Laws and subsidiary legislation of Ogun State are as contained in volumes I – VII as they were on the 31st December, 1978. The laws of Ogun State of Nigeria prepared under the authority of the Revised Edition of the Laws of Ogun State of Nigeria Edict 1984 comprised in Volumes I – VII inclusive came into force on the 8th May, 1984 by virtue of Edict No. 7 of 1984.
3. The Chieftaincy Law Cap 20 Laws and subsidiary Legislation as contained in volume I in the Revised Edition of the Laws of Ogun State of Nigeria 1984 was the relevant law as at the time the cause of action arose on lf November, 2006.
GROUND THREE
The Learned Trial Judge erred in holding that the Ogun State Government is not a necessary party in this case.
PARTICULARS
1. The function over chieftaincy matter was vested in the government of the relevant State and was only delegated to the Prescribed Authority.
2. It is the Government that issued OGS Legal Notice No.11 of 1980, Exhibit D5 and also enacted OGS Legal Notice No.40 of 2006 Exhibit D6 during the pendency of the action before the court.
3. A person whether a necessary party or not cannot frustrate the outcome of an action in court before a judge pendant lit.
GROUND FOUR
The Learned Trial Judge erred in holding that the Claimants/Appellants did not place evidence as to the custom and tradition of appointing and installing either a Baale or Oba in Simawa.
PARTICULARS
1. The claimants/Appellants pleaded in the 2nd Further Amended Statement of claim that Yoruba Native Law and Custom of appointing and installing either a Baale or Oba in Simawa, and provided evidence as required under Section 16(2) of the Evidence Act by virtue of the Statements on Oath of the two claimant witnesses.
In his brief of argument, the following issues were formulated for determination:-
ISSUES FOR DETERMINATION
3.1. Whether the power delegated upon a Prescribed Authority by subsections (1) and (2) of Section 26 of the Chiefs Law (Cap. 20) Laws of Ogun state 1978 can be further delegated to any agent by the Prescribed Authority?
3.2. Whether the relevant law at the date when cause of action arose on 15th November, 2006 was the O.G.S.L.N. No.11 of 1980, or OG.S.L.N. No. 21 of 1984?
3.3. Whether the Ogun State Governor could rarify the appointment of the 1st Respondent during the pendency of the action challenging the appointment?
The 1st respondent in his brief of argument before proceeding to argue the issues raised in the appellants brief first raised a preliminary objection to the appeal, funded on Section 242(1) of the constitution whereby 1st respondent argued in that regard that no leave of the High court or the court of Appeal was first obtained by the appellant before raising an appeal involving issues of facts or mixed law and fact. Upon this argument, 1st respondent urges that grounds 1 and 4 of the Notice of Appeal are incompetent as being grounds of facts and mixed law and facts and that leave of either the lower court or the Court of Appeal was not obtained.
With due respect, to learned counsel this objection is misconceived, this is because this appeal is a final decision of the High Court as opposed to an interlocutory decision. Pursuant to Section 241, final decisions of the High Court do not require leave before it can be appeal from. The cases of Ishola vs. Ajiboye (1994) 6 NWLR (Pt. 352) 506; Ugboaja vs. Akintoye Sowemimo & Or (2009) 1 FWLR (Pt.452) 153 at 172 and BASF Nig. Ltd. Vs. Faith Ent. Ltd. (2010) All FWLR (Pt. 518) 840 at 853, are inapplicable as they relate to circumstances of appeals with leave as opposed to Final decisions where leave is not required. See Section 241(1)(a) of the Constitution (1999).
In the event therefore, the preliminary objection being misconceived is dismissed. The respondent proceeded to raise two issues for determination at page 4 paragraph 4 of the respondents brief thus:-
(a) Whether the lower court can rely on evidence not pleaded or averments without evidence in deciding the case before it. i.e. (did claimant/appellant prove his case?)
(b) In the light of the totality of the evidence proffered by parties in the lower court, whether the dismissal of the claimant’s case should be affirmed by this Honourable court.
In arguing issue No.1 in the 1st respondents’ brief, learned counsel posit that case of the appellant was that the 1st respondent was not appointed Baale and later Oba of Simawa in accordance with Yoruba custom and in accordance with the Ogun State Law Cap 20. Appellant in seeking to prove his case called evidence from CW1 and CW2 but that much of the evidence of CW1 and CW2 were not pleaded and that what was left of the evidence of CW1 and CW2 was incapable of supporting the claims of the appellant which was properly dismissed by the trial Judge because, as submitted by learned respondent’s counsel, “All the vital elements to sustain claimant’s claim were not pleaded”.
As regards the issue of which law ought govern the appointment of the Baale or Oba of Simawa, learned respondents counsel submits that “the cause of action arose in 2004 when the Ewusi of Makun, the prescribed authority appointed the 1st defendant/respondent as Baale of Simawa, the action was subsequently filed in 2006. Counsel is of the view that the relevant law was is the law as at the time the cause of action arose which was in 2004 when the relevant law O.G.S.L.N. of No.11 of 1980. In any event, counsel argues, the validity of any law was out of point as the claimant did not join the Ogun State Government, counsel argues, to contest the issue of the appropriate statute it followed.
In responding to the appellants contention that the Ogun State Government took steps by subsequent appointment of 1st respondent as Oba when this case was still pending, the 1st respondent’s counsel opined that appellant cannot raise such issue because the Ogun State Government was not made a party to the suit.
On issue No.2 raised by the 1st respondent, counsel reiterate that the evidence led by the witnesses of the appellant i.e. CW1 and CW2 were in the main not pleaded and that “this is fatal to his case as pleading without evidence to support it is deemed abandoned and where there is evidence but no corresponding averment, it is worthless” citing Cameroon Airlines vs. Otutuizu (2011) 1 SCM 70.
1st respondent’s counsel referred to the finding of the learned trial judge who after referring to and disregarding numerous paragraphs of the statement of Oath of the CW1 and CW2 that were unsupported by pleadings observed thus:
“From the remaining paragraphs in the Statement of Oath of CW1 and CW2, no native law and custom was established through their evidence. The claimant failed to place evidence that support the custom and tradition of appointing and installing a Baale in Simawa. There is also no evidence to support the fact that the custom has been adjudicated upon once by a superior court…” presumably as to justify the court taking judicial notice thereof.
The summary of the 1st respondent’s argument can be summed up in the words of paragraph 8.6 of the 1st respondent’s brief thus:
“What was expected of the claimant in the lower court to prove was either not pleaded and the ones pleaded had no evidence to support same. This leaves the case of the claimant bare with nothing in support and therefore must fail. Please see pages 649 – 663 particularly at 663 the lower court held that the deposition of claimants’ witnesses were worthless and have to be discountenanced.”
The appellant also filed a reply to the 1st respondent’s brief by which appellant responded to the Preliminary Objection of the 1st respondent which had been considered and earlier dismissed in this appeal.
By the same reply brief; the appellant reason that while the evidence of Yoruba native law and custom regulating the appointment of Baale of Simawa is a matter of pleading and evidence, the issue of “identifying the relevant Law and determining who the prescribed authority was at the time the cause of action arose and applying same to the case before court” was a matter of law.
Having regards to the issues for determination distilled by the learned trial judge from the issues formulated by counsel for the appellant and the 1st respondent, which are:-
(1) “Whether if on the totality of evidence adduced before this court is placed on an imaginary scale, the evidence of the two witnesses is able to prove that the 1st defendant’s appointment and installation as Baale and subsequent elevation to Oba of Simawa is contrary to Yoruba native law and custom and the Chief’s Law of Ogun State Cap 20 and hence null and void.”
(2) “Whether the claimant is entitled to the reliefs sought.”
The trial judge, observed at page 652 of the records that the appellant called two witnesses CW1 Dauda Olokun and CW2 Olutayo Onafuwa. The trial judge listed the evidence of CW1 at pages 652 – 659 of the record of proceedings running into 31 paragraphs. These 31 paragraphs of the deposition of the CW1 were without supporting pleadings.
Concerning the CW2 of the appellant, the trial judge at page 659 of the record in his judgment listed paragraph 3, 4, 5, 6, 7, 9, 10 14, 22 and 25 of the deposition on Oath of the appellants CW2 as not supported by pleadings in the 2nd amended statement of claim. The relevant deposition bereft of pleadings in the appellants 2nd amended statement of claim are shown on pages 659 – 661 of the record.
The trial judge then observed at 667 in his judgment thus:
“Before the claimant can succeed in this claim, he must place before this court enough evidence how the family of the claimant came to produce the first Baale of Simawa or put it another way, he must trace the genealogy of his family and how they become entitled to such right as opposed to the right of the 1st defendant.” At page 668, the judge found thus: “I am unable to see in the claimants pleading all that was stated in the written address of counsel. It is trite that counsel’s address cannot take place of evidence” see Olagunju vs. Adeoye (2009) 9 NWLR (1146) 225.
The learned trial judge at pages 668 – 670 examined the pleadings of the appellant matching same with the averments of the CW1 and CW2 after excluding the averments that are unsupported by pleadings and found that;
“From the remaining paragraphs in the Statement of Oath of CW1 and CW2 no native law and custom was established through their evidence. The claimant failed to place evidence that support the custom and tradition of appointing and installing a Baale in Simawa. There is also no evidence to support the fact that the custom had been or was adjudicated upon by a superior court by virtue of Section 17 of the Evidence Act.”
Appellant had alleged fraud in the appointment of 1st respondent, the trial Judge found at 670 that no particulars of the alleged fraud was pleaded as no evidence of such fraud was given on due process not being followed as alleged by appellant, the lower court states at 670 that “no evidence was adduced by claimant to convince the court that due process was not followed in the exercise leading to the appointment of 1st defendant as Baale.”
Appellant had attacked the competence or propriety of the Ogun State Government promulgating Ogun State Legal Notice No.11 of 1980 based upon Section 18 of the Chiefs Law Cap 19 of 1957 and contended that by virtue of Cap 20 of the Chieftaincy Laws of Ogun State, such exercise by the Government was a nullity as it had no competence and that if Law No.11 of 1980 had not been enacted the Ewusi of Makun Oba E.O. Ogunsowo Onanuwa II would not have had any authority to approve the appointment of 1st respondent. Citing John Onesa Ogaga vs. Thomas Umuokoro Per Rhode Viroun JSC 2011 LPELR 8229 (SC), the learned trial Judge held as follows:
“It is trite law that a case is decided on the legislation in force at the time the cause of action arose, in the instant case, the cause of action arose in 2004 when the Ewusi of Makun as the alleged prescribed Authority appointed the 1st defendant as Baale of Simawa community. This action was filed in 2006. The relevant law as at the time the cause of action arose was the Ogun State Legal Notice No.11 of 1980 which the claimant believes is irregular. The validity of OGSLN of 1980 had never been contested, The Ogun State Government which would have contested the assertions of the claimant over the irregularity or otherwise of the legislation is unfortunately not a party to this action.”
The trial Judge went ahead to hold, citing Adisa vs. Oyinwola “it was the duty of the plaintiff to bring to court a party whose presence is crucial to the resolution of the case”.
I have tried to outline the issues raised for determination before the trial court and how the trial Judge pointedly determined the issues.
In this appeal, the same issues, again arose which relate to proof of the case and the issue of which law govern the chieftaincy situation in Simawa Community.
Apparently in his zeal, the appellant through his two witnesses went about telling prolix stories without halting to check the alignment of those narratives with his plan of the case which is the pleadings in his 2nd amendment statement of claim. The result was that much of the evidence led were not pleaded particularly the Yoruba Law and Custom as it rerate to the Baale or Oba of Simawa which is the plank of the claimants claim.
As those evidential averments were expunged as a result of non pleading, as the trial Judge dutifully did, there was no evidence left to sustain the claim based on the custom and tradition of Yoruba people as it relates to Simawa.
Next is the applicable laws which govern the situation. The Learned trial Judge was right on the point when he held as trite law the proposition that a case is decided on the legislation in force at the time the cause of action arose and not when the action was filed, in this case 2006. The cause of action arose in 2004 when the Ewusi of Makun, as prescribed, appointed the 1st respondent as Baale of Simawa community. The relevant law, the trial Judge found was Ogun State Legal Notice No.11 of 1980 the validity of which has never been challenged.
There was no claim in the suit before the trial judge challenging the validity of the statute or any statute. The Learned Trial Judge was not called up in the claims to pronounce upon the validity or constitutionality or otherwise of any statute relating to the chieftaincy Laws in Ogun State.
The Government of Ogun State or its Attorney General were not parties to the case to contest such issue if it was included.
The Learned Trial Judge applied the law as it is and being spurred by the law, the trial judge rightly, in my view dismissed the appellants, claims on the basis of the issues which he resolved against the appellant.
I am unable to spot any fault in the judgment of the Learned Trial Judge.
In the final analysis, the appeal lacks merit and in consequence I hereby dismiss it with cost of N50,000.00 to the 1st respondent.
HARUNA SIMON TSAMMANI, J.C.A.: I had a preview of the judgment just delivered by learned brother Nonyerem Okoronkwo, JCA.
It is the settled law that any findings made by the trial court which are not appealed against are deemed accepted. In other words, an Appellant who does not appeal against specific findings of the trial court, is deemed to have accepted those findings.
Thus, any findings of made by a trial court for which there is no appeal remain valid and subsisting. Such findings are deemed admitted by the person against whom they were made, and an appellate court will be right to act on it. See Ebenighe v. Achi (2011) 2 NWLR (Pt.1230) p.65; S.P.O.C. Ltd v. Ejebu (2011) 17 NWLR (Pt.1276) and C.P.C. v. I.N.E.C. (2011) 18 NWLR (Pt.1279) p.493.
In the instant case, the court below after striking out the pertinent paragraphs of the witness’s statement on oath, found that the remaining depositions were not sufficient to establish the Appellant’s claims. There is no appeal challenging the striking out of those portions of the witnesses’ statement on oath. That being so, that finding binds the Appellant, as they remain valid and subsisting.
It is for this reason and the further reasons adumbrated in the lead judgment that I agreed that this appeal lacks merit. It is hereby dismissed. The judgment of the court below, delivered on 10th day of February, 2014 is therefore affirmed.
I abide by the order on costs.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: My learned brother Nonyerem Okoronkwo, JCA obliged me in advance a copy of the judgment he has just delivered with which I agree completely on the reasons advanced and the conclusion that this appeal lacks merit and ought to be dismissed.
Let me add and as observed by the learned trial judge that the evidence of the CW1 at pages 652-659 of the record of proceeding cannot be supported by pleading. Equally is the statement on oath of CW2 in paragraphs 3, 4, 5, 6, 7, 9, 10, 14, 22 and 25 are not supported by any paragraph of the pleadings. Failure of a party to plead adequately the facts he would rely upon in his pleading would run fowl of the aim and purpose of pleadings.
The aim of pleading is to give parties notice of the case to be met in court to enable them prepare their case before hand in order not to be taken by surprise – See Irabor Oviawe v. Integrated Rubber Products Nigeria Ltd & Anor (1997) 3 SCNJ 29 (2), Chief Ayoola Adeosun v. The Governor of Ekiti State & 5 Ors (2012) 1 SC (Pt.1) 180.
Its object is to enable the adverse party and the court know the case before the date of hearing – See Samuel Isheno v. Julius Berger Nigeria Plc (2008) 2 SCNJ 220, Ademeso v. Okoro & Anor (2005) 8 SCM 1.
The essence of these is that a party claiming must not spring surprises on the opponent at the trial but must endeavour to acquaint him of what to meet at the trial and challenges against him. Failure to do this, would take the said opponent unawares and that would not meet the cause of justice. See Appolos N. Amadi v. Felix Chinda & 6 Or (2009) 4-5 SC (Pt. 11) 11.
Therefore, evidence must at all times be directed and confined to the proof or disproof of the issues as settled by the parties in their pleadings. Pleading is the bed rock upon which evidence is laid to sustain a claim -See Chief Davidson O. Ikeanyi v. African Continental Bank Ltd. & Anor (1992) 1 SCNJ 93, Alhaji Adebayo Akande v. Jimoh Adisa & Anor (2012) 5 SC (Pt. 1) 1.
The consequence of evidence received outside the domain of pleaded fact whether in evidence in chief or under cross examination goes no issue and ought to be disregarded and or expunged. See Nwawuba & 3 Ors. v. Enemuo & 2 Ors (1988) 5 SC 237, B.V. Manusson v. K. Koiki & 2 Ors (1993) 12 SCNJ 114 and African Continental Seaway Ltd. v. NDRG Ltd. (1977) 5 SC 235.
It is for the foregoing and the more detailed reasons contained in the judgment of my learned brother that I too dismiss the appeal as lacking in merit. I abide by the order as to cost.
The appeal is accordingly dismissed.
Appearances
For Appellant
AND
Chief Lanre Akintola with Oluwatoun Ajayi Esq., and Titilope
Kumapayi Esq., for the 1st Respondent
2nd Respondent fully served but absent.For Respondent
