CHIEF AMUSA SAKA BANJOKO & ORS. V. MR. YEKINI ADEWALE SALAU OGUNLAJA & ANOR.
(2013)LCN/5955(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of February, 2013
CA/I/150/07
RATIO
“Black’s Law Dictionary, 7th Edition, Page 670 defines fraud as: “A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.” The oxford Advanced Learner’s Dictionary,7th Edition defines fraudulent as: “Intended to cheat, usually in order to make money illegally.” Per UWA, J.C.A
“In civil cases, the burden of proof is on the party who asserts to prove to the satisfaction of the court the averments made in the pleadings as to the contention upon which he rests his case.” Per UWA, J.C.A.
“In Adegoke Motors Ltd. vs. Adesanya (1989) NWLR Part 109 page 250 at p.266-267, the Supreme Court per Oputa JSC said: “Generally, an appeal is regarded as a continuation of the original suit rather than the inception of a new action, Because of this, in an appeal, parties are normally confined to their case as pleaded in the court of first instance. They are not allowed to make a new and different case on appeal. They are not allowed to raise in such appeal new issues without the express leave of court or to proffer new evidence without such leave. An appeal, being a judicial examination by a higher court of the decision of an inferior court it follows that such examination should normally and more appropriately be confined to the facts and issues that came before the inferior court for decision.” Per DANIEL-KALIO, J.C.A.
“It is trite that pleadings without evidence go to no issue.” Per UWA, J.C.A
“It is trite that averments in pleadings do not or cannot constitute evidence. No evidence that is useful was adduced to prove the averments or the pleadings at the trial court, see SARAKI V. SOCIETE GENERALE BANK (1995) 1 NWLR (PT.371) 225 and In BROADLINE ENT. LTD. V. MONTENEY MARITIME CORPORATION (1995) 9 NWLR (PT.417) 1 at 47, paragraphs A-B the Apex Court in this regard held thus: “He who avers prove. See IMANA V. ROBINSON (1979) 3-4 SC 1 at 9 and KATE ENTERPRISES LTD. V. DAEWOO (NIG.) LTD. (1985) 2 NWLR (PT.5) 116. Indeed, as proof in civil cases is not static, the onus is on the party who asserts to the satisfaction of the court the averments made in the pleadings of the contentions upon which he rests his case. See ONYEAMA & 2 ORS. V. HART AMAH & 5 ORS. (1988) 1 NWLR (PT.73) 772 at 782 and OLOWU V. OLOWU (1985) 3 NWLR (PT.13) 372 at 3.” Per UWA, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
1. CHIEF AMUSA SAKA BANJOKO (Head of the Otuyelu Family)
2. CHIEF KOLAWOLE ROLE
3. CHIEF M.A. OMOLOJU
4. MADAM WOSILA OWOLESI
5. MR. KEHINDE AMUSA BANJOKO (Secretary to Otuyelu Family) (For themselves as the accredited Representatives of Otuyelu Family) Appellant(s)
AND
1. MR. YEKINI ADEWALE SALAU OGUNLAJA
2. MR. NOSIRU ANIPOLE Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The Appellants as plaintiffs in the trial court initiated this action in a representative capacity against the 1st Respondent as Defendant at the High Court of Ogun State, sitting at Sagamu by a writ of summons taken out on 26th May, 2003 in which the following reliefs were claimed:
“(a) A declaration that the Defendants are not members of Otuyelu family, Ikorodu and as such could not use the Otuyelu family name to ascend to and/or take any chieftaincy title, i.e. Baale of Otuyelu village, Mosimi Sagamu, Ogun State.
(b) A perpetual injunction restraining the Defendants from holding themselves out/or in any way acting introducing themselves as members of Otuyelu family of Ikorodu.”
The background facts on the part of the Appellants are that the 1st Respondent (as 1st Defendant) was alleged to have presented himself to the Oba Jimoh Sosanya the prescribed authority over the area in which Mosimi Otuyelu and Akogun villages form part of. The Oba was said to have testified as to how after installing the 1st Defendant took him to the Akarigbo of Ijebu Remo for his blessing and instrument of office.
At the close of the hearing in the trial court the learned trial judge O.O. Majekodunmi, J. in his judgment delivered on 20th November, 2006 dismissed the action. The then Plaintiffs were dissatisfied with the decision initially filed their Notice of Appeal dated 22/12/06 on 4/1/07 which was amended pursuant to the order of court granted on 23/6/09. The Amended Notice of Appeal was filed on 24/6/09, from which the Appellant identified five (5) issues for determination. The issues are as follows:-
“(1) Could the 1st Defendant validly be installed Bale of another village where he does not belong to by holding himself out as a child of that village thus committing a deception.
(2) Can a person living in Akogun Village be nominated and installed as Bale of Otuyelu Village which may be some distance away’ but which he has no connection with.
(3) Is it allowed for a person with no relationship with a particular name choose that name for the purpose of acceding to a chieftaincy position even when this will likely cause grave misunderstanding as to his relationship with the owners of the name so chosen.
(4) Was the evidence properly weighed on the imaginary scale.
(5) Is there no duty on courts of law to stop the use of names of others where such a use is likely to be fraudulent of the 1st Defendant as the Baale of a place he had no ancestral relationship with them and is contrary to the tenets of good conscience and custom.”
On his part the 1st Respondent formulated three (3) issues for the determination of this appeal. They are:
“(1) Whether the lower court is not right in holding that the 1st Defendant had not held himself out as a member of Otuyelu family nor used the Otuyelu family name to take the Chieftaincy of Baale of Otuyelu, thereby dismissing the suit of the Plaintiffs/Appellants.
(2) Whether the lower court is not right in holding that it was not proved that the 1st Defendant fraudulently presented himself to DW1 or that he had been using the Otuyelu family name to mislead the whole world.
(3) Whether the decision of the lower court is against the weight of evidence.”
The second Respondent did not file any brief.
When the appeal was argued the learned Senior Counsel Chief (Mrs.) C. J, Aremu (SAN) who appeared for the Appellants with Mrs. B.O. Iriogbe applied to withdraw the appeal against the 2nd Respondent, who had been served but, did not attend court and did not file also file any brief, the application was not opposed by the 1st Respondent, the name of the 2nd Respondent’s name was thereafter struck out from the appeal.
In arguing the appeal the learned senior counsel adopted and relied on her brief of argument dated 24th June, 2009 filed the same day, and a reply brief dated 12th April, 2012 filed on the same day, deemed as properly filed and served on 26th November, 2012. In arguing the Appellants, first issue, it was submitted that the then 1st Defendant is from Akogun family while the Plaintiffs were from Otuyelu Family and both sides were friends and had their separate portions of land.
The previous Baales of Otuyelu- were said to be from Otuyelu family. It was submitted that even though Otuyelu village is no longer inhabited, the villages could still be identified and have links with their ancestral home. It was the contention of the learned Senior Counsel that the 1st Defendant had been holding himself out to be a member of the Otuyelu family contrary to what he really is and should be restrained from continuing to parade himself as a son of Otuyelu.
On their issue two, it was the argument of the learned Senior Counsel that a person from Akogun village ought not to be conferred with the title of Bale Otuyelu when he is not a member of Otuyelu family. It was argued further that the established custom should have been followed, reliance was placed on the case of SAIBU AKU V. USMAN ANEKU (1991) 8 NWLR PART 209, 280. It was submitted that the DW1 (the Atawa of Latawa) who conferred the chieftaincy title on the 1st Respondent admitted that he was made Baale under the family name of Otunba Akogun and not Otuyelu family. It was urged that the 1st Respondent be restrained from bearing the title otherwise if the name is allowed, it would deceive the public.
On their third issue, it was refuted that Otuyelu was coined from Akogun and Ayelu names, reference was made to paragraph 6(b) of the amended statement of defence, page 60 of the printed records. It was argued that it is only Otuyelu village by custom that could choose their Baale, an imposed one was said to be contrary to their custom. The selection of the Bale Otuyelu it was submitted, should have been in consonance with the chiefs Law of Ogun State by nomination by members of a ruling house or family entitled to select a candidate. Reliance was placed on the cases of ADEFULU V. OYESILE (1989) 5 NWLR PT.122, 337; ODENEIYE V. EFUNUGA (1990) 7 NWLR PT. 164, 518. We were urged to distinguish the case of OFFOBOCHE V. OFFOBOCHE (2006) 13 NWLR PT.997 P.298, and declare the selection in the present case a nullity.
Under the fourth issue, we were urged to discard the evidence adduced by the Defendants at the trial, reliance was placed on the cases of ANYEGWU V. ONUCHE (2009) 3 NWLR PT.1129 PAGE 659, OJO ADEBAYO V. MRS. F. IGHODALO (1996) 5 SCNJ P.23. We were urged to allow the appeal and restrain the 1st defendant from parading himself as Baale.
In response, the learned counsel to the 1st Respondent Paul Esugwu Esq, in arguing his first issue submitted that it has not been shown that the 1st Defendant held himself out as a member of Otuyelu family and did not use the Otuyelu family name to take the chieftaincy title of Baale Otuyelu but, was selected in a meeting summoned by the DW1 Oba Jimoh Sosanya, and the Atawa of Latawa of the families of Otuyelu and Akogun who concluded that the next Baale was due to come from Otunba Akogun’s family as the late head was from the Otuyelu family. It was stressed that the 1st Defendant was never presented as a member of Otuyelu family and did not use the Otuyelu family name to ascend the throne. It was the contention of the learned Counsel that the plaintiffs did not establish that the 1st Defendant used their family name to take the chieftaincy of Baale of Otuyelu which is fatal to their case.
On the 1st Respondent’s second issue it was the submission of learned counsel that the 1st Defendant did not fraudulently present himself to the DW1 who has authority over the chieftaincy of Baale of Otuyelu and that the 1st Defendant did not use the Otuyelu name to mislead the whole world as alleged.
It was argued that from their custom, the headship of Otuyelu village is rotational which has been followed over the years. It was submitted that members of Akogun and Otuyelu families have been the Otuyelu village heads in turns and that it was the turn of Akogun family to produce the next head, page 43 of the printed records was referred to, It was argued that the Appellants did not prove that they were misled in appointing the 1st Defendant Otuyelu.
The first Respondent’s third issue is on evaluation of evidence which is a challenge of the decision arrived at by the trial court based on the totality of the evidence adduced by the parties when weighed side by side. It was contended that the Appellants have not proved that the judgment of the trial court is against the weight of evidence. We were urged to dismiss the appeal for lacking in merit.
In reaction to the 1st Respondent’s argument the learned Senior Counsel to the Appellants in her reply brief submitted that the DW1 (Oba Jimoh Sosanya, the Atawa of Latawa) never called the members of the Otuyelu family and the Akogun family for a meeting before the selection and that there was no evidence to that effect. It was submitted that he only wrote to the Akogun family to present a candidate. It was stressed that the man parading himself as Baale Otuyelu is not from Otuyelu village, the evidence of the DW3 at page 40 line 15, of the printed records was highlighted.
Further, that there is no evidence that Otunba Akogun and Ayelu founded the Otuyelu village as claimed by the Respondents. It was alleged that only the Akogun family met and made the selection.
Before going into the resolution of the issues raised by the parties, when the appeal was argued it was noted that the Appellants’ fifth issue was not argued, the contents having been argued under issue two, same was deemed abandoned and struck out.
I would adopt the issues as formulated by the 1st Respondent in resolution of the issues raised by the parties as same adequately covers those raised by the Appellants.
The Appellants have argued that the 1st Respondent is from the Akogun village while the Appellants are from Otuyelu and that it was Otuyelu that founded Otuyelu village contrary to the contention of the 1st Respondent that Otunba Akogun and Otuyelu who were friends found Otuyelu village, paragraph 3 of his Amended Statement of Defence, at page 60 of the records, Their two families it was pleaded had been producing village heads in turns, paragraph 6 of the Amended statement of defence of the 1st Respondent, In paragraphs 25 and 26 of his pleadings he made it clear that he has not claimed to be a member of Otuyelu family and did not become Baale of Otuyelu village.
It was the duty of the Appellants to prove that the 1st Defendant had been holding himself out as a member of Otuyelu family and that he has used the Otuyelu family name to take the chieftaincy of Baale of Otuyelu. It is not enough to plead it and lead no evidence to prove same or allege without Proof’
The DW1 (Oba Jimoh Sosanya, the Atawa of Latawa) gave evidence to the effect that he called a meeting of Otuyelu and Akogun families and inquired as to which of the two families was entitled to the Baaleship, the late Baale having come from Otuyelu family. The 1st Respondent was not presented as a member of Otuyelu family and did not use the name to ascend the throne of Baale of Otuyelu.
The Appellant has not in any way shown or proved that the 1st Respondent was presented as a member of Otuyelu family to ascend the throne of Baale Otuyelu. Going back to the pleadings, I will reproduce paragraphs 14-17 of the statement of claim. They are reproduced hereunder:
“(14) The Plaintiffs aver that ever since the founding of this village, the name of Otuyelu had been exclusively used by the family members alone to the exclusion of non-family members in taking all chieftaincy matters etc.
(15)The Plaintiffs aver that, so far six bale have been installed as Baale Otuyelu village and these are: IDOWU (ii) LEMO (iii) BANJOKO (iv) ADEOBA (v) SANNI (vi) OKIKI
(16) The Plaintiffs further aver that, these Defendants are not members of Otuyelu Family and they have being (sic) making frantic efforts without the knowledge and/or consent of the Otuyelu Family members to use the name of Otuyelu Family in taking up chieftaincy titles.
(17)The Plaintiffs also aver that, the 1st Defendants (sic) had in the past presented himself fraudulently as the next person appointed as Baale of Otuyelu village to H.R.H. OBA J. SOSANYA and this was done without the knowledge and consent of the Otuyelu Family.”
From the above pleadings and the issues raised by the Appellants’ their grouse under their first issue is that the name ‘Otuyelu’ is to be exclusively used by members of the Appellant’s family, see paragraph 14 above. No evidence was led to prove this averment.
In paragraph 16 above, the 1st Respondent is not a member of Otuyelu family and used the same name to take a chieftaincy title without the consent of the Appellants’ family. The 1st Respondent has not claimed to be a member of Otuyelu family but a member of Otuyelu village founded by Akogun his ancestor and Ayelu the Appellants, ancestor. In paragraph 6 of his Amended statement of Defence, page 60 of the printed records he averred as follows:
6. “Their two families had produced village heads as follows:-
(a) Otunba Akogun’s family:
(i) Otunba Akogun;
(ii) Ogunlaja;
(iii) Oremuyiwa; and
(iii) Akindele
(b) Otuyelu’s family:
(i) Otuyelu
(ii) Idowu;
(iii) Banjoko; and
(iv) Sanni
While paragraphs 25, 26 and 28 are as follows:-
25. “The 1st Defendant neither claimed/claims to be a member of the Otuyelu family nor used the Otuyelu family name to ascend to and or take the Baale of Otuyelu village or any other chieftaincy title.
26. The 1st Defendant has never held himself out and/or in any way acted or introduced himself as a member of Otuyelu family or Ikorodu or any Otuyelu family for that matter’
28. The 1st defendant reiterates his membership of the Otunla Akogun/Ogunlaja family.”
The 1st Respondent by his pleadings has not claimed to be a member of Otuyelu family but of Akogun family. He also denied using the Otuyelu family name to ascend to and take the chieftaincy title of Baale of Otuyelu village or any other title.
The 1st Respondent in his pleadings denied ever holding himself out and/or acted or introduced himself as a member of Otuyelu family of Ikorodu or any Otuyelu family. If anything the 1st Respondent was emphatic that he is from Akogun family and that the only connection with Otuyelu family is that his ancestor Otunba Akogun and Ayelu the Appellants’ ancestor lived peacefully in Otuyelu village a name coined from both their names, to make up the name Otuyelu, and showed that members of both families had each been producing village heads, paragraphs 2-6 of the 1st Respondent’s Amended Statement of Defence.
No doubt the Appellants have traced their genealogy excluding the 1st Respondent. The 1st Respondent has not at any time claimed to be a member of their family. The Appellants as Plaintiffs ought to, through evidence support their pleadings to prove that the 1st Respondent used their family name to take up the chieftaincy title of Baale of Otuyelu.
No evidence was led to support the Appellants’ pleadings that the 1st Respondent had been holding himself out as a member of Otuyelu family, and used the name to take up the chieftaincy title. This is fatal to the case of the Appellants. I will hereunder reproduce portions of the evidence of the Appellants’ witnesses as Plaintiffs in the lower court to buttress this point. At page 36 of the printed records the PW1 (Mukaila Omoloju Adebode) a member of Otuyelu family, testified as follows concerning the 1st Respondent’s appointment as Baale:
“We are just hearing that the 1st Defendants is the Baale of Otuyelu. In Mosimi, there is only one Otuyelu Family and that is our own family. Our family has never appointed the 1st Defendant as Baale of Otuyelu. I want the Court to declare that the Defendants are not Otuyelus and to restrain them.”
Under cross-examination the PW1 said further:
“We heard that they did the traditional rites of his appointment as Baale. (Counsel gives him pictures of the events.) I can see the 1st Defendant in the pictures but I am seeing these pictures for the 1st time. I know the Akarigbo of Remo land. He is in the photographs.”
He went further:
“Our family never protested to the Akarigbo.”
On the part of the PW2 (Amusa Saka Banjoko) a member of Otuyelu family, at page s 36-37, h€ testified as follows:
“The 1st Defendant is not a member of our family. I did not appoint him as Baale of Otuyelu. I do not know when he became the Baale. I want the Court to restrain him from bearing Otuyelu name.”
Under cross-examination:
“I live at Ikorodu and was unaware when he was appointed as Baale. Akarigbo of Remo land is not the one that appoints Baale of Otuyelu. We did not register any complaints with the Akarigbo. We merely sued the 1st Defendant. I am not a native of Sagamu. I am from Ikorodu.”
While the PW3 (Kolawole Role) a prominent member of Otuyelu family testified as follows; (at page 37 of the records).
“I know the Otuyelu family. I am prominent member of the Otuyelu family. I know the 1st Defendant. He is not a member of our family. I know Otunba Akogun and his children. Otunba Akogun did not found Otuyelu village. Otuyelu is the founder of Otuyelu village. We never appointed the 1st Defendant as Baale of Otuyelu family. We want the Court to Order the 1st Defendant to go and become Head of village at his father’s village and to stop parading himself as an Otuyelu.”
Under cross-examination he testified further thus:
“I maintain that our family did not appoint the 1st Defendant as the Baale of Otuyelu. We heard that he has been so appointed. I know there is an Oba known as the Akarigbo of Remo land,
We never protested to the Akarigbo over this issue.”
From all these pieces of evidence from the Plaintiffs’ witnesses there is nothing to show that the 1st Defendant had held himself out as a member of Otuyelu family and used the Otuyelu family name to take the Chieftaincy title of Baale of Otuyelu. What could be gathered is that members of Otuyelu family (PW1 – PW3) who testified only heard that the 1st Respondent had been appointed Baale of Otuyelu and that they did not appoint him but said and did nothing about their allegation that it is under their powers to do so. The PW1 prayed the Court (lower) to declare that the 1st Defendant is not an Otuyelu and to restrain him. On the other hand, the 1st Defendant never claimed to be a member of Otuyelu family but Akogun, without such proof there is nothing to restrain. The PW1 also testified that his family (Otuyelu) did not protest to the Akarigbo of Remo land (the constituted authority) about the appointment. Akarigbo was present at the conferment ceremony.
Similarly the PW2 testified that the 1st Defendant is not a member of his family but, I reiterate that he never claimed to be, he too did not know when the 1st Respondent was appointed Baale Otuyelu and also sought a restraint order to stop him from using the title or the name Otuyelu, The witness did not or said nothing to show that it was the exclusive right of his family to bear the name or title of Otuyelu. He also did not complain to Akarigbo, they only went to court to challenge the use of the name Otuyelu.
The PW3 in the same vein said the 1st Defendant is not a member of their family and only said Otunba Akogun the 1st Respondent’s ancestor did not found Otuyelu village and nothing more. It is clear that the 1st Respondent did not claim that his ancestor Akogun found Otuyelu alone, he pleaded and led evidence to show that Akogun and Ayelu found Otuyelu village. He also testified that they went to court to seek an order that the 1st Respondent should stop parading himself as an Otuyelu when it was not proved that he did parade himself as an Otuyelu, he too did not protest to Oba Akarigbo of Remo land over these issues.
In civil cases, the burden of proof is on the party who asserts to prove to the satisfaction of the court the averments made in the pleadings as to the contention upon which he rests his case. In the present case as long as the Appellants failed to lead evidence on their averments that the 1st Defendant had held himself out as a member of Otuyelu family and used the Otuyelu family name to take the Chieftaincy of Baale of Otuyelu, these averments remained unproved. It is trite that averments in pleadings do not or cannot constitute evidence. No evidence that is useful was adduced to prove the averments or the pleadings at the trial court, see SARAKI V. SOCIETE GENERALE BANK (1995) 1 NWLR (PT.371) 225 and In BROADLINE ENT. LTD. V. MONTENEY MARITIME CORPORATION (1995) 9 NWLR (PT.417) 1 at 47, paragraphs A-B the Apex Court in this regard held thus:
“He who avers prove. See IMANA V. ROBINSON (1979) 3-4 SC 1 at 9 and KATE ENTERPRISES LTD. V. DAEWOO (NIG.) LTD. (1985) 2 NWLR (PT.5) 116. Indeed, as proof in civil cases is not static, the onus is on the party who asserts to the satisfaction of the court the averments made in the pleadings of the contentions upon which he rests his case. See ONYEAMA & 2 ORS. V. HART AMAH & 5 ORS. (1988) 1 NWLR (PT.73) 772 at 782 and OLOWU V. OLOWU (1985) 3 NWLR (PT.13) 372 at 3
Averment in a pleading is not and has never been considered as legal evidence unless the same has been admitted by the other party, in this case the 1st Respondent. Accordingly, an averment which has not been admitted must be proved or established by evidence, see MADUMMA V. JAMBO (2001) 15 NWLR (PT. 736) 461 at 477. In the present case the 1rr Respondent did not admit the averments but refuted same vehemently in his pleadings (earlier reproduced in this judgment) and through evidence.
At page 39 of the printed records the DW1 (Oba Jimoh Sosanya) the Atawa of Latawa, Sagamu, testified thus:
“I wrote to the family that they should nominate a candidate for the position of Baale. The family of Otunba Akogun which is the family of the 1st Defendant.”
His testimony shows that he asked Akogun Family to nominate a candidate for Baale, which he did through Exhibit ‘A’, the family responded vide Exhibit ‘B’ and nominated the 1st Respondent. It was not secretly done as alleged by the Appellants and he was not nominated under or to represent the family of the Appellants as alleged. He testified further at page 40 of the records thus:
“It was due to civilization that I elevated the 1st Defendant to Baale and not Olori-Ewu. I consulted my chiefs on this and also sought the consent of the Akarigbo. The 1st Defendant was appointed Baale under the family name of Otunba Akogun. There were never any petitions nor complaints made to me over this appointment by the plaintiffs.” (Underlined mine for emphasis).
He testified further thus:
“I maintain that the 1st Defendant is a true son of Obunba Akogun………
I know that the 1st Defendant is a member of Otunba Akogun family by virtue of the fact that the family brought him to me (nominated him). They came to me in large number from Otunba Akogun family, I cannot name them (in respect of the Baaleship). I do not know the history of their family.”
The DW2 (L.O. Adesanya) also testified along the lines of the DW1. He stated thus:
“I know the 1st Defendant. I got to know him when he was installed as the Baale of Mosimi. I know the place called Otuyelu……………I know the Akarigbo in Council. The Akarigbo then blessed him and gave him the necessary insignia of office.”
Similarly, the DW3 (Tajudeen Oremuyiwa) a member of Akogun family, in Otuyelu village testified as follows:- (page 43 of the records).
“The founders were Otunba Akogun together with Ayelu, otherwise known as Otuyelu. Both of them were hunters who met on the farm and agreed to settle on the land. They name it Otuyelu village, coined from both their names. Otunba Akogun became the village head, by their joint decision. After his reign as and village head (Olori Ewu), Otuyelu also became the village head. Their agreement was that the village headship would be rotational.
They lived peacefully in the village. From the family of Otunba Akogun, 3 of his children head thereafter been village head: Ogunlaja, Oremuyiwa and Akindele. On the Otuyelu family side, there had also been Idowu, Banjoko and Sanni. The last Olori Ewu was Sanni. It is therefore the turn of Otunba Akogun family.”
Further at page 44 of the records, the DW3 went on thus:
“The Latawa also called meetings of with the Otuyelu (sic) and Otunba Akogun families, to deliberate on the elevation of the Olori-Ewu to Baaleship, in view of civilization. He wrote Exhibit A to Otunba Akogun family because the deceased last Olori-Ewu (Sanni) was from Otuyelu family. The outcome of the meetings was for the Otunba Akogun family to present a candidate. The Otunba Akogun family thereafter, pursuant to exhibit B, nominated the 1st Defendant to the Atawa of Latawa who then appointed him Baale.”
From the 1st Respondent’s pleadings and evidence as highlighted above, his appointment as Baale of Otuyelu was not secretly done as alleged by the Appellants and it was with the consent and approval of Akogun family that nominated him, not the Otuyelu family. The 1st Respondent did not claim to be a member of Otuyelu family and was not shown to occupy a position meant for a member of Otuyelu family.
Further affirming how Otuyelu village came to be, the DW3 at page 45 of the records testified as follows:
“I am a member of Otunba Akogun family and I know much about it. It is the ‘out’ in Otunba that was added to make up Otuyelu.”
The DW4 (the 1st Respondent) at page 53 of the records emphatically stated that he belongs to the Otunba Akogun family and at page 54 that Otuyelu village was founded by Otunba Akogun and Otuyelu, and further gave details of his lineage.
It is noteworthy that the Appellants in their reply to the statement of defence of the 1st Respondent made no effort to answer or counter the 1st Respondents averments in paragraphs 6, 25, 26 and 28 of his statement of defence. The first issue is resolved in favour of the 1st Respondent.
The second issue is as to whether the trial court was right in hording that it was not proved that the 1st Defendant fraudulently presented himself to DW1 or that he had been using the Otuyelu family name to mislead the whole world.
This issue has been greatly resolved in course of resolving the first issue. Apart from the Appellant’s pleadings, they did not in any way show or prove that the 1st Respondent fraudulently presented himself to DW1. I earlier in resolving the first issue, gave details of the request for nomination by the DW1 vide Exhibit ‘A’ to which the Akogun family members met and nominated the 1st Respondent. There was no
element of fraud proved in his presentation to the DW1. He did not present himself, rather nominated by Akogun family members of Otuyelu village.
Black’s Law Dictionary, 7th Edition, Page 670 defines fraud as:
“A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.”
The oxford Advanced Learner’s Dictionary, 7th Edition defines fraudulent as:
“Intended to cheat, usually in order to make money illegally.”
Further, can it be said that the Appellants have proved that the 1st Respondent in any way used the Otuyelu family name to mislead the world? It has not. Nobody testified that he has been deceived or cheated by the 1st Respondent’s use of the name of Baale Otuyelu. It is trite that pleadings without evidence go to no issue. It was not proved that the 1st Respondent by his conduct words’ writing or behavior make out that he was a member of Otuyelu family knowing it to be false and that anyone acted on an alleged misrepresentation of the 1st defendant and got deceived.
It was the evidence of the DW3 that the headship of Otuyelu village was rotational between the two families’ Akogun and Otuyelu and that it was the turn of Akogun to nominate a candidate and the Otunba Akogun Ruling family nominated and presented the 1st Defendant for the stool of Baale of Otuyelu with the knowledge of the Otuyelu family. No one gave evidence that they were deceived into the nomination of the 1st Respondent and thereafter. Evidence should have been led to show that the Appellants or anyone else were deceived by the 1st Respondent’s use of his name and title Baale Otuyelu. See, averment in Plaintiffs’ statement of claim alleging that the 1st Respondent had in the past presented himself fraudulently as the next person appointed as Baale of Otuyelu.
As rightly submitted by the learned counsel to the 1st. Respondent, pleaded facts upon which no evidence is led, is deemed abandoned. Parties are bound by their pleadings; see EFDERAL HOUSING AUTHORITY V. SAMMER (1986) 1 NWLR (PT.17) 533; EDO PHOTO AND CO. LTD. V. SAM-EDO WIRE IND. LTD. (1989) 4 NWLR (PT.116) 473; OWOADE V. OMITOLA (1986) 2 NWLR (PT.77) 413; ABAYE V. OFILI (1986) 1 NWLR (PT.15) 134; MOHAMMED V. ALI (1989) 2 NWLR (PT.103) 349; OREDOYIN V. ARIWOOLA (1989) 4 NWLR (PT.114) 172; ADAMU V. IKHARO (1988) 4 NWLR (PART 89) 474, and CONSOLIDATED BREWERIES PLC. V. AISOVIENEN (2001) 15 NWLR (PT.736) 424. I resolve the second issue in favour of the 1st Respondent.
The second issue in on the evaluation of evidence as a whole, that is, weighing the entire evidence of the Appellants alongside those of the 1st Respondent. The allegation is that the judgment in favour of the 1st Respondent is against the totality of evidence adduced before the trial, court that had the opportunity of seeing and hearing the witnesses. I have reviewed in great detail part of the evidence adduced by both parties as well as their pleadings. In my humble but firm view, the 1st Respondent did not use Otuyelu family name to ascend the throne. From those the weight of evidence tilts in favour of the 1st Respondent as Defendant. The learned trial court was right when he held at pages 113-114 of the printed records thus:
“All that the Plaintiffs have succeeded in proving it (sic) that the 1st Defendant does not belong to their family, which fact the Defendants are not disputing. I cannot find any iota of evidence laid before this court that the 1st Defendant had been holding himself out as a member of Otuyelu family or had used the Otuyelu family name to take the chieftaincy in dispute. On the contrary, the 1st Defendant on his own part has contended by his pleadings and maintained by credible evidence that he is from the Otunba Akogun family and it was with the name of his family that he secured his appointment to the stool of Baale of Otuyelu. It is evidence from exhibit A that it was the Otunba Akogun family and not the Otuyelu family that was asked by DW1 to present a candidate for the chieftaincy…………
The failure of the Plaintiffs to prove this all important point is fatal as it is not only the essence of their case but also the crux of it. ……the failure to prove that the 1st Defendant had actually used their family name to take up a chieftaincy trite means a failure of the entire case of the Plaintiffs……………
It is also not proved that the 1st Defendant “fraudulently” presented himself to DW1 or that he had been using the Otuyelu family name to “mislead the whole world”. The law is that facts which are pleaded and upon which no evidence is led are deemed abandoned.”
I cannot fault the above holding, on the restraining order sought, that the 1st Respondent should be stopped from parading himself as a member of Otuyelu family and using the name of Otuyelu not being a member of the family, this I would say that anyone could use any name. No name has been ascribed to belong exclusively to any particular person, group of persons or family. I am not yet aware of any legislation to that effect in Nigeria. In my considered but humble view, anybody who fancies a name or title for whatever reason is free to adopt same. Even within the same family, the same name is used by different members of the same family, as often as the members of the family want or others outside the family as they desire. In the same vein, assuming the 1st Respondent decided to adopt the Otuyelu as his name for the Baale title, he was free to do so. As succinctly put in the case of OFFOBOCHE V. OFFOBOCHE (2006) 13 NWLR PART 997 P.298 at page 304, paragraph E, and 306 paragraph B, at page 114 of the records in the judgment of the learned trial judge thus:
“If the plaintiffs have a legal right to say that 1st defendant should desist to regard himself as a member of their family, can they, in law, rightly say that he should desist from using any name that he so chooses? I think not'”
In OFFOBOCHE V. OFFOBOCHE (2006) 13 NWLR PART 997 P.298 at 304 para. E and 306 para. B. the Court held:
“No person, group of persons or family has a monopoly of names. Persons have unrestrained liberty to pick and choose names that please them…
No legislation in Nigeria restricts a person to a fixed number of names, In effect, even if names are identical or the same, no person in Nigeria has a legal right to restrain another person from answering or bearing those names.”
I am at one with the decision of the learned trial judge that the Plaintiffs in the trial court did not prove their case on the balance of probabilities. The Appellants have not proved that the judgment of the trial court is against the weight of evidence. I resolve the third issue in favour of the 1st Respondent.
In the final analysis, and as a whole, the appeal lacks merit and it is hereby dismissed. The judgment of the trial court, O.O. Majekodunmi J, in Suit No. HCS/76/2003 delivered on 22/12/06 at Sagamu, High Court of Ogun State is hereby affirmed. I award costs of N30,000.00 (Thirty Thousand Naira) against the Appellants in favour of the 1st Respondent.
JOSEPH SHAGBAOR IKYEGH, J.C.A.; I fully subscribe to the judgment pronounced by my learned brother, Chidi Nwaoma Uwa, J.C.A., and wish to add that there was no evidence at the court below that the 1St respondent used the family name of the appellants (Otuyelu family) to obtain or attempted to grab any proprietary pecuniary or justiciable entitlement of the appellants’ family, consequently the appellants’ claim at the court below was not based on any dispute between them and the 1st respondent and tantamounted to crying wolf where there was none.
Besides, a name per se does not stir any dispute. It is merely a label identifying a human being and distinguishing that human being from others. Oftentimes, similarity in names occurs. In some cases, d person may have an assumed name or an alias or A.K.A. That alone is not enough to stimulate a dispute.
However, where a person is using the family name of another family to secure a justiciable subject matter of that family, like a chieftaincy position exclusively preserved for the said family, without the permission or approval of the said family, then a dispute may arise for the consideration of the court at the instance of the aggrieved family who would be entitled to challenge the family status of the alleged intruder in an action in court. Such was not the case at the court below.
For the robust reasons given in the lead judgment coupled with the reason given above, I would also dismiss the appeal for lacking in merit and affirm the judgment of the court below (Majekodunmi, J.) with N30,000.00 costs to the 1st respondent.
OBIETONBARA DANIEL-KALIO, J.C.A.: I have read the draft judgment of my learned brother Chidi Nwaoma Uwa JCA. I agree with the judgment and merely wish to add a few words of my own.
The case of the appellants in the lower court is premised on the fact that the respondents claim to be members of Ositelu Family when they are not and have gone on to use that family name to get a Chieftaincy title. They therefore claimed as follows:-
1. A declaration that the defendants are not members of Otuyelu Family Mosini and as such could not use the Otuyelu Family name to ascend to and/or take any Chieftaincy title i.e. Baale of Otuyelu Village, Mosini Sagamu, Ogun State.
2. Perpetual injunction restraining the defendants from holding themselves out and/or in anyway acting, introducing themselves as members of Otuyelu Family of Ikorodu.
After hearing the parties, the tower court on the 20th of November 2006 delivered its judgment. It held that the appellants’ case lacked merit and consequently dismissed it.
Dissatisfied with the judgment, the appellants filed a Notice of Appeal wherein they identified three grounds of appeal. They proceeded to file their brief of argument. In it, they identified the following as the issues for determination in this appeal.
1. Could the 1st defendant validly be installed Baale of another village where he does not belong to by holding himself out as a child of that village thus committing a deception?
2. Can a person living in Akogun village be nominated and installed as Baale of Otuyelu village which may be some distance away, but which he has no connection with?
3. Is it allowed for a person with no relationship with a particular name to choose that name for the purpose of ascending to a chieftaincy position even when this will likely cause grave misunderstanding as to his relationship with the owners of the name so chosen?
4. Was the evidence properly weighed on the imaginary scale?
5. Is there no duty on courts of law to stop the use of names of others where such a use is likely to be fraudulent of the 1st defendant as the Baale of a place he had no ancestral relationship with and is contrary to the tenants of good conscience and custom?
It is my view looking at the above issues, that the issues with the possible exception of issue 5 which appellants counsel abandoned in his argument, are not referable to the issues canvassed before the court below.
When a matter goes on appeal the stopwatch is not adjusted to reset button. By that I mean that an appeal does not provide a new opportunity for articulating and presenting a fresh and more palatable case. It is a continuation of the original case, only that on appeal the case is scrutinized by the appellate court with a view to determining whether it was correctly decided by the lower court given the facts and the law. What the appellants seem to have done in this case is to simply present a new case. They cannot do that. In Adegoke Motors Ltd. vs. Adesanya (1989) NWLR Part 109 page 250 at p.266-267, the Supreme Court per Oputa JSC said:
“Generally, an appeal is regarded as a continuation of the original suit rather than the inception of a new action, Because of this, in an appeal, parties are normally confined to their case as pleaded in the court of first instance. They are not allowed to make a new and different case on appeal. They are not allowed to raise in such appeal new issues without the express leave of court or to proffer new evidence without such leave.
An appeal, being a judicial examination by a higher court of the decision of an inferior court it follows that such examination should normally and more appropriately be confined to the facts and issues that came before the inferior court for decision”.
The appellants went beyond bounds in formulating the issues for determination. They made out a new case without leave. For this reason and the fuller reasons given in the lead judgment, I affirm the judgment of the lower court and also award costs of N30,000 in favour of the 1st respondent.
Appearances
C. J. Aremu (SAN) with Mrs. B. O. IriogbeFor Appellant
AND
Paul Ezugwu Esq. For 1st Respondent.
No appearance for 2nd RespondentFor Respondent
