OBA PHILIP O. ONI v. PRINCESS OLUWATOYIN AKINMOLAYAN (2014)

OBA PHILIP O. ONI v. PRINCESS OLUWATOYIN AKINMOLAYAN

(2014)LCN/7127(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 15th day of April, 2014

CA/I/196/09

JUSTICES

SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria

Between

OBA PHILIP O. ONI
(Oba of Iwoye-Ijesa) Appellant(s)

AND

PRINCESS OLUWATOYIN AKINMOLAYAN Respondent(s)

RATIO

THE BURDEN OF PROOF IN A CLAIM FOR DECLARATION OF TITLE TO LAND

I do not have any hesitation in respect of issue 1 that from the settled pleadings and evidence led before the trial court, Itegun is not an appendage of Iwoye Ijesa, under the prescribed authority of the Plaintiff Appellant. My first reason for this is the settled position of the law that in a claim for declaration a Plaintiff has the burden of proving his case upon his own evidence and cannot rely on the weakness of the defendant’s case. Although, he can take advantage of evidence by the defence which supports his case.
See: Tukuru V Sabi (2005) 3 NWLR (Pt. 913) 544, Onisaodu V Elewuju (2006) 13 NWLR (Pt. 998) 517, Dike v Okoleodo (1999) 10 NWLR (Pt. 623) 359, Elema v. Akenzua (2000) 6 SC (Pt. 111) 26 at 29 – 30, Eze v Atasie (2000) 6 SC (Pt. 1) 214, Apatira & Ors V Lagos Island local Government & Ors (2006) All FWLR (Pt. 328) 755 at 767. PER OWOADE, J.C.A.

WHETHER OR NOT EVIDENCE NOT PLEADED OUGHT TO BE ALLOWED

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of T. O. Awotoye J. of the High Court of Osun State delivered on 2/12/2008 at the Ilesa Judicial Division.
By paragraph 30 of his statement of claim dated 12/6/2000, the Appellant as Plaintiff claims against the Respondent as follows:
(i) Declaration that the Plaintiff as the Loja Iwoye is the prescribed authority to all areas traditionally associated with Iwoye Ijesa, Oriade Local Government under the Chiefs Law Cap. 21 vol. 1 Laws of Oyo State 1978.
(ii) Declaration that Itegun is an area traditionally associated with Iwoye Ijesa Oriade Local Government and that the defendant cannot be installed Loja Itegun without the approval of the Plaintiff who is the prescribed Authority for Itegun.
(iii) Declaration that the purported installation of Loja Itegun or (Oba, the Ojiwuke II Onitegun of Itegun Ijesa) is null and void as he did not have the approval and was not installed by the Plaintiff who is the prescribed Authority.
(iv) Injunction restraining the defendant from parading himself either as Loja or Oba until the defendant seeks and have the approval of the Plaintiff and properly installed by the Plaintiff at the Plaintiff’s palace.

Pleadings were filed and exchanged. The relevant pleadings submitted for trial by the parties were/are.
(a) Statement of claim dated 12/6/2000.
(b) Further Further Amended Statement of Defence.
(c) Consequentially Amended Reply to Defendant’s Further Further Amended Statement of Defence.

Essentially, the case of the Appellant as the Loja of Iwoye, he is the prescribed authority to the Defendant’s Chieftaincy as Onitegun and that Itegun, the Defendant’s community, is an area traditionally associated with Iwoye.

The Respondent’s defence is that his community, Itegun is independent of and separate from Iwoye, that the Appellant has no connection with or role to play in his appointment and installation as Onitegun of Itegun hence his installation was without reference to the Appellant, and that the Appellant is not the prescribed authority in respect of his Chieftaincy as the Onitegun.

At the trial, the Appellant (Plaintiff) gave evidence and called 7 witnesses while the Respondent (Defendant) called 10 witnesses in his defence. In all, Exhibits A – U were tendered on both sides. On the 2nd day of December 2008, the learned trial Judge delivered his judgment and found that the Plaintiff Appellant did not prove his case.

The plaintiff Appellant being aggrieved by the said judgment filed a Notice of Appeal (containing three (3) grounds of appeal) before this court on 15/12/2008. And, by an order of this Honourable Court of 8/6/2010 substituted with a five ground Amended Notice of Appeal.

The relevant briefs of argument for this appeal are:
(a) Amended Appellant’s brief of argument dated and filed 14/3/13 – settled by Osamwonyi Ogbewe Esq.
(b) Amended Respondent’s brief of argument dated 15/4/13 and filed on 16/4/13 settled by Adeniyi Ogunkola Esq.

Learned Counsel for the Appellant nominated three (3) issues for determination.
They are:
(i) Whether from the settled pleadings and evidence led before the Trial Court, Itegun is not an appendage of Iwoye Ijesa, under the prescribed Authority of the Plaintiff/Appellant. (Grounds 1 and 4)
(ii) Whether Exhibit B which was not pleaded and evidence connected thereto elicited through cross-examination but given probative value by the Trial Court has not occasioned a miscarriage of justice. (Ground 2)
(iii) Whether on the totality of the case as borne out by the pleadings and evidence on record, the court below was justified in its judgment by dismissing the Plaintiffs/Appellant’s claim. (Grounds 3 and 5)

Learned Counsel for the Respondent also formulated three (3) issues for determination of this appeal to wit:
(a) Whether based on the facts of this case and the evidence led by both parties, the learned trial judge was not correct in dismissing the claim of the Appellant.
(b) Whether Exhibit ‘B’ was wrongfully admitted and whether the trial Judge was justified in the use made of the said Exhibit and
(c) Whether the trial judge properly or correctly evaluated the evidence led by the parties at the trial.

On issue 1, Learned Counsel for the Appellant submitted that from the documentary evidence tendered and admitted by the court as Exhibits E1 – E5 photographs and Negatives of the Grave of Chief S.O. Olutayo and Exhibits L1 and L2 which are the Yoruba and English translation of the funeral pamphlet of Chief S. O. Olutayo; it is but evident that the chieftaincy of the Respondent is a minor Chieftaincy under part 3 of the Chiefs Law of Osun State. That, the Respondent evidence and that of his witnesses at the court below did not prove that Itegun is a separate and distinct town from Iwoye-Ilesa or that the head Chief of Itegun do not have a prescribed Authority.

Learned Counsel submitted that at the trial court, the Respondent conceded that his chieftaincy is a minor chieftaincy and that it is now trite that every minor chieftaincy must have a prescribed Authority. That, it is not the case of the Respondent by his pleadings and evidence at the trial Court that he and his predecessors in office were Lojas appointed by Owa Obokun of Ijesa land.

He submitted that from the record, Appellant and his witnesses testified that Itegun apart from being traditionally settled by Prince Atakunmosa first Loja of Iwoye-Ijesa, is a quarter within Iwoye Ijesa. That Appellant by his pleadings and evidence stated that Iwoye-Ijesa is bounded by four (4) Towns namely Ijebu-Jesa, Ere-Ijesa, Esa-Odo and Esa-Oke.

That the Appellant and his witnesses maintained even under cross-examination that Itegun is a quarter within Iwoye-Ijesa and not a separate and distinct town of its own. That it is the Appellant’s case that the head Chief of Itegun have always been installed by the Oba of Iwoye Ijesa upon payment of Traditional gift and that the last head Chief of Itegun was one Chief S. O Olutayo.

Still on the same Issue, Counsel referred to the Defendant himself under cross-examination thus:
“I do not know the history of Ijebu Ijesa. I heard that the first Loja of Iwoye was one Atakunmosa from members of the people of Iwoye. I heard that the said Atakunmosa later became the Owa Obokun of Ijesaland”.
He submitted further that the PW2, PW3 and PW8 maintained that Prince Atakunmosa of Iwoye-Ijesa who later became the Owa Obokun of Ijesaland traditionally settled the Itegun people within the four boundaries of Iwoye Ijesa.

Counsel said the above piece of evidence as to how Itegun people were traditionally settled was again confirmed by DW2 when he stated under cross-examination thus “Itegun was traditionally settled by Prince Atakunmosa. I know one Atakunmosa became the Owa Obokun of Ijesaland. I know two “Atakunmosa. I do not know if Prince Atakunmosa of Iwoye became Owa”.

Every minor Chief under part 3 of the Chief’s Law of Osun State, said Counsel, must have a prescribed Authority. On this point, he referred first to the case of Jeje Oladele & 20 Ors v. Oba Aromolaran II & 30 Ors (1996) 6 SCNJ 14 – 15 and second to the provision of Section 22 of the Chiefs Law Osun State. He submitted further that by the settled pleadings and evidence, it will be safe to hold that the Appellant is the prescribed Authority for Itegun being an area traditionally associated with Iwoye-Ijesa.

In responding to issue 1, Learned Counsel for the Respondent reiterated the facts of the case as presented by the pleadings and evidence in the court below.

The case of the Appellant is that he is the prescribed authority over the Respondent’s Chieftaincy. He claimed that the Respondent’s community is immigrants who came to settle in Iwoye at Itegun Quarters which brings the Respondent’s Chieftaincy under his authority. That Respondent’s Chieftaincy has no ruling house and king makers, that one of his predecessors had installed a previous Loja of Itegun. Also, that he is a member of Ijesa North Traditional Council and that for anyone within his domain to become a member of the said council, he must obtain his consent.

The case of the defence is that Itegun Community hailed from Aramoko and were hosted in their present site by Odogo town. Itegun had always been headed by an Oba, while the Appellant’s community is also headed by Loja, that the Respondent’s Chieftaincy is superior to the Appellant’s. His case is also that he is a member of the Ijesa North traditional Council in his own right without the Appellant’s consent and that no Loja (as the Appellant is) has control, or authority over another Oba, Baale, or Loja going by Ijesa tradition, and therefore he is independent of the authority of the Appellant. His community, Itegun has never been traditionally or culturally associated with Iwoye hence the Appellant is not the prescribed authority over his Chieftaincy.

Based on the above facts, Learned Counsel for the Respondent submitted that it is the principle of law that the onus is on the Plaintiff to succeed on the strength of his own case and not on the weakness of the Defendant’s case. That, though the Defendant may fail to call evidence, this does not whittle down the burden on the Plaintiff to prove his case by credible evidence. That, a Defendant who has not called any evidence may still succeed in the case if he could demolish the case of the Plaintiff under cross-examination such that what is left of the totality of evidence so led by the Plaintiff after cross-examination will not be worth acting upon by the trial Judge in favour of the Plaintiff.
He referred to the case of Apatira & Ors V Lagos Island Local Government & Ors (2006) All F.W.L.R.(Pt.328) 755 at 767.

He submitted that the case of the Appellant has been demolished under cross-examination such that shred of evidence left could not sustain his claim in view of the following:
(i) The case of the Respondent is that no Loja has authority or control over another Oba, Baale or Loja and the Appellant admitted under cross-examination that “he was installed as Loja in (SIC) 25/11/95. Thus the Appellant could not have been the prescribed authority over the Respondent’s Chieftaincy.
(ii) The Appellant is a member of Ijesa North Traditional council. Can it then be imagined that the Appellant can be a prescribed authority over the Respondent in this circumstance when they both belonged to the same council without any shred of evidence that an inferior chieftaincy could enjoy membership with an occupier of a superior Chieftaincy.
(iii) At page 99 of the Record, the Appellant said that for any person within his domain to become a member of Ijesa North Traditional Council, such a person must obtain his consent, yet he was not instrumental to the Respondent becoming a member of this council. Could it then be said that the Appellant is the prescribed authority to the Respondent’s Chieftaincy.
(iv) This Honourable Court is also referred to the evidence of PW1 under cross-examination at page 89 of the Record which contradicts his evidence in Chief. His answer when confronted with his publication, titled Iwoye ljesha in time perspective is very informative and helpful as to whether or not the claim of the Appellant was sustainable. This piece of evidence is a fundamental contradiction of the case of the Appellant and it is very fatal to his claim.
(v) In spite of spirited efforts by 2nd PW to show that Itegun is within Iwoye, the truth came out from his evidence at page 90 under cross-examination that Itegun and Iwoye are separate communities. Part of the said evidence at page 90 is quoted below:
“I know where Itegun is and where Iwoye is_________ Itegun, Iwoyes and Ijebu-Jeshas have merged but each has its own boundary that separates us”.

Respondent’s Counsel submitted that the Respondent has succeeded in view of the examples in paragraph 4.04 of his brief, in demolishing the case of the Appellant such that the totality of evidence so led by the Appellant is not worth acting upon by the learned trial Judge in favour of the Appellant. The evidence has the effect of strengthening the Respondent’s case as it is consistent with, and corroborates his (Respondent’s) case.
He referred to the case of Onisaodu & Anor v. Chief Elewulu & Anor (2006) All FWLR (Pt. 328) 676 at 687.

He submitted that in contrast to the evidence of the Appellant and his witnesses, the Respondent and his witnesses were consistent in their evidence especially through DW1, DW2, DW5, DW7, and DW10 and the trial Judge believed them.
Learned Counsel argued that the conclusion of the trial Judge that for the Appellant to succeed he must show evidence of supervisory traditional dominance, or control or authority of the chieftaincy institution of his community over the other cannot be faulted. That the Appellant’s claim of authority is based on the fact that Itegun is a quarter which fact has been debunked by abundance of evidence on record including Exhibits B, S and T.

In the instant case, the evidence of PW1 under cross-examination on the status of Itegun not only contradicts his PW1’s examination in chief but also contradicts PW2 who was also a witness for the Plaintiff Appellant. Not only that, the evidence elicited from the cross-examination of PW1 corroborates the pleadings and evidence of the Respondent including Exhibits B, S and T.

For this purpose, it is important to see how useful Exhibits T and S were in the resolution of the dispute between the parties. Exhibit T is the Report of the Tradition and Culture Committee of the Ijesa North Traditional Council on the dispute between the Loja of Iwoye and the Loja of Itegun made in May, 2005. Exhibit S, was a communication to the High Court of Justice in relation to this suit by the secretariat of the same Ijesa North Traditional Council based on Exhibit T. Exhibit T was signed by four traditional Rulers. While Exhibit S was signed by five Traditional Rulers all members of the Ijesa North Traditional Council.

From the Exhibits, it was reported that the Council at its meeting on Thursday, 26th May 2005 endorsed the findings of the committee inter alia that:
(a) Iwoye and Itegun are two separate communities and have separate Deities, maintain separate administrative structures, have separate Ruling houses and have always lived independent of each other. There is no evidence of one community ever being under the supervision of the other. There is no evidence of one of them conquering the other by war. Neither is their evidence of cultural or traditional dependency or interdependency between the two communities.
(b) There is no evidence of previous installation of Loja of Itegun by Loja of Iwoye. Other Lojas in Council confirmed that a Loja cannot install another Loja.
(c) _____________
(d) It will be difficult to ascribe Iwoye with prescribe authority over Itegun. The obvious autonomy between the two communities does not support the claims by the Loja of Iwoye that he has authority over Itegun.
Issue 1 is resolved against the Appellant.

On issue 2, Learned Counsel for the Appellant submitted that from the settled pleadings filed and exchanged by Counsel in the court below, there was no single paragraph where either party pleaded Exhibit B, a document titled “Iwoye-Ijesa in times perspective” that the facts of “Oge” being the progenitor of the Itegun people ruled in Ilesa as Owa when Atakunmosa departed to Benin and later went to Aramoko to reign were never pleaded in any of the paragraphs in the settled pleadings filed and exchanged. That it is also evident that apart from the four (4) main boundaries towns of Iwoye Ijesa pleaded by the Plaintiff/Appellant, the Respondent never pleaded any boundary town and/or features in the pleadings filed and exchanged.

He submitted that authorities are legion on the issue that any document not pleaded as required by law is not a legally admissible evidence upon which a trial court can base its judgment. He submitted that neither trial court nor the parties have the power to admit without objection a document that is in no way or circumstance admissible in law.

Counsel submitted that a document not pleaded by either of the parties but wrongly admitted must be expunged. This, according to Counsel is first because, neither a trial court nor the parties have the power to admit without objection a document that is in no way or circumstance admissible in law. Secondly, because it is settled law that both parties and the court are bound by the pleadings filed in the suit and are not allowed to go outside the pleadings either in introducing evidence or in deciding the issues in controversy.

On these two related principles, Counsel referred to the cases of Ogunsina V. Matanmi (2001) 4 SCNJ 89, 87 – 98, Osoni v Dawodu (1994) 4 NWLR (Pt. 339) 390 at 404, Idowu Alase V Sanya Olori Ilu (1965) NMLR 65 at 77, Salau Jagun Okulade V Abolade Agboola Alade (1976) All NLR (Pt. 1) 67, Mallam Yahava V. Mogoga (1947) 12 W.A.C,A. 132 at 133, Okwejiminor V Gbakeji (2008) 17 W.R.N. 1 at 9, Shanu V Afribank Plc (2002) 6 SCNJ 454 at 475-476, National Investment Properties Co. Ltd. V The Thompson Organization Ltd (1969) 1 All NLR 138 at 142 – 143, Ayanwale V Atanda (1988) 1 NWLR (Pt. 8) 22.

He submitted that if Exhibit ‘B’ wrongly admitted by the trial court and evidence connected to same elicited under cross-examination by the court below are expunged the judgment of the trial court would have favoured the Plaintiff/Appellant.
That, the wrongful admission of un-pleaded facts and document Exhibit B by the trial court in the entire circumstance of this case has led to a miscarriage of justice.

Learned Counsel argued that the learned trial Judge came into a grave error that occasioned a miscarriage of justice to the Appellant when he did not only rely on Exhibit B which was not pleaded in the settled pleadings but also on evidence of traditional history connected to the content of Exhibit ‘B’ which was also not pleaded.

Counsel submitted that after considering the evidence of PW1 under cross-examination vis-a-vis Exhibit B, the learned trial Judge then held at page 153 of the record of appeal thus: “l hold that the content of page 44 and 46 of the book written by 1st PW, which is admitted as Exhibit B is correct. It has been argued that Exhibit B not being specifically pleaded should be expunged from the court record as it was wrongly admitted. I respectfully disagree ______ so far I have found as true the following:
(i) That the progenitor of Itegun was Oge.
(ii) That he once reigned in Ilesa and later moved to Aramoko where he also reigned.
(iii) That Oge descended from Atakunmosa but later became an Alara of Aramoko”.

Counsel noted that the above findings of the learned trial Judge was never supported by the facts pleaded by both parties in the suit. Learned Counsel referred to the cases of Emegokwue V Okadigbo (1973) 8 NSCC 220 at 222 and Okwejiminor V Gbakeji (supra) pp. 16 -17 and submitted that where as in the instant case a document and evidence connected thereto were wrongly received in evidence by the trial court this Honourable Court has an inherent jurisdiction to exclude it, although counsel at the court below did not object to its going in.
He referred again to the cases of Ogunsina v Matanmi (supra) page 97 and Mallam Yahaya V. Mogoga (1974) 12 W.A.C.A. 132 at 133.

In response to issue 2, Learned Counsel for the Respondent submitted that it is true that the document, a publication titled “Iwoye Ijesa in time perspective” (Exhibit B) was not pleaded but there is nothing that prevents its admission if the preconditions to its admission are met as required under S. 199 of the Evidence Act LFN 2004.
He argued that the purpose for which Exhibit ‘B’ was tendered was to discredit the 1st PW. This, he said is legitimate.

He referred to the case of Dimpka V Chioma (2006) All FWLR (Pt. 545) 361, 380. That, the witness (1st PW) at page 89 of the record was asked under cross-examination whether he wrote a book. He agreed that he did. He was further confronted with what he wrote and he started to recount in evidence all he wrote. The parts of the book to be used for the purpose of contradicting him at pages 44 – 46 of the book were called to his attention. These were the portion of the book admitted as Exhibit B. Counsel submitted that all necessary requirements as demanded by S. 199 of the Evidence Act had been complied with at the trial court and it was rightly admitted.

Furthermore, said Counsel, the Appellant’s Counsel did not raise any objection at all. Not that alone, the document is made admissible once the requirements for its admission are complied with. He submitted that the learned trial Judge was right to have admitted Exhibit ‘B’.

What was the use made of Exhibit B – Counsel asked?
He quoted the learned trial judge at page 154 of the records as follows:
“I have deeply considered the evidence of the 1st PW with regard to the contents of the book he wrote, Exhibit B alongside his evidence in court under examination in chief and the evidence of other witnesses of the Plaintiff on the history and tradition of Iteguns which I find unacceptable and an afterthought. I also accept the evidence of the 1st and 2nd DW on the chieftaincy tradition set up in Ijesaland. This piece of evidence was not challenged under cross examination. It is to the effect that no Loja has control over any other Loja. I therefore accept it as true”.

What the learned trial Judge was saying in effect, said counsel, is that the evidence of the 1st PW in Chief was not reliable and this was what Exhibit B by its tendering was meant to achieve. That what the learned trial Judge further did was to place the evidence of the witnesses of the Appellant along with the evidence of some of the witnesses for the Respondent to reach a conclusion which side to believe. He submitted that from the foregoing, the learned trial judge has not gone beyond the legitimate use of Exhibit ‘B’. And, that even if the comment of the trial Judge on Exhibit B elsewhere in the judgment outside the one above, is ignored, it can in no way affect his findings and conclusion on the case of the parties in this case.

In deciding issue 2, a good starting point is to point out that contrary to the submissions of the Learned Counsel for the Appellant, Exhibit B was indeed rightly admitted as legal evidence, the use of which the learned trial Judge made of it, is a totally different thing.

The admissibility of Exhibit B was properly based on the provision of Section 199 and/or 209 of the Evidence Act Cap. 112 LFN 1990. The two sections are reproduced thus:
S. 199. Cross-examination as to previous statements in writing.
A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him, or being proved, but, if it is intended to contradict him by the writing his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him”.
S. 209 Cross-examination as to previous statements in writing. A witness may be cross-examined as to previous statements made by him in writing relating to the subject matter of the trial without such writing being shown to him, but if it is intended to contradict such witness by the writing, his attention must before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always that it shall be competent for the court at any time during the trial, to require the production of the writing for its inspection, and the court may thereupon make use of it for the purposes of the trial, as it shall think fit”.
Commenting on the above provisions the learned jurist and author, Dr. T. O. Aguda in his book Law and Practice Relating to Evidence (1980) at page 383 says
“it is extremely difficult to see any distinction between the provision of Section 198 (199) and the main provision of Section 208 (209) except to say that the latter must be confirmed to the cases in which the previous statements were made by the witnesses themselves in writing. But there is a proviso under Section 208 (209) which is not contained in Section 198 (199) (see the English Criminal Procedure Act 1865, S.5). Under this proviso the court may at any time during the trial require the production “of the written statement for its inspection. After its production the court may make use of it for purposes of the trial as it thinks fit, but it cannot direct the jury to choose between the written statement and the evidence of the witness in the court: R. V Bitch (1924) 18 Cr. App R. 26, R. V. Golder (1960) 3 All E.R 475, 45, CR. App R.5_____”.
Under either of the provisions of Section 199 or 209 of the Evidence Act once a foundation has been properly laid, it would be wrong for a trial judge to refuse to admit such a statement in evidence.
See. R. O. Gaji v The State (1975) NNLR 98, 107, Locknan & Anor v The State.
However, a statement which is proved and admitted in the manner of the provision of S.199 of the Evidence Act is not proof of the facts contained in it, its purpose is only to impugn the testimony of the witness.
See. Commissioner of Police V Reigles (1923) 4 NLR 103, R. V. Yesufu Akanni (1960) 5 FSC 120, R. V Ukpong (1961) 1 All NLR 25, Owoniyi V Omotosho (1961) 1 All NLR 304 at 308, R. V Golder and others (1960) 3 All E.R. 457, 45 CR. App. R. 5.

Ordinarily, and in the con of the instant case, the only permissible use of Exhibit B, is the elicitation of contradictory evidence to discredit and impugn the credibility of PW1 and thereby to ground the unreliability of the said PW1. It is not permissible to utilize Exhibit B to ground probative value to unpleaded evidence. But even that matter does not end there. Paragraph 31 of the Respondent’s Further Further Amended Statement of Defence at page 75 of the records reads thus:
31. That further historical evidence of the independence of Itegun community will be led at the hearing of the suit.

The Appellant did not furnish any reaction to the above paragraph even in their consequentially Amended Reply to Defendant’s Further Further Amended Statement of Defence. On one view of the matter, in the absence of a request for further and better particulars of the said Respondent’s paragraph 31, it remains an open ended paragraph on which any other form of evidence especially coming from the cross-examination of Appellant’s witnesses could be accommodated. Not surprisingly at pages 153-154 of the records the learned trial Judge held discerningly that:
“It has been argued that Exhibit B not being specifically pleaded should be expunged from court record as it was wrongly admitted. I respectfully disagree. Exhibit B is not a fact but evidence to prove the fact as contained in paragraph 31 of the Further Amended Statement of Defence.
Evidence does not require to be pleaded. See. Ezemba v. Ibeneme (2004) 40 WRN 1 at 24_____”.

Whichever way one looks at it, I agree with the Learned Counsel for the Respondent in view of the totality of evidence led that even if the trial Judge has used Exhibit B to find probative value, the Appellant’s case would nevertheless have failed and that such error by the learned trial Judge has not occasioned any miscarriage of justice in the circumstances of the case.
Issue 2 is resolved against the Appellant.

On issue 3, Learned Counsel for the Appellant submitted that where as it was in the instant case the Plaintiff pleaded facts and led credible, cogent and compelling evidence in support of the pleaded facts, trial court was duty bound not only to accept its truthfulness but to act on them in writing its judgment.

Learned Counsel then reviewed in particular the evidence of PW1, PW2 and PW6 and urged us to note that both PW2 and PW6 gave a vivid account of the traditional setup of Itegun minor chieftaincy and how it has always been under the prescribed Authority of any incumbent Oba of Iwoye-Ijesa. That they both maintained that they were physically present during the installation of Samuel Ojo Olutayo as the head Chief of the Itegun people of Oba Adeboye Ogbedumole of Iwoye-Ijesa.

Counsel reviewed the evidence of DW1, DW2 and DW3 and submitted that the Respondent’s evidence and that of his witnesses did not prove that Itegun is a separate and distinct town from Iwoye-Ijesa or that the head chiefs of Itegun do not have a prescribed Authority.

Learned Counsel submitted that the fact that DW1 and DW3 who were Instrumental in the making of Exhibits S and T on the basis that they visited the four boundaries of Iwoye-Ijesa and Itegun, could not tell the court under cross-examination the four boundaries of Iwoye-Ijesa as pleaded by Plaintiff or the four boundaries of Itegun which they claimed they visited to show the distinctiveness if any and coupled with the fact that they could not tell the court where and when the Defendant and his predecessor in office were installed as Oba, Loja or Chief, and the person or authority, apart from the Plaintiff who installed the Defendant as the head Chief of his people renders their “Letter” Exhibit ‘S’ and “Report” Exhibit ‘T’ suspect.

He added that the Respondent did not plead any boundaries of Itegun or any features as the mark of Demarcation between Itegun and Iwoye-Ijesa. That, if indeed Itegun is a separate and distinct town, one would have expected the Respondent to plead the four Boundaries of Itegun as a community and/or the Native features demarcating Itegun and Iwoye-Ijesa. Learned Counsel referred to S. 3(2) of the Local Government Law Cap. 72 Vol. 4 Laws of Osun State 2001 particularly the first schedule to the Law, where under Oriade Local Government though ljebu-Ijesa, Odogo. Iwoye-Ijesa and other Area or towns were expressly mentioned and referred to as an independent Area in Oriade Local Government Area of Osun State, but same cannot be said of Itegun, which is evidently absent and not referred to as a Town or Area in Oriade Local Government.

It is not the case of the Respondent, said Counsel, by his pleadings and evidence before the court that he and his predecessors in office were Lojas appointed by the Owa Obokun of Ijesaland.

Also, that the name of the Respondent is not reflected in Exhibit H, – Ijesa North Traditional Council (Establishment Order) of May 1999 despite the Respondent’s assertion that he was installed in 1996 as Oba-Onitegun of Itegun.

In response to issue 3, Learned Counsel for the Respondent submitted that in his judgment at pages 146-159 of the Record, the trial Judge painstakingly placed the evidence of the parties before him, made an assessment and rejected or accepted such evidence upon due consideration as to their probative value. That, he compared the evidence for both parties to determine the weight to be attached to the case of either party, not on capricious grounds or reasons before tilting to the side of the imaginary scale which weighed, upon the preponderance and cogency of the evidence before reaching his conclusion. That in believing or disbelieving any evidence, the trial Judge proffered reasons before rejecting or accepting such evidence. That he gave reasons for accepting Exhibit T at page 156 of the Record.

Learned Counsel reminded us, that the Appellant himself under cross-examination at page 98 of the records conceded that the Respondent is also a member of the traditional council which he belongs to. Learned Counsel referred to the case of Nwokidu & Ors V. Okanu & Ors (2010) 26 WRN 23 at 57 and urged us to hold that the learned trial Judge properly and correctly evaluated the evidence led by the parties at the trial court and that there is therefore no basis to interfere with the judgment.

In deciding issue 3, I recognize that there is a latent misunderstanding of the nature of the burden of proof in this case by the Learned Counsel for the Appellant.
From the facts of the case, the burden of proving either that Itegun is a quarter within Iwoye-Ijesa and/or that the Loja of Iwoye is traditionally the prescribed authority for the Respondent the Onitegun of Itegun lie squarely with the Appellant. This is because, of the age long principle that he who asserts must prove.
By virtue of Section 137 of the Evidence Act, in civil cases, the burden of proof is on the party who asserts a fact to prove same, for he who asserts must prove. See: Daodu v NNPC (1998) 2 NWLR (Pt. 538) 355, Kala v. Potiskum (1998) 3 NWLR (pt. 540) 1, Braimah V Abasi (1998) 13 NWLR (Pt. 581) 167, Alhaji Otaru & Sons Ltd. v Idris (1999) 6 NWLR (Pt. 606) 330.
The impression perhaps insinuation by the learned Counsel for the Appellant in this case first that the Respondent did not say that the Owa Obokun of Ijesaland is the prescribed authority for the Itegun chieftaincy or that as a matter of law, a minor chief must have a prescribed authority does not add any value to the Plaintiff’s/Appellant’s case neither does it reduce the burden of proof on the Appellant. See. Apatira & Ors V Lagos Island Local Government & Ors (2006) All FWLR (Pt. 328) 755 at 767, Onisaodu & Anor V Chief Eleweju & Anor (2006) All FWLR (Pt. 328) 676 at 687.

With the above background, it is easy to appreciate the reasoning of the learned trial Judge from page 154 to 159 of the records. First at page 156 that:
“I accept the unchallenged evidence of 5th DW Oba Adeteju Adeyeye the Ado Oko of Ido Oko to the effect that such rulers who migrated from their original homes with all the vestiges of office are independent in their domain. This piece of evidence was not challenged under cross-examination. I must also add that the findings of Ijesa North Traditional Council in Exhibit T on the tradition of Itegun vis-a-vis the issue of prescribed authority is weighty and cannot be discountenanced in the light of Section 53 (i) (h) of the Local Government Laws______”

Secondly at page 158, that:
“Now the duty of a prescribed authority has been well explained in many judicial decisions. See Oyebanji v. A.G. Osun State (2004) 51 WRN 94 at 117-118, Fatoyinbo V Alabi (2005) 14 WRN 22 and Aribisala V Ogunyemi (2005) 11 WRN 49.
However, the meaning of the phrase “traditionally associated” as used by the Chiefs Law in Osun State Legal Notice 2 of 1997 is yet to be so well explained. It is clear that the Legal Notice does not seek to create a new set of authorities which did not exist before it was made. Traditional association in the con of its use seems to be in respect of authority or control which is not strange to the tradition of the area. This to my mind cannot be proved by evidence of tenancy alone, or cooperation or even contiguity between the two communities under consideration.
The evidence should show a supervisory traditional dominance, or control or authority of the chieftaincy institution of one community over the other. The communities should also be shown to be distinct communities and not quarters of the same community. It seems that if by tradition it is shown that community A takes instructions in whatever guise from community B in respect of its chieftaincy institution then the said community B continues to be the authority over that community A because of the traditional associated”.

And finally at page 159, the learned trial Judge concluded. “It had been argued that the defendant was a Loja or Chief and not an Oba and so a minor chieftaincy over which there must be a prescribed authority. Even at that, if so, it does not have to be the Plaintiff. What should qualify the Plaintiff for it is not really the status of the defendant alone but a history of traditional supervisory authority over the defendant by the Plaintiff. This as I have earlier held the Plaintiff failed to prove.
I had also been contended that the name of the defendant was not included in Exhibit H – Ijesa North Traditional Council (Establishment) Order. The simple answer to this is that Exhibit H does not list out the names of prescribed authorities and areas traditionally associated with them. I am quite convinced the Plaintiff has failed to prove his case in its entirety. The Plaintiff has failed to prove his assertion. See Oredoyin V. Arowolo (1989) 7 SC (pt. 11) 1 and George V U.B.A (1972) 8 – 9 SC 264.
In the circumstance the Plaintiff’s case is accordingly dismissed”.

Clearly, in the totality of the case as borne out by the pleadings and evidence on record, the trial court was justified in its judgment by dismissing the Plaintiff’s Appellant’s claims.
Issue 3 is resolved against the Appellant.

Having resolved the three issues in this appeal against the Appellant, the appeal lacks merit and it is accordingly dismissed.
I make no order as to costs.

SOTONYE DENTON WEST, J.C.A.: I have had the privilege of reading in advance the draft judgment just delivered by my learned brother, MOJEED ADEKUNLE OWOADE, JCA. I do agree with the reasoning and conclusion reached therein.

By way of addendum, Section 136 (1) of the Evidence Act 2011, provides to the effect that he who asserts is saddled with the burden of proving the existence of that fact. The appellant as plaintiff asserts that he is the prescribed authority over the respondent’s chieftaincy. It is not in dispute that the appellant is not the first Loja (Oba) of Iwoye. Therefore the appellant should lead evidence to show that it has always been the practice for the Loja of Iwoye to exercise supervisory customary control, dominance or authority over the Itegun Community. Having failed to effectively lead credible and consistent evidence to establish that, the case of the appellant must fail.

This in addition to the more detailed reasoning marshaled in the lead judgment, I also dismiss this appeal as unmeritorious. I abide by all orders including orders as to cost, made in the lead judgment.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I read in draft the lead judgment just delivered by my learned brother, OWOADE, JCA and I subscribe to the reasoning and conclusion reached therein.

It is trite that evidence ought not be allowed if facts leading to the said evidence were not pleaded. Truly the document Exhibit B being a publication titled “Iwoye Ijesha in Time perspective” was not pleaded prior to its admission in evidence. Pursuant to the provision of Section 199 of the Evidence Act, LFN, 2004:
“A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him, or being proved, but, if it is intended to contradict him by the writing his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”
The purpose for which Exhibit B was tendered in evidence was no doubt to contradict the 1st PW. Ordinarily being a piece of evidence on its own, it can only be allowed if facts leading to its admission in evidence were pleaded ab initio. Leading documentary evidence of a document not pleaded is tantamount to springing a surprise on the adverse party. Be that as it may, a look at paragraph 31 of the Respondent’s Further Further Amended Statement of Defence shows that it has offered a shield for the respondent to bring in Exhibit B. The said paragraph 31 reads thus:
31. That further historical evidence of the independence of Itegun community will be led at the hearing of the suit. See page 75 of the records.

Although in a situation where a document is wrongly received in evidence the court reserves the right to expunge same from the record, nevertheless Exhibit B as it were was rightly received in evidence pursuant to Section 199 of the Evidence Act, supra. It seems to me and I so hold that the learned trial Judge was correct when after considering the evidence of PW1 under cross-examination vis-a-vis Exhibit B went on to hold as follows:
“I hold that the content of page (sic) 44 and 46 of the book written by 1st PW, which is admitted as Exhibit B is correct. It has been argued that Exhibit B not being specifically pleaded should be expunged from the court (sic) record as it was wrongly admitted. I respectfully disagree so far.”

For this and the fuller reasons given by my learned brother I too shall resolve and I so resolve issue 2 against the appellant and in favour of the respondent.

On the whole the appeal lacks merit and it is accordingly dismissed. I abide by the consequential order as to costs.

Appearances

O. C. OgbeweFor Appellant

AND

Adeniyi OgunkolaFor Respondent