OBA R. A. A. OYEDIRAN VS. OBA ALEBIOSU II & ORS
In the Supreme Court of Nigeria
Friday, July 17, 1992
Case Number: SC. 93/1989
MUHAMMADU LAWAL UWAIS JUSTICE, SUPREME COURT
OLAJIDE OLATAWURA JUSTICE, SUPREME COURT
ABUBAKAR BASHIR WALI JUSTICE, SUPREME COURT
JUSTICE, SUPREME COURT
UCHE OMO JUSTICE, SUPREME COURT
IDRIS LEGBO KUTIGI JUSTICE, SUPREME COURT
OBA R.A.A. OYEDIRAN OF IGBONLA
1. HIS HIGHNESS OBA ALEBIOSU II (THE CHAIRMAN IFELODUN/IFEDAPO/IREPODUN)
2. THE PERMANENT SECRETARY, MINISTRY OF LOCAL GOVERNMENT.
3. OBA SAMSON ALESHINLOYE (THE OBA OF SANMORA)
4. IREPODUN LOCAL GOVERNMENT
RELEVANCE AND PLEADING OF DOCUMENTS- THE NECESSITY
“In a civil case a document must be relevant to be admissible. A document must also be pleaded to be admissible. I believe the law has always been that admissible evidence is relevant evidence and that evidence which is not ordinarily relevant is not admissible. (See Agunbiade v. Sasegbon (supra) and Torti v. Ukpabi (supra). I may add that even if the judgment or document herein had been admitted as an Exhibit, it would certainly be of no evidential value as it would obviously be irrelevant to the claims as well as to the parties before the court.” Per KUTIGI, J.S.C
KUTIGI, J.S.C. (Delivering the Leading Judgment): The appellant who was the plaintiff at the High Court, Ilorin, sought for the following declarations in paragraph 16 of his amended Statement of Claim –
“(a) That the approval of the Ministry of Local Government Kwara State communicated in letter dated 17/6/82 Ref. MLG/S/L/240/ S.1Vol.1/116 to the Secretary Irepodun Local Government that Eleju of Ejuland should come from Sanmora only is not in accordance with the law and custom of Ejuland and is therefore null and void.
(b) That the Irepodun/Ifelodun/Ifedapo/Ekiti traditional council’s decision that the Eleju of Ejuland should come from Sanmora only . is not in accordance with Native Law and Custom of Eju land.
(c) That the Irepodun Local Government (and or lrewolede)should not carry out the Orders contained in the letter Ref. No. MLG/S/L/240/ S.1/Vol.1/116 dated 17/6/82.
(d) That the Eleju of Ejuland is a Chieftaincy title which derives from and belongs to Igbonla.
(e) That the plaintiff is the Eleju of Ejuland.”
After the filing and exchange of pleadings the case went to trial. Each side led evidence to support its case. In his judgment the learned trial Judge after reviewing the evidence led by the parties dismissed appellant’s claims. The appellant appealed to the Court of Appeal Kaduna where his appeal was also dismissed. Dissatisfied with the judgment of the Court of Appeal the appellant has now appealed to this Court. From the pleadings filed in the case it appears that the appellant’s case was simply that he, as the Oba of Igbonla, was duly appointed as the Eleju of Ejuland. He said it is not the 3rd respondent as the Oba of Sanmora that is entitled to be the Eleju of Ejuland as contended by him and supported by the other respondents.
In the Court of Appeal the following issues were submitted for determination “(i) Whether from the totality of the evidence before the trial court, the plaintiff/appellant is entitled to the declarations and or reliefs sought. (ii) Whether the Traditional Council gave opportunity to the plaintiff’s people to state their case before making their decision. (iii) Whether the trial court was right in relying on the deliberations of the Traditional Council as contained in Exhibits Dl & D2. (iv) Whether the trial court was right to have rejected a document which ex facie is irrelevant to the case before him.” The Court of Appeal considered all these issues and found against the appellant. Now in this Court the appellant filed three grounds of appeal as follows –
“Ground 1 The Court of Appeal misdirected itself in law and in fact in failing to see anything wrong with the decision of the Traditional Council and the misdirection has occasioned a miscarriage of justice.
Particulars Omitted Ground 2 The Court of Appeal like the trial High Court erred in law in holding that the evidence of a witness on customary law needs corroboration.
Particulars Omitted Ground 3 The Court of Appeal like the trial High Court misdirected itself in law and fact in holding that the Certified True Copy of High Court Judgment No. KWS/31/74 is properly rejected on the ground of irrelevancy. The misdirection has occasioned miscarriage of justice.” Particulars Omitted Briefs were filed and were adopted by the parties at the hearing in addition to oral submissions. Mr. Olorunnisola learned counsel for the appellant has in his brief submitted three issues for determination thus:- “1. Is the Court of Appeal right in holding that the analysis made by the trial Judge in view of the evidence before it is not erroneous as regards the deliberations before the Irepodun/Ifelodun Traditional Council? 2. Is the Court of Appeal right when it said ‘the learned trial Judge may not, after all, be in error in his finding that the evidence given by the appellant who testified about the history and tradition in Ejuland required other testimonies of witnesses to corroborate him.’ Was the evidence of the appellant not in fact corroborated by other (witnesses) evidences? 3. Is the Court of Appeal right in saying that the certified true copy of the judgment of Kwara State High Court KWS/31/74 is not connected with issues joined by the parties and that the judgment if admitted would not have made any difference to the decision of the trial court in view of the evidence before the trial court?” With regard to the first issue Mr. Olorunnisola’s main complaint is that in Exhibit D2 (minutes of the deliberation of the Traditional Council) reference was made to a letter of one Mr. J. I. Makoji to the effect that two Elejus cannot exist simultaneously in Ejuland. He said the letter was not tendered at the trial and that failure to do so was fatal to the case of the respondents. Counsel also referred to another letter No. DOIE/CHI/2/38 of 29th October, 1969 by the sole Administrator J.O. Makoji, titled “Revocation of the Appointment of Eleju of Igbonla” which the 3rd respondent pleaded in para.10 of his Statement of Defence but failed to tender. It was contended that the two letters must have weighed heavily against the appellant in the conclusions arrived at in Exhibit D2. He said the conclusion to be drawn from failure to tender the two letters was that the recommendation that the Eleju should come from Sanmora alone had no valid basis and that if tendered they would have gone against the respondents. He did not say how. He referred to section 148(d) of the Evidence Act, Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 348 at 351 and Elias v. Omobare (1982) 5 S.C. 25 at 38.
Mrs. Salman-Mann learned Solicitor-General for the 1st, 2nd and 4th respondents submitted that the Court of Appeal was right in upholding the judgment of the trial court and that the appellant failed to discharge the burden on him to be entitled to judgment. She said the letter referred to in Exhibit D2 was not capable of invalidating it (Exh. D2) merely because the letter was not tendered at the trial. She said Olanrewaju Afolabi (D.W.1) gave ample evidence at the trial on how Exhibit D2 was arrived at. That the making of Exhibit D2 violated no law. She said there was no evidence that the Traditional Council (author of Exhibits D 1 & D2) was not properly guided in its deliberations. Mr. Ijaodola learned counsel for the 3rd respondent said the appellant had failed to show that the trial court’s decision on exhibits D1 & D2 are perverse or unreasonable. He said the decision of the lower courts would not have been any different if exhibits D1 & D2 were excluded. He said appellant’s case was postulated on a preposterous foundation that there could be two Elejus in Ejuland simultaneously. That the 3rd respondent’s case did not rest on Exhibits D1 & D2 but was based on the custom of Yorubas that there can be only one head chief in any particular community at a time. He associated himself with the submission of Mrs. Salman-Mann. The 1st and 2nd defendants/respondents in their Statement of Defence pleaded in para. 13 that:- “13. The defendants plead the Report and Recommendations of the Irepodun/lfelodun/Ifedapo/Ekiti Traditional Council on the Eleju of Ejuland controversy.” The Report and Recommendations of the Traditional Council pleaded above are clearly Exhibits D1 & D2 respectively in this case. Mr. J.I. Makoji’s letter referred to in Exhibit D2 was clearly not pleaded. It could not therefore have been tendered at the trial since it was not pleaded. Moreover it is settled law that reference in a pleaded document to another document which is itself not pleaded, is not tantamount to pleading that other document and it is not open to any court to act on such unpleaded document (see Lawal v. G.B. Ollivant (1972) 1 All NLR 207). So it is in this case. About the other letter pleaded in para. 10 of 3rd respondent’s Statement of Defence and which was not tendered, the law is simply that that paragraph of the pleading is deemed to have been abandoned. I must say that in both cases the provision of section 148(d) of the Evidence Act would hardly be applicable since there was no issue of withholding evidence and at any rate it was for the plaintiff/appellant as distinct from the defendants/respondents, to prove his case on a balance of probabilities. If he failed, as the appellant did in this case, he cannot blame the other side. I have to add that as rightly submitted by Mr. Ijaodola even without Exhibits D1 & D2 there is adequate oral evidence on record to justify the lower court’s conclusion that the appellant completely failed to prove his case. I therefore resolve this issue in favour of the respondents. On issue two Mr. Olorunnisola submitted that although it is desirable that a person other than the person asserting the existence of a custom should also testify in support of the custom, there is no law which requires the corroboration of such evidence. He said in this case the evidence of the plaintiff/appellant, as the person asserting, was supported in various respects by the evidence of P.W.s 2 & 3 especially with respect to the appellant’s contention that both Ighonla and Sanmora had in the past at different times produced the Eleju and that if allowed Igbonla could still produce the Eleju instead of it being permanently cutoff from the throne. He cited in support Adigun v. Attorney-General of Oyo State (1987) l NWLR (Pt.53) 687, and Ex-parte Ekpenga (1962) 1 All NLR 265; (1962) 1 SCNLR 423.
We were urged to hold that the title of Eleju does not belong to Sanmora alone: Responding Mrs. Salman-Mann submitted that the requirement for corroboration could be either as a matter of law or as a matter of practice. That circumstances where corroboration is required as a matter of practice are those considered by the court as unsafe to convict or found for a party without corroboration. She said in the instant case the trial court had held that it found it difficult to believe the traditional evidence of the appellant alone without any supporting or corroborative evidence from any other witness. She said the learned trial Judge rightly relied on the authority of The Queen, Ex parte Chief Lewis Ekpenga v. Chief Ozogula II (1962) 1 All NLR 265 ;(1962) 1 SCNLR 423 for so holding. That customary law and custom of a people is a matter of publ