OLABODE OYEWINLE V. ARAGBIJI OF IRAGBIJI & ORS.
(2012)LCN/5487(CA)
In The Court of Appeal of Nigeria
On Monday, the 25th day of June, 2012
CA/I/118/99
RATIO
APPEAL: RULE ON FORMULATION OF GROUNDS OF APPEAL
On the formulation of grounds of appeal, the Supreme Court in the case of Aderonmu Vs Olowu (2000) 2 SCNJ 180 @ 190 lines 27 – 43 and page 191 lines 1- 4 and 15 – 18 had this to say:
“The rules of our appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of mere technicality whereby the court will look at the form rather than the substance. The prime purpose of the rules of appellate procedure, both in this court and in the Court of Appeal, that the appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon on the appeal and that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal is to give sufficient notice and information to the other side of the precise nature of the complaint of the appellant and, consequently of the issues that are likely to arise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out, notwithstanding that it did not conform to a particular form.
… What is important in a ground of appeal, and the test the court should apply, is whether or not the impugned ground shows clearly what is complained of as error in law and what is complained of as misdirection, or, as the case may be, error of fact. The view, with which I am inclined to agree, is expressed in the Court of Appeal case of Neogwuija & Ors. Vs Ikuru & Ors. (1998) 10 NWLR (569) 267, 310 that the mere fact that a ground of appeal is framed as an error and a misdirection does not make it incompetent
… What makes a ground incompetent is not whether it is framed as an error and a misdirection but whether by so stating it the other side is left in doubt and without adequate information as to what the complaint of the appellant actually is. “
See also: Ogbebor Vs Danjuma (2003) 15 NWLR (843) 403 @ 423 – 424 F -D; Okotie-Eboh vs Manager (2004) 18 NWLR (905) 242 @ 270 A – B. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
EVIDENCE: WHETHER A COURT CAN LOOK INTO ANY DOCUMENT TENDERED AND ADMITTED IN EVIDENCE AND DRAW INFERENCES FROM IT
The law is quite settled that a court is entitled to look into any document tendered and admitted in evidence before it and draw relevant inferences therefrom. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
EVIDENCE: WHETHER EVIDENCE OF A WITNESS TAKEN IN EARLIER PROCEEDINGS IS RELEVANT IN A LATER TRIAL
In the case of Durosaro Vs Ayorinde (2005) 3 – 4 SC 14 @ 26 lines 4 – 9 the Supreme Court per Edozie, JSC held thus:
“.. The law is that evidence of a witness taken in earlier proceedings is not relevant in a later trial except for the purpose of discrediting such a witness in cross-examination and for that purpose only. It is not permissible to treat such evidence in previous proceedings as one of truth. “
In Bankole Vs Dada (2003) 11 NWLR (830) 174 @ 215 F – G, the Supreme Court cited with approval an earlier decision of the Court of Appeal in Njoku Vs Dikibo (1998) 1 NWLR (534) 496 @ 518 where the court held:
“Evidence in a previous case can never be accepted as evidence by the court in a later case except where Section 34 of the Evidence Act applies. However evidence given in an earlier case by persons who also testify in a later case may be used for cross-examination as to credit but it is of no higher value than that.” Section 34 of the Evidence Act 2004 (Section 46 of the Evidence Act 2011 as amended) provides:
“34.(1) Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving in a subsequent proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead, or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which in the circumstances of the case the court considers unreasonable:
Provided –
- that the proceeding was between the same parties or their representatives in interest;
- that the adverse party in the first proceedings had the right and opportunity to cross-examine; and
- that the questions in issue were substantially the same in the first as in the second proceeding.”(Emphasis supplied).
Section 199 of the Evidence Act (now Section 232 of the 2011 Act as amended) provides:
“A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relative to matters in question in the suit or proceedings in which he is cross-examined without such writing being shown to him or being proved, but if it is intended to contradict such witness by the writing, his attention must, before such writing can be proved or such contradictory proof given, be called to those parts of the writing which are to be used for the purpose of contradicting him.” PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
JUSTICES
KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
OLABODE OYEWINLE (For himself and on behalf of Eesa Family of lragbiji) Appellant(s)
AND
1. ARAGBIJI OF IRAGBIJI OBA RASHEED AYOTUNDE OLABOMI (Substituted for Oba Timothy Oyelade Deceased by Court Order dated 25/9/08)
2. MURAINA OYELAMI
3. THE MILITARY ADMINISTRATOR OF OSUN STATE OF NIGERIA
4. THE ATTORNEY GENERAL AND COMMISSIONER FOR JUSTTCE, OSUN STATE Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Osun State sitting at Ikirun delivered on 9th October 1998 dismissing the appellant’s claims for declarations in respect of the Eesa Chieftaincy of Iragbiji. Being dissatisfied with the judgment he filed a notice of appeal containing a single omnibus ground of appeal. By an order of this court dated 19/11/08 he was granted leave to file and argue ten additional grounds of appeal. Pursuant to the order, the appellant filed an Amended Notice of Appeal on 26/11/08 containing eleven grounds of appeal.
The parties duly filed and exchanged briefs of argument in compliance with the rules of this court. The appellant’s brief is dated 9/11/09 and filed on 17/11/09. It was deemed properly filed and served on 17/1/10. The 1st and 2nd respondents’ brief is dated 27/4/10 and filed on 28/4/10. It was deemed properly filed on 28/4/10. They filed a notice of preliminary objection on 21/11/2011. In addition they also filed a respondents’ notice dated 4/11/02 and filed on 6/2/03 for the judgment to be affirmed on grounds other than those relied upon by the lower court. The 3rd and 4th respondents’ brief is dated 24/1/11 and filed on 25/1/11. It was deemed properly filed and served on 31/1/12. They too raised a preliminary objection. Their notice of preliminary objection is dated 24/1/2012 and filed on 25/1/2012. The appellant filed reply briefs in answer to both preliminary objections and in reply to arguments in respect of the appeal. The reply to the 1st and 2nd respondents’ brief is dated 19/6/2010 and filed on 21/6/2010 while the reply to the 3rd and 4th respondents’ brief is dated 11/2/2012 and filed on 13/2/12.
We heard the appeal on 26/3/2012. At the hearing, OYE ADEDIRAN ESQ., learned counsel for the 1st and 2nd respondents moved his preliminary objection, which is argued in paragraphs 3.01 – 3.06 at pages 5 – 7 of his brief. He urged the court to uphold the objection and dismiss the appeal. DAPO ADENIJI ESQ., DPP Ministry of Justice, Osun State, learned counsel for the 3rd and 4th respondents also argued his preliminary objection incorporated at pages 6 – 10 paragraphs 2.0 – 4.01 of his brief. He also urged the court to uphold the preliminary objection and dismiss the appeal.
BIODUN ABDU-RAHEEM ESQ., learned counsel for the appellant relied on the submissions contained in the respective reply briefs in opposing the preliminary objections and urged the court to dismiss them. He adopted and relied on the arguments contained in the appellant’s brief and reply briefs and urged the court to allow the appeal. Mr. Adediran and Mr. Adeniji adopted and relied on their respective briefs of argument and urged the court to dismiss the appeal. I shall consider the preliminary objections together.
The 1st and 2nd respondents by their notice of preliminary objection seek the striking out of the appellant’s brief of argument for being incompetent on the ground that grounds 2 – 11 of the notice of appeal allege misdirection in law and on the facts at the same time. The 3rd and 4th respondents on the other hand contend that the grounds of appeal are grounds of mixed law and fact for which the appellant ought to have sought leave before filing same. It is also contended that the appellant failed to provide necessary particulars in respect of the original ground of appeal, which is the omnibus ground. Learned counsel for the 3rd and 4th respondents also raised the issue of res judicata in his preliminary objection.
Learned counsel for the 1st and 2nd respondents argued in his brief that any ground that concludes its complaint as both error and misdirection is incompetent as the two are mutually exclusive and the said ground is liable to be struck out. He cited several authorities including Amojaine Vs Eguegu (1996) 1 NWLR (424) 341 @ 349 D; Ayansina Vs Coop Bank Ltd, (1994) 5 NWLR (347) 742 @ 755 D – G: Anibire Vs Womiloju (1993) 5 NWLR (295) 623 @ 635 F – G.
On the need to obtain leave to file grounds of appeal on mixed law and facts and the consequences of failure to seek leave, learned counsel for the 3rd and 4th respondents relied on: Orakosim Vs Menkiti (2001) 6 SCM 169 @ 175 ratio 1; Opuiyo & Ors. Vs Omoniwari & Anor. (2007) 12 SCM (Pt. 2) 563 @ 571 ratio 3; and Oluwole Vs L.S.D.P.C. (1983) 5 SC 1. He also relied on Order 3 Rule 3 (2), (3) and (7) of the Court of Appeal Rules 2002. He submitted further that the original ground of appeal, without particulars is vague and meaningless. He relied on: Adesina Vs Arowolo (2004) 6 NWLR (870) 606 @ 612. He argued that once the original ground of appeal is incompetent, the additional grounds of appeal are also incompetent and there is no appeal.
On the issue of res judicata, learned counsel submitted that Suit No. HIK/MISC/1/95, commenced by originating summons was considered on the merit and dismissed by the trial court as being an abuse of the court’s process. He contended that the dismissed suit is similar to suit HIK/5/97, which gave rise to this appeal, which was also dismissed by the trial court for being an abuse of the court process having previously been litigated upon by the appellant. He submitted that the present appeal is caught by the doctrine of res judicata and ought to be dismissed. He relied on: Yoye Vs Olubode (1974) SC 221; Bagudu Vs FRN (2004) 1 NWLR (853) 189 @ 204 ratio 13.
In reply learned counsel for the appellant submitted that the 1st and 2nd respondents failed to comply with the provision of Order 7 rule 1 and Order 10 Rule 1 of the Court of Appeal Rules 2007 and 2011, which require a party wishing to raise a preliminary objection to do so by way of motion on notice and supporting affidavit which must be served on the appellant three clear days to the hearing of the objection. He relied on: N.S.P.N. Ltd. Vs F.G.N. & Ors. (2000) 28 WRN 183 @ 191. He also argued that the incorporation of the preliminary objection in the respondents’ brief is not in compliance with the rules. He cited several authorities including Nsirim Vs Nsirim (1990) 3 NWLR (138) 285 @ 296 – 297; D.A. (Nig.) Ltd. Vs Oluwadare (2007) 7 NWLR (1033) 336 @ 350. He was of the opinion that the decision of the Supreme Court in Agbaka Vs Amadi (1998) 7 SCNJ 367 @ 375 – 376 to the effect that a preliminary objection raised in the respondents’ brief is competent notwithstanding the fact that notice to raise same was not filed in compliance with order 3 Rule 15 (1) of the 2002 Rules and order 10 Rule 1 of the 2007 and 2011 Rules merely endorses the discretionary power of the court of Appeal and does not alter the rules. Learned counsel was also of the opinion that the preliminary objection ought to have been filed as a separate process and relevant fees paid in respect thereof. He submitted that failure to pay the necessary filing fees in respect of the preliminary objection argued in the 1st and 2nd respondents’ brief robs this court of jurisdiction to entertain it.
Learned counsel submitted further that the 1st and 2nd respondents failed to give particulars of their complaints i.e, what makes the appellant’s brief incompetent?; which of the grounds of appeal allege error in law and misdirection? And what specific findings did the appellant attack as alleged in paragraph 3.05 of their brief? He submitted that where respondents fail to give details of the nature and details of the incompetence of each ground of appeal, it is not the duty of the court to examine the grounds of appeal on their behalf to determine which of them fits the complaint. He referred to: Ehinlanwo vs Oke (2008) 16 NWLR (1113) 357 2 385: Okafor vs Uchebo (2002) 25 WRN 139 @ 148. He urged the court to strike out the preliminary objection on these grounds.
On the substance of the objection, he submitted that none of the grounds complained of allege both error in law and misdirection. He submitted that only grounds 5, 6 and 7 allege misdirection and contended that the court is concerned with substantial justice rather than undue adherence to technicalities. He submitted that even if the grounds of appeal were wrongly described, it would not be fatal to the appellant’s case, once the other side has sufficient notice as to the nature of the complaint and is not misled. He relied on: Aderonmu & Anor. vs Olowu (2000) 2 SCNJ 180: Ogbebor Vs Danjuma ((2003) 15 NWLR (843) 403 @ 423 – 424.
Learned counsel raised the same issue of non-compliance with Order 7 Rule 1 and Order 10 Rule 1 of the Court of Appeal Rules 2011 in respect of the 3rd and 4th respondents’ preliminary objection. He argued that in their notice of preliminary objection filed on 25/1/12 the 3rd and 4th respondents referred to the arguments incorporated in their brief of argument, which as at that date was not properly before the court since it was only regularized on 31/1/2012, He also contended that the notice is not in the form contemplated by the rules as it contains arguments in support of the objection instead of stating the grounds. He raised the same issues as in respect of the 1st and 2nd respondents’ objection regarding the failure to file the preliminary objection as a separate process and failure to pay the requisite fees therefore.
On the issue of failure to obtain leave to argue grounds of mixed law and fact, he submitted that the 3rd and 4th respondents failed to examine each ground of appeal to show how they are of mixed law and fact. He submitted that it is not the duty of the court to lend assistance to a party or to descend into the arena of conflict. He relied on: Agbi Vs Ogbeh (2006) 11 NWLR (990) 65 @ 99; Otunba Asaluola Vs INEC & Ors. (2009) 6 WRN 84 @ 98. He submitted further that the appeal is against a final decision of the lower court sitting at first instance by virtue of section 241(1)(a) of the 1999 constitution and therefore the appeal is as of right and no leave is required. He relied on the Supreme Court decisions in: Aqua & Sons Ltd. Vs Ondo State Sports Council (1988) 4 NWLR (91) 622, 7UP Bottling Co. Ltd. Vs Abiola & Sons Bottling Ltd. (2002) 2 NWLR (750) 40. He also referred to some decisions of this court, which followed the Supreme Court decisions. He submitted that the cases of Orakosim vs Menkiti (supra), Opuiyo vs Omoniwari (supra) and Oluwole Vs L.S.D.P.C. (supra) were all in respect of appeals from the Court of Appeal to the Supreme Court as provided for in Section 233 (2) of the 1999 Constitution and not Section 241(1)(a) thereof. On the position of appeals from the High Court sitting at first instance to the Court of Appeal he referred to: Chinweze V. Okoyekwu vs. Chief (Mrs.) Christy Okoye & Ors. (2009) 6 NWLR (1137) 350 @ 381 B – D; David Ikpaku vs. Prince Okorare Makolomi (2006) 25 WRN 177 @ 190 – 191.
On the contention that the omnibus ground of appeal must have particulars, he referred to Order 6 Rule 2(2) of the Court of Appeal Rules 2007 and 2011 and submitted that the provision protects the omnibus ground from being struck out for failure to provide particulars. He cited several authorities in this regard including: A.G. Rivers State vs. Ohochukwu (2004) 6 NWLR (869) 340; NICON Hotels Ltd. Vs N.D.C. Ltd. (2007) 13 NWLR (1051) 237 @ 260 B.
On the issue of res judiata, learned counsel submitted that it cannot be legitimately raised as a preliminary objection to the competence of an appeal, he submitted that it is not within the contemplation of order 7 Rule 1 and order 10 Rule 1 of the Rules of this court, He submitted that the 3rd and 4th respondents did not raise the issue at the court below and that the 1st and 2nd respondents raised it but did not succeed in having the suit struck out on that ground. He submitted that not having filed a cross appeal or respondent’s notice in this regard, they were not entitled to raise it as a new issue before this court. He also noted that there is no material before the court upon which to uphold the contention, as the processes relied upon in support of this issue at the court below were held to be inadmissible for not being certified and there is no appeal against the finding. He urged the court to dismiss both objections.
The first consideration with regard to the two preliminary objections raised by the two sets of respondents is whether they are competent. Although learned counsel for the appellant contended that the respondents failed to file separate notices of objection and merely raised and argued same in their briefs of argument, the contention is not borne out by the record. In identifying the preliminary objections earlier in this judgment I noted that both sets of respondents filed separate notices, apart from incorporating them in their briefs of argument. The 1st and 2nd respondents’ notice of objection is undated but filed on 21/11/11 while the 3rd and 4th respondents’ objection is dated 24/1/12 and filed on 25/2/12. I am however inclined to agree with learned counsel for the appellant that the 1st and 2nd respondents’ notice of preliminary objection is not in the required form. Order 10 Rule 1 of the Court of Appeal Rules 2011 provides:
“(1) A respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time.’
A cursory look at the preliminary objection would reveal that in the first instance, the 1st and 2nd respondents seek an order striking out the appellant’s brief of argument rather than challenging the hearing of the appeal. Secondly after stating the ground of the objection, learned counsel proceeded to argue same, citing relevant authorities in the notice. This is improper. What is required is to notify the appellant of the grounds of objection. The argument in respect thereof would then be incorporated in the brief of argument.
With regard to the 3rd and 4th respondents’ notice of preliminary objection, they also committed the error of arguing the objection in the notice. It is also correct, as pointed out by learned counsel for the appellant that on the face of the notice, it is stated that arguments in respect of the objection had been incorporated in their brief of argument. The said brief of argument, which was deemed properly filed on 31/1/12 was therefore not a competent process at the time reference was made to it in the notice. However, be that as it may, the attitude of the courts has always been to do substantial justice and ensure that as far as possible, matters that come before the court are considered and determined on their merits. It is not in dispute that both sets of respondents argued their objections in their respective briefs of argument. It is also not in dispute that the briefs of argument although filed out of time were deemed properly filed and served more than three days before the hearing of the appeal. The appellant therefore had the requisite notice of the objections as required by Order 10 Rule 1 of the rules of this court. Furthermore, the current practice is that where a preliminary objection is incorporated in the respondent’s brief of argument, he must first seek and obtain the leave of the court to argue same before the hearing of the appeal commences. The Supreme Court in Tiza Vs Begha (2005) 15 NWLR (949) 616 @ 633 E – G held, per Musdapher, JSC (as he then was):
“By virtue of Order 3 Rule 15(1) of the Court of Appeal Rules, a respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of the objection. Notice of the preliminary objection can also be given in the respondent’s brief but a party filing it in the brief must ask the court for leave to move the objection before the oral hearing of the appeal commences, Se: Nsirim Vs Nsirim (1990) 3 NWLR (138) 285; Okolo Vs Union Bank of Nig. Ltd. (1998) 2 NWLR 3 NWLR (12) 248.
The object of the rule is to give an appellant before the hearing of his appeal notice of any preliminary objection to the hearing of his appeal and the grounds thereof in order to enable him to prepare to meet the objection at the hearing of the appeal”. (Emphasis supplied).
In the instant case, both sets of respondents filed notices of preliminary objections as separate processes, contrary to the contention of learned counsel for the appellant. The said notices have been found to be deficient in certain regards. However the deficiencies are not fatal to the objections because the objections have been incorporated and argued in their respective briefs of argument. At the hearing of the appeal, learned counsel for the respective sets of respondents applied orally to move their objections before the hearing of the appeal commenced. The appellant was not taken by surprise, having had adequate notice of the objections and having extensively reacted thereto in his reply briefs. The application to strike out the objections for being incompetent is therefore refused.
I have considered the contention of the 1st and 2nd respondents that grounds 2 – 11 of the amended notice of appeal allege misdirection in law and on the facts. I have examined the grounds of appeal along with their particulars. Grounds 2, 3, 4, 8, 9, 10 and 11 allege that the learned trial Judge “erred in law and on the facts” while grounds 5, 6 and 7 allege that the learned trial Judge “misdirected himself in law and on the facts,” On the formulation of grounds of appeal, the Supreme Court in the case of Aderonmu Vs Olowu (2000) 2 SCNJ 180 @ 190 lines 27 – 43 and page 191 lines 1- 4 and 15 – 18 had this to say:
“The rules of our appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of mere technicality whereby the court will look at the form rather than the substance. The prime purpose of the rules of appellate procedure, both in this court and in the Court of Appeal, that the appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon on the appeal and that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal is to give sufficient notice and information to the other side of the precise nature of the complaint of the appellant and, consequently of the issues that are likely to arise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out, notwithstanding that it did not conform to a particular form.
… What is important in a ground of appeal, and the test the court should apply, is whether or not the impugned ground shows clearly what is complained of as error in law and what is complained of as misdirection, or, as the case may be, error of fact. The view, with which I am inclined to agree, is expressed in the Court of Appeal case of Neogwuija & Ors. Vs Ikuru & Ors. (1998) 10 NWLR (569) 267, 310 that the mere fact that a ground of appeal is framed as an error and a misdirection does not make it incompetent
… What makes a ground incompetent is not whether it is framed as an error and a misdirection but whether by so stating it the other side is left in doubt and without adequate information as to what the complaint of the appellant actually is. ”
See also: Ogbebor Vs Danjuma (2003) 15 NWLR (843) 403 @ 423 – 424 F -D; Okotie-Eboh vs Manager (2004) 18 NWLR (905) 242 @ 270 A – B. The grounds of appeal complained of are quite explicit. The respondents are not misled as to the nature of the complaint against the different aspects of the judgment appealed against. For instance in ground 2 the appellant’s complaint is that the learned trial Judge erred in relying on the evidence of witnesses who testified before a fact finding committee derived from the report of the committee which was tendered in evidence when the said witnesses did not testify before the trial court. In ground 4 the appellant’s complaint is against the manner in which the learned trial Judge conducted the visit to the locus in quo and his reliance on his own findings thereat. In ground 6 the appellant’s complaint is that the learned trial Judge made findings on an issue that was not before the court and thereby occasioned a miscarriage of justice. I do not consider it necessary to review all the grounds of appeal seriatim, particularly as learned counsel for the 1st and 2nd respondent merely made a general challenge of grounds 2 – 11 without particularizing his complaints. Suffice it to say that on the authorities referred to above, the grounds of appeal are not incompetent for defect in form when the complaints therein are clear and none of the respondents have been misled thereby. The preliminary objection of the 1st and 2nd respondents is therefore overruled.
The 3rd and 4th respondents have argued that the grounds of appeal are of mixed facts and law for which leave is required. Section 241(1)(a) – (f) of the 1999 constitution provides for appeals to the court of Appeal as of right from decisions of the Federal High Court or a High Court. For the purpose of this appeal Section 241(1)(a) and (b) of the Constitution are relevant. They provide as follows:
“241.- (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) where the ground of appeal involves questions of law along decisions in any civil or criminal proceedings;”
The cardinal principle of interpretation of statutes is that where the words used are clear and unambiguous they must be given their natural and ordinary meaning. See: Ibrahim Vs Barde (1996) NWLR (474) 513 @ 577 B – C; Ojokolobo vs. Alamu (1987) 3 NWLR (61) 377 @ 402 F – H. Subsection 1(a) of Section 241 clearly provides for appeals to the Court of Appeal as of right against final decisions of the Federal High Court or a High Court sitting at first instance. Subsection 1(b) provides for a right of appeal against other decisions civil and criminal proceedings where the ground of appeal involves questions of law alone. In other words a right of appeal is also conferred on the appellant where the appeal is not against the final decision of a Federal or State High Court sitting at first instance (e.g. an interlocutory decision) or where the decision is one arising from a court sitting in its appellate jurisdiction but where the ground of appeal is one of law alone.
Section 242 of the constitution provides that subject to the provisions of Section 241, an appeal shall lie from decisions of the Federal High court or a High Court with the leave of the Federal High court or High Court to the Court of Appeal. Thus in any other case not covered by section 241, the leave of the Federal High Court or High Court of a State must be obtained. See: Ndayako vs Mohammed (2005) 6 NWLR (920) 86; Ekemezie vs. Ifeanacho (2009) LPELR (Law Pavilion Electronic Law Reports) – CA/E/248/2006. I agree with the view expressed by my learned brother, Omoleye, JCA in Okoyekwu Vs Okoye (2009) 6 NWLR (1137) 350 @ 381 B – D that the leave of this court is not required to appeal against a final decision of the High Court sitting at first instance notwithstanding that the grounds of appeal may be of law, facts or mixed law and facts.
I have considered the Supreme Court decisions in Orakosim vs Menkiti (supra) and Opuiyo vs Omoniwari (supra) relied upon by learned counsel for the 3rd and 4th respondents. The cases were decided in respect of appeals from the Court of Appeal to the Supreme Court provided for in section 213(2)(a) of the 1979 Constitution and Section 233(2)(a) of the 1999 Constitution respectively. Section 233(2)(a) and (3) of the 1999 Constitution provide:
“233(2) An appeal shall lie as of right from the decisions of the Court of Appeal to the Supreme Court as of right in the following cases-
(a) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal.
(3) Subject to the provisions of subsection (2) of this section, an appeal shall lie from the decision of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court.”
Clearly, the provision of section 233(2)(a) of the 1999 Constitution (which is in pari materia with section 213(2)(a) of the 1979 Constitution), considered in Orakosim and Opuiyo’s cases (supra) is quite different in terms and effect from the provision of Section 241(1)(a) of the Constitution.
It follows from the above that the appellant is entitled to appeal as of right against the judgment of the High Court of Osun State delivered on 9/10/98 being a final decision of that court sitting at first instance. This ground of the preliminary objection is accordingly overruled.
The 3rd and 4th respondents also submitted that ground 1 of the amended notice of appeal, which is the omnibus ground of appeal is incompetent for not being supported by particulars. Ground 1 of the amended notice of appeal is that “the decision is against the weight of evidence.” His Lordship, Onu, JSC held thus in: Nkwocha & Ors. Vs MTN Nig. Comm. Ltd. & Anor. (2008) 11 NWLR (1099) 439 @ 464 B – C & H:
“An omnibus ground of appeal is usually directed at the summary and evaluation or appraisal of evidence by the trial court as well as its ascription of probative value to the evidence adduced before it. It postulates that there was no evidence, which if accepted, would support the findings of the trial court or the inference which it had drawn thereon. It is settled that the omnibus ground cannot sustain or give rise to a specific point of law, See Henkel Chemical Ltd. v. A.G. Ferrero & Co. (2003) 4 NWLR (810) 306 @ 317-318; Musa v. Yerima (1997) 7 NWLR (511) 27 @ 36.
… An omnibus ground of appeal permits an appellant to raise issues relating to admissibility of evidence, relevance and credibility of evidence and does not require particulars to support it by virtue of the provisions of Order 3 rule 2 (4) Court of Appeal Rules 2002 [Order 6 Rule 3 of the 2011 Rules).” (Emphasis supplied).
See also: NICON Hotels Ltd. v. N.D.C. Ltd. (2007) 13 NWLR (1051) 247 @ 260 B; A.G. Rivers State vs. Ohochukwu (2004) 6 NWLR (869) 340.
It was held in: Saka Atuyeye & Ors. Vs Emmanuel Ashamu (1987) 1 NWLR (49) 267 that in a civil appeal, a general or omnibus ground of appeal that the lower court’s judgment is against the weight of evidence is permissible and proper. The grounds of the complaint are embedded in it and there is no need for further particulars.This ground of objection is also overruled.
The final ground of objection by the 3rd and 4th respondents is that the appeal is caught by the doctrine of res judicata. On the duty of a party relying on res judicata, the Supreme Court in the case of: Salami Afolabi Vs. Governor of Osun State (2003) 13 NWLR (386) 119 @ 129 – 130 held thus:
“It is settled law that to sustain in a plea of res judicata, the party pleading it must satisfy the following conditionalities, to wit –
i. That parties (or their privies as they may be) are the same in the present case as in previous case;
ii. That the issue and subject matter are the same in the previous suit as in present suit;
iii. That the adjudication in the previous case must have been given by a court of competent jurisdiction.
iv. That the previous decision must have finally decided the issues between the parties”.
In the first place, I am inclined to agree with learned counsel for the appellant that a plea of estoppel on the basis of the doctrine of res judicata cannot be raised in the form of a preliminary objection to the hearing of the appeal. It is an issue that must have been raised at the lower court and a decision rendered in respect thereof. The party dissatisfied with the decision would then raise it as a ground of appeal and argue it as a substantive issue in the appeal.In the instant case the 3rd and 4th respondents did not raise the issue at the court below. I note that they have filed a respondent’s notice wherein they raised the issue. A respondent’s notice is a completely different process from a notice of preliminary objection. While the former seeks the striking out of the appeal in limine, a respondent’s notice urges the court to affirm the decision complained of on grounds other than those relied upon by the trial court.The respondent’s notice will be considered, if the need arises, at a later stage in the judgment. Secondly, as far as the objection on the basis of res judicata is concerned, the respondents in their preliminary objection did not make any effort to satisfy the court that the conditions set out in Afolabi Vs Governor of Osun State (supra) are applicable to the facts of this case. Learned counsel merely stated that suit no. HIK/MISC/1/95, which was dismissed on the merit is similar to suit no. HIK/5/97 leading to this appeal, which was dismissed for being an abuse of the court’s process, without more. It is not for this court to comb through the record of proceedings in order to find support for their proposition. I find no merit in this ground of objection. It is accordingly overruled.
In conclusion, the preliminary objections raised by both sets of respondents are hereby overruled, I hold that the appeal is competent and shall be determined on its merits.
Before considering the submissions of learned counsel in respect of the substantive appeal, I consider it appropriate at this stage to refer to the claim that gave rise to the appeal. By paragraph 49 of his amended statement of claim dated 20/10/97 the appellant, as plaintiff sought the following reliefs against the respondents for himself and on behalf of Eesa Family of Iragbiji:
“Whereof the plaintiff claims against the defendants jointly and severally:-
(1) Declaration that the 2nd defendant not being a member of Eesa family Ruling House of Iragbiji cannot lawfully hold the title of Eesa Iragbiji.
(2) Declaration that by the custom and tradition of Iragbiji, the plaintiffs family (the Eesa family of Iragbiji) is the only competent family to choose and or nominate members of the said family to fill any vacancy into the Eesa of Iragbiji chieftaincy.
(3) Declaration that the purported appointment and installation of the 2nd defendant as the Eesa of Iragbiji by the 1st defendant is wrongful, irregular, against the custom and tradition relating to the Eesa of Iragbiji chieftaincy and is therefore null and void and of no effect.
(4) Declaration that the purported approval by the 3rd defendant of Aromo as a ruling house for the purpose of Eesa chieftaincy is wrongful, irregular, contrary to the custom and tradition relating to the Eesa Chieftaincy of Iragbiji.
(5) An order of injunction restraining the 2nd defendant by himself, his servant and or agents from parading himself as the Eesa of Iragbiji.”
The appellant’s case as disclosed from his pleadings is that Iragbiji is an ancient town in Yoruba land founded around the 17th century. That the Eesa chieftaincy is as old as the town. The Eesa is the second in rank to the Aragbiji of Iragbiji and one of the six kingmakers (Iwefa Mefa). The Eesa of Iragbiji chieftaincy is a minor chieftaincy. The Aragbiji (1st respondent) is the prescribed authority. Each kingmaker represents his own lineage. According to the appellant the first Oba or Aragbiji was Oogbo and Gbogboelolu from the appellant’s family was the first Eesa. During the reigns of subsequent Aragbiji’s the Eesa has always been selected from the appellant’s family. One of the customs of Iragbiji is that a new lragbiji would spend three months in the appellant’s family house, which by tradition is close to or behind the Aragbiji’s palace, before passing through a perforated wall in the compound into the palace. After he has passed through the perforation in the wall would be sealed. To buttress his contention that no member of the 2nd respondent’s Aromo family has ever been Eesa, he averred that no Aragbiji has ever stayed in the 2nd respondent’s family house before proceeding to the palace.
It was also the appellant’s case that by custom it is the duty of the incumbent Aragbiji, in the event of a vacancy, to request nominations from the plaintiff’s family to fill the Eesa chieftaincy. In the instant case the procedure was followed. However the nominee from the appellant’s family, Aderemi Adeyeye, was rejected as a result of petitions against him from members of the appellant’s family. It was the appellant’s case that the issue that gave rise to the petition against Adeyeye was eventually resolved and the appellant’s family forwarded two names for consideration to the 1st respondent Adeyeye and Olabode Oyewinle (the appellant herein). Rather than choose one of the two candidates the 1st respondent appointed the 2nd respondent as Eesa on 14/2/93. Not surprisingly there were protests and litigation against his appointment. Suits were filed in court. One of the suits was struck out for want of jurisdiction. Another was eventually withdrawn to pave way for an investigation into the matter. The 3rd respondent directed the chairman, Boripe Local Government to look into the dispute. The Chairman set up a committee, which submitted a report (Exhibit D1) dated 21/2/96 wherein it found inter alia:
(i) that appellant and 2nd respondent are not related;
(ii) that only direct descendants of Gbogboelolu (appellant’s family) could hold the title of Eesa and
(iii) the 1st defendant did not follow custom and tradition in the appointment of the 2nd respondent.
In the interest of peace, the committee recommended that the 2nd respondent be allowed to complete his term but that after his death the Eesa chieftaincy should never be extended to anyone who is not a descendant of Gbogboelolu. The report was submitted to the Secretary to the Osun State Government through the Department of Chieftaincy Affairs. Pursuant thereto the 3rd respondent directed the Boripe Local Government Traditional Council through the Chieftaincy Committee to determine how many ruling houses are entitled to produce candidates for the Eesa of Iragbiji stool, The conclusion of the committee was that there were two ruling houses, Eesa Gbogboelolu Ruling house (appellant’s family) and Aromoo Ruling house (2nd respondent’s family). The report of the committee dated 20/11/96 was tendered as Exhibit C1. According to the appellant, the 3rd respondent subsequently approved the 2nd respondent’s family as a ruling house for the purpose of appointment of Eesa chieftaincy, The appellant and his family were dissatisfied with this state of affairs since they contend that the Eesa chieftaincy is hereditary and only direct descendants from their family are entitled to contest for the stool, hence the filing of the suit at the court below.
The respondents on the other hand contend that both the appellant’s family and the 2nd respondent’s family are entitled to contest for the stool. That the 2nd respondent’s family was called upon to recommend a nominee for the vacant stool due to the stalemate in the appellant’s family. That it was not true that the appellant’s family was exclusively entitled to vie for the chieftaincy, as some members of the 2nd respondent’s family had vied for the stool in the past. That the monopoly of the title by the appellant’s family was due to an epidemic, which plagued the 2nd respondent’s family for many year and also because of the influence wielded by the appellant’s family. It is also their contention that the appellant’s ancestor, Gbogboelolu was not the first Eesa of Iragbiji. Rather one Kasao was the first Eesa followed by Eesa Aromo while Gbogboelolu was the third. The 2nd respondent is a direct descendant of Aromo. It was also the case of the 1st and 2nd respondents that other persons who are not related to the appellant’s family have been installed as Eesa in the past. They also contend that the tradition that an Aragbiji has to stay in the incumbent Eesa’s house is not restricted to the appellant’s family house but to anyone who is the Eesa.
At the trial four witnesses testified in support of the plaintiff’s case while five witnesses testified for the defence. Both sides tendered exhibits. At the conclusion of the trial and after considering the written addresses of counsel, the learned trial Judge dismissed the plaintiff’s claims in their entirety. His dissatisfaction with the decision gave rise to this appeal. From the eleven grounds of appeal contained in the amended notice of appeal, the appellant formulated the following issues for the determination of the appeal:
1. Whether the trial Judge was right in using the testimonies of witnesses before two fact finding committees set-up by Boripe Local Government Council and Boripe Local Government Traditional Council respectively which records were admitted as Exhibit “D1” and “C1” respectively as basis for defeating the case of the appellant.
2. Whether the proposed Eesa Chieftaincy Declaration Exhibit “C” is in conflict with the appellant’s case.
3. Whether the trial Judge was right in his holding that there is uncontroverted evidence in support of the 2nd respondent’s family’s contest for Eesa stool without any objection from the appellant’s family.
4. Whether the conduct of the trial Judge on his visit to locus in quo and some crucial findings made thereat are not prejudicial to the appellant’s case.
5. Whether the trial judge was right in holding that the custom and tradition requiring the new Aragbiji to gain maiden entrance into the palace from the appellant’s compound through a perforated wall has come to an end.
6. Whether the trial Judge properly evaluated evidence placed before it.
7. Whether the judgment of the trial court is not against the weight of evidence adduced.
The 1st and 2nd respondents distilled three issues from the grounds of appeal:
1. Whether the judgment is against the weight of evidence having regard to the evidence on record in support of the findings of the learned trial Judge.
2. Whether the Lower Court was wrong in his conduct of visit to locus in quo and whether such error, if any, engenders a miscarriage of justice.
3. Whether the Lower Court was wrong in the inferences it drew from the evidence and its conclusion that the plaintiff failed to prove his case as to entitle him to judgment.
The 3rd and 4th respondents formulated a single issue for determination thus:
“Whether the judgment is against the weight of evidence”.
I have considered the issues formulated by the parties. The issues formulated by the appellant are unnecessarily prolix. The three issues formulated by the 1st and 2nd respondents appear to fully capture the issues in controversy in this appeal. The 1st and 2nd respondents’ issue 1 covers the appellant’s issues 5, 6 and 7; issue 2 covers the appellant’s issue 4; and issue 3 covers the appellant’s issues 1, 2 and 3. I shall determine the appeal on the issues formulated by the 1st and 2nd respondents amended slightly and in the following order:
1. Whether the Lower Court was wrong in the inferences it drew from the documentary evidence before it particularly Exhibits C1 and D1.
2. Whether the conduct of the visit to locus in quo by the learned trial Judge and his findings in respect thereof occasioned a miscarriage of justice.
3. Whether the judgment is against the weight of evidence.
Issue 1
Whether the Lower Court was wrong in the inference it drew from the documentary evidence before it, particularly Exhibits C1 and D1.
In support of this issue, learned counsel for the appellant submitted that the learned trial Judge erred in the inferences he drew from the evidence before him. He noted that of all the witnesses who testified before the two committees, Afolabi the Ojomu, was the only one who testified before the trial court. He was not cross-examined in respect of the evidence he gave before the committees. Learned counsel submitted that notwithstanding this fact, the learned trial Judge relied heavily on the evidence of the witnesses who testified before the committees. He submitted that the limited circumstances in which the court could use such evidence are as contained in sections 199 and 34(1) of the Evidence Act. He referred to: Bankole & Ors. Vs Dada & Ors. (2003) 5 NWLR 40 @ 74 & 76 – 77 (the citation given is incorrect. The correct citation is (2003) 11 NWLR (830) 174 @ 215 F – G). He submitted that in the instant case the evidence was given before fact finding committees and not judicial proceedings.
Learned counsel argued that there was no evidence adduced at the trial to challenge the appellant’s family’s exclusive right to the chieftaincy or that Gbogboelolu was the first Eesa. He submitted that the learned trial Judge wrongly relied on Exhibit D1 and the evidence of witnesses who testified before the committee set up by the Chairman Boripe Local Government to the effect that Kasao was the first Eesa before Gbogboelolu, to conclude that the exclusivity of the title to the appellant’s family was doubtful. He referred to the evidence of PW1, Kasao’s grandson who testified that his grandfather never became Eesa.
He submitted that the learned trial Judge was also wrong to have relied on alleged contradiction between the evidence of PW3, Israel Folajin, who testified before the court and the testimony of Dr. Folajin before the committee in Exhibit D1 as to whether Gbogboelolu was the first Eesa. He contended that there was no admissible evidence against PW3’s testimony before the court.
Another complaint was that His Lordship relied on Dr. Folajin’s testimony before the committee to hold that if Kasao was never installed as Eesa, the basis of the appellant’s birth right was removed and therefore the Eesa chieftaincy was not hereditary. He argued that reference to Kasao as constituting a claim of birth right was not part of the appellant’s case at the trial, as the appellant’s contention throughout has been that Gbogboelolu and not Kasao was the first Eesa. He also challenged the court’s finding that Exhibit C, the proposed Eesa Chieftaincy Declaration dated 30/5/59 tendered by PW3 is in conflict with the testimonies before the committees and therefore detrimental to the appellant’s case and further that the finding of the court that the 2nd respondent’s family had been contesting for the chieftaincy, which was based on questions put to a witness as contained in Exhibit C1 was not supported by the pleadings. He submitted that the learned trial Judge failed to put the evidence adduced by all the parties on an imaginary scale to determine where it preponderates but rather discredited the appellant’s case before considering the strength or otherwise of the respondents’ case.
Learned counsel submitted that the learned trial Judge misconceived the issue raised by the 1st and 2nd respondents in paragraph 20 of their respective statements of defence (at pages 17 and 27 of the record) regarding who was the Aragbiji at the time Gbogboelolu was the Eesa. They had contended that the appellant’s case was inconsistent because in the past he had claimed that Gbogboelolu reigned during the tenure of Oba Arodoye. He submitted that the issue in contention as joined on the pleadings was who was the reigning Aragbiji during the tenure of Gbogboelolu and not who appointed him Eesa, as held by the learned trial Judge. He submitted that parties are bound by their pleadings and the court is not entitled to make findings outside the pleadings. See: Adetoun Oladeji (Nig.) Ltd. vs N.B. (2007) 15 WRN 1 @ 19; Edward Okwejiminor vs G. Gbakeji & Anor. (2008) 17 WRN 1 @ 34. He submitted that there is no conflict between Exhibit C and the appellant’s case as stated in paragraphs 11, 12 and 13 of the amended statement of claim. He submitted that in any event the respondents who had the burden of proof failed to demonstrate the alleged conflict between Exhibit C and the appellant’s case. On burden of proof, he relied on: Arebi vs. Gbabijo & Ors. (2008) 49 WRN 29 2 63; Okeke & Sons Vs. Felix Usifor (2008) 7 WRN 172 @ 185.
Another complaint is that the learned trial Judge relied on Exhibits E, E1 E2 and E4, which are applications from members of the 2nd respondent’s family for appointment as Eesa to hold that there was a rival contest for the stool, which the appellant’s family did not oppose when in fact the issue did not arise on the pleadings. He referred to paragraphs 25 – 31 of the amended statement of claim wherein it is averred that by custom and tradition it is the duty of the incumbent Oba (Aragbiji) to request for nominations from the appellant’s family to fill the stool of Eesa whenever a vacancy occurs and noted that the 1st respondent (the Aragbiji) admitted the averments in paragraphs 25 and 31 in his statement of defence while the 2nd respondent admitted paragraph 31 and did not seriously contest the averments in paragraphs 25, 26 and 28. Relying on section 75 of the Evidence Act and the case of Egbunike & Anor. vs A.C.B. Ltd. (1995) 2 SCNJ 58 he submitted that facts admitted require no further proof. In further support of the contention that there was no rival contest for the stool he referred to paragraphs 32 – 34 of the 1st respondent’s statement of defence and his evidence under cross-examination that he wrote Exhibit E4 to the appellant’s family to nominate a candidate to fill the vacant stool. He urged the court to hold that the finding of the learned trial Judge of recent contest by members of the 2nd respondent’s family for the stool is perverse and unsubstantiated.
In reaction to this issue, learned counsel for the 1st and 2nd respondents submitted that Exhibits C, C1 and D1 were all admitted by consent at the trial. He submitted that there can be no appeal against the admissibility of the said documents. See: National Bank of Nigeria Ltd. vs Mobil Oil Nig. Ltd. (1994) 2 NWLR (328) 534 @ 550 G – H. He submitted that the documents having been admitted without objection, the court was entitled to look into them and make use of the information therein. He referred to: Nwanosike Vs Udosen (1993) 4 NWLR (290) 684 (o 693 C. He contended that an attack on the exhibits in the circumstances amounts to an abuse of court process. He relied on: NEC Vs Wodi (1989) 2 NWLR (104) 446 @ 456 D – F; Tijani vs. Akinwumi (1990) NWLR (125) 237 @ 249 C.
On whether the court could rely on the testimony of the witnesses as contained in Exhibits C, C1 and D1 without cross-examining them, he submitted that the documents are not the product of judicial proceedings but are public documents tendered and admitted in evidence without objection. He submitted that the authorities relied upon by the appellant, which relate to judicial proceedings are irrelevant in the circumstances of this case. He submitted that the court evaluated the contents of the exhibits as part of the evidence before the court.
On whether the respondents joined issues with the appellant on the assertion that by custom it is only the appellant’s family that is approached to nominate candidates to fill the Eesa chieftaincy, learned counsel submitted that once the case put up by the respondents is diametrically opposed to that of the appellant there is sufficient traverse. He referred to: Ayansina Vs Co-op Bank Ltd. (1994) 5 NWLR (347) 742 @ 758 C. He submitted that the 1st and 2nd respondents were not cross-examined on the issue of contest and contended that the issue remains proved.
Learned counsel for the 3rd and 4th respondents submitted that the learned trial Judge drew the correct inferences from the evidence of PW3 who testified that Gbogboelolu acted as Eesa for Kasao (or Kasan) for a brief period by concluding that Gbogboelolu was not the first Eesa as claimed by the appellant. He relied on: Ekwunife Vs Wayne (1989) 5 NWLR (122) 422. He maintained that the appellant’s case is in conflict with Exhibit C, He submitted that the distinction between the Oba who reigned during Gbogboelolu’s era and the Oba who appointed Gbogboelolu are distinctions made by learned counsel for the appellant in his brief of argument. He submitted that no such distinction was made by any of the parties in their evidence. He submitted that the address of counsel cannot be a substitute for evidence. He relied on: Yoye Vs Olubode (1974) 10 SC 201 @ 215. He submitted further that Exhibits E, E1, E2 and F4 support the contention that the 2nd respondent’s family had contested for the stool of Eesa on two occasions in line with the pleading in paragraph 25 of the 2nd defendant’s statement of defence. He submitted that in so far as the findings of the learned trial Judge are supported by the evidence on record, such findings would not be perverse and will not be disturbed, He relied on: Jatau Vs Danladi (1995) 8 NWLR (415) 592 @ 616 – 617 G – A; Umese Vs Onuaguluchi (1995) 9 NWLR (421) 515 @ 530 – 531 G – A, Musa Vs Yerima (1997) 4 NWLR (511) 27 @ 42 E – F. He submitted that the learned trial Judge properly ascribed probative value to the evidence before him.
The first issue to consider in resolving this issue is how the contents of Exhibits C1 and D1 were utilized by the learned trial Judge. Learned counsel for the 1st and 2nd respondents argued strongly that since the documents were admitted without objection the learned trial Judge was entitled to look into them and make use of their contents. The law is quite settled that a court is entitled to look into any document tendered and admitted in evidence before it and draw relevant inferences therefrom. The issue in contention in this appeal is whether the court could rely on the evidence of any of the witnesses who gave evidence before the fact finding committees and who did not testify before him to discredit the evidence of the witnesses who did. In the case of Durosaro Vs Ayorinde (2005) 3 – 4 SC 14 @ 26 lines 4 – 9 the Supreme Court per Edozie, JSC held thus:
“.. The law is that evidence of a witness taken in earlier proceedings is not relevant in a later trial except for the purpose of discrediting such a witness in cross-examination and for that purpose only. It is not permissible to treat such evidence in previous proceedings as one of truth. ”
In Bankole Vs Dada (2003) 11 NWLR (830) 174 @ 215 F – G, the Supreme Court cited with approval an earlier decision of the Court of Appeal in Njoku Vs Dikibo (1998) 1 NWLR (534) 496 @ 518 where the court held:
“Evidence in a previous case can never be accepted as evidence by the court in a later case except where Section 34 of the Evidence Act applies. However evidence given in an earlier case by persons who also testify in a later case may be used for cross-examination as to credit but it is of no higher value than that.” Section 34 of the Evidence Act 2004 (Section 46 of the Evidence Act 2011 as amended) provides:
“34.(1) Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving in a subsequent proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead, or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which in the circumstances of the case the court considers unreasonable:
Provided –
a. that the proceeding was between the same parties or their representatives in interest;
b. that the adverse party in the first proceedings had the right and opportunity to cross-examine; and
c. that the questions in issue were substantially the same in the first as in the second proceeding.”(Emphasis supplied).
Section 199 of the Evidence Act (now Section 232 of the 2011 Act as amended) provides:
“A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relative to matters in question in the suit or proceedings in which he is cross-examined without such writing being shown to him or being proved, but if it is intended to contradict such witness by the writing, his attention must, before such writing can be proved or such contradictory proof given, be called to those parts of the writing which are to be used for the purpose of contradicting him.”
The four witnesses who testified on behalf of the appellant were:
i. PW1: Jimoh Afolabi of Ojomu’s compound and grandson of Kasao;
ii. PW2; Sunmonu Alesinloye, the Elemo, head of the princes;
iii. PW3: Israel O. Folajin, a member of Eesa ruling family; and
iv. PW4: Lawrence Adekunle Adedeji, Principal Personnel Assistant I with Boripe Local Government, subpoenaed to tender the report of the Local Government on the Eesa chieftaincy (Exhibit D1).
In determining whether Gbogboelolu (as contended by the appellant) or Kasao (as contended by the 1st and 2nd respondents) was the first Eesa, the learned trial Judge considered the evidence of PW1 and PW3 alongside the evidence led by the respondents in addition to the contents of Exhibit D1. At page 125 of the record, His Lordship held:
“Plaintiff’s contention is that Gbogboelolu, their ancestor was the first Eesa and not Kasao as contended by the defendants. The defendants on the other hand contended that Aromo, the second Eesa is their progenitor and thus derived their right from him. 1st defendant even was categorical that Kasao was the first Eesa followed by Aromo and Gbogboelolu came third. The descendant of Kasao Ojomus, PW1 “I have heard of Kasao Ojomus. He is my ancestor. 3rd PW in answer to cross-examination:
“In the process of this arrangement he (Kasao) learnt that Olola stool was vacant but before his departure, he handed over to Gbogboelolu his grandson who subsequently became the Eesa of Iragbiji.”
Further down, he answered thus:
“I agree that Gbogboelolu for a brief period was acting as Eesa for Kasao.”
Re-examined he said Kasao was never installed as Eesa but there was a political arrangement to make him one. The above quote shows that the plaintiff does not accept that Kasao was ever an Eesa and taking this with a pinch of salt, the source of the plaintiffs title or if you like, the plaintiff’s source of or derivation of the Chieftaincy becomes questionable. Gbgogbelolu either as Kasao grandson or on its own have failed to prove the source of title to them. The Ojomus who are descendants of Kasao admitted by PW1 have more claim than a grandson unless there is a failure along the line which has not been explained.”
His Lordship then went further at page 126 of the record and held thus:
‘In Exhibit D (exhibit D refers to exhibit D1), the Ojomu, Dr, Folajin both in their evidence confirmed that Kasao was the first Eesa. The same goes for Sunmonu Ohunmakin- (the Jagun of Iragbiji) that Kasao was the 1st Eesa with Dosun Aromo next. That Gbogboelolu was the third Eesa, Three other chiefs agreed with or shared Jagun’s views according to this Report. Pa Sangoyoyin from Akeke compound. Pa Idowu (the Akogun) both in their evidence too confirmed that Kasao was the 1st Eesa followed by Dosunmu Aromo whose reign was short. What all this suggests is that before Gbogboelolu, Kasao was the 1st thus raising the doubt about the exclusiveness of this chieftaincy to the plaintiff. This is the first area of conflict.”
The appellant is challenging the highlighted portion of the judgment reproduced above. It is contended that there is nowhere in the record that any admissible evidence was adduced to challenge the appellant’s family’s exclusive right to the chieftaincy. There is no doubt that none of the persons referred to in Exhibit D1 testified before the trial court. There was also no evidence before the court to show that any of the conditions in Section 34(1) of the Evidence Act existed to enable the court consider the evidence of these persons given before the committee alongside the testimony of the witnesses before him. A careful examination of the entire portion of the judgment reproduced from page 125 – 126 shows that the learned trial Judge used the contents of Exhibit D1 to substantiate his findings in respect of the evidence of the witnesses who actually testified before him. It must be borne in mind that the essence of the appellant’s case is that certain chieftaincy titles in Iragbiji are hereditary. This includes the six lwarefas, of which Eesa is one. That no family other than his own Gbogboelolu family is entitled to produce an Eesa in Iragbiji. Having asserted this position he had the burden of establishing it.
Both in their pleading and in their evidence, the 1st and 2nd respondents contended that Gbogboelolu was not the first Eesa. That he was in fact the third. That the 1st Eesa was Kasao and the second was Aromo who is the 2nd respondent’s ancestor and whose reign was very brief. PW3, as found by the learned trial Judge admitted under cross-examination that Gbogboelolu acted as Eesa for Kasao for a brief period before he was eventually installed as Eesa in his own right. What this evidence shows is that Kasao was never actually installed as Eesa. He elected to go and vie for another chieftaincy instead, leaving Gbogboelolu to act in his place. As stated in the course of summarizing the facts of the case earlier, the conclusion of the Boripe Local Government Committee as contained in Exhibit D1 was that only the descendants of Gbogboelolu were entitled to produce candidates for the Eesa chieftaincy. I am of the view that it was not proper for the learned trial Judge to go outside the findings of the committee to undertake his own evaluation of the evidence led before it. There was evidence before the Committee in support of and against the contention that the Eesa is only chosen from the Gbogboelolu ruling house. It was after a thorough consideration of all the evidence before it that it reached the conclusion referred to. As far as the evidence led by the appellant in support of his pleadings was concerned, he was consistent in his assertion that the 2nd respondent’s Aromo family was not entitled to contest the Eesa Chieftaincy. I therefore agree with learned counsel for the appellant that the inference drawn by the learned trial Judge from Exhibit D1 was erroneous.
I also agree with learned counsel for the appellant that the learned trial Judge erred in using the testimony of Dr. Folajin given before the committee that produced Exhibit D1 to impugn the testimony of PW3 who testified before him. On the authorities of: Bankole Vs Dada (supra) and Njoku Vs Dikibo (supra), he could only do so if Dr. Folajin also testified before him. He would have been able to use the opportunity of seeing and hearing him testify to determine whose evidence was more credible. There would also have been an opportunity to cross-examine him. Again the finding of the learned trial Judge that if Kasao was never installed as Eesa the basis of the appellant’s birthright, as claimed by Dr. Folajin before the committee, was destroyed is not supported by the evidence led before him. A finding had already been, made by the committee based on the totality of the evidence before it. The appellant’s case was that Kasao was never installed as Eesa but handed over to his grandson, Gbogboelolu who was eventually installed and that every Eesa installed thereafter was a descendant of Gbogboelolu. I agree with learned counsel for the appellant that reference to Kasao as constituting the appellant’s birthright to the chieftaincy was not an issue joined on the pleadings before the trial court. It arose from Dr. Folajin’s evidence before the Local Government Committee. He did not testify at the trial court.
The comparison by the learned Chief Judge of Exhibit C, the proposed Chieftaincy Declaration for Eesa Chieftaincy, with evidence led before the committees and the conclusion that there was a contradiction between the two, which was detrimental to the appellant’s case as presented before him, was also erroneous. It was also wrong for the learned trial Judge to rely on Exhibit C and the testimony of Dr. Folajin who testified before the committees to discredit PW3. As observed earlier, since Dr. Folajin did not testify at the trial His Lordship did not have the opportunity of testing the veracity of his evidence. PW1, Jimoh Afolabi who testified before the committees was not cross-examined on his evidence before those committees. Exhibits D1 and C1 were not put to him at all. The burden of proof in this regard was on the 1st and 2nd respondents, which they failed to discharge.
Learned counsel for the appellant submitted that the issue raised in paragraph 20 of the 1st and 2nd respondents’ statements of defence was that in the past the appellant had claimed that Gbogboelolu reigned during the tenure of Oba Arodoye, This averment was to challenge the pleading in paragraph 11 of the amended statement of claim to the effect that Gbogboelolu was Eesa during the reign of the 1st Aragbiji, namely Oba Oogbo. The 1st and 2nd respondents referred to Exhibit C, the proposed Eesa chieftaincy declaration. I agree with learned counsel that contrary to the finding of the learned trial Judge at page 127 lines 24 – 26 of the record there was no issue raised in the pleadings as to which Aragbiji appointed Gbogboelolu. The pleadings and evidence focused on which Aragbiji was on the throne when various Eesas reigned. It was shown by the evidence that in certain instances an Eesa could serve more than one Aragbiji.
Learned counsel for the appellant also contended that the issue of rival contest by the 2nd respondent’s family for the Eesa Chieftaincy is a non-issue, having regard to the pleadings and that the learned trial Judge ought not to have relied on the evidence of Alhaji Liadi Oyedele who testified in Exhibit C1 to conclude that there was such a rival contest. I have examined the pleadings of the parties. It would not be correct to say that the issue of a rival contest for the chieftaincy was a non-issue. In paragraphs 24 and 25 of the 1st and 2nd respondents’ respective statements of defence it is averred that the 2nd respondent’s father contested for the chieftaincy in 1978 and 1982 and that there was no objection from the appellant’s family. The appellant denied these averments in paragraph 4 of his reply. However in determining the issue, the court was not entitled to rely on the evidence of Alhaji Liadi Oyedele who did not testify before him. I therefore agree with learned counsel for the appellant that the learned trial Judge drew wrong inferences from Exhibits C1 and D1 by relying on the testimony of persons who did not testify before him to discredit the appellant’s case.
Exhibit C was tendered through PW3, Israel Folajin. No question was put to him under cross-examination in respect of the document. No effort was made by the respondents to discredit his evidence by the content of Exhibit C. Having referred to Exhibit C in their pleading, the onus was on them to establish by evidence the inconsistency between it and the evidence led by the appellant. Parties are bound by their pleadings. See: Adetoun Oladeji (Nig.) Ltd. Vs N.B. (2007) 15 WRN 1 @ 19; Edward Okwejiminor Vs G. Gbakeji & Anor. (2008) 17 WRN 1 @ 34. Any evidence led must be in line with those pleadings. Since they did not raise the issue of who appointed Gbogboelolu in their pleading, any evidence led to that effect would go to no issue. The learned trial Judge therefore erred in holding that there was inconsistency in the appellant’s case in this regard.
On the issue of Exhibits E, E1, E2 and E4, letters written by the 2nd respondent’s family to the Aragbiji in 1978 and 1982 seeking to be considered to fill the then vacant Eesa chieftaincy and whether there had been rival contest for the chieftaincy, which the appellant’s family did not object to, as found by the learned trial Judge. I have considered the pleadings of the parties referred to by learned counsel for the appellant.
Paragraphs 25, 26, 27, 29 and 31 of the amended statement of claim are relevant and reproduced hereunder:
“25. By custom and tradition of Iragbiji, it is the duty of an incumbent Oba of Iragbiji to request for nomination from the plaintiffs family to nominate candidate to fill the stool of Eesa whenever vacancy occurs. The plaintiff would at the trial rely inter alia on such letters of invitation to Eesa family.
26. By a letter dated 11th February 1992, the 1st defendant wrote to the plaintiff’s family “to fill the vacant stool of Eesa of Iragbiji”. Plaintiff would at the trial rely on the said letter.
27. With reference to paragraph 26 supra the plaintiff’s family by a letter dated 15th February 1992, as a result of the family meeting nominated Aderemi Adeyeye as the new Eesa. The letter was submitted to the 1st defendant.
29. By a letter dated 24th February 1992 the 1st defendant informed the plaintiff’s family that Aderemi Adeyeye is not acceptable to him. Plaintiff would at the trial rely on the said letter.
31. By this [his] letter dated 26th March 1992, the 1st defendant informed the plaintiff’s family of a petition from the plaintiffs as a result of which the 1st defendant demanded that the plaintiff’s family should send nomination to fill the vacant stool of Eesa of Iragbiji. The letter would be relied upon at the trial.” (Emphasis mine)
Exhibits A1, A2, A3 and A4 were tendered in support of the above averments.
In paragraph 1 of the 1st respondent’s statement of defence he averred thus:
“1. The 1st defendant admits paragraphs 2, 3, 4, 8, 12, 21, 22, 25, 26, 27 28, 29, 30 and 31 of the statement of claim.”
The 2nd respondent pleaded in paragraph 1 of his statement of defence:
“1. The 2nd defendant admits paragraphs 2, 3, 4, 8, 12, 21, 22, 29, 30 and 31 of the statement of claim.” By the provisions of section 75 of the Evidence Act facts admitted require no further proof. The 1st respondent is the prescribed authority for the Eesa chieftaincy. By paragraph 1 above, he admitted without ambiguity the averment in paragraph 25 of the amended statement of claim that by the custom and tradition of Iragbiji it is the duty of an incumbent Aragbiji to request for nominations from the appellant’s family to fill the stool of Eesa whenever a vacancy occurs. In my humble view this admission requires no further proof. Exhibits A1, A2, A3 and A4 confirm this fact because both in 1978 and in 1982 when there was a vacancy, it was the appellant’s family that was asked to present a candidate. Even when the candidate nominated in 1992 was found to be unacceptable, the appellant’s family was called upon again to present an alternative nominee. It is true that despite the admission in paragraph 1, the 1st respondent in paragraphs 31, 32 and 34, sought to explain why the 2nd respondent’s family had missed out on the chieftaincy. The averments are in conflict with the earlier unequivocal admission in paragraph 1. The 2nd respondent in paragraphs 25 and 32 of his pleadings averred that his family had been side tracked by the appellant’s family due to their influence and affluence and denied knowledge of Exhibits A1, A2, A3 and A4. He tendered Exhibits E, E1, E2 and E4 to show that his family had contested for the chieftaincy. The 3rd and 4th respondents in paragraph 1 of their statement of defence also admitted paragraphs 25 – 31 of the statement of claim. Paragraph 25 is the most crucial averment.
The learned trial Judge held at page 129 of the record that the appellant’s family did not object to the 2nd respondent’s father and grandfather vying for the title. I must say that the only evidence before the court to support the contention that the 2nd respondent’s family vied for the title are Exhibits E, E1, E2 and E4 written to the Aragbiji. The letters were not copied to the appellant’s family, The issue of objection thereto would therefore not arise. The 1st and 2nd respondents did not show that the appellant’s family had knowledge of those letters. The evidence of DW4 before the court was that both times that his family members contested they lost to the candidate from Gbgogboelolu family. I am of the view that if the contention of the 2nd respondent were true that the title was monopolized by the Gbogboelolu family because for many years they could not contest due to an epidemic that affected their family or because of their affluence, the moment the family was able to produce a viable candidate, such candidate would not have had any difficulty in securing the title. Yet the 1st respondent only wrote to the appellant’s family for nomination. Furthermore the evidence led confirms the appellant’s contention that the title of Eesa of Iragbiji had passed exclusively from one generation of Gbogboelolu to another and that 11 Eesas had so far been produced from the family. I therefore agree with learned counsel for the appellant that the finding of the learned trial Judge that there was a rival contest for the chieftaincy, which was not objected to by the appellant’s family is not supported by the evidence before the court.
On the whole, this issue is resolved in favour of the appellant.
Issue 2
Whether the conduct of the visit to locus in quo by the learned trial Judge and his findings in respect thereof occasioned a miscarriage of justice.
In the course of the trial, the learned trial Judge conducted a visit to the locus in quo in connection with the custom that a new Iragbiji would stay in the Eesa’s family compound and enter into the palace through a perforation in the wall in the compound, which would be sealed after he had passed through. The learned trial Judge made various findings based on the said visit. Learned counsel for the appellant submitted that the conduct of the visit was not in compliance with the provisions of Section 77(d) (ii) of the Evidence Act. He challenged some of the findings arrived at. He submitted that the findings do not arise from any admissible evidence and are not relevant to any live issue before the court. He submitted that the learned trial Judge was wrong to make findings in respect of issues not joined by the parties. He referred to: Oba E.A. Ipinlaiye II vs. Chief Julius Olutokun (1996) 6 SCNJ 74. He contended that the findings are the personal observations of the learned trial Judge, which cannot take the position of evidence. He referred to: Ogundele Vs. Fasu (1999) 9 & 10 SCNJ 105 @ 117. He also submitted that the finding of the learned trial Judge that the custom requiring the new Aragbiji to enter the palace from the appellant’s compound had come to an end was not pleaded or supported by the evidence on record. On the need for a court not to engage in speculation he referred to: Eboade vs. Atomesin (1997) 5 SCNJ 13; Omidiora vs. Fed. Civil Service Commission (2004) 44 WRN 53 @ 73.
Learned counsel for the 1st and 2nd respondents, in reaction to this issue, submitted that the learned trial Judge drew correct inferences from the established facts on record. He submitted that the averment in paragraph 24 of the amended statement of claim relating to the custom of passing through a perforated wall in the appellant’s family compound was effectively denied in paragraph 2 of the 1st and 2nd respondents’ respective statements of defence. He contended that there was no error in the procedure adopted by the learned trial Judge in his conduct of the visit to the locus in quo, the manner in which he recorded the result of the visit and his findings thereon. He submitted that there is no hard and fast rule regarding the report of the visit to the locus and that failure of the learned trial Judge to make a note of his observation at the locus would not be fatal. He referred to: Opigo vs. Yukwe (1997) 6 NWLR (509) 428 @ 445F; Obim vs. Achuk (2005) NWLR (922) 597 @ 601 & 630 – 631 G – B. He submitted that even if there was an error in the recording of the visit to the locus in quo, it would not be a ground for reversing the judgment. He referred to Adesina vs. Afolabi (2002) 13 NWLR (783) 200 @ 214 E – F. Learned counsel for the 3rd and 4th respondents supported the position of the appellant regarding the visit to the locus in quo and the findings of the learned trial Judge in respect thereof.
The findings of the learned trial Judge being challenged by the appellant as set out in paragraph 6.04(d), (e) and (f) of the appellant’s brief are as follows:
“(d) That the wall fence between Eesa compound and palace has fallen into dis-use and in its place were corrugated iron sheet;
(e) That the present day Aromo family (2nd defendant family) is just near the palace like that of Eesa (appellant’s family compound); and
(f) That there was Eesa Court and inner chamber built by the 2nd defendant/respondent’s grandfather Ogunlana Oyelami in anticipation of being installed as the Eesa.”
A careful examination of the above findings shows that the only finding, which might have an adverse effect on the appellant’s case is sub-paragraph (d). I have considered the pleading of the parties in respect of this issue. In paragraph 24 of the amended statement of claim the appellant pleaded the tradition of an Aragbiji staying in the Eesa’s house for some time and thereafter proceeding to his palace through the perforated wall. It was pleaded that by tradition the Aragbiji’s palace is close to or behind the appellant’s family compound. In paragraphs 29 and 30 of their respective statements of defence, the 1st and 2nd respondents did not deny the tradition. Their contention was that the Aragbiji is required to stay in the house of whoever is the incumbent Eesa, not necessarily the appellant’s compound. They also averred and testified that the only reason the Aragbiji had never stayed in the 2nd respondent’s family house is because the family had not had the opportunity of being installed Eesa since the death of their ancestor, Aromo. As pointed out by learned counsel for the appellant, DW1, the Aragbiji (the 1st respondent) under cross-examination confirmed the tradition. He admitted that he stayed at Eesa Gbogboelolu’s family house for three days when he was installed. He confirmed that the house is at the back of the palace and that when he was installed he passed through the back of the palace. The essence of the appellant’s pleading and evidence before the court was that there was a tradition of staying in the Eesa’s house for some time before proceeding to the palace through a perforation in the wall between the palace and the Eesa’s house. DW1 confirmed the tradition. Many traditions of this nature are symbolic. There was no pleading that the tradition had come to an end. The fact that the new Aragbiji passes through the front instead of the back does not detract from the symbolism of the custom or the fact that a new Aragbiji must stay in the family house of the Eesa. There was no issue joined on the pleadings to the effect that the custom had come to an end. It was therefore wrong for the learned trial Judge to come to such a conclusion from his observations during the visit to the locus. The law is settled that a Judge when conducting a visit to the locus must avoid putting himself in a position where he becomes a witness in the case. He must not treat his perception at the scene as a finding of fact without evidence for such perception being given by a witness, either at the locus or later in court after the inspection. See: Shekse Vs Plankshak & Ors. (2008) 7 SC 178 @ 189 – 191: Seismograph Service Ltd. Vs Onokpasa (1974) 6 SC 119; (1974) 6 SC (Reprint) 103. The finding clearly impacted adversely on the appellant’s case. I resolve this issue in his favour.
Issue 3
Whether the judgment is against the weight of evidence.
In the course of the judgment, several findings have been made showing how the learned trial Judge drew wrong inferences from the evidence before him. Learned counsel for the appellant has also alluded to some of the issues under this heading. It would not serve any useful purpose to repeat them.
Learned counsel for the appellant submitted that the central issue in the case before the lower court is who was the first Eesa of Iragbiji – Gbogboelolu or Kasao? He submitted that the evidence led by the appellant and his witnesses was consistent on the fact that Gbogboelolu was the first Eesa while the evidence led on behalf of the 1st and 2nd respondents that Kasao was the first Eesa was contradictory. He referred to the evidence of PW1, Jimoh Afolabi who testified that he is the Ojomu of Iragbiji, that Kasao was his ancestor and was never installed as Eesa. He noted that PW1 was not cross-examined on this evidence. He submitted that even though the defence witnesses claimed that Kasao was the first Eesa, they were unable to explain why the chieftaincy associated with his family was Ojomu of Iragbiji and not Eesa and why none of his descendants had ever become Eesa. He noted that DW3, Lasisi Oladosun who said he was related to PW1 stated that his father’s chieftaincy is Ojomu and that Kasao held that chieftaincy until he died. He also queried why, if as asserted by the 1st and 2nd respondents, Kasao was the first Eesa, the right to the stool was only extended to Gbogboelolu and Aromo families. He noted that the 1st respondent even sought to extend the right to the chieftaincy to the Alagbaa family. Learned counsel also referred to various aspects of the evidence of the 1st respondent, which was discredited under cross-examination. He urged the court not to attach any weight to his evidence. He referred to: Ayanwale Vs Atanda (1988) 1 NWLR (68) 22.
With regard to the 3rd and 4th respondents he submitted that there was no justification for the setting up of another committee after the committee set up by the Chairman, Boripe Local Government had submitted its report (Exhibit D1). He submitted that the learned trial Judge erred in refusing to grant his relief (d) on the ground that the report of the Boripe Local Government Traditional Council (Exhibit C1) had been accepted by the government. He submitted that the trial court had a statutory duty by the combined provisions of Section 6(6)(b), 36(1) and 272 of the Constitution of the Federal Republic of Nigeria 1999 to adjudicate on the issue and make a finding thereon. He submitted that the Eesa chieftaincy is a minor chieftaincy without a registered declaration and that the approval of the report of the fact finding committee in Exhibit C1 could not be equated with a registered declaration, the procedure for obtaining same being radically different.
Most of the submissions above have been addressed by learned counsel for the 1st and 2nd respondent in the course of responding to issues 1 and 2 infra. Learned counsel for the 3rd and 4th respondents submitted that once the findings of the learned trial Judge are supported by evidence and it is not shown that the evidence was wrongly evaluated, such findings ought not to be disturbed. He relied on: Oparaji vs. Ohanu (1999) 9 (618) 290 @ 308 C – E; Ajibona Vs. Kolawole (1996) 10 NWLR (426) 22 @ 33 F; Sha (JRN) Vs. Kwan (2000) 8 NWLR (670) 685 @ 701 A – G.
I have considered the submissions of the respective learned counsel and the pleadings and evidence before the court. I had earlier held that the learned trial Judge erred in using the evidence of witnesses who testified before the two committees that produced Exhibits D1 and C1 to discredit the evidence of the witnesses who actually testified before him. I am of the view that the reliance on those testimonies led the learned trial Judge to an erroneous appraisal of the evidence before him. I had also found and held that there was no evidence to prove that Kasao whom the 1st and 2nd respondents claim was the first Eesa of Iragbiji was in fact ever installed as Eesa. PW1, who is a descendant categorically stated that Kasao was never installed. This was a vital piece of evidence upon which he ought to have been cross-examined. The evidence stands unchallenged. Failure to cross-examine a witness on a particular matter is a tacit acceptance of the truth of the evidence of the witness. See: Gaji vs. Paye (2003) 8 NWLR (823) 583; Oforlete vs. State (2000) 12 NWLR (681) 415 @ 436.The 1st and 2nd respondents were unable to show by credible evidence that their ancestor, Aromo was ever an Eesa of Iragbiji. It was the appellant’s case that the Eesa chieftaincy is as old as Iragbiji town, which is about two hundred years old and that since the establishment of the town there have been 14 Iragbijis and 11 Eesas, and that at the Eesas have come from his family. The 1st and 2nd respondents were unable to rebut this evidence. I find the evidence of an epidemic that affected only the 2nd respondent’s family as being the reason they could not produce an Eesa as rather far-fetched. Furthermore, as I had observed earlier, if the Aromo family was entitled to produce an Eesa, once the family had recovered from the alleged epidemic there ought to have been no dispute as to their eligibility. Both in his pleading and by Exhibits A1, A2, A3 and A4 DW1, the prescribed authority confirmed the fact that it is the appellant’s family that is by tradition called upon to nominate a candidate whenever a vacancy occurs. In my humble view the scales of justice tilt more in favour of the appellant in this regard.
This brings me to the report of the committee set up by the Chairman of Boripe Local Government (Exhibit D1) on the directive of the Military Administrator of Osun State through the Department of Chieftaincy Affairs. After a very thorough and painstaking appraisal of all the oral and documentary evidence before it, the committee made elaborate findings and confirmed that only direct descendants of Gbgogboelolu could become Eesa of Iragbiji. Some of the findings and recommendations of the committee have been referred to earlier in this judgment. The committee at page 1 of the report under the title “method of investigation” stated that it invited members of the various family compounds for interview “with a view to ascertaining which family compound(s) is or are entitled to Eesa of Iragbiji Chieftaincy.” The committee also made recommendations arising from their findings.
It is therefore most baffling that after receiving the report, the Military Administrator through the Department of Chieftaincy Affairs would direct the Boripe Local Government Traditional Council to conduct a fresh investigation into the same matter without discrediting the first report. It is not surprising that the second committee came out with a report (Exhibit C1) that found in favour of two ruling houses including that of the 2nd respondent. A careful examination of Exhibit C1 shows that the committee did not evaluate the evidence before it, Even though it set out the evidence of all those who testified before it, in its conclusion it merely stated as follows:
“Although Eesa Gbogboelolu family insisted there is only one ruling house to Eesa chieftaincy title in Iragbiji and that it is their family Gbogboelolu, with reasonable evidence that all for examination and re-examination.
The second ruling house, the Aromo family also gave their own evidence to proof (sic) their claim to the title supported by their interested parties.
However, the evidence of the principal witness, Aragbiji of Iragbiji, the Oba of the town who is the custodian of his people and his people’s culture. He is supposed to understand the situation more than any member of the panel sitting over the enquiry among Boripe Local Government Traditional Council. The evidence of the Oba is that there are two ruling houses. Therefore we uphold his evidence that there are two ruling houses to Eesa Chieftaincy title of Iragbiji.”
Perhaps out of respect for the Aragbiji, the committee abdicated its responsibility of evaluating the evidence before it and making credible findings thereon. What was the purpose of the inquiry if the evidence of the Aragbiji was to be accepted at the end of the day hook, line and sinker?
I agree with learned counsel for the appellant that the learned trial Judge had a duty to consider all the issues placed before him and make findings thereon. He failed to do so in this case, which has led to a serious miscarriage of justice. This issue is accordingly resolved in favour of the appellant.
All the issues in this appeal are resolved in favour of the appellant and against the respondents.
The 1st and 2nd respondents have filed and argued a respondent’s notice praying that the judgment of the lower court be affirmed on grounds other than those relied upon by the learned trial Judge. A careful examination of the respondent’s notice however reveals that it is in fact an appeal against a ruling delivered by the trial court dismissing their objection to the suit that gave rise to this appeal. In their objection before the trial court, they relied on previous rulings of Oluborode, J. in Suits Nos. HIK/1/93 and HIK/MISC/1/95, copies of which they attached to their supporting affidavit, to contend that the instant suit constitutes res judicata and is an abuse of court process. Copies of the ruling were also tendered in evidence at the trial of this case. The learned trial Judge, Yusuff, J. overruled the objection on the ground that the copies of the rulings relied upon were not certified. It is contended by the respondents’ notice that the learned trial Judge was wrong to have assumed jurisdiction in the case.
A respondent who is dissatisfied with any aspect of the judgment appealed against has two options. He may cross appeal or he may file a respondent’s notice pursuant to Order 3 Rule 14 of the Court of Appeal Rules 2002 (applicable at the time the respondents’ notice was filed). The difference between a respondent’s notice and a cross-appeal were examined in the case of Arisons Trading & Eng. Co. Ltd. Vs Military Gov. Ogun State (2009) 5 – 6 SC (Pt. 1) 131 @ 186 – 187. His Lordship, Ogbuagu, JSC held thus:
“Now, a Respondent’s Notice, it is settled, postulates that the approach of the learned trial Judge to the case was cored but that his conclusions, had adversely affected the respondent who thereby contends that by the same reasoning of the learned trial Judge, he should have received, such as for example, a greater reward. See the case of Alhaji Sunmonu & Ors. Vs Ashrote (1975) 1 NMLR 116 at (1) 23.
On the other hand, if a plaintiff wants a complete reversal of the decision of the lower court, he files a Cross-Appeal. In other words, a party seeking to set aside a finding in a judgment which is crucial and fundamental to a case, can only do so through a substantive Cross-Appeal and not an application to affirm or vary the Judgment on other grounds. … In other words a Cross-Appeal arises where two parties in a judgment are dissatisfied with it and each accordingly appeals.” (Emphasis mine)
In the instant case what the 1st and 2nd respondents are seeking is a reversal of the decision of the court below on the ground that the court lacked jurisdiction to entertain the suit on grounds of res judicata and abuse of process. This is not the scenario contemplated by a respondent’s notice where the party filing it supports the judgment but wants it affirmed on grounds other than those relied upon by the learned trial Judge. The only way the court could consider the 1st and 2nd respondent’s complaint is if they had filed a cross-appeal. Not having done so, I hold that the respondent’s notice is incompetent. It is accordingly struck out.
In conclusion the appeal succeeds. The judgment of the High Court of Osun State holden at Ikirun in Suit No. HIK/5/97 delivered on 9/10/98 is hereby set aside. The plaintiff’s claims as per paragraph 49 of his amended statement of claim are hereby granted as prayed.
Costs of N70,000.00 are awarded in favour of the appellant against the 1st and 2nd respondents.
CHINWE EUGENIA IYIZOBA, J.C.A: l read in advance the lead judgment just delivered by my learned brother, KEKERE-EKUN JCA. The appeal is a complex one with numerous dimensions as a result of the two preliminary objections raised by the two sets of respondents. His Lordship meticulously dealt with all the issues raised in the appeal. I am entirely in agreement with his reasoning and conclusion. I agree that the appeal has merit and should be allowed. I also allow the appeal. I abide by the consequential orders in the lead judgment including the order as to costs.
MOORE A.A. ADUMEIN, J.C.A: My learned brother, KEKERE-EKUN, JCA, has in a characteristically unique and elaborate manner dealt with all the issues in this appeal. I agree with my learned brother that this appeal ought to be allowed for having merit. I also allow the appeal and set aside the judgment of the lower court.
I abide by all the consequential orders in the lead judgment, including the order for costs.
Appearances
Biodun Abdu-Raheem Esq.,
I.K. UjahFor Appellant
AND
Oye Adeniran Esq.,
S. Hamza Esq.
Dapo Adeniji Esq., DPP Osun State,
Wole Ajumobi Esq. Principal State Counsel Ministry of Justice, Osun StateFor Respondent
