OLALERE OYETUNJI v. ALHAJI ASIRU AWOYEMI & ORS
(2013)LCN/5885(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 29th day of January, 2013
CA/I/165/2006
RATIO
EVIDENCE: ON WHOM LIES THE BURDEN OF PROOF IN A CIVIL SUIT
The law is firmly settled that in a civil suit, the burden of proof lies on the person against whom the judgment of the court would be given if no evidence were led on either side. However the burden of proof of particular facts in a civil suit is not static. The initial burden is on the person who asserts a particular fact. Once that fact is established to the satisfaction of the court, the burden shifts to the other party and so on until all the issues in controversy between the parties have been disposed of. See Sections 131, 132, 133 and 134 of the Evidence Act 2011 (as amended). Per. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
EVIDENCE: THE BURDEN OF PROOF IN A CLAIM FOR A DECLARATORY RELIEF
In line with the general burden of proof as stated above, it is equally trite that in a claim for a declaratory relief a claimant must succeed on the strength of his own case and not on the weakness of the defence unless there is an aspect of the defendant’s case that supports his case. See: Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR (7) 393 @ 429 D – E; Kodilinye v. Odu (1936) 2 WACA 336 @ 337; Onwugbufor v. Okoye (1996) 1 NWLR (424) 252; Shittu v. Fashawe (2005) 14 NWLR (946) 671. Per. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
THE POSITION OF LAW ON AN ADMISSION AGAINST INTEREST
An admission against interest in order to be valid in favour of an adverse party must not only vindicate or reflect the material evidence before the court; it must also vindicate and reflect the legal position. Where an admission against interest does not reflect the legal position it will be regarded for all intents and purposes as superfluous. And a court of law is entitled not to assign any probative value to it. See: Odutola v. Papersack (Nig.) Ltd. (2006) 18 NWLR (1012) 470 @ 494 C – D; Abioye v. Lawal (2007) ALL FWLR (350) 1376 @ 1385 D – E. Per. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
JUSTICES
KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
OLALERE OYETUNJI
(For himself on behalf of Orisarayi family of Ojede’s compound, Osogbo) Appellant(s)
AND
1. ALHAJI ASIRU AWOYEMI
2. NASIRU BELLO
3. OLASUNKANMI ADEBISI
4. LAWANI IJAOYE
(For themselves and on behalf of members of Laro Ruling House of Ataoja of Osogbo Chieftaincy)
5. OLADOSU OYENIYI
(For himself and on behalf of Oluwin Ajibulu family of Oyekanmi’s compound, Gbonmi, Osogbo)
6. THE ATTORNEY GENERAL OF 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 Osogbo delivered on the 20th day of January, 2000.
By their Further Amended Writ of Summons and paragraph 41 of the Further Amended Statement of Claim the 1st – 4th plaintiff (the 1st – 4th Respondents herein) sued the 1st Defendant (the Appellant herein) and the 2nd and 3rd Defendants (the 5th and 6th Respondents herein) claiming the following reliefs:
“1. A declaration that Omumuyiwa, Olokungboye, Lakanye and Ijaoye are the male children of Laro (also called Larooye) the first Ata-oja of Osogbo.
2. A declaration that the Plaintiffs, and all male descendants of Omumuyiwa, Olokungboye, Lakanye and Ijaoye constitute the Laro family and are the people entitled to the membership of Laro Ruling House in the Ataoja of Osogbo chieftaincy and are entitled to present candidate(s) for the Ataoja of Osogbo chieftaincy whenever it is the turn of Laro Ruling House to fill any vacancy in the Ataoja Chieftaincy.
3. A declaration that all members of the 1st defendant’s family being descendants of Orisarayi are not members of Laro Family and are not entitled to the membership of Laro Ruling House of the Ataoja of Osogbo chieftaincy and cannot present candidate(s) for the Ataoja chieftaincy whenever it is the turn of Laro Ruling House to fill any vacancy in the chieftaincy.
4. A declaration that members of the 2nd defendant’s family being descendants of Oluwin Ajibulu are not members of Laro family and are not entitled to the membership of Laro Ruling House of the Ataoja of Osogbo chieftaincy and cannot present candidate(s) for the Ataoja chieftaincy whenever it is the turn of Laro ruling house to fill any vacancy in the chieftaincy.
5. An injunction restraining the members of 1st and 2nd Defendant’s families to wit Orisarayi and Oluwin Ajibulu families, from claiming to be members of Laro family and/or Laro ruling house, or claiming to be entitled to present candidate(s) for the Ataoja chieftaincy whenever it is the turn of Laro ruling house to fill any vacancy in the Chieftaincy.
6. An injunction restraining the 3rd Defendant from recognizing the members of the 1st – 2nd defendants’ family as members of Laro Family or as entitled to membership of Laro family or as entitled to membership of Laro Ruling House of Ataoja of Osogbo Chieftaincy”.
The parties duly filed and exchanged pleadings. The case of the 1st – 4th Respondents at the court below was that Laro, their ancestor was the founder and first Ataoja of Osogbo. That he migrated from Ipole in Ijeshaland to found Osogbo. That Laro had five children, four males and one female. That they are the descendants of Laro’s male children and therefore entitled to constitute the members of Laro ruling house. They claimed that the Appellant and the 5th Respondent are not related to Laro and therefore not entitled to be members of the Laro ruling house. They relied on a previous decision of the High court in suit HOS/41/82 – Raji Gboyeola Kolawole & Ors. v. Oba Iyiola Oyewale Matanmi III & Ors. wherein the issue as to whether Laro had any male children was considered and resolved in the affirmative. The judgment was admitted in the proceedings as Exhibit A. It was also their case that they had defended the interests of the Laro Ruling house before several Commissions of Inquiry.
The case of the appellant was that Laro was the founder of Osogbo and was Ataoja in osogbo. That he had only two children, Abogbe (female) and Orisarayi (male). That Orisarayi was Laro’s only son. He also claimed that the 1st – 4th respondents were not descendants of Laro but masquerades from Oyo. The 2nd defendant (5th respondent herein) claimed that his ancestor, Ajibulu was a brother to Laro and also testified that Orisarayi was not Laro’s son. In other words, that he and the appellant are not descendants of Laro. The 3rd defendant (6th respondent herein) did not participate at the trial.
After the conclusion of evidence from both sides and the addresses of counsel, the learned trial Judge in a considered judgment resolved the issues in favour of the 1st – 4th respondents and granted the declarations sought. The appellant, being dissatisfied with the decision filed a notice of appeal containing the single omnibus ground of appeal. With leave of court he filed an amended notice of appeal containing five grounds of appeal. The appellant, 1st – 4th and 6th respondents respectively filed and exchanged briefs of argument. The 5th respondent was represented by counsel but did not file any brief.
At the hearing of the appeal on 1/11/2012, learned counsel adopted their respective briefs of argument and urged their respective positions on the court. M. O. OKEDIYA ESQ. urged the court to allow the appeal while AYO LAOGUN ESQ., for the 1st – 4th respondents and MRS. FOLA AKINRUJOMU, DIRECTOR/ADMINISTRATOR GENERAL & PUBLIC TRUSTEE, MINISTRY OF JUSTICE, OSUN STATE for the 6th respondent urged the court to dismiss the appeal and uphold the judgment of the lower court. W. A. IDOWU ESQ., for the 5th respondent aligned himself with the appellant and urged the court to allow the appeal. The issues for determination as distilled on behalf of the appellant are as follows:
i. Having regard to the nature of the 1st – 4th Respondents claims before the lower court (which are principally for declaratory reliefs) and the pleadings and evidence of the parties especially the 1st – 4th Respondents, whether the learned trial judge was right in holding that the 1st – 4th Respondents are all descendants of Laro and constitute the Laro Ruling houses of the Ataoja of Osogbo chieftaincy.
(Grounds 1, 2 & 5 of the grounds of appeal).
ii. Whether the judgment of the Osogbo High Court in suit HOS/41/82: Raji Gboyeola Kolawole & Ors. v. Oba Iyiola Oyewale Matanmi III and Ors. could in law be the basis of the 1st – 4th Respondents’ claims and the judgment of the lower court, (Ground 3 of the grounds of appeal)
iii. Whether the judgment in HOS/41/82, Raji Gboyeola Kolawole & Ors. v. Oba Iyiola Oyewale Matanmi III and Ors. could operate as estoppel against the Appellant. (Ground 4 of the grounds of appeal).
The 1st – 4th respondents formulated the following issues:
i. Whether the learned trial judge properly evaluated the evidence led by the parties or did not evaluate at all before holding that the plaintiffs succeeded on the strength of their case and are entitled to the grant of the declarations and other reliefs sought.
ii. Whether the decision in the judgment of the Osogbo High Court in Suit HOS/41/82 RAJI GBOYEOLA KOLAWOLE & ORS. v. OBA IYIOLA OYEWALE MATANMI III & ORS. which supported the claim of the 1st – 4th Respondents that Laro had male children including Lokungboye could not be relied upon as part of the evidence in proof of the issue that Laro had male children.
iii. Whether the decision that Laro had male children including Lokungboye as held in Suit HOS/41/82 admitted as Exhibit “A” would not operate as issue estoppel against the appellant in this appeal.
The 6th respondent adopted the issues formulated by the 1st – 4th respondents with minor modifications. I do not deem it necessary to set them out here. The appeal shall be determined on the issues formulated by the appellant.
ISSUE 1
In support of this issue, learned counsel for the appellant submitted that the fundamental reliefs of the 1st – 4th respondents are reliefs (1) and (2) while the other reliefs are auxiliary reliefs whose success or otherwise would depend on the outcome of reliefs (1) and (2). He submitted that in an action for declaratory reliefs, it is the duty of the claimant to prove his case by adducing credible evidence of his alleged entitlement. He referred to: Chukwumah v. Shell (1993) 5 SCNJ 1 @ 42; Alao v. Akano (2005) 4 SCNJ 65 @ 73. He submitted that a declaratory relief is not granted on admission or want of defence. He cited the ease of: Okhurobo v. Aigbe (2002) 3 SCNJ 107 at 123. He submitted further that the claimant must succeed on the strength of his case and not on the weakness of the defence except where the defence supports the plaintiff’s case.
He referred to: Oyinloye v. Esinkin (1999) 6 SCNJ 278 @ 288; Abimbola v. Abatan (2001) 4 SCNJ 73 @ 82.
Learned counsel submitted that from the state of the pleadings issues were joined on whether the 1st – 4th Respondents have any link with Laro and the families acknowledged by all the parties to have links with Laro i.e. the Matanmi, Shogbo, Lajomo and Lahanmi Oyipi families. He contended that it is a fact in issue, which the 1st – 4th Respondents are bound to prove if they are to succeed in their claims. He relied on Section 64 of the Evidence Act. Learned counsel submitted that the 1st – 4th respondents failed to call any evidence to prove that they have traditional ties with any of the other families who are acknowledged as being related to Laro. He submitted that PW4 in the course of his evidence merely stated the names of Laro’s children without more. That he did not link the 1st – 4th respondents to Laro and failed to testify as to the traditional ties between them and the other families that claim a relationship with Laro. He submitted that the witness admitted that descendants of Lajomo and Laro do not intermarry but do exchange burial cloths when their respective relatives die. He submitted that he however failed to link the 1st – 4th Respondents to this practice. He contended that PW4’s evidence is ambiguous and can be taken as evidence in support of the pleadings of the 1st defendant/appellant, as he pleaded the same tradition. He observed further that under cross-examination, PW4 stated that the connection his family had with the 1st – 4th Respondents families are the Osun Festival and chieftaincy installation ceremony. Learned counsel argued that the Osun Festival is a cultural festival for inhabitants of Osogbo town in which many non-indigenes participate. He maintained further that a Chieftaincy installation generally without evidence of any specific traditional roles being played, is just a civic ceremony in which anybody could participate. He submitted that in the circumstances the Osun festival and/or chieftaincy celebration would not qualify as proof of traditional ties for the 1st – 4th Respondents.
He submitted that on the other hand the appellant by his evidence showed that members of his family regularly participate in the meetings of all the ruling houses held in the palace; contribute clothes for the burial of members of other ruling houses; that his family has its own portion of land granted by Laro to different ruling houses; and that members of his family inherit wives from other ruling houses. He submitted that the appellant testified that the 1st – 4th respondents’ family does not participate in the aforesaid traditional rites and ceremonies. He submitted that notwithstanding the evidence of DW2 to the effect that the 1st – 4th respondents are not related to Laro because they do not have any traditional ties with the Matanmi Ruling House the learned trial Judge still found in their favour without stating the basis for his conclusion.
Learned counsel submitted that by paragraphs 13, 14, 16, 17 and 18 of the statement of defence the Appellant averred that the 1st – 4th Respondents ancestors were masquerades who came from Oyo to Osogbo to establish the act of masquerading. That the Appellant further averred that members of the Ataoja of Osogbo royal families do not carry masquerades. He noted that the 1st – 4th Respondents on the other hand denied the assertion. He therefore contended that from the pleadings and evidence before the lower court there was an issue as to whether the 1st – 4th Respondents families are masquerades and whether, by custom, members of the Ataoja of Osogbo ruling houses carry masquerades. He submitted that a perusal of the evidence before the lower court establishes that the 1st – 4th Respondents’ families do carry masquerades and that the name of their masquerade is “Opeleba”. He submitted that the evidence also reveals that generally members of the Ataoja of Osogbo ruling houses do not carry masquerades. He argued that the evidence of PW4 under cross-examination to the effect that Princes in Ososbo do not carry masquerades while at the same time admitting that the 1st – 4th respondents’ family carry Opeleba masquerade, which is their exclusive family deity qualifies as an admission against interest and has the effect of defeating their claim. He referred to: Onyenge v. Ebere (2004) 6 SCNJ 126 @ 141; Artra Industries v. N.A.C.B. (1998) 3 SCNJ 97 @ 154: Lebile v. C & S Church (2003) 1 SCNJ 463 @ 475. He noted that the evidence of the 5th respondent under cross-examination to the effect that the 1st – 4th Respondents’ family are in charge of the Opeleba masquerade and also take the Elejin Chieftaincy and that the Princes in Osogbo are by tradition forbidden to carry masquerades was not challenged by the learned counsel to the 1st – 4th Respondents. He maintained that the contention of the appellant that princes of Ataoja do not carry masquerades remained uncontradicted. He submitted that the finding of the learned trial Judge at page 94 of the record to the effect that it was revealed under cross examination that only the Opeleba was worshipped by the Ataoja and that there were other masquerades by which other royal families in Osogbo were identified was not borne out by the record. He submitted that the issue of worshipping the masquerade did not arise on the pleadings or evidence before the court. Learned counsel submitted that that had the learned trial Judge adequately considered this important issue of custom and tradition concerning the carrying of masquerades by the 1st – 4th respondents, he would have found that they did not descend from Laro.
He submitted further that the evidence of the 1st – 4th Respondents’ witnesses is contradictory on material facts. He contended that the evidence of PW4 (a witness for the 1st – 4th Respondents) materially contradicts the averments of the 1st – 4th Respondents in the statement of claim and the evidence of PW2 and the 3rd Respondent on the issue of the founding of Osogbo and the Obas that have reigned. He argued that whereas the 1st – 4th Respondents claimed that Laro was the founder and 1st Ataoja of Osogbo, PW4 claimed in his evidence that Lajomo his ancestor was the founder and 1st Ataoja of Osogbo. He submitted that this contradiction impugns the credibility of the 1st – 4th Respondents’ case. Learned counsel contended that the 1st – 4th Respondents abandoned the averments in paragraphs 21, 22, 23, 26, 27 and 30 of the further Amended Statement of claim, as they led no evidence in respect thereof. He submitted that the effect is that their bare assertions against the Appellant cannot stand alone. He referred to: Bamgboye v. Olanrewaju (1991) 3 LRCN 897 @ 913; Magnusson v. Koiki (1993) 12 SCNJ) 114 @ 124. He submitted that the 1st – 4th respondents failed to establish by credible evidence that they are descendants of the male children of Laro or that they are entitled to any of the declarations sought. He submitted that where as in this case the trial judge has failed in his duty of considering all material issues raised in the suit and properly evaluating the evidence before him, the appellate court is empowered to review the case and come to the proper conclusion. He urged this court to set aside the judgment of the lower court and allow the appeal on this ground.
In reply to the above submissions learned counsel for the 1st – 4th respondents conceded that a claimant seeking declaratory reliefs must succeed on the strength of his own case and not on the weakness of the defence. He submitted that where the court is called upon to reevaluate evidence it presupposes that there was a prior evaluation. He relied on: Onwuka v. Ediala (1988) 1 NWLR (96) 182 @ 208 per Oputa, JSC. He submitted that an appellate court would not re-evaluate or interfere with the findings of a trial court without proof that those findings were perverse or not the result of a proper exercise of judicial discretion. He referred to: Kodilinye v. Odu 2 WACA 336 @ 338; Mogaji v. Odofin (1978) 2 S.C. 91 @ 93-95. He submitted that the learned trial Judge made the following findings of fact in his judgment, which have not been attacked by the appellant or shown to be perverse:
(i) That the issue as to whether Laro had male children has been settled by judgment in the Suit No. HOS/41/82 – RAJI GBOYEOLA KOLAWOLE & ORS. v. OBA IYIOLA OYEWALE MATANMI III & ORS, delivered on the 21st January, 1988 where it was held by a competent Court without an appeal that Laro had male children including Lokungboye. The judgment was admitted as Exhibit “A” in this suit.
(ii) That the issue whether Laro had male children and whether Lokungboye was one of them could not be relitigated and the issue is caught by the doctrine of estoppel per rem judicatam.
(iii) That the evidence adduced by the Plaintiffs was more coherent and credible than that adduced by the Defendants in the case.
(iv) That Omumuyiwa, Olokungboye, Lakanye and Ijaoye were the male children of Laro.
(v) That the Plaintiffs and all the male descendants of the said Omumuyiwa, Olokungboye, Lakanye and Ijaoye constitute the Laro Ruling House of Ataoja of Osogbo chieftaincy,
(vi) That in the light of overwhelming evidence before the Court Orisarayi was not a son of Laro.
(vii) That the descendants of Orisarayi are not entitled to be part of Laro Ruling House.
(viii) That the members of the 2nd Defendant’s family being descendants of Oluwin Ajibulu are not entitled to be part of Laro Ruling House.
(ix) That the 3rd Defendant (6th respondent herein) who had not participated at all in the trial of the suit was deemed to have abandoned the statement of defence filed by him and therefore had no defence to the Plaintiffs’ claims.
(x) That the Plaintiffs claims succeeded.
Contrary to the submission of learned counsel for the appellant, learned counsel for the 1st – 4th respondents contended that of the six reliefs sough, reliefs (i) to (iv) are the principal reliefs while reliefs (v) and (vi) are ancillary reliefs. With regard to the submission of learned counsel for the appellant that the 1st – 4th respondents based their claim, inter alia on the fact that their ancestor Laro was the founder and first Ataoja of Osogbo, learned counsel for the 1st – 4th respondents argued that the crux of the dispute was not whether Laro was the founder and first Ataoja of Osogbo but whether Laro who was an Ataoja had male children or not. He noted that based on the evidence before it the lower court not only found that Laro had male children but also found that their ancestors, Omumuyiwa, Olokungboye, Lakanye and Ijaoye were the said male children.
It was also contended on behalf of the 1st – 4th respondents that the issue in contention before the lower court was not whether the parties were related but whether Laro had any male child that could have succeeded to the throne of the Ataoja of Osogbo. He submitted that the court considered this issue extensively before reaching the conclusion that the evidence of the 1st – 4th respondents was more credible. He submitted that the appellant’s contention that the Plaintiffs/Respondents have to prove traditional links with other members who are not descendants of Laro to succeed is misconceived. He pointed out that the appellant’s ancestor, Orisarayi has been found by the trial Court not to be a son of Laro. He referred to relevant pages of the record. He maintained that the 1st – 4th Respondents have established their connection with Laro.
On the alleged contradictory evidence regarding the founding of Osogbo, learned counsel submitted that the material issue before the trial must was not the founding of Osogbo but whether Laro, an Ataoja, had male children and if any, who they were. He maintained that the founder of Osogbo is immaterial to the issue and therefore any evidence on the issue, which appears contradictory, is mere inconsistency. He Submitted that in evidence of traditional history there are bound to be inconsistencies and that in assessing such evidence, as pointed out by the Supreme Court in Makinde v. Akinwale (2000) 74 LRCN 137 at 155 D – E, “the court will not consider it improbable simply because there are some minor inconsistencies in it vis-a-vis facts pleaded. It is any evidence so materially at variance with the pleading in the sense that they both cannot be reconciled (or which has notable inherent conflicts) that the court will justifiably reject”. He noted that the relevant issue considered and determined by the court was the identity of the first Ataoja and therefore the issue as to who founded Osogbo was immaterial.
On the submission that the 1st – 4th respondents failed to lead evidence in respect of some paragraphs of their further amended statement of claim, learned counsel submitted that the appellant neither admitted nor denied those paragraphs in his statement of defence. He submitted that in the circumstances the averments are deemed admitted and require no further proof. He referred to Section 75 of the Evidence Act and the case of: Agidigbi v. Agidigbi (1992) 2 NWLR (Pt.221) 98 at 114 C – E. He maintained that the 1st – 4th respondents established their claims by credible and cogent evidence, which was accepted by the learned trial judge. He urged the court to resolve this issue in favour of the 1st – 4th respondents.
The learned counsel for the 6th respondent, Mrs. Akinrujomu, adopted and relied on the arguments advanced on behalf of the 1st – 4th respondents. In addition, she submitted that from the evidence before the court there was never a time in the history of Osogbo when the appellant’s descendants were classified as being descendants of Laro. She submitted that in the circumstances they are not entitled to be part of Laro Ruling House. Learned counsel maintained that if they had a claim it was incumbent upon them to have made representations before the various committees set up by the Osun State Government to review the Laro descendants’ case to stake their claim. Learned counsel contended that they have slept on their rights and equity does not aid the indolent. She submitted that the trial court properly evaluated the evidence before it and there is no basis for this court to re-evaluate it.
As the learned trial Judge placed significant reliance on the judgment of the High Court of Osogbo in HOS/41/82: RAJI GBOYEOLA KOLAWOLE & ORS. v. OBA IYIOLA OYEWALE MATANMI III & ORS. I am of the view that it would be prudent to consider issue 2 at this stage and resolve issues 1 and 2 together.
ISSUE 2
In support of this issue, learned counsel for the appellant submitted that suit no. HOS/41/82 was instituted by the members of the Shogbo Ruling house initially against the Ataoja of Osogbo, Oba Iyiola Oyewale Matanmi III and some others. He contended that the principal claim of the Shogbo Ruling house in that suit was the declaration of their right to a separate ruling house under the Ataoja of Osogbo Chieftaincy Declaration. He submitted that the only issue touching Laro ruling house in the suit was the contention of the Shogbo ruling house that the right of
Laro Ruling house to be a ruling house had become stale since no member of the Laro ruling house had become the Ataoja of Osogbo since the time of Laro. He noted that the family of the 1st – 4th Respondents applied to join in the suit as 9th – 12th defendants. He noted further that Adio, J. dismissed the plaintiffs’ (Shogbo) family’s claim for a declaration that the right of the Laro Ruling house had become stale on the ground that the evidence before him showed that Laro had male children. He contended that the learned trial judge in that suit relied on the evidence of the 6th defendant who is not a member of the 1st – 4th Respondents family and who did not testify on their behalf. He contended that the decision in the suit was therefore not based on any evidence or fact established by the 1st – 4th Respondents’ family as the 9th – 12th defendants in that suit. He noted further that as 9th – 12th defendants in HOS/41/82, the 1st – 4th respondents herein did not file a counter-claim. He also noted that the Shogbo family who instituted suit HOS/41/82 is not a party to the instant suit. He submitted that the 1st – 4th respondents’ claims before the lower court were mainly based on the aforesaid judgment.
Learned counsel submitted that the Appellant by paragraphs 4, 5 and 6 of his statement of defence, joined issues with the 1st – 4h Respondents on the applicability of the judgment in HOS/41/82 to the instant suit. It was the appellant’s contention that the composition of Laro Ruling house was not the issue before the court in that suit that the judgment did not recognize 1st – 4th Respondents’ families as belonging to Laro Ruling house and that since the 1st – 4th Respondents did not file a counter-claim, the judgment could not be the basis of their claims in the instant suit. He restated his arguments in respect of issue 1 infra.
Learned counsel submitted that the applicability of the judgment in a suit to subsequent proceedings depends on several factors, such as, whether the parties to the suit are the same and whether the subject matter and issues in the two suits are the same. He referred to: Blakk v. Long-John (2005) 1 SCNJ 1 @ 8 – 9; Dokubo v. Omoni (1996) SCNJ 168 @ 176 – 177. He submitted further that it is the ratio decidendi in a suit that is material and applicable in subsequent suits. He referred to: Dongtoe v. Civil Service (2001) 4 SCNJ 131 @ 155 Ratio 11 where it was held that “a decision is authority for what it actually decides, and judgments should be read in the light of facts on which they were decided.” He also referred to: Adaka v. Anekwe (2002) 6 SCNJ 238 @ 244; Abu v. Odugbo (2001) 7 SCNJ 262 @ 291. He maintained that the issues in the two suits are not the same. He also contended that the judgment in HOS/41/82 was not exhaustive and conclusive on the identity and number of the children Laro had. He referred to: Mogaji v. Ajimoti (1968) NMLR 462 @ 463.
He maintained that as the 1st – 4th respondents did not file a counter claim, no declaration or finding of fact was made in their favour. He submitted that it was erroneous for the learned trial judge to rely on Exhibit A to give judgment for the 1st – 4th Respondents. He submitted that assuming, without conceding, that the 1st – 4th Respondents could use Exhibit A for any purpose, the Appellant not being a part thereto, the judgment could only be used as a shield to defend a suit and not as a weapon of attack. He referred to: Achiakpa v. Nduka (2001) 7 SCNJ 585 @ 601.
In reply to the above submissions, learned counsel for the 1st – 4th respondents submitted that judgment in Exhibit A was relied upon in addition to other evidence led through PW2, PW4 and the 3rd plaintiff. He noted that it was common ground between the parties that there was no appeal against the judgment. He submitted that one of the issues considered in the said judgment was whether Laro had any male child. He noted that at pages 18 and 21 of Exhibit A the learned trial Judge (Adio, J.) found it established as a fact that Laro had male children including one Lokungboye. He submitted that the contention of the appellant that the 1st – 4th respondents could not rely on the judgment because they did not file a counter claim in the suit and that the finding of the court was not based on any evidence supplied by them is erroneous and misconceived. He submitted that the Plaintiffs in that case based their claim for a declaration that the right of Laro ruling house to the Ataoja of Osogbo Chieftaincy had become stale and extinct on their assertion that Laro had no male child; or alternatively that Laro and Matanmi could not be recognised as separate ruling houses when both were one and the same dynasty. He submitted the 1st – 4th respondents herein applied to be joined as defendants in the suit in order to prevent Laro ruling house from being expunged from the Ataoja of Osogbo Chieftaincy Declaration.
Learned counsel submitted that, although the judgment formed part of the facts relied upon by the 1st – 4th Respondents to show that Laro had male children, by paragraphs 13, 14, 15, 16, 17, 18, of their amended statement of claim they also traced their genealogy and descent from Laro and gave credible and convincing evidence in support of the facts. He submitted that nothing in law precludes the 1st – 4th Respondents from taking advantage of the decision in suit No HOS/41/82 which confirmed that Laro had male children, notwithstanding that they did not file a counter-claim in that suit. He submitted that it is perfectly legitimate for them as parties in the suit to rely on the decision therein and use it as a foundation for the present suit to determine the male children of Laro. In support of this submission he referred to: Archibong v. Ita (2004) 2 SCM 73 @ 100; Adomba v. Odiese (1990) 1 NWLR (125) 165 @ 178 – 179 E – A and Ajuwon v. Adeoti (1990) 2 NWLR (132) 271 @ 296 – 297 H. A. He submitted that since the composition of Laro ruling house was not looked into in that suit, it was perfectly in order for the trial court in the present suit to look into it, being one of the major issues brought before the court for adjudication. He argued that if the previous suit did not recognize the 1st – 4th Respondents as belonging to Laro ruling house, it was perfectly legitimate for the trial court to decide on the issue and identify the families belonging to Laro ruling house. He submitted that the learned trial judge adequately considered the oral evidence tendered by the 1st – 4th Respondents along with the decision in Exhibit A before granting the reliefs sought. He submitted further that notwithstanding the fact that the plaintiffs’ case in suit no HOS/41/82 was dismissed, the 9th – 12th defendants (1st – 4th respondents) were entitled to take advantage of the finding of fact, which was in their favour. He argued that even if Exhibit A was not pleaded as estoppel, the judgment is a relevant fact which must be pleaded as conclusive proof of the facts which it decided, particularly the issue of Laro having male children whose identity is an issue in this suit. It was further submitted that the judgment could also operate as an estoppel against the appellant. He referred to Sections 54 and 55 of the Evidence Act, and the case of: Ukaegbu v. Ugoji (1991) 6 NWLR (196) 127 @ 157 – 158. He submitted that in the present appeal, the fact of Laro having male children one of whom was Lokungboye (Olokungboye) decided in Exhibit A and pleaded by the Plaintiffs/Respondents in their further Amended Statement of claim having been denied by the appellant in his statement of defence, became a relevant fact that must be proved.
On reliance on a previous judgment as a shield and not as a sword in subsequent proceedings, learned counsel submitted that the modern trend in recent judicial decisions is that a Plaintiff can also validly employ a plea of estoppels as a sword. He referred to: Chinwendu v. Mbamali & Anor. (1980) 3 – 4 SC @ page 48 per Aniagolu JSC.
Learned counsel for the 6th respondent supported the view that the issue as to whether Laro had male children or not had been settled long ago in suit No.HOS/41/82 against which decision there was no appeal.
The law is firmly settled that in a civil suit, the burden of proof lies on the person against whom the judgment of the court would be given if no evidence were led on either side. However the burden of proof of particular facts in a civil suit is not static. The initial burden is on the person who asserts a particular fact. Once that fact is established to the satisfaction of the court, the burden shifts to the other party and so on until all the issues in controversy between the parties have been disposed of. See Sections 131, 132, 133 and 134 of the Evidence Act 2011 (as amended).
In line with the general burden of proof as stated above, it is equally trite that in a claim for a declaratory relief a claimant must succeed on the strength of his own case and not on the weakness of the defence unless there is an aspect of the defendant’s case that supports his case. See: Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR (7) 393 @ 429 D – E; Kodilinye v. Odu (1936) 2 WACA 336 @ 337; Onwugbufor v. Okoye (1996) 1 NWLR (424) 252; Shittu v. Fashawe (2005) 14 NWLR (946) 671. The instant case arose as a result of agitations by the 1st – 4th respondents to enforce their right to vie for the Ataoja Chieftaincy of Osogbo as members and male descendants of the Laro Ruling House, one of the four ruling houses eligible to produce candidates when a vacancy arises. They therefore had the burden of proving to the satisfaction of the court that they and their lineage and no other persons were entitled to present candidates for the said Chieftaincy from Laro Ruling House. From the pleading of the parties and the evidence led before the trial court it is not in dispute that by virtue of a 1981 Chieftaincy Declaration there are four ruling houses eligible to present candidates for the Ataoja of Osogbo Chieftaincy, namely Matanmi, Laro, Lahanmi Oyipi and Lajomo Ruling Houses.
The issue in contention between the parties herein is the composition of the Laro Ruling House. The 1st – 4th respondents contend that Omumuyiwa, Olokungboye, lakanye and Ijaoye represent the four branches within the Laro Ruling House. I agree with learned counsel for the 1st – 4th respondents that of the six reliefs claimed in paragraph 41 of their further amended statement of claim, reliefs 1 – 4 are the principal reliefs while reliefs 5 and 6 are ancillary. This is because while issues 1 and 2 seek a declaration that Omumuyiwa, Olokungboye, Lakanye and Ijaoye were the male children of Laro and that the 1st – 4th respondents are their male descendants and therefore entitled to membership of the Laro Ruling House, reliefs 3 and 4 seek declarations specifically excluding the descendants of Orisarayi (appellant’s ancestor) and Oluwin Ajibulu (5th respondent’s ancestor) from membership of the Laro Ruling House. The burden was therefore on the 1st – 4th respondents to establish by preponderance of evidence that Laro was their ancestor, that he had male children and that they are therefore members of Laro Ruling House of Ataoja Chieftaincy and entitled to present candidates to fill a vacancy in the chieftaincy when it is the turn of Laro Ruling House to do so.
Although he did not file a counter claim, the appellant’s defence at the court below was that Omumuyiwa, Olokungboye, Lakanye and Ijaoye through whom the 1st – 4th respondents trace their roots were not Laro’s children. That their father came from Oyo to establish the art of masquerading in Osogbo. The masquerade he established is called Opeleba. There are two other factors, which the appellant claims proves that the 1st – 4th respondents are not descendants of Laro: (i) that the 1st – 4th respondents carry the Opeleba masquerade whereas royal princes of Osogbo are forbidden to carry masquerades; and (ii) that the 1st – 4th respondents do not have traditional ties or share traditional rites with other families known to be related to Laro. His case was also that Laro had only one male child named Orisarayi who was his ancestor, and a daughter named Abogbe. It is pertinent to note that the parties all agree that Laro had one female child called Abogbe.
In order to succeed in their claims, the 1st – 4th respondents were therefore required to establish the truth of their assertion upon a preponderance of evidence. In an attempt to do so they called six witnesses. PW1, PW3, PW4 and PW5 testified on subpoena. PW1 tendered the judgment of the High Court of Osogbo in suit No.HOS/41/82: Raji Gboyeola Kolawole & Ors. v. Oba Iyiola Oyewale Matanmi & Ors. delivered on 21/1/1988 per Adio, J (Exhibit A) and a certified copy of the Statement of Defence filed by the 15th defendant, Olaniyi Oyeniyi in the same proceedings (Exhibit B). PW3 tendered a certified true copy of the 1981 Ataoja of Osogbo Chieftaincy Declaration (Exhibit C). PW4, Alhaji Adeleke Oduola Ibiloye testified as a member of Layiokun family, which is a branch of Lajomo Ruling house, one of the ruling houses entitled to present candidates for Ataoja chieftaincy. Lajomo was said to be Laro’s brother. PW5 tendered certified true copies of the memorandum submitted on behalf of Omumuyiwa and Olokungboye sections of Laro Ruling House (Exhibit D) and the memorandum submitted on behalf of the Laro/Ajibulu family (Exhibit E) before various committees in respect of the Chieftaincy Declaration. PW2, Buraimoh Adeoti Olabiyi is a nephew of the 1st respondent and belongs to the Omumuyiwa branch of the family. The 3rd plaintiff/respondent testified on his own behalf. He belongs to Olokungboye branch of the family. PW2, PW4 and the 3rd respondent all testified in support of their pleading. A summary of the evidence of PW2 and PW4 is that Larooye (shortened to Laro), a hunter was the first Ataoja of Osogbo and that he migrated from Ipole, a town in Ijeshaland on Iragbiji Road and founded Osogbo. He was accompanied by a friend named Olutimehin. He also had a brother named Lajomo. The father of Laro and Lajomo was said to be Laege. That the Ataoja chieftaincy is a recognized chieftaincy with a Chieftaincy Declaration. The 1981 Ataoja Chieftaincy Declaration was admitted in evidence as Exhibit C as being the current declaration. They gave evidence of the genealogy of the four male branches of Laro Ruling House entitled to the Ataoja Chieftaincy represented by Laro’s sons and their descendants. They traced the descendants of each of Laro’s four sons down to the 1st – 4th respondents.
They testified that the suit in Exhibit A was instituted on behalf of the Sogbo branch of Lajomo Ruling House seeking the scrapping of the Laro Ruling House on the ground that Laro’s line had become extinct because he had no male children. They testified that representatives of Laro Ruling House applied to be joined in the suit and accordingly became the 9th – 12th defendants. The 1st respondent herein was one of those joined in the suit and he gave evidence on behalf of the Laro Ruling House. It was part of the 1st – 4th respondent’s case at the court below that there was a female line of descendants from Laro’s only daughter named Abogbe who also became Ataoja. It was their testimony that Abogbe married one Ayejin from Offa. Her son Matanmi became an Ataoja. Matanmi’s son, Olugbeja also became an Ataoja while the 18th Ataola who was reigning at the time PW2 testified in 1998 was the grandson of Olugbeja. PW4 who testified on subpoena confirmed that the 1st – 4th respondents are descendants of Omumuyiwa, Olokungboye, Lakanye and Ijaoye, the sons of Laro. He admitted under cross-examination that none of Laro’s sons or their descendants ever became Ataoja and that the Ataoja at the time he testified was the third of Abogbe’s descendants to become Ataoja. He testified that Laro and Lajomo were brothers and that four of Lajomo’s descendants had become Ataoja. He testified that Lajomo begat Ladunhan, Sogbo and Obode. Obode was female.
According to his testimony Lajomo was the first Ataoja. Some of Sogbo’s descendants who reigned as Ataoja were Aina Serebu, Kolawole and Adenle. The witness is a descendant of Medunhan, one of Lajomo’s children. He maintained that the appellant and the 5th respondent are not Laro’s descendants.
The 3rd respondent testified in a similar vein to PW2 and PW4. He stated that Laro’s father was called Olaege.
The 5th respondent (as 2nd defendant) testified that he belongs to Ajibulu family of Osogbo and that Ajibulu was Laro’s brother. He also testified that the 1st – 4th respondents are not descendants of Laro because Laro had only one child, a female named Abogbe. He claimed that their ancestor was one of Laro’s servants. He did not mention the name of the servant. He stated that Abogbe married one Ayejin and had a son, Matanmi, who became Ataoja. He testified that the incumbent Ataoja was one of the descendants of Matanmi. He testified further that Ajibulu, his ancestor was Laro’s brother. He claimed that although Laro was a previous Ataoja, whenever there was a vacancy in the stool, it was Ajibulu’s descendants who were entitled to fill it.
DW1, Bola Adesina, who stated that 2nd defendant (5th respondent herein) is his uncle, gave a slightly different account of the family history. He testified that Lasinade otherwise known as Owa Olaege migrated from Ipo-Ile (now in Obokun Local Government) and settled at Osogbo. He was accompanied by his sons, Lajomo and Ajibulu and his in-law, Olutimehin. He was also accompanied by his two wives, Adesoro Laseji and Sieade. According to him before he left Ipole, Lasinade installed his eldest son Laro as Owa of Ipole. He testified that while Adesoro begat Laro, Tanlola (female), Oyenibi and Oni Anibijuwon, his other wife, Sieade begat Lajomo and Ladokun. He testified that when Lasinade died, Laro came from Ipo-Ile to succeed his father as Ataoja and thereafter Ajibulu succeeded him. He testified that Laro had only female children and that only one of them, Abogbe survived him. He testified that he is a descendant of Ajibulu and maintained that the 1st – 4th respondents’ families are serfs to members of the Laro family. Under cross-examination he admitted that Ajibulu was not a son of Laro but his younger brother. He also admitted that Orisarayi through whom the Appellant traces his ancestry was not a son of Laro and that Orisarayi was never an Ataoja of Osogbo.
DW2, Lasisi Oyetunji stated that Omumuyiwa, Olokungboye, Lakanye and Ijaoye are members of Opeleba family but they do not belong to Laro Ruling House. He stated that they carry the Opeleba masquerade whereas by tradition members of the ruling houses in Osogbo do not carry masquerades. To illustrate the fact that the 1st – 4th respondents do not belong to any ruling house in Osogbo he testified that it is customary for members of ruling houses to exchange burial cloths with one another when a member of the family dies. He stated that the 1st – 4th respondents’ families do not participate in these rites. Under cross-examination he maintained that Laro had only one female child named Abogbe. He stated that he is a member of the Matanmi Ruling House and that Laro is their common ancestor. He stated that Laro was the first Ataoja of Osogbo. He also maintained that Orisarayi was not one of Laro’s sons. He denied the suggestion that Laro was the common ancestor of the Omumuyiwa, Olokungboye, Lakanye and Ijaoye families.
On the other hand, the appellant Oyetunji Olalere in his own testimony stated that Laro was the founder and first Ataoja of Osogbo and that he had two children, one male the other female. The male child was called Orisarayi while the female was called Abogbe. He testified that his ancestor was Orisarayi. He essentially confirmed the history of Ataojas who had reigned from the time of Laro to the present day. He maintained that the 1st – 4th respondents are not related to any ruling house in Osogbo as they are masquerade carriers and do not participate in any of the traditional rites and ceremonies involving the other families. Under cross-examination he admitted being aware of Exhibit A but said his family did not apply to be joined because they were not sued. He however admitted that he testified before the Ademola Chieftaincy Commission.
In order to succeed in their claims before the lower court the 1st – 4th respondents had a duty to establish on a preponderance of evidence that Laro was their ancestor, that he had male children and that the said male children are members of the Laro Ruling House of Oshogbo, one of the ruling houses entitled to present candidates to fill the stool of Ataoja of Osogbo. Before considering the use to which the 1st – 4th respondents put the judgment in Exhibit A, it is necessary to consider whether they made out a prima facie case having regard to their pleadings and the evidence adduced by their witnesses. After considering the evidence of the parties, the learned trial Judge found as follows at page 94 lines 8 – 31 as follows:
“The 3rd plaintiff has testified and traced his lineage to Lokungboye, who was specifically found in the judgment (Exhibit A) to be one of the male children of Laro. He has identified the 1st plaintiff as a descendant of Omumuyiwa; the 2nd plaintiff as a descendant of Ijaoye. He stated that the ancestors of the three other plaintiffs were the three other male children of Laro. He was supported by the 2nd PW (who identified himself as a descendant of Omumuyiwa) and the 4th PW (who identified himself as a member of Lajomo Ruling House). The defendants have made some force of the allegation that the plaintiffs are masquerade worshippers and that princes in Osogbo are not masquerade worshippers. But it turned out under cross-examination that only the compound called Opelaba worshipped by the Ataoja and that there are other masquerades with which some other royal families in Osogbo are identified. There was also the evidence of the 2nd DW, (sic) was claimed to be a member of Matanmi ruling house and alleged that the plaintiffs are not related to Laro because they do not perform any traditional rites with the members of the Matanmi ruling house. It seems to me that the evidence adduced by the plaintiffs are (sic) more coherent and credible than that adduced by the defendants. It is therefore my finding that Omumuyiwa, Olokungboye, Lakanye and Ijaoye were the male children of Laro and that the plaintiffs and all the male children of Omumuyiwa, Olokungboye, Lakanye and Ijaoye constitute the Laro Ruling House of the Ataoja of Osogbo chieftaincy. ”
With regard to the testimony in support of the appellant’s case (as 1st defendant at the court below), His Lordship held from page 94 line 32 to page 95 line 16 thus:
“The next issue is whether the members of the 1st defendant’s family who are descendants of Orisarayi are entitled to be part of Laro ruling house. The case of the 1st defendant was that Orisarayi was the only male child of Laro, apart from the female child, Abogbe. … As it turned out, the 1st defendant has made a woeful showing in the present suit as (apart from his own bare assertion) every other person who testified before me on the point (including his own witness, the 2nd DW) maintained that Orisarayi was not a son of Laro. In the light of the overwhelming evidence before the court to that effect, I cannot but hold and so hold that Orisarayi was not a son of Laro. And that being the case, it follows that the descendants of Orisarayi are not entitled to be part of Laro Ruling house.”
My first observation is that the above conclusions of the learned trial Judge show that His Lordship considered the entire evidence adduced before him as a whole and did not rely solely on Exhibit A to make his findings. Learned counsel for the appellant has argued quite forcefully that the 1st – 4th respondents failed to call any evidence to prove that they have traditional ties with any of the other families acknowledged to be related to Laro. With due respect to learned counsel, the duty on the 1st – 4th respondents was to make out their case as contained in their pleadings. I am in agreement with the learned trial Judge that they discharged the onus on them. They traced their ancestry from Laro through his four male children down to the present parties. Under cross-examination the appellant agreed that each of the 1st – 4th respondents are from Omumuyiwa, Olokungboye, Lakanye and Ijaoye families as they claim. However he claimed that they were masquerade worshippers who came from Oyo (see page 48 lines 14 – 77 of the record). He gave no evidence to substantiate this assertion. Who was the father of Omumuyiwa, Olokungboib; Lakanye and Ijaoye if not Laro? Where in Oyo did he come from? He challenged the evidence of PW4 on the ground that he failed to link the 1st – 4th respondents to Laro and failed to testify as to traditional link between them and other families. I have examined the record and find that at page 36 lines 5 – 8 and 13 – 14 thereof the witness clearly linked them to Laro when he testified as follows:
“It is only the 1st plaintiff that I know as a member of Omumuyiwa family. The 2nd plaintiff belongs to Lakanye family. The 3rd plaintiff is from Lokunboye family. The 4th plaintiff is from Ijaoye family. … The children of Laro were Omumuyiwa, Olokungboye Lakanye, Ijaoye and Abogbe.”
Although heavy weather was made of the issue of participation in traditional ceremonies as proof of their kinship with members of Laro’s family, the onus was on the appellant to plead any specific ceremony that his family participated in and from which the 1st – 4th respondents’ families were excluded on account of not being members of one of the ruling houses. Parties are bound by their pleadings. It is not open to learned counsel to supply missing links in the course of final addresses or in his brief of argument. The nature of the Osun festival, which PW4 stated is one of the festivals that the 1st – 4th respondents’ families participate in along with his own family or the type of role to be played during chieftaincy installations by family members was neither pleaded nor put to PW4 under cross-examination. In so far as the appellant was unable to discredit the evidence of PW4 in this regard, the learned trial Judge was entitled to act upon it. On the other hand, there was no evidence beyond the ipse dixit of the appellant to prove that members of his family regular participate in meetings of all the ruling houses held in the palace and contribute clothes for the burial of members of other ruling houses. No witness was called from any of the other ruling houses to substantiate this assertion. No minutes of meetings were tendered. He testified that members of his family own parcels of land granted to the ruling houses by Laro. No evidence was led to support this fact.
Another major contention of the appellant was that princes of Osogbo do not carry masquerades and that since the 1st – 4th respondents’ families carry the Opeleba masquerade it is sufficient proof that they cannot be members of the Laro ruling house. Learned counsel for the appellant argued that the evidence of PW4 amounted to an admission against interest because he admitted under cross-examination that the Opeleba masquerade is the exclusive deity of the family even though he had stated during his evidence in chief that Princes in Osogbo do not carry masquerades. Before addressing this submission it is necessary to reproduce the evidence of PW4 under cross-examination at page 36 lines 27 – 30 of the record. He stated thus:
“Generally the princes in Osogbo do not carry masquerades. But members of the plaintiffs’ family, though they are princes carry, Opeleba masquerade because it is their exclusive family deity.” (Emphasis mine)
An admission against interest in order to be valid in favour of an adverse party must not only vindicate or reflect the material evidence before the court; it must also vindicate and reflect the legal position. Where an admission against interest does not reflect the legal position it will be regarded for all intents and purposes as superfluous. And a court of law is entitled not to assign any probative value to it. See: Odutola v. Papersack (Nig.) Ltd. (2006) 18 NWLR (1012) 470 @ 494 C – D; Abioye v. Lawal (2007) ALL FWLR (350) 1376 @ 1385 D – E.
A careful examination of this evidence extracted from PW4 under cross-examination shows clearly that his evidence was to the effect that while it is generally true that princes in Osogbo do not carry masquerades, there is an exception in the case of the 1st – 4th respondents’ family. He acknowledged that they are princes but have the Opeleba masquerade, which is exclusive to their family. My understanding of his evidence is that there are exceptions to the general rule. The 5th defendant (5th respondent herein) confirmed this position when he stated under cross-examination at page 42 lines 13 – 20 of the record:
“I know a masquerade called Arenugbongi. It is Gbaemu family masquerade. Gbaemu is part of Lajomo ruling house. I have heard of Ogala masquerade. It belongs to Weso family which is part of Lakanmi Oyipi ruling house. I know that Ifa worshippers take Oluawo chieftaincy title. Oba Adenle I was from Oluawo’s compound in Osogbo. Oluawo family is part of Lajomo ruling house.”
In light of the above, I am unable to agree with learned counsel to the appellant that the evidence of PW4 was an admission against the 1st – 4th respondents’ interest.
On alleged contradictions in the evidence of PW2 and the 3rd respondent regarding the founding of Osogbo and whether Laro or Lajomo was the first Ataoja, the law is settled that it is only those contradictions that are material and result in a miscarriage of justice that would warrant a rejection of the evidence. See: Egesimba v. Onuzuruike (2002) 9 SCNJ 46; Nsirim v. Nsirim (2002) 2 SCNJ 46; Ezamba v. Ibeneme & Anor. (2004) 7 SCNJ 136; Nwokoro & Ors. v. Onuma & Ors. (1999) 9 SCNJ 63; Ikemson v. The State (1989) 3 NWLR (110) 455 @ 474 H.
In the instant case, I agree with the learned trial Judge when he stated thus at page 91 lines 3 – 9 of the record:
“There was some dispute as to whether Laro or Lasinade Olaege was the first Ataoja of Osogbo. I do not think that this is a material issue at all since it is common ground between the parties that the only ruling house, which is the subject matter of this suit is that identified with the name of Laro. The important issue therefore is as to how the parties to this suit could establish their respective claims to membership of Laro ruling house.”
The various findings highlighted above show that the learned trial Judge considered other evidence outside Exhibit A in reaching his conclusions. His conclusions are borne out by the record and are not shown to be perverse. I agree with him that the evidence led by the 1st – 4th respondents was more consistent and credible than the evidence led by the appellant and his witnesses.
The 5th respondent, who did not file any brief in this appeal but aligned himself with the appellant stated in his evidence in chief that he belongs to Ajibulu Ruling House and that Ajibulu was Laro’s brother’ DW1, Bola Adesina confirmed this fact at page 44 lines 24 – 28 of the record. The learned trial Judge correctly held, in my view, that members of the 5th respondents family whose ancestor, Oluwin Ajibulu, was alleged to be Laro’s brother are not entifled to be part of Laro Ruling house, particularly as it was shown that Lajomo, Laro’s brother had his own ruling house. This same witness testified that Orisarayi, the appellants ancestor was not Laro’s son.
In addition to the conclusions referred to above the learned trial Judge found that the judgment in Exhibit A further fortified the case of the 1st – 4th respondents. The issue to be resolved at this stage is whether the 1st – 4th respondents were entitled to rely on that judgment in support of their case. This brings us to issue 2. I have earlier summarised the submissions of learned counsel in respect of this issue. The suit in Exhibit ‘A’ (HOS/41/82) was instituted by members of Sogbo family against inter alia, the representatives of (i) Adedunhan family (5th and – 6th defendants); (ii) Chief Jimoh Bolarinwa, Babakekere Ataoja of Osogbo (7th defendant); (iii) Matanmi family (8th defendant); (iv) Laro family (9th – 12th defendants who applied to be joined); (v) Lajomo ruling house (13th and 14th defendants); and (vi) Laro Ajibulu family (15th defendant). One of the members of the Laro ruling house who sought to join in the suit as 9th – 12th defendants is the present 1st respondent. He was joined as the 9th defendant. Learned counsel for the 13th and 14th defendants representing Lajomo ruling house and learned counsel for the 15th defendant (the present 5th respondent) applied that their names be struck out of the suit on the ground that the plaintiffs did not join issues with them on any point. Their names were accordingly struck out.
Among the reliefs sought by the plaintiffs in Exhibit A were the following declarations:
“1 (a) Declaration that the Declaration of the customary law regulating the selection of candidates to the Ataoja of Osogbo Chieftaincy made on 26th January, 1981 by the chieftaincy committee of which the 1st defendant is Chairman and the 2nd defendant is Secretary approved by the 3rd defendant on 12th March, 1981 and registered by or on behalf of the 4th defendant on the 13th of March, 1981 is defective, illegal, null and void in that it recognizes the Laro Ruling house whose claim has become stale and extinct.
OR ALTERNATIVELY
(b) A declaration that the 1981 Chieftaincy Declaration of Customary Law relating to the selection of candidate to the Ataoja of Osogbo chieftaincy is contrary to the custom of Osogbo in that it recognizes Laro and Matanmi as separate ruling houses even when they are both one and the same dynasty and is to that extent null and void and of no effect.” (Underlining mine for emphasis).
The basis of the plaintiffs’ claim that Laro Ruling House had become extinct was the contention that Laro had no male child. The learned trial Judge dismissed the plaintiffs’ claims and found and held inter alia, that Laro had male children, among whom was Lokungboye, who is alleged to be the ancestor of the 3rd respondent. As noted in the summary of the submissions of learned counsel for the appellant earlier in the judgment, it was his contention that Exhibit A could not be relied upon by the plaintiffs before the lower court as the composition of the Laro ruling house was not the issue for determination in that suit; that the appellant was not a party thereto; that they did not file a counter claim in the suit and that the judgment did not recognize the 1st – 4th respondents’ families as belonging to Laro Ruling House of Osogbo.
The 1st – 4th respondents pleaded Exhibit A in paragraphs 19, 20 and 25 of their further amended statement of claim at page 6 of the record as follows:
19. “The plaintiffs say that the fact that Laro had male children during his lifetime was one of the issues decided by the Osogbo High Court in suit No.HOS/41/82 – Raji Gboyeola Kolawole & Ors. v. Oba Iyiola Oyewale Matanmi & Ors. On 21/1/88. The judgment in the suit is hereby pleaded and will be relied upon at the trial of this suit. There has not been any appeal against the judgment.
20. The plaintiffs say that the Laro family was represented as defendants, joined by order of the court by Alhaji Ashiru Awoyemi (1st plaintiff), Tiamiyu Oyewale Lakanye, Tijani Olopade Adebisi and Owoade Ijaoye. They were 9th to 12th defendants in the suit mentioned in paragraph 20.
25. The plaintiffs aver that at the trial of suit No.HOS/41/82 which was eventually decided on 21/1/88, the 1st defendant’s family did not join to defend the action in spite of the reliefs claimed therein against Laro ruling house. This was because Lahanmi Oyipi Ruling House was not affected by the suit” (Emphasis mine).
The first issue to be resolved is whether the 1st – 4th respondents sought to rely on Exhibit A as estoppel per rem judicatam or issue estoppel. In the case of Ukaegbu v. Ugoji (1991) 6 NWLR (196) 127 @ 157 C – D, His Lordship, Karibi-Whyte, JSC quoted the definition of estoppel as explained by Lord Denning MR in the case of Mooroate Mercantile Co. Ltd. v. Twitchings (1976) 1 QB 225 thus:
“Estoppel is not a rule of Evidence. It is not a cause of action. It is a principle of justice and equity. It comes to this: When a man by his words or conduct, led another to believe in a particular state of affairs, he will not be allowed to go back on it when it would be unjust or inequitable for him to do so.”
His Lordship, Karibi-Whyte JSC expressed the view that there is one doctrine of estoppel with many ways of exercising the right under the rule. Some of these include estoppel per rem judicatam; estoppel by deed, estoppel by representation and promissory estoppel. In the case of Abubakar v. B. O. & A. P. Ltd. (2007) 18 NWLR (1066) 319 at 373, His Lordship, Tobi, JSC defined res judicata and the circumstances when it applies thus:
“The expression, res judicata means “a thing adjudicated”. It came out from the original expression, res judicata. The aim of the principle is to put to an end, a matter that was previously litigated by a competent court of law. It is to avoid duplicity or multiplicity of litigation. The principle is designed to save so much litigation.
The essence of the principle is that a previous judgment or a judgment previously handed down will constitute a bar to a present action if certain conditions are satisfied.
The conditions are as follows:
(1) the parties in the previous action and the present or current action must be the same;
(2) the subject matter must be the same;
(3) the issues must be the same;
(4) the court that decided previous action must be a court of competent jurisdiction”.
The essence of the principle is that there must be an end to litigation and a man should not be troubled twice for one and the same cause. See: Udo v. Obot (1989) 1 NWLR (95) 59 @ 71 F; U.B.A. Plc & Anor. v. Ugoenyi & Anor. (2011) LPELR-CA/K/152/2005; Igwego v. Ezeugo (1992) 6 NWLR (249) 561. A plea of estoppel per rem judicatam is normally used as a shield for the protection of the defendant and not as a sword. It is generally pleaded by the defendant as a bar to subsequent proceedings by the plaintiff on the same issue and between the same parties or their privies. There are however circumstances in which the plea can validly be employed as a sword by a plaintiff. The view of Aniagolu, JSC expressed in Chinwendu v. Mbamali & Anor. (1980) 3 – 4 SC 31 @ 48 was quoted with approval by Karibi-Whyte, JSC in Ukaegbu v. Ugoji (supra) at 158 E – F thus:
“It has been a long established practice in our courts in this country for a defendant to plead a judgment given against a plaintiff where the plaintiff relitigates the subject matter against him, but the practice is not often employed by a plaintiff against a defendant who raises issues already decided upon in a previous litigation. Nothing however prevents a plaintiff from raising in the original or further pleadings, estoppel against a defendant who makes assertions in his pleadings contrary to what has been solemnly declared in a previous judgment against him,” (Emphasis by Karibi-Whyte JSC) Egbe v. Adefarasin (1987) 1 NWLR (47) 1 @ 21 referred to.
See also per Uwaifo, JCA in Ibezim v. Ndulue (1992) 1 NWLR (216) 153 @ 171 B – E:
“At page 166 Akpata, JSC (in Ukaegbu v. Ugoji (supra) observed that it is necessary to recognise the fact that the scope of the doctrine of estoppel, of which res judicata is a part, is wide and varied and has continued to expand virtually from one decision to another. In its growth it breeds a myriad of problems which are however not insurmountable, because the doctrine, whether as a rule of evidence or a rule of substantive law is founded on the principle of Justice.” The learned Justice however preferred to express the view that a previous judgment in appropriate circumstances may be pleaded by a plaintiff as a relevant fact, or as issue estoppel, in which case it becomes a weapon of attack…
The position therefore is that a plaintiff may plead and adduce in evidence a judgment to estop a defendant from contesting what had been established by or in that judgment against him, in the course of which the plaintiff may be able to obtain the relief he seeks.”
Issue estoppel occurs where a party is precluded from contesting the contrary of any precise point which has been distinctly put in issue and determined with certainly. See: Bwacha v. Ikenya (2011) 3 NWLR (1235) 610 @ 625 B – C & 633 A – B; Ladega v. Durosinmi (1978) NSCC 175. From the pleadings of the 1st – 4th respondents reproduced earlier, I am of the view that the judgment in Exhibit A was pleaded as issue estoppel. It was held in the case of Bwacha v. Ikenya (supra) at 633 B – D that the elements necessary for determining whether issue estoppel is applicable are:
a. whether the parties in the previous proceedings and the current proceedings are the same;
b. whether the issues are the same;
c. whether the issues are material to the cause of action in the previous and in the latter case; and
d. whether the issue has been resolved in the previous case.
The cases of Ikeni v. Efamo (2001) 10 NWLR (720) 1 and Ebba v. Ogodo (2000) 10 NWLR (675) 387 were referred to.
It is not in dispute that the 9th – 12th defendant in Exhibit A represented the families of the 1st – 4th respondents herein. Also the 15th defendant represented the present 5th respondent’s family, although his name was subsequently struck out at the address stage. The appellant was not a party to the proceedings. He however admitted under cross-examination that he was aware of the suit but did not apply to be made a party because he was not sued. The main issue in contention in the instant suit was whether Laro who the 1st – 4th respondents claim to be their ancestors had male children, whether their ancestors, Omumuyiwa, Olokungboye, Lakanye and Ijaoye were the said male children and whether by reason of their lineage traced to these persons they are entitled to present candidates for the Ataoja of Osogbo chieftaincy. In suit no. HOS/41/81, as shown earlier in this judgment, one of the claims of the plaintiffs therein was that the 1981 Ataoja of Osogbo chieftaincy was wrong to recognize Laro Ruling house as one of the ruling houses to produce an Ataoja of Osogbo on the ground that the line had become extinct. The basis of their argument was that Laro had no male child. The court found that Laro had male children including Lokungboye. Lokungboye is the ancestor of the 3rd respondent. That particular issue was resolved with finality. The judgment was not appealed against. I am of the considered view that the issue as to whether Laro had any male children was material to the cause of action in Exhibit A as well as the suit that gave rise to this appeal.
It is true that the appellant was not a party to Exhibit A. However, as correctly stated by the learned trial Judge at page 93 of the record, the doctrine of issue estoppel applies with equal validity to persons who were aware of the pendency of the previous suit and whose interests were likely to be affected by the outcome but refused or neglected to be joined as parties. This view finds support in the Supreme Court decision in: Ndulue v. Ibezim (2002) 5 SCNJ 247 @ 262. See also: Okukuje v. Akwido (2001) 3 NWLR (700) 261. I agree with the learned trial Judge that it was a fatal error on the part of the appellant’s family, who claim to be descendants of Orisarayi, allegedly Laro’s only son and who were aware of the suit in Exhibit A seeking a declaration that Laro Ruling house was extinct because he had no male child, to have stood by and done nothing while the case was being fought by others. Even though the 1st – 4th respondents did not counter claim in the suit, they successfully defended their families’ interest on the subject of Laro’s male children and were entitled to rely on the decision reached therein as a relevant fact in support of their claim before the lower court. See Igwego v. Ezeugo (supra). I am of the view that the learned trial Judge was entitled to rely on the judgment in addition to other evidence adduced in making his findings in the suit before him. In any even, it is my considered view that there was sufficient evidence outside Exhibit A upon which the learned trial Judge would have arrived at the same conclusion.
I therefore resolve issues 1 and 2 against the appellant and in favour of the 1st – 4th and 6th respondents. The resolution of issue 2 has taken care of issue 3. It is also resolved against the appellant.
In conclusion I find no merit in this appeal. It is hereby dismissed. The judgment of the High Court of Osun State, Osogbo Judicial Division in suit No.HOS/166/94 delivered on 20/1/2000 is upheld. Costs are assessed at N50,000.00 in favour of the 1st – 4th respondents against the appellant.
CHIMA CENTUS NWEZE, J.C.A.: I had the privilege of reading the draft of the leading judgment which my indefatigable Lord, Kekere-Ekun JCA, just delivered now. I am persuaded by my Lord’s rigorous reasoning and the cogency of his conclusion.
This contribution is only limited to the lower court’s finding with regard to exhibit ‘A.’ Indubitably, the appellant was not a party to the said exhibit ‘A’. At page 93, however, the court opined that the doctrine of issue estoppel applies with equal validity to persons who were aware of the pendency of the previous suit and whose interests were likely to be affected by the outcome but refused or neglected to be joined as parties.
In my humble view, the lower court was, actually, referring to the species of estoppel by conduct known as “the doctrine of estoppel by standing by.” This doctrine would appear to have been first stated by Lord Penzance in Wytcherley v. Andrews (1871) L.R. 2 P and M 327, 328 in these words:
If a person, knowing what was passing, was content to stand by and see his battle fought by somebody else in the same interest, he should be bound by the result and not be allowed to re-open the case.
The doctrine is as much a principle of English Law as it is a principle of Nigerian Law. It has been applied in many cases, Duru v. Onwumelu (2001) 18 NWLR (pt.746) 672,695; Obodo v. Ogba (1988) 1 QLRN 175; Onwu v. Nka (1996) 7 SCNJ 240. Indeed, the courts have even extrapolated from this doctrine that it even looks like an abuse of the process of the court if a person, with full knowledge of the pendency of a suit over a property he claims to be his, does nothing but merely looks on only to commence another proceeding in court over the same issue and asking the court to make another pronouncement on the subject matter, Udeorah v. Nwakonoby (2003) 4 NWLR (pt.811) 643. Such a party is, thus, estopped because he omitted to intervene in the pending action affecting his interest, although he was not a party thereto, Bello v. Fayose (1999) 1 NWLR (pt.627) 510; Ngwu v. Onuigbo (1999) 13 NWLR (pt.636) 512. So, where a person is content to be a spectator rather than a gladiator; an onlooker rather than a player, the doctrine would apply, Anyaoke v. Adi (1986) 3 NWLR (pt.31) 73; Okpala v. Ibeme (1989) 1 NWLR (pt.162) 208; Udeorah v. Nwakonobi (supra).
It is for the above reasons and the more detailed reasons in the leading judgment, that I, too, shall enter an order dismissing this appeal. I abide by the consequential orders in the leading judgment.
CHINWE EUGENE IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, K. M. O. KEKERE-EKUN J.C.A. I agree entirely with his reasoning and conclusions. The learned trial Judge was right in relying on the earlier suit (HOS/41/82) which established that Laro had male children including one Lokungboye as res judicata against the claim of the Appellants. As very ably set out in the lead judgment, all the conditions for issue estoppel to apply were satisfied. In Osunrinde & Ors. v. Mutairu Togun Ajamogun & Ors. (1992) NWLR (Pt.246) 156 Ogundare, JSC observed:
“… Where an issue has earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in these circumstances issue estoppel arises.”
Since it was settled in the case that Laro had male children including Lotungboye, it was not open to the appellant to canvass that Laro had only one male child Orisarayi. For this and the very detailed and well set out reasons in the lead judgment, I also find no merit in this appeal. It is accordingly dismissed. I abide by the consequential orders in the lead judgment including the order as to costs.
Appearances
M. O. Okediya Esq.For Appellant
AND
Ayo Laogun Esq. with Kayode Adelaja Esq. – For the 1st – 4th Respondents.
W. A. Idowu Esq. Esq. – For the 5th Respondent.
Mrs. Kola Akinrujomu, Direction/Administrator & Public Trustee, Ministry of Justice, Osun State – For the 6th RespondentFor Respondent
