PASTOR I. F. OLANIYAN & ORS v. MR. E.O. OYEWOLE & ORS
(2010)LCN/4103(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 8th day of December, 2010
CA/IL/30/2010
RATIO
REPLY-BRIEF: PURPOSE OF A REPLY-BRIEF
The purpose for which Reply-Briefs are meant is now well known and that is to answer or respond to new or fresh points raised in a respondent’s brief. It is not an avenue through which or by which an appellant should canvass or proffer further or repeal arguments in support of an appeal on the pre of replying on points of law. This to my mind is exactly what the learned Counsel for the appellants has done. The Reply-Brief of the learned Counsel for the reasons stated supra will not be given any consideration in this judgment. See Order 17 Rule 5 of the Court of Appeal Rules, 2007 and Popoola vs. Adeyemi (1992) 8 NWLR (part 257) P.1; Adebiyi vs. Sorinmade (2004) All FWLR (Part 239) p.933 and Shuaibu vs. Maithoda (1993) 3 NWLR (Part 284) p. 748. PER TIJJANI ABDULLAHI, J.C.A.
INTERPRETATION OF STATUTE: PROVISION OF SECTION 135 (1) OF THE EVIDENCE ACT AS TO ON WHOM THE BURDEN OF FIRST PROVING THE EXISTENCE OR NON- EXISTENCE OF A FACT LIES ON
Now, let me begin the consideration of this issue by producing the provision of section 135 (1) of the Evidence Act, which provides thus: “135 (1). Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must Prove that those facts exist.” The provisions of this section are very clear and unambiguous and same are also self-explanatory. No aid is required for the interpretation of the said provisions. Needless to say, the burden of first proving the existence or non- existence of a fact lies on the party against within the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. Evidence Act. PER TIJJANI ABDULLAHI, J.C.A.
HOW TO REACH A DECISION AS TO WHICH PARTY IS ENTITLED TO JUDGMENT IN A CIVIL CASE
In the case of Balogun vs. UBA (supra ) the apex Court per Uche Omo, JSC, had this to say: “In a civil case, the only way to reach a decision as to which party is entitled to judgment is by determining on which side the weight of evidence lay. And this could only be done by putting the evidence called by either side on an imaginary balance and weighing them together to find out to which side the evidence Preponderated.” PER TIJJANI ABDULLAHI, J.C.A.
EFFECT OF THE FAILURE OF THE PERSON WHO ASSERTS TO PROVE ITS CASE
The Law is clear that he who asserts must prove as failure to do so entitle his case to dismissal. Sec the following cases: Uchendu & Ors vs. Ogbeni & Ors ( 1999)40 CNJ 64; Chief Okeke & Ors vs. Agbodike & Ors (1999) 12 SCNJ 343; Jalo vs. Mohammed (2005) 4 F.W.L.R. (pt.278) 56; Lordye vs. Ihyanbe (2000) 12 SCNJ 177; Buhari vs. I.N.E.C. (2008) 12 S.C.N.J. 1 at 14 and Marcus Ukaegbu & Ors vs. Mark Nwoldo (2009) 1 SCNJ 49. PER TIJJANI ABDULLAHI, J.C.A.
WHETHER A PARTY IS BOUND BY HIS PLEADINGS
It is settled law that a party is bound by his pleadings. See Adekeye vs. Akin-Olugbade (1987) 3 NLR (pt.60) 214 at 319. PER TIJJANI ABDULLAHI, J.C.A.
PLEADINGS : EFFECT OF PLEADINGS NOT SUPPORTED BY EVIDENCE
It is now settled law that pleadings not supported by evidence are deemed abandoned and same must be struck out. See the cases of Egbunike vs. ACB (1996) 2 SCNJ, 58 at 78i Amobi vs. Amobi (1996) 9 – 10 SCNJ p. 207: West Construction vs. Batada (2006) 4 SCNJ, 77 at 80 and Shell Petroleum Dev. Co. Ltd. vs. Chief Victor Olanrewaju (2008) 12 SCNJ 684. PER TIJJANI ABDULLAHI, J.C.A.
ADMITTED EVIDENCE : WHETHER ADMITTED EVIDENCE REQUIRES FURTHER PROOF
The law is settled that admitted evidence require no further proof. See Ikare Community Bank vs. Ademuwogun (2005) 1 F.W.L.R. (pt.256) at 817. PER TIJJANI ABDULLAHI, J.C.A.
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
IGANTIUS IGWE AGUBI Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
Between
PASTOR I. F. OLANIYAN
COMRADE J. A. FAKAYODE
CHIEF J.A. JOLAYEMI (ARO RORE)
MR. J. A. ABOLARIN Appellant(s)
AND
1. MR. E.O. OYEWOLE
2. CHIEF D.O BAMIGBOYE (THE ASAOYE)
3. CHIEF A.O. ADEWUMI (THE ODOODE)
4. CHIEF ARASIOLA (THE ESA)
5. CHIEF SULE OYEWOLE (THE OLUKOTUN) Respondent(s)
TIJJANI ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Justice, Kwara State in Suit No. KWS/OM/08/2006. Coram II O. Ajayi (J) delivered on the 5th day of October, 2009.
The appellants were the claimants/plaintiffs whilst the respondents were the defendants in the lower Court. The appellants vide their writ of summons dated and filed on 28th February, 2006 sued the respondents herein and claimed as follows:
“i. The purported appointment of the 1st defendant by the 2nd – 5th defendants as the Onirore (Oba ) of Rore is null and void as it was made contrary to the agreement of August/September 1978 between the Kingmakers and the entire Rore community on the one hand and the Ologbo/Arutu royal family on the other;
ii. an order to set aside the in absentia installation of 20/10/2005 and the confirmatory re-installation of 23/10/2005 and 4/11/2005 on the ground that they are contrary to Rore native law and custom and therefore null and void, and
iii. an order of this Honourable Court prohibiting and/or restraining the 1st defendant from further acting or parading himself as the Onirore (Oba) of Rore
The respondents filed their joint amended statement of defence of 28 paragraphs and in addition, counter claimed thus:
“i. A declaration that there are only 3 ruling houses in Rore namely ADULOJU, ARAPAMAGA and AGANNA.
ii. A declaration that there is no ruling house/family known as Ologbo/Arutu in Rore.
iii. A declaration that the selection and installation of the 1st Defendant as the Onirore of Rore by the 2nd to the 4th Defendants was lawful, proper and valid and in accordance with Role Native Law and Custom.”
The case proceeded to hearing and in a considered judgment the learned trial judge found for the respondents wherein he held thus:
“I have perused thoroughly and considered the evidences of the defendants and have concluded that as testified to by the defendants and their witnesses that the selection and installation of the 1st defendant as the Onirore by the 2nd defendants/counter claimants was lawful, proper and validly made in accordance with Rore native law and custom and I so hold”.
As for the Counter claim, the learned trial judge also held as follows:
The defendants/counter claimants having proved their claim, the court hereby declares that:
1. There are only three (3) Ruling/family houses in Role namely Aduloju, Arapamaga and Aganna
2. There is no ruling house/family known as Ologbo/Arutu in Rore and
3. The selection, appointment and installation of the 1st defendant as the Onirore by the 2nd to 4th defendants was lawful, proper, valid and in accordance with Rore native law and custom.”
Aggrieved by the decision of the learned trial judge, the appellants expressed so by filing a notice of appeal which carries five grounds of appeal.
In a brief settled by Toyin Oladipo Esq. learned Counsel for the appellants, formulated four issues for determination. The briefs is dated 23rd day of April, 2010 and was filed on 26th April, 20l0. The four issues are as follows:
“1. Whether the lower Court was right in holding that there is no evidence to substantiate the holding of the 2 peace- meetings.
2. Whether if there were peace meetings, were the decisions in those meetings binding on the Respondents and the entire Rore community.
3. Whether the Appellants’ family is entitled to the stool of Onirore.
4. Whether the Appellants’ family are settlers in Rore from Idoma in Benue State and not descendants of Obagbaja, the founder of Rore.”
For their part, the respondents, in a brief settled by Chief Toyin Oguntoye, learned Counsel distilled three issues for determination from the five grounds of appeal thus:
“1 . Whether in view of the state of pleadings and evidence before the Lower Court, the learned trial judge was not right in holding that there is no evidence to substantiate the holding of 2 peace meetings.
2. Whether the decision reached at the said meeting if any is binding on the Respondents.
3. Whether the Appellants’ family is entitled to the stool of Onirore”
At the hearing of the appeal, on the 29th September, 2010, whilst adopting his brief of argument for the appellants, learned Counsel, Mr. Oladipo submitted that contrary to the submission of the learned Counsel for the respondents, all the elements of a meeting between the appellants’ family’ Rore Community and the existing Kingmakers in 1978 exist in this case. The parties and the dates of the meeting are all there as well as the agenda. He referred us to page 170 of the record.
Learned Counsel argued that it would be wrong for the lower Court to insist on minutes of the meeting. Learned Counsel withdrew a notice of appeal filed on 4/11/2009 and same was struck out. Learned Counsel then adopted the appellants’ brief and the Reply-Brief as his arguments in the appeal. He urged us to allow the appeal and set aside the judgment of the lower Court.
Learned Counsel for the respondents, Mr. Oguntoye adopted the respondents’ brief of argument dated 20/5/2010 but filed on 21/05/2010 as his argument in the appeal under consideration. He urged us to dismiss the appeal as lacking in merit. He submitted that the purport of Order 17 Rule 5 of the Court of Appeal Rules, 2007 is to allow an appellant to file a reply on new points raised. The purported Reply-Brief filed by the Appellants’ Counsel is not a reply to new points raised but re-argument of the appeal. We were urged to discountenance it.
It is appropriate at this juncture, before I delve into the issues formulated for and against the appeal, to make a few comments on the Reply-Brief filed by the appellants’ Counsel.
The purpose for which Reply-Briefs are meant is now well known and that is to answer or respond to new or fresh points raised in a respondent’s brief. It is not an avenue through which or by which an appellant should canvass or proffer further or repeal arguments in support of an appeal on the pre of replying on points of law. This to my mind is exactly what the learned Counsel for the appellants has done. The Reply-Brief of the learned Counsel for the reasons stated supra will not be given any consideration in this judgment. See Order 17 Rule 5 of the Court of Appeal Rules, 2007 and Popoola vs. Adeyemi (1992) 8 NWLR (part 257) P.1; Adebiyi vs. Sorinmade (2004) All FWLR (Part 239) p.933 and Shuaibu vs. Maithoda (1993) 3 NWLR (Part 284) p. 748. The issues formulated by learned Counsel for the parties are similar.
The appeal can be determined by giving consideration to the issues formulated by either side but I prefer the issues formulated on behalf of the respondents. They are more apt and precise.
Issue No. 1 formulated by the appellants which is quite similar to issue No. 1 formulated by the respondents is whether the lower Court was right in holding that there is no evidence to substrate the holding of the two peace meetings. Learned Counsel for the appellants referred to paragraphs 11 and 12 of the Statement of claim in which they averred that there were two peace meetings in August/September between Kingmakers and entire Rore community in order to restore peace and it was agreed that after the demise of Onirore Awotunde Afolayan, the Stool/throne would go to Ologbo/Arutu family but that was not honoured by the Kingmakers, (2nd-5th respondents).
That the throne was given to the 1st defendant from the Aganna ruling house.
It is the submission of the learned Counsel that instead of a positive denial by the respondents, they merely denied the averments of the said paragraphs. Learned Counsel referred to paragraph 1 of the amended statement of the respondents at pages 57-62 of the record and further submitted that a general denial which puts the claimants/appellants to the strictest proof thereof is not sufficient to deny the specific allegation of the holding of the two peace meetings between August/September, 1978. He relied on the cases of FBN Plc vs. Akinyosoye (2004) NWLR (part 918) 340 at 373, Olaogun Enterprises vs. S.J & M (1992) 4 NWLR (part 235) 361 and Balogun vs. UBA (1992) 6 NWLR (part 247) 336 at 349.
Learned Counsel drew our attention to paragraph 15 of the Amended Statement of Defence of the respondents where they averred thus:
“15. The defendants aver that contrary to the averment in paragraph 11 of the statement of claim there was no peace meeting on Onirore stool between 1978 and if there was any, they were not aware or privy to same.” (underline supplied)
Learned Counsel submitted that the quoted paragraph is evasive and does not answer the point of substance as required by Order 26 Rules 12 and 13 (1) of the High Court Rules. The said averment, learned Counsel went on is not sufficient to deny paragraph 11 of the statement of claim. In the circumstance, learned Counsel further submitted, there was no need for the appellants to prove that paragraph because same is deemed to have been admitted by the respondents. He (learned Counsel) contended that the lower Court ought to have granted the claim of the appellants based on the statement on oath of the claimants’ witnesses alone. He relied on the cases of FBN Plc vs. Akinyosoye supra, Olaogun Enterprises vs. S. J. and M supra and Balogun vs. UBA supra.
Learned Counsel drew out attention to the evidence of PW1 Comrade Joseph Adewoye Pakayode in his statement on oath (pages 8 – 9) and urged us to note that this witness categorically said that he was at the meeting. The evidence of an eye witness to or participant in an event must ordinarily carry more weight and induce greater degree of belief, learned Counsel contended.
On this score again, learned Counsel referred evidence of DW1, DW2 and DW3 and argued that they did not give evidence concerning the meetings, whether in confirmation or in denial. Their statements on oath are at pages 26-27, 64-65 and 23 – 25 of the record respectively.
Learned Counsel referred to the evidence of -DW 5 on pages 28 – 30, where he opined that the witness admitted with candour that he was not aware of the peace meetings. With regard to the evidence of DW 3, in paragraph 7 of his deposition on oath which can be found in pages 20 – 22, wherein he stated thus:
“7. That there was no peace meeting held in August/September 1978 on Onirore Stool and there was no promise made by the claimants on same”
Learned Counsel observed that the source of the man’s information is Disclosed. He did not say he made the statement from his own knowledge, the question learned Counsel asked is, how did he know?
Learned Counsel then submitted that paragraph 7 supra contravenes sections 86, 88 and 89 of the Evidence Act. It is his further contention that same cannot be relied upon and it is gratifying that the lower Court did not say it relied on the said deposition to hold that there were no peace meetings, learned Counsel further observed.
On the evidence of DW 6. (Alice Famoye Olawuyi) whose deposition can be found on pages 66 – 68, wherein she stated that:
” 3. That there was no time the Omo Owas entered into any agreement of oath with the claimant on the Onirore Stool”
Learned Counsel argued that there is no denial that there were two peace meetings, besides, learned Counsel went on, the said deposition suffers the same defect as the deposition of DW3 quoted supra. It contravenes sections 86, 88 and 89 of the Evidence Act. Same, he went on, is defective unreliable and inadmissible and ought to be struck out. He relied on the cases of Nahman vs. Wolowiez (1993) 3 NWLR (pt.282) p.443 at 486, Gov. of Lagos State vs. Ojukwu (1986) 1 NSCC (vol. 17) p. 304 (also found in (1986) 1 NWLR (pt. 18) 621 and FMG vs. Sanni (No.2) (1989) 4 NWLR (pt. 117) 624 at 638.
Learned Counsel argued that the trial judge hinged her refusal to hold that there were peace meetings in 1978 on the non-production of documents and non-calling of independent witnesses. Learned Counsel submitted that there is no special provision in the evidence Act or in fact, any other statute which prescribes a particular means or mode for proving the holding or conduct of a peace meeting in a rural community such as Rore.
Learned counsel further submitted that the insistence by the lower court for the production of documents to evidence the peace meetings is most inappropriate. Though it is within the lower Court’s prerogative to require for independent witnesses but in a case like the present one where the defendants did not efficiently deny the fact of the meetings, coupled with the fact that two out of the six witnesses have no basis for their denial, the lower court ought to have found in favour of the appellants.
It is the contention of the learned counsel that the meetings are said to have been between the claimants’ family, the kingmaker and the Rore community and that being so, the learned Counsel further contended that the requirement of the lower court for Independent witness” is a factual impossibility because according to the learned counsel the whole Rore community was involved. An independent witness in the circumstances would have been a complete outsider, a non Rore person, learned counsel opined. He is of the view that there is no claim or allegation that such a person attended the Peace meeting. We were urged to resolve this issue in favour of the appellants.
For their part, learned Counsel for the respondents began his consideration of this issue by contending that the plank of the appellants’ case is a purported agreement reached after a purported two peace meetings held in August/September. It is his further contention that to ascertain the correctness of this claim, it is imperative to look at the pleadings and evidence adduced from both sides.
Learned Counsel referred to the writ of summons wherein the appellants claimed inter-alia thus:
“The purported appointment of the first defendant by the 2nd – 5th defendants as the Onirore (Oba) of Rore is and void as it was made contrary to the agreement August/September, 1978 between the kingmakers and the entire Rore Community on the one hand and the Ologbo/Arutu Royal family on the others (underline mine) See page 2 of the record.”
Learned Counsel contended that in support of this claim, the appellants filed their statement of claim, the relevant paragraph on the purported peace meetings being paragraph 11 at page 7 of the record as well as the testimonies of PW1 and PW2, the only two witnesses called by the appellants and observed that the appellants averred in their pleadings that they appealed against the judgment of Obayan J. and that the appeal was decided on 14/1/1980. (See p. 7 of the record and paragraph 9 of the Statement of claim. However learned Counsel went on, in his evidence on oath, PW1 said the appeal was abandoned in 1978 in deference to the peace meetings but under cross-examination, the same witness admitted that they pursued the appeal to conclusion in 1980 (See. 170 of the record), learned counsel submitted that this admission has definitely knocked out the buttom of the arguments of the appellants that they abandoned their case at the court of Appeal in deference of the agreement reached at the peace meeting.
Learned counsel further submitted that the appeal lasted about two years after the purported meeting. The implication of this, learned Counsel went on, is that no agreement was reached and the appellants had to pursue their appeal which they did and lost again.
Now, let me begin the consideration of this issue by producing the provision of section 135 (1) of the Evidence Act, which provides thus:
“135 (1). Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must Prove that those facts exist.”
The provisions of this section are very clear and unambiguous and same are also self-explanatory. No aid is required for the interpretation of the said provisions. Needless to say, the burden of first proving the existence or non- existence of a fact lies on the party against within the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. Evidence Act.
Coming back to the pleadings of the parties to the case in hand’ it is crystal clear that the burden of proof in this matter lies with the appellants for they are the ones to loose if no evidence were produced on either side. The appellants as can be gleaned from the record of proceedings claimed that there were two peace meetings in which an agreement was reached to the effect that it would be their turn to produce the Onirore on the demise of incumbent. Hear the appellants:
“The purported appointment of the first defendant by the 2nd – 5th defendants as the Onirole (Oba) of Rore is null and void as it was made contrary to the agreement of August/September, 1978 between the kingmakers and the entire Rore Community on the one hand and the Ologbo/Arutu Royal family on the others (underline mine see page 2 of the record.
The question that must be asked and answered at this stage is whether the appellants in the case in hand had proved the existence of the agreement of August/September 1978 between the Kingmakers and the entire Rore community on one hand and the Ologbo/Arutu Royal family on the other to the effect that the appellants were the ones to produce the next Onirore of Rore.
In the case of Balogun vs. UBA (supra ) the apex Court per Uche Omo, JSC, had this to say:
“In a civil case, the only way to reach a decision as to which party is entitled to judgment is by determining on which side the weight of evidence lay. And this could only be done by putting the evidence called by either side on an imaginary balance and weighing them together to find out to which side the evidence Preponderated.”
In support of their pleadings’ the appellants called two witnesses in support of their written depositions, the first witness Comrade J.A. Fakayode, in paragraphs 6,8,9 and 11 of the statement, averred thus:
Paragraph 6:
“That as a result of the promise of our community (Rore) that our nominee would D.V. succeed Onirore Awotunde Afolayan, we abandoned our appeal filed on 6/6/78”
Paragraph 8:
“That were shocked to find that the Rore Kingmakers did not fulfill their promise of August/September, 1978, and they embarrassingly picked Mr. Ezekiel Olawale Oyewole from Agana family as the successor to Mr. Awounde Afolayan from Ajiro family.
Paragraph 9:
“That I was one of the representatives of my Olgbo/Arutu family in the 2 peace meetings or August/September 1978, which misled us to abandon our Lawyer, Prince J.O. Ijaodola, who had done his best for us in the 1974, suit and in the appeal of 6/6/1978.
Paragraph 11:
“That we were most surprised that our kingmakers have eaten their words by giving the throne/Stool to Mr. E.O. Oyewole and not our nominee as promised in the 2 peace meetings of August/September, 1978.”
PW2, was one Chief Joseph Aboyeje Jolayem, in his own statement on oath which can be found in page 10 of the record, he averred inter-alia thus:
Paragraph 3:
“That I represented our Ologbo/Arutu -family in 2 peace meetings in August/September 1978,where the Rore Community in general and Rore kingmakers of that time promised that on the successful completion of the life of Onirore Awotunde Afolayan that a member of our Ologbo/Arutu family would succeed him (underline mine)
Paragraph 4:
“That we were surprised that the 2nd – 5th defendants have breached our said agreement by giving our chance to the 1st defendant herein from Agana family.”
Under cross-examination, PW1 at page 170 of the record said inter-alia:
“I am 58 years old, in 1974 I was 32 years old. There Was a meeting in 1978 September, to settle the issue of Onirore Stool and I was in that meeting. The 1st -5th defendants were not at the said meeting.
Our case at the Court of Appeal was concluded in 1980 despite the meeting” (underline mine).At page 171 of the record, he concluded his evidence by saying”
“I have never attended the meeting of Omo-Owos”
The above is the evidence adduced by the appellants in support of the much talked about peace meetings and the purported agreement they claimed to have been entered with the respondents on the stool/throne of Onirore. Let me now, consider the evidence adduced by the respondents with regard to their position in respect of the purported peace meetings and the agreement with a view of weighing them (evidence) together to find out to which side the evidence Preponderated.
In their amended statement of defence the respondents, apart from the general denial in paragraph 1, have specifically and expressly denied the existence and their participation in any peace meeting with the appellants’ family. On the issue of the peace meetings, the respondents pleaded in paragraph 15 of the amended joint statement of defence as follows:
“The defendants avers (sic) that contrary to the averment in paragraph 11 of the statement of claim, there was no peace meeting on Onirore stool between August/September, 1978 and if there was any they were not aware or Privy to same.”
Again, in paragraph 21 of the said amended statement of defence, the respondents stated that at no time did the Omo Owas took an oath with the claimants at the Obagbaja Shrine as it is even a taboo for the claimants like other guest settlers to enter the said shrine. The respondents further averred that the Omo-Owas have no historical relationship with the appellants as they are not descendants of Obagbaja and they have never held any meeting together. (See pages 74 and 76 of the record).
It is instructive to note that after sufficiently pleaded the facts denying, contrary to the submission of the learned Counsel for the appellants, the holding of the two peace meetings and the agreement they claimed to have entered with them, the respondents adduced evidence through their witnesses to give flesh to the averments contained in the paragraphs stated supra. DW 3, Pa Salmon Afolayan, deposed to the fact that he is the junior brother of the late Obo Awotunde Afolayan with whom the appellants’ family contested and lost. He deposed in paragraph 6 its follows:
“That I know as a fact in 1974 the family of the claimants contested the stool of Onirolc with my brother late Oba Awotunde Afolayan and lost because they were not entitled to Onirore stool.”
Again, in paragraph 1 he deposed thus:
“That there was no peace meeting held in August/September, 1978 on Onirore Stool and there was no promise made to the claimants on same.”
(See page 20 of the record)
DW 5 – Chief Ezekiel Aransiola, who is traditionally responsible to install an Onirore deposed in his statement on oath as follows:
“That I am not aware of any promise made to the claimants in August/September, 1978 regarding the stool of Onirore (See page 29 of the record)”
Last but not the least witness was Mrs. Alice Famoyo Olawuyi, DW 6.
She deposed in paragraph 13 that there was no time the Omo-Owas entered into any agreement or oath with the claimant on Onirore stool. She went further to depose in paragraph 14″
“That by tradition, it is a taboo for the member of the claimant’s family to enter “Obagbaja shrine” (See page 67 of the record.)
It is noteworthy to observe that contrary to the submission of the learned Counsel for the appellants, three witnesses as outlined above spoke from the facts within their knowledge being active participants and stake holders in the making of an Oba in Rore. The submission of the learned Counsel that their evidence contravenes sections 86, 88 and 89 of the Evidence Act is of no moment. The cases relied by the learned Counsel in support of his submission are not apposite to the facts of the case in hand.
I am of the considered view that based on the evidence adduced by both sides as outlined supra, the appellants cannot be said to have proved the existence of two peace meetings and the so-called agreement claimed to have been entered with the respondents’ I cannot but agree with the views expressed by the learned Counsel for the respondents that the weakness and deficiencies of the claim of the appellants with regard to the said meetings Firstly, the exact dates and venue of the said meting that spanned two months were never given.
Secondly, the names of those who attended the meetings were never given. According to the appellants the meetings were between 3 classes of people viz: the Ologbo/Arutu family; the then Kingmakers and the Rore community. The question is, what are the names of the representatives of the Rore Community at the meeting and what are the names of the Kingmakers that were Present.
Thirdly, there was no minute or record of the said meetings. We urge the court to reject the argument of the Appellants’ counsel to the effect that Rore is a rural community. This argument is not only an after-thought but lame with due respect. A community that is sophisticated enough to have ventilated her grievance up to the Appeal Court, will definitely keep record of an important meeting like the one in question if actually it took place.
Fourthly, apart from the evidence of PW1 and PW2 who were the aggrieved and parties to the series of litigations, no other persons among the other three categories of those who they claimed attended the meeting gave evidence. Specifically, nobody from the kingmakers and so also the Rore community gave evidence in support of the Appellants’ claim. The Appellants have not said that all the other parties at the meeting were dead.
My Lords, in a meeting purportedly attended by 3 sets of people, apart from the person asserting that there was a meeting, is it not incumbent on the person asserting that the meeting look place to call any of the other two sets of attendees to corroborate his assertion? This is even more desirable and imperative when the other party is unequivocal that no meeting took place and that there was no agreement. The Law is clear that he who asserts must prove as failure to do so entitle his case to dismissal. Sec the following cases: Uchendu & Ors vs. Ogbeni & Ors ( 1999)40 CNJ 64; Chief Okeke & Ors vs. Agbodike & Ors (1999) 12 SCNJ 343; Jalo vs. Mohammed (2005) 4 F.W.L.R. (pt.278) 56; Lordye vs. Ihyanbe (2000) 12 SCNJ 177; Buhari vs. I.N.E.C. (2008) 12 S.C.N.J. 1 at 14 and Marcus Ukaegbu & Ors vs. Mark Nwoldo (2009) 1 SCNJ 49.
It is my considered view that the onus of proof is on the appellants to prove by concrete evidence that there were peace meetings and that there was an agreement. This onus was not discharged by the appellants. See section 135 (1 and 2) and section 136 of the evidence Act.
I am also of the further view that the respondents having denied the existence of an agreement, the appellants have lo go extra miles to prove that the agreement exists and this can only be clone by calling independent or additional evidence that could corroborate the assertion or provide documentary evidence to prove same.
In the light of all that has been said on this issue, one can safely say that the evidence adduced preponderated on the side of the respondents. This being the case, the question posed a while ago must be answered in the affirmative. For avoidance of any doubt, the trial Court was right in holding that there is no evidence to substantiate the holding of the two peace meetings. This issue is resolved in favour of the respondents and against the appellants.
Issue 2, is whether if there were peace meetings were the decisions in those meetings binding on the respondents and the entire Rore Community.
Learned Counsel, after referring to the judgment of the lower Court, wherein the learned trial judge held that:
“That been (sic) the case then such an agreement if any cannot be binding upon the present Kingmakers who have not been shown to be partakers to the meeting not mandated to execute the agreement of the alleged peace meeting.”
Submitted that the amended statement of defence of the defendants (page 57 – 62 of the record) did not raise the defence of absence of privity between the present Kingmakers (2nd defendants) and the then Kingmakers. Learned Counsel argued that it was the learned trial judge who on her own raised the said defence on behalf of the defendants. It is the view of the learned Counsel that it is ultra vires the function and duty of the lower court to do this. Learned Counsel submitted further that aside from the fact that those defences were not pleaded, the fact that they were raised suo motu by the learned trial judge raises the question of the bona fides of the judgment. He relied on the cases of Oniah vs. Onyiah (1989) 2 SCNJ 120 at 133 (also) found at (1989) 1 NWLR (pt. 99) 514, Ojo-Osagie vs. Adenri (1994) 6 NWLR (pt.349) 131 and Prof. Olufaegha and 43 Ors. vs. Prof. Shuaib Oba Abdulraheem and 3 ors. (2009) 18 NWLR (Pt.1173) 384 at 435 – 436.
It is the submission of the learned Counsel that a Court of law cannot give a litigant more than he has asked in his pleadings. The defences of absence of privity and absence of authority are required to have been raised in the pleadings. He drew our attention to Order 27 Rule 4 of the High Court Rules and the cases of Folorunsho vs. State (1993) 8 NWLR (pt.313) 612 at 619, Layinka vs. Gegele (1993) 3 NWLR (pt.283) 518 at 532 and Dina vs. New Nigerian Newspapers (1986) 3 NELR (pt.22) 356.
Learned Counsel further submitted that it is immaterial that it is not the same set of Kingmakers that were there in 1978 as well as in 2005 when Oba Awotunde Afolayan died. The agreement learned Counsel argued was not personal to the Kingmakers of 1978. It applied to all Rore people and it did not matter that some may have died between 1978 and 2005 when the agreement matured for execution.
It is the contention of the learned Counsel that the agreement was supported by the consideration of forbearance of the Appellants’ right of appeal, therefore it went beyond the realm of gentleman’s agreement. It became binding and capable of being enforced. The defendants and the entire Rore community became estopped from going back on the agreement, learned Counsel further contended. He urged us to resolve this issue in their favour. Learned Counsel for the respondents on the other hand, submitted that the fact with regard to the privy of contract between the appellants and the respondents was not raised by the trial Court suo motu. It is their further submission that they sufficiently pleaded those facts and called evidence in support of what they had pleaded.
Learned Counsel referred to paragraphs 15, 21 and 21 (a) of their amended statement of clam and contended that in those paragraphs, they pleaded that there were no such meetings and that even if there were any, they were not aware nor privy to same. The particular pleadings in the said paragraph were not replied by the appellants.
In paragraph 15, the defendants averred thus:
“The defendants avers (sic) that contrary to the averment in paragraph 11 of the statement of claim there was no peace meeting on Onirore stool between August/September, 1978 and if there was any, they were not aware or privy to same.” (underline mine)
To prove this fact pleaded in the above paragraph, DW 5, Chief Ezekiel Aroansiola, an old man of 90 years deposed in his written statement on oath in paragraph 15 as follows:
“That I am not aware of any promise made to the claimants in August/September, 1978 regarding the Stool of Onirore.” (See page 29 of the record).
DW 5, needless to say, is one of the Kingmakers and in fact the than whose responsibility and duty is to install a new king. A closer look at the evidence adduced by the appellants would reveal the fact that his evidence was never materially challenged.
It is instructive to note that if any agreement has been reached between the parties which had not been conceded, such agreement cannot be binding on the present Kingmakers for the following reasons:
1. Neither the pleadings nor the evidence of the appellants linked the respondents to the former Kingmakers.
2. In the lace of outright denial of an agreement by the present Kingmakers, the onus is on the appellants to prove that the present crops of Kingmakers are bound by the decision of their predecessors.
3. The Respondents in their paragraphs 15, 21 (a) of their statement of defence said there was no meeting and that if there was any, they were not aware, nor privy to same.
I am of the considered view that in the light of the foregoing the onus of proof is on the appellants to prove that the new Kingmakers are bound by the decision of the former Kingmakers. In the absence of such proof, the finding of the trial Court cannot be faulted in any way.
That aside, in the light of the above, positive pleadings and unchallenged direct evidence from three o1’the six respondents witnesses as outlined elsewhere in this judgment, it cannot be correct to say that the learned trial judge raised the issue of privity suo motu or that the learned trial judge made a case for the respondents and I so hold.
Last but not the least point I would like to make before dropping my pen on this issue is this, assuming but not conceding there was an agreement reached on Onirore stool, such an agreement is not and cannot be binding on the recognized three ruling houses. The 1st respondent in this case is from one of the three ruling houses as agreed by all the parties. Even if the appellant, the former Kingmakers and the Rore community met and agree on rotating the Onirore stool with appellants’ family, Ologbo/Arutu, will such an agreement be binding on the three ruling houses? i.e. Aduoloju, Aganna and Arapamaga. In the light of the pleadings and the evidence adduced by both parties, the question posed supra must be answered in the negative. In the case of Jalayemi vs. Olaoye (2004) 5 S.C.N.J. p.305 at p. 321, the apex Court, per Kalgo JSC held that:
“It is important for the respondent to prove that Exhibit D1 is binding on the appellants because it was alleged that the meeting agreed that the stool of Ejiemu Alarun of Arandun should from then be taken in rotation between the Imoji and the Imode family compounds. If they are to be bound by this, it must be shown that either the members of the Imoji family including the appellants attended the meeting where the resolution was reached or the family was formally notified of this resolution.
There was no evidence to this effect, and nowhere can it be inferred. (p. 321)
No weight should be attached to Exhibit D1 as was done by the trial court and the Court of Appeal. (p.322)
It is instructive to note that in the case in hand, the appellants have not said that the three ruling houses were at the peace meeting neither have they said they notified them of the resolutions. It is settled law that a party is bound by his pleadings. See Adekeye vs. Akin-Olugbade (1987) 3 NLR (pt.60) 214 at 319.
In the light of all that has been said, this issue like the previous one is resolved in favour of the respondents and against the appellants.
Issues numbers 3 and 4 formulated by the appellants can be conveniently treated together. They are: Whether the appellants family is entitled to the stool of Onirore and whether the appellants’ family are settlers in Rore from Idoma in Benue State and not descendants of Obagbaja, the founder of Rore respectively.
Learned Counsel drew our attention to paragraphs 2, 3 and 4 of the statement of claim where they averred thus:
“2. That there are 4 ruling families for the stool of Onirore: (i) Aduloju (ii) Arapamaga (iii) Ajanna and (iv) Ologbo/Arutu, who were descendants of the wines of Obagbaja, the founder of Rore.”
3. That the Aduoloju, Alapamaga and Aganna families each had 3 Onirores fiom their sections but Ologbo/Arutu family had only 2 when Onirore Fadolapo died in January, 1974.”
4. In January 1974, the Chief Asaoye, Mr. Farinde who was the head of the kingmakers called on Mr. Ogundipe Esaba to request that his Ologbo/Arutu should present a candidate to fill the vacant throne/stool of Onilore.”
He submitted that apart from the general denial contained in paragraph 1 of the amended joint statement of defence (pp. 72 – 78 of the record) the respondents did not say anything about whether or not indeed Mr. Farinde, the Chief Asaoye who was the head of the kingmakers called on the Ologbo/Arutu family to present a candidate for the vacant Onirore stool in 1974.
It is his further submission that the general denial in the said defendants’ amended statement of defence is insufficient to deny the specific averments made in paragraph 4 of the statement of claim reproduced supra. He relied on the cases of Olaogun Enterprises vs. S.J. and M (supra) and Balogun vs. UBA.
Learned counsel urged us to note that the appellants’ witnesses gave evidence in line with the pleadings quoted supra. Learned Counsel then submitted that in so far as the Respondents did not allege the contrary of the facts in paragraph 4 of the statement of claim, they are deemed to have admitted the averments therein and the evidence given thereon.
It is the contention of the learned counsel that the fact of having reigned or occupied the throne at a previous time is different from being entitled to the throne. The fact that the appellants’ family has not reigned in Rore (assuming, it is even true), leaned counsel went to, is not the same thing as not being entitled to reign.
Learned Counsel referred to the evidence of DW6 (pages 66 – 67 of the record) who claimed to have deposed that Amos Abidoye from the appellants’ family was once the “Baralagbo” of Rore. Learned counsel submitted that if the appellants’ family were not entitled to that chieftaincy title, same would not have been conferred on Amos Abidoye. Learned Counsel submitted that at the time he was Baralogbo of Rore, he (Amos Abidoye) was a potential Onirore.
on issue No. 4. learned counsel contended that it was the respondents who raised the issue of appellants being settlers from Idoma, Benue State, in their amended statement and Counter claim hence the onus therefore rests on them to prove it. Learned Counsel further contended that they did not. They did not give evidence of when the migration from Benue came about or from which part of Benue they came from. They did not give evidence through which route they passed or who was their leader when they came to Rore.
There was total absence of historical background of the allegation of the appellants’ ancestors migration from Idoma, learned Counsel opined.
Learned Counsel went on to contend that the holding of the learned trial judge that the respondents’ evidence that the appellants came from Idoma was not contradicted or denied is far from being correct in the light of paragraph 4 of the Reply to defendants’ statement of defence and defence to counter claim and PW1’s additional evidence on oath which can be found at page 47 of the records.
Learned counsel argued that the lower court must have been carried away by the number of witnesses called by the respondents who repeated the same thing before the court. Learned counsel however further argued that it is not the number of witnesses called by a side that matters but the quality of evidence adduced by that side. He relied on the cases of Womiloju vs. Kiki (2009) 16 NWLR (pt. 1166) 143 at 155 – 156; Okochi vs. Animkwoi (2004) All FWLR (pt. 200) 1524 at 1538 and Adelumola vs. The State 1 NWLR (pt. 73) 683 at 691.
Learned counsel urged us to note that the issue of whether or not the appellants are descendants’ of Obagbaja, the founder of Rore, was settled in Suit No. KWS/17/1974 – between Daniel Ogundipe vs. Mr. Awotunde Afolayan and 4 others decided by the High Court of Kwara State per. Obayan J. on 2/6/78, where he held thus:
“The plaintiff is from Ologbo family. In the absence of any evidence to contradict the plaintiff, I am inclined to accept his story that Ologbo family was a descendant of Obagbaja and that the family was not a descendant of a slave of Obagbaja.”
Learned counsel further, urged us to note that the finding of the learned trial judge supra was not appealed against by the respondents He then submitted that not withstanding that the case was eventually struck out, the finding is subsisting. It is his further submission that since the case was fought between the forebears of the present parties, the respondents are bound by same.
Learned Counsel referred to paragraph 7 of the statement of claim in page 6 of the records and contended that except for the general denial by the respondents, the facts alleged in the said paragraph as well as paragraphs 4, 5 and 6 were not challenged. Those paragraphs, the learned Counsel went on, alleged material facts which were incapable of being denied by general denial. He relied on FBN Plc vs. Akinyosoye supra where this Court held that:
“It is trite law that mere general traverse which does not contain any specific denial is insufficient to put the matter in issue. The authorities in support are:- Otapo V. Summon (1987) 2 NWLR (Pt. 58) 587, 622 it Supreme Court decision; also Akintola V Solano ( 1986) 2 NWLR (Pt. 24) 598 at 623.”
Learned Counsel submitted that the case in hand is an appropriate case for the Court to invoke the doctrine of issue estopple. We were urged to hold that the appellants are descendants of Obagbaja the founder of Rore and not guests of Idoma tribe. Learned Counsel urged us to resolve the two issues in favour of the appellants, allow the appeal and set aside the judgment of the lower Court.
Learned Counsel for the respondents on the other hand, submitted that in resolving the claims of the appellants, recourse had to be made to their claims and the response of the respondents of that claims. The Appellants claims, learned Counsel posited can be found on pages 6, 7, 37 and 38 of the record. They averred in the said statement of claim that they are members of the ruling family and entitled to the stool/throne of Rore and all that but they did not adduce sufficient evidence that would entitle them to judgment as per the said claims. Learned Counsel submitted that it is now settled that pleadings not supported by evidence are deemed to have been abandoned and liable for striking out. He relied on the following cases in support of his submission. They are: Egbunike vs. ACB (1996) 2 SCNJ 58 at 78; Amobi vs. Amubi (1996) 9 -10 SCNJ 207; West Construction vs. Batada (2006) 4 SCNJ 77 at 80 and Shell vs. Olanrewaju (2008) 12 SCNJ 684.
It is the contention of the learned Counsel that a side from lack of sufficient evidence to back up their pleadings’ there is also a glaring contradictory position of the appellants with regard to their status as members of the royal family. Learned Counsel referred to paragraph 5 in the reply to the respondents’ brief where they averred thus:
“At the conclusion of the agreement of August/September, 1978 the leaders of the 5 branches (the Omo-Owas) took on oath at the Obagbaja Shrine which we all Omo-Owas believed was sacred and binding.”
However when confronted with a question that contrary to his claim he has never attended the meeting of Omo-Owas” he answered in the affirmative thus:
“I have never attended the meeting of the Omo-Owas.”
Learned counsel went on to contend that in the face of this glaring contradiction and absence of evidence to support the claim of the appellants to the Onirore Stool, learned Counsel submitted that the appellants’ family is not entitled to Onirore Stool and the trial judge was right to so hold. On the origin of the appellants, learned Counsel submitted that the respondents have abundantly proved that the appellants are from Idoma: The respondents’ pleadings and evidence on this, learned Counsel went on, are overwhelming and convincing whilst the appellants’ defence to this is very feable and unsubstantiated.
Learned Counsel referred to paragraph 4 of the Reply to respondents’ statement of defence and defence to Counter-claim where they averred thus:
“The Ologbo/Arutu ruling house of Rore docs not have the slightest relationship with Idoma tribe. The defendants have distorted Ile “Idiomo” a special farm tree, to pretend that the claimant ruling house originated from Idoma tribe. Idi-Omo Compound is distorted to read “Idoma”
Learned Counsel then asked if the pleading which was categorically denied by the respondents in their amended joint statement of defence was supported by evidence. He answered the question in the negative and urged us to so hold.
On Estoppel Per Rem Judicatem, learned Counsel submitted that the contention of the appellants’ Counsel that the issue of whether the appellants are descendants of Ologbaja was settled in Suit No. KWAS/17/1994 between Daniel Ogundipe vs. Mr. Awotunde Afolayan & Ors with due respect is invalid and untenable. Paragraph 7 of the statement of claim quoted by the appellants’ Counsel relates to the case of 1974 not the one in hand.
It is the submission of the learned Counsel that it is trite law that for Estoppel Per Rem Judicatem to apply the conditions precedent must be cumulatively present. The conditions learned Counsel went on are as follows:
1. The issue must be the same
2. The subject matter must be the same
3. The parties must be the same.
4. The said judgment must be the final decision of the Court.
Failure to prove the condition stated supra by the person raising the issue makes the defence inapplicable Learned Counsel, further submitted. The application of the principles, learned counsel went to, cannot be by inference but each of the requirement must be proved He relied on the case of Jimoh vs. Akande (2009) 1 S.C.N.J. 107 at 113.
It is the contention of the learned Counsel that, in the case in hand, the appellants never pleaded the defence of estopple Per Rem Judicatem.
Though it was first raised in the address of Counsel to the appellants in the lower Court, in spite of this the learned trial judge considered in her judgment and found that the principle is inapplicable Learned Counsel urged us to resolve this issue in favour of the respondents and dismiss this appeal for lacking in merit.
Now, on whether or not the appellants had adduced sufficient evidence in support of their pleadings, it is instructive to note that the gravamen of the appellants’ case briefly stated is that: They are also descendants of Obagbaja and their own family is known as Ologbo/Arutu family. That they are entitled to Onirore stool like the other 3 ruling houses namely. Aduloju, Arapamaga
and Aganna. They also claimed that they have produced 2 Onirores before Rore went to Ajo. That in 1974 they aspired to the stool but lost. They went to court and also lost. That 2 peace meetings were then held between August/September, 1978 where it was resolved that it would be their turn to produce the next Onirore after the demise of Oba Awotunde Afolayan.
A hard look at the case of the appellants as stated supra, would unfortunately reveal that most of the material facts pleaded by them were not supported by evidence. I am of the firm view that appellants did not adduce sufficient evidence as to the reigns of their two Onirores; the names of the two Onirores were never given; there was no evidence of when Rore went to Ajo and when they returned; there was no evidence who reigned before and after their so called two Onirores; there was no evidence of how Idoma became a distortion of Idi-Omo; there was no evidence that they held a meeting at Obagbaja Shrine and took an oath and there was no evidence of cognomen of Rore to show their entitlement took Onirore Stool contrary to their pleadings in paragraphs 6 and 7 of their reply on page 37 of the record where they averred thus:
“6. The cognomen of Rore shows that all the 4 royal houses are descendants of Obagbaja, the founder of Rore.
7. The cognoman of Rore shall be tendered by the Ewi exponent”
It is now settled law that pleadings not supported by evidence are deemed abandoned and same must be struck out. See the cases of Egbunike vs. ACB (1996) 2 SCNJ, 58 at 78i Amobi vs. Amobi (1996) 9 – 10 SCNJ p. 207: West Construction vs. Batada (2006) 4 SCNJ, 77 at 80 and Shell Petroleum Dev. Co. Ltd. vs. Chief Victor Olanrewaju (2008) 12 SCNJ 684.
It is note worthy to observe that in contrast to the case of the appellants as analysed supra, the pleadings of the respondents were not only comprehensive, they gave a chronological history of Rore Obaship starting from the 1st Onirore to the incumbent which according to their pleadings and evidence is the 13th Onirore. It is clear from the record that most of the positive averments of the respondents in their pleadings were largely admitted by the appellants since they, were not denied by them. The law is settled that admitted evidence require no further proof. See Ikare Community Bank vs. Ademuwogun (2005) 1 F.W.L.R. (pt.256) at 817.
Let me pause at this juncture and say that a meticulous and closer examination of the pleadings of the respondents, one cannot but agree with the respondents’ counsel that the respondents had pleaded the following facts:
“1. That Rore was founded by Obagbaja, a Nupe Warrior
2. That Obagbaja had 3 sons namely Aduloju, Arapamaga and Aganna
3. That the three sons became the 3 ruling families in Rore
4. That the three ruling families have up to date produced 13 Onirores inclusive of the incumbent 1st Respondent.
5. The names of the 13 Onirores were given and arranged in order of succession and the ruling houses that produced each of them.;
6. That the Appellants are not members of the ruling families as they migrated from Idoma tribe in the present Benue State.
7. That there is no ruling house in Rore known as Ologbo/Arutu.
8. That the compound of the Appellants is known as Idoma Compound till date.
9. That the Onirore stool is rotational between the three ruling houses and they meet together as Omo-Owas.
10. That they never held any meeting or agreed with the Appellants on the Onirore Stool.
11. That its even a taboo for the Appellants to meet with them at their ancestral Shrine– the Obagbaja shrine.
12. That the Appellants family are known and called Oke-Idoma and that they were guests of the Aganna family. That they were blacksmiths by occupation.
13. That the name Ologbo/Arutu is a coinage of the Appellants and it is unknown to Rore history and custom.
14. That the present site of the Appellants known as Idoma Compound was allotted to the Appellants progenitor by the Aganna family.
15. That the progenitors of the Appellants were known as Baba Onile Idi Ogun because of his devotion to Ogun god.
16. That the Appellants’ family like some other families came to Rore at different times to settle.
17. That the Appellants’ family has a peculiar tribal mark called “Bamu” which is typical of Idoma people. See pages 72 – 76 of the record.
Let me also state, even at the risk of being repetitive that’ the positive averments of the respondents outlined above were not replied to not denied by the appellants. In addition to all this, to prove the facts as stated supra, the respondents called six witnesses. Three of the witnesses are members of the three ruling houses while 3 are independent witnesses from other compounds in Rore. While DW3, Dw4 and DW6 are from the ruling families, DW1, DW2 and DW5 are not. All the witnesses gave evidence of the fact that there are only 3 ruling houses in Rore and that there is no ruling family known as Ologbo/Arutu in Rore. They did not mince words that the Appellants are from Idoma and that their compound is so named. They said Idoma is not a corruption of Idi-Omo because according to them there is no Omo tree any where in Rore talkless of the front of the Appellants compound.
(See evidence of DW 2 Mr. Ezekiel Agboola Babalola) at pages 64 – 65, 173 – 174 of the record).
It is also pertinent to observe that all these pieces of vital evidence of the respondents’ witnesses were not challenged. It is trite law that evidence not challenged are deemed admitted by the opposite party. See the following cases: Michael A. Omo vs. Judicial Service Commission of Delta State (2000)7 SCNJ 17, Alhaji Saratu Adeleke &Ors vs. Sanusi Iyanda & Ors (2001) 6 SCNJ 105; Egbunike vs. ACB (1999) 2 SCNJ 58 at 78; Leadway vs. Seco (2004) 4 SCNJ 1 at 4 and Aigbabi vs. Aruna (2005) 2 SCNJ 61 at 64.
The law is settled that the issue as to who is eligible or entitled to ascend any traditional stool or throne is subject to the customary law and traditions of the people concerned which in turn is a question of fact to be proved by calling evidence, unless frequent proof of same has made it to attain the legal status of notoriety for it to be judicially noticed. See Olumo vs. Ofuwu (1985) 3 NWLR (pt. 3) p. 272 and Mafimisebi vs. Ehunwa (2007) 1 SCNJ 258 at 262. In the light of all that has been said, I am of the considered view that the appellants have not proved their entitlement to Onirore stool and the learned trial judge was right to have held that they are not entitled to the Onirore stool.
On the origin of the appellants, they pleaded in paragraph 4 of the Reply to the defendants, statement of defence to counter claim as follows:
“The Ologbo/Arutu ruling house of Rore docs not have the slightest relationship with Idoma tribe. The defendants have distorted Ile “Idiomo” a special farm tree, to pretend that the claimant ruling house originated from ldoma tribe. Idi-omo Compound is distorted to read “Idoma”
The question that is begging for an answer, is, was the pleading which was denied by the respondents in the amended joint statement of defence supported by evidence?
To answer the question, recourse had to be made to the evidence adduced by the appellants in support of the said pleading.
Paragraph 3 of PW1’s deposition at page 47 of the record, reads thus:
“That I shall demonstrate that the defendants are unfaithful in alleging our Ologbo/Arutu family was founded by an Idoma tribe whereas all of us, who are Omo-Owas are descendants of Obagbaja whom history alleged was a full-blooded Nupe man and not an Idoma.” (underline mine).
It is instructive to note that there was no where in the record where PW1 demonstrated the untruthful allegation of the respondents as averred by him. This being the case, the question posed a while ago must be answered in the negative. Paragraph 4 of the reply quoted above was abandoned by the appellants since it was not supported by evidence. Thus the appellants could not rebut the better and preferred evidence of the respondents that they are from Idoma.
On the issue of Estoppel per Item Judicatem the apex court in the case of Jimoh vs. Akande (supra) held that:
“Each of these requirements must be proved and it is not a matter to be drawn by inference. Once any of. the requirements is not proved, the defence of res judicata may be at large and is in applicable.”
The requirements talked about by the apex court, needless to say are the ones stated else where in this judgment. For avoidance of doubt, let me state them once more; they are: The subject matter must be the same, the parties must be the same and the said judgment must be the final decision of the Court.
A closer look at the pleadings and the evidence of the appellants would reveal the fact that there is no where the appellants stated that the present parties are the same with those of 1974 case especially with regards to the Respondents. The issue in contention in 1914 as can be seen from the claim quoted in page 202 of the record is not the same with the present one. All these facts cannot even be inferred but must be pleaded and proved.
The passage of Obayan J, quoted by the appellants’ Counsel was not the decision of that Court. In fact from the tenor of the judge’s statement he said, ” …… in absence of any evidence to contradict the plaintiff…” This to my mind is a qualified statement made by the judge because it was only the plaintiffs in exhibit P1 that gave evidence. The statement of Obayan J, was to all intent and purposes an obiter dictum.
That aside, even the judge eventually dismissed the case of the plaintiffs in exhibit P1, hear him:
“In view of the contradiction which I have highlighted in my judgment and in view of the other various reasons, the action fails and it is hereby dismissed.”
Let me state once more that there is no evidence that this case was between the forebears of the parties, if it is true of the present appellants it cannot be said of the present respondents and there is no evidence to prove it.
The doctrine of issue estoppel in view of the foregoing is not applicable to this case and the appellants are not descendants of Obaghaja but settlers in Rore.
Learned Counsel for the appellants has made heavy weather with regard to how Amos Abidoye became Baralogbo. with respect due to the learned Counsel the circumstances of how Amos Abidoye became Baralogbo is well stated both in the pleadings of the respondent and the evidence in support, see page 19 (a) and (b) of the amended statement of defence and the evidence of DW 6 – Mrs. Alice Famoye Olawuyi at pages 66 – 67 of the record.
It is crystally clear from the facts and the evidence adduced that the taking of Baralogbo title by Arnos Abidoye, an indigence of the appellants’ family was an isolated case. This fact was corroborated by the appellants themselves through PW 1, comrade Fakayode who admitted under cross-examination the respondents’ claim that Amos Abidoye’s mother is from the Aganna family, a fact which accounted for the reason why he was given the title. In a similar vein, the same witness could not name a single person in history that took the title from their family before Amos Abidoye.
It is my considered opinion that the argument of the applicants’ counsel that since they could take the title of Baralogbo, they are equally entitled to Onirore stool is of no moment and untenable. These issues are resolved in favour of the respondents and against the appellants.
In conclusion, this appeal is completely devoid of any merit and it must be and is hereby dismissed with N5,000.00 cost in favour of the respondents and against the appellant.
IGNATIUS IGWE AGUBE, J. C. A: I agree.
CHIMA CENTUS NWEZE, J.C.A.: I had a preview of the leading judgment which my learned brother, Abdullahi JCA, just delivered now. I agree with my Lord that this appeal is devoid of merit.
The appellants’ case was, ab initio, bound to fail because they could not “distinguish [between] the two distinct and frequently confused meanings which have always been attached to the words ,burden of proof”, see, Elemo and Ors v Omolode and Ors NMLR 359, 361. That is to say, they could not distinguish between the general burden which they had to prove their case, as plaintiffs before the lower court, as required by section 137 (1) of the Evidence Act and the peculiar burden imposed on them by virtue of the averments in their pleadings. Let me elucidate. In my recent judgment in Olateru v Sonni [Appeal No CA/IL/87/06, unreported judgment delivered on June 2,2010] I had occasion to make the following clarifications on this heady question:
As is well known, in civil cases, there is the general burden of proof on the plaintiff to prove his claim or relief before a court by virtue of Section 137 (1) of the Evidence Act, Frempong II v Brempong II (1952) 14 WACA 13; Olowu v Olowu (1985) 3 NWLR (pt 13) 372; Fashanu v Adekoyo (1974) 6 SC 83; Commissioner of Police v Aguntayo (1993) 6 NWLR (pt 299); Kokoro-Owo v Ogunbabi (1993) 6 NWLR (pt 313) 627.
What is, perhaps, not well-known is that there is yet another kind of burden which is dictated by the nature of the pleadings. This is known as the burden of proof on the pleadings. Unlike the general burden referred to earlier, the burden of proof on the pleadings rests on any party [whether the plaintiff or the defendant] who substantially asserts the affirmative of the issue. This category of burden is fixed at the beginning of the trial by the state of the pleadings; it is settled as a question of law, remaining unchanged throughout the trial, exactly where the pleadings place it, Imana v Robinson 797 41 6 SC 83.
The concept of burden of proof on the pleadings has an ancient ancestry, Pickup v. Thames Ins. Co. 3 Q.B.D. 594. 600; and Wakelin v. L & S.W. Rv 12 App Cas. 41, 45. Its contemporary affirmation can be found in such popular case like Joseph Constantine Steamship Line Ltd. v. imperial Smelting Corporation (1942) AC 154, 174; Seldon v. Davidson (1968) 1 WLR 1083. Leading authorities on the English Law Evidence have endorsed this usage, see for example, Phipson on Evidence, (11th Edition), paragraph 92; page 40: “Burden of proof on the pleadings”.
In Imana v. Robinson (supra), Aniagolu JSC delivering the unanimous judgment of the Supreme Court, approvingly adopted the exposition Phipson on evidence (supra) as the Nigerian law on the subject.
‘The burden of proof, in this sense, rest upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue. ‘It is an ancient rule founded on consideration of good sense, and it should not be departed from without strong reasons’. It is fixed at the beginning of the trial by the state of the pleadings, and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it, and never shifting in any circumstances whatever. If, when all the evidence, by whosoever introduce, is in, the party who has this burden has not discharged it, the decision must be against him.
The supreme court has maintained a consistent posture on this issue, see, Elemo and Ors v Omolade and Ors (1968) NMLR 359,361: Atane v Amu (1974) 10 SC 237; Fashanu v Adekoya (1974) 6 sc 83; Kate Enterprises Ltd v Daewoo Nig Ltd (1985) 2 NWLR (pt 5) 116 etc.
Now, the appellants made positive assertions about certain peace meetings and an agreement they claimed to have entered into with the respondents concerning the stool/throne of Onirore. The respondents, unequivocally, denied these averments.
As my Lord, rightly, observed in the leading judgment, it was crystal clear that the burden of proof in the matter was on the appellants (as plaintiffs) for they were the ones to lose the case if no evidence was produced on either side. Now, did they prove the existence of the agreement of August/September, 1987 between the Kingmakers and the entire Rore community, on the one hand, and the Ologbo/Arutu Royal family, on the other hand, to the effect that the appellants were the ones to produce the nest Onirore of Rore?
The learned trial Judge, upon a careful consideration of the evidence before him, came to the conclusion that there was no evidence to substantiate the holding of the two peace meetings and of the so-called agreement. The trial court made findings of fact based on the available evidence. The appellants’ counsel, by his submissions, in the brief of argument filed on behalf of the appellants, would want this court to upturn the trial court’s findings based on his observation of the witnesses, particularly, DW3, 5 and 6.
I regret to observe that the submissions of the learned counsel for the appellants on this score are not well-taken. The reason is simple. An appellant who challenges a lower court’s findings of facts bears the onus of satisfying the appellate court that the decision was a wrong one. Where he is unable to do so, the appeal cannot stand. Hence, where such an appellant fails to satisfy the appellate court that the lower court was wrong in its application of the facts to the prevailing and applicable law, his appeal will fail.
This rule, which has a fairly ancient ancestry, Macaulay v Tukuru (1881-1911) 1 NLR 35; Akinloye v Eyiyola (1968) NMLR 92; has been endorsed in a succession of Supreme court decisions dating back to 1974, Obisanya v Nwoke (1974) 6 SC 69; Woluchem v Gadi, (1981) 5 SC 291; Obodo v Ogba (1987) 2 NWLR (pt 54) and Ogologo v Uche (2005) 14 NWLR (pt 945) 226,246.
On its part, the appellate court also has a duty when considering such findings of fact made by a trial court. These Trinitarian obligations are that the appellate court must:
(a) recognise the onus on the appellant to satisfy it that the decision of the trial court was wrong,;
(b) recognise the essential advantage which the trial court enjoyed in seeing the witnesses and watching their demeanour; and
(c) bear in mind that in cases which turn on the conflicting testimonies of witnesses and the credibility ascribed to them, in an appellate court can never recapture the initial advantage of the trial court which saw and assessed the witnesses, Nteogwuile v Otuo (2001) 16 NWLR (pt 738) 58; Oyadare v Keji (2005) 7 NWLR (pt 925) 571.
What is more, where findings of facts are not perverse, an appellate court cannot interfere with them, Ajuwa v Odili (1985) 2 NWI.R (pt 9) 710; Chukwueke v Nwankwo (1985) 2 NWLR (pt 6) 195; Nzekwu v Nzekwu (1989) 2 NWLR (pt.104) 373. Due to the initial advantage which the trial court had of actually seeing and assessing the witnesses, Nteogwuile v Otu. (2001) 16 NWLR (pt 738) 58; Oyadare v Keji (2005) 7 NWLR (pt 925) 571, issues relating to the demeanour of such witnesses which the court saw and assessed and ascription of weight to their evidence are the exclusive prerogatives of the trial court: prerogatives which no appellate court can interfere with, Ebba v Ogodo (1984) 1 SCNLR 372; Owie v Ighiwi (2005) 5 NWLR (pt 917) 184, 208. This foundation dictated the rule that a trial court has the power to ascribe credibility to the evidence of witnesses who testified before it, Ajao v Ademola (2005) 3 NWLR (pt.913) 636, 656. The lower court (Coram Ajayi J) dutifully and, I must add, dispassionately evaluated the totality of the evidence which the parties presented to the court before coming to the conclusion that there was no evidence to substantiate the holding of the two peace meetings. Like the leading judgment, I too, find no justification for disturbing this conclusion.
For the above reasons, and the more detailed reasons contained in the leading judgment, I will, equally, enter an order dismissing this appeal. I abide by the consequential orders in the leading judgment.
Appearances
Toyin Oladipo.For Appellant
AND
Chief Teju Oguntoye, with A.M. AbdulkareemFor Respondent
