TIJANI ADENIYI & ORS v. LASISI AMOSA
(2012)LCN/5489(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 26th day of June, 2012
CA/I/229/2007
RATIO
APPEAL: BINDINGNESS OF RECORD OF PROCEEDINGS ON AN APPELLATE COURT AND PARTIES
The law is trite that an appellate court and parties are bound by the record of proceedings before the court. See Oguntayo v. Adelaja (2009) 15 NWLR (Pt.1163) 150. In other words, there is presumption of genuineness of record of proceedings and both the court and counsel are bound by it – Ekpemupolo v. Edremoda (2009) 8 NWLR (Pt.1142) 166. However, there is a duty on an appellate court not hear an appeal on incomplete record – Ekpemupolo v. Edremoda (supra). PER MOORE A. A. ADUMEIN, J.C.A.
WORDS AND PHRASES: MEANING OF AN ISSUES
The law is settled that “an issue is a point that has arisen in the pleadings of the parties which forms the basis of the dispute or litigation which requires resolution by a trial court” – per Ogbuagu, JSC in Unity Bank Plc. & Anor. v. Mr. Edward Bouari (2008) 7 NWLR (Pt.1086) 372 at 402, para, F. See also Egbe v. Alhaji & 2 Ors. (1990) 1 NWLR (Pt.128) 546; Metal Construction (W.A.) Ltd. v. Migliore (1990) 1 NWLR (Pt.126) 299 and Ishola v. Ajiboye (1998) 1 NWLR (Pt.532) 71. PER MOORE A. A. ADUMEIN, J.C.A.
RELIEF: WHETHER A COURT SHOULD GRANT A RELIEF NOT CLAIMED
I agree with the appellants that a court of law should not grant to a party a relief not claimed by him. PER MOORE A. A. ADUMEIN, J.C.A.
EVIDENCE: PRIMARY DUTY OF A TRIAL COURT
However, it should always be borne in mind that the evaluation or assessment of evidence is the primary duty of a trial court. And in performing its primary duty, the Supreme Court has held that “the court must consider issues joined by properly reviewing the evidence and making proper findings”. Sagay v. Sajere (2000) 6 NWLR (Pt.661) 360 at 370. PER MOORE A. A. ADUMEIN, J.C.A.
JUSTICES:
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1. TIJANI ADENIYI
2. SUNMONU ADEDIRAN
3. KAMOLI ADEBAYO
4. WAHAB ADEMOLA
(For themselves and on behalf of Onifade family of Ede) – Appellant(s)
AND
LASISI AMOSA – Respondent(s)
MOORE A. A. ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellants were the plaintiffs in Suit No. HEJ/29/98 commenced in the High Court of Osun State, Ejigbo Judicial Division, sitting at Ejigbo.
In paragraph 21, their amended statement of claim, at page 6 of the record of appeal, the appellants prayed thus:
“21. WHEREOF the Plaintiffs claim as follows:”
1. A declaration that the Plaintiffs family are the only family entitled to nominate a candidate for approval as Baale of Olope in Olope village in Egbedore Local Government Area of Osun State.
2. A declaration that the Defendant is not Eligible or entitled (sic) to be nominated or installed as Baale of Olope village in Egbedore Local Government Area of Osun State.
3. An order of perpetual injunction restraining the Defendant from parading or holding out himself as Baale of Olope in Egbedore Local Government Area of Osun State,”
Pleadings were filed and exchanged between the parties. The appellants amended statement of claim spans pages 4 – 6 of the record of appeal while the respondent’s further further amended statement of defence covers pages 8 – 11 of the record. The appellants called two witnesses (PW1 and PW2) and the 4th appellant testified as PW3. The respondent called four (4) witnesses and testified as DW5. Learned counsel for the parties addressed the court and in a reserved judgment delivered on the 10th day of June, 2005, the learned trial judge, Hon. Justice O. A. Ojo refused to grant the appellants’ claim. The appellants, being dissatisfied with the judgment of the lower court filed a notice of appeal spanning pages 93-96 of the record and the grounds, shorn of their particulars, are hereunder reproduced:
“1. The learned trial judge erred in law when she held that she had no jurisdiction to hear and determine the Plaintiffs claim relating to minor chieftaincy for failure on the part of the plaintiff to exhaust available remedy as provided under Section 22(5) of the Oyo State Chief law Cap 21, 1978 as applicable to the case, when the plaintiffs failed to appeal against the finding of the late Aragberi of Iragberi (the prescribed authority in respect of Baale Olope Chieftaincy) that both the Plaintiffs’ family and Defendants Family are entitled to Baale of Olope Chieftaincy.
2. The decision of the trial judge decline (sic) jurisdiction to hear and determine the plaintiffs’ claim based on non-compliance with provision of Section 22(5) of the Chief Laws of Oyo State Cap 21, which is a State Law is erroneous (sic) in the sense that the said provision is inconsistence (sic) with provision of Section 236(1) of the 1979 Constitution which is now Section 272 (1) of the 1999 Constitution of Federal Republic of Nigeria which gave State High Court subject to the hear and determine any Civil Proceedings in which existence or extent of a Legal Right etc.
3. The learned trial judge erred in law and misdirected herself when after holding that she had no jurisdiction to hear and determine the Plaintiffs’ claim based on failure of the plaintiff to exhaust remedy available under Section 22(5) of Chief Laws of Oyo State Cap 21 Plaintiffs claim after review of the evidence adduced by the plaintiffs and that of the defendant.”
The parties filed and exchanged briefs, On the 27th day of March, 2012 when the appeal was called for hearing, the appellants and their learned counsel, although duly served with a hearing notice, were not in court and pursuant to Order 18 rule 9(4) of the Court of Appeal Rules, 2011 the appellants were deemed to have argued the appeal on their briefs dated 01/12/2008 and filed on the same day but deemed properly filed and served on 20/01/2009. The appellants’ brief was settled by Alhaji Adetunji Ajagbe, Esq. Ayodele Laogun, Esq. with Mrs. Folake Oroniyi and Kayode Adelaja, Esq., learned counsel for the respondent adopted the respondent’s brief dated 28/05/2009 and filed on 02/06/2009 but deemed properly filed and served on 19/10/2009. Learned counsel relied on the respondent’s brief and urged the court to dismiss the appeal.
The appellants framed the following issues for determination:
“1. Whether the learned trial judge was right in dismissing the Plaintiffs claim when he held she had jurisdiction to try the case of the Plaintiff in that the plaintiffs have not exhaust available remedy by way of appealing against the decision of the Aragberi of Iragberi late Oba Musa Oloyede in respect of dispute as to who is entitled to be appointed or installed as Baale of Olope when in actual fact the plaintiff is claiming for a declarative relief i.e (a) A declaration that the Plaintiffs’ family are the only family entitled to nominate a candidate for approval as Baale of Olope in Olope Village of Egbedore Local Government of Osun State;
(b) A declaration that the Defendant is not eligible to be nominated or installed as Baale of Olope Village in Egbedore Local Government of Osun State; and
(c) An order of perpetual injunction restrain the defendant from parading or holding out himself as Baale of Olope in Egbedore Local Government Area of Osun State.
2. Whether the learned trial judge was right to have dismissed the claim of the Plaintiff when at the conclusion of the trial of the case, the learned trial judge held that it had not (sic) jurisdiction to try the Plaintiffs case.
3. Whether the learned trial judge had the right after holding that the Court had no jurisdiction in respect of the Plaintiffs claim to proceed further and evaluate the evidence adduced by the parties in the case and held at page 91 – 92 of the record of preceding that..’ the appointment and installation of the defendant as Baale of Olope Village was validly made,” when the defendant did not counter – claim for such.”
The respondent also framed three (3) issues for determination thus:
“1. Whether the learned trial judge was right when she held that the Court had no jurisdiction to entertain the suit for failure on the part of the plaintiffs to exhaust all available remedies before coming to Court and having held so whether the learned trial judge dismissed or struck out the suit for want of jurisdiction.
2. Whether the learned trial (sic) judge was right to have considered the Plaintiffs claims on merit after holding that the Court lacked jurisdiction to entertain the suit and to have dismissed the Plaintiffs suit having found no merit in it.
3. Whether the learned trial judge in the course of her consideration of the Plaintiffs’ suit on merit could not make a finding of fact on the appointment of the defendant as Baale of Olope.”
The appellants’ issues 1 and 2 and the respondents’ issues 1 and 2 can be considered under the appellants’ issue 2, namely:
“2. Whether the learned trial judge was right to have dismissed the claim of the Plaintiffs when at the conclusion of the trial of the case, the learned trial judge held that it had no jurisdiction to try the Plaintiffs’ case.”
The appellants reproduced the averments in paragraphs 3 to 20 of their amended statement of claim and the relief in paragraph 21 thereof, and also paragraphs 9, 11, 12, 13, 14 and 15 of the respondent’s further further amended statement of defence, summarized the facts pleaded by the parties and submitted that the trial court had “the jurisdictional competency to adjudicate upon” their claim. They contended that the lower court had the jurisdiction to review the decision of Aragberi of Iragberi, the prescribed authority of the Baale of Olope village chieftaincy. On this point, Alhaji Adetunji Ajagbe, Esq; who settled the appellants’ brief, referred to and relied on the cases of Omomeji v. Kolawole (2003) 14 NWLR (Pt.1106) 180 at 199 – 200; Eguanwense v. Amaghizemwen (1993) 9 NWLR (Pt.315) 1 and Offor v. Osagie (1998) 1 SCNJ 122. He finally submitted that “where a court finds that it had no jurisdiction to try a case, the best such a court should do is to strike out the case and dismiss it” and cited the cases of Oloriode & Ors. v. Oyebi & Ors. (1984) NSCC (Vol.15) 286 and Maduafokwa v. Abia State Govt. (2008) 33 WRN 37 at 61 in support of his argument.
In response, learned counsel for the respondent reviewed the facts of the case as borne out by the pleadings of the parties, the findings of the trial court and submitted, inter alia, thus:
“…it is apparent that the appellants had not challenged the validity of the decision of the prescribed authority, either by an appeal to the executive Council for review or certiorari to remove the decision to the High Court to be quashed. It is therefore inappropriate for them to do so by a declaration. In the circumstances the decision of the prescribed authority remained valid”.
In support of his forgoing submission, the respondent relied on the cases on the cases of Eguamnwense v. Amaghizenmwen (1993) 9 NWLR (Pt.315) 1 and Aribisala & Anor v. Ogunyemi & Ors. (2005) 2 SCM 32. The respondent argued that the lower court was right to have held that it had no jurisdiction to entertain the appellants’ suit as they had not exhausted the remedies provided for by law. The respondent then submitted: “It is apparent from the record of proceedings therefore that the learned trial judge struck out the case for want of jurisdiction.”
The respondent also argued that in the circumstances of the case before the trial court, no rule of court stopped it from considering the appellants’ case “on merit in order to afford the appellate court the opportunity of looking at the two issues, viz: jurisdiction and merit of the case considered …”. The respondent distinguished the cases of Oloriode & Ors. v. Oyebi & Ors. (supra) relied on by the appellants and urged the court to hold that the trial court was right to have considered the appellants’ claim on the merit and to have dismissed same. The facts of this case, as can be gleaned from the pleadings of the parties, namely: the appellants’ amended statement of claim and the respondents’ further amended statement of defence spanning pages 4 – 7 and 8 – 11 respectively of the record of appeal, the appellants claimed exclusive right to the Baale of Olope Chieftainry in Olope Village, Egbedore Local Government Area of Osun State; that their forebear Yesufu Opadeji was installed as the Baale of Olope by the Aragberi of Iragberi the prescribed authority and that Yesufu Opadeji reigned as Baale of Olope between 1959 and 1988 when he died; that after the death of Yesufu Opadeji efforts by the appellants’ family to get one of themselves to be installed as the Baale of Olope was stalled because there was no reigning Aragberi of Iragberi (Oba of Iragberi) to do the installation until Musa Oloyede Asanike (now deceased) was installed the Oba of Iragberi in 1998; that the 4th appellant was presented to become the next Baale of Olope but surprisingly the respondent also rose to contest the chieftaincy stool with the appellants’ family.
The respondent, however, claimed that the Baale of Olope village chieftaincy was created by the Aragberi of Iragberi for tenants farming and residing at Olope Village; that the Baale of Olope is a minor chieftaincy under the Prescribed Authority of the Aragberi of Iragberi; that on 12/10/1998 he was appointed as the Baale- elect of Olope and approved by late Oba Musa Oloyede Asanike, the Aragberi of Iragberi who installed him in the morning of 13/10/1998; that in the process of filling the vacant Baale of Olope chieftaincy the late Aragberi of Iragberi invited both the appellants’ family and his family “for an internal inquiry on the matter” on 06/09/1998 and both parties agreed that the two families were entitled to the chieftaincy.
In its judgment, the lower court found and held, at page 91 of the record of appeal, inter alia, that “the Baale Olope chieftaincy is not the for a single family but that from the pattern of filling the chieftaincy so far it belong to both the plaintiffs and the defendant’s family” . The appellants did not appeal against this finding of facts of the trial court and they are deemed in law to have accepted it. See Shell Petroleum Development Company Limited v. Chief Tigbara Edamkue & Ors. (2009) 14 NWLR (Pt.1160) 1
In paragraphs 2.13 and 2.14 of his brief, the solicitor for the appellants stated thus:
“2.13. On the 15th day of January, 2001 the lower high Court presided over by His Lordship Justice F. O. Ayoola (retired) gave ruling in an interlocutory application restraining the defendant from parading or holding out himself as Baale of Olope in Egbedore Local Government pending the hearing and determination of the substantive case.
2.14 The basis upon which the ruling of the Hon. Judge was is (sic) that the defendant was installed as Baale of Olope on the 13th day of October, 1998 while and after service of the Writ of Summons in this case on the 12th day of October, 1998 on the Defendant”.
The above statements of facts by the appellants is borne out at page 42 of the record of appeal before me.
The law is trite that an appellate court and parties are bound by the record of proceedings before the court. See Oguntayo v. Adelaja (2009) 15 NWLR (Pt.1163) 150. In other words, there is presumption of genuineness of record of proceedings and both the court and counsel are bound by it – Ekpemupolo v. Edremoda (2009) 8 NWLR (Pt.1142) 166. However, there is a duty on an appellate court not hear an appeal on incomplete record – Ekpemupolo v. Edremoda (supra). In the instant case, none of the parties has complained that the record of appeal is incomplete or that it does not reflect the proceedings in the lower court. Under cross-examination, the respondent as DW5 testified at page 42, inter alia as follows:
“it is true that I was installed Baale of Olope village on 13/10/99.
It is not true that I receive the court processes in respect of this case at about 3pm on 12/10/98. I received same on 13/10/98 at 3.30pm.
I received the copy of order for interlocutory injunction granted by the Court on 13/10/98 after I have been installed as Baale of Olope village.”
Without the fear of any speculation, where the evidence of respondent is juxtaposed with his pleading summarized earlier, it seems obvious to me that the appellants filed their suit in the lower court on 12/10/1998 after the Prescribed Authority had appointed the respondent as the Baale of Olope on 12/10/1998. At pages 86-87 of the record of appeal, the learned trial judge made the following findings of facts:
“1. That in the process of filling of the Olope Chief-taincy after the death of Yesufu Opadeji, there was a dispute as to which family is entitled to appoint a person to fill the vacancy. The dispute was between the plaintiffs family and the defendant’s family.
2. That the then prescribed authority Aragberi Oba Asanike called and invited both families for an enquiry to resolve the dispute.
3. That the enquiry was held and the two families were duly represented.
4. That the prescribed authority make (sic) his decision known to all the parties that both families are entitled to the chieftaincy.
5. That it was thereafter that the defendant’s family was called upon to appoint a person to fill the vacancy and the defendant was so appointed.
6. That the appointment was approved by the prescribed authority.”
The above findings of facts were not appealed against and are deemed to have been accepted by the appellants. Section 22 sub-sections 2 – 5 of the Chiefs Law, Cap.21, Laws of Oyo State 1978 then applicable in Osun State provide thus:
“(2) where a person is appointed, whether before or after the commencement of this Law, to fill a vacancy in the office of a minor chief by those entitled by customary law so to appoint and in accordance with customary law, the prescribed authority may approve the appointment.
(3) Where there is a dispute whether a person has been appointed in accordance with customary law to a minor chieftaincy the prescribed authority may determine the dispute.
(4) Any person aggrieved by the decision of the prescribed authority in exercise of the powers conferred on the prescribed authority by subsections (2) and (3) of this section may, within twenty-one days from the date of the decision of the prescribed authority, make representations to the Commissioner to whom responsibility for chieftaincy affairs is assigned that the decision be set aside and the Commissioner may, after considering the representations, confirm or set aside the decision.
(5) Before exercising the powers conferred by subsection (5) of this section, the Commissioner may cause such inquiries to be held in accordance with section 21 as appear to him necessary or desirable.”
The above provisions have received judicial interpretation to the effect that the provisions are mandatory and that failure to exhaust the remedy provided under section 22(5) makes a suit in respect of a dispute on a minor chieftaincy premature and incompetent, thereby depriving the court jurisdiction to entertain it. See the case of Mr. Oladiti Adesola V. Alhaji Raimi Abidoye & Anor. (1999) 14 NWLR (Pt.637) 28.
In the instant case, there is no evidence that the appellants having been aware of and being dissatisfied with the appointment and approval of the respondent on 12/10/1998 by the Prescribed Authority exhausted the procedure and remedy specified by section 22 (5) of the Chiefs Law before instituting their suit in the court below. The lower court, therefore, lacked jurisdiction and was entitled to have the appellants’ suit struck out.
It should be noted that the issue of jurisdiction and the merits of the substantive claim were taken together after the close of evidence and addresses of learned counsel for the parties. The lower court, not being a final court on the issues before it, was right to have determined and resolved all the issues submitted by the parties for its determination. It was a prudent and wise use of judicial time by lower court to have made known its views on the all the issues to avoid a retrial of the case if it turned out that it was wrong to have held that it lacked jurisdiction.
The law is settled that “an issue is a point that has arisen in the pleadings of the parties which forms the basis of the dispute or litigation which requires resolution by a trial court” – per Ogbuagu, JSC in Unity Bank Plc. & Anor. v. Mr. Edward Bouari (2008) 7 NWLR (Pt.1086) 372 at 402, para, F. See also Egbe v. Alhaji & 2 Ors. (1990) 1 NWLR (Pt.128) 546; Metal Construction (W.A.) Ltd. v. Migliore (1990) 1 NWLR (Pt.126) 299 and Ishola v. Ajiboye (1998) 1 NWLR (Pt.532) 71. In the present case, the issues of jurisdiction and the merits of the appellants’ claim arose from the pleadings of the parties and both issues were rightly resolved by the learned trial judge – Ojo, J;
Having regard to the facts and circumstances of this case, this issue ought to be resolved in favour of the respondent against the appellants and it is hereby so resolved.
The second issue which calls for determination is issue 3 framed by the appellants and this covers the respondent’s third issue. The appellants contended that since the respondent did not counterclaim the court, not being a “Father Christmas”, ought not to have pronounced that “the appointment and installation of the Defendant as Baale of Olope Village was validly made” which is tantamount to awarding a claim never claimed by the respondent. That a court should not award a claim not relied on, the appellants referred to and relied on the cases of Sodipo v. Ogidan (2008) 4 NWLR (Pt.1077) 342 at 366; Isheno v. Julius Berger (Nig.) PLC (2008) 2 NWLR (Pt.1072) 522 at 571 and 573.
In his response, the respondent referred to the claim of the appellants with which he joined issues and submitted that the learned trial judge was right to have made the finding of fact complained about by the appellants.
I agree with the appellants that a court of law should not grant to a party a relief not claimed by him.
However, it should always be borne in mind that the evaluation or assessment of evidence is the primary duty of a trial court. And in performing its primary duty, the Supreme Court has held that “the court must consider issues joined by properly reviewing the evidence and making proper findings”. Sagay v. Sajere (2000) 6 NWLR (Pt.661) 360 at 370.
In paragraph 20 of their amended statement of claim, the appellants averred that the respondent “is not a member of Onifade Family who are the original settler at Olope Village, and as such has no right to the Baale of Olope Chieftaincy” and, accordingly claimed the declaratory and injunctive relief reproduced earlier in this judgment. The respondent joined issues with the appellants and averred in paragraph 20 of his further further amended statement of defence that he “is entitled to the Baale of Olope Chieftaincy and has been validly nominated, appointed, approved and installed Baale of Olope… under native laws and custom.” Both parties led evidence on this issue. In my view, the finding or pronouncement of the lower court complained of by the appellants is not tantamount to granting a relief not counterclaimed by the respondent. The finding of fact or pronouncement, based on the evidence before the lower court, which has not been shown to be perverse or unfounded, is clearly within the undoubted primary duty of the trial court to assess and evaluate the evidence and materials before it and to make findings of facts on them.
The appellants’ complaint has no basis and this issue is hereby resolved against them in favour of the respondent.
Having resolved all the threshold issues in this appeal against the appellants, I find no merit in their appeal. The appeal is hereby dismissed. The judgment of the lower court is hereby affirmed.
The sum of N60,000.00 (Sixty Thousand Naira only) is hereby awarded as costs in favour of the respondent against the appellants.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the opportunity of reading before now the judgment of my learned brother, MOORE A. A. ADUMEIN, JCA just delivered. I agree with his reasoning and conclusion that the appeal lacks merit and ought to be dismissed. I also dismiss it and affirm the judgment of the lower court. I abide by the order for costs.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read in advance the lead judgment just delivered by my learned brother, Adumein JCA. I agree with his reasoning and conclusion. I too find no merit in the appeal. I dismiss it and affirm the judgment of the lower court. I abide by the order made as to costs.
Appearances
For Appellant
AND
Ayodele Laogun, Esq. with Mrs. Folake Oroniyi and Kayode Adelaja, Esq. For Respondent
