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In The Supreme Court of Nigeria

On Friday, the 6th day of April 1990

SC 15/1987

 

Before Their Lordships

 

 

Andrews Otutu Obaseki

......

Justice, Supreme Court

Kayode Eso

......

Justice, Supreme Court

Saidu Kawu

......

Justice, Supreme Court

Salihu Modibbo Alfa Belgore

......

Justice, Supreme Court

Philip Nnaemeka-Agu

......

Justice, Supreme Court

 

 

Between

 

Chief R. B. Buraimoh 

......

Appellant

 And

Chief Maliki Adeniyi Esa

Chief Salami Arojojoye Asanlu

Chief Yesufu Ogungbesan Esa

Chief Sanni Abidolu Osolo

Chief Jacob Balogun Elemosho

Mr. Peter Akadi

Oba Salihu D. Alebiosu II

Ifelodun Local Government

Permanent Secretary, Ministry of Local Government

.......

Respondent

 

 

Judgement of the Court

Delivered by

Saidu Kawu. J.S.C.

 

This is a further appeal by the plaintiff in this case against the dismissal by the Court of Appeal, Kaduna Division. of his appeal against the judgment of Adeghite J., sitting in an Ilorin High Court.

In that court, the plaintiff had instituted an action against the defendants jointly And severally claiming in his amended writ of summons as follows:-

 

The plaintiff's claim against the defendants both jointly and/or severally is for (i) a declaration that the plaintiff is the rightful Oba of Idera having been so appointed in October, 1979 by the Juduala Ruling House, whose turn it was to appoint a successor of the late Oba Noah Oloruntoba (from Oyan/Olupo Ruling House]who died in September, 1979, sequel to the Agreement of July28, 1962 now annexed as Annexure I to this writ of summons, (ii) a declaration that the 1st - 5th defendants who are the Idera Kingmakers cannot instal the 6th defendant who is a member of Ikota Ruling House as the Oba of Idera as now being threatened as doing so will be in breach of the aforesaid Annexure 1, (iii) an order mandating the first to fifth defendants to instal the plaintiff as the Oba of Idera and (iv) a perpetual. injunction prohibiting the 6th defendant from performing the functions of the Oba of Idera and from enjoying the perquisites of the said office; (v) the 7th defendant has no power to appoint or instal the 6th defendant as the Oba of Idera and (vi) the 8th and 9th defendants have no power to approve the appointment of the 6th defendant as the Oba of Idera.

 

The substance of the plaintiff's claim was that in accordance with the terms of an agreement entered into by the members of Idera Community (Exhibits 1 and 2), it was the turn of his family to provide a candidate for the throne of Oba of Idera after the demise of Oba Noah Oloruntoba in 1979, that at a meeting of his family summoned for the purpose, he was duly elected as their candidate, and that subsequently his name was forwarded to the 1st - 5th defendants, who were the kingmakers and who wrongfully refused to instal him. It was also his case that the subsequent appointment of the 6th defendant by the 7th defendant as the Oba Idera of Idera community was wrong and that the 8th and 9th defendants who approved the appointment of the 6th defendant had no power to do so.

The plaintiff filed an amended Statement of Claim. The lst-6th defendants filed a Statement of Defence and the 7th - 9th defendants did not file any pleadings. At the trial the plaintiff did not give evidence but called two witnesses who did so on his behalf. The 1st - 6th defendants did not give evidence either but two witnesses testified on their behalf.

 

At the end of the trial, the learned trial Judge gave careful consideration to the evidence adduced by the parties, and in dismissing the plaintiff's claims against all the defendants, concluded as follows:-

 

On the whole, I repeat that it is well known that Civil cases are decided on a preponderance of evidence. The burden is always on the plaintiff and it is burden that has to be proved to the satisfaction of the court in a case where a declaration is sought from the court. The plaintiff must rely on the strength of his own case and not on the weakness of the defendant whose duty is merely to defend. If the onus of proof on the plaintiff is not discharged, the weakness of the defendants case will not help the plaintiff.

 

He cited, in support of the principles of law enunciated, the fol1owing cases:-

 

(1)     Kodilinye v. Mbanefo Odu, 2 W.A.C.A. 336-337

(2)     Alhaji Elais v. Chief Omobare (1982) 5 S.C.25 at 46 - 47

(3)     Piaro v. Tenalo 1976 1 F.N.R. 229

(4)     Ekun and Ors. v. Baruwa and Ors. (1966) 2 All N.L.R. 211.

 

The plaintiff, being dissatisfied with the decision of the High Court, appealed to the Court of Appeal, Kaduna Division, on a number of grounds, and that court, by the lead judgment of Babalakin, J.C.A.. with which Maidama and Akpata, JJ.C.A.. concurred, dismissed his appeal and confirmed all the findings of the learned trial Judge.

 

The plaintiff (hereinafter called the appellant) has appealed further to this court filing six grounds of appeal. In his brief of argument, Mr. Ijaodola for the appellant framed the following questions for consideration in this appeal:-

 

(i)     did Exhibit 1, which was translated as Exhibit 2, indicate the order of succession to the stool of Oba of Idera

 

(ii)     could it be the turn of 6th defendant/respondent's group i.e. group (c) on the demise of the late Oba Noah Oloruntoba

 

(iii)    what is the effect of non-cross examination on a piece of evidence

 

(iv)    did the plaintiff sufficiently deny paragraph 7 of the statement of defence in his Reply

 

(v)     were the other reliefs dependent on success or failure of prayer (i)

 

(vi)    what was the effect of installation of the 6th defendant during the pendency of the suit

 

(vii)   was the Court of Appeal right in not setting aside the trial court's decision.

 

Chief Olorunsola, learned counsel for the 1st - 6th defendants (hereinafter called the respondents) framed the issues for determination somewhat differently, thus:-

 

1.     Whether it is proper to bring into an agreement words which are not expressly stated in the agreement or whether words should be given their natural and ordinary meaning?

 

2.     Whether the court should be fettered from believing a piece of evidence as opposed to another contrary evidence on the same issue whether or not there is cross-examination on any of such piece of evidence.

 

3.     Will an Appeal Court reverse a finding of fact of a trial court which is supported by evidence and which is not shown to be perverse?

 

Having given careful consideration to the grounds of appeal filed by the appellant in this appeal and to the submissions of learned counsel, both in their briefs of arguments and orally at the hearing, I have come to the conclusion that there are only four main issues for determination in this appeal and they are as follows:

 

(1)    On the true interpretation of Exhibit 2, which Ruling House's turn was it to select a candidate for the stool of Oba of Idera Town after the demise of Oba Noah Oloruntoba?

 

(2)    If it was the turn of the appellant's Ruling House to do so, was the appellant nominated as a candidate by his family?

 

(3)   If he was so nominated as a candidate by his family, was he presented to the Kingmakers for installation?

 

(4)   Was the 6th respondent validly appointed Oba of Idera in accordance with the terms of Exhibit 2?

 

With regard to the first question, I consider it necessary to set out in full the contents of Exhibit 2. The document reads as follows:"DECISION AND PROCEDURE ABOUT ASCENSION TO THE THRONE OF OBA OFIDERA, IDERA-OKEOYAN

 

I.      The entire Community of Idera-Okeoyan agreed that ascension to the throne of Oba of Idera shall be rotated among the following four groups of families:-

 

A.     Oyan and Olupo;

B.     Jaduala, Okeapata and Adesi;

C.     Ikota, Obiri, Onire and Edidi:

D.     Okela and Ija Osi

 

II.     Ascension to the throne of the Oba in our Town shall not be restricted to one particular family at all, no single group of family shall retain the Obaship title for ever. When an Oba dies, another Oba shall be chosen from another group of families.

 

III.   The Community reserves the right to reject the nominee of a group of families, if they are not satisfied with the choice; in which case the group of families could present another nominee.

 

IV.   In the event of disagreement within a group of families over who they will nominate for the title of Oba, the heads of the remaining groups of families shall mediate in the matter to settle it as is fit.

 

V.    Nobody shall vie for the title of Oba except within his own group of families.

 

The following were the signatories to the agreement on behalf of their respective groups of families in Idera-Okeoyan Town:-

 

A. 

(1)    Oyan 

(2)    Olupo 

 

B. 

(1)    JadualaOyan

(2)    Oke-Apata

(3)    Adesi

 

C. 

(1)    Ikota 

(2)    Obiri 

(3)    Onire

(4)    Edidi

D. 

(1)    Okela

(2)    Ija-Osi

 

Now the first clause of Exhibit 2 states clearly that ascension to the throne of Oba of Idera "shall be rotated amongst the following four groups of families……….The groups are then named A, B, C and D. It is an elementary rule of construction of documents that in construing Exhibit 2, one is bound to give to the operative word "rotate" used by the parties, its simple and ordinary meaning so as to be able to discover the intentions of the makers of the document. In Ogbunyiya v. Okudo (1979) 6-9 S.C.32, this court stated the rule at p.48 of the report as follows:-

 

One of the cardinal rules of construction of written instruments is that the words of a written instrument must in general be taken in their ordinary sense notwithstanding the fact that any such construction may not appear to carry out the purpose which it might otherwise be supposed was intended by the maker or makers of the instrument. The rule is that in construing all written instruments the grammatical and ordinary sense of the words should be adhered to, unless that would lead to some absurdity or some repugnancy or inconsistency with the rest of the instrument; the instrument has to be construed according to its literal import unless again there is something else in the context which shows that such a course would tend to derogate from the exact meaning of the words.

 

The verb "rotate" is defined in the Webster's New Twentieth Dictionary Unabridged, Second Edition thus:

 

(1)    to cause to turn round, as a wheel on its axis;

 

(2)    to cause to go in a regular and recurring succession of changes; to cause to take turns.

 

Applying the rules of construction enunciated in Okudos case (supra) to the case in hand, it is my view that the intention of the makers of Exhibit 2 was that ascension to the throne of Oba Idera should be rotated amongst the four Ruling Rouses commencing from Group A and moving from that group to the next group which is group B, and from that group to C and D respectively. I therefore agree with the submission of the learned counsel for the appellant, Mr. Ijaodola that ascension to the throne of Oba Idera is rotational.

 

Now having held that ascension to the throne as provided in Exhibit 2 is rotational, the next question is:- was it the turn of the appellant's family to nominate a candidate for the throne after the demise of Oba Noah Oloruntoba?

 

The evidence before the court was that Oba Noah Oloruntoba was the first to ascend the throne under the agreement, Exhibit 2. He was from Oyan and Olupo Ruling house which is group 'A'. Oba Noah Oloruntoba died in September, 1979. On the true interpretation of Exhibit 2, it is my view that after the death of Oba Noah, it was the turn of Group B, that is to say the Juduala, Okeapata and Adesi families to nominate a candidate. The appellant is a member of this group.

 

The next question is whether the appellant was nominated as a candidate by his Ruling Rouse. On this point, P.W. 1,Joshua Jolayemi Buraimoh testified that the Ruling Rouse of Jaduala, Oke Apata and Adesi met and nominated the appellant as their candidate. There was also before the trial court the testimony of D.W.l and D.W.2 who were both members of the same Ruling Rouse and who swore that the appellant was never nominated a candidate by the Ruling House. The learned trial Judge found that the appellant was never nominated as a candidate and his finding was upheld by the Court of Appeal. But a careful perusal of the record shows that the crucial issue of the nomination of the appellant as a candidate by his Ruling Rouse was not made an issue by the appellant because it was never pleaded. It is settled law that in civil cases, parties are bound by their pleadings, and that evidence adduced in respect of a matter not pleaded goes to no issue and such evidence should be disregarded. See Ferdinand George v. The United Bank for Africa Ltd. (1972) 8-9 S.C. 264 at page 274 and Usenfowokan v. Idowu (1969)1 All N.L.R. 125. Since the issue of the nomination of the appellant as a candidate for the stool of Oba of Idera was not pleaded in the Statement of Claim, the learned trial Judge should not have allowed evidence to be given in respect of the matter. The conclusion I have reached therefore is that the appellant had failed to prove that he was nominated a candidate for the stool of Oba Idera by the Ruling House whose turn it was to nominate a candidate after the demise of Oba Noah Oloruntoba.

 

Was the appellant presented to the Kingmakers for installation by the Juduala, Oke Apata and Adesi Ruling Family?

 

Paragraph 8 of the appellant's amended Statement of Claim pleads as follows:-

 

8.      In October, 1979 the members of Jaduala section presented the plaintiff to the Idera Kingmakers for installation as the new Oba of Idera with the consent of the other two sections of Jaduala/Okeapata/Adesi Ruling House.

 

Now it is the duty of the plaintiff to call evidence to support his pleadings in so far as there is no admission of the matters alleged by him. In this case, however, there was no iota of evidence proffered by the appellant to prove paragraph 8 of the Statement of Claim which averred that the appellant was presented to Idera Kingmakers by his Ruling House for installation.

 

The appellant as plaintiff in the trial court claimed six reliefs altogether, and I will now proceed to examine those reliefs in the light of the conclusion I have reached in this judgment.

 

The first relief praying the court to declare him the rightful Oba of Idera must be refused because although it was the turn of his family to nominate a candidate for the stool of Oba Idera after the demise of Oba Noah Oloruntoba, there is no evidence that he was so nominated by his family. Not having been nominated as a candidate, he is not entitled to the third relief seeking an order of the court mandating the Kingmakers to instal him as the Oba of Idera.

 

The appellant's second and fourth prayers are closely related and they are as follows:-

 

(ii)    a declaration that the 1st - 5th defendants who are the Idera Kingmakers cannot instal the 6th defendant who is a member of Ikota Ruling House as the Oba as now being threatened as doing so will be in breach of the aforesaid Annexure I,………

 

(iv)   a perpetual injunction prohibiting the 6th defendant from performing the functions of the Oba of Idera and from enjoying the perquisites of the said office.

 

The evidence before the court, which is uncontradicted is that the 6th defendant/respondent is a member of the Ikota Ruling House which is group 'C'. As I have held earlier in this judgment, it was the turn of the appellant's Ruling House Group B to nominate a candidate after the death of Oba Noah Oloruntoba and not that of the 6th defendant. That being so, it would certainly be in breach of the terms of Exhibit 2 for the Kingmakers to instal the respondent as the Oba. In the circumstances, I think that the appellant is entitled to the second prayer namely that the 1st -5th respondents who are Kingmakers cannot instal the 6th respondent as the Oba of Idera, and it is so declared.

 

With regard to the fourth relief seeking a perpetual injunction prohibiting the 6th respondent from performing the functions of the Oba of Idera, the evidence before the trial court was that the 6th respondent had been appointed the Oba of Idera. In this regard D.W. 1 in his evidence said:-

 

As of today we have an Oba (Chief) he is the Peter Akadi from Ikota family in group C. there has never been an Oba from group C to the best of my knowledge. I know that the Kingmakers have accepted and made Akadi an Oba. There was no Oba from 1955 - 1965.

 

The fact that the 6th respondent had been appointed the Oba of Idera confirmed by D.W.2 in his evidence.

 

Now in view of the conclusion I have reached earlier on in this judgment relating to the interpretation of Exhibit 2, could the appointment and instalif the 6th respondent have been validly made by the Kingmakers? My answer is firmly in the negative. That being the case, I think the 6th responust be restrained by perpetual injunction from performing the functions of the Oba of Idera and from enjoying the perquisites of the said office.The fifth and sixth reliefs have not been made out and they are accordingly refused.

 

The appeal therefore partially succeeds with regard to reliefs 2 and 4 and it is accordingly allowed. I consider that this is an appeal in which each side should bear its costs and this shall be the order of the court.

 

 

Judgement delivered by

Obaseki. J.S.C.

 

I  have had the privilege of reading in advance the draft of the judgment just delivered by my learned brother, Kawu, J.S.C. I find that his opinions on all the issues for determination in this appeal accord with mine and I adopt them as my own.

 

The plaintiff's/appellant's claim as endorsed on the writ of summons against the defendants/respondents jointly and/or severally is for

 

(1)    a declaration that the plaintiff is the rightful Oba of Idera having been so appointed in October, 1979 by the Juduala Ruling house whose turn it was to appoint a successor of the late Oba Noah Oloruntoba (from Oyan/Olupo Ruling House) who died in September, 1979 sequel to the agreement of July 28, 1962 now annexed as Annexure 1 to this writ of summons;

 

(2)    a declaration that 1st to 5th defendants who are the Idera Kingmakers cannot instal the 6th defendant who is a member of Ikota Ruling House as the Oba of Idera as now being threatened as doing so will be in breach of the aforesaid Annexure 1;

 

(3)    an order mandating the first to fifth defendants to instal the plaintiff as the Oba of Idera;

 

(4)    a perpetual injunction prohibiting the 6th defendant from performing the functions of the Oba of Idera and from enjoying the perquisites of the said office;

 

(5)    the 7th defendant has no power to appoint or instal the 6th defendant as the Oba of Idera; and

 

(6)    the 8th and 9th defendants have no power to approve the appointment of the 6th defendant as the Oba of Idera.

 

Pleadings were filed and exchanged or served in the High Court and after hearing evidence and addresses of counsel, the learned trial Judge in a considered judgment, dismissed the claim in toto. His appeal to the Court of Appeal was dismissed and being dissatisfied with that decision, he has brought this appeal to the Supreme Court.

 

The plaintiff's case was rested principally on the proper construction of the document (or agreement) Exhibit 1 and Exhibit 2, its English translation setting out the order of rotation of ascension to the (office or) throne of Oba of Idera. The agreement reads:

 

Decision and Procedure about ascension to the throne of Oba of Idera, ldera-Okeoyan.

 

I.      The entire COMMUNITY of Idera-Okeoyan agreed that ascension to the throne of Oba of Idera shall be rotated among the following four groups of families:-

 

A.     OYAN and OLUPO

B.     JADUALA, OKEAPATA and ADESI

C.     IKOTA, OBIRI, ONIRE and EDIDI

D.     OKELA and IJA 0SI.

 

II.     Ascension to the throne of the Oba in our town shall not be restricted to one particular family at all, no single group of family shall retain the obaship title for ever. When an Oba dies, another Oba shall be chosen from another group of families.

 

III.     The community reserves the right to reject the nominee of group of families, if they are not satisfied with the choice, in which case the group of families could present another nominee.

 

IV.    In the event of disagreement within a group of families over who they will nominate for the title of Oba, the heads of the remaining groups of families shall mediate in the matter to settle it as fit.

 

V.    Nobody shall vie for the title of Oba except within his own group of families.

 

On the proper construction of the document, the order of rotation is from A to B to C to D group of families. This is the simple ordinary sense in which the word "rotate" was used in the document. The rules of construction which guide the courts in such cases enjoin the court to give the word its ordinary grammatical meaning and I agree with my learned brother, Kawu. J.S.C., that the order of rotation is from A to B to C and to D group of families.

 

The court having found that the last Oba now deceased, hailed from group A families, the next group entitled to present a candidate is group B families to which the plaintiff belongs and not group C families to which the 6th defendant belongs. Since the trial court found that the plaintiff/appellant had not been nominated and presented for appointment by the competent authorities, I agree with my learned brother, Kawu, J.S.C., that his claims 1 and 3 fail and the appeal against the decision of the High Court affirmed by the Court of Appeal fails and is dismissed.

 

Since the 6th defendant hails from group C families who are not yet entitled to nominate and present a candidate for obaship, claims 2 and 4 succeed and the appeal against the decision dismissing them succeeds. Claims 5 and 6 have not been made out and the appeal against the decision of the High Court affirmed by the Court of Appeal in respect of those claims also fails and is hereby dismissed.

In conclusion, the appeal fails in respect of claims 1, 3,5 and 6 and succeeds in respect of claims 2 and 4. The declaration claimed in claim 2 is hereby granted and the order of injunction claimed in claim 4 is hereby made. Accordingly, the 1st to 5th defendants are hereby declared not to be entitled to instal the 6th defendant as Oba of Idera and the 6th defendant. Mr. Peter Akadi, is hereby restrained from performing the functions of the Oba of Idera and from enjoying the perquisite of the said office. This shall be the order of this court. The decision of the court of Appeal in respect of claims 2 and 4 is hereby set aside and the decision of the Court of Appeal in respect of Claims 1, 3, 5 and 6 is hereby affirmed.

 

There will be no order as to costs and each side must bear his or their costs.

 

 

Judgement delivered by

Eso. J.S.C.

 

I have had the privilege of a preview of the draft of the judgment which has just been delivered by my learned brother, Kawu, J.S.C. I agree with his conclusion and the order made.

 

The appellant must fail and he did fail in his case on the issue of nomination as a candidate by his Ruling House. He never pleaded it and a fortiori could not lead evidence on it.

 

In regard to the 6th respondent his appointment has not been made by the Kingmakers.

 

This is a case where the whole exercise must start afresh.

 

 

Judgement delivered by

Belgore. J.S.C.

 

I read in advance the lead judgment of my learned brother, Kawu, J.S.C., and I agree with his conclusion that this appeal succeeds in part. I adopt his reasoning and conclusion as mine.

 

 

Judgement delivered by

Nnaemeka-Agu. J.S.C.

 

This is a further appeal on the judgment of the Court of Appeal, Kaduna Division, coram Madama, Akpata and Babalakin, JJ.C.A. That court also dismissed an appeal against the judgment of Adeghite, J., sitting in an Ilorin High Court in this chieftaincy tussle between the plaintiff (appellant herewithin) and the 6th defendant.

 

My learned brother Kawu, J.S.C., has admirably set out the facts and issues in this appeal. I adopt them as part of this judgment.

The only point which worried me in the case was this: Was it the intention of the parties to the agreement, Exhibit 1, which was executed in 1962 that the rotation should start de novo, that is without taking into account those Ruling House groupings which had produced an Oba before 1962? Or, should the rotation be done in such a way that any Ruling House group which had produced an Oba before the agreement was reached in 1962 should thereafter be skipped'? The learned trial Judge dealt with this question in this way:

 

As for whether it should rotate alphabetically group by group, they did not agree. However according to D.W.1 Mr. Awoyomi there had been two Obas before Exhibit 1 was executed and before Noah Oloruntoba, the first Oba was Momodu Arogunmasa from Oyan family he reigned from 1948-1950. Oyan is from group A. The next one was Pastor Buremoh from 1951-1955. Buremoh is from Jaduala in group B. There was no Oba between 1955-1965. But in 1962 Exhibit 1 also referred to as Annexure I was agreed upon and executed by all the concerned families. The community then started with Noah Oloruntoba as Oba from Oyan family in group A. In the absence of any explanation, I am of the opinion that since Oloruntoba is from Oyan group as well as Arogunmasa who was on the throne between 1948-1950, it appears that after the execution of Exhibit 1, the community wanted to start afresh from group A. The argument, therefore. that because Pastor Buremoh from Jaduala was an Oba earlier from group B, it has not come to the plaintiff's turn is not supported by precedent. Since Oloruntoba was from Oyan family like Arogunmasa who reigned between 1948-1950. I am therefore of the opinion that with the precedent laid down in respect of Arogunmasa and Oloruntoba from the same Oyan family who reigned before and after execution of Exhibit 1, the plaintiff can ascend the throne in group B after the death of Oloruntoba if so elected or selected by his family and approved by the two other families in group B.

 

This reasoning has not been faulted. Indeed it has also been affirmed by the court of appeal. This, to my mind knocks the bottom off the respondent's case that a person from group B cannot be Oba because they had earlier, i.e. before 1962, produced an Oba.

 

It is however in the next important finding of the Court of Appeal that the appellant did not prove that he was nominated and selected by his Ruling House that his case crashes to the ground. This Court has stated it a number of times that it will not disturb concurrent findings of fact by two lower courts save for special circumstances shown. For this, see: Olujinle v. Adeagbo (1986)2 N.W.L.R. (Pt.75) 238 at p.255; Enang v. Adu (1981) 11-12 S.C. 25 at p.42 and Akinsanya v. United Bank for Africa Ltd (1986)4 N.W.L.R. (Pt.35) p.273. 1 have not been persuaded that there are any special circumstances in this case.

 

For these reasons and the fuller reasons contained in the judgment of my learned brother, Kawu, J.S.C., I also agree that the appeal succeeds only with respect to reliefs numbers 2 and 4 as set out in the lead judgment. I also subscribe to the orders made by him.

 

Appeal allowed in part.

 

Counsel

 

J. O.  Ijadola

  ........

For the Appellants

Chief P. A. O. Olorunnisola

  ........

For the 1st - 6th Respondents

S. K. Otta

  Solicitor-General, Ministry of Justice, Kwara State.

  ........

For the 7th - 9th Respondents