Ajedani Eigege V. Edoh Olobo (1993)

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RAPHAEL OLUFEMI ROWLAND, J.C.A.

 In the High Court of Plateau State holden at Jos, this suit No. PLD/J43/85 presided over by Uloko J, (as he then was) commenced on 11th day of November, 1986. For reasons not borne by the records of the court below the suit was transferred to High Court No.3, Jos, presided over by Momoh J, who started the case de novo thereby marking the beginning of the chequered history of the case.

In the court below the case was initially instituted by the respondent and one Omada Ameh against Ehada Ogba Sarkin Iggah in Loko District of Nassarawa Local Government Area of Plateau State. At that stage the plaintiffs were seeking only an injunction against the defendant.

Subsequently, the plaintiffs amended their statement of claim in which they added more reliefs and joined two other defendants – namely Ejeh Edoh and Obulama Ikaka.
The case then proceeded against the aforementioned three defendants.

In its judgment delivered by the court below on 20th July, 1987, the court granted the reliefs sought by the first plaintiff now the respondent herein against the first and second defendants but dismissed the claim of Omada Ameh against the third defendant. Not satisfied with the judgment, the defendants filed an appeal against it to this court. The Original Notice of Appeal contains one ground of appeal. However, with the leave of this court as per motion filed on 20th September, 1989 and granted on 30th November 1989, additional grounds of appeal were added to the original ground and leave also granted to add and argue issues of law not raised before the court below.

It would appear as borne by the briefs of the appellant and the respondent that this case is a ‘death trap’ as all the original defendants at the court below are now dead. They are:-
Ehada Ogba Sarkin Iggah, Ejeh Edoh and Obulama Ikaka.

The facts of the case could be summarised thus:-
Edoh Olobo the respondent herein claimed at the court below the title of Ondomain Agatu Clan of the village of Ayele-Iggah on the ground that he is the first son of his late father who held the title last. According to him the deceased first defendant – Ehada Ogba Sarkin Iggah threatened to strip him of the title which he had earlier conferred on him. The dead first defendant eventually conferred the title on the deceased second defendant. The case for the first and second deceased ‘defendants before the lower court was that after the death of the holder of the Ondoma title, the eldest male in the extended family not necessarily the son of the last holder, will take over the title.

On the other hand the appellant contended that the respondent never performed the alleged burial ceremony of his father and was never installed the Ondoma of Ayele-Iggah but that it was the then second appellant who was installed and the question of stipping the respondent of his title did not arise.

The Notice of Appeal contains five grounds as follows:-

“ORIGINAL GROUND OF APPEAL
1. The judgment is against the weight of evidence.

ADDITIONAL GROUNDS OF APPEAL
2. The learned trial Judge erred in law in taking cognisance of the suit before her and delivering judgment thereon without jurisdiction.
PARTICULARS OF ERROR
(a) The Writ of Summons dated 17/9/88 and filed on the same day, only sought for an injunction simpliciter, when there was no pending substantive suit between the parties.
(b) The purported amended statement of claim without the leave of the Court has different actions from the Writ of Summons.
(c) The two Respondents in their purported amended statement of claim joined their reliefs in one suit based on different causes of action against the appellants.
(d) The appellants were never served with any amended Writ of Summons joining them as Defendants with additional claims.

3. The learned trial Judge again erred in law and misdirected herself on the facts in the following passage which strongly influenced her judgment:-
“This is why I think the Agatu custom of Ayele-Iggah imposes upon the eldest son of a title father the extra burden of performing the prescribed customary burial rites at his own expenses and unassisted as a condition precedent to conferring him with the title … To succeed a titled man by his eldest son implies succession to the family title (here of Ondoma), succession of his father’s transmissible family rights and obligation; and succession to the rights and obligation as the over-all head of the ruling house.”
and this occasioned miscarriage of justice. (See page 79 lines 27-32 to page 80 lines 1-8 of the Record).
PARTICULARS
(a) The Respondent never pleaded the custom of the Agatu tribe relative to the succession to the office of Ondoma in their amended statement of claim, and
(b) There being no evidence in support of the above findings, the learned trial Judge was clearly in error as aforesaid in so finding.

4. The learned trial Judge erred in law when she held thus:-
“Knowing that he was eligible and entitled to hold the title, the 2nd Defendant had all along slept on his right and acquiesced by his conduct to the conferment of title on the 1st Plaintiff. He can not now be heard to complain…The principle of law to be applied in this case is that where a party acquiesced in the commission of an irregularity or error affecting his interest and allows it to pass to someone else is too late to rectify or complain about it later.”
(See page 93, lines 6-10 and page 94, lines 26-31) and this error occasioned miscarriage of justice.
PARTICULARS OF ERROR
(a) The 1st Respondent never estoppel as part of his case.
(b) If the learned trial Judge had adverted her attention to the case of Mogo Chinwendu vs. Nwanegbo Mgbamali (1980) 3-4 SC pages 74 & 80, she would have come to a different decision.
(c) The Appellant pleaded and adduced evidence to the fact that it is the custom of the Agatu people that the eldest man in the ruling house succeeds to the office of Ondoma. This being a rule of public policy can only be waived expressly and not by conduct.

5. The learned trial Judge further erred in law and on the facts in granting the reliefs sought by the 1st Respondent against the 1st and 2nd Appellants, and this occasioned miscarriage of justice.
PARTICULARS
(a) The evidence of the witnesses for the Respondent relied upon by the learned trial Judge were based on the facts not pleaded.
(b) The learned trial Judge contradicted herself in her findings which cannot support her orders.
(c) The 1st Respondent not having been eligible to the office of the Ondoma ought to have been disqualified.”