Amos Bamgboye & Ors. V. Raimi Olarewaju (1991)
LawGlobal-Hub Lead Judgment Report
M. A. BELGORE, J.S.C.
The plaintiff, Raimi Olanrewaju, was before the High Court of Kwara sitting at Ilorin, claiming from the defendants (now appellants) as follows:
(i) “a declaration that the plaintiff is the rightful successor to the late Odofin Aran, Chief Salawu Adefila
(ii) a declaration that it is not yet the turn of the first defendant’s branch to produce an Odofin Aran on the demise of the late Odofin Aran, Chief Salawu Adefila.
(iii) a declaration that the purported nomination of the first defendant by the second and third defendants is null and void and of no effect whatsoever and
(iv) a perpetual injunction prohibiting the first defendant from parading himself or acting as the new Odofin Aran in succession to the late Chief Salawu Adefila.”
The Odofin Aran, the title that allegedly ranks next to that of Head Chief of Omu Aran, The Olomu, died and a new one had to be appointed. At a meeting presided over by the Chief Bello Olori Okesan, one Alhaji Salami Dogo Baba Isale the sectional head of Okesan Odosare, the Adure was asked to bring a successor to the Odofin. According to the plaintiff the second defendant, Chief Abidoye Aniyiloro Edemo, without the permission or consent of Okesan family, which to him is the same as Okesan Odosare Ile Adure section, whose turn it was to present a new Odofin, took the first defendant, Amos Bamigboye to the third defendant, Chief Abidoye Aniyiloro Edemo as the new Odofin Aran.
The plaintiff contends that three sections of Okesan family exist, namely (i) Okesan Odosare Ile Adure, (ii) Okesan Ile Odun and (iii) Okesan Ileti. The first defendant, says the plaintiff is from Okesan Ile Odun while he is from Okesan Odosare Ile Adure and the late Odofin, Chief Salawu Adefila came from Okesan Ileti. The plaintiff contends that the appointment was rotated between these three branches and that his own branch, Okesan Odosare Ile Adure, was to produce the present Odofin. He gave a breakdown of the nomination procedure to be followed by Okesan family before the Odofin elect would be presented to the Olomu of Omu-Aran for installation.
As against the aforementioned averments, the defendants threw a new light on the matter in their statement of defence. They averred that Odofin title of Omu Aran is exclusive to two compounds of that town, to wit, Ile Odun and ile Okankan. It was admitted there is Okesan family of Omu-Aran comprising of Ile Odun, Ile Okankan, Odosare and Ileti as averred in the statement of claim. The list of Odofin since the existence of Omu-Aran was given, the last one, Odofin Salawu Adefila, being the twelfth. All the previous Odofins before Adefila were from either Ile Odun or Ile Okankan; but Adefila came from Ileti, an unusual departure from custom. The reason was given in paragraphs 5 and 6 of the Statement of Defence as follows:
“After the reign of Awofaran Ariwajoye (No. 10 above) it was the turn of Ile Odun to present an Odofin but because the reigning Alaran was from Ile Odun it was thought unreasonable to concentrate the two highest chieftaincy office in one family at the same time hence there was a compromise to allow an Odofin from Ile Okankan.
The instalment of Adefila from Ileti compound of Omu-Aran was an emergency measure to solve a crisis situation. The decision became a regrettable one as the rightful family never condoned the act and worst still the Odofin installed spent half of his reign bed-ridden.”
The Odofin is the next chief in rank to Olomu of Omu-Aran and thus it accords with common sense that once reigning Olamu comes from any of the two compounds producing Odofin the next Odofin should be appointed from the other family. The appointment of the last Odofin, according to the defendants, was dictated by special circumstance in that the incumbent Olamu of Omu-Aran came from one of the compounds, the Odofin could come from Ileti, an affiliated compound of the Okankan. So on record, according to the defendants, there have been twelve Odofins since the existence of Omu-Aran – first, second, fourth, sixth, seventh, and nineth from Ile Odun; third, fifth, eighth and eleventh from lie Okankan. Only the twelfth came from Ileti as explained earlier.
The statement of defence prompted a reply by the plaintiff whereby it was averred that only Ile Adure, Ile Odun and Ileti could produce an Odofin, and that throughout the history of Omu-Ara, only three Odofins existed – Odofin Olode Okuta of Ile Adure Odusare, Odofin Moronfoye of Ile Odun and Odofin Adefila of Ileti. It is to be observed that Omu Aran was settled by the people from the neighbouring Aran Towns to wit Arandun, Ara-Orun and Ara Ward now merged with Omu Aran Town. These were the conflicts between the parties and their respective evidence flowed along their pleadings. It is to be noted that both parties pleaded the normal procedure for appointment of Odofin.
Learned trial Judge, after reviewing all the evidence before him found as follows:
“First, it is conclusively settled that both the plaintiff and the first defendant are members of Okesan family of Omu-Aran and that in the absence of an Odofin, P.W.2, Chief Bello Olomu is the head of Okesan family only in virtue of his being the oldest member and in that capacity presided over the Okesan family meetings to select a new Odofin. I believe the evidence of P.W.2, and all those who testified for the defence especially the first defendant, D.W.2 and D.W.4 that Omu-Aran, Arandun and Aran-Orin people were one.” and further he also held thus;
“It is significant that even the centenarian P.W.2 did not give and; possibly could not give the name of the Odofin whom Ileti once produced before Odofin Adefila who died over a year ago. It strikes me as definitely too late to now contest Iletis upgrading to the status of a ruling house after P.W.2 has apparently scored that success for his own Ileti section by producing Odofin Adefila. In conclusion, I find as a fact that four sections make up Okesan with only Okankan and Odun which are related by blood as the 2 dominant ruling houses and the Ileti’s Odofin Adefila’s reign as the only aberration in the entire history of the Okesan family. Odosare’s desire to be a ruling house is, at present, merely wishful as it is without any known precedent.”
Learned Judge finally found that the procedure for the appointment of the 1st defendant was in accordance with the customs. He dismissed the entire claim and found that the appointment of the first defendant was validly made and he refused the injunction asked for. This led to the appeal in the Court of Appeal, Kaduna.
The appeal in the Court of Appeal was argued on issues of errors in law and misdirection. More importantly the grounds alleged that the trial Judge relied on evidence, given on matters not pleaded which should normally not be in issue. The issues for determination in the Court of Appeal were formulated as follows for the plaintiff:
“Issues for Determination
There are 3 main issues for determination in this appeal; viz
- whether or not the learned trial Judge was entitled to hold, as he did, that the plaintiff’s section of Okesan family was not bloodly related to the 1st defendant’s section and that the plaintiff’s section had no claim to the Odofin Aran stool as per page 93 lines 1-3 and page 99 line 18 to page 100 line 3 of the record;
- whether or not the defendants had satisfied the burden of proof which lay on them to establish that the plaintiffs section was not entitled to claim the Odofin Aran stool even though the plaintiff’s section was a branch of Okesan family; and
- whether or not the decision of the learned trial Judge was reasonable in the light of the parties’ pleadings and the evidence adduced in support.”
It seems to me that the parties fought shy of the real issues in the Court of Appeal. The real issue, fundamental to the case, is whether the procedure whereby the first defendant was appointed Odofin was valid. Unfortunately the issue fought by the parties revolve around admissibility of evidence as to the eligibility of Ileti family to produce an Odofin. To my mind this departure from the real issue precluded the Court of Appeal from alluding to the real issue. The summary of the decision of the Court of Appeal is as follows:
“(1) Having regard to the pleadings, the position is that the fact that the three or four sub-families descended from the same ancestor was not in dispute. It is settled law that parties were bound by their pleadings. A party would not be allowed to set up a claim different from that in his pleadings.
(2) Just as evidence not supported by the pleadings go to no issue, so also do the pleadings not supported by evidence go to no issue, unless they are admitted in the opponent’s pleadings.
(3) Having erroneously had at the back of his mind that Ileti and Odosare sections of Okesan family were not of a common ancestor with Ile Odun and Ile Okankan, which was not the case for the defence, the learned trial Judge was bound to arrive at wrong findings of fact.
The appeal to this court raised many issues of law and fact, and of misdirection. But it is pertinent to set out the issues for determination by the defendants/appellants, to wit:
“Issues for Determination A
(1) In the appellants’ views, the issues for determination by this Honourable Court are as follows:-
(a) whether the learned Justice of Appeal who delivered the lead judgment was not in error when he formulated a new issue between the parties, an issue which was not raised by the plaintiff nor by the defendants.
(b) whether the learned Justice of Appeal was right to have set aside the finding of fact by the learned trial Judge that the reign of Odofin Adefila from lIeti Section was nothing but an aberration.
(c) whether the learned Justice of Appeal was not in error when he held that some piece of evidence elicited from witnesses for the plaintiff under cross-examination by Counsel for the defence was inadmissible “since it was not so canvassed in the Statement of Defence”
(d) whether the learned Justice of Appeal was not in error to have reversed the findings of fact made by the learned trial Judge, and whether on the findings of the trial Judge, the defendants were not entitled to the judgment of the court.”
The complaint of the defendants (appellants) is that the Court of Appeal formulated a new issue for the parties when Akpata, J.C.A. (as he then was) in the lead judgment said as follows:
“There is, to my mind a fourth issue which is whether the learned trial Judge was right to have described the reign of Odofin Adefila from Ileti Section of the Okesan family as an “aberration” in the light of the pleadings and evidence adduced by the defence, and whether Ileti is not in fact a ruling house.”
It is true that the court should desist from raising new frontiers in the battle by the parties to a cause. What the parties have pleaded at the trial court, their complaints in the grounds of appeal on which briefs are written, and the issues they have raised in the briefs should dictate what the court must adjudicate upon. To raise new issues is like extending the scope of the litigation and unless amendments are made to the pleadings or grounds of appeal are added to or amended or issues for determination are reformulated or added to, the court should not venture to raise new matters for the parties.
The exception to this rule is where a matter of law or Constitution going to the root of cause itself arises; and in such a case the parties must be afforded the opportunity of addressing the court on such an issue. [See Adeniyi & Ors. v. Tawa Adeniyi & Ors. (1972) 1 All NLR 298; Oke-Bola & Ors. v. Molake(1975) 12 S.C. 61; Grham & Ors. v. Esumai & Ors. (1984) 11 S.C. 123.] The Court of Appeal certainly raised a new issue in their judgment and it is clear the parties were not called upon to address on the issue. There were some pertinent points of fact that the learned trial Judge found upon and believed which the Court of Appeal set aside. The trial court believed the defendants’ story and held the plaintiff’s version could not be true. Trial court held on the evidence before it that there were twelve previous Odofins of Omu Aran as contended by the defendants and disbelieved the plaintiff’s story that there were only three.
The question whether Ileti compound were blood relations of the other compounds, with respect, is not the big storm in the tea cup it is made to look, in the circumstance of this case. Assuming there were only three previous Odofins as contended by the plaintiff, each came from a different house; whether they were blood relations or not is not what is relevant.
The thrust of the litigation in the lower court must be clearly identified; it was not whether the plaintiff was entitled to be the Odofin or qualified to be the Odofin, it is whether the procedure whereby the first defendant was selected the Odofin was valid in accordance with Omu-Aran native law and custom for such a selection. To my mind, the trial court-made certain far-reaching findings of fact touching the pith of the case which should not be disturbed insofar as they are not perverse or against the law, or are not inadmissible as evidence.
Once a court of trial has made a finding of fact, it is no more within the competence of the appellate court to interfere with those findings except in certain circumstances. The real reason behind this attitude of appellate court is that the court hearing the appeal is at a disadvantage as to the demeanour of the witnesses in the lower court as they are not seen and heard by the appellate court.
It is not right for the appellate court to substitute its own eyes and ears for those of the trial court which physically saw the witnesses and heard them and thus able to form opinion as to what weight to place on their evidence. Frank Ebba v. Warri Ogodo & Anor.( 1984)4S.C. 84; Soleh Boneh Overseas Nig. Ltd. v. Ayodele (1989) 1 NWLR (Pt. 99) 549; Awote v. Owodunni (1986) 5 NWLR (Pt.46) 941.]The occasions whereby the appellate court will interfere are those where the findings of fact do not relate to the evidence or are not even in evidence in which case the court relied on facts not in evidence before it. Ogundule v. Chief Olabode (1973) 2 S.C. 71, 80; Balogun v. Akani (1988) 1 NWLR (Pt.70). 301; Adeyeye v. Ajiboye (1987) 3 NWLR (Pt.61) 432.
There are occasions when some facts in evidence are not adverted to considered by the trial court. The appellate court can if possible make its own findings from such facts if they are of a nature not involving demeanour e.g. documentary evidence (See Olufosoye v. Olorufemi (1989) 1 NWLR (Pt.95) 26). But where such facts involve credibility of witnesses, the proper step to take by the appellate court is to order retrial. [see Onwuka v. Ediala (1989) 1 NWLR (Pt.96) 182]. Similarly where the trial court fails to make findings on crucial issue [Idika v. Erisi (1988) 2 NWLR (Pt.78) 563]. Thus it is clear the Court Appeal went out of its way to head off the cause of action the parties brought to trial court on appeal before it and decided the matter on a completely irrelevant issue.
The issue at the court of trial is clear and if the Court of Appeal had adverted to this and the grounds of appeal it would have been found that the appeal was based on grounds diametrically irrelevant to the issue. The fact whether Ileti people are blood relations or not of the people entitled to bid for appointment as Odofin is not the issue, rather the bone of contention is whether the nomination of the first defendant was validly made. The trial Judge found the nomination was valid and the first defendant’s appointment as Odofin Aran was in order.
The other issue whether the plaintiff could be made Odofin or not are just by the side. What is clearly in evidence is that all could vie for the post whether in the manner advanced in the evidence of plaintiff insisting only three Odofins existed in Omu-Aran history or as contended by the defendants that twelve Odofins existed. In each case, it is found that each section of the families had at one time or the other an Odofin appointed.
There is no evidence on each side indicating the order of succession; for example, as averred by plaintiff/appellant in paragraph 4 of Reply to Statement of Defence, only three Odofins were appointed in Omu-Aran history to wit
(i) Odofin Olodo Okuta – Ile Adure Odusare,
(ii) Odofin Moronfoye – Ile Odun,
(iii)Odofin Adefila – Ileti
manifesting that each family had a bite. If the order of succession is equitable and there are three ruling houses, the next Odofin should come from Ile Adure Odusare. But this is not the claim of any of the parties. The defendants’ order of twelve previous Odofins has no fixed the pattern, as there were in many cases two successive Odofins from the same house. Thus what was claimed was a declaration that the nomination and appointment of the first defendant as Odofin should be declared null and void, and in doing so to enter injunction against him from parading himself as the Odofin.
The trial court held on the evidence that the plaintiff’s case was not proved, I can find nothing perverse in this conclusion. The Court of Appeal was by the grounds of appeal headed off the real issue and faced with the issue of admitting the evidence on whether the people of Ileti compound are blood relations of the other Odofin producing houses, a subsidiary matter indeed to the real issue and a matter unpleaded. In formulating an additional issue to the three in the appellant’s Brief (now respondent in this court), the Court of Appeal veered further away from the substantive issue.
In any civil matter, what matters is the decision on specific and substantive issue, any subsidiary matter that do not touch on the merit of the main issue is not of relevance. The findings of fact on the specified and real issue between the parties i.e. the validity of nomination and appointment of the first defendant, is clear and supported the evidence and the Court of Appeal erred in its decision by opening up the findings and setting them aside to the extent of relegating the real issue to the background.
For the foregoing reasons this appeal has merit and I hereby allow it. I set aside the decision of the Court of Appeal and restore the decision of the trial court which dismissed the plaintiff’s action in its entirety. I award N300.00 as costs in the Court of Appeal and N500.00 as costs in this court against the plaintiff/respondent.