Josiah Olomosola & Anor. V. Chief Aladire Oloriawo & Anor. (2001)

LawGlobal-Hub Lead Judgment Report

TOBI, J.C.A. 

Following the death of Chief Gabriel Omoniyi, the stool of Okiti of Iju became vacant. It is the Ausi Chieftaincy of Imun Quarter, Iju. Oba Amos Farukanmi, the 1st appellant, was installed as the Okiti of Iju.

Thereafter, Josiah Olomosola, the 2nd appellant, was installed as the Ausi of Imun Quarter, Iju by the 1st appellant.

An action was filed in the High Court of Ondo State, Akure Judicial Division by the respondents seeking two declarations and an order of injunction as follows:

(a) Declaration that the purported nomination and installation of Mr. Josiah Olomosola the 1st defendant as Chief Ausi of Imun Quarters, Iju by Oba Amos A. Farukanmi, the 2nd defendant sometime in March, 1993 are irregular contrary to native law and custom of Imun Quarters, Iju and thereby null and void.

(b) Declaration that Mr. Isaac Fatuase the 2nd plaintiff is the person properly nominated as the next Chief Ausi of Imun Quarters, Iju according to native law and custom of lmun Quarters, Iju and thereby entitled to be installed as the Chief Ausi of Imun Quarters, Iju.

(c) An order of perpetual injunction restraining the 1st defendant from parading himself as Chief Ausi of Imun Quarters, Iju.”

The respondents case is that the 1st appellant is not a member of their family which is Onifonkoyode family, and as such not entitled to be appointed as the Ausi of Imun Quarter, Iju. It is on that basis that the respondents challenged the appointment of the 1st appellant, claiming that his appointment was irregular, null and void as it was contrary to native law and custom of Imun Quarter.

The learned trial Judge gave judgment in favour of the respondents. He said in the penultimate paragraph:

“I have considered and evaluated the evidence adduced by both parties and their witnesses in this case. I have also weighed the evidence of the parties on the balance and have preferred that of the plaintiffs to that of the defendants. I accept the testimony of the plaintiffs and their witnesses as being true, acceptable and therefore accepted. On the other hand, and from my observations of the defendants and their witnesses, while each of them particularly both defendants, were giving evidence in the witness box, I do not feel convinced that they were speaking the truth. I find that the 1st defendant is not entitled to have been installed as the Ausi of Imun in Iju in place of the 2nd plaintiff whom I find to have been properly selected and duly entitled to have been installed as the Ausi of Imun.”

Dissatisfied, the defendants filed an appeal. Briefs were filed and exchanged. The appellants formulated the following three issues for determination:

“C1. Whether the learned trial Judge was right in admitting evidence of facts and matters not pleaded to form the basis of his decision.

C2. Whether the learned trial Judge had not first demolished the case of the defendant before considering case of the plaintiff and if so whether this was erroneous in point of law.

C3. Whether the trial court was right in not disregarding the case put forward by the plaintiffs as regards the 1st defendant of the Ausi family or as to the entitlement of the 1st defendant to the Ausi Chieftaincy when that was not the case of the plaintiffs on the state of the pleadings.”

The respondents formally adopted the above three issues formulated by the appellants.

Learned counsel for the appellants, Mr. Kolawole Esan submitted on issue No. 1 that the learned trial Judge made use of facts not pleaded in very many respects in arriving at his conclusion.

Learned counsel submitted that the pronouncements of the learned trial Judge at page 98 line 31 to page 99 lines 1 – 24, page 102 line 15, page 103 lines 1-3 were not pleaded by either of the parties.

Contending that facts not pleaded go to no issue, learned counsel cited Okagbue v. Romaine (1982) 5 S.C. 133 at 151; Emegokwue v. Okadigbo (1973) 4 S.C. 113 at 117 and Olawuyi v. Adeyemi (1990) 4 NWLR (Pt.147) 746 at 784.

Learned counsel further submitted that a plaintiff must call evidence in support of his pleadings and evidence which was in fact adduced and contrary to his pleadings should never be admitted and it makes no difference that the other side did not object. He contended that it is the duty of the court to reject inadmissible evidence at the time of writing judgment. Counsel cited NIPC Ltd. v. Thompson Organization Ltd. (1969) NMLR 99; Olawumi v. Adeyemi (supra); Overseas Construction Ltd. v. Creek Enterprises (Nig.) Ltd. (1985) 3 NWLR (Pt.13) 407 at 419 and Igwe v. Alozieuwa (1990) 3 NWLR (Pt.141) 735 at 748.

On issue No.2, learned counsel submitted that the learned trial Judge considered the case of the defendants before the case of the plaintiffs thus not following the principle as laid down in the case of Mogaji v. Odofin (1978) 3 SC 91. It was the contention of learned counsel that all that the trial Judge did, in his judgment, was to set down the case of the plaintiffs as given in evidence not as pleaded and then pick on the case of the defendants and demolish it as he went along in his review of the evidence using it to strengthen the case of the plaintiffs. He referred the court to page 92 lines 21 – 24 of the record and page 97 lines 22 and 23 to page 104 of the record.

Counsel submitted that when a trial Judge appears to have accepted the evidence of the plaintiffs before even reviewing the evidence of the defendants (as in this case) then he has not held the scale of justice fairly and evenly. He cited Duru v. Nwosu (1989) 4 NWLR (Pt.113) 24 at 50 and 51; Mogaji v. Odofin (supra); Onwuka v. Ediala (1989) 1 NWLR (Pt. 96) 182 at 209.

On issue No.3, learned counsel submitted that the trial Judge’s findings at page 99 lines 7 to 14 to the effect that the 1st defendant did not belong to the Ausi Chieftaincy line but to the Oloro Chieftaincy when no such claim was before him was made without foundation. Counsel submitted further that parties are bound by their pleadings and evidence of facts not pleaded go to no issue. He cited Amaye v. A.R.E.C. Ltd. (1990) 4 NWLR (Pt. 145) 422 at 443 and Olawuyi v. Adeyemi (supra). It was the contention of counsel that the trial Judge ought to have disregarded the evidence of the plaintiffs which were not pleaded. He urged the court to allow the appeal.

Learned counsel for the respondents, Chief A.O. Fesobi submitted on Issue No.1 that the law is that only material facts must be pleaded and not the evidence by which they are to be proved. To counsel, there is a world of difference between material facts which must be pleaded and facts not requiring to be pleaded though relevant as facts in support of facts in issue. He cited Okagbue v. Romaine (1982) 5 S.c. 733 at 155; Chinwendu v. Mbamali (1980) 3 – 4 S.C. at 80 and 89; and George v. Dominion Flour Mills Ltd. (1963) 1 SCNLR 117 at 77.

Learned counsel dealt with the aim of pleadings and its impact on fair hearing, particularly the doctrine of audi alteram partem.

He submitted that since the facts and matters that the appellants complained of were given as a result of cross-examination, they are admissible. To counsel, the purpose of cross-examination is not only to discredit the witness but also to put across the case of the person cross-examining the witness. He cited Akunne v. Ekwunno (1952) 14 WA.C.A. 59; Etim v. Chief Ekpe (1983) 3 S.C. 12 at 36 and 37.

Counsel urged the court to hold that the learned trial Judge only admitted material facts not required to be pleaded but only relevant as facts in support of facts in issue. He cited Okagbue v. Romaine (1982) 5 S.C. 133 at 155.

On Issue No.2, learned counsel submitted that the trial Judge, reviewed the evidence as presented by both parties, starting with that of the plaintiff. It was the contention of counsel that where the case of the defendant supports that of the plaintiff, the plaintiff can rely on such evidence. He cited Akinola v. Olowu (1962) 1 SCNLR 352 All NLR (Pt. 2) 224 at 225 and referred to page 82 to 104 of the record of proceedings. He pointed out that, the appellants did not fault the Judge’s reasons for his findings.

It was the contention of learned counsel that the trial Judge properly evaluated the evidence adduced by both parties and their witnesses before arriving at his decision. He referred to page 103 lines 16 to 29 of the record. Counsel submitted that the trial Judge made proper findings and reached a correct judgment upon the facts before him. He cited Okulate v. Awosanya (2000) 2 NWLR (Pt. 646) 530;(200) 1 SCNJ 75 at 78 and 88. Counsel urged the court to hold that the trial Judge did not first consider and demolish the case of the defendants before the case of the plaintiffs.

On Issue No.3. learned counsel submitted that the duty of a trial court is to consider the case of the parties and not in isolation.

To counsel, since the 1st appellant pleaded and gave evidence that he was nominated and elected for the post of Ausi Chieftaincy and the appellants joined issues with the respondents on the propriety of the nomination and installation of 1st defendant as the Ausi of Imun Quarters Iju, the judgment of the court cannot be faulted. He urged the court to dismiss the appeal.

It is elementary law that parties are bound by their pleadings.This means that evidence given on matters not pleaded will go to no issue. See Ndukwe v. Acha (998) 6 NWLR (Pt. 552) 25; Sawuta v. Ngah (1998) 13 NWLR (Pt.580) 39; lfeadi v. Atedze (1998) 13 NWLR (Pt.581) 205; Nkume v. Reg. Trustees (1998) 10 NWLR (Pt.570) 514; Ekpechi v. Owhonda (1998) 3. NWLR (Pt.543) 618; Vanderpuye v. Gbadebo (1998) 3 NWLR (Pt.541) 271; Ologe v. Ukaeje (1998) 12 NWLR (Pt.576) 23.

Learned counsel for the respondents would appear to have conceded the issue raised by counsel for the appellants when he submitted that the evidence was procured during cross-examination.

The purpose of cross-examination is to discredit the witness and demolish the case of opposing party. It is also designed to put across the case of the party cross-examining the witness.

“One cliche or aphorism has always worried me in the profession, and it is that in cross- examination the sky is the limit. Counsel love it. It is almost a song in the judicial process. Apart from the fact that the judicial process has nothing to do with the sky, which in not within the reach of the ordinary man, the statement is not correct in law. In law it is not cross-examination which is said not to have any inhibition or limitation, but relevancy as a principle of the law of evidence, has to be considered. The point I am struggling to make is that evidence procured from cross examination can only be admitted if it is relevant to the live issues before the court. Counsel may decide to ask irrelevant questions (and some do) but the trial Judge cannot make use of evidence procured from such questions because they are outside the live issues in matter.”

Pleadings are the index or barometer of the case of the parties.

They are the reference points and the parties cannot move out of them as they like. On the contrary, parties must, as a matter of our adjectival law, kotow to their pleadings and religiously adore them.

The only remedy available to the parties is to amend their pleadings if they want to go outside them. They cannot spring a surprise in the judicial process by moving in and out of their leadings just like that, without amendment.

In this appeal, the learned trial Judge used evidence not borne out from pleadings in arriving at his findings and ultimate conclusion.

The instances are legion. With respect, he ought not to have done so. He was clearly in error in doing so. In such a situation, an appellate Judge will certainly interfere and so I interfere.

I need not deal with the specific evidence. I associate myself with the submission of learned counsel for the appellants at pages 4 to 9 of the brief that the learned trial Judge made use of facts not pleaded by the parties as well as irrelevant evidence. By this, the learned trial Judge would appear to have given his own terms of reference outside the pleadings. That is certainly wrong; a fortiori without giving the parties an opportunity to respond one way or the other.

As parties are bound by their pleadings so too the Judge is bound by the pleadings and the evidence before him in his judgment. In other words, judgment must necessarily be based on triable issues as contained in the pleadings and the evidence adduced in the court. See Solana v. Olusanya (1975) 6 S.C. 55; Maradesa v. Military Governor of Oyo State (1986) 3 NWLR (Pt. 27) 125. The findings of facts of a trial Judge must be made on the issues raised in the pleadings and the evidence adduced by the parties in vindication of the pleadings. See Incar (Nig.) Ltd. v. Benson Transport Lid. (1975) 3 SC 117; Ransome-Kuti v. Attorney-General of the Federation (1985) 2 NWLR (Pt. 16) 211. The Judge should be interested only on the issues joined in the matter in the pleadings in deciding the case before him and no more. See Metal Construction WA. Ltd. v. Migliore (1979)6 – 9 S.C. 163; Emaphil Ltd. v. Odili (1987) 4 NWLR (Pt. 67) 915.

There is neither a constitutional nor a statutory requirement as to particular format in the writing of a judgment. Once a judgment contains the traditional elements by way of contents, an appellate court cannot interefere merely because it could have adopted a different style. Style in human life is personal to its owner. So too, the style of writing judgments. As long as the style adopted by the trial Judge does not ruin the traditional elements by way of contents, an appellate court will not interfere. And it is extremely difficult for the style to ruin the elements or contents of a good judgment.

The purport of learned counsel for the appellants submission is that the trial Judge took first the case of the defendants for a kill and that to him was not proper. I have examined the judgment very carefully. Although, the trial Judge took the case of the defendants first, he did not dismiss their case before taking up the case of the plaintiffs. It was after analyzing both cases that he came to the conclusion that the plaintiffs case must succeed. I had earlier quoted the conclusion of the learned trial Judge in the penultimate paragraph.

I do not want to go the whole hog once again. A paraphrase will suffice and it is this: the Judge considered and evaluated the evidence adduced by both parties and their witnesses. He also weighed the evidence of the parties on the balance and preferred that of the plaintiffs. The trial Judge so claimed and I have no reason to fault him.

I think, Issue No.3 is clearly related to Issue No.1 as it also deals with evidence not borne out of the pleadings. As I have dealt with the issue, I need not take Issue No.3 separately. Although both counsels dealt with it separately, I shall not because there in no need for that. There is clear duplication of the issue and I will not enjoy repeating myself. Counsel can afford to repeat themselves but this court will not repeat itself.

In sum, this appeal, succeeds, and it is allowed. The judgment of the learned trial Judge is hereby set aside. I award N4,000.00.

Other Citations: (2001)LCN/1017(CA)