Mr. Melford Agala & 9 Ors V Chief Benjamin Okusin & 3ors (2010) LLJR-SC

Mr. Melford Agala & 9 Ors V Chief Benjamin Okusin & 3ors (2010)

LAWGLOBAL HUB Lead Judgment Report

A.M. MUKHTAR, JSC 

The plaintiffs (who are now the respondents in this appeal) in the High Court of Rivers State Holden at Degema claimed the following reliefs as per their amended Statement of Claim against the defendants who are now the appellants in this appeal:-

“(3) A declaration that the 1st Defendant Chief Olunta Alibo who’s Chieftaincy emanates from Okoro compound is not a Chief of Okusin compound and therefore cannot be paramount Head of the said Okusin compound under Kalabari Native law and custom neither can the Plaintiffs come under the jurisdiction of his Chiefdom. An injunction restraining the1st Defendants from parading himself, as” Head of the said okusin Compound to which the plaintiffs and1st set of Defendants belong.

An Injunction restraining all the Defendants from accepting, recognizing or dealing with the said 1st Defendant as Head of Okusin polo to which the plaintiffs and 1st set of Defendants belong. An Injunction restraining all the Defendants their servants and or agents or any person or persons acting in trust for or under them from identifying or doing or refrain from doing anything that may be tantamount to identify the said okusin polo as Alibo polo of Ido in Degema Local Government Area of the Rivers State.”

The plaintiffs instituted the action for themselves and in a representative capacity for the Oko family of which they are members. I ‘will summarise the plaintiffs case as contained in their amended statement of claim. In 1884 when Ido town was founded there were eight major compounds including Okusin and Okoro. The first daughter of Okusin Oko together with her household came to the present town of Ido to re-establish the compound. Later her sister Ikpaiko and her son Awo joined her in Ido in the compound named Oko Polo and later changed to Okusin Polo by all descendants of okusin. After the death of Oko her first son Iganikon became the head of the Okusin family and was succeeded by Chief Nelson Okusin family, and was succeeded by chief Nelson Okusin. The plaintiffs traced the history of the defendants’ family and their relationship with the plaintiffs which came about through marriage with Alibo of Okoro compound and so Okusin Polo can never be named after AIibo, which the defendants Want to effect vide a letter.The.defendants wrote another letter to the plaintiffs Head of Okusin family denouncing. His headship of Okusin compound.

Consequently the plaintiff took the 1st _4th Defendants before the Ido Council. Of Chiefs, who asserted that the land upon which the compound was situated was cleared initially by Awo Alibo and his descendant Dewari. The plaintiffs were not satisfied and they initiated a further process to Abbey House of Buguma, the arbitration of which the 1st-4th defendants declined. The actions of the defendants led to the institution of this action in their high court.

The defendants in their amended statement of defence denied most. Of the plaintiffs allegations, adding that at the arbitration, both parties paid the arbitration fees and were sworn with their witnesses on oath under pain of death to speak the truth before the decision was given for that they relied on waiver, estoppel per rem judicatam, and estoppel by conduct. The defendants denied that Okusin and Okoro Were any of the eight major, compounds/house at the time of the settlement at New Ido in1884, but that, their chieftaincy stools were created by members of their families. They denied that Oko established or headed the Okusin family as it was even contrary to Kalabari Custom. They traced their rights and roots to Alibo, their own ancestor.

After the completion of pleadings both parties adduced evidence, which were evaluated by the learned trial judge who at the end of the day entered judgment in favour of the plaintiffs. Dissatisfied with the decision,the defendants appealed to the Court of Appeal, which affirmed the decision of the trial court, and dismissed the appeal. The defendants have again, Defendants (lst set) in answer to paragraph 19 and 20 (sic) of the Statement of Claim admit writing the two letters. The first was written on 9th July, 1985 to 5th Defendant as Amadabo of Ida with a copy endorsed to 1st Plaintiff of the resolution of the Alibo House of attempts being made by Oko’s descendants to change the name of Defendants (1st set) compound from Alibo Polo (compound) to Oko Polo by frequent reference to Alibo Polo as Oko Polo or Okusin Polo. The second letter also dated 9/7/85 was written to 1st Plaintiff notifying him of the vote of no confidence in him by Ikpaiko’s children and not to recognize him (Ist Plaintiff) as Chief Benjamin Okusin. Both letters were signed by Defendants in various capacities the earlier by 3rd and. 4th Defendants on behalf of the Alibo House and the later by 2nd, 3rd and 4th Defendants for Ikpaikos children who claim equal right to the Okusin stool with 1st Plaintiff. The authors of both letters in their capacities do not require the knowledge or consent of the 1st plaintiff before doing so.’

I will now reproduce the evidence of the plaintiffs in proof of the above material pleadings. The 4th plaintiff who testified as PWI gave the following material evidence:- ‘Sometime in July 1985, the 2nd and 4th Defendants wrote a letter to the 5th Defendant (the Amadabo of Ido) notifying him of a purported change of our compound from Okusins compound to Alibo’s compound. The letter was copied to our head chief – 1st plaintiff – and he gave it to me to read it for him since he cannot read and write. On 9/7/85my head chief also gave me another letter to read for him which I did. It.waswritten by2nd, 3rd and 4th-Defendants”

The letters mentioned in the evidence. Were admitted in evidence as ExhibitsP.l and P.2 In the course of cross examination the witness said inter alia thus “The issue in this case is that we call it Okusins compound while the lst set of Defendants ca11 it Alibo compound. I deny your suggestion that there is nothing .like Okusin’s compound in New Ida. Rather there is no Alibo compound.”

At this juncture 1 will reproduce the content of Exhibits: P .1 and P.2 For a proper understanding of the complaint and grave man of the issue in controversy. Exhibit P.lreads:-

‘Your Royal Highness, . AI. IBOPOLO (COMPOUND). We had (sic) been directed to inform you and the Ido Council of Chiefs that the following decisions were taken at a full meeting of the Alibo House on the 29th June, 1985.

1.That when the town moved from Elem Ido to the new settlement, all families first settled at Opuje Poku while bushes were being cleared.

2. The bush clearing in our compound was done by our fathers in the persons of late Dawa II Alibo and Awo Alibo
3. After the bush clearing; families moved from. Opuje-poku. to their .respective compound and these compounds were named after their FATHERS e.g. Eguere,Esuku,Alibo just to mention a few.
4. In the case of our compound the public had been misled over the years by calling it names like Oko Polo, Alibo Polo and recently Okusin Polo.
5. The Chiefs and the entire people of Alibo compound have now resolved that as from now the compound should be called ALIBO POLO AND CHIEF OLUNTA AWO ALIBO is the Head of the compound….”

The pertinent question to ask here is if the compound in controversy was originally called Alibo as per the content of paragraph (3) supra, then how did it get to be called Oko Polo and Okusin Polo later, as per the content of paragraph (4) supra?

It is difficult to fathom the reason why the name would undergo series of changes. If it was Alibo, the most likely situation is that it should continue to be Alibo without any break, and the defendants would not as at 29th June 1985 be seeking to rename the compound Alibo. It is most unlikely and inconceivable more so the history of the compound vides the evidence of plaintiffs witness No.1 reproduced supra is supported by paragraph (4) of Exhibit P.1, in that it said that the compound was recently named Okusin Polo from Oko Polo, not Alibo. The learned trial judge believed the evidence of the Plaintiffs and found as follows in his judgment:-

‘I believe them that at first the compound (as is confirmed in paragraph 4 of exhibit PI) and that later they changed it to the name of their ancestor- Okusin (the father of Okoand Ikpaiko),’

The position of the law is that the realm of believing any witness is within the prerogative of a trial judge who had the singular advantage of seeing and listening to a witness who gave evidence in his court. Any finding based on such evidence cannot be faulted by an appellate court who had no such advantage but is confined to the record of proceedings before it. See Iwenofu v. Iwenofu 19759 – 11 SC. 79, Governor v.Laniba 1974 10 . SC.227,and Gwawoh v. C.O.P. 1974 11SC.243. Then Exhibit P.4 On the same 9th of July 1985 when Exhibit P. I was written Exhibit P.2 was also written, but Exhibit. P.2 was addressed to the 1st respondent Benjamin Okusin, and it reads.- ‘We are directed to inform you that the off-springs of Mrs. Ikpaiko Alibo (Nee Ikpaiko Okusin) have resolved during their general meeting that they have been unanimously passed a vote of no confidence in you as Chief Benjamin Okusin.

Following this resolution, the children of Mrs. IkpaikoAlibo will neither attend your meeting nor recognize you as Chief Benjamin ‘. Okusin in Ido council of Chiefs. You are quite aware that the Chieftaincy stool which you are representing is legitimately owned by the two great mothers Oko and . Ikpaiko. Your mother Mrs. Ikpaiko Alibo (Nee IkPaiko Okusin) took this decision so as to maintain the existing cordial relationship within the two families’.

I am not sure I understand what the authors of Exhibit P.2 mean by the first underlining, for what is intended is not clear to me. To me it is bereft of any meaningful impact on the subject matters as a simple interpretation will be that they had, no confidence in him as a person, as opposed to him as a family or compound head. On the second and third underlining’s the authors have conceded that the stool is owned by their ancestors and so their two families. All the above reproduced pieces of evidence have established the fact that the head of the 1st respondent/plaintiff Benjamin Okusin was the head and chief of the Okusin family to wit the 1st set of defendants/respondents belong and it is he who calls the meetings they attend. The fact that it was in that year of 1985 that they resolved to call the compound Alibo compound reinforces the case of the plaintiffs/respondents.

All the pieces of evidence were neither controverted nor discredited by the appellants in their evidence. Civil cases are determined on preponderance of evidence and balance of probabilities and so he who asserts a fact must prove that fact with credible evidence that is relevant to the matter in controversy, not evidence that is irrelevant and inconsequential to the success of the claim. See Elias v. Omo-Bare 19825 SC.2, Woluchem v. Gudi 19815 SC. page 291, Elias v. PAGE| 6 Disu 1962 I All N.L.R. page 214, and Imana Robinson 1979 3 – 4 SC. 1, and section 135 of the Evidence Act Cap. 112 Laws of the Federation of Nigeria 1990. On Exhibit P.4 the learned trial judge in his judgment posited and found thus:-

‘In Exhibit P. 4, memorandum written on 29th June 1988, the Amadabo of Ido, Chief Felix Owukio Eguere (who is the 5th Defendant in this suit) submitted inter alia that the following Chieftaincy stools are operational in Ido-Opuwariboko, Esuku, Prabo, Oyibo, Ngo,Alibo, Alawarifaa, Iga, Odio, Biki, Suku, Toboitemea, Ebenibo, Ogbo, Owoyo, Okusin and Okoro stools.

That document was made by the 5th Defendant, and relied upon by the Plaintiffs it shows, therefore, and I accept, that all those chieftaincy stools are operational now at Ido town. That takes care of those names that are in dispute namely Ngo, Alibo,Okusin and Okoro. All of them have been recognized by Ido as chieftaincy stools that are operational now at Ido.”

The lower court in its lead judgment did agree that reliance on Exhibit p.4 by the learned trial judge was wrong in view of the fact that it was made by a party during the pendency of the fact that it was made by a party during the pendency of the suit. Having done so, I think his further pronouncement on exhibit of the suit. Having done so, I think his further pronouncement on Exhibits p.1 and p.2 was in order and not wrong in law. In the light of these discussions I resolve the issue in favour of the respondents, and dismiss ground (1) of appeal to which it is married. Now to issue (2) in the appellants’ brief of argument. The grouse of the appellants under this issue is the finding of the lower court which reads:- “In this case, however it is clear that the respondents were not satisfied with the decision of the native tribunal and appealed to a higher tribunal but the appellants by their own showing refuse to appear before the higher appellate tribunal, it follows therefore the traditional arbitration process had not been concluded”.

As facts and evidence in a case have their root in pleadings, I will reproduce the relevant pleading that touched on the native arbitration mentioned above. In paragraph 22 or the amended statement of claim the plaintiffs pleaded thus:-

“22. The chiefs wrongly decided thus; that since the land on which the compound is situate was cleared and prepared initially by Awo Alibo and one Dewarl who they alleged was also Alibo’s descendant, the act of the 1st to 4th Defendants was in order. In doing this, the 5th to 12th Defendants was in order. In doing this, the 5th to 12th Defendants never considered the version of the plaintiffs neither did they give reason for preferring one version to the other. The plaintiffs immediately rejected the decision and informed all the Defendants of their intention not to be bound by same. They subsequently issued a summons against the 1st to 4th Defendants before the Abbey House of Buguma the Arbitration of which the 1st to 4th Defendants declined.’ It is the contention of the appellants counsel that the evidence of the plaintiffs that appeal emanates from the decision of Amadabos to the Abbey house, and since that was not pleaded, the evidence should have been ignored as it goes to no issue. He placed reliance on the cases of Akinola v. Oluwo 1962 SCNL 117, and Emegokwe v. Okadigbo 1973 4 S.C. 113.

According to learned counsel for the appellants when the evidence on the appeal is question of appeal is ignored the decision of the court below has no foundation and it is liable to be set aside. It is indeed a cardinal principle of law that pleadings are summary of the Facts of a case that must be served on an opponent to enable him be on notice of the facts to contend with in court at the hearing. The purpose of pleadings is to avoid springing surprises on the other party, and by the content of paragraph (22) supra the plaintiffs have not sprung any surprises on the defendants, by PW 1 merely adding the word appeal in his evidence. See George v. Dominion Flour Mills Ltd 1963 1 SCNLR page 117, George v. U.B.A. Ltd 1972 8 – 9SC. page 264, and Oduka v. Kasumu 1968 NMLR page 28.

It is indeed another principle of law that parties are bound by their pleadings and must not go beyond what they have pleaded in their evidence, as doing so will render the evidence so given a non-issue, and liable to be struck out. Conversely, as pleadings make for economy the trite law is that parties are not required to plead evidence, and authority abounds on this principle of law. See A. G. Kwara State v. Alao 2000 9 NWLR part 671 page 84 and Okeji v. Olokoba 2000 4NWLR part 654 page 513. As a matter of fact a careful perusal of the last sentence of the reproduced paragraph (22) above can to my mind be interpreted to mean an appeal, as the action followed the dissatisfaction of the plaintiffs on the earlier action to the native tribunal as is contained in paragraph (21) of the amended statement of claim, which is as follows:

’21. Pursuant to the above, plaintiffs sued the 1st to 4th Defendants before the Ido Council of Chiefs presided over by the 5th Defendant. At the native arbitration to decide the matter in which the 5th to 12th Defendants attended. Both sides were asked to state their case wherein the council adjourned to give a decision”.

In essence I am satisfied that there was proper pleading to back the evidence of PW 1 complained against, and so the findings of the two lower courts had foundation. Issue no (2) in the circumstances has to be resolved in favour of the respondents, and so ground of appeal no. (2) To which it is related fails, and it is hereby dismissed. In arguing issue (3) of the appellants, the learned counsel for the appellants referred to paragraphs 9 (c), 10 (c) 15, 13 (b), 18 (c) and (v) and 27 of the amended statement of defence and their supporting evidence. This, issue revolves around weight of evidence and appraisal. Perhaps I should reproduce some of the paragraphs and their evidence as stated in the appellants brief of argument, starting with a part of paragraph 9(c) which reads:-

‘9(c) Oko, aged at the time, died at Opuje Poku at new Ido people first camped before moving to their various compounds established at the established at the time.’

‘9(e) Nelson Alele (now late)……… was selected and finally installed on 2nd July 1958 as the first Chief Okusin. At that time Chief Hargrove Dewari Alibo ill (now late) was head of Alibo Compound and he presented him (Chief Nelson Okusin) to the Town during installation.

By custom, it is the Head or Paramount Chief of the Compound that presents Chief under him to the Town during installation at new Ido’.

10(c) By Kalabari custom, canoes are led by the House Chief or Head of the House never by women especially during the time of war as was the case in 1884 and land is never allotted (sic) or allocated to women to. Clear for settlement especially at new Ido Also because it was (sic) war period in 1884 women were never involved in such exercises’ The learned counsel for the appellants has argued that since the defendants/appellants gave evidence that were not contradicted in support of the above pleadings, and the respondents failed to file a reply to the said pleadings, the appellants evidence on the pleadings stands to be discountenanced. He placed reliance on the cases of Akeredola v. Akinremi 1989 3 NWLR part 108 page 164, and Pan Bisibilder Ltd v. First Bank Ltd 2000 FWLR part 2 page 177. Learned counsel further submitted that since the evidence of the defendants .was not controverted, it ought to have been accepted by the trial court as unchallenged and referred to the case of Oforlette v. State 2000 FWLR part 12 page 2081. A trial judge at the stage of writing a judgment and making findings .and decisions, appraises the evidence of each side of the divide, and give the evidence of each side the probative value it deserves before arriving at a just conclusion of the case. In the process of doing so he determines which of the relevant evidence to believe, whether they are contradicted or not because he had the singular advantage of listening and watching the demeanour of the witnesses. See the cases of Governor v. Laniba, Iwenofu v. Iwenofu, and Gwawoh v.C.O.P. supra.

I use the word relevant above to qualify the evidence, for it is important that the quality of the evidence is considered, as it is not all evidence adduced in a suit that is relevant to the issue or matter in controversy. Some witnesses ramble on and on matters that are not correlated to the pivot of the case. In the instant case many aspects of the evidence adduced by the defendants even if not contradicted were not of relevant consequence to the claim.

The learned trial Judge after a careful evaluation of the evidence before him in his judgment posited the following:

‘I. do not, therefore, believe the Defendants witnesses that the. Compound at new Ido was established by Awo and Dewari, I do not believe them that the compound is known as Alibo compound. I believe the Plaintiffs witnesses that the compound was established by Oko. I believe them that it was Oko who later brought Ikpaiko, and her son Awo to that compound, and that that was how the 1st set of Defendants, who are the descendants of Ikpaiko came to live in the same compound with the Plaintiffs. I believe them that at first the compound (as is confirmed in paragraph 4 of Exhibit PI) and that later they changed it to the name of their ancestor-Okusin the father of Oko and Ikpaiko”.

The lower court as per the lead judgment endorsed the above conclusion thus:-

‘I agree entirely with the conclusion of the trial court which in my view was the most reasonable conclusion from the facts before it.’ The learned trial judge definitely adhered and applied the principles in Odofin v. Mogaji & Ors 1978 NSCC page 275 where Fatayi-Williams JSC (as he then was) enjoined the courts thus:-

‘In short, before a Judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore in determining which is heavier, the judge will naturally have regard to the following:-

(a) Whether the evidence is admissible;

(b) Whether it is relevant;

(c) Whether it is credible;

(d) Whether it is conclusive, and

(e) Whether it is more probable than that given by the other party.

Finally, after invoking the law, if any, that is applicable to the case, the trial judge will then come to his final conclusion based on the evidence which he has accepted.’ . In the light of the above argument I answer this last issue in the affirmative, and dismiss grounds of appeal nos. (3) and (4) which covers the issue.

This is an appeal on concurrent findings of facts which the law does not permit an appeal court to interfere with unless the findings are not supported by credible evidence and are perverse and have led to miscarriage of justice. In the instant case, the findings are supported by credible evidence and they cannot be faulted; as there is no palpable error in them. This court cannot and will not therefore disturb them.

See the cases of Chikere v. Okegbe 2000 12 NWLRpart 681, page 274, Salami v. Gbodoolu 19974 NWLR part499, page 277, and Thodo v. Enarofia 1980 5 SC page 412. The end result is that the appeal completely lacks merit and substance, in which case it must be dismissed and I dismiss it. I assess costs at N50, 000.00 in favour of the respondents against the appellants.

The respondents filed across-appeal against the judgment of the Court of Appeal on a single ground of appeal; to wit briefs of argument were exchanged. In the course Of the treatment of this cross-appeal I will refer to the cross-appellants as the appellants and the cross-respondents as the respondents. A notice of preliminary objection against the cross appeal was raised by the respondents, for an order striking out the cross-appeal for being incompetent. The ground of the objection reads as follows:-

‘The notice of Cross-Appeal filed on 8th March, 2002 is incompetent for non-compliance. With Order 8 Rule 2 (1) of the Supreme Court Rules in that it does not contain any ground’,

At this juncture I will reproduce the said order 8 Rule 2 (2). It reads: ‘2(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called ‘the notice of appeal’) to be filed in the Registry of the court below which shall set forth. the grounds of appeal, state whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal and shall be accompanied by a sufficient number of copies for service on all such parties. It shall also have endorsed on it an address for service’.

I will also reproduce sub rule (2). It reads.-

‘(2) If the grounds of appeal allege misdirection or error in law the particulars and the nature of the misdirection or error shall be clearly stated’. The learned counsel for the respondents in this appeal has submitted that any notice of appeal (including notice of cross-appeal) which does not contain any ground of appeal is incompetent because it is from the ground of appeal an appellate court will be able to determine whether the issues brought on appeal relate to the judgment. He placed reliance on the cases of Saraki v. Kotoye 19929 NWLR part 264 page 184and Egbe v. Alhaji 1990 . 1 NWLR part 128 page 546. It is counsels prayers that the notice of cross- appeal be struck out. The learned counsel for the appellants has not deemed it necessary to file cross-appellants reply brief of argument to address and reply the submissions on the notice of preliminary objection. That leaves me therefore with only the argument of the respondents. In order to understand the complaint of the respondents, one will have to carefully peruse the ground of appeal in the notice of cross-appeal. . It is on record that no .ground of appeal was actually stated, only particulars. I will reproduce it as it is in the notice of cross-appeal here below. It reads-

“GROUNDS OF APPEAL

(i) ERROR-IN-LAW

PARTICULARS OF ERROR

1. Exhibit P4 is relevant and goes to the, crux/basis of the matter before the trial court.
2. Though made during the pendency of the case, it was made by the maker not as a party to the. Case or in a persona1.capacity but in his official capacity as Amayanabo of ldo Community. ‘
3. When a party makes a document during the pendency of a case ‘in his official capacity’ such relevant document is admissible and is not hampered or rendered inadmissible by the provisions of Section 91 (3) of the Evidence Act’. The above clearly shows that a ground of appeal is missing. I dont .

Know if this was done inadvertently, for 1 cannot fathom how an appellant can take the pains of stating particulars of error, without stating the ground of appeal from which the particulars flow. It is like placing load on a legless donkey, which because of its incapacity cannot convey the load to its destination. Order 8. Rule 2 (1). Supra talks of grounds of .appeal, and sub. Rule(2) also reproduced above presupposes that-there must be grounds of appeal before particulars will follow there under.

The failure to state the ground of appeal rendered the particulars of error .in the notice of cross- Appeal useless and of no effect There is to my mind and for all intent and… purposes no ground of appeal.to support the notice of cross-appeal. Since what we have is’ only the halfhearted attempt at a single ground of appeal, and there is no other ground of appeal, I would conclude that no appeal exists whatsoever, after the sole purported ground of appeal would have been struck out as argued by the learned counsel for the respondents. In fact, I am not only striking out the ground of appeal for being incompetent but the whole cross-appeal, which in essence has no ground of appeal.to sustain it.

In the final analysis I strike out the cross-appeal, and award the cost of N50, 000.00 in favour of the respondents, against the appellants in the cross- appeal.

SC. 25/2003