Oba Lawal Ifabiyi V Chief Solomon Adeniyi & 2 Ors (2000)
LAWGLOBAL HUB Lead Judgment Report
ONU, J.S.C.
This is an appeal from the decision of the Court of Appeal, Kaduna Division which on 30th April, 1992 unanimously reversed the decision of Orilonise, J. sitting at the High Court of Kwara State, Omuaran wherein the Plaintiff, herein Appellant, claimed against the defendants/respondents, jointly and severally for a declaratory order:-
“(1) That the plaintiff is the head of the Ile-Ire district and that he is the rightful title holder to represent Ile-Ire district in the Ifelodun-Irepodun Traditional Council.
(b) A perpetual injunction prohibiting the first defendant from parading himself or doing any act which may give false impression that he is the head of lle-Ire the 2nd and 3rd defendants and their servants and or agents from so treating the 1st defendant.”
After pleadings had been ordered, filed and exchanged by the parties, the appellant called one witness in proof of his claim while the defence called two witnesses. Some documents were tendered following which at the conclusion of the trial, learned Counsel on either side copiously addressed the learned trial Judge (Orilonise J.) who in a reserved judgment dated October 28, 1988, found for the appellant in part as follows:-
‘”Now, on the issue of who is the district head of Ile-Ire district between the plaintiff and the first defendants, I find from the evidence before me that the Oba Onire’s Stool had existed for about 300 years now.
It has been in existence for a period of over 250 years before the emergence of the Baleship or Obaship of Owa-Kajola, an institution founded only in 1940. I accept and believe the evidence of the 1st defendant that the first Oba of Owa Kajola was Oba Ogunbiyi while the present incumbent and 1st defendant is the second Oba along that line. From the totality of the evidence adduced in this case, I find that the plaintiff as the present Oba Onire of Owa Onire is therefore a more senior traditional ruler that the 1st defendant as the district head of Ile-Ire district. I therefore declare the plaintiff as the district head of Ile-Ire district. To decide otherwise would be tantamount to super-imposing a part on a whole, having earlier found that Owa Kajola is a breakaway fraction of Oba Onire.”
The evidence of the 1st defendant (DW1) that he is the paramount Onile of Ile-Ire district recognised by the Kwara State Government is a clear misapprehension of the contents of exhibits 2 and 4 which conveyed governmental approval that Ile-Ire district representative on the Ifelodun/Irepodun Traditional Council should be rotated between Owa Kajola and Owa Onire beginning with Owa Kajola. The appointment of the 1st defendant as a representative of Ile-Ire district in the Ifelodun/Irepodun Traditional Council does not automatically confer on him the district headship of Ile-lre district. Equally, I find from the evidence and having regards to S.76(2) (b) and 4(c) of the Kwara State Local Government Law. 1976 that unless by order of the Military Governor establishing a Traditional Council, a traditional title holder does not automatically qualify to be a member of such a Council because he is district head. Having held that the plaintiff and not the 1st defendant is the district head of Ile-Ire district, I order that the 2nd and 3rd defendants be henceforth restrained from treating the 1st defendant as the district head of Ile-Ire district. By his appointment as a representative of IIe-Ire district in the Ifelodun/Irepodun Council, either defendant under section 76(2) (b) the 1st defendant does not become the district head of Ile-Ire district and he is hereby restrained from parading himself as such.”
The trial Court thereupon concluded by making the following orders:-
“(i) That the plaintiff is hereby declared as the district head of the Ile-Ire district in Ifelodun/Irepodun Local Government.
(ii) The appointment of the 1st Defendant as a representative of Ile-Ire district in the Ifelodun/ Irepodun Traditional Council by the Military Governor of Kwara as contained in exhibits 2 and 4 does not entitle the 1st defendant to parade himself as the head or district head of Ile-Ire district.
(iii) The 2nd and 3rd defendants, their servants or agents are hereby perpetually restrained from treating the 1st defendant as the head or district head of Ile-Ire district.”
The 1st defendant/respondent (the 2nd and 3rd respondents being mere stakeholders remained passive) was unhappy with the said decision and so appealed to the Court below where he won. The appellant has appealed to this Court where, in accordance with the Rules of Court, he filed a written Brief of Argument in which he identified three issues from his four grounds as arising for our determination as follows:-
“(i) Is it proper for a Court, the Court of Appeal, to formulate issues (Ground 2).
(ii) Did the Lower Court, the Court of Appeal properly understand the parties’ case before adjudicating (Ground 3) and
(iii) Did the High Court award a different relief to the plaintiff from the one he claimed as falsely {sic} by the Court of Appeal (Ground 4 ).”
Following the 1st respondent’s failure to file and proffer any argument upon a Brief, we allowed the appellant’s Counsel to argue his Brief on 7th February, 2000. the date fixed for the hearing of this appeal.
Before embarking on the consideration of this appeal, however, I deem it pertinent for me to state the facts of this case. albeit briefly for a clearer appraisal thereof as follows:-
The plaintiff (appellant herein) who claimed to be a descendant of Oba Ajiboye, the 1st Onire stated how about 300 years ago, he came from Oyo and settled at the original location of Owa-Onire. thus founded the Ile-Ire district. He maintained that he was the head of Ile-Ire district by right of his office as Onire; further that he was the proper person to represent Ile-Ire district at the meetings of the 2nd respondent while the 1st respondent, then the Oba and head of Owa of Kajola, “which was founded about the year 1910 by some disgruntled elements from Owa-Onire.” The appellant further claimed that his settlement remained at its original location until 1948, when he and the remaining people of “Owa-Onire” moved to a new location while still maintaining their old name “Owa-Onire” which means that the new settlement was/is an extension of the original “Owa Onire’. The other respondents asserted that they had a prerogative to determine who would represent Ile-Ire district on their meetings of 2nd respondent (the Ifelodun/Irepodun Traditional Council).
One J. A. Bogunjoko, a native of Owa-Onire gave evidence for the appellant in line with his pleading. His evidence also covered the appellant’s evidence in a nutshell to the effect that the appellant’s community (Owa Onire), was a continuation of the original settlement which began about 100 years ago and that the appellant was therefore the head of Ile-ire district.
For the defence, the respondent himself testified by contending that his Owa Kajola was older than the new settlement of Owa Onire because the new settlement of Owa Onire took place after Owa Kajola was settled in 1940. One P. F. Ikunaiye, testified for and in support of the 2nd and 3rd respondents following which in his reserved judgment, the learned trial Judge arrived at his conclusion, portions of which I had earlier set out above.
I now wish to proceed to consider all three issues in their order of sequence thus:-
Issue (1) questions whether the court below was right to formulate issues, the short answer which could be better found in the leading judgment of Dahiru Musdapher, JCA wherein, the learned justice held inter alia as follows:-
“I have mentioned above the claims of the respondent in the Lower Court and I had also reproduced in extenso the judgment of the learned (sic) trial court and the orders he made. It is clear to me that the respondent was unhappy in the government appointing the appellant rather (sic) to the membership of the Traditional Council. The question of the District Headship is hinged and interwoven on the issue of the appointment. There is no direct, clear and unambiguous averment in the statement of claim where the respondent prayed for an order that he be declared as the district Head of Ile-Ire. All what he pleaded was in paragraphs 6 and 8 statement of claim aforesaid which are:-
Paragraph 6 read (sic):
‘It is against the customs of Ile-Ire district for any Chief or other title holder to take precedence or compete with the Onire of Owa-Onire in Ile-Ire district.’ I have produced paragraph 6 above and its import and purpose was only to challenge the appointment of the appellant as the member of the Traditional Council. The question of The District Headship or Headship of Ile-Ire, he was not a matter directly in issue for determination, it only arose indirectly on the assumption by the respondent that, he being the district Head of Ile-Ire, he was the only qualified person to represent the district as a member of the Traditional Council. He pleaded in paragraph 6 as produced above; it is against the custom of Ile-Ire district for any Chief… to take precedence or compete with him. There was further evidence from PW 1, the only witness called by respondent that the respondent was the District Head of the entire IIe-Ire.
“In my view, the question of who is the District Head of Ile-Ire as between the appellant and the respondent was not an issue raised for adjudication before the trial court. Accordingly, the trial court was in error to formulate a case for the respondent.”
After citing the case of Obioma v. Olomu (1978) 3 SC. 1 at 7 to buttress the point, the learned justice continued by adding:-
“A Court has no jurisdiction to make an order which has not been pleaded or prayed for by a litigant; such order is wrong and will be annulled on appeal. See Elumeze v. Elumeze (1969) 1 All NLR311. A trial (sic) should not import in his judgment issues not properly or raised at the trial. Adebisi v. Oke (1967) NMLR 64. A trial Judge, in deciding a case, must not, even when the interest of justice so demands, stray from the pleadings. See Dipcharima v. Alli (1974) 12 SC 45. The finding and the declaration that the respondent’ is the district head of Ile-Ire in lfelodun Local Government of Kwara State’ was made without any jurisdiction and must be annulled as it was not a matter which was prayed for nor a matter which was pleaded”
I cannot agree more.
This issue is accordingly resolved against the appellant.
Being closely inter-related and overlapping, I deem it pertinent to consider issues 2 and 3 together hereunder as follows:-
Germane to these issues is paragraph 8 wherein the appellant pleaded in his statement of claim as follows:-
“8. Whereof the Plaintiff claims from the defendants both jointly and/or severally as follows:
(i) a declaration that the plaintiff is the head of Ile-Ire district and he is the rightful title-holder to represent the Ile-Ire district in the 2nd defendant, and
(ii) a perpetual injunction prohibiting the 1st defendant from parading himself or doing any act which may give false impression that he is the head of Ile-ire district prohibiting the 2nd and 3rd defendants, their servants and/or agents from so treating the 1st defendant.”
From the evidence led pursuant to the above piece of pleading, the learned trial Judge in his judgment held, inter alia, as follows:-
“Now, on the issue of who is the district head of Ile-Ire district between the plaintiff and the 1st defendant, I find from the evidence before me that the Oba Onire’s Stool had existed for about 300 years now. It has been in existence for a period of over 250 years before the emergence of the Baleship or Obaship of Owa-Kajola, an institution founded only In 1940. I accept and believe the evidence of the 1st defendant that the first Oba of Owa-Kajola was Oba Ogunbiyi while the present incumbent and 1st defendant is the second Oba along that line. From the totality of the evidence adduced in this case, I find that the plaintiff as the present Oba Onire of Owa-Onire is therefore a more senior traditional ruler than the 1st defendant in Ile-Ire district and is better suited than the 1st defendant as the district head of Ile-Ire district. I therefore declare the plaintiff as the district head of Ile-Ire district. To decide otherwise would tantamount to super-imposing a part on a whole body having earlier found that Owa-Kajola is a breakaway faction of Owa-Onire … ”
The court below to which an appeal lay upon a careful consideration of the above findings by the trial court would not allow same to stand on appeal. Consequently, it held, rightly in my view as follows:-
“… There are arguments of the learned counsel which in my view as mentioned above are not relevant to the determination of the appeal and I need not mention them here.”
On this (sic) part, the learned counsel for the respondent argued that it was the districtship under the Native Law and Custom. He submitted that the question before the court was the paramouncy between the appellant and the respondent and that by virtue of the Customary Law, the respondent is the paramount ruler. He further submitted that the learned trial Judge rightly awarded what the respondent had claimed and he did not formulate a case for the respondent.
I have mentioned above, the claims of the respondent in the Lower Court and I had also reproduced in extenso the judgment of the learned trial Judge and the orders he made. It is clear to me that the respondent was unhappy in the government appointing … the appellant rather (sic) him to the membership of the Traditional Council.
The question of the District Headship is hinged and interwoven on the issue of the appointment. There is no direct, clear and unambiguous averment in the Statement of Claim where the respondent prayed for an order that he be declared as the district Head of Ile-Ire. All that he pleaded was in paragraph (sic) 6 and 8 of the Statement of Claim (aforesaid) are:-
The question of the District Headship of Headship of Ile-Ire was not a matter directly in issue for determination, it only arose indirectly on the assumption by the respondent, that he being the Head of Ile-Ire was the only qualified person to represent the district as a member of the Traditional Council…”
Continuing, the court below further held that:-
“He pleaded in paragraph 6 as produced above,’ it is against the custom of Ile-Ire district for any Chief… to take precedence or compete’ with him. There was further evidence from PW 1, the only witness called by respondent that the respondent was the District Head or the entire Ile-Ire. In my view, the question of who is the District Head of Ile-Ire as between the appellant and the respondent was not an issue raised for adjudication before the trial court. Accordingly, the trial court was in error to formulate a case for the respondent.”
The Court below, after buttressing its stance with a host of decided cases, observed that a trial Judge in deciding a case. must keep strictly to the pleadings of the parties and must not, even when the interest of justice so demands, stray away from the pleadings adding that the finding and declaration that the respondent “is the district head of Ile-Ire in Ifelodun Local Government of Kwara State” was made without jurisdiction and must be annulled as it was not a matter which was prayed for nor a matter which was pleaded. I am in complete agreement with this view.
The learned trial Judge, as it transpired, found quite erroneously, in my view, that the appellant was the District Head and paramount ruler of Ile-Ire district. The question, however, is from where did this piece of evidence emanate to support the finding”
Customary Law or Native Law and Custom, as rightly observed by the court below is a matter of evidence to be decided on the facts presented before the court in each particular case. Indeed, Customary Law is a question of fact which must be proved by evidence if judicial notice is not available through decided cases of the superior courts. These propositions of law, he pointed out, being trite need no citation of authorities. As the only piece or evidence led in support of the claim put forward by the respondent was only that of the lone witness where no evidence of custom was established, there was no credible evidence upon which to base the decision. As rightly found by the learned Justice of the court below:-
“The only evidence led in support of the claim of the respondent was the evidence of the only witness called by the respondent. And he did not lead any evidence to prove the custom. Therefore, the finding of the learned trial Judge was not based on any credible evidence led before him. It is also trite that where an inferior court gives judgment which is not based upon any evidence, it is a nullity. See Udofe v. Aquisisua (1973) 1 SC 119.”
In the light of the foregoing, 1 cannot but uphold the conclusion arrived at by the court below when in allowing the appeal, it held among other things that:-
“The learned trial Judge had found the appointment of the appellant as a member of the Traditional Council to be valid and proper; it was wrong of him to hold that the respondent was the district head and the paramount ruler of Ile-Ire district when that was not the issue before him. The issue before him was whether it was valid to appoint the appellant to be a member of the council and not him.”
Issues 2 and 3 are also equally resolved against the appellant. The result is that this appeal lacks substance and it is accordingly dismissed with N10.000.00 costs to the Respondents.
SC.116/1994