Prince Adebajo Sosanya V. Engineer Adebayo Idowu Onadeko (2005)

LAWGLOBAL HUB Lead Judgment Report

EJIWUNMI, J.S.C. 

This appeal is against the judgment of the court below (Coram. Onalaja. Tabai and Adekeye. JJCA), wherein the court affirmed the judgment of the trial court except the portion of the judgment on the propriety of joining the 4th respondent as a party to the suit. The action which is the subject of the appeal, was commenced by the appellant at the High Court of Justice of Ogun State in the Sagamu Judicial Division, before Ogunade, J. claiming declaratory reliefs and injunction against the selection of the 1st respondent as the Odemo of Isara.

Following the orders of the trial court, the parties filed their pleadings and which were later amended with the leave of the court.

Hence, the appellant’s case is as contained in his amended statement of claim. The defendants now respondents, for their part defended the claims in two parts. For the first part, the 1st, 5th and 6th respondents filed an amended statement of defence. The appellant joined issues with the respondents on their respective statements of defence by filing replies to amended statement of defence of the 1st, 5th and 6th respondents, on the one part, and on the other, the 2nd, 3rd and 4th respondents. It follows that at the close of pleadings, the appellant relied upon his amended statement of claim, his reply to the amended statement of the 1st, 5th and 6th respondents, and also the reply filed to the amended statement of defence of the 2nd 3rd and 4th respondents. On the other hand, the case for the 1st, 5th and 6th respondents is as postulated in their amended statement of defence.

As I do not consider it necessary to set out the pleadings of the parties, I think that reference ought to be made at this stage to the reliefs sought in the action by the appellant as pleaded at paragraph 23 of his amended statement of claim. It reads thus: –

“(a) A declaration that the 1st defendant, Engr. Adebayo Idowu Onadeko’s purported nomination and selection as the Odemo of Isara, Isara Remo, Ogun State of Nigeria is unconstitutional, illegal and contrary to the Customary Law and as such null, void, ultra vires and of no effect whatsoever.

(b) A declaration that the submission of the 1st defendant’s name to the kingmakers is null and void.

(c) A declaration that the non-submission by the Rokodo/Ogunsere Ruling House of the plaintiffs name to the kingmakers as one of the candidates vying for appointment to the Chieftaincy is ultra vires the Ruling House, and illegal.

(d) A declaration that the 1st defendant is not qualified to be a candidate for appointment to the office or to be appointed as an Odemo of Isara, having regard to the Customary Law pertaining to the Odemo of Isara chieftaincy.

An order in the nature of a mandatory injunction directing the Rokodo/Ogunsere to submit the name of the plaintiff to the kingmakers for consideration for appointment to fill the existing vacancy in the said chieftaincy.

(e) A declaration that the plaintiff being a qualified candidate is constitutionally entitled to vie, contest and be appointed as the Odemo of Isara, Isara Remo, Ogun State of Nigeria.

(f) A perpetual injunction restraining the 2nd to 6th defendants, their servants, privies, agents, officials and assigns from parading the 1st defendant or holding out the 1st defendant as the newly appointed Odemo of Isara Remo, Ogun State of Nigeria.

(g) An order of perpetual injunction restraining the 2nd, 3rd and 4th defendants, their agents, servants, privies, officials and assignees from announcing, appointing and/or ratifying the 1st defendant as the Odemo of Isara, 1sara Remo, Ogun State of Nigeria.

(h) An order of this Honourable Court on the 2nd to 5th defendants to take appropriate and fresh steps to comply with the Chiefs Law for the selection and appointment into the vacant position of the Odemo of Isara, Isara Remo, Ogun State of Nigeria.”

In proof of his claims and to justify the reliefs sought, the appellant called three witness, and the respondents also called three witness in support of their defence to the claims of the appellant. Several documents were also admitted as exhibits in the course of the trial. In addition, in what may be considered a novelty, a videotape of the proceedings covering the event that took place on the 10th of March was tendered and admitted during the trial. The court subsequently viewed the proceedings as recorded.

The facts that led to the decision of the trial court that ultimately formed the basis of this appeal are not complicated. The facts may be rendered briefly as follows: The demise in January 1994 of Oba A.O. Osideinde, the last Odemo of Isara signalled the race for his successor to the stool of Odemo of Isara which is a recognized chieftaincy with an approved Chieftaincy declaration that was registered on 28th March, 1958. (See the Chiefs Law of Ogun State 1978). It is also pertinent to state that it is common ground between the parties that the dispute between the parties arose from the nomination, selection and installation of the 1st respondent as the Odemo of Isara, Isara Remo in Ogun State. It is also an agreed fact that it was the turn of the Rokodo/Ogunsere Ruling House to present a candidate for the vacant stool.

The case of the appellant as could be gathered from his pleadings and the evidence led at the trial appears to be that the nomination, selection and final appointment of the 1st respondent to the stool of Odemo of Isara are in breach of the provisions of the Chief’s Law of Ogun State. On this, it is claimed that under that law, a candidate for the stool of Odemo of Isara, to be eligible, must be a descendant from the male line of a previous Odemo of Isara. However, it is claimed that as the 1st respondent descended from the sister of a previous Odemo of Isara, Oba Ogunsere, he was not eligible to be a candidate for the vacant stool. It is therefore claimed that his appointment as the new Odemo of Isara is illegal as each of the steps taken towards that effect, namely, his nomination and selection were illegal. It is also the case for the appellant that as he was also interested in contesting for the vacant stool, he was unfairly denied the opportunity to take part in the election for the stool. This is because though he was nominated by his father for the stool prior to the selection exercise that took place on the 10th of March, 1995. he was prevented from taking pat1 in the exercise because of the way his nomination was treated at the general meeting of the Rokodo/Ogunsere Ruling House held on 10/3/95. This is inspite of the fact that on that day, his name was proposed there by his father, Chief Sosanya, PW1. It is also part of the case of the appellant that the general meeting of the Rokodo/Ogunsere Ruling House held on the 10/3/95 was itself illegal and all the decisions taken thereat were null and void, as the meeting was not validly constituted and its proceedings were unfairly conducted.

On the other hand, the case for the 1st, 5th and 6th respondents plainly appears to be that a meeting of the entire Rokodo/Ogunsere Ruling House was held on 20th August, 1994. At that meeting which was also attended by the (Ukoyade/Seenu Branch) of the Ruling House, it was decided that a nomination committee be set up to consider candidates nominated by the respective branches of the Ruling House. That although the Ukoyade/Seenu branch to which the appellant belonged had two members on the nomination committee, that branch of the Ruling House did not forward any name to the nomination committee for consideration as a candidate 13 for the vacant stool. It is also part of their case that the nomination committee unanimously and without any dissenting voice from any of its members, recommended the 1st respondent as the candidate to fill the vacant stool of Odemo of Isara to Rokodo/Ogunsere Ruling House for ratification. They also pleaded and led evidence that the 1st respondent was eligible for appointment to the vacant stool as he descended from the former Odemo of Isara, Oba Ogunsere. In addition, they claimed that the investigation conducted into his candidature, the nomination committee was satisfied that he fulfilled all that they required of him to be recommended as the only candidate for the vacant stool.

With regard to the complaint of the appellant that the meeting of Rokodo/Ogunsere Ruling House held on 10th March, 1995 where the 1st respondent was nominated as the sole candidate for presentation to the Kingmakers was not validly constituted and that the proceedings were unfairly conducted, the 2nd – 4th respondents by their pleadings and the evidence led at the trial, denied the complaint of the appellant. Rather, their case appears to be that the notice of the meeting held on 10th March, 1995 was given to the entire members of Rokodo/Ogunsere Ruling House and also to Ikenne Local Government Officials and the State Security Service.

That the public notice (exhibit D) stated clearly that the purpose of the meeting was to fill the vacant stool of Odemo of Isara. They claimed that at the meeting, a roll call of members of the Ruling House was taken, at the end of which 178 members, after proper identification, were accredited as authentic members of the Ruling House. It was also part of their case that since the only purpose of the family meeting was to ratify the consensus candidate already nominated by the nomination committee, the 1st respondent’s name was put to the House for ratification. It was at that stage that the 1st PW, Chief Sosanya objected to the nomination and put up, for the first time, the appellant, PW1’s son as a contestant. Following that development, a vote was called for between the appellant and the 1st respondent. The result of the poll was 175 votes for the 1st respondent and 3 votes in favour of the appellant. After the conclusion of that exercise, the name of the 1st respondent was forwarded to the kingmakers who subsequently appointed the 1st respondent as the Odemo of Isara. The respondents upon the above facts, therefore contend that the selection, nomination and appointment of the 1st respondent as the Odemo of Isara were valid in law in that they were in conformity with the relevant provisions of the Chiefs Law, Cap. 20, Laws of Ogun State, 1978.

At the conclusion of the hearing of the evidence led by the parties, the learned counsel appearing for them addressed the court.

The court later delivered a considered judgment. By that judgment, the learned trial Judge formed the view that the 3rd and 4th respondents were not proper parties to the action and he struck out their names from the suit. But with regard to the main action, the learned trial Judge held that from the totality of the evidence led, the appellant has failed to prove his case and it was dismissed in its entirety. As the appellant was dissatisfied with the judgment of the trial court, he appealed to the court below upon a notice of appeal containing 29 grounds of appeal. The court below, after due consideration of the argument of learned counsel on the issues raised in the appeal, dismissed the appeal. Hence the appellant has appealed further to this court upon an amended notice of appeal consisting ten (10) grounds of appeal.

Subsequently and in accordance with the rules of this court, briefs of argument were filed and exchanged. At the hearing before us, learned counsel appearing for each of the parties, namely Bolaji Ayorinde for the appellant, Idowu Sofola, SAN for the 1st, 5th & 6th respondents and Mrs. P.F. Oduniyi Ministry of Justice, Ogun State, adopted and placed reliance on their respective brief of argument. Thereafter, each of the learned counsel addressed the court in expatiation of some aspects of their briefs affecting the issues raised in the appeal. In accordance with rules, issues for the determination of this appeal were set down in each of the briefs filed by learned counsel. In the brief filed on behalf of the appellant, four issues were identified for the determination of the appeal, while counsel for the 1st, 5th & 6th respondents and the 2nd – 4th respondents identified three issues each in their respective briefs of argument. After a careful perusal of the issues raised in their briefs, it is manifest that they are substantially similar to one another.

However, though four issues were identified in the appellant’s brief for the determination of this appeal, I will consider the merits of the appeal in accordance with those issues raised in appellant’s brief.

They read thus:

“1. Whether the court below was not in error in striking out grounds 1,3,4,5,6,7,8,9,10,11.12,13 and 21 of the appellant’s grounds of appeal and issues 1,2,3,5.6,7,8, 9, 10 and 12 formulated thereon for want of competence and whether that decision is not a nullity for infringing appellant’s right to fair hearing (Grounds 1, 2,3,4,5 & 7)

2. Whether the decision of the court below affirming the selection of the 1st respondent as the Odemo of Isara can stand in law, when the appellant, who is a qualified candidate was unjustifiably deprived of his right to participate in the selection exercise (Grounds 8 & 9)
3. Whether the court, as an appellate court can make findings of fact which do not stem from the cases of the parties before it and what is the consequence of such findings And
4. Whether the 1st respondent was qualified to have contested for the office of Odemo of Isara when the requirement of the chieftaincy declaration was not met and whether the decision of the coul1 below affirming the 1st respondent’s selection is justifiable” (Ground 10)

Issue 1

On this issue, the crux of the case for the appellant is that, he was deprived fair hearing by the court below when that court struck out virtually all his grounds of appeal and the issues raised thereon. In effect, the contention being made for the appellant is that, the appellant was deprived the opportunity of ventilating his complaint against the judgment of the learned trial Judge. Learned counsel then argued that the court below wrongly relied on the authority of Nwadike v. Ibekwe (1987) 4 NWLR (pt.67) 718 and other authorities cited in that judgment to strike out appellant’s grounds 1,3,4,5,6,7,8,9,10,11,12,13 and 21. And fell into further error by striking out also issues 2,3,4,5,6,7,8,9,10,11,12 and 13 predicated on the said grounds of appeal. Learned counsel then submitted that the court has moved from its strict adherence to the technical interpretation of the rules of court governing the meaning and effect of grounds of appeal. It is his further submission that the mere description of a ground of appeal as an error and a misdirection at the same time does not necessarily render such a ground of appeal incompetent. According to learned counsel, what the court now seeks to do is to consider whether the ground of appeal conveyed in sufficiently clear terms the complaint of the appellant to the respondent and if the court so hold, the ground will not be struck out for incompetence. In support of the above submission, we were referred to the following authorities: Aderounmu v. Olowu (2000) 4 NWLR (Pt.652) 253 at 245-266; Ogundare Osasona v. Oba Adetoyinbo Ajayi & Ors. (2004) 14 NWLR (Pt.894) 527 at 545; Yakeen Odonigi v. Aileru Oyeleke (2001) 6 NWLR (Pt.708) 12 at 23-24.

Having regard to the above submission, learned counsel invites the court to hold that as the court below did not consider the grounds of appeal that were struck out in the light of the authorities cited above, the grounds of appeal were wrongly struck out. Learned counsel for the appellant also urged the court to hold that as the court below wrongly struck out those grounds of appeal, the appellant was not allowed to ventilate his complaints against the judgment and was thereby denied the right to fair hearing. For this proposition, reference was made to these cases: Olumesan v. Ogundepo (1996) 2 NWLR (Pt.433) 628, (1996) 2 SCNJ 172; Yaya Adigun v. A.-G., Oyo State (1987) 1 NWLR (Pt.53) 678; Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587. And learned counsel therefore urged that the appeal be allowed for all the reasons given above.

Learned counsel for the 1st, 5th and 6th respondents in the respondents’ brief recognised as he had to the general submission of learned counsel for the appellant, the several authorities cited with regard to how to determine the competency of a ground of appeal to this court and the Court of Appeal. They include the following: Nwadike v. Ibekwe (supra); Dokun Ajayi Labiyi v. Alhaji Mustapha Anretiola (1992) 8 NWLR (Pt.258) 139 at 169. With regard to Aderounmu v. Olowu (2000) 4 NWLR (Pt.652) 253-266, teamed counsel submits that the dictum of Ayoola, JSC, in that case only sought to emphasise that once a ground of appeal sufficiently discloses the complaint of the appellant against the judgment appealed from, that ground of appeal though couched as a ground of law and a misdirection, should not for that reason alone, be declared incompetent. He went on to submit that in any event, the complaints of the appellant were fully considered by the court below. It is therefore his submission that the appellant cannot ask that the appeal be allowed on the premise that he was denied fair hearing by the court below. In support of his submission in his brief, learned counsel cited these cases: Engineering Enterprise of Niger Contractor Co. (Nig.) Ltd. v. A.-G., Kaduna (1987) 2 NWLR (Pt.57) at 381 and David-Osuagwu v. A.-G., Anambra (1993) 4 NWLR (Pl.285) 13.

In the brief filed on behalf of the 2nd – 4th respondents, their learned counsel, responding to the several contentions made for the appellant submitted that the question raised should be considered in the light of the provisions of Order 3 rule 2(2) and (4) of the Court of Appeal Rules, 1990 (as amended). Counsel then submitted that the provisions state clearly that a ground of appeal alleging misdirection or error in law must be clearly stated. The rules, argued counsel, also went on to stipulate that no ground which is vague or general in terms of which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of evidence and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the court of its own motion or on application by the respondent. It is therefore the submission of counsel that where as in the instant case, the appellant filed grounds of appeal alleging error in law and misdirection in facts, such which failed to comply with the rules of court are incompetent, and they were properly struck out by the court below. The issues raised on the grounds of appeal that were struck out were also properly struck out, being without competent grounds of appeal. The following cases were cited in support of the submissions of counsel; Humbe v. Hueze (2001) 4 NWLR (Pl.703) 372 at 374; Adah v. Adah (200 I) 5 NWLR (Pt.705) I at p.3; Hannah K. Agundo v. Mercy N. Gberbo (1999) 9 NWLR (Pl.617) 71.

With regard to whether the appellant was denied fair hearing on account of his grounds of appeal that were struck out, the view of learned counsel for the 2nd-4th respondents is that he was not denied fair hearing. This is because, argued learned counsel, the court below considered very carefully all the complaints of the appellant in the course of its judgment. For that submission, reference was made to

Ezebilo Abisi & 4 Oros v. Vincent Ekwealor & Anor. (1993) 6 NWLR (Pt.302) 643 at 675. In view of the very well articulated submissions made by counsel in respect of the questions raised under this issue, it is, I think, desirable to refer to some of the cases where similar questions on the meaning and effect of misdirection and error in law in a ground of appeal have been considered in this court. It is in my respectful view apposite to begin the consideration of the cases with Chidiak v. Laguda (1964) 1 All NLR 160, 162-163

“Time and again do cases come up on appeal in which matters are treated in the grounds of appeal as misdirection which are no more than findings of fact by the trial Judge. Perhaps it is time to make it clear again what is regarded as a direction. In the case of Bray v. Ford 1896) A. C. 44 at 50 Lord Watson said that:-

‘Every party to a trial by jury has a legal and constitutional right to have the case which he has made, either in pursuit or in defence, fairly submitted to the consideration of that tribunal.’

“This is done by the trial Judge directing the jury, who are the Judges of fact, as to the issues of fact, and what is the law applicable to those issues. A misdirection therefore occurs when the issues of fact, the case for the plaintiff or for the defence, or the law applicable to the issues raised are not fairly submitted for the consideration of the jury. Where, however, the Judge sits without a jury, he misdirects himself if he misconceives the issues, or summaries (sic) the evidence inadequately or incorrectly or makes a mistake of law, but provided there is same evidence to justify a finding it cannot properly be described as a misdirection. It is of course desirable, and we consider that it should be the practice that the particular findings to which objection is to be taken at the heating of an appeal should he specified in the grounds of appeal alleging that the judgment was against the weight of evidence.”

It is therefore manifest from a careful perusal of the above quoted excerpt of Taylor, JSC that a misdirection occurs when a Judge misconceives the issues or summarizes the evidence inadequately or incorrectly for one side or the other, or makes mistakes in the law applicable to the issues in the case. But the question still remains as to whether a misdirection and an error in law can be properly joined in the same ground of appeal. In order to answer this question, reference would be made to Humbe v. Hueze (2001) 4 NWLR (Pt.703) 372 where at page 385, Ogundare, JSC stated thus: –

“This issue has recently been resolved by this court in Aderounmu & Anor. v. Olowu (2000) 2 SCNJ 180, (2000) 4 NWLR (Pt.652) 253 at 265. It is there decided that a ground of appeal alleging error in law and misdirection in fact is not thereby incompetent if it otherwise complies with the rules of court requiring that a ground of appeal be not vague or general in terms (save what is generally known as the omnibus ground) and discloses a reasonable ground of appeal such that the respondent is given sufficient notice of the precise nature of the appellant’s complaint.”

Then at page 386, he made this observation in respect of the decision referred to in Aderounmu v. Olowu (supra)

“In my judgment in the case, after setting out the rules o of court, I did say at page 198: These provisions spell out what are required of a ground of appeal and the purpose is to ensure that the respondent is not taken by surprise. Once, therefore, a ground of appeal clearly states what the appellant is complaining about and there is compliance with the rules of court, I cannot describe such a ground as bad and therefore incompetent. The dictum of Nnaemeka-Agu, JSC in Nwadike v. Ibekwe (supra) did not go as far as some of their Lordships of the Court of Appeal made it to look. The learned Justice of the Supreme Court advised against lumping together in a ground of appeal complaints that ought better to have been split into different grounds of appeal. I commend his wise counsel to all legal practitioners engaged in drafting notices of appeal. I do not think, however, that non-adherence to this wise counsel will necessarily render incompetent any ground of appeal that otherwise complies with the requirements of the rules. And it is in this regard that I am of the view that Olanrewaju v. Bank of The North Ltd. (l994) 8 NWLR (Pt.364) 622 was correctly decided by the Court of Appeal.”

And at p.389 Achike, JSC said as follows: –

“As stated above, my decision on issue one would have concluded this appeal. But I wish to say a word on issue two because of the apparent mix-up or confusion in which similar complaint has long been shrouded. The issue is whether or not in law, a ground of appeal alleging a misdirection in law and on facts, is incongruous, defective and not worthy of consideration.

The issue being contested has its tap-root in the dictum of Nnaemeka-Agu, JSC in Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718, (1987) 11-12 SCNJ 72 at 99-100, where the learned Justice of the Supreme Court stated:

Let me pause here to observe that a ground of appeal cannot be an error in law and a misdirection at the same time, as the appellant’s grounds postulate. By their very nature one ground of appeal cannot be the two. For the word “misdirection” originated from the legal and constitutional right of every party to a trial by jury to have the case while (sic) he has made, either in pursuit or in defence, fairly submitted to the consideration of the tribunal. (See Bray v. Ford (1896) AC 44, at 49).In our system in which the Judge is Judge and jury, a misdirection occurs when the Judge misconceives the issues, whether of facts or of law, or summarizes the evidence inadequately or incorrectly. See Chidiak v. Laguda (1964) NMLR 123 at 125.

He may commit a misdirection either by a positive act or by non-direction. But when his error relates to his finding it cannot properly be called a misdirection: it could be error in law. This is why the appellant’s grounds 4,5,7 and 8 said to be “error in law and misdirection” are, above all other defects. Obvious incongruities.”

His Lordship continued:

“A precis of the above observation is that a ground of appeal that alleges “an error in law and mis-direction at the same time” is incongruous. This observation, on its own, may not ordinarily be easily faulted. My understanding of what the learned Justice was saying is that such approach in framing a ground of appeal is not very elegant. I cannot agree more with him.

Unfortunately that innocuous and prudent observation has been misconstrued and blown out of con by both legal practitioners and the bench. The result is that once a ground of appeal is couched in that rather inelegant form under reference the adversary party has invariably urged the appellate court to strike it out on the ground of incompetence. This ought not to be the case. Always, as in the case on hand and in Nwadike v. Ibekwe (supra), the authorities of Anyaoke v. Adi (No.2) (1986) 3 NWLR (Pt.31) 731, and Ogbechie v. Onochie (No.1) (1986) 2 NWLR (Pt. 23) 484 are referred to in support of the contention. Those cases are, with respect, of no moment with regard to the specific issue of lumping together complaints of “error of law and misdirection of facts” in one ground of appeal. As a matter of fact, Anyaoke v. Adi (supra) deals with several issues none of which has any relevance to the issue under consideration while Ogbechie v. Onochie (supra) is the of – cited authority on the acid test of whether a ground of appeal is one of pure law or mixed law and fact or fact alone.”

After referring further to what Ayoola, JSC said in the said judgment, he went on to clarify his position thus:

“In the matter under controversy, it appears to me that the fulcrum of the matter is whether an appellant, having regard to the rules of court has reasonably formulated his grounds of appeal in substantial compliance with the said rules of court, notwithstanding the defects or inelegance in the formulation, but so long as the adversary party, from reading the formulated grounds of appeal, is duly notified of the complaint sought to be made by the appellant. The reason for such objective approach is to ensure that any questioning of the validity of a ground of appeal is not simply predicated on form but rather on substance. After all, it is beyond peradventure that today the application of the rules of court and attainment of justice is generally no longer allowed or tolerated to be controlled by strict adherence to technicalities but rather to substance.”

It is, in my view, clear that from the above dicta reproduced, the decisions of this court that their thrust is that a competent ground of appeal should in the first place be drafted in conformity with the relevant rules of this court or of the court below. Where that has been done, then the ground of appeal would not be declared incompetent unless it is vague, inconclusive and couched in such general terms that it discloses no reasonable ground of appeal. In other words, a ground of appeal which does not give sufficient notice of the precise nature of the complaints of the appellant against the judgment appealed from is incompetent and deserves to be struck out by an appellate court. It is no doubt that principle that the court should endeavour to do substantial justice between the parties. The interest of justice must not be such as to allow an erring party to be given undue advantage over the respondent at the receiving end. I have in the light of the principles referred to above looked at the grounds of appeal struck out by the court below and which formed the subject of the complaint, arrived at the conclusion that the court below was right to have struck them out. In the result, issue (1) is resolved against the appellant.

Issue II

The question raised under this issue is, whether the decision of the court below affirming the selection of the 1st respondent as the Odemo of Isara can stand in law, when the appellant, who is a qualified candidate was unjustifiably deprived of his right to participate in the selection exercise.

In order to have this question answered in favour of the appellant, learned counsel for the appellant submitted that the learned trial Judge made three findings which he considered erroneous. And he further argued that the court below also fell into error in affirming the findings of the trial court. The enquiry as to whether the court below was wrong to have affirmed the judgment of the trial court must therefore commence with the said findings of the trial court.

They read thus: –

“(i) Plaintiff’s name was not submitted in accordance with the registered declaration;

(ii) Even if the plaintiff’s name was submitted, it was conditional and that the fact that plaintiff did not submit his credentials makes him ineligible to contest; and

(iii) Plaintiff participated in the selection exercise as he was defeated in the voting conducted as between 1st respondent and the plaintiff.”

As it is the submission of learned counsel that the above findings by the trial court and its affirmation by the court below cannot stand the test of evidence on the printed record, I will now proceed to consider each of these findings in the light of the printed record. For this purpose, the argument put forward by each counsel will also be considered.

The enquiry that we are concerned with here is, whether the appellant’s name was submitted in accordance with the registered declaration pertaining to the selection, nomination and appointment of the Odemo of Isara.

For the contention that the court below wrongly affirmed the trial court that the appellant’s name was not submitted in accordance with the registered declaration, learned counsel for the appellant

relied heavily on exhibit “J” and exhibit “J” is the registered declaration codifying the custom that regulates the mode of selection of candidates into the office of Odemo of Isara, paragraph (v) of which reads thus: –

“(v) On being registered by the Osugbos, the Odis and the Emos to provide a candidate for consideration, the ruling house whose turn it is to provide a candidate shall nominate at a family meeting or meetings to be summoned by the family head a candidate for the chieftaincy to be presented to the kingmakers. The candidate who will be presented to the kingmakers must be of recognised ability, character and popular support.”

In order to show further that the courts below were wrong, learned counsel contends that from the above quoted regulation, a would – be candidate should have his name nominated at the family meeting or meetings to be summoned by the family head, and also that as the regulation is silent as to whether the nomination should be oral or written, a candidate could signify his intention to contest for the stool by either an oral or written application. He also referred to the evidence of 1st DW, Ayodele Akindele Sowale, who said that a branch of the ‘Ruling House’ is entitled to propose a candidate directly to the family if it so desired. This proposal, he added, could also be made at or before the general meeting. Learned counsel for the appellant therefore submitted that the appellant duly applied for nomination by a letter exhibit ‘E’ written on 5/3/95 to the Olotu Ebi

Ogunsere (Head of the family of Ogunsere). This was done, according to the evidence of PW1, following the agreement reached on 4/3/95 by the Ukoyade/Seenu descendants to nominate the appellant as their candidate for the vacant stool of Odemo of Isara.

Now, it is clear from the evidence given above including that of PW1, that the appellant placed reliance on exhibit ‘E’ to show that the appellant was duly proposed for nomination for the vacant stool of Odemo of Isara before the family meeting of the 10th of March, 1995. However, in order to properly appreciate this evidence, it is necessary to refer to the events that happened before then. For that it is necessary to refer to the evidence of PW1 when he was cross-examined by learned counsel for the 1st, 5th and 6th respondents at page 189 of the printed record, where he said:-

“It is perfectly true that at the general meeting of 5/3/94, the Rokodo/Ogunsere Ruling House decided that the family would like to put forward one of their best princes. It is true that it was as a result of the excellent performance of Oba Rokodo that his brother was appointed to succeed him. That situation was peculiar to Rokodo/Ogunsere Ruling House. It was for the purpose of selecting candidates who would perform excellently as our forebears that Rokodo/Ogunsere Ruling House established a nomination committee.”

Before that piece of evidence, he had said at page 197 thus:-

“The nomination committee set up by Ogunsere family came into existence as a result of a message from the kingmakers that Ogunsere family should provide the candidate to fill the vacant stool of Odemo of Isara. I agree with you that Rokodo/Ogunsere Ruling House is one Ruling House made up of Rokodo family and Ogunsere family. The two families are one. Rokodo is the elder brother of Ogunsere of the same parents. I am not in a position as the eldest person in the family today, to say that they are full-bloodied brothers. I know quite a lot about Rokodo/Ogunsere Ruling House; both as the oldest person in that ruling House today and as the recorder of historical facts of Oba Ogunsere family. I am an authority on that Ruling House.”

And a little later on the same page 189, PW1 had this to say:-

“It is the duty of the nomination committee to receive all the applications and forward the same to the family;

it is not the duty of the committee to screen the candidates. I agree with you that the credentials of each candidate must be screened, but the screening should be done by the genera] meeting of the Ogunsere family and not by the nomination committee.”

The PW1, as I will presently show is c1early not alone about the appointment of a nomination committee to consider the candidate that would be nominated by the branches of the family to vie for appointment to the vacant stool. In this regard, let me refer to the evidence of DW1, Ayodele Akintunde Sowale, the Oliwo of Isara and Chairman of the Odemo of Isara Kingmakers whose evidence at pages 244-245 read thus: –

“On 20/8/9-1- it was decided that a nomination committee be formed for the purpose of nominating the next Odemo of Isara from the Ogunsere/Rokodo Ruling House. The decision to form a nomination committee was taken at the general meeting of the Rokodo/Ogunsere Ruling House. I know the 1st P.W, he is the plaintiff’s father. I cannot remember now whether the 1st PW was present at the meeting where the decision to form a nomination committee was taken. The nomination committee was asked to consider the possibility of nominating a candidate for the vacant stool of Odemo of Isara. It was decided that each of the 9 Idi-igi be represented by two members to form the nomination committee. The Ukoyade branch was represented by Messrs G.O. Olateju and U.O. Ogunmona. The Chairman of the nomination committee was Mr. S.O. Sogbetun. Mr. Sogbetun is the deputy chairman of Rokodo Ruling House. The committee is to consider each candidate nominated by the Idi-Igis before arriving at the selection of one candidate. I am the Secretary to the nomination committee. The Ukoyade/Seenu Branch did not forward the name of any candidate to the nomination committee for consideration. The nomination committee always reported back their decisions to the Rokodo/Ogunsere Ruling House at their general meetings. I did not at any time manipulate the affairs of the nomination committee. The 1st defendant, Adebayo Idowu Onadeko, was finally recommended by the nomination committee as the candidate of the Rokodo/Ogunsere Ruling House for the vacant stool of Odemo of Isara. The entire family heartily accepted the recommendation of the 1st defendant. The meeting directed that a letter be addressed to the 1st defendant indicating that he has been accepted as the choice of the family for the vacant stool. The letter was written. Before the 1st defendant’s, nomination his qualification for the stool was examined.

He was found to be a Prince from Odusami Branch.

The plaintiff’s father, 1st PW, was present at the general meeting where the final decision was taken.”

On a careful reading of the pieces of evidence given above, it is my humble view manifest that it was agreed by the Ruling House that a candidate who wished to be considered for the stool in contest, must have his name submitted to the nomination committee appointed by the Ruling House. It is also clear that before the 10th of March, 1995, the only candidate considered by the nomination committee was the 1st respondent as the appellant’s name was not submitted to that committee. It seems to me from the foregoing that the appellant through his father PW1 having agreed as a member of the Rokodo/Ogunsere Ruling House that a nomination committee be set up to select a candidate to consider the credentials of whoever applied for the stool, cannot now seek to resile from that agreement by seeking to whittle the powers given to the nomination committee.

The learned trial Judge in the course of his judgment carefully considered this aspect of the evidence before him and was right when he said thus at page 301: –

“The falsity of that assertion becomes more manifest when one considers the statement of the 1st plaintiff’s witness in exhibit E in which he proposed to send the credentials of the plaintiff for the nomination committee’s action. I hold that the nomination committee was set up to screen the credentials of those who applied to be considered as candidate and their personal attributes as contained in paragraph (v) of the registered declaration.”

Learned trial Judge then went on to make this crucial finding in the following passage of his judgment: _

“Learned counsel for the plaintiff has submitted that the Ruling House abdicated its role to the nomination committee when it allowed the nomination committee to screen and nominate a candidate for the approval of the Ruling House. I find myself unable to agree with her submission. The nomination committee was set up by the entire Ruling House as part of the nomination process.”

(Italicising mine)

And after further appraisal of the evidence before him, the learned trial Judge said at pp. 301 – 302 that:

“From all the evidence available both documentary, oral and visual, the Ruling House remained the authority to nominate the candidate and that was what it did on 10/3/95 when 1he secretary asked for nomination to fill the vacant stool and Chief R.A. Abass nominated the 1st defendant and the nomination was supported by S.B. Sogbetun and the nomination and objection of Chief J.A. Soranya were put to the entire 178 who voted 175 in favour of the nomination and 3 against. There is no question of the Ruling House delegating its power to nominate to the nomination committee.”

The above findings were affirmed by the court below, and it is my view that from the evidence on record, that court was right to have affirmed the findings of the trial court. There can be no doubt that it was an agreed fact that the members of the Ruling House had in order to select a candidate for the stool set up a nomination committee to achieve that purpose. It was therefore the duty of persons interested to follow that procedure. As the appellant had not taken that step, I fail to see how it can fairly be said that he was denied the opportunity of contesting for the stool. I must therefore uphold the judgment of the court below on this issue, no satisfactory argument having been advanced to show that the reasoning of the court below was perverse.

The 3rd issue would now be considered. The question raised under the issue is that the court below made findings of fact which were not based on evidence led at the trial. However, from what I have said in respect of issue 2, my view is there is no merit in respect of this issue.

Issue 4

Under this issue, the complaint of the appellant is that the courts below fell into error in holding that the 1st respondent was qualified to contest for the office of the Odemo of Isara. The main contention made for appellant by his learned counsel is that the 1st respondent was shown by the appellant’s pleadings in paragraphs 9 and 22 (v) of his amended statement of claim that he was not a qualified candidate to fill the vacant stool of Odemo of Isara. The averment made in those paragraphs of the appellant’s pleadings is that the 1st respondent is not a direct descendant of Oba Ogunsere. It is his further contention that as the respondents were not misled by the averments of the appellant, they then gave evidence upon the pleadings, and that without asking further particulars from the appellant. It is therefore the submission of learned counsel for the appellant that the trial court was wrong to have gone on to hold that, as the appellant did not plead particulars of genealogy of Oba Ogunsere and that, such failure was fatal. The learned Judge was wrong, learned counsel further submitted because the respondents did not raise any objection to the pleadings of the appellant in that regard. And he went further to submit that even on the strength of the available evidence proffered by the respondents, it is apparent that the 1st respondent is not a direct descendant of Oba Ogunsere. He therefore urges this court to set aside the decision of the court below affirming the finding of the trial court that the 1st respondent is a direct descendant of Oba Ogunsere. He, as far as the appellant was concerned, the 1st respondent is related to the Ogunsere family through Aroba a female child, and was therefore a descendant from the female line.

It is however the contention of the respondents that the 1st respondent was eligible for nomination to the vacant stool having regard to genealogy of Oba Ogunsere. His genealogy was properly pleaded and evidence led to that effect. It is further argued that the reference to pleadings by the learned trial Judge was to show that the appellant ought to have if there was anything to the contrary, ought to have filed a reply brief to that effect. Now, it is the law that parties are bound by their pleadings, and that should have guided the appellant in the pursuit of his case. And having not pleaded such facts to enable him lead evidence thereon, it was open to the trial court to reject such evidence. See George v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71 at 77, (1963) 1 SCNLR 117; George v. U.B.A. Ltd. (1972) 8-9 SC 264. In George v. Dominion Flour Mills (supra), Bairamian, F.J. delivering the judgment of the court in emphasising why pleadings must be such as would enable parties to know well in advance the case to be met at the trial, said at p. 123 of the report as follows:

“The fairness of a trial can be tested by the maxim audi alteram partem. Either party must be given an opportunity of being heard; but a party cannot be expected to prepare for the unknown; and the aim of pleadings is to give notice of the case to be met; which enables either party to prepare his evidence and arguments upon the issues raised by the pleadings, and saves either side from being taken by surprise. Incidentally, it makes for economy. The plaintiff will, and indeed must, confine his evidence to those issues; but the cardinal point is the avoidance of surprise.”

Also in Chief Victor Woluchem & Ors. v. Chief Simon Gudi & Ors. (1981) 5 SC 291, Nnamani, JSC at page 194 said:-

“The court should concern itself only with evidence on those matters which have been included in the pleadings. Emegokwue v. Okadigbo (1973) 4 SC 113 at 117; George & Ors. v. Dominion Flour Mills (1963) 1 All NLR 71 at 77; African Continental Seaways Ltd. v. Nigerian Dredging Roads and General Works Ltd. (1977) 5 SC 235 at p.248 and National Investment Co. Ltd. v. Thompson Organisation (1969) NMLR 104.”

The key as to whether the 1st respondent is a qualified person to be nominated and appointed to the stool of the Odemo of Isara is in my humble view, exhibit J, the Odemo of Isara Chieftaincy Declaration.

The relevant section reads thus: –

“Paragraph (III) of the Chieftaincy declaration states as follows:

The persons who may be proposed as candidates by a ruling house entitled to fill the vacancy shall be

(a) members of the ruling house

(b) of the male line, provided that succession may devolve on the female where the former holders of the Chieftaincy have no living issues or descendants of recognised ability, character and popular support, such a candidate shall be a true descendant of the female.

(c) sons of a previous holder of the title.”

It is therefore clear that by virtue of this provision, the Ruling House was entitled to fill the vacancy by the 1st respondent who emerged as the only candidate, though from a female line, who possessed the recognised ability character and popular support to justify his candidature. This issue must therefore be resolved against the appellant.

This appeal being concurrent findings by the two lower courts in respect of the claims of the appellant to the stool of Odemo of Isara, the appellant has the burden of showing that those findings should not be upheld by this court. This is because it is now settled practice that the Supreme Court will not interfere with concurrent findings of the lower courts unless they are not justified by the evidence and have thereby occasioned a miscarriage of justice. See Akeredolu v. Akinremi (No.3) (1989) 3 NWLR (Pt.108) 164; Osho v. Foreign Finance Corporation (1991) 4 NWLR (Pt.l84) 157; U.A.C. (Nig.) Ltd. v. Fasheyitan (1998) 11NWLR (Pt.573) 179. In the instant case, having regard to all that I have considered with regard to the issues raised in the appeal, it is my view that the appellant has failed to discharge that burden. In the result, this appeal must be dismissed and it is hereby dismissed by me with N10, 000 costs in favour of the two sets of respondents in this appeal.

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SC.294/2000