Oba R. A. A. Oyediran Vs. Oba Alebiosu II & Ors (1992)
LawGlobal-Hub Lead Judgment Report
I. L. KUTIGI, J.S.C.
The appellant who was the plaintiff at the High Court, Ilorin, sought for the following declarations in paragraph 16 of his amended Statement of Claim-
“(a) That the approval of the Ministry of Local Government Kwara State communicated in letter dated 17/6/82 Ref. MLG/S/L/240/S.1/Vol.1/116 to the Secretary Irepodun Local Government that Eleju of Ejuland should come from Sanmora only is not in accordance with the law and custom of Ejuland and is therefore null and void .
(b) That the Irepodun/Ifelodun/Ifedapo/Ekiti traditional council’s decision that the Eleju of Ejuland should come from Sanmora only is not in accordance with Native Law and Custom of Ejuland.
(c) That the Irepodun Local Government (and or Irewolede) should not carry out the Orders contained in the letter Ref. No. MLG/S/L/240/S.1/Vol.1/116 dated 17/6/82.
(d) That the Eleju of Ejuland is a Chieftaincy title which derives from and belongs to Igbonla.
(e) That the plaintiff is the Eleju of Ejuland.”
After the filing and exchange of pleadings the case went to trial. Each side led evidence to support its case. In his judgment the learned trial Judge after reviewing the evidence led by the parties dismissed appellant’s claims. The appellant appealed to the Court of Appeal Kaduna where his appeal was also dismissed. Dissatisfied with the judgment of the Court of Appeal the appellant has now appealed to this Court.
From the pleadings filed in the case it appears that the appellant’s case was simply that he, as the Oba of Igbonla, was duly appointed as the Eleju of Ejuland. He said it is not the 3rd respondent as the Oba of Sanmora that is entitled to be the Eleju of Ejuland as contended by him and supported by the other respondents.
In the Court of Appeal the following issues were submitted for determination
“(i) Whether from the totality of the evidence before the trial court, the plaintiff/appellant is entitled to the declarations and or reliefs sought.
(ii) Whether the Traditional Council gave opportunity to the plaintiff’s people to state their case before making their decision.
(iii) Whether the trial court was right in relying on the deliberations of the Traditional Council as contained in Exhibits D1 & D2.
(iv) Whether the trial court was right to have rejected a document which ex facie is irrelevant to the case before him.
“The Court of Appeal considered all these issues and found against the appellant.
Now in this Court the appellant filed three grounds of appeal as follows-
Ground 1
The Court of Appeal misdirected itself in law and in fact in failing to see anything wrong with the decision of the Traditional Council and the misdirection has occasioned a miscarriage of justice. Particulars
Omitted
Ground 2
The Court of Appeal like the trial High Court erred in law in holding that the evidence of a witness on customary law needs corroboration.
Particulars
Omitted
Ground 3
The Court of Appeal like the trial High Court misdirected itself in law and fact in holding that the Certified True Copy of High Court Judgment No. KWS/31/74 is properly rejected on the ground of irrelevancy. The misdirection has occasioned miscarriage of justice.”
Particulars
Omitted
Briefs were filed and were adopted by the parties at the hearing in addition to oral submissions.
Mr. Olorunnisola learned counsel for the appellant has in his brief submitted three issues for determination thus:-
“1. Is the Court of Appeal right in holding that the analysis made by the trial Judge in view of the evidence before it is not erroneous as regards the deliberations before the Irepodun/Ifelodun Traditional Council
- Is the Court of Appeal right when it said ‘the learned trial Judge may not, after all, be in error in his finding that the evidence given by the appellant who testified about the history and tradition in Ejuland required other testimonies of witnesses to corroborate him.’ Was the evidence of the appellant not in fact corroborated by other (witnesses) evidences
- Is the Court of Appeal right in saying that the certified true copy of the judgment of Kwara State High Court KWS/31/74 is not connected with issues joined by the parties and that the judgment if admitted would not have made any difference to the decision of the trial court in view of the evidence before the trial court”
With regard to the first issue Mr. Olorunnisola’s main complaint is that in Exhibit D2 (minutes of the deliberation of the Traditional Council) reference was made to a letter of one Mr. J.I. Makoji to the effect that two Elejus cannot exist simultaneously in Ejuland. He said the letter was not tendered at the trial and that failure to do so was fatal to the case of the respondents. Counsel also referred to another letter No. DOIE/CHI/2/38 of 29th October, 1969 by the sole Administrator J.O. Makoji, titled “Revocation of the Appointment of Eleju of lgbonla” which the 3rd respondent pleaded in para. 10 of his Statement of Defence but failed to tender. It was contended that the two letters must have weighed heavily against the appellant in the conclusions arrived at in Exhibit D2. He said the conclusion to be drawn from failure to tender the two letters was that the recommendation that the Eleju should come from Sanmora alone had no valid basis and that if tendered they would have gone against the respondents. He did not say how. He referred to section 148(d) of the Evidence Act, Ajide v. Kelani (1985) 3 NWLR (Pt.12) 348 at 351 and Elias v. Omabare (1982) 5 S.C. 25 at 38.
Mrs. Salman-Mann learned Solicitor-General for the 1st, 2nd and 4th respondents submitted that the Court of Appeal was right in upholding the judgment of the trial court and that the appellant failed to discharge the burden on him to be entitled to judgment. She said the letter referred to in Exhibit D2 was not capable of invalidating it (Exh. D2) merely because the letter was not tendered at the trial. She said Olanrewaju Afolabi (D.W.1) gave ample evidence at the trial on how Exhibit 02 was arrived at. That the making of Exhibit D2 violated no law. She said there was no evidence that the Traditional Council (author of Exhibits D1 & D2) was not properly guided in its deliberations.
Mr. Ijaodola learned counsel for the 3rd respondent said the appellant had failed to show that the trial court’s decision on exhibits D 1 & D2 are perverse or unreasonable. He said the decision of the lower courts would not have been any different if exhibits D 1 & D2 were excluded. He said appellant’s case was postulated on a preposterous foundation that there could be two Elejus in Ejuland simultaneously. That the 3rd respondent’s case did not rest on Exhibits D1 & D2 but was based on the custom of Yorubas that there can be only one head chief in any particular community at a time. He associated himself with the submission of Mrs. Salman-Mann.
The 1st and 2nd defendants/respondents in their Statement of Defence pleaded in para. 13 that:-
“13. The defendants plead the Report and Recommendations of the Irepodun/lfelodun/lfedapo/Ekiti Traditional Council on the Eleju of Ejuland controversy.”
The Report and Recommendations of the Traditional Council pleaded above are clearly Exhibits D1 & D2 respectively in this case. Mr. J.I. Makoji’s letter referred to in Exhibit D2 was clearly not pleaded. It could not therefore have been tendered at the trial since it was not pleaded. Moreover it is settled law that reference in a pleaded document to another document which is itself not pleaded, is not tantamount to pleading that other document and it is not open to any court to act on such unpleaded document (see Lawal v. G.B. Ollivant (1972) 1 All NLR 207). So it is in this case.
About the other letter pleaded in para. 10 of 3rd respondent’s Statement of Defence and which was not tendered, the law is simply that that paragraph of the pleading is deemed to have been abandoned. I must say that in both cases the provision of section 148(d) of the Evidence Act would hardly be applicable since there was no issue of withholding evidence and at any rate it was for the plaintiff/ appellant as distinct from the defendants/respondents, to prove his case on a balance of probabilities. If he failed, as the appellant did in this case, he cannot blame the other side. I have to add that as rightly submitted by Mr. Ijaodola even without Exhibits D1 & D2 there is adequate oral evidence on record to justify the lower court’s conclusion that the appellant completely failed to prove his case. I therefore resolve this issue in favour of the respondents.
On issue two Mr. Olorunnisola submitted that although it is desirable that a person other than the person asserting the existence of a custom should also testify in support of the custom, there is no law which requires the corroboration of such evidence. He said in this case the evidence of the plaintiff/appellant, as the person asserting, was supported in various respects by the evidence of P.W.s 2 & 3 especially with respect to the appellant’s contention that both Igbonla and Sanmora had in the past at different times produced the Eleju and that if allowed Igbonla could still produce the Eleju instead of it being permanently cut off from the throne. He cited in support Adigun v. Attorney-General of Oyo State (1987) 1 NWLR (Pt.53) 687, and Ex-parte Ekpenga (1962) 1 All NLR 265; (1962) 1 SCNLR 423. We were urged to hold that the title of Eleju does not belong to Sanmora alone.
Responding Mrs. Salman-Mann submitted that the requirement for corroboration could be either as a matter of law or as a matter of practice. That circumstances where corroboration is required as a matter of practice are those considered by the court as unsafe to convict or found for a party without corroboration. She said in the instant case the trial court had held that it found it difficult to believe the traditional evidence of the appellant alone without any supporting or corroborative evidence from any other witness. She said the learned trial Judge rightly relied on the authority of The Queen, Ex parte Chief Lewis Ekpenga v. Chief Ozogula II (1962) 1 All NLR 265 ;(1962) 1 SCNLR 423 for so holding. That customary law and custom of a people is a matter of public knowledge amongst the people who apply it. The custom here should not therefore be the exclusive knowledge of the appellant alone but must of necessity be within the knowledge of many people. The requirement for corroboration to establish such custom is therefore reasonable in law and in logic. It was also submitted that neither of the appellant’s witnesses corroborated his evidence on his “story of traditions of Ejuland.” That although P.W.s 2 & 3 said there had been an Eleju of Igbonla they were disbelieved by the trial court.
Mr.ljaodola for the 3rd respondent submitted that the preposterous claim of the appellant that there could be an Eleju of Sanmora and an Eleju of Igbonla both ruling Ejuland at one and the same time needed corroboration because there can only be one Eleju of Ejuland at anyone time. He again associated himself with the submission of Mrs. Salman-Mann.
I entirely agree with the able submissions of Mrs. Salman-Mann above. I think the learned trial Judge rightly observed in his judgment on pages 109-110 that:-
“The evidence of the traditional history narrated by the plaintiff is very difficult to believe………………..
Moreover the plaintiff has in his evidence in chief given a long history of the tradition of Ejuland but none of his witnesses corroborated his evidence…………………….. In my view a person who claims and rests his case on a long standing tradition must have his evidence corroborated by his other witnesses if he wants the court to believe him. No one can claim an exclusive knowledge of a long standing tradition said to be prevailing in his area.”
I have no doubt in my mind at all that in areas of customary law and traditional evidence it is good law that it is desirable that a person other than the person asserting it should also testify in support thereof (see Ex parte Chief Lewis Ekpenga (supra). This is only common sense. Native law and custom must be strictly proved. It will, therefore, clearly in my view, be unsafe to accept the statement of the only person asserting the existence of a custom as conclusive. What happened in this case was that the traditional evidence led by the appellant was completely disbelieved and the learned trial Judge gave his reasons. The appellant was unable to fault the reasons.The second issue must therefore be resolved against the appellant.
On the third and final issue appellant’s counsel submitted that since the High Court judgment No. KWS/31/74 was pleaded the trial court was wrong to have rejected same when tendered in evidence on the ground that it was irrelevant. He cited the case of Oyetunji v. Akanni (1986) 5 NWLR (Pt.42) 46 in support. We were urged to hold that the rejection of the document has occasioned a miscarriage of justice and to allow the appeal.
In reply Mrs. Salman-Mann said the judgment in suit No. KWS/31/74 was rightly rejected as it was outside the provisions of sections 48, 49 and 50 of the Evidence Act. She said a proper foundation was not laid at the trial for the admission of the document in evidence. She referred to the evidence of P.W.1 on page 82 of the record and to sections 48 to 51 of the Evidence Act and submitted that the document sought to be tendered was completely irrelevant. The cases of Agunbiade v. Sasegbon (1968) NMLR 223 and Torti v. Ukpabi (1984) 1 S.C 370; (1984) 1 SCNLR 214 were cited in support. She stressed that irrelevant documents are inadmissible and should be rejected and that the appellant misconstrued the decision in Oyetunji v. Akanni (supra).
Mr. Ijaodola on his own part submitted that the document offered for admission was too remotely connected with the issue for determination and that it was irrelevant to the appellant’s case and rightly rejected by the trial court. He said section 6 of the Evidence Act only enjoined trial courts to admit relevant evidence and that rejection of the document had not occasioned any miscarriage of justice. He added that the appellant misconstrued the decision in Oyetunji v. Akanni (supra.
Clearly the record shows on page 83 that when appellant’s counsel sought to tender the judgment No. KWS/31/74 at the trial, Mr. Ijaodola for the 3rd respondent objected. He said the judgment/document was irrelevant because the parties are different and there was nothing connecting the parties in the case with the parties in the judgment. He said the issue in the judgment related to wrongful detention while the present case related to chieftaincy dispute. He referred the court to sections 48, 50, 51 and 52 of the Evidence Act and urged the court to hold that the document sought to be tendered was irrelevant. In his brief ruling on page 84 of the record the learned trial Judge wrote:-
I have gone through the document sought to be tendered and I discovered that it contains nothing relevant to this our present case. The judgment of the court in Suit No., KWS/31/74 sought to be tendered is therefore rejected on ground of irrelevance and should be so marked.
(Sgd) J.A.Ibiwoye
JUDGE
9/7/85.
The Court of Appeal in the lead judgment of Uthman Mohammed, J.C.A., on page 17I of the record also had this to say:-
The rejected document is a judgment of Kwara (sic) High Court on an issue of wrongful detention and from the proceedings I cannot see how such a judgment would be relevant to the case in hand
I have also looked at the document and I agree that the subject matter in that judgment being not a case of res judicata and not a corresponding chieftaincy dispute connected with the case in issue, is not relevant to the issue joined on the pleadings in this case.”
I think the two lower courts are both correct in their finding that the document/judgment sought to be tendered even though pleaded, was completely irrelevant to the case in hand and rightly rejected it in evidence. In civil proceedings for a document to be admissible it must not only be pleaded. it must also be relevant. I agree with respondent’s counsel that the appellant’s counsel misconstrued the decision in Oyetunji v. Akanni (supra) because in that case the Court of Appeal in fact found that the statements sought to be tendered therein were relevant and therefore admissible in evidence since they were also pleaded.
In a civil case a document must be relevant to be admissible. A document must also be pleaded to be admissible. I believe the law has always been that admissible evidence is relevant evidence and that evidence which is not ordinarily relevant is not admissible. (See Agunbiade v. Sasegbon (supra) and Torti v. Ukpabi (supra). I may add that even if the judgment or document herein had been admitted as an Exhibit, it would certainly be of no evidential value as it would obviously be irrelevant to the claims as well as to the parties before the court. The last issue like its predecessors must therefore be resolved against the appellant.
All the issues having been resolved against the appellant, this appeal therefore fails. It is hereby dismissed with costs of N1,000.00 for each set of respondents.
Other Citation: (1992) LCN/2509(SC)
