Oba Simeon Olatuyi V. The Governor of Ondo State & Anor (2016)
LawGlobal-Hub Lead Judgment Report
JAMES SHEHU ABIRIYI, J.C.A.
This appeal is against the judgment delivered on 18th September, 2002 in the High Court of Ondo State holden at Ondo. The Appellant was Plaintiff and the Respondents were the Defendants.
The claim of the Appellant against the Respondents was for following:
(a) A declaration that the Plaintiff is in accordance with the history, native law custom and tradition of Akotogbo, the paramount ruler of Akotogbo.
(b) A declaration that the 2nd Defendant is a Chief of Larogbo quarter within Akotogbo, which is the domain of the Plaintiff.
(c) Injunction restraining the said 1st Defendant, his servants, officers and agents from dealing with the Plaintiff in matters concerning Akotogbo as if the Plaintiff and the 2nd Defendant are equals or that the 2nd Defendant’s status is superior to that of the Plaintiff.
?The facts of the case discernible from the evidence of the few witnesses called by both parties are as follows: According to Oba Simeon Olatunji, Baale of Akotogbo (Pw1) and the Appellant himself, the 2nd Respondent is a Chief under his domain. He (PW1) is the
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traditional ruler of Akotogbo.
The first Alaragbo was appointed by the Appellant’s successor in 1932. The traditional ruler of Akologbo was addressed as Oba (King). But the Colonial Government changed it to Bale.
On 25th June 1973, the Ministry of Local Government And Chieftaincy Affairs wrote to the prescribed authority to appoint someone as the Alarogbo which is a minor chieftaincy. The 2nd Respondent was appointed following this letter.
In 1982, the Ondo State Government elevated the 2nd Respondent to Alarogbo of Akotogbo.
He Appellant felt aggrieved.
But the 2nd Respondent asserted that he is the traditional ruler of Akotogbo and the Appellant is the Bale of Akotogbo. The Appellant is not the traditional ruler of Akotogbo.
Bale is a creation of the Colonial Government, created for administrative purpose specifically to aid the Colonial Masters in the collection of taxes.
That one Kuejoluse was brought from Ajagba to be the Bale at Akotogbo when the indigenes at Akotogbo did not want to be associated with the Colonial Masters. After Kuejoluse there was Inose, Nenuwa and the Appellant. These three men were all
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strangers at Akotogbo hence they did not get a traditional title to graduate to. The title of Oba in Yoruba is hereditary while that of Bale is not.
Exhibit H, a gazette is evidence that he is a paramount ruler, But the Appellant refuses to recognize him as such.
The 1st Respondent called no witness.
?After considering the evidence and addresses of learned counsel the lower Court in a considered judgment dismissed the claim of the Appellant.
Dissatisfied with the decision, the Appellant filed an original notice of appeal dated 9th December, 2002 and filed the same day. However, an amended notice of appeal dated 25th January, 2013 was filed on 28th January 2013 with leave of this Court. The amended notice of appeal contains four grounds of appeal from which the Appellant presented the following issues for determination:
(1) Whether the learned trial Judge was right in refusing and dismissing the Plaintiff’s application to amend his Writ of Summons and Statement of Claim when the trial of the suit had not commenced. (Ground 1 of the Amended Notice of Appeal).
2) Whether the learned trial Judge had the competence to rely on the
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address of the Defendants/ Respondents Counsel in deciding that the Plaintiff/Appellants action was statue-barred when no facts were averred in the Defendants/Respondents pleadings regarding statute of limitation. (Ground 2 of the Amended Notice of Appeal).
3) Whether the learned trial judge was right in reaching the conclusion that the Plaintiff/Appellant (sic) evidence of custom and history was less credible and probable than that of the Defendants/Respondents (Ground 3 of the Amended Notice of Appeal)
4) Whether the learned trial judge’s decision that the 2nd Defendant/Respondent was the most senior traditional ruler in Akotogbo was justified, juxtaposed with the evidence before the Court (Ground 4 of the Amended Notice of Appeal)
The 1st Respondent submitted the following issues for determination:
i. Whether necessary facts were not pleaded by the Respondents to enable the learned judge hold that the suit of the Appellant is statute barred.
ii. Whether the learned trial judge correctly ascribe (sic) the requisite standard of proof to the evidence of custom and history led by witnesses or parties.
iii. Whether the learned trial
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judge was not right in dismissing the suit of the Appellant over his Paramountcy as against the 2nd Respondent.
The 2nd Respondent filed a notice to contend in respect of appellant’s issue 1 containing two grounds from which he formulated the following issues:
(1) Whether or not an amendment can be granted where such amendment has the effect of setting up a claim that is statute barred. (Ground 1 of the Respondent’s Notice).
(2) whether or not there are sufficient materials provided by the appellant for consideration by the Learned Trial Judge in determining and dismissing the application for amendment before the trial of the suit. (Ground 2 of the Respondent’s Notice)
The 2nd Respondent also raised a preliminary objection to issue 2 presented for determination by Appellants.
2nd Respondent did not submit any issues for determination in the main appeal but argued the appeal on the issues formulated by the Appellant.
The appeal was thus argued on the following briefs of argument:
1. Amended Appellants Brief of Argument dated 25th January 2013 and filed 28th January 2013 settled by Kolawole Esan Esq.
2. 1st Respondent’s
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Amended Brief of Argument dated 17th November, 2015 and filed on 18th November, 2015 settled by F. K. Salami Esq. DDPP and Leo Ologun Esq. AG & PT. Ministry of Justice, Ondo State.
3. Further Amended 2nd Respondent’s Brief of Argument dated 17th November, 2015 and filed the same day settled by O. B. Tobase.
4. Appellant’s Reply Brief of Argument to The Fufther Amended 2nd Respondent’s Brief of Argument dated and filed 1st December 2015 settled by Kolawole Esan Esq.
Issue 1 formulated by the Appellant is on the refusal of the lower Court to grant an application by the Appellant to amend the writ of summons and statement of claim.
It was submitted that the Plaintiff would be allowed to amend his pleading at anytime before trial to add a new cause of action. It was submitted that the Appellant was at liberty to alter completely the course of his action subject to the lower Court’s discretion to award costs. We were referred to Egwa v. Egwa (2007) 1 NWLR (Pt 1014) 71 at 95.
It was submitted that the purpose of the amendment sought by the Appellant at the lower Court was to bring all the real issues in controversy for determination
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before the lower Court. That the basis of the appellant case before the lower Court was the Ondo State Government’s white paper on Ajayi, Ogunleye and Ojuolape Commission as it relates to the headship tussle between Baale of Akologbo (the Appellant) and the Larogbo of Akotogbo (the 2nd Respondent).
It was submitted that Courts have a duty to allow amendments to pleadings rather than enter judgment in ignorance of facts which ought to be known before the rights of parties are finally decided. We were referred toAdeleye and Anor v. Akin-Olugbade (1987) 3 NWLR (Pt 60) 214 at 223-224.
It was submitted that the lower Court wrongly exercised its discretion in refusing to grant the application for amendment in that as at the date of the application and ruling the materiality or immateriality of the amendment sought was not an issue. The lower Court, it was submitted, ought to have granted the application for amendment to enable it determine the real issues in controversy between the parties.
On issue 2, it was submitted that any issue that does not arise from a party’s pleadings or facts not pleaded goes to no issue and the Court is precluded from
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relying on such fact(s) as a basis of its decision. We were referred to N. I. P. C. Ltd v. Thompson Organization (1969) NWLR 99, Nishizawa Ltd v. Jethwani (1984) 12 SC, George & Ors v. Dominion Flour Mills Ltd (1963) ALL NLR 70 at 76 and Order 25 Rule 6(1) of the Ondo State High Court (Civil Procedure) Rules.
The lower Court, it was argued, erred in law in relying heavily on the submissions of learned counsel for the Respondents in their addresses to the effect that the claim was statute barred when the Respondents did not specifically plead the Limitation Law of Ondo State as extinguishing the right of the Appellant to the action.
It was submitted that just as the parties are bound by and limited to their pleadings so is the Court seized of the matter. It was submitted that since the Respondents did not plead neither was evidence led to show that the claims of the Appellant were statute barred, the lower Court was wrong in relying on the ipse dixit of learned counsel at the address stage in holding that the action of the Appellant was statute barred. The Court was referred to Buraimoh v. Bamgbose (1989) 3 NWLR (Pt 109) 352 at 365, Lipede v.
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Chief Sonekan (1995) 1 SCNJ 184 at 194-198.
The Respondents in this case, it was contended, did not plead the defence of statute of limitation in their pleadings and no shred of evidence was led to establish when the cause of action arose.
It was submitted that the Respondents did not raise any preliminary objection to the effect that the action was statute-barred, neither did they plead the facts showing that the action could not be pursued due to effluxion of time nor was any evidence adduced to that effect.
It was submitted that the Appellant’s action in any case was not based on the Ojuolape’s Commission of inquiry as held by the learned trial Judge.
The claims of the Appellant, it was submitted, were founded on the native law and custom and practice of the Akotogbo people to the effect that the Baale of Akotogbo (the Appellant) has from time immemorial been recognized and acknowledged as the paramount ruler of Akotogbo. The Appellant, it was contended, adduced evidence to establish this much.
?It was submitted that there were no facts upon which the lower Court could have latched on in arriving at its decision conclusively showing
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when the controversy over the superiority of the 2nd Respondent arose.
It was submitted that since the Respondents were relying on the defence of limitation of time, the onus was on them to establish when the cause of action accrued to the Appellant. However, no issue was joined on whether the Appellant’s cause of action was predicted on or arose from the Ojuolape Commission of Inquiry. Hence there was no evidence whatsoever upon which the lower Court could found his computation. We were referred to S. B. N. Ltd v. Pan Atlantic Shipping And Transport Agencies Limited & Anor (1987) NSCC Vol. 18 (Pt 1) 67.
It was submitted that although there are some authorities to the effect that the limitation law itself be specifically pleaded or cited the other authorities say that all that is necessary is to plead facts that would aid the Court in determining when the cause of action arose. We were referred to P. N. Udoh Tradino Co, Ltd v. Abere (2001) 11 NWLR (Pt 723) 114 at 133.
On issues 3 and 4 which were argued together, the Court was referred to the conclusion of the lower Court which learned counsel for the Appellants submitted was wrong.
?We
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were also referred to Paragraphs 6a. 9, 11-17, 19-21 of the amended statement of claim of the Appellant which learned counsel for the Appellant submitted were established on credible evidence led by the Appellant.
It was submitted that the uncontradicted evidence before the lower Court was that the 2nd Respondent was appointed by the Appellant in legitimate exercise of his paramount and superior powers to appoint minor chiefs of Akotogbo. That there was no evidence of any sort before the Court that indicated or confirmed a practice or custom of Akotogbo that a superior chief metamorphoses to a superior chief over and above the superior chief who appointed him previously.
?It was further submitted that there was no shred of evidence neither was any fact pleaded by the parties to show that the Appellant was a kingmaker or a member of kingmakers who could appoint somebody superior in title to himself. In the absence of such confirmed fact it was further submitted, it is difficult to say that an appointee to a position is superior to the appointer, who was not subordinate to any authority or persons. The custom of Akotogbo as adduced by the Appellant and
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confirmed by the Respondents, it was contended, was that Baale of Akotogbo (the Appellant) appointed minor chiefs including the 2nd Respondent.
The Respondents, it was argued, supported by the lower Court made heavy weather of the fact that the 2nd Respondent is a gazetted recognized chief or Oba. However that the fact that this recognition or appointment of the 2nd Respondent as the prescribed authority of Akotogbo which the Appellant challenged was glossed over.
It was submitted that an act being challenged cannot itself be proof of its legitimacy or evidence of custom. The Respondents it was argued, were obliged to lead evidence predating the gazette or recognition showing the paramountcy of the 2nd Respondent. But the 2nd Respondent could not do that because no such evidence existed hence the making of heavy weather or reliance on the gazette.
The 2nd Respondent, it was argued, admitted under cross-examination that he only became a chief of the lowest cadre in 1973. As at that time the Appellant, it was contended, had been Baale of Akotogbo for decades.
The 2nd Respondent, it was further argued, came into reckoning in 1976 through
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political maneuvering when he was appointed paramount ruler and accordingly gazetted. That until the actions of the 1st Respondent in 1976 there was no dispute of any sort over who was the paramount ruler of Akotogbo. It was the rape of custom in 1976, it was argued, that led to the turmoil in Akotogbo which the Ojuolape’s Commission sought to address. It was further contended that it was the elevation of the 2nd Defendant/Respondent over the Appellant that led to the complaint of the Appellant.
It was submitted that the lower Court erred in holding that the Appellant did not prove his case and that the Respondent’s history was more reliable.
On the 1st Respondent’s issue 1 which is the same with Appellant’s issue 2, it was submitted that all that is necessary for the pleading of defence of statute of limitation is to plead facts enabling the Court to hold that the action is statutes-barred. We were referred to P. N. Udoh Trading Co. Ltd v. Abere (2001) 11 NWLR (Pt 723) 114 and Abacha v. Fawehimi (2000) 6 NWLR (Pt 660) 228 at 306.
?On whether facts were pleaded to establish the defence of statute of limitation, the Court was referred to
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Paragraphs 15, 19 and 20 of the 1st Respondent’s statement of defence and Paragraph 30 of the 2nd Respondent’s statement of defence upon which the lower Court could hold that the Appellant’s suit was statute barred. It was also argued that the PW1 gave evidence and admitted under cross-examination that he was challenging the 1976 recognition of the 2nd Respondent and that there is no gazette he Appellant could point out to for recognizing him as Baale since 1976.
Learned counsel for the Respondents, it was pointed out argued and submitted that the action of the Appellant was statute-barred. The lower Court, it was submitted rightly held that the suit of the Appellant was statute barred.
It was submitted that the Appellant became aware of the recognition of the 2nd Respondent in 1976 as pleaded in Paragraphs 15, 19 and 20 of the 1st Respondent’s statement of defence and Paragraph 30 of the 2nd Respondent’s statement of defence and as admitted by the Appellant in evidence under cross-examination thereby giving him the right to challenge the recognition in Court.
?The Court, it was submitted, was right to have determined that the action was
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statute-barred issues having been joined by the parties as to when the cause of action arose and evidence led and admitted by the Appellant.
The lower Court, it was submitted, did not rely on the ipse dixit of the learned counsel at address stage in holding that the Appellant’s action was statute barred.
On issues 2 and 3 which are the same with Appellants issues 3 and 4, it was submitted that the 2nd Respondent led credible evidence to the fact that he is the traditional and paramount ruler of Akotogbo and his evidence was corroborated by the evidence of Dw2 that the traditional title of the traditional ruler of Akotogbo is the Larogbo of Akotogbo.
It was submitted that the 2nd Respondent equally led evidence of the fact that Baale is not indigenous to Akotogbo that it is a title for strangers and this was corroborated by the evidence of DW2 that Baales are agents of colonial masters that they cannot therefore have authority in Akotogbo communities. This fact, it was further submitted, was admitted by the PW1 under cross-examination when he stated thus:
“I cannot remember anywhere whether in Yoruba land or Benin Kingdom where Baale is superior
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to an Oba,” The Pw1, it was further submitted, admitted that he is not in the list of recognized Obas in Ondo State.
It was submitted that the Appellant pleaded certain documents in Paragraphs 6, 9, 11, 12, 14, 20 and 21 of the amended statement of claim but these documents were not tendered in Court. It was submitted that the best evidence of the contents of a document is the production of the document itself.
The Appellant, it was submitted, only led evidence on the content of the documents and gave uncorroborated evidence on the history and custom of Akotogbo and in a matter relating to chieftaincies.
It was submitted that it was not enough that the one who asserts the existence of a custom should be the only witness. We were referred to Section 14 (3) of the Evidence Act Cap 112, LFRN 1990.
It was submitted that the Appellant alone gave evidence in respect of the chieftaincy in Akotogbo without corroboration and this did not meet the requisite standard of proof as laid down in the provision of the Evidence Act referred above.
Learned counsel for the 2nd Respondent submitted that the arguments proffered or canvassed by the Appellant
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in respect of issue 1 are irrelevant to the facts upon which the application to amend the writ of summons and statement of claim were based. The arguments, it was submitted, were misconceived and the legal authorities in support were cited out of con in that the facts of those legal authorities were not in any way similar to the suit leading to this appeal and therefore tended to lead to extreme conclusion. We were referred to Adegoke Motors Ltd v. Adesanya & Anor (1989) 2 NSCC 327 at 339 and NEPA v. ONAH (1997) 1 SCNJ 220 at 230 -231.
On issue 1 formulated from 2nd Respondent’s notice to contend, we were referred to the guiding principles for Court’s considering applications for amendment of pleadings and the following cases: Yusuf v. Obasanjo (2003) FWLR (Pt 185) 507 at 546, Alsthom S. A. v. Saraki (2000) FWLR (Pt 28) 2267 at 2282 and Abasi v. Labiyi (1958) WRNLR 12.
?It was submitted that an amendment will not be granted merely because the trial had not commenced or because the trial is at a stage when the adverse party still has the opportunity to meet or address the new issue sought to be introduced by the proposed amendment in the
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proceedings.
It was submitted that an amendment of a writ of summons or a pleading which will have the effect of reviving a cause of action which is barred by statute of limitation at the time of amendment is not permissible in law and the lower Court was right to have dismissed the amendment sought by the Appellant before the commencement of trial. We were referred to U. B. A. PLC v. Adbullahi (2003) FWLR (Pt 182) 1914 at 1954.
The Appellant, it was argued, was seeking to challenge the Ondo State White Paper on Ajayi, Ogunleye and Ojuolape’s Commission of Inquiry as shown from the proposed amendments to reliefs (a) and (d) of the Proposed Amended Writ of Summons at page 30 of the record of appeal and Paragraphs 49 (a) and (d) of the Proposed Amended Statement of Claim at page 39 of the record of appeal.
?It was submitted that in the proposed amendments the Appellant sought to challenge the Ondo State Government White Paper on Ajayi, Ogunle and Ojuolape Commission of Inquiry six years, after the White Paper was published. This was statute barred contrary to Section 2(a) of the Public Officers Protection Law Cap 103, Laws of Ondo State 1978. We
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were referred to F. R. I. N. v. Gold (2007) ALL FWLR (Pt 380) 1444 at 1436.
It was submitted that the lower Court was right in refusing the application of the Appellant to amend the Writ of Summons and Statement of Claim on this ground apart from the grounds relied upon in the ruling of the lower Court.
On issue 2 formulated as per the Respondent’s Notice it was submitted that there were sufficient materials placed before the lower Court for the consideration of the application on computation of time to determine a statute-barred action such that the lower Court should not have waited until the trial before the determination of the application. The lower Court had been furnished sufficient material to determine and dismiss the Appellant’s application for amendment.
The Court was urged to resolve issue 1 formulated in the Appellants Amended Brief of Argument against the Appellant and also affirm the ruling of the lower Court on grounds other than those relied upon by the lower Court.
Learned counsel for the 2nd Respondent also raised a preliminary objection to issue 2 formulated by the Appellant on the ground that it does not arise from the
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ground of appeal and is therefore incompetent.
It was submitted that issue 2 does not arise from ground 2 or indeed any of the grounds of appeal in the amended notice of appeal.
It was submitted that it is settled law that issues for determination must relate to and rise from the grounds of appeal filed by the Appellant and any issue that is not distilled from the grounds of appeal is incompetent and must be struck out. We were referred to the following cases: United Bank for Africa PLC v. Ujoh (2002) FWLR (Pt 88 1014 at 1027, Carlem Nigeria Ltd v. UNIJOS (1994) 1 SCNJ 72 and Management Enterprises Ltd & Anor v. Otusanya (1987) 2 NWLR (pt 55) 179.
The Court was urged to strike out issue 2 for being incompetent.
Arguing issue 2 on the assumption that it is competent, it was contended that the Appellant ignored the pleaded facts and evidence adduced by the parties as to the time the wrong alleged in the suit was committed.
The Court was referred to Paragraphs 30, 37(b) and 41 of the 2nd Respondent’s statement of defence, Paragraphs 42-47 of the amended statement of claim, evidence of both parties on the time the alleged wrong
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occurred and evidence of the Appellant under cross-examination at pages 71 and 73 of the record of appeal. We were also referred to the evidence of the 2nd Respondent at page 80 of the record of appeal.
It is clear from the pleadings and evidence, it was submitted, that the wrong complained of by the Appellant was the recognition in 1976 of the 2nd Respondent as Oba by the 1st Respondent and the affirmation of same in 1982 the last of which occurred over a decade before the Appellant came to Court by his writ of summons dated and filed 24th May, 1989.
The defendant, it was submitted, did not need to aver that he would be relying on a statute of limitation. It was sufficient if facts were put in the pleadings and evidence adduced to show that the action was commenced outside the period allowed by law.
Learned counsel for the 2nd Respondent asked if from the pleadings and evidence the Appellant can rightly claim that he was in doubt as to: a) the date the cause of action arose and b) the time the action commenced.
The answers to both questions it was argued are in the negative.
?Having admitted in the pleading and evidence that the cause
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of action arose in 1976 the Appellant, it was argued cannot be heard to complain that the issue of limitation took him by surprise.
The action, it was submitted, is caught by Section 2(a) of the Public Officers Protection Law. Having pleaded in the statement of defence that the Court lacked jurisdiction to entertain the suit, the Appellant was bound to request for further particulars if he had any doubt in accordance with the High Court Rules of Ondo State 1979, it was submitted.
The argument of learned counsel for the Appellant that the lower Court relied on counsel’s address on limitation of time, it was submitted, cannot be correct in view of the finding of the lower Court at page 134 of the record.
The Court was urged to uphold the decision of the lower Court which dismissed the claim of the Appellant on the ground that it was statute barred.
On issues 3 and 4, it was submitted that Exhibit G (Western State of Nigeria Gazette) shows clearly that the Appellant is not a holder of a recognized chieftaincy and that the Appellant admitted this much under cross-examination when he said he is not one of the graded Obas in Ondo State. The
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Court was referred to Jubril v. Kolawole (1996) 5 NWLR (Pt 446) 34 at 44-45 where this Court held that under the Chiefs Law of Kwara State Baale is not a recognized chief.
It was submitted that it is the Appellant who alleged paramountcy over the 2nd Respondent that bears the burden of establishing same by adducing credible evidence to support the averments in the statement of claim.
It was submitted that the Appellant did not tender documents he pleaded because the contents if tendered would have been against his interest.
The Appellant’s claim was for a declaratory relief, it was submitted, and therefore he had the burden of establishing it by credible evidence. We were referred to Kim v. Emefo (2001) FWLR (Pt 66) 792 at 824 A-B
It was submitted that the holder of an unrecognized chieftaincy cannot claim equality with let alone paramountcy over the holder of a recognized chieftaincy.
Exhibits C and G, it was submitted, have force of law and a Court of law has a duty to give effect to them and enforce them.
?It was submitted that in the light of the finding by the lower Court that Exhibit G effectively revoked Exhibit H. The lower
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Court, it was submitted, was justified in holding as it did, that the 2nd Respondent is by reason of Exhibit G paramount over the Appellant. We were referred to Irona v. Idakwo (2003) FWLR (Pt 171) 1715 at 1736.
Evidence of Dw2, it was submitted, corroborated the evidence of the DW1 to the effect that Baale is alien to Ikale tradition. That Baales are subordinate to traditional obas.
It was submitted that the Appellant who alone gave evidence in proof of an alleged custom without corroboration did not meet the required standard of proof laid down under Section 14(3) of the Evidence Act Cap 112 LFRN 1990.
Exhibit B, it was argued,, was admitted in error as facts relating thereto were not pleaded. The Court was urged to expunge it.
In an Appellant’s Reply Brief it was submitted that the lower Court had no duty to refuse an application for amendment because it would raise a question of statute of limitation since the other party would always have an opportunity to make consequential amendments.
Learned counsel for the Appellant maintained that no facts were specifically pleaded to suggest that the 2nd Respondent intended to raise the
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statute of limitation. Therefore the lower Court could not rely on the address of respondent’s counsel to declare the claim of the Appellant statute barred.
The starting point in this appeal obviously is the preliminary objection to issue 2 by the 2nd Respondent.
Issues for determination formulated in a brief must be based on the grounds of appeal filed by the parties. If issues are not related to any ground of appeal, then they become irrelevant and go to no issue. Consequently any argument in the brief in support of such issues will be discountenanced by the Court. SeeIbator v. Barakuro (2007) 9 NWLR (Pt 1040) 475 and Amadi v. N.N.P.C (2000) 6 SC (Pt. 1) 66.
Appellant’s issue 2 and ground 2 from which it was formulated are reproduced immediately hereunder:
“Appellant’s issue 2:
?Whether the learned trial Judge had the competence to rely on the address of the Defendant/Respondent’s Counsel in deciding that the Plaintiff/Appellant action was statute-barred when no facts were averred in the Defendant/Respondent Pleadings regarding statute of limitation. (Ground 2 of the Amended Notice of Appeal).”
Appellant’s Ground 2 of the
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Amended Notice of Appeal is as follows:
“…The learned trial Judge erred in law when he held as follows:
In the instant case, the claims are statute barred because the Plaintiffs ground (sic) originated from the findings of the Ojuolape Commission of Inquiry Report and the whole paper which subsequently lead (sic) to the recognition accorded to Larogbo of Akotogbo, the 2nd Defendant as the paramount ruler of Akotogbo in 1976, Therefore the Plaintiff was challenging the act that occurred in 1976 in 1982. (sic)
PARTICULARS
(a) It is trite that parties are bound by their pleadings and issues are settled on these pleadings.
(b) A party who failed to plead a material fact but yet testified to it, it is a matter that goes to no issue and that piece of evidence will neither avail the Appellant nor Respondents.
(c) The issue of statute of limitation or that the case is statute-bared raised by Counsel to the Defendant/Respondents in their addresses was never pleaded in their pleadings and no iota of evidence of it was led at the trial.
(d) None of the Defendants pleaded the necessary fact that would enable the Court to hold that the
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action is statute-barred.
(e) The statute of limitation must be specifically pleaded by the Defendants/Respondent if they want to rely on it at the trial.
(f) Addresses of Counsel cannot be substituted for evidence of facts upon which the trial Court can base its decision.”
It is clear from ground 2 that the Appellant’s complaint is that the lower Court found that the action was statute barred when no facts were pleaded to that effect. This is also the fulcrum of issue 2. I am loath to think that issue 2 is not related to ground 2 of the amended notice of appeal.
In the circumstances, the preliminary objection to issue 2 is overruled by me.
Now turning to the ruling which refused to grant the application for amendment of the writ of summons and statement of claim delivered on 12th April 2000 contained at page 49-55 of the record of appeal, learned counsel for the Appellant in my view sought to make a big issue on the stage at which the application was made, that is, before hearing commenced. With due respect that was not one of the considerations by the lower Court on whether or not to grant the application for amendment of pleadings.
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This was made very clear by the lower Court in its ruling.
Learned counsel for the Appellant further argued that the materiality or immateriality of the amendment was not an issue.
?The Court, in considering an application for amendment of pleadings normally looks into the following; namely: the attitude of the parties, the nature of the amendment sought in relation to the suit, the question in controversy, the time for bringing the application for amendment, the materiality of the amendment sought. The Courts will not easily grant an application for amendment which if granted will unduly delay the hearing of the suit or unfairly prejudice either party to the suit.
The Court will not grant an amendment to change the nature of the claims before the Court. The Court will not grant an amendment where it will create a suit where none existed. Leave will not be granted if the amendment would not cure the defect in the proceedings. See Okolo & Anor v. U.B.N Ltd (1999) 10 NWLR (Pt 623) 429 and Alsthom S.A v. Saraki (2000) 10-11 SC 48.
The lower Court concluded its ruling thus:
“After due consideration of the issues for determination, the
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reliefs are different and the amendment will alter the nature of the case entirely if granted.
The application to amend the pleadings and writ of summons is hereby refused.”
As pointed out above, a Court will not grant an amendment to change the nature of the claims before the Court.
It was this factor that the lower Court considered a hindrance to the grant of the application for amendment. I am not prepared to fault the lower Court for the judicial and judicious exercise of its discretion in dismissing the application for amendment.
Issue 1 should therefore be resolved in favour of the Respondents and against the Appellant.
I accordingly resolve issue 1 in favour of the Respondents and against the Appellant.
Having resolved this issue in favour of the Respondents I am of the view that it is unnecessary considering the two issues formulated from the 2nd Respondent’s Notice to contend that the ruling be upheld on other grounds.
?I will treat issues 1 and 2 formulated from the 2nd Respondents notice to contend together.
A plaintiff will not be allowed to amend his writ of summons and/or pleadings in order to introduce a cause
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of action which is barred by statute at the time of attempted amendment because a grant of such amendment will prejudice the defendant by taking away the defendants existing right at the time of the amendment and defeat the statute of limitation. See U. B. A. PLC v. Abdullahi (2003) 3 NWLR (Pt 807) 359.
?I have looked at the schedule of amendments sought by the Appellant at page 27A of the record of appeal, the proposed amended writ of summons at page 30 and the proposed amended statement of claim at page 39 and I agree with learned counsel for the 2nd Respondent that the Appellant was seeking to challenge the Ondo State White Paper on Ajayi, Ogunleye and Ojuolape’s Commission of Enquiry. I agree also with learned counsel for the 2nd Respondent that from the proposed amended writ of summons and proposed amended statement of claim the lower Court could compute time to determine whether the amendment sought would bring the action beyond time allowed by the limitation law. If it would then, the lower Court would be entitled to dismiss the application for amendment on this ground.
It appears to me that the lower Court was entitled to dismiss the
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application for amendment on this ground too.
A party who relies on the provisions of a statute as a defence should plead in his statement of defence facts relied upon for bringing a particular transaction within the ambit of that statute. See International Messengers (Nig) Ltd v. Pegofor Industries Ltd (2005) 15 NWLR (Pt 947) 1.
A plea by a defendant in any given case that the action is statute barred is a plea which raises the issue of jurisdiction and which is determined by the writ of summons and the statement of claim. SeeAdekoya v. Federal Housing Authority (2008) 11 NWLR (Pt 1099) 539.
Though it is sometimes necessary for the Court to hear some evidence for the purpose of determining the issue of jurisdiction, where however the determination is based on the pleadings, the law is that it is determined on the plaintiff’s pleadings that is his statement of claim and not on the defendant’s statement of defence. See Onuorah v. Kaduna Refining And Petrochemical Co. Ltd (2005) 6 NWLR (Pt 921) 393.
?It is clear that the issue of jurisdiction was not determined in this case on the pleadings. It was considered after a full blown trial.<br< p=””
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The Court in my view in the circumstances could determine the issue of jurisdiction both on the pleadings and evidence led.
Learned counsel for the Appellant argued strenuously before this Court that the lower Court only relied on address of learned counsel for the Respondents to find that the action was statute barred. Nothing can be farther from the truth. Learned counsel for the Appellant probably closed his eyes to Paragraphs 42-47 of the Appellant’s amended statement of claim, Paragraph 30 of the 2nd Respondent’s statement of defence and the evidence of both parties as to the time the alleged wrong complained of occurred.
It is clear from the pleadings and evidence that the cause of action arose from the recognition in 1976 of the 2nd Respondent by the 1st Respondent as Oba and superior to the Appellant who is a Baale and the affirmation of this in 1982. At page 73 of the record of appeal for example, the Appellant under cross-examination said:
“I did not go to Court in 1975 when Alarogbo was recognized as an Oba.”
“I am challenging the 1976 recognition of the 2nd Respondent.”
?It is clear from the foregoing that the lower Court
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rightly found that the claim of the Appellant was statute barred because the grouse of the Appellant originated from the findings of the Ojuolape Commission of Inquiry Report and the White Paper which subsequently led to the recognition accorded to Larogbo of Akotogbo the 2nd Respondent as the paramount ruler of Akotogbo in 1976. Therefore the Appellant was challenging the act that occurred in 1976 in May 1989.
?For this reason, I resolve issue 2 in favour of the Respondents.
Issues 3 and 4 were argued together by the parties.
The requirement of the law regarding the onus of proof placed on a party claiming a declaratory relief as claimed by the Appellant in this case is trite. A claim for a declaratory relief is not established by admission by the defendant because the plaintiff must satisfy the Court by cogent and credible evidence called by him to prove that as the plaintiff, he is entitled to the declaratory relief. It is the law that a Court does not grant declaration on admission of parties because the Court must be satisfied that the plaintiff on his own evidence is entitled to the relief claimed. See Ayanru v. Mandilas (2007) 10 NWLR (Pt
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1043) 462.
The reliefs sought by the Appellant being declaratory in nature, he had the onus of satisfying the Court that on his evidence he was entitled to the reliefs sought. As learned counsel for the 2nd Respondent rightly submitted, it was the Appellant who claimed paramountcy over the 2nd Respondent that had the burden of establishing same by credible evidence.
I am afraid that the Appellant’s case was destroyed under cross-examination. At page 72 of the record of appeal, the Appellant stated in part as follows:
“Baales owe allegiance to the Paramount (sic) ruler of Akotogbo. The Baales who hold allegiance to the paramount Oba re (sic) not Obas. I cannot remember anywhere whether in Yoruba land or Benin Kingdom where Baale is superior to an Oba. My name was not listed in gazette, No 8 containing (sic) the names of recognized chiefs in Ondo State particularly in Okitipupa.”
At page 74 of the record of appeal the Appellant still under cross-examination said:
?All Obas in this Division are recognized by government. I am recognized by government as the Bale of Akotogbo.?
It appears to be from the above evidence
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extracted from the Appellant under cross-examination, that the lower Court rightly dismissed his claim.
The case of the Appellant also was not helped when he alone gave evidence of the custom relating to his chieftaincy. It is not enough for a party who asserts the existence of a custom to be the only witness of such custom. SeeSection 14(3) of the Evidence Act Cap 112 LFRN 1990.
The 2nd Respondent gave evidence for example that Baales are not indigenous to Akotogbo. That Baales were tax collectors for the colonialist governments. They were strangers. The 2nd Respondent called DW2 who corroborated this evidence.
Issues 3 and 4 in the circumstances are resolved in favour of the Respondents.
All Four issues having been resolved in favour of the Respondents this appeal is dismissed by me.
No costs awarded.
Other Citations: (2016)LCN/8707(CA)
