Chief M. F. Oladipo & Ors V. Moba Local Government Authority & Ors (2009)

LawGlobal-Hub Lead Judgment Report

JUMMAI HANNATU SANKEY, J.C.A.

The cause of action in the suit at the trial Court is the Obanla Chieftaincy of Erinmope. Whereas the lie Oji claim exclusive right to the Chieftaincy of Obanla, the lie Ibido claim that both Quaters, i.e. lie Oji and lie Ibido are entitled to ascend to the Chieftaincy. The matter of the Obanla Chieftaincy of Erinmope was mentioned as far back as 1938, where there is a record of the custom of entitlement to the stool in a document titled “Intelligence report on Out District in the Ekiti Division of the Ondo Province” written by one Mr. A. F. Abell, an Assistant District Officer. In that report, it is stated that the chieftaincy of Erinmope belongs to lie Oji. Thereafter, the issue was re-awakened and re-addressed in 1962, 1963, 1964, 1973 and 2004 by several different Panels and Commissions of Enquiries. Finally, following a Petition by the Appellants to the Government of Ekiti State, the Deputy Governor directed Moba Local Government to cause the Traditional Council to look into the matter. The Traditional Council thus invited both the Oji and Ibido Quarters through their representatives and thereafter set up a Panel to look into the matter. The PW2 however challenged the chairmanship of the Panel by the Oore of Otun on the ground that he was not friendly with the Obaleo of Erinmope and had vowed to destabilize the administration of the Obaleo. This allegation of hostility was however strongly debunked by both the Traditional Council and the Obas. Nevertheless, the PW2 was still dissatisfied with the conduct of proceedings by the Panel, alleging among other things that the evidence given by lie Ibido was not recorded, that he (PW2) was not allowed to properly cross-examine witnesses and that documents not tendered before the Panel were used in arriving at a decision. The lie Ibido yet again wrote another Petition to the Deputy Governor along these lines. In spite of all these, the Office of the Deputy Governor confirmed the report of the Panel in the Exhibit H. This is what precipitated the action at the trial Court. The Plaintiffs therein, (hereinafter referred to as the Appellants), therefore sued the Respondents at the High Court of Ekiti State sitting at Ido-Ekiti, seeking the following declarations and orders:

(a) A Declaration that the appointment or proceedings of the Panel of Enquiry set up by Moba Local Government Traditional Council to investigate the chieftaincy dispute on Obanla of Erinmope chieftaincy are unconstitutional, irregular, contrary to natural justice, null and void and therefore of no legal effect.

(b) An Order setting aside or annulling the report and or findings of the said Panel of Enquiry, the conclusions and the consequential actions of the Local Government on the report and or findings (if any).

(c) An Order of Court restraining the 1st Defendant and or other Defendants from giving any legal effect whatsoever to the report and findings of the said Panel of Enquiry or otherwise acting thereon to the prejudice of the Plaintiffs.

(d) A Declaration that there are two ruling houses to the Obanla of Erinmope Ekiti chieftaincy, namely:

(1) lie Oji (Oji quarters)

(2) lie Ibido (Ibido quarters)

(e) A Declaration that it is the turn of lie Ibido (Ibido quarters) to produce the next Obanla of Erinmope Ekiti after or at the demise of the incumbent who is from lie Oji.

(f) An Order of Court nullifying or setting aside the 1964 Otun District Council Chieftaincy Declaration and the findings and decision of the Bola Commission of Inquiry as it affects or affected the Obanla of Erinmope Chieftaincy on the ground that the Plaintiffs (Ibido Quarters) were not duly represented nor given opportunity to participate through their accredited representatives in the process and or meetings leading to the making of the declaration or decision.

(g) An Order of Court directing the 1st Defendant to, through its appropriate organ or bodies, prepare a Chieftaincy Declaration in respect of Obanla of Erinmope chieftaincy showing the two ruling houses – Oji and Ibido in tune with the instruction of the Honourable Commissioner for Local Government and Chieftaincy Affairs Western State of Nigeria and which instruction was based upon the resolution of the meeting held on Friday the 24th of August, 1973.

At the close of trial, the learned trial Judge found in favour of the Respondents in these terms:

“In conclusion I hold that all the prayers sought by the Plaintiffs fails. I have dealt with it in details in this Judgment and need not repeat them. They are accordingly dismissed in its (sic) entirety.”

Aggrieved by the decision of the lower Court, the Appellants filed an Appeal comprising of six grounds. In line with the Rules of this Court, parties filed their respective Briefs of Argument. At the hearing of the Appeal on the 9th February, 2009, Counsel for the respective parties adopted their Briefs. In the Appellants’ Brief of Argument, the Appellants distilled six issues there from for determination by this Court. The 1st Respondent, in its Brief of argument, essentially adopted the 1st and 2nd issues for determination from the Brief of the 2nd & 3rd Respondents, (which was filed earlier in time). The 2nd & 3rd Respondents, on their part, formulated three issues for determination.

For my part, I am of the considered view that the following issues, which are an amalgamation of the three sets of issues, will suffice to address the complaints/grievances articulated in the Appellants’ Grounds of Appeal:

1. Whether the Judgment of the Court was borne out by the totality of the evidence adduced by the parties before the Court.
2. Whether the Appellants were given a fair hearing at the trial Court.
3. Whether the Appellants are at liberty to impeach or challenge the evidence of DW1, (called by the 1st and 4th Respondents), during the hearing of the Appeal, having failed to raise an objection to the competence of the witness to testify and after taking further steps thereafter.

Issue One: Whether the Judgment of the Court was borne out by the totality of the evidence adduced by the parties before the Court.

It is the contention of the Appellants that there is a miscarriage of justice as a result of the trial court’s perverse and contradictory findings as well as the wrong application of the principles of law and procedure. The basic issue before the Court was whether both the Oji and Ibido quarters of Erinmope have the right to produce the Obanla of Erinmope according to the custom and history of Erinmope. Learned Counsel for the Appellants, Chief Akomolafe, contends that the ‘preponderance of evidence, that Oji is the only ruling Obanla family in Erinmope was based on perverse and contradictory findings. He challenges the trial Court’s finding and conclusion that Ibido also produced Obanla of Erinmope twice as a mark of honor to a woman. Counsel refers to the record where DW1, the Local Government officer gave evidence on behalf of the 1st and 4th Respondents who filed no pleadings. He pointed out that DW2 was the only witness for the Oji ruling house. He submits that in order to prove the custom and traditional history of the chieftaincy title of a town, it would be unsafe to accept the evidence of only one person as authentic and infallible. He relied on Oba R. A. Oyediran of Igbonla V Oba Alebiosu II (1992) 6 NWLR (Part 249) 550 where the Supreme Court stated the need for corroborative evidence in proof of custom.

Learned Counsel submits that the 2nd and 3rd Respondents in their pleadings in paragraphs 4, 5, 8, 9, 10 and 11 (Pages 52 to 56) admitted that Ibido Ruling house produced two Obanlas before. Citing Section 75 of the Evidence Act, he argues that facts admitted need no further proof. Counsel contends that the Appellants’ evidence concerning the Erinmope people’s resolution that the Obanla chieftaincy title should henceforth be rotated between Oji and Ibido quarters was ably summarized in the first page of the Judgment of the learned trial Judge at page 169 of the record. He submits that the Appellants gave uncontroverted evidence of the different real mothers of the two Obanlas from Ibido quarters. Counsel took up issues with the confusion over the Respondents’ alleged name of the mother of the last two Obanlas from Ibido quarter. He drew attention to the three variations bandied about in the record thus: “Famiriym” in paragraph 8 of the Respondents’ pleadings (page 56 of the record), “Famoriyan” in DW2’s evidence (Page 131), “Famoriyun” in the Judgment of the Court (page 173 of the record).

Chief Akomolafe submits that, on the contrary, PW1 gave uncontroverted oral evidence of the list of eight Ibido Obanlas who reigned at the same time with Appellants’ Obanlas (page 84 – 85). PW2 further corroborated this in his evidence.

He argues that the trial Judge reproduced the evidence of eight Obanlas produced from Ibido quarter in his Judgment at page 171, but could not reproduce such list for Oji quarter because no evidence was given to that effect or to contradict Appellants’ evidence of eight Obanlas. Counsel contends that the only witness for the Respondents failed to give oral evidence of the list of Obanlas from Oji quarter that held the title before the last two Obanlas-Alepolokoand Arule-wo-nimesi from Ibido quarters. Even under cross-examination DW2 admitted that he did not know the names of Obanlas from his Oji quarter suggested to him. Counsel therefore argues that the list of Oji Obanlas and other contentious issues abandoned in the Respondents’ pleadings are not proof of those issues as mere assertions, claims and averments in pleadings not supported by evidence are deemed abandoned. N.A.S Ltd v U.B.A Plc. (2005) 14 NWLR (Part 945) 421; New breed Organization Ltd V Erhomosele (2006) 5 NWLR 499 (Part 974). Counsel therefore submits that the trial Court was perverse in its findings for the Respondents.

By virtue of the Supreme Court decision in Obi Eze V AG Rivers State [2001] 18 NWLR (Part 746) 524, Counsel urges the Court to examine more thoroughly Exhibit H particularly at page 26 thereof which recommended to Ekiti State Government that Oji is the sole owner of Obanla Chieftaincy of Erinmope compared with Obaleo (king) of Erinmope’s evidence and prayer at pages 13-16 of Exhibit H. He submits that the preponderance of evidence is in favor of the Appellants.

Learned Counsel further submits that the Judgment given in favor of the Respondents is against the weight which should have been given to the totality of the evidence before the trial Court on the custom and traditional history of Obanla Chieftaincy title of Erinmope Ekiti. Esebilo Abisi V Vincent Ekwealor (1993) 6 NWLR 643 (Part 302) 647, Mogaji V Odofin (1978) 4 SC 91-95 is relied on.

Counsel contends that the fulcrum of the evidence the trial Court considered in favor of the Respondents was Exhibit M which was not pleaded by the Respondents. He submits that whereas the Respondents’ evidence on the custom and traditional history from one witness was not corroborated, the Appellants’ evidence was corroborated and remains uncontroverted.

Whereas the 1st Respondent did not address this issue in its address, learned Counsel for the 2nd and 3rd Respondents, Mr. Omotoso, submits that the Appellants’ claims at the lower Court are essentially declaratory in nature, coupled with consequential reliefs. He submits that a party who seeks a declaratory relief must show that he has an interest or right which forms the foundation of that right in relation to which a declaration can be made. Where the claims of a plaintiff before a trial court are essentially declaratory, the duty is on him to succeed on the strength of his own case and not on the weakness of the defendant’s case. Alao V Akano (2005) 11 NWLR (pt. 935) 160 at 173, per Musdapher JSC is relied upon. Counsel argues that the Court does not make declarations of right based on either admission or in default without hearing evidence and being satisfied by such evidence to the plaintiff’s entitlement of such a right. The Court has the discretion to grant or refuse a declaratory relief and its success depends entirely on the strength of the plaintiff’s own case and not on defense. Maja V Samouris (2002) 7 NWLR (pt 765)78 at 100-101 is relied upon. Counsel further submits that although the rules of court and evidence relieve a party of the need to prove what is admitted, where the court is called upon to make a declaration of a right, it must be satisfied by evidence and not by admissions in the pleadings of a defendant that he is entitled to the claim. Nkwocha V Ofurum (2002) 5 NWLR (pt. 761) 506 at 524 is relied on. He thus submits that the Appellants failed woefully to prove on evidence that they were entitled to the declarations sought by them.

Learned Counsel further submits that the material facts pleaded by the Appellants which they were required to establish by evidence were:-

(a) The unconstitutionality, nullity and void-ness of the appointment and/or proceedings of the Panel of Inquiry set up by Moba Local Government Traditional Council to investigate the chieftaincy dispute on Obanla of Erinmope chieftaincy.

(b) That there are two ruling houses to the Obanla of Erinmope Ekiti Chieftaincy namely:

(i) lie Oji (Oji Quarters)

(ii) lie Ibido (Ibido Quarters)

(c) That it is the turn of the Ibido quarters to produce the next Obanla of Erinmope Ekiti.

(d) That the Appellants (Ibido Quarters) were not duly represented not given opportunity to participate in the declaration.

On the unconstitutionality and nullity of the appointment and/or proceedings of the Panel of inquiry set up by the Moba Local Government Traditional Council to investigate the Obanla chieftaincy title, Counsel submits that the Appellants pleaded in paragraphs 56-66 of the Statement of Claim that the participation of the Oore of Otun i.e. the 4th Respondent, in the proceedings was irregular and that the findings and recommendation of the said Panel were perverse, etc. The Obaleo of Erinmope appeared and testified before the said Panel as reflected in the Exhibit H. He also wrote Exhibit N debunking the allegation of the Appellants, whilst the 4th Respondent in his response wrote Exhibit O. Exhibit H shows that both parties were given equal and adequate opportunities to present their cases before the said Panel of Inquiry set up by the Moba Local Government Traditional Council. It was the same Appellants that caused the Ekiti State Government to direct the Moba Local Government Traditional Council to set up the said Panel. The Appellants did not raise the issue of real likelihood of bias before the said Panel but waited for the release of the findings of the Panel before raising same. Counsel therefore submits

that the Appellant cannot turn round to condemn the said Panel. They are estopped.

Iloabachie V Phillips (2002)14 NWLR (pt. 787) 264 at 289 -290 is relied on.

Mr. Omotoso contends that the Appellants’ allegation of bias against the said Panel of Inquiry was also predicated on the ground that the Panel made use of an Intelligence Report of Otun District, Ekiti Division, Ondo Province compiled by Mr. A.F. Abell, Assistant District office, July 1938 Exhibit M. Counsel submits that a Panel of Inquiry is a fact finding panel with powers to procure evidence and examine witnesses. Exhibit M does not only relate to the subject matter before the Panel, but also that the contents therein are presumed to represent true information and is admissible in evidence. Nteogwuile V Otuo (2001) 16 NWLR (pt. 728) 58 at 91 per Uwaifo JSC is relied upon.

“An Intelligence Report is a public document made by a public officer and is presumed to contain true information and is admissible in evidence”.

Learned counsel further submits that the Appellants pleaded in paragraph 64 of the Statement of Claim thus:-

“64. Plaintiffs aver that when the Panel was yet to conclude its assignment a petition was written on behalf of Ibido to his Excellency, the Deputy Governor of Ekiti State through their Solicitor T. Abayomi Odufolakun complaining bitterly about the sharp seemingly irreconcilable disagreements between members of the panel and the fact that the disagreements were such that had already eroded their confidence in the possible outcome of the enquiry.

The plaintiffs complained that they were no longer having confidence in the panel”.

Yet, they did not call any of the members of the said Panel to give evidence of the “sharp seemingly irreconcilable disagreements between members of the Panel”. Under cross examination by the 2nd & 3rd Respondents’ Counsel, PW1 at page 99 of the record testified that the Obanla dispute had been going on for the over 40 years. Series of allegations were raised against each of the Panels that were set up to look in to the long-running dispute, such as: the Otun District Council and Chieftaincy Committee of 1962-64, which the Appellants alleged was biased. They also raised an allegation against the Bola Panel of enquiry. Yet again, the Appellants’ family is raising allegations against the Panel set up by the Moba Local Government and headed by the Oore. Counsel therefore submits that it is safe to conclude that it has become the tradition of the Appellants to raise allegations of bias against various Panels of Inquiry set up by various successive Governments to investigate the Obanla of Erinmope Chieftaincy title. He argues that no reasonable Judge would have granted the declarations sought by the Appellants who failed to substantiate the material facts in their pleadings with credible evidence. Alao V Akano (Supra) is relied on.

Counsel submits that the Appellants also pleaded that there are two ruling houses to the Obanla of Erinmope Ekiti Chieftaincy title and sought a declaratory relief to that effect. He contends that Exhibits B, H, I, K and R support the historical facts that only the Oji quarters can produce the Obanla. Exhibit A which is written in Yoruba Language and erroneously admitted in evidence by the trial Court was later expunged from the record on the ground that same is inadmissible. Conversely, the 2nd & 3rd Respondents in paragraph 15 of their Statement of Defence averred that, traditionally in Erinmope, each Quarter has its own representatives at the Oba’s palace and set out an elaborate table showing the list of eight quarters (and their respective chieftaincy titles) who have representatives at the Oba’s palace. For Oji quarters, it is the Obanla title, while for Ibido quarters it is the Osolo title. Counsel contends that this material fact was not denied by the Appellants who failed to file a reply to the Statement of Defence. Counsel submits that the failure to file a reply thereto denying the aforesaid material fact amounts to an admission and the evidence on same remains unchallenged. Makanjuola V Ajilore (2001) 12 NWLR (pt. 727) 416 at 436 is relied on. Learned Counsel therefore submits that the Appellants did not place sufficient material facts before the trial Court to enable the learned trial Judge declare that there are two ruling houses to Obanla of Erinmope Ekiti Chieftaincy title. Counsel submits that it would be a wrong exercise of discretion on the part of a Court which is aware of the issues of competing interest joined by the parties, to close its eyes against those issues and award a declaration to a plaintiff who had adduced no evidence in regard thereto. Nkwocha V Ofurum (2002) 5 NWLR(Pt. 761) 506 at 524 is relied on.

The Appellants also prayed the lower Court to nullify or set aside the 1964 Otun District Council Declaration and the findings of Bola Commission of inquiry on the grounds that the Appellants were not duly represented nor given an opportunity to participate in the process leading to the making of the Declaration. Counsel refers to the Exhibit R, the report of the Bola Inquiry which shows clearly that the representatives of both the Oji and Ibido Quarters were given an opportunity to present their respective cases before the said Bola Panel of Inquiry. This, he contends, is in sharp contrast to the position of the Appellants in paragraph 68 of the Statement of Claim.

In addition, Counsel submits that the Appellants failed to tender before the lower Court the said Otun District Council Chieftaincy Declaration of 1964 which they prayed the court to nullify. What they tendered was Exhibit H, the report of the Panel of Inquiry set up by Moba Local Government Traditional Council. Counsel submits that it is a well established principle of law that a Court cannot speculate on a document not placed before it. Counsel submits that the failure on the part of the Appellants to tender the said Chieftaincy Declaration is fatal to their case and the lower Court was right to have dismissed the Appellants’ prayer. UBN Plc V Otagbe Farms Ltd (2002)14 NWLR (Pt. 787) 242 at 256-257 is relied on. Counsel further submits that even more importantly, the acts being attacked by the Appellants at the lower Court are official acts viz;

(i) Panel of inquiry Report EXHIBIT H

(ii) Bola inquiry Report EXHIBIT R

(iii) Chieftaincy Declaration 1964 on Obanla Chieftaincy

Counsel argues that the law is that judicial or official acts are presumed to be regular. Section 150 (1) of the Evidence Act; Nwachukwu V State (2002) 12 NWLR (Pt. 782) 543 at 564-565; Makari & Co. V Access Bank (2002) 7 NWLR (Pt.766) 447 at 475 are relied on. The Appellants had averred in paragraph 70 of their Statement of Claim thus:

“Plaintiffs shall at the trial of this suit tender and rely on all necessary documents that are relevant to and or connected with this case”

On the issue of the Exhibit M, Counsel submits that the basis of admissibility of any document is relevance. Once a document is relevant to a suit, it is admissible.

Counsel contends that it is not in dispute that the intelligence report is relevant and that it was tendered through the Appellants’ witness without any objection from the Appellant’s Counsel. He argues that PW2 under cross examination at page 116 of the record of appeal testified that the Panel was a fact finding Panel and so it made use of the “Intelligence report of Otun District Ekiti Division of Ondo State”, a document presented to it. Counsel submits that a document need not be specifically pleaded once there are material facts in the pleadings upon which same could be anchored. Relevance is the basis of admissibility of any document. He argues that Exhibit M is relevant and legally admissible. Agbahomovo V Edayegbe (1999) 2 SC 79 at 86 per Onu JSC is relied on. Counsel thus urges the Court to resolve this issue in favor of the 2nd & 3rd Respondents.

Where a party challenges the Judgment of a Court on the basis of findings of facts, the burden is on him to show that the decision complained against is not borne out by the evidence adduced before the court. In the instant Appeal, the Appellants have clearly challenged the Judgment of the trial Court on this front and have gone on to allege that the findings of the Court were perverse. The question is: when will findings of facts be said to be perverse? A decision is said to be perverse:

(a) When it runs counter to the evidence; or

(b) Where it has been shown that the trial court took into account matters which it ought not to have taken into account or shut its eyes to the obvious; or

(c) When it has occasioned a miscarriage of justice.

See Uka V Irolo (2002) 7 SCN] 137; Incar Ltd V Adegboye (1985) 2 NWLR (pt. 8) 45; Atolagbe V Shorun (1985) 1 NWLR (pt. 2) 360; (1985) 4 SC (pt. 1) 250; Missr V Ibrahim (1975) 5 SC 55.

What therefore is required of a party in such an event is to show the error of the lower court in this respect. See Egbaran V Akpotor (1997) 7 SCNJ 392.

It must be borne in mind that the evaluation and assessment of evidence as well as the ascription of probative value to such evidence is entirely the primary function of the court of trial which saw, heard and duly assessed the witnesses. Where such a court of trial has justifiably evaluated the evidence, it is not the business of the Court of Appeal to substitute its own views for those of the trial court. What the Court of Appeal is called upon to do when faced with such is to ascertain whether or not there is evidence upon which the trial court acted. Once there is such evidence, the appellate court will not intervene even if it feels that if the facts were before it, it would not have come to the same decision as the trial court.

An appellate court would only interfere with the findings of fact of a trial court under circumstances such as where the trial court did not properly evaluate the evidence or make proper use of the opportunity of seeing or hearing the witnesses at the trial or where it has drawn wrong conclusions from accepted evidence or where the finding of the trial court is shown to be wrong or perverse in that it is not supported by evidence before the court. These are the ground rules by which the proceedings of the trial Court will now be examined.

As earlier set out, the essence of the claim of the Appellants at the lower Court is that the Oji and Ibido quarters are the two Quarters entitled to the Chieftaincy of the Obanla of Erinmope and they therefore sought certain declaratory reliefs to that effect. They were dissatisfied with the findings of the Otun District Council and the Otun District Council Chieftaincy Committee, the Bola Inquiry as well as the Moba Local Government Traditional Council, the latter which the Government of Ekiti State set up at the prompting of the Appellants to yet again look into the long standing dispute. They therefore prayed the Court to, inter alia, declare the findings of the said Panels of Enquiry as unconstitutional, irregular, contrary to natural justice, null and void and therefore of no legal effect, and to therefore declare that the Ibido and Quarters, as well as the Oji Quarters, were entitled to the Obanla Chieftaincy. This claim was articulated in the Plaintiffs’ Statement of Claim at pages4-16 of the transcribed record of the lower Court.

From the evidence adduced before the trial Court, the Moba Local Government Traditional Council Committee was set up by the Moba Local Government on the direction of the Deputy Governor of Ekiti State to look into the complaints of the Ibido Quarters that they were shut out of Obanla Chieftaincy title.

From Exhibit H, (the report of the Committee which is being Challenged), the Committee was made up of no less than ten eminent traditional rulers of Moba Local Government traditional Council. The Oore of Moba Land, Oba JAO. Popoola, chaired the Committee. After taking extensive evidence from both parties and their witnesses, from other persons who had knowledge that could lead to a resolution of the dispute, as well as examining relevant historical as well as contemporary documents, it arrived at a unanimous decision that Oji Quarters is the only family entitled to Obanle of Erinmope Chieftaincy title. As earlier stated in the body of this Judgment, contrary to the averments in the Appellants pleadings, the Obaleo of Erinmope testified before the Panel extensively. The Exhibit H is also replete with evidence that both parties before the Committee were given equal and ample opportunity to present their cases before the Panel. From the testimony of the PW2 in Court, it is well to also note that this Committee was set up as a result of a direct request of the Appellants to the Ekiti State Government. There is nothing on the face of the Exhibit H to show that the Appellants raised any allegations of a likelihood of bias before the Panel.

To prove the claim, the Appellant called two witnesses. The Respondents who disputed the claim also called two witnesses. Several documents were tendered and admitted in evidence during the course of trial, and essentially these played a huge part in the decision of the Court. PW1 and PW2 testified in support of the assertion that both Oji and Ibido Quarters had from time produced the Obanle. The gist of their evidence was that eight Obanlas had previously been produced from Ibido Quarters. It goes without saying that a plaintiff will succeed on the strength of his case and not on the weakness of the defence. Therefore, it is prudent at this stage to pause and examine the evidence adduced by the Plaintiffs in order to assess whether it met with the standard of proof in proving its claims before the trial Court.

The evidence given by the PW1 and PW2was essentially based on traditional history passed down from person to person. They both alleged that Ibido and Oji were brothers who came to Erinmope at the same time and were well received by the inhabitants. Subsequently, the title of Obanla was conceded to them by the Imesi and Ibemija Quarters and thereafter, the Ibido and Oji Quarters have taken turns in producing the Obanla. Consequently, over time, Ibido Quarters produced a total of eight Obanlas whereas the Oji Quarters produced four. However, as admitted by the PW1 under cross examination at page 99 of the record, the dispute on the Obanla Chieftaincy has spanned about 40 years. During this period, series of Panels and Commissions of Inquiries were empanelled to look into the dispute.

Interestingly, even when some of the Panels were set up at the instance of the Appellants, they, (Appellants), consistently denounced the reports produced by them. Hear the PW1 at page 99 of the record:

“This Obanla dispute has been going on for the past 40 years. Series of allegations were raised against each of the Pannel (sic) that had fact (sic) to look at this Obanla of Erinmope. We raised allegation against Otun District Council and Chieftaincy Committee of 1962 – 64 that it was bias. We also raised allegation against Bola Panel of Enquiry. My family is also raising allegation against the panel set up by Moba Local Government and headed by Oore.”

On the part of the Respondents, two witnesses also testified. Their defence to the claim centers on their assertion that from time immemorial, only the Oji Quarters has produced the Obanla of Erinmope. The only exception to this was when the Ibido Quarters were allowed to produce two Obanlas, Alapoloko and Arulewonimesi, in honour and deference to their mother, one Famiriyun, who was a respected daughter from Oji Quarters married to a man from Ibido Quarters, and who was variously described as having been helpful, sympathetic and patriotic to the Oji family. In 2004, the Moba Local Government Traditional Council Panel of Enquiry empanelled by Moba Local Government on the direction of the Deputy Governor of Ekiti State declared the Oji Ruling House as the sole Ruling House entitled to the Obanla title, viz Exhibit H. In 2004, the Moba Local Government ratified these findings. On 19th January, 2005, the office of the Deputy Governor Ekiti State ratified the findings of the Moba Investigation Panel and affirmed Oji as the sole Ruling House entitled to the Obanla Chieftaincy. Exhibit 1.

The Plaintiffs claims at the trial Court therefore revolved around three main issues:

a) The challenge to the appointment, proceedings and findings of the Panel of Enquiry set up by Moba Local Government Traditional Council – See Paragraphs 58-66 of the Statement of Claim;

b) The challenge to the conduct of the hearing and findings of the Bola Commission of Inquiry and the 1964 Otun District Council Chieftaincy Declaration as it affects the Obanla Chieftaincy title – See Paragraphs 67-68 of the Statement of Claim;

c) The number of Ruling Houses to Obanla Chieftaincy title in Erinmope Ekiti- See Paragraphs 10-33 of the Statement of Claim.

The heart of the Plaintiffs’ grievance against the Panel of Enquiry set up by the Moba Local Government Traditional Council at the instance of the Ekiti State Government is that the 4th Defendant, i.e. the Oore of Otun, was uncomfortable with the upgrading of the Obaleo as a Grade 1 Chief and so displayed his animosity to the Obaleo of Erinmope throughout the proceedings all in an attempt to ridicule him.

As a result, as Chairman of the Panel of Enquiry, the Oore was biased against the Obaleo. Now the question is: did the Appellants prove their assertions as contained in their pleadings to the standard required by law, i.e. a preponderance of evidence, to entitle them to Judgment?

From the evidence adduced before the trial Court, the said Panel was set up on the direction of the Ekiti State Government following series of Petitions to it on the divergent claims of the Ibido and Oji Ruling houses as to their rights to the Chieftaincy of Obanla of Erinmope. The Panel was made up of the Committee of the whole house (i.e. the entire membership) of Moba Local Government Traditional Council. The only person excluded from membership of the Panel was the Obaleo of Erinmope. The Panel clearly stated the reason for his exclusion at page 1 of its report, Exhibit H, thus:

A. “That the Committee of the whole House be set up to look into the dispute.

B. That His Royal Majesty, Oba J.O. Aina (J.P.) the Obaleo of Erinmope who is involved in the dispute should not be a member of the Committee to avoid a deliberate breach of the equitable doctrine of ”Nimo Judex in causa sua” which forbids any person to be a Judge over a matter to which he is a party. ”

Nonetheless, the Obaleo actively participated in the hearing as he was invited to and he appeared before the Committee where he gave copious evidence. The Plaintiffs also averred inter alia that the Chairman of the Panel exhibited total bias against the Ibido Quarters, did not act judicially and impartially, refused to admit evidence given in favour of Ibido, did not allow witnesses for Oji to be freely cross examined, scouted for and considered documents which favored Oji quarters, ignored evidence of independent witnesses and treated with disdain the witnesses for Ibido quarters.

In an attempt to prove these grave allegations, PW2, (who is the 1st Plaintiff on record), repeated these allegations at pages 105 – 106 of the record. He also tendered a petition the Ibido quarters wrote through their solicitors to the Deputy Governor, Exhibit G before the Court. The letter dated 24th August, 2004 complained thus:

”I refer to the dispute between the said two houses and the Public Enquiry thereon by the Traditional Council of Moba Local Government of Ekiti State as ordered by the State Government and to report that It is also part of my instructions that my Clients had observed in the course of the said enquiry, the sharp seemingly irreconcilable disagreements between members of the Traditional Council, were such that had already eroded their confidence in the possible outcome of the said enquiry, which may not resolve the dispute, after all, and which seems to account for the delay and difficulty in coming to ajust conclusion of the said enquiry after months of Public Sitting.

Permit me to state that my Clients as a party to the dispute seem not to have any confidence in the said possible outcome and had instructed me to state as such in anticipation of such report. PLEASE TAKE NOTE

It is my Client’s observations that the relationship between the Chairman Oore of Otun and his Second in Position the Obaleo of Erinmope Ekiti, of the Committee is not so good and quite becoming (sic) of their serious and important assignment of doing Justice to all. The said Chairman and his Second in Position nurture different and opposing objectives and interests that on the long run could destabilize the people of Erinmope and indeed Obaleo and lead to Breach of Peace.”

Again, the Plaintiffs tendered the Report of the Panel, Exhibit H, in proof of these allegations. However, nothing in the Exhibit H bore out the veracity of these allegations. Instead, the report showed that witnesses testified on both sides and each was allowed to be cross-examined by the other side. Moreover, the Obaleo of Erinmope not only appeared before the Panel of Inquiry, but testified extensively and his testimony was duly recorded at pages 13-15 thereof. Excerpts of his testimony are reproduced hereunder:

“The Chairman:- The Committee welcomes you to the sitting of today .. Since you are the Oba of Erinmope and the decision some people are challenging now is yours, please educate us on how you arrived at your conclusion regarding the Obanla of Erinmope Chieftaincy title.

OBALEO:- Traditions were made by people and if any tradition is outdated, it has to be corrected. The decision that both Oji and Ibido are entitled to Obanla Chieftaincy title was jointly taken by the Erinmope Chiefs and the women in a meeting. In history, the first Obanla was installed in Imesi Quarters. An Obanla was installed in Ibamija before it moved to Oji and finally to Ibido.

THE CHAIRMAN:- Do you have any document to support the claim that Obanla Chieftaincy now belongs to the two families of Ibido and Oji?

OBALEO:- I don’t have any document…………..

THE CHAIRMAN:- What prompted the Chieftaincy to move from Oji to Ibido.

OBALEO:- Because Ibido is also entitled to the Chieftaincy and I heard the decision of the Western State Commissioner for Local Government and Chieftaincy Affairs at Ibadan in 1973 which says that both Ibido and Oji families are entitled to the Chieftaincy title. I will only appeal to you to allow things to remain like that…………….

CHAIRMAN:- Do you know anything about other decision taken on Obanla Chieftaincy dispute prior to that decision of 1973 by the State Commissioner for Local Government and Chieftaincy Affairs

OBALEO:- No. I based my new decision to share the Chieftaincy between Ibido and Oji purely on the 1973 decision by the Western State Commissioner for Chieftaincy Affairs.

ARONIRO:- Are you aware of the decision of 1962 made by the Chieftaincy Committee of Otun District Council?

OBALEO:- I have not been installed then.”

What is more, contrary to the pleadings of the Plaintiffs and the evidence of the PW2, Moba Local Government Traditional Council, (the 1st Defendant), wrote a letter to the Deputy Governor of Ekiti State in reaction to the Exhibit G, debunking the allegations of strained relationship and bad blood between the Oore of Otun as Chairman of Council as well as Chairman of the Panel of Enquiry, and the Obaleo of Erinmope, a member of the Traditional Council. It is Exhibit L tendered through the PW2 and it states inter alia:

”(c) That the allegation of strained relationship between the Oore and his second in position, the Obaleo of Erinmope over the said report as canvassed by the Ibido people had been proved to be false as per the denial of the allegation by both the Oore and the Obaleo in the monthly statutory meeting of the traditional council held on Thursday the 3rd day of September 2004.

Please see the attached Annexure ‘4’ and ‘8’ for the reactions of the Oore and the Obaleo on the said allegation.

a. (sic) That the whole House adopted the report on the said Thursday (sic) 30th September 2004 and the traditional council secretary was instructed to send the report to the State Government.

b. (d)That the State Government should disregard the contents of the said letter as it is full of contradictions and misrepresentations.”

Now even though the letters referred to in the Exhibit L, being the responses of the Oore and the Obaleo to the allegations of strained relationship, were subsequently tendered through the DW1 and admitted in evidence as Exhibits O and N respectively, we shall come to them anon later on in the body of this Judgment. In the face of these denials of acrimonious and rancorous relationship between the Oore of Otun and the Obaleo of Erinmope, the Plaintiffs did not call any of the members of the Panel to substantiate their allegation of sharp seemingly irreconcilable disagreements between members of the Panel. Furthermore, the Exhibit H shows that both parties were given adequate opportunities to present their cases before the Panel. Both parties representatives testified and each party cross examined his adversary’s witness/witnesses. Both parties participated actively in the proceedings of the Panel. Consequently, from the transmitted record of the trial Court, the Plaintiffs failed to adduce any plausible evidence in proof of the averments in Paragraphs 58 – 66 of the Statement of Claim in this regard. It is therefore no wonder that the learned trial Judge found thus at page 178 of the record:

“My view is that the Plaintiff (sic) was offered an opportunity of participating in the case and did take part to the extent that it (sic) even cross-examined the representative of Oji and even challenged the jurisdiction of the Panel because of what it called strained relation between Oore and Obaleo. It is impossible for him (sic) to come and allege breach of fair hearing against the Panel.”

In respect of the challenge to the conduct of the hearing and findings of the Bola Commission of Inquiry and the 1964 Otun District Council Chieftaincy Declaration as it affects the Obanla Chieftaincy title, Exhibit R, which is the report of the Bola Inquiry, shows clearly that the representatives of both Oji and Ibido to tender the Chieftaincy Declaration referred to in their pleadings is fatal to their case. See UBN Plc V Otagbe Farms ltd (2002) 14 NWLR (Pt. 787) 242. By the same token, the Plaintiffs were thus unable to establish or prove the assertions in their pleadings.

What emerges from the foregoing avalanche of evidence adduced at the lower Court is that the issue of the Obanla Chieftaincy title has been subjected to the investigation and scrutiny of several bodies, and all these bodies, with the exception of one, i.e. the meeting of 1973 with the Commissioner of Local Government and Chieftaincy affairs, (as reflected in Exhibit B), were ad idem on the finding that Oji is the only Ruling House to the Obanla title. It is therefore not surprising that the learned trial Judge found as follows at page 176 of the record:

“As regards issue No. 2 according to the preponderance of evidence before me there is only one ruling house of the Obanla Chieftaincy in Erinmope and that is Oji ruling house. Various administrative panels or bodies set up to look into these have come out with the conclusion that Oji had Obanla Chieftaincy in Erinmope. The evidence before me also showed that Ibid (sic) had Obanla Chieftaincy bestowed on it by Oji quarters on two occasions that (sic) in honour of a woman named Famoriyun Alepoloko her son was made Obanla.

When his stay as Obanla was short Arulewonmesi was also allowed to be Obanla in Erinmope Ekiti. These are the only two occasions Ibido was allowed to produce Obanla in Erinmope-Ekiti.”

It must be borne in mind that the burden is always on the plaintiff to prove his case on the preponderance of evidence or balance of probabilities. It is elementary law that the burden of proof in a civil matter is always on the party who asserts the affirmative of the issue. In other words, the burden of proof is on the party to prove the facts he relies upon to succeed. See Ojoh V Kamalu (2005) 12 SCNJ 236; George V UBA (1972) 8-9 SC 264; Okechukwu V Ndah (1967) NMLR 368. In most cases, that person is the plaintiff. In the instant case, the Plaintiffs (now Appellants), were required to satisfy the court that the Ibido Family is entitled to the declarations sought as it relates to the chieftaincy in dispute. This means that where the parties give evidence as to the claim before the court, judgment will be given to the party in whose favour the evidence tilts in the case. It is therefore my considered view that the preponderance of the evidence before the lower Court established the fact that Oji Quarter is the sole Quarters entitled to the Obanla Chieftaincy. No acceptable circumstances have been established to warrant any interference by this Court with the findings of fact of the learned trial Judge. They are completely borne out by the totality of the evidence before the trial Court. Secondly, I agree with learned Counsel for the 2nd and 3rd Respondents that the onus lies on the Plaintiffs who seek certain declarations to establish their entitlement to same. It is not proper to award a declaratory judgment without any evidence to support its award. It cannot be based on any real or perceived admissions in pleadings, as has been canvassed by the Appellants, or even default in pleadings. See Okharobe V Aigbe (2002) 3 SCNJ 109; Maja V Samouris (2002) 3 SCNJ 29. And even though the rules of court and evidence relieve a party of the necessity of proving what has been admitted, where a party calls upon the court to make a declaration of a right, it is incumbent on the party claiming to be entitled to such a declaration to satisfy the court by evidence, (and not by admission in pleadings), that he is entitled to the claim Nkwocha V Ofurum (2002) 5 NWLR (pt. 761) 506. In Alao V Akano (2005) 11 NWLR (Pt. 935) 160, Musdapher, JSC gave elucidation on such matters thus at page 173 of the report:

“The issue as mentioned above is concerned with the crucial question of whether the appellant had proved his case in accordance with his pleadings. It is of importance to bear in mind that the claims of the appellant before the trial court were essentially declaratory, hence the duty was on him to succeed on the strength of his own case and not on the weakness of the defendant’s case. See Owodade V Omitola (1988) 2 NWLR (pt. 77) 413/ Ndayako V Dantoro (2004) 13 NWLR (Pt. 889) 187 at 214. A declaratory judgment is also discretionary. It is the form of judgment which would be granted only in circumstances in which the court is of the opinion that the party seeking it is, when all the facts are taken into consideration, fully entitled to the court’s discretion in his favour. ”

The Appellants were thus unable to establish the allegation of irregularity and perversity of the proceedings based on this.

The Appellants have also taken exception to the use made of the Exhibit M by the Committee, suggesting that it overreached them seeing that it was not tendered by any of the parties to the dispute. Exhibit M is an Intelligence Report of Otun District, Ekiti Division, Ondo Province compiled by Mr. A.F. Abell, an Assistant District Officer in 1938. I believe that Mr. Omotoso has stated the proper position of the law regarding panels of inquiries. As the name clearly implies, a panel of inquiry is essentially a fact-finding panel which has powers to procure evidence and examine witnesses. It is not curtailed by the application of strict rules of procedure or the law of evidence as would be expected of a court of law. Its objective is to discover facts with a view to making findings that would lead to recommendations to the body and/or authority setting them up. Undoubtedly, Exhibit M relates to the subject of investigation by the Panel, which is the Obanla Chieftaincy of Erinmope Ekiti. Interestingly, it deals not only with the Obanla Chieftaincy, but with numerous other Chieftaincies in the Otun District. In Nteogwuile V Otuo (2001) 16 NWLR (Pt. 738) 58, Uwaifo, JSC stated thus at page 91 of the report:

“An intelligence report is a public document made by a public officer and is presumed to contain a true information and is admissible in evidence. ”

Nevertheless, while its use by the Moba Committee of Enquiry could be said to be legitimate being a fact-finding Committee not encumbered with rules of procedure or evidence, the same cannot be said of its admission in evidence and the reliance placed thereon by the learned trial Judge. It is glaring from the pleadings of both parties that this document was not pleaded. Yet, same was tendered through the PW2 under cross examination and admitted in evidence. The ground rule in any trial is that parties are bound by their pleadings. Pleadings define and delineate the contours of the dispute between the parties. Oral and documentary evidence must be consistent with pleadings, whether it is the statement of claim or the statement of defence. This is because the case of the parties is erected by the pleadings, and parties do not have the freedom to roam around outside of the pleadings in search of a better case. Thus, evidence which is at variance with the pleadings goes to no issue and should be discountenanced. See Okoko V Dakolo (2006) 7 SCNJ 284.

In addition, Section 2(1) of the Evidence Act defines “fact-in-issue as: Any fact from which either by itself or in connection with other facts the existence, non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follows.

Thus, it is the assertion and denial of facts that constitute a dispute, and where facts are disputed in pleadings, they are said to be “facts-in-issue”. See Barje V Gunduma (2001) 13 NWLR (Pt.731) 673; Olufosoye V Olorunfemi (1989) 1 NWLR (Pt. 95) 26; Ehimare V Emhonyon (1985) 1 NWLR(Pt. 2) 177 at 183.

Furthermore, even though it is evident from the record of the lower Court that the said piece of evidence was elicited under cross examination and without objection from the Appellants’ Counsel, this makes no difference to the status of such an un-pleaded piece of evidence. It is settled law that evidence elicited during cross-examination is inadmissible in as much as it is unsupported by the pleadings of either party. See Punch Nig. Ltd V Enyina (2001) 17 NWLR (pt. 741) 228; Ita V Ekpenyong (2001) 1 NWLR(Pt. 695) 587; SPDC V Anaro (2000) 10 NWLR(Pt.675) 248. Put another way, evidence elicited from witnesses during cross examination

but which was not pleaded, (and so upon which no issue was joined and canvassed), goes to no issue. See Okwejiminor V Nigerian Bottling Co. Plc (2008) 5 NWLR(pt. 1079) 198; Ojo V Kamalu (2005) 18 NWLR(Pt. 958) 523 at 548; Isheno V Julius Berger Nig. Plc (2003) 14 NWLR (Pt. 840) 289 at 304; Kayode V Odutola (2001) 5 KLR (Pt. 123) 1861; Woluchem V Gudi (1981) 5 SC 291; Ewarami V ACB (1978) 4 SC 99 at 109. These decisions put paid to any doubts on the issue that the Exhibit M was admissible in evidence.

Ideally, where inadmissible evidence is tendered, it is the duty of the opposite party or his counsel to object immediately. However, if he fails to do so, the trial court in civil cases may, and in criminal cases must, reject such evidence ex proprio motu. Where evidence is by law inadmissible in any event, it ought never to be acted upon by any court, (whether of first instance or of appeal), and it is immaterial that its admission in evidence was as a result of consent of the opposite party or that party’s default in failing to make objection at the proper time. Neither a trial court nor any of the parties has the power to admit a document that is in no way or circumstance admissible in law. See Alao V Akano (2005) 4 SC25 at 32; (2005) 10 MJSC 137.

If however a document is wrongly received before a trial court, an appellate court has the inherent jurisdiction to exclude it albeit counsel at the lower court did not object to its going in. Any evidence on facts outside pleadings must be jettisoned as they go to no issue, even on appeal, so as to resolve the case on properly and legally admitted evidence. See Dada V Dosunmu (2006) 9 SCNJ 31; Fasade V Babalola (2003) 4 SCNJ 287; Ayanwale V Atanda (1988) 1 SC 1 at 3; (1988) 1 SCNJ 1 at 20; Osho V Ape (1998) 6 SCNJ 1 at 20.

Thus, by virtue of the doctrine of stare decisis which mandates that lower courts are bound by the precedents settled by courts higher than them in hierarchy, the trial Court was obliged to have refused to admit the Intelligence report of 1938 in evidence. Where however same was admitted by some inadvertence, it should have been discountenanced and expunged from the record peremptorily. Instead, this is what the learned trial Judge found at page 177 of the record:

“…Exhibit M an intelligence report of 1938 was based on the custom of Erinmope in regard to Obanla Chieftaincy therefore it represents the true position of the customary law in Erinmope Ekiti and its chieftaincies.”

In the face of all the above, I find that this finding is perverse since it is based on a piece of documentary evidence that was not pleaded. I therefore expunge Exhibit M from the record.

Be that as it may, the question that logically arises is: what is the effect of this finding on the decision of the trial Court 7 It is trite that a person who complains that a piece of evidence was wrongfully admitted must not only prove that it was wrongfully admitted but also prove that such wrongful admission has adversely affected the due consideration of his case. The law is that even where inadmissible evidence is admitted, the trial judge or an appellate court should reject the evidence, and after expunging such evidence, shall consider if there is any remaining legal evidence to sustain the claim. Thus the wrongful admission of evidence may not necessarily fatally affect the decision of a court unless the use of the evidence has brought about a miscarriage of justice in the case. See Ugbala V Okorie (1975) 12 SC 1. Also, the wrongful admission of evidence will not itself create a ground for the reversal of a decision unless the appellate court would have come to a different decision without such evidence. See Olalekan V State (2001) 12 SCNJ 94; Ojengbede V Esan (Loja-Oke) (2001) 12 SCNJ 401; State V Ogbubunjo (2001) 1 SCNJ 86; Idundun V Okumagba (1976) 9-10 SC 227.

Accordingly, where it is possible to exclude the wrongfully admitted evidence and yet have enough material to bear out the decision, the wrongful reception of such evidence would not affect the decision. See Archibong V State (2006) 5 SCNJ 202. Hear the Supreme Court in Akpan V State (1994) 12 SCNJ140 per Adio JSC at page 150 of the report:

“An appellate court has a duty to exclude inadmissible evidence wrongly admitted and to deal with the case on the basis of the remaining legally admitted evidence. See Ayanwale V Atanda (1988) 1 NWLR (Pt. 68) 22.

Further, it is not enough for the purpose of seeking a reversal of a judgment, merely to show that evidence was wrongly admitted. An Appellant making the complaint has the duty to show that without such evidence the decision would have been otherwise. See Idundun V Okumagba(1976) 9-10 SC227.”

Thus, the burden lies on the party complaining to show the justification for the reversal of the decision. See Okonji V Njokanma (1999) 12 SCNJ259.

Finally on this point, Section 227 of the Evidence Act Cap 112 Laws of the Federation of Nigeria provides –

227. (1) The wrongful admission of evidence shall not itself be a ground for the reversal of any decision in any case where it shall appear to the court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.

(2) the wrongful exclusion of evidence shall not of itself be a ground for the reversal of any decision in any case if it shall appear to the court on appeal that had the evidence so excluded been admitted it may reasonably be held that the decision would have been the same.

Applying the above principles and the substantive law to the instant case, the record of the Court shows that the learned trial Judge made other findings of fact based on the avalanche of evidence, particularly documentary, adduced before him, especially the evidence of DW2 and Exhibits E, G, H, I, K, L, P, Q and R. It is my considered view that since there were other independent pieces of evidence upon which the trial Court based its decision, discountenancing the Exhibit M from the record has not necessarily dealt a fatal blow to the overall decision of the Court, as the learned trial Judge would have come to the same conclusion that the Oji Ruling House is the sole Ruling House entitled to the Obanla title. Exhibits H, P, Q and R which are findings, after due inquiries, of three other Commissions of Enquiry on the Obanle Chieftaincy, clearly found the Oji Ruling House as the sole Ruling House entitled to the Obanla title. This is in contrast to Exhibit S, tendered by the PW1 wherein the Commissioner for Local Government and Chieftaincy affairs sometime in 1973, somewhat unilaterally, at ‘a meeting’ held with representatives of Erinmope to look into the matter of the Obanla Chieftaincy, decided that both the Ibido and Oji Ruling Houses are entitled to hold the Obanla title. Clearly therefore, the preponderance of documentary evidence is in favour of the Respondents.

Consequently, I hold that this error of law committed by the trial Court in admitting and relying on the Exhibit M has not occasioned a substantial miscarriage of justice, since even with the exclusion of Exhibit M in evidence, the decision of the Court would have been the same. There was therefore abundant evidence accepted by the trial Court after duly appraising and evaluating all the evidence adduced before it, to sustain its final decision.

Based on all the above, I, like the learned trial Judge, have come to the inevitable conclusion that the Appellants woefully failed to substantiate the material facts in their pleadings with credible evidence, and therefore, were not entitled to the declarations and orders sought. I therefore find no reason to disturb the findings of the lower Court.

Before concluding on this issue, it is noted that Counsel for the Appellants took up issues with the confusion in the evidence by the Respondents and the Judgment of the Court over the name of the mother of the last two Obanlas from the Ibido Quarters. Counsel drew attention to the three variations of the name bandied about in the record thus: “Famiriyun” in paragraph 8 of the Respondents’ pleadings (page 56 of the record), “Famoriyan” in DW2’s evidence (Page 131), “Famoriyun” in the Judgment of the Court, (page 173 of the record). Evidently, this was more of a discrepancy in spelling the name of the said mother of the Ibido Clan.

Nonetheless, even if it was it to be a contradiction, it is not one of substance as it does not touch on the facts in issue in the pleadings of the parties. Contradictions in the evidence of witnesses may not necessarily be fatal to a case especially when they are minor and did not materially affect the fundamental and crucial issues. See Archibong V State (Supra). The contradictions in this case and in this regard are trivial and insignificant and did not materially affect the credibility of the evidence of the witnesses.

In the result, based on all my findings above, I resolve issue one in favour of the Respondents.

Issue 2: Whether the Appellants were denied their right to a fair hearing.

Learned Counsel for the Appellants submits that the right of every Nigerian to a fair hearing is entrenched in Section 36 of the Constitution of the Federal Republic of Nigeria 1999. Oba J. O. Aina, the Obaleo of Erinmope, on subpoena, was to be the third and final witness for the Appellants. He contends that the royal peace maker and father of all Erinmope people was shut out by the trial Court, to the detriment of the litigants in particular and the Erinmope people in general. Counsel argues that the second witness for the Appellants was still giving evidence at 1.05pm on 20/2/2007. PW2 continued his evidence the next day, 21/2/2007.

Consequently, the day was usefully employed. Counsel argues that the trial Court should then have granted a short adjournment, subject to an award of costs against the Appellants. Counsel relies on the case of Obi Eze v. AG Rivers State [2001] 18 NWLR (Part 746) 529, where it was advocated that where some delay is inevitable in the overall interest of justice, the court ought to accommodate it subject to costs. Counsel therefore submits that the Appellants have a right to fair

hearing which they were denied by the trial Court when it ordered the Appellants’ Counsel to close their case and ordered the Respondents to open their case. He relies on Ojengbede V Esan (2001) 18 NWLR (pt. 746) 771. Counsel hence contends that the trial Court unfairly prevented the subpoenaed Obaleo J.A. Aina of Erinmope from giving evidence for the Appellants.

Counsel submits that through the Exhibit R, the previous Obaleo Atere Atoyosoye of Erinmope appeared before a Panel in 1964. Through Exhibit H, the current Obaleo J.A Aina of Erinmope appeared before the 2004 Panel. Both testified that the Obanla Chieftaincy belonged to the two contending chieftaincy families.

Counsel contends that five independent witnesses from different quarters of Erinmope corroborated the evidence of their two monarchs. They desired rotational chieftaincy for Obanla of Erinmope. He refers to the Obanla of Erinmope’s evidence and prayer before the 2004 Panel in the Exhibit H. Counsel argues that Exhibit I issued by the State Government is not a declaration of the Chieftaincy customary law. Besides, there was evidence of historical and subsisting affinity between Ibido Oji quarters of Erinmope.

In responding to the Appellants’ Brief of Argument, both the 1st Respondent and the 2nd and 3rd Respondents filed separate Briefs of arguments. A close look at the said Briefs reveal that the 1st Respondent’s Brief, (which was filed later in time), is essentially a clone of the 2nd and 3rd Respondents’ Brief, except for the latter’s issue 2 which the former left out completely in its response. That being the case, and more so in the light of Order 17 Rule 6 of the Court of Appeal Rules, 2007, which exhorts all parties whose interests are identical or joint to file joint briefs, I take the liberty to only review the submissions contained in the 2nd and 3rd Respondents’ Briefs which more comprehensively address the issues arising in order to avoid unnecessary duplication.

Counsel to both the 1st as well as the 2nd and 3rd Respondents submit that the Appellants made heavy weather on their purported denial of their right to call a vital witness in the person of Obaleo of Erinmope Ekiti. Counsel submits that it is not in dispute that a subpoena duly issued and signed by learned trial Judge was served on the Obaleo of Erinmope Ekiti at the instance of the Appellants. He refers to Black’s Law Dictionary, 8th Edition by Bryan A. Garner at page 1467 where a subpoena is defined as “a writ commanding a person to appear before a court or other tribunal subject to a penalty for failing to comply”.

Counsel submits that an application for an adjournment is not granted as a matter of course. An application for adjournment must be well grounded and convincing before the court can exercise its discretion in favour of the application.

Counsel submits that an address of counsel cannot take the place of evidence on record. He argues that Counsel for the Appellants did not place before the trial Court sufficient materials, such as a letter written by the said Obaleo of Erinmope excusing his absence from Court, a letter of invitation by the State Government addressed to the Oba and the vital nature of the evidence the Obaleo of Erinmope was coming to give. Furthermore, Counsel did not apply that he should be given an opportunity at any other date to call the said Obaleo of Erinmope to come and testify for the Appellant. Counsel did not also apply thereafter that the Oblaeo was available and he be granted leave to call him. Counsel therefore submits that a court of law does not operate at the place of party. A party must be desirous of prosecuting his case diligently and timeously. He argues that a court of law cannot grant to a party what he has not asked for. Learned Counsel submits that the Appellants’ Counsel has not told this Court what miscarriage of justice has been occasioned by the closure of the Appellants’ case.

Counsel for the Respondents submits that the said Obaleo of Erinmope gave evidence before the Panel of Inquiry set up by the Moba Local Government Traditional Council. (See Exhibit H pages 13-16 thereof). He contends that it is worthy of note that Exhibit H was tendered in evidence by the Appellants’ witness, PW2. He argues that the Appellants’ Counsel did not inform the lower Court that the said Obaleo had any vital evidence to give which is different from that contained in the Exhibit H.

Furthermore, learned Counsel submits that the Appellants’ Counsel did not address this issue of the denial of the right to fair hearing in his address before the trial Court. More importantly, Counsel argues that the Appellants did not appeal against the ruling of the trial Court closing their case, same being an interlocutory decision.

Counsel submits that fair hearing is a very fundamental principle of law which the parties and the court are free to apply in relevant situations in relation to the facts of the case and not in a vacuum. He relies on the dictum of Tobi, JSC in Orugbo V Una (2002) 16 NWLR (Pt. 792) 172 at pages 211-212 where the erudite Jurist warns on the misuse of this essential principle.

Counsel submits that the onus of proof is decisively on the party alleging want of fair hearing to show that there has in fact been bias and a lack of fair hearing. He submits that in the instant case the allegation of want of fair hearing was completely misplaced and remained unsubstantiated. Arbico Nig. Ltd V N.M.T. Ltd (2002) 15 NWLR (Pt. 789) 1 at 31is relied on. He submits that granting an adjournment is a matter of discretion to be exercised judicially and judiciously. Fagbule V Rodridgues (2002)7 NWLR (pt 765) 188 at 207 is relied on. It is a matter at the discretion of the court which is not exercised in favour of an applicant therefore as a matter of course. In granting an adjournment the trial court always weighs the necessity for a speedy trial with the request of counsel for an adjournment. Consequently, an adjournment will be refused if the court is of the opinion that its purpose is to delay the proceedings.

Counsel drew an analogy with similar instances when the same Court refused his application for adjournments and/or penalized him. On the 12th February, 2007 despite the fact that 2nd & 3rd Respondents’ Counsel wrote a letter praying for an adjournment to enable him see his optician, the Court proceeded to hear the Appellants in the absence of the 2nd & 3rd Respondents’ Counsel. The Appellants’ Counsel did not raise an issue of right to fair hearing. (Pages 82-91 of the record).

Similarly on 13th February, 2007 a cost of N2, 000 was awarded against the 2nd& 3rd Respondents’ Counsel who applied for an adjournment on the ground that he was already billed to appear in a part heard matter at the Ikole High Court. (Pages 92-93 of the record). Counsel therefore submits that the Appellants’ Counsel, who is familiar with the learned trial Judge’s attitude towards applications for adjournment and who has benefited immensely from same, cannot now turn around to say that the Appellants were denied their right to a fair hearing.

Counsel submits that an appellate court does not, as a matter of practice, readily intervene in matters concerning the exercise of discretion by a trial court and will not interfere with the exercise of discretion by a trial court merely because it would have otherwise exercised it. Atiku V State (2002) 4 NWLR (pt. 757) 265 at 278-279. Counsel therefore urges the Court to resolve this issue in favour of the Respondents.

The principle of fair hearing is fundamental to all court procedure and proceedings, and like jurisdiction, the absence of it vitiates proceedings however well conducted. Salu Egeigbon (1994) 6 NWLR (pt. 348) 23; Ceekay Traders V G.M. Co. Ltd (1992) 2 NWLR (Pt. 222) 132; Atano V AG Bendel State (1988) 2 NWLR(Pt. 75) 201. Fair hearing according to our laws envisages that both parties to a case be given opportunity of presenting their respective cases without let or hindrance from the beginning to the end. It also envisages that the court hearing the parties’ cases be fair and impartial without showing any degree of bias against any of the parties. Ekpeto V Wanogho (2004) 12 SCNJ 220; Nwafor Elike V Nwakwaola (1984) 12 SC 301; Isyaku Yakubu V Kano N.A. (1968) 1 ALL NLR 424.

The fair hearing principle entrenched in the Constitution is so fundamental to the judicial process that a breach of it will vitiate the entire proceedings. In such a situation, a party cannot be heard to say that the proceedings were properly conducted and should be saved because of such proper conduction. Once an appellate Court comes to the conclusion that there is a breach of the principle of fair hearing, the proceedings cannot be salvaged as they are null and void ab initio. This is because fair hearing lies in the procedure followed in the determination of the case and not in the correctness of the decision. Accordingly, where a court arrives at a correct decision in breach of the principle of fair hearing, an appellate court will throw out the correct decision in favour of the breach of fair hearing. See UNTH Management Board V Nnoli (1994) 8 NWLR (Pt.393) 376. A trial qualifies as one in which fair hearing is observed where it affords all parties an opportunity of being present and of being heard. A party, who is given ample opportunity to present his case but for whatever reason fails to do so, waives all his rights to complain. It is too late for the Appellants now to turn round to complain of want of fair hearing.

Okike V LPDC (2005) 7 SCNJ 596; MDPDT V Okonkwo (2001) 2 SCNJ 186; Idowu V LPDC (1962) ALL NLR 128. The eminent Jurist, Niki Tobi, JSC in Orugbo V Una (2002) 9 SCNJ 12; (2002) 16 NWLR (pt. 792) 172 set down the test of fair hearing thus at page 23 of the report:

“The true test of fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done in the case. See Mohammed V Kano N.A. (1969)1 ALL NLR 428; Funduk Engineering Ltd Mcarthur (1995) 4 NWLR (Pt. 392) 640; Col. Yakubu (Rtd.) V Governor of Kogi State (1995) 8 NWLR (pt. 414)386. The reasonable man should be a man who keeps his mind and reason within the bounds of reason and not extreme. And so if in the view of a reasonable man who watched the proceedings, the principle of fair hearing was not breached, an appellate court will not nullify the proceedings. ”

Continuing, the respected law Lord warned thus at pages 211-212:

”It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial court. But it is not so and it cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation and the court as the umpire, so to say, has a legal duty to apply it in the litigation, in the interest of fair play and justice. The courts must not give a burden to the provision which it cannot carry or shoulder. I see that in this appeal. Fair hearing is not a cut-dry principle which parties can, in the abstract, always appeal to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless, or completely dead outside the facts of the case.”

In the instant case, the Appellants were not denied fair hearing by the trial Court as the anticipated witness evidently absented himself from Court at the material time. As has been pointed out by the Respondents’ Counsel, a subpoena, duly issued and signed by learned trial Judge, was served on the Obaleo of Erinmope Ekiti at the instance of the Appellants. On the date set down in the subpoena, he failed to show up in Court. Perhaps taking the Court for granted, Counsel for the Appellants failed to place before the trial Court sufficient materials which would have served to explain the absence of the said witness in Court who had been ordered, on the pain of a subpoena, to be in Court. Such evidence could have come in the form of a written statement from the Obaleo himself excusing his absence from Court, proof of the State Government’s invitation to him for a meeting, or the critical nature of the evidence the Obaleo of Erinmope was coming to give. Having not done so, the issue of fair hearing did not and could not have arisen. The proposed witness, who was admittedly served a subpoena, failed to appear to testify and there was no material placed before the Court to enable it exercise its discretion in favour of the order of adjournment sought. Besides which it must be borne in mind that the grant of an adjournment is an exercise of discretion of the trial Court which an appellate court will not interfere with. The exercise of such discretion ought to be done judiciously and judicially. Nevertheless, adjournments are not granted as a matter of course but based on cogent and compelling reasons. Okeke V Oruh (1999) 4 SCNJ 192 at 205; Saliu V Egeibon (Supra). As is disclosed in the record, and has been highlighted by Counsel for the 2nd and 3rd Respondents, the learned trial Judge had, on two previous occasions, refused applications for adjournments sought by Counsel, even when the reasons given for the adjournment were to keep a hospital appointment and to appear before another superior court of record. I therefore find the complaint of the Appellants under this issue utterly without basis. Thus, I also resolve this issue in favour of the Respondents.

Issue 3: Whether the Appellants are at liberty to impeach or challenge the evidence of DWI, (called by the 1st and 4th Respondents), during the hearing of the Appeal, having failed to raise an objection to the competence of the witness to testify and after taking further steps thereafter.

Learned Counsel for the Appellants submits that it is a cardinal point of the Appellants’ Appeal that the Exhibit M, the Intelligence Report of 1938 by Mr. Abell, an Assistant District Officer was not pleaded by the Respondents. Learned Counsel therefore hinges his arguments on the fact that, having not been pleaded, it was not admissible in law and reliance should not have been placed on it by the learned trial Judge in arriving at his decision. Consequently the Appellants were taken by surprise. Exhibit M was tendered through the Appellants’ 2nd witness at the end of his evidence under cross-examination.

Also, the secretary to Moba Local Government Traditional Council gave evidence on behalf of the 1st and 4th Respondents who filed no pleadings. Counsel therefore submits that the Exhibit M and the evidence on behalf of the 1st and 4th Respondents, who filed no pleadings, ran counter to the aims and bindingness of pleadings. He relied on George & Others V Dominion Flour Mills Ltd (1963) 1 All NLR71 at 71 per Bairamian, and Mamman V Salaudeen (2005) 18 NWLR SC 478 (Part 958) at page 489, to submit that parties and the court are bound by the pleadings of the parties to a suit, and the court cannot base its judgment on a matter or a fact not pleaded, because any evidence adduced on facts not pleaded goes to no issue and ought to be discountenanced by the court. Learned Counsel therefore urged the Court to discountenance Exhibit M, the Intelligence Report as well as the evidence of the witness for the 1st and 4th Respondents who filed no pleadings. He contends that the Appellants were ambushed and taken by surprise.

Assuming but not conceding that Exhibit ‘M’ was pleaded, Counsel submits that the information that the Obanla is chosen from Oji quarters in the 1938 report was not conclusive evidence of the custom and history of Obanla Chieftaincy in Erinmope. He contends that there was uncontroverted evidence that Arule-wo nimesi from Ibido quarters ruled for 52 years during and after the Ekiti parapo wars which ended in 1886. There is also uncontroverted evidence that Obanla from Oji quarter ruled in 1938 and supplied the information that he was chosen from Oji quarter. There was no evidence that Ibido quarter was represented or was asked questions in 1938 by Abell, the A.D.O. There is also no evidence that Obaleo of Erinmope and independent witnesses were asked questions as was done by the Panel of 2004 which produced Exhibit H. Exhibit H, on page 26 thereof, based its recommendation on the Exhibit M. Relying on Umoru V Uduogbo (1993) 6 NWLR (Pt. 298) 217 at 221, Counsel submits that documentary evidence should be used as the hanger from which to assess oral testimony.

Counsel further submits that the terse seven-word sentence in Exhibit M does not conform with the legal definition of custom as found in Jowitt’s Dictionary of English Law, 2nd Edition by John Burke, Volume 1 published in London by Sweet and Maxwell Limited in 1977 which defines ‘Custom’.

Furthermore, it is submitted that the appellate courts have the power and duty to examine thoroughly Exhibit M which the trial Court failed to examined thoroughly. Reliance is placed on Obi Eze V AG River State [2001] 18 NWLR (pt.746) 524 at 529; Iwo Local Government V Adigun (1992) 6 NWLR (Pt. 233) 494.

Learned Counsel for the 1st Respondent, Mr. Olatimeju, as well as Counsel for the 2nd and 3rd Respondents, Mr. Omotoso, submit that by Order 25 Rule 2 of the Ondo State Rules of the High Court as applicable to Ekiti State, a defendant who intends to defend an action after the service of a statement of claim on him shall serve a defence on the plaintiff unless the court gives leave to the contrary. Order 2 Rule 1 of the Ondo State Rules of the High Court as applicable to Ekiti State stipulates that failure to comply with the requirement of the said rules will not nullify the proceeding or any document, judgment or order therein but may be treated as an irregularity. Counsel submits that it is deducible from this rule that a trial Judge has discretion to exercise which he has done in this case. He submits that an appellate court does not, as a matter of practice, interfere with the exercise of discretion by a trial Court merely because it would have otherwise exercised it.

Atiku V State (2002) 4 NWLR (pt. 757) 265 at 278 is relied on. An application to set aside for irregularity shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh steps after becoming aware of the irregularity. Order 2 Rule 2 (i) of the Ondo State Rules of the High Court as applicable to Ekiti State.

Counsel submit that the Appellants’ Counsel was in Court when DW1 Olowoyeye Francis, the secretary to Moba Local Government Traditional Council, gave evidence. The Appellants’ Counsel did not object to the propriety of the witness testifying before the trial Court but took further steps and cross-examined the witness, and even tendered the following documents through him, namely:

i. Minutes of the meeting of Otun District Council Chieftaincy committee of 4th march, 1963- EXHIBIT Q.

ii. The Bola Inquiry of 1964, Exhibit R.

The Appellants’ Counsel even made use of the aforesaid documents in his address. Counsel contends that the Appellants’ Counsel’s steps in law amounts to waiver. Counsel therefore submits that the Appellant cannot, at this stage, turn around to attack the decision on the evidence of the DW1, the Appellants’ Counsel having taken fresh steps after becoming aware of the irregularity. The irregularity has been waived by the Appellants’ Counsel and he is stopped by Section 151 of the Evidence Act from complaining about the irregularity. Counsel therefore urged the Court to resolve this issue in favor of the Respondents.

The issue of Exhibit M, (which has earlier been addressed in the body of this Judgment), seems to be a recurring decimal in this Appeal. Having already addressed this concern in depth under issue number one, I adopt all my findings in that regard under this issue. In all proceedings before it, a court is expected to admit and act only on evidence which is admissible in law. Hence, if a court should inadvertently admit inadmissible evidence, it has a duty not to act on it. This rule is very strict. Thus where a court wrongfully admits inadmissible evidence, it ought, as a duty, to disregard same in the consideration of the judgment in the matter. Where however such evidence has been wrongly admitted and acted upon and, whether or not the opposing party objects, courts have the duty to exclude such evidence and decide the case only on legally admissible evidence. See Shittu V Fashwe (2005) 7 SCNJ 337. After expunging such evidence, the trial Judge or an appellate court should then consider if there is any other remaining legal evidence to sustain the claims. The wrongful admission of evidence may not necessarily fatally affect the decision of the court unless the use of the evidence has brought about a miscarriage of justice in the case. The wrongful admission of evidence will not itself create a ground for the reversal of a decision unless the appellate court would have come to a different decision without such evidence. See Idundun V Akumagba (Supra). In this case, there was abundant evidence accepted by the trial court after duly appraising and evaluating all the evidence adduced before it.

On the second limb of this issue, indeed, it is also plain from the record that whereas the 1st and 4th Defendants did not file pleadings, they called one witness, DW1, who testified and through whom documentary evidence was tendered and received. Before the commencement of trial in a suit, it is necessary that, on the one hand, the court should know the matter that is really in dispute between the parties, and on the other hand, that either party should know what his adversary’s case against him will be. This foreknowledge, in the former case, helps the Court to know what it will have to determine at the conclusion of the trial, and in the latter case, enable’s each party to prepare to meet the adversary’s case. This is the essence of pleadings. See Noibi V Fikolati (1987) 3 SC 105. Simply put, pleadings are written statements of the parties in an action begun by writ of summons which are served by each party in turn on the other, setting forth in a summary form the material facts on which each relies in support of his claim or defence, as the case may be.

They are written statements of facts on which the plaintiff bases his claim, and the defendant, his own defence to that claim. From the foregoing, the functions of pleadings can be succinctly summarized as follows:

1. Pleadings define with clarity and precision the issues or questions which are in dispute between the parties and fall to be decided by the court. See Olufosoye V Olorunfemi (1989) 1 NSCC 21.
2. By means of pleadings each party is required to give fair and proper notice to his opponent of the case he has to meet to enable him to frame and prepare his own case for trial. The aim of pleadings is to place parties on alert as to the facts they are to meet at the hearing. See Union Bank V Ogoh (1995) 2 SCNJ 1.
3. Pleadings inform the court what the precise matters in issue between the parties are which matters alone the court may determine since they set the limits of the action. Thus the court is also bound by the pleadings. See Enang V Adu (1981) 11-12 SC 25. Pleadings provide the legal basis for judgment which must be confined to the matters on which issues have been joined.
4. Pleadings constitute a permanent record of the issues and questions raised in the action and decided therein so as to prevent future litigation on matters already adjudicated upon between the parties and their privies. Pleadings are therefore the basis of the plea of res judicata.
5. Pleadings determine on which party the burden of proof on the pleadings or the evidential burden lies by virtue of Sections 135(1) and Section 136 of the Evidence Act Cap 112 LFN, 2004.

The defendant may admit in his statement of defence a fact alleged in the statement of claim. What is admitted thus ceases to be in controversy between the parties. The exception to this rule however lies in respect of actions for declaration of right. In such cases, the facts must be proved by evidence even if they have been admitted in the statement of defence. This exception is clearly stated in Bello V Eweka (1981) 1 SC 101 at 102 per Obaseki, JSC in these words:

“It is true as was contended before us by the appellant’s counsel that the Rules of court and Evidence relieve a party of the need to prove what is admitted but where the court is called upon to make a declaration of right it is incumbent on the party claiming to be entitled to the declaration to satisfy the court by evidence, not by admission in the pleadings of the defendant that he is entitled.”

Thus, the court does not make declarations of right either on admission or in default of defence without hearing evidence. Nonetheless, this principle of law is limited to cases initiated by writ of summons which call for pleadings and the calling of witnesses to testify or admission by way of averments in pleadings. It does not apply to a declaration asked for under the Fundamental Rights (Enforcement Procedure) Rules and in originating summons or motions which have affidavits in support. Pleadings thus narrow the area of controversy between the parties.

Since parties are bound by their pleadings, any evidence at variance with the averments in the pleadings goes to no issue and should be disregarded by the court. See PBNL V FBN (2000) 1 SC 70 at 80; Jiaza V Bamgbose (1999) 5 SCNJ 167 at 175; Olorunfemi V Asho (1999) SCNJ 1 at 8. Evidence is said to go to no issue if the fact it is intended to prove is not pleaded. Rationalizing this function of pleadings, the Federal Supreme Court in George & Others V Dominion Flour Mills ltd (1963) 1 ALL NLR 71 at 71 per Bairamian, FJ said:

“The fairness of a trial can be tested by the maxim audi alterem 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.”

See also A.G. Anambra V Onuselogu Enterprises Ltd (1987) 4 NWLR 547. Therefore, a party should not be heard on issues not pleaded by him. By the same token, a judgment should not be based on matters outside the pleadings. As was held by Belgore, JSC in Balogun V Adejobi (1995) 1 SCNJ 242 at 264:

“Throughout the journey of a case from the trial court up to the exhaustion of all appellate remedies a party may have, there must be strict adherence to what was fought at the trial court by way of pleadings. Any matter not pleaded will have no bearing on the decision.”

See also Olatunji V Adisa (1995) 2 SCNJ 90 at 103; Ochonma V Unosi (1965) NMLR 321.

Thus, where no statement of defence is filed in answer to the statement of claim, as in the instant case in relation to the 1st and 4th Respondents, then by the ordinary rules of pleadings, the averments in the latter, in the normal run of events, are taken as admitted. The natural consequences of default in filing of a statement of defence therefore is that the allegations in the statement of claim stand unchallenged and so far as they as they disclose a cause of action, the plaintiff may be entitled to judgment in appropriate cases, without the need to prove his case by calling evidence. The exception as afore stated, is in cases where the plaintiff claims for declarations and therefore is obliged to adduce evidence in support thereof. In the instant case, it admits of no argument that the 1st and 4th Defendants did not file any statement of defence in rebuttal of the facts pleaded in the statement of claim. That being the case, they could not be heard to have adduced evidence in respect of facts not pleaded. Therefore, evidence, oral or documentary, adduced by them in these proceedings goes to no issue as they did not join issues with the Plaintiffs on the facts pleaded by them. In the light of these principles of law guiding pleadings, viz: audi alterem partem and not being allowed to take the other side by surprise, as well as the Constitutional right to fair hearing, Order 2 Rules (1) & (2) of the Ondo State High Court (Civil procedure) Rules (applicable to Ekiti State), cannot avail the 1st and 4th Respondents. This is a rule of Court which is provided to save a suit from being swept off the cause list on the ground of irregularities. I must say without equivocation that the default in filing pleadings goes beyond the realm of irregularity. Instead, it touches the heart of principles of fair hearing. Thus, it is a matter of substantive law under Section 36 of the Constitution.

DW1, Olowoyeye Francis, Secretary to Moba Local Government Traditional Council, testified for the 1st and 4th Defendants at the trial Court. (See pages 120- 129 of the record). His very brief evidence in chief was limited to debunking the allegation that there was a grouse between the 4th Respondent and the Obaleo of Erinmope, and therefore tendering Exhibits N and O to buttress this. (See pages 120-121 of the record). It is unfortunate that the Appellants’ Counsel was not also alert to his responsibility. Instead, he appeared comfortable with the presence of the witness in Court to the extent that he cross-examined him extensively and even tendered three other documents, Exhibits P, Q and R, through him. Now, whereas Exhibits N and O are nowhere pleaded in the pleadings of the parties, Exhibits P, Q and R were copiously pleaded and reliance specifically placed thereon in both the statement of claim and the statement of defence. See paragraphs 67(i), (ii), (iii), (iv), 68 and 70 of the statement of claim at pages 14-15 of the record wherein the Plaintiffs explicitly pleaded and expressed their intention to rely on these documents. Also, paragraphs 6(a), (b), (c), (d), (e), (f), (i) and (j) of the statement of defence at pages 45-46 of the record where facts upon which these documents are based were pleaded by the 2ndand 3’d Defendants. Therefore, since the law is that parties and the court are bound by the pleadings of the parties to a suit, the oral evidence given by DW1 denying the animosity between the Oore of Otun and the Obaleo of Erinmope, as well as the Exhibits N and O which do not base their legitimacy on the pleadings of any of the parties before the Court, are expunged from the record. Consequently, I resolve this issue in favour of the Appellants.

Nevertheless, since it is still evident that outside the limited evidence of the DW1, ample oral and documentary evidence abounds to validate and bear out the decision of the trial Court even after expunging the evidence adduced through the DW1, the wrongful admission of these pieces of evidence does not fatally affect the Nevertheless, since it is still evident that outside the limited evidence of the DW1, ample oral and documentary evidence abounds to validate and bear out the decision of the trial Court even after expunging the evidence adduced through the DW1, the wrongful admission of these pieces of evidence does not fatally affect the decision of the Court, as this Court would not have come to a different decision without such evidence. Therefore, the wrongful admission of evidence will not itself create a ground for the reversal of the decision.

In the result, based on the totality of all my findings above, I find the Appeal lacking in merit. It fails and is accordingly dismissed. Parties are ordered to bear their respective costs.

Appeal dismissed.

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Other Citations: (2009)LCN/3239(CA)