Alhaja Olasunbo Olokode & Ors V. Alhaja Adidat Bello Ijaola & Ors (2005)
LawGlobal-Hub Lead Judgment Report
KUMAI BAYANG AKAAHS, J.C.A.
The crisis which led to the institution of this suit now on appeal is whether the position of Iya Oja i.e woman leader of Olorunsogo market in Lagos State is by appointment under Yoruba native law and custom as contended by the Plaintiffs or that such a custom does not exist and that the post is an elective one as put forward by the Defendants. All the parties to the suit are traders at Olorunsogo Market, Oshodi,Lagos State. Prior to the establishment of the market at the present site, the traders were carrying out their trading activities at Railway Line, Oshodi. Due to the persistent raiding and disturbances meted out on the traders by the Lagos State task force at the Railway Line (which was considered as an illegal market) the traders staged a peaceful demonstration to the office of the Military Governor. On hearing their complaints the then Military Governor Col.Raji Rasaki yielded to the request of the traders by relocating them to the present site. Upon the final settlement of the traders at the market, it became imperative to choose officers for the purpose of running the affairs of the market. A dispute then arose in the leadership. While the Plaintiffs claimed that the position of Iya-Oja is occupied by appointment under Yoruba native law and custom and that the 1st Plaintiff was duly appointed as Iya-Oja (woman leader) of Olorunsogo market after the establishment of the market, the Defendants asserted to the contrary by contending that such a custom does not exist but that elections were conducted on 22nd November, 1990 for the post of Iya-Oja and on 29th November, 1990 another election for the posts of Treasurer, Leader of Sellers and other offices was held. In the election of 22nd November, 1990 the 1st Plaintiff contested for the post of Iya-Oja with the 1st Defendant and one Mrs. Banjo and lost to the 1st Defendant. It was after her defeat that she turned round to lay claim to the post under a non existing Yoruba native law and custom. The Plaintiffs denied knowledge of the alleged elections and in particular the 1st Plaintiff denied ever participating in the election. The Plaintiffs accordingly sued and I claimed in paragraph 37 of the Amended Statement of Claim dated 10/11/94 I the following reliefs:
a. A declaration that the purported election of the 1st, 2nd, 3rd and 4th Defendants as Iya-Oja, Baba-Oja, Treasurer/Secretary, head of meat sellers or generally as the Executive Committee (Members) of Olorunsogo Market, Oshodi,Ikeja Local Government Area on 22nd and 29th November 1990 or at any other times is a sham, null, void, unconstitutional and against the prevailing traditions, customs and conventions in the market, Yoruba land specifically in Lagos State
b. A declaration that the choice of Iya-Oja of Olorunsogo Market is governed by customs, traditions and conventions as obtainable in markets in Lagos State and Yorubaland and never Government imposed or by election.
c. A declaration that the 1st and 6th Plaintiffs at all material times remain the Iya-Oja and head of meat sellers of Olorunsogo market Oshodi according to customs, traditions and conventions and that the Executive Committee with whom the 1st Plaintiff has been running the market since the break away of 1st, 2nd and 3rd Defendants remains undissolved.
d. an injunction restraining the 1st, 2nd, 3rd and 4th Defendants respectively from holding out themselves or acting or disturbing the peace and affairs of Olorunsogo Market Oshodi as Iya-Oja, Baba-Oja, Treasurer/Secretary, head of meat sellers or generally as executive members of the market.
e. Damages for undue harassment, detention, molestation, embarrassment, mental shocks and headaches caused the Plaintiffs by the defendants’ actions.
The Defendants denied the Plaintiffs’ claim and in their Amended Statement of defence dated 1/4/98 they counter-claimed for the following reliefs:
- A declaration that the 1st Defendant is the duly elected and lawful Iya-Oja of Olorunsogo Market, Oshodi, the 2nd Defendant is the duly elected and lawful Treasurer of the market and the 4th Defendant is the lawful head of the meat sellers in the market.
- A perpetual injunction restraining the 1st,2nd and 6th Plaintiffs from holding themselves out respectively as the Iya-Oja, head of the pepper sellers and the head of the cosmetic sellers of the Olorunsogo market.
- A perpetual injunction compelling the Plaintiffs their servants agents and/or privies to keep the peace and restraining them from harassing, molesting threatening and/or assaulting the Defendants and other heads of sellers in the market or in any way obstructing and/or preventing them from performing lawful functions in the market.”
The parties called witnesses and tendered several exhibits. The Plaintiffs called three witnesses. Mr. Babatunde Shonibare, the Secretary of the Ikeja Local Government was initially called by the Plaintiffs and he started testifying as 3PW but on application by Plaintiffs’ counsel, his evidence was expunged from the records. The Defendants also called three witnesses.
Learned Counsel addressed the Court which was concluded on 28/4/99 and I the suit was adjourned to 18/6/99 for judgment. Judgment was however not delivered until 17/9/99 in which the Plaintiffs lost and they filed their Notice of Appeal on 20/9/99 containing four grounds of appeal as follows:
3.1 The entire judgment of the trial judge is a nullity being judgment delivered after the statutory period of 90 days.
PARTICULARS
The final addresses were concluded on 28th day of April 1999 and judgment was delivered on 17th day of September, 1999.
3.2. The learned trial Judge erred in law when His Lordship held that there was election for the post of Iya-Oja on 22nd November, 1999 and 29th November, 1999 for the post of Secretary General.
PARTICULARS OF ERROR
There was no evidence to show that any election did take place on 22nd November and 29th November 1990 respectively and the Defendants failed clearly to justify the assertion by calling the persons who conducted those elections.
3.3. The Learned trial Judge erred in Law when His Lordship held that the 1st Defendant was lawful (sic) elected Iya-Oja of Olorunsogo market and the 2nd Defendant duly elected Secretary and 3rd Defendant elected Baba Oja.
PARTICULARS OF ERROR
2nd Defendant only gave evidence as to the Election of 1st Defendant and 3rd Defendant did not testified (sic) neither was any evidence led to how the 3rd Defendant was elected Baba Oja.
3.4. The judgment is against the weight of evidence”
The Plaintiffs as Appellants formulated five issues for determination They are:
(i) Whether the judgement of 17th September, 1999 is not a nullity having been delivered outside the statutory period of 90 days.
(ii) Whether the learned trial Judge properly directed herself as (sic) the burden of proof having regard to the nature of the issues placed before her in particular evidence of customs, traditions and conventions by the Plaintiffs and the defendants’ claim for election.
(iii) Whether the Respondents succeeded in proving by preponderance of evidence that there were elections on 22nd November 1990 and that the Defendant/Counter claimants were duly elected.
(iv) Whether the learned trial Judge considered the validity and took correct view as to evidential value of Exhibit P1 Certificate of Installation of 1st Plaintiff as Iya Oja Olorunsogo Market Oshodi.
(v) Whether the judgment is not against the weight of evidence.
In their Brief of Argument, the Respondents raised what appears to be a preliminary objection to issues Nos 2(ii) and 2(iv) arguing that they are not hinged or based on the grounds of appeal filed and urged that the said issues be ignored as being valueless, incompetent and irrelevant. They formulated the following two issues for determination:
a. Whether the judgement delivered by the learned trial Judge in this suit is a nullity simply because it was delivered after the statutory period of 90 days.
b. What is the status or number of witnesses should a party to a suit called (sic) for the purpose of proving his case and or before a trial court could make a finding on the evidence adduced before it.
The Appellant did not file a Reply Brief in answer to the preliminary objection raised.
The Respondent is required to file a formal notice of preliminary objection in accordance with Order 3 Rule 15(1) Court of Appeal Rules 2002 and to argue it orally at the hearing of the appeal. See: ABIOYE v. AFOLABI (1988) 4 NWLR (Pt.545) 296. AIGBOBAHI v. AIFUWA 1 (1999) 13 NWLR (Pt 635) 412; OGUN STATE HOUSING CORPORATION V. OGUNSOLA (2000) 14 NWLR (Pt. 687) 431. On 9/2/2005 when the appeal was taken, the Respondents’ counsel was absent from court and the appeal was deemed argued on the briefs filed by virtue of Order 6 Rule 9(5) Court of Appeal Rules 2002. Since the Respondents did not comply with the provisions of the Rules and learned counsel was not present in court to orally argue the preliminary objection, it cannot be entertained and is accordingly struck out. See NSIRIM V. NSIRIM (1990) 5 NWLR (Pt. 138) 285.
Notwithstanding the fact that the preliminary objection has been struck out, it is obvious that issues Nos.2(ii) and 2(iv) are not distilled from any grounds of appeal. An issue for determination in an appeal which no has ground of appeal to support it is a non-issue as it is hanging in the air and consequently becomes a useless issue. Any arguments canvassed on such issue must be discountenanced, disregarded and discounted. It ought to be struck out accordingly. See: NWANWATA V. ESUMEI (1998) 8 NWLR (Pt.563) 650; C.C.B. LTD. V. NWOKOCHA (1998) 9 NWLR (Pt. 564) 98; SEA TRUCKS (NIG) LTD V. PYNE (1989) 6 NWLR (Pt. 607) 514. The said issues and the arguments canvassed on them are hereby struck out.
The issues which the Appellants formulated are more than the grounds of appeal. The issues should either correspond with the number of grounds in the appeal or they may even be less since one issue may encompass more than one ground of appeal. See: OBOT V. AKPAN (1998) 4 NWLR (Pt.546) 409; ISICHEI V. ALLAGOA (1998) 12 NWLR (Pt. 577) 196; OSAZUA V. EDO STATE CIVIL SERVICE COMMISSION (1999) 4 NWLR (Pt. 597) 155; OKEKE V. STATE (2000) 10 NWLR (Pt. 675) 423.
In my view the following issues arise from the grounds of appeal. The Issues are:
- Whether the judgment delivered on 17th September,1999 beyond the Statutory period of 90 days after conclusion of addresses by counsel is a nullity.
- Whether the Respondents proved that elections were conducted on 22nd and 29th November, 1990.
These are the issues I intend to deal with in this appeal.
Issues No. 1.
This issue deals with whether the judgment which was delivered outside the statutory period of 90 days on the completion of evidence and final addresses by counsel is not a nullity. Learned Counsel for the Appellants recognized the restrictive interpretation which the courts have given since the amendment to Section 258 (1) of the 1979 Constitution where there must be proof that a miscarriage of justice occurred as a result of the inordinate delay between the conclusion of the trial and the delivery of the judgment before that judgment can be nullified and commended the decision of the Supreme Court in DIBIAMAKA V. OSAKWE (1989) 3 NWLR (Pt. 107) 101 where it was held that the emphasis is not on the length of time simpliciter but on the effect it produced on the mind of the trial Judge. Learned Counsel argued, however that if the history of this case is put into consideration, the appeal should be allowed and it does not matter that the judgment was delivered within 4 months since the learned trial judge did not properly direct herself as to the burden of proof of the issues at stake in the matter in particular evidence of customs, traditions and conventions by the plaintiffs as against the defendants’ claim for election.
Learned Counsel for the Respondents’ argument is that there is no place where the appellants complained that the delay in the delivery of judgement outside the statutory period has caused a miscarriage of justice. It is also learned counsel’s contention that the appellants did not complain that the learned trial judge made a wrong evaluation of the evidence adduced before him in the suit because of the inordinate delay in delivering judgment, nor that the trial judge did not appreciate the evidence or has lost control and or full understanding of the evidence given in the suit before the judgment was written and delivered. As the learned trial Judge reviewed the evidence and appraised and evaluated same before making her findings, this court cannot and must not intervene in the said findings.
Section 294 (1) & (5) of 1999 Constitution which is in pari material with Section 258 (1) & (4) of 1979 Constitution (as amended) states as follows:
“294 – (1) Every court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof
(2) ………….
(3) ………….
(4) ………….
(5) The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.
The amendment in Subsection (4) to Section 258 (1) 1979 Constitution which has been retained in Section 294 (5) 1999 Constitution was interpreted by the Supreme Court in OJOKOLOBO V. ALAMU (1987) 3 NWLR (Pt. 61) 377 to be prospective. This meant that judgments which were delivered in contravention of Section 258(1) before 27th August, 1985, the date on which Decree No. 17 of 1985 which amended Section 258 (1) came into force, were declared a nullity. This explains the rationale in the nullification of the decision in UTTAH V. GOLDEN GUINEA BREWERIES (1988) 2 NWLR (Pt. 76) 373 where judgment was delivered 4 months after the conclusion of addresses but in DIBIAMAKA v. OSAKWE (supra) the judgment which was delivered 9 months after the conclusion of addresses was not nullified because it was delivered in April of 1979 and this was before the 1979 came into operation. The case of OJOKOLOBO v. ALAMU supra had to suffer the same fate as IFEZUE v. MBADUGHA (1984) 5 S.C. 79 and ODI V. OSAFILE (1985) 1 NWLR (Pt.1) 17 on account of the fact that they were delivered when Section 258(1) held sway but before the amendment in subsection (4) came into force.
Since the promulgation of Decree No. 17 of 1985 the Supreme Court has had occasion to consider its effect on decisions delivered outside the constitutional period prescribed by Section 258 (1) in several cases which include KPEMA V. THE STATE (1986) 3 SC 39; TAYLOR v. THE TRUSTEES OF TRINITY METHODIST CHURCH (1986) 4 NWLR 136; OBADIARU V. UYIGUE (1986) 3 SC 39. In explaining the effect of the amendment, Oputa J.S.C. in DIBIAMAKA V. OSAKWE supra said at page 114:
“…if inordinate delay between the end of the trial and the writing of the judgment apparently and obviously affected the trial Judge’s perception and evaluation of the evidence so that it can be evidently seen that he has lost the impressions made on him by the witnesses, then in such a case, there might be some fear of a possible miscarriage of justice and there, but only there, will an appellate court intervene. The emphasis is not on the length of time simpliciter but on the effect it produced in the mind of the trial Judge.”
The intention of the Lawmakers in inserting Section 294 (5) into the 1999 Constitution cannot be different from what the amendment of Subsection (4) to Section 258 (1) of 1979 Constitution was meant to achieve namely to ameliorate the rigour of Section 258(1) which at times resulted in injustice. In the words of Eso J.S.C. at page 116-
“Section 258 of the 1979 Constitution was provided to stem what became fashionable with the “Cunctators” of the Bench who would rather,in the language of one Senior Advocate preserve rather than reserve judgments.
However to save injustice which would appear to stem from the rigour of the provision, the provision was amended and a subsection added”
Before a decision of a court can be set aside or treated as a nullity on the ground of non-compliance with the provision of Section 294 (1) 1999 Constitution, a case of miscarriage of justice must have resulted from the inordinate delay in delivering the judgment.
ISSUE NO. 2
Whether the Respondents proved that elections were conducted on 22nd and 29th November, 1990.
Learned Counsel for the Appellants referred to the findings of the learned trial Judge that the Defendants proved their counter-claim on the preponderance of evidence while dismissing the Plaintiffs’ claim as having woefully failed to prove their case and submitted that there was no sufficient evidence to support the said findings. He argued that the finding was based on Exhibit D1 which was just a mere acknowledgement from Ikeja Local Government and that Ikeja Local Government did not direct the marketers to hold election; neither did it supervise the purported election nor were the people who conducted the elections and the guidelines for the said elections
tendered. There is a said elections discrepancy in the evidence of 1st Defendant and DWII as to the number of votes scored by the 1st Defendant. 1st Defendant alleged that she polled 28 votes to 1st Plaintiff’s 10 votes but DWII gave the number of votes polled by 1st Defendant as 27. This, according to learned counsel is a material contradiction and it was erroneous for the learned trial Judge to believe such evidence.
Learned Counsel for the Respondent submitted that there is no law that compels parties to an action before the court to call a specific number of witnesses and what is important is that the witness or witnesses called are credible and their evidence is cogent on a particular point or issues of fact so as to enable the court arrive at a just, honest and fair conclusion on the point so raised. He cited the case of ORUGBO V. UNA (2002) 16 NWLR (Pt.792) 175; (2002) FWLR (Pt. 127) 1024 at 1039 in support of his argument. He argued that the discrepancy in the number of votes scored by the 1st Defendant as stated in the evidence of DW1 and DW2 does not relate to or affect the live issue in the matter i.e. the fact that the election was conducted and so is not material enough to destroy the party’s case. He therefore submitted that there was sufficient evidence before the trial court to enable it determine the issue of whether or not elections were held in the market on 22/11/90 and 29/11/90. Learned Counsel further submitted in the brief that the reference to Schedule II of the Lagos State Market Advisory Council Edict 1996 by the trial court was not to use the Edict as the basis for determining whether there was an election in the market or not but to buttress the fact that elections into offices in the Lagos State Market is recognized by law.
Where a defendant files a Counter-Claim, the dismissal of the main claim does not automatically entitle the counter-claimant to judgment. There is need for the Counter-claimant to prove by satisfactory evidence his counter-claim. Failure to prove the counter-claim will lead to the dismissal of the Counter-claim. See: IKENI V. EFAMO (1996) 5 NWLR (Pt. 446) 64; PABOD SUPPLIES LIMITED V. BEREDUGO (1996) 5 NWLR (Pt.448) 304; OBI V. BIWATER SHELLABEAR (NIG) LTD (1997) 1 NWLR (Pt. 484) 722. There is need to separate facts relied on in proof or defence of the main claim from those of the counter-claim. See:U.B.N PLC V. JERIC (NIG) LTD. (1998) 2 NWLR (Pt. 536) 63. I do not agree with the submission made by the learned counsel for the Respondents that the discrepancy in the number of votes scored by the 1st Defendant (now 1st Respondent) is not material enough to destroy the live issue in the matter i.e. the fact that the election was conducted since the plank on which the 1st Respondent is laying claim to occupying the position of Iya-Oja of Olorunsogo Market is that she defeated the 1st Plaintiff/Appellant at the election which was conducted on 22/11/90. In paragraph 18 of the Amended Statement of Defence it was pleaded –
“18. On 22/11/90 at the full market committee meeting at which two representatives of each section attended and the 1st, 2nd, 3rd, 4th and 5th Plaintiffs were present and participating the 1st defendant was elected as Iya-Oja with 27 against 10 votes scored by the 1st Plaintiff; the defendants shall rely on the minutes of the meeting”
There is force in the submissions made by learned counsel for the Appellants that there was need for the Respondents to produce the guidelines for the elections. It was also necessary for those who conducted the elections to testify on the way the elections were conducted and under what law if any since the issue generated controversy between the parties. Exhibit “D1” is an acknowledgement of a communication from the 1st Defendant and not the fact of the election. The letter which was signed by one Alhaji L.I. Busari, the Vice-Chairman of Ikeja Local government on behalf of the chairman is as follows:
“Dear Madam,
RE: APPOINTMENT OF IYA-OJA AND OTHER EXECUTIVE MEMBERS OF THE MARKET
I have been directed to refer to your letter dated 31st December 1990, in which you conveyed the outcome of the election held on 22nd and 29th November,1990, and to inform you that the Local Government has noted your election as Iya-Oja of Olorunsogo Market as well as other members of your executive Committee.
- It is hoped that you and other members of the Executive would use your positions to foster peace and orderliness within the market.
- Congratulations.
Signed: ALHAJI L.I. BUSARI
Vice Chairman
For: Chairman”
Exhibit “D1” therefore is not conclusive proof of the elections. The learned trial Judge referred to Edict NO.9 of 1996 which is titled LAGOS STATE MARKET ADVISORY COUNCIL EDICT 1996 which she observed, favoured the election of officers into the positions which the 1st Plaintiff testified about and claimed she appointed people including 3rd Defendant to occupy. Schedule II made pursuant to Section 3(3) of the Law which stipulates that election of officers of the council shall be conducted within 96 hours after inauguration of the council to be supervised by Registrar of markets and the election of members shall be by a process of direct election and shall be by secret ballot is not dealing with the elections of market executive committees.It is concerned with the Market Advisory Council and the composition of the council includes market leaders of the Local Governments. As earlier stated in the judgment, the bone of contention is whether the market leader(Iya-Oja) of Olorunsogo Market is by appointment or through election.If it is intended that the posts constituting the market executive committee should be occupied through elections,then there is need for a law to be passed to that effect by the Lagos State Government or a Bye-Law by the Local Government concerned with a provision similar to Section 3(3) of the Lagos State Market Advisory Council Law.
There is no specific number of witnesses that a party is required to call in order to prove his case apart from cases that require corroboration. It is the quality of evidence adduced that matters and not the number of witnesses who testify in a case.
The learned trial Judge should have attached little or no weight to Exhibit “D1” on the issue of election just as she did to the evidence of PW3 when she held that he could not qualify as an expert witness.
The learned trial Judge in dismissing the plaintiffs’ case lamented that the rules and regulations of the Association of market women was not put in evidence and if the document had been placed before her, it would have shed, more light on the issue of appointment vis-a-vis election.
She went on to state that it would have helped the plaintiffs more if they had called some other current market leaders to testify as to how they became the leaders of their respective markets. She then concluded that the plaintiff evidence as to appointment over election is insufficient and agreed with the submission of learned counsel for the Defendants that the plaintiffs did not discharge the burden of proof imposed upon them by Section 59 of the Evidence Act.
The burden was equally on the Defendants to prove their assertion that elections did in fact take place. I agree with the submission of learned counsel for the Appellants that there is a material discrepancy in the evidence of the 1st Defendant and DWII as regards the number of votes scored by the 1st Respondent to become the Iya-Oja of Olorunsogo market. The Respondents failed to adduce enough evidence to discharge the burden of proof placed on them to entitle them to judgment on their counter-claim and, the declaratory reliefs contained therein. Their counter-claim ought to have been dismissed.
As the tussle for the leadership of Olorunsogo market continues to rage between the parties which could degenerate into break down of law and order in the Olorunsogo market as is evident in the pleadings and correspondence especially Exhibits “P2” and “P4”, the Ikeja Local Government should appoint a care-taker committee to manage the affairs of the market. Since the establishment, maintenance and regulation of markets is one of the functions of a Local Government Council in the Fourth schedule to the 1999 Constitution, the Ikeja Local Government or the relevant Local Government under which the Olorunsogo market falls should immediately enact the guidelines for the appointment or election of officers who will constitute the executive committee of the Olorunsogo market.
In conclusion, I find that there is merit in the appeal and it is accordingly allowed.
I set aside the judgment of the Lagos High Court, Ikeja delivered on 17/9/99 with N5,000 costs in favour of the Appellants against the Respondents.
Other Citations: (2005)LCN/1718(CA)
