Chief R. B. Buraimoh V. Chief Maliki Adeniyi Esa & Ors (1990)
LawGlobal-Hub Lead Judgment Report
KAWU, J.S.C.
This is a further appeal by the plaintiff in this case against the dismissal, by the Court of Appeal, Kaduna Division, of his appeal against the judgment of Adegbite, J., sitting in an Ilorin High Court.
In that court, the plaintiff had instituted an action against the defendants jointly and severally claiming in his amended writ of summons, as follows:-
“The plaintiff’s claim against the defendants both jointly and/or severally is for
(i) a declaration that the plaintiff is the rightful Oba of Idera having been so appointed in October, 1979 by the Juduala Ruling House, whose turn it was to appoint a successor of the late Oba Noah Oloruntoba (from Oyan/Olupo Ruling House) who died in September, 1979, sequel to the agreement of July 28th, 1962 now annexed as annexure 1 to this writ of summons
(ii) a declaration that the 1st – 5th defendants who are the Idera kingmakers cannot install the 6th defendant who is a member of Ikota Ruling House as the Oba of Idera as now being threatened as doing so will be in breach of the aforesaid annexure 1,
(iii) an order mandating the first to fifth defendants to install the plaintiff as the Oba of Idera and
(iv) a perpetual injunction prohibiting the 6th defendant from performing the functions of the Oba of Idera and from enjoying the perquisites of the said office;
(v) the 7th defendant has no power to appoint or install the 6th defendant as the Oba of Idera and
(vi) the 8th and 9th defendants have no power to approve the appointment of the 6th defendant as the Oba of Idera.”
The substance of the plaintiff’s claim was that in accordance with the terms of an agreement entered into by the members of Idera community (exhibits 1 and 2), it was the turn of his family to provide a candidate for the throne of Oba of Idera after the demise of Oba Noah Oloruntoba in 1979, that at a meeting of his family summoned for the purpose, he was duly elected as their candidate, and that subsequently his name was forwarded to the 1st – 5th defendants, who were the kingmakers and who wrongfully refused to install him. It was also his case that the subsequent appointment of the 6th defendant by the 7th defendant as the Oba Idera of Idera community was wrong and that the 8th and 9th defendants who approved the appointment of the 6th defendant had no power to do so.
The plaintiff filed an amended statement of claim. The 1st-6th defendants filed a statement of defence and the 7th – 9th defendants did not file any pleadings. At the trial the plaintiff did not give evidence but called two witnesses who did so on his behalf. The 1st – 6th defendants did not give evidence either but two witnesses testified on their behalf.
At the end of the trial, the learned trial Judge gave careful consideration to the evidence adduced by the parties, and in dismissing the plaintiff’s claims against all the defendants, concluded as follows:-
“On the whole, I repeat that it is well known that civil cases are decided on a preponderance of evidence. The burden is always on the plaintiff and it is burden that has to be proved to the satisfaction of the court in a case where a declaration is sought from the court. The plaintiff must rely on the strength of his own case and not on the weakness of the defendant whose duty is merely to defend. If the onus of proof on the plaintiff is not discharged, the weakness of the defendant’s case will not help the plaintiff.”
He cited, in support of the principles of law enunciated, the following cases:.
(1) Kodilinye v. Mbanefo Odu, 2 W.A.C.A. 336-337
(2) Alhaji Elias v. Chief Omobare (1982) 5 S.C.25 at 46 – 47
(3) Piaro v. Tenalo 1976 1F.N.R. 229
(4) Ekun and Ors. v. Baruwa and Ors. (1966) 2 All N.L.R. 211.
The plaintiff, being dissatisfied with the decision of the High Court, appealed to the Court of Appeal, Kaduna Division, on a number of grounds, and that court, by the lead judgment of Babalakin, J.C.A., with which Maidama and Akpata, JJ.C.A., concurred, dismissed his appeal and confirmed all the findings of the learned trial Judge.
The plaintiff (hereinafter called the appellant) has appealed further to this court filing six grounds of appeal. In his brief of argument, Mr. Ijaodola for the appellant framed the following questions for consideration in this appeal:-
“(i) did Exhibit 1, which was translated as Exhibit 2, indicate the order of succession to the stool of Oba of Idera
(ii) could it be the turn of 6th defendant/respondent’s group i.e. group (c) on the demise of the late Oba Noah Oloruntoba
(iii) what is the effect of non cross examination on a piece of evidence
(iv) did the plaintiff sufficiently deny paragraph 7 of the statement of defence in his Reply
(v) were the other reliefs dependent on success or failure of prayer (i)
(vi) what was the effect of installation of the 6th defendant during the pendency of the suit
(vii) was the Court of Appeal right in not setting aside the trial court’s decision.”
Chief Olorunsola, learned counsel for the 1st – 6th defendants (hereinafter called the respondents) framed the issues for determination somewhat differently, thus:-
“1. Whether it is proper to bring into an agreement words which are not expressly stated in the agreement or whether words should be given their natural and ordinary meaning
- Whether the court should be fettered from believing a piece of evidence as opposed to another contrary evidence on the same issue whether or not there is cross-examination on any of such piece of evidence.
- Will an Appeal Court reverse a finding of fact of a trial court which is supported by evidence and which is not shown to be perverse
Having given careful consideration to the grounds of appeal filed by the appellant in this appeal and to the submissions of learned counsel, both in their briefs of arguments and orally at the hearing, I have come to the conclusion that there are only four main issues for determination in this appeal and they are as follows:-
(1) On the true interpretation of Exhibit 2, which Ruling House’s turn was it to select a candidate for the stool of Oba of Idera town after the demise of Oba Noah Oloruntoba
(2) If it was the turn of the appellant’s Ruling House to do so, was the appellant nominated as a candidate by his family
(3) If he was so nominated as a candidate by his family, was he presented to the kingmakers for installation
(4) Was the 6th respondent validly appointed Oba of Idera in accordance with the terms of Exhibit 2
With regard to the first question, I consider it necessary to set out in full the contents of Exhibit 2. The document reads as follows:-
“DECISION AND PROCEDURE ABOUT ASCENSION TO THE THRONE OF OBA OF IDERA, IDERA-OKEOYAN
- The entire COMMUNITY of Idera-Okeoyan agreed that ascension to the throne of Oba of Idera shall be rotated among the following four groups of families:-
A. Oyan and Olupo;
B. Jaduala, Okeapata and Adesi;
C. Ikota, Obiri, Onire and Edidi;
D. Okela and Ija Osi
II. Ascension to the throne of the Oba in our town shall not be restricted to one particular family at all, no single group of family shall retain the Obaship title for ever, when an Oba dies, another Oba shall be chosen from another group of families.
III. The community reserves the right to reject the nominee of a group of families, if they are not satisfied with the choice; in which case the group of families could present another nominee.
IV. In the event of disagreement within a group of families over who they will nominate for the title of Oba, the heads of the remaining groups of families shall mediate in the matter to settle it as is fit.
V. Nobody shall vie for the title of Oba except within his own group of families.
The following were the signatories to the agreement on behalf of their respective groups of families in Idera-Okeoyan town:-
A. (1) Oyan B.(1) Jaduala
(2) Olupo (2) Oke Apata
(3) Adesi
C. (1) Ikota D.(1) Okela
(2) Obiri (2) Ija-Osi
(3) Onire
(4) Edidi”
Now, the first clause of Exhibit 2 states clearly that ascension to the throne of Oba of Idera “shall be rotated amongst the following four groups of families…” The groups are then named A, B, C and D. It is an elementary rule of construction of documents that in construing Exhibit 2, one is bound to give to the operative word “rotate” used by the parties, its simple and ordinary meaning so as to be able to discover the intentions of the makers of the document. In Ogbunyiya v. Okuda (1979) 6-9 S.C.32, this court stated the rule at p.48 of the report as follows:-
“One of the cardinal rules of construction of written instruments is that the words of a written instrument must in general be taken in their ordinary sense notwithstanding the fact that any such construction may not appear to carry out the purpose which it might otherwise be supposed was intended by the maker or makers of the instrument. The rule is that in construing all written instruments the grammatical and ordinary sense of the words should be adhered to, unless that would lead to some absurdity or some repugnancy or inconsistency with the rest of the instrument; the instrument has to be construed according to its literal import unless again there is something else in the con which shows that such a course would tend to derogate from the exact meaning of the words.”
The verb “rotate” is defined in the Webster’s New Twentieth Dictionary, Unabridged, Second Edition thus:
“(1) to cause to turn round, as a wheel on its axis;
(2) to cause to go in a regular and recurring succession of changes; to cause to take turns’”
Applying the rules of construction enunciated in Okudo’s case (supra) to the case in hand, it is my view that the intention of the makers of Exhibit 2 was that ascension to the throne of Oba Idera should be rotated amongst the four Ruling Houses commencing from group A and moving from that group to the next group which is group B, and from that group to C and D respectively. I therefore agree with the submission of the learned counsel for the appellant, Mr. Ijaodola that ascension to the throne of Oba Idera is rotational.
Now, having held that ascension to the throne as provided in Exbibit 2 is rotational, the next question is:- was it the turn of the appellant’s family to nominate a candidate for the throne after the demise of Oba Noah Oloruntoba
The evidence before the court was that Oba Noah Oloruntoba was the first to ascend the throne under the agreement, Exhibit 2. He was from Oyan and Olupo ruling house which is group ‘A’. Oba Noah Oloruntoba died in September, 1979. On the true interpretation of Exhibit 2, it is my view that after the death of Oba Noah, it was the turn of group B, that is to say the Juduala, Okeapata and Adesi families to nominate a candidate. The appellant is a member of this group.
The next question is whether the appellant was nominated as a candidate by his ruling house. On this point, P.W. 1, Joshua Jolayemi Buraimoh testified that the ruling house of Jaduala, Oke Apata and Adesi met and nominated the appellant as their candidate. There was also before the trial court the testimony of D.W.1 and D.W.2 who were both members of the same ruling house and who swore that the appellant was never nominated a candidate by the ruling house. The learned trial Judge found that the appellant was never nominated as a candidate and his finding was upheld by the Court of Appeal. But a careful perusal of the record shows that the crucial issue of the nomination of the appellant as a candidate by his ruling house was not made an issue by the appellant because it was never pleaded. It is settled law that in civil cases, parties are bound by their pleadings, and that evidence adduced in respect of a matter not pleaded goes to no issue and such evidence should be disregarded. See Ferdinand George v. The United Bank for Africa Ltd. (1972) 8-9 S.C. 264 at page 274 and Usenfowokan v. Idowu (1969) 1 All N.L.R. 125. Since the issue of the nomination of the appellant as a candidate for the stool of Oba of Idera was not pleaded in the statement of claim, the learned trial Judge should not have allowed evidence to be given in respect of the matter. The conclusion I have reached therefore is that the appellant had failed to prove that he was nominated as a candidate for the stool of Oba Idera by the ruling house whose turn it was to nominate a candidate aft or the demise of Oba Noah Oloruntoba.
Was the appellant presented to the kingmakers for installation by the Juduala, Oke Apata and Adesi ruling family
Paragraph 8 of the appellant’s amended statement of claim pleads as follows:-
“8. In October, 1979, the members of Jaduala section presented the plaintiff to the Idera kingmakers for installation as the new Oba of Idera with the consent of the other two sections of Jaduala/Okeapata/Adesi ruling house.”
Now, it is the duty of the plaintiff to call evidence to support his pleadings in so far as there is no admission of the matters alleged by him. In this case, however, there was no iota of evidence proffered by the appellant to prove paragraph 8 of the statement of claim which averred that the appellant was presented to Idera kingmakers by his ruling house for installation.
The appellant as plaintiff in the trial court claimed six reliefs altogether, and I will now proceed to examine those reliefs in the light of the conclusion I have reached in this judgment.
The first relief praying the court to declare him the rightful Oba of Idera must be refused because, although it was the turn of his family to nominate a candidate for the stool of Oba Idera after the demise of Oba Noah Oloruntoba, there is no evidence that he was so nominated by his family. Not having been nominated as a candidate, he is not entitled to the third relief seeking an order of the court mandating the kingmakers to install him as the Oba of Idera.
The appellant’s second and fourth prayers are closely related and they are as follows:-
“(ii) a declaration that the 1st – 5th defendants who are the Idera kingmakers cannot install the 6th defendant who is a member of Ikota ruling house as the Oba as now being threatened as doing so will be in breach of the aforesaid annexure I, …
(iv) a perpetual injunction prohibiting the 6th defendant from performing the functions of the Oba of Idera and from enjoying the perquisites of the said office.”
The evidence before the court, which is uncontradicted is that the 6th defendant/respondent is a member of the Ikota ruling house which is group ‘C’. As I have held earlier in this judgment, it was the turn of the appellant’s ruling house group B to nominate a candidate after the death of Oba Noah Oloruntoba and not that of the 6th defendant. That being so, it would certainly be in breach of the terms of Exhibit 2 for the kingmakers to install the 6th respondent as the Oba. In the circumstances, I think that the appellant is entitled to the second prayer – namely that the 1st – 5th respondents who are the kingmakers cannot install the 6th respondent as the Oba of Idera, and it is so declared.
With regard to the fourth relief seeking a perpetual injunction prohibiting the 6th respondent from performing the functions of the Oba of Idera, the evidence before the trial court was that the 6th respondent had been appointed the Oba of Idera. In this regard, D.W.1 in his evidence said:-
“As of today, we have an Oba (Chief) he is the Peter Akadi from Ikota family in group C. There has never been an Oba from group C to the best of my knowledge. I know that the kingmakers have accepted and made Akadi an Oba. There was no Oba from 1955 – 1965.”
The fact that the 6th respondent had been appointed the Oba of Idera was also confirmed by D.W.2 in his evidence. Now in view of the conclusion I have reached earlier on in this judgment relating to the interpretation of Exhibit 2, could the appointment and installation of the 6th respondent have been validly made by the kingmakers My answer is firmly in the negative. That being the case, I think the 6th respondent must be restrained by perpetual injunction from performing the functions of the Oba of Idera and from enjoying the perquisites of the said office. The fifth and sixth reliefs have not been made out and they are accordingly refused.
The appeal therefore partially succeeds with regard to reliefs 2 and 4 and it is accordingly allowed. I consider that this is an appeal in which each side should bear its costs and this shall be the order of the court.
Other Citation: (1990) LCN/2436(SC)
