Chief Rasaki Kolawole Sodipo & Ors. V. Mr. Ayinla Shadeko Ogidan & Ors. (2007)
LawGlobal-Hub Lead Judgment Report
CLARA BATA OGUNBIYI, J.C.A.
Both parties are hereby agreed on the introduction and the statements of facts which are as follows:
The case was commenced in the High Court of Lagos State by a Writ of Summons and Statement of Claim. The originating processes were subsequently amended. The Respondents filed Statement of Defence and a Counter-Claim which were also amended.
In the Amended Writ of Summons and Statement of Claim, the Plaintiffs/Appellants claimed for the following reliefs against the 1st and 2nd Defendants/Respondents:- (1) An Order of forfeiture of the 1st Defendant/Respondent’s rights and privileges as customary tenants over those parcels of land shown in plan No. LSE.D228/83 prepared by one M. O Diya, a licensed surveyor, which land is situate and lying at Agbele near Ikorodu, along the Chief Obafemi Awolowo Road (Old Agbowa Road) Ikorodu Local Government of Lagos State. (2) A declaration that the purported alienation of some of the parcels of land shown in the said plan No. LSE.D.228/83 by the 1st Defendant to the 2nd Defendant among others is null and void and of no effect whatsoever. (3) An Order of Court restraining the Defendants from henceforth trespassing on the Plaintiffs’ land particularly all that land shown in the plan No. LSE.D.228/83. (See page 2 of the Records).
After the service of the originating processes on the 1st and 2nd Defendants/Respondents who were the original Defendants in the suit, Mr. S. K. Dada Keyo and Mr. Babajinmi Enigbokan applied to be joined as co-defendants. The Co-defendants were allowed to be joined because the Plaintiffs/ Appellants admitted that they are also members of Regun Family. After the death of S. K. Dada Keyo, his brother Mr. Kameel A. Dada was substituted as the 3rd Defendant.
In the 1st Defendant’s Amended Statement of Defence and Counter Claim, the Defendant denied that the tenancy is liable for forfeiture, claimed relief from forfeiture, claimed damages for trespass against the Plaintiffs and also claimed for an order of injunction against the plaintiffs. (See pages 6-8 of the Records)
In his Statement of Defence, the 2nd Defendant admitted that one Amusa Ogidan gave him part of the land to use on the claim that it belongs to him i.e. Amusa Ogidan (See pages 10-11 of the Records, particularly paragraph 8 of the Defence).
The 3rd and 4th Defendants filed a Statement of Defence and a Counter-Claim. In it, they denied that the Plaintiffs are head and principal members of Regun Family. The 3rd Defendant claimed that, he is the head of Regun Family and the Chief Regun of Ikorodu. (See pages 12-16 of the Records).
The Plaintiffs filed a defence to the 3rd and 4th Defendant’s Counter Claim (See pages 17-19 of the Records).
The summary of the facts of the case are that the Plaintiffs claimed to be the Head and Principal members of Regun family, the 1st Plaintiff also claimed to be the Chief Regun of Ikorodu. They sued the 1st and 2nd
Defendants for forfeiture of the customary tenancy of the 1st Defendant on the land in dispute. As expected, the 1st Defendant denied alienating the land to third, parties and also claimed that the Plaintiffs are trespassing on the land. On being joined as parties to the suit the 3rd and 4th Defendants brought a new dimension into the it when they denied the 1st and 3rd Plaintiffs’ claim as head and principal members of Regun Family and therefore introduced the issues of headship of the family and the chieftaincy title of Chief Regun of Ikorodu into the matter.
The case went to trial. The Plaintiffs (hereinafter referred to as the Appellants) called two witnesses and tendered nine exhibits. The Defendants (hereinafter referred to as the Respondents) called three witnesses and tendered two exhibits. After the close of the case, the learned trial judge ordered that written addresses should be filed. In a considered judgment, the learned trial judge dismissed the case of the Appellants and the Counter-claim of the 1st Respondent and entered judgment for the 3rd and 4th Respondents on some of their reliefs in their Counter-Claim and dismissed their Counter-claim to declare portions of the land already sold by the Appellants as null and void. Their Counter-Claim for N1,774,000 being rent collected by the Appellants on the family house and shops was also dismissed on the ground of laches and acquiescence.
Being dissatisfied with the judgment of the learned trial judge, the Appellants filed a Notice of Appeal dated the 31st day of May 2002. The said Notice of Appeal was subsequently amended by leave of this court dated the 23rd day of October 2003. The said amendment only substituted the name of Mr. Kameel A. Dada with that of Mr. S. K. Dada Keyo the former 3rd defendant.
In accordance with the rules of court, briefs were exchanged between parties. While the appellants’ brief dated 23rd and filed 24th December, 2003 was deemed filed and served on the 18th November 2004, the respondents’ brief which was dated 1sth June, 2005 and filed the same day was also deemed filed and served on the 28th September, 2005. The appellants reply brief was also dated and filed on the 7th July, 2005.
I would wish to point out however that the appellants’ reply brief was filed before the respondents’ brief of argument. Same cannot therefore be a response to, in anticipation of that which was not in existence. Regard cannot in the circumstance be had to the reply brief.
On the 1st February, 2007 when the appeal came up for hearing, the learned counsel Mrs. H. A. Balogun, a life bencher, and Mr. Kemi Pinheiro represented the appellants and the respondents respectively.
In her submission before us, Mrs. Balogun of counsel adopted the appellants brief and also the reply brief reference supra. Counsel further applied to abandon issue no.4 while retaining the 1st to 3rd issues for the determination of this appeal. The said issue 4 was accordingly struck out. In relating the three issues to the fifteen grounds of appeal issue no. I was said to have been derived from grounds 1-5 of the grounds of appeal; issue 2 from grounds 6-13 and 15 while issue 3 was from ground 14.
The learned appellants’ counsel emphatically argued that the judgment of court ought to have been in favour of the appellants and not the respondents. This court was therefore urged to uphold the appeal, set aside the decision of the lower court and enter judgment for the appellants as per their amended statement of claim dated 22 September, 1998.
The learned respondents’ counsel Mr. Pinheiro in his submission drew our attention to the effect that the appellants did not claim at the lower court that the 1st appellant was the head of the family even if the 3rd respondent was not. That there can be no relief in the absence of such a claim. That there is nowhere: that the appellants pleaded laches and acquiescence. Learned counsel abandoned the respondents’ issue no. 4 which was accordingly struck out. He finally urged for the affirmation of the lower court’s judgment and the dismissal therefore of the appeal.
The parties each formulated and sustained three issues with those of the appellants, which reproduced state as follows:-
(1) Whether the Plaintiffs/Appellants had established by evidence, acts of alienation of the land and challenge of the Regun family’s right of ownership on the land in dispute to warrant an order for forfeiture of the customary tenancy of the Ogidan family.
(2) Who between the 1st Appellant and the 3rd Respondent is the head of Regun family and Chief Regun of Ikorodu.
(3) Whether in law and in view of the facts of this case, the defence of laches and acquiescence could be selectively applied to some of the reliefs in the 3rd and 4th Respondents’ Counter-Claim given the fact that the reliefs were based on and arose from the same facts.
The reproduction of the respondents’ issues are also as follows:-
(1) Whether the dismissal of the Appellants’ Claim for the forfeiture of the 1st Respondent’s customary tenancy in respect of the land in dispute, by the lower court, ought to be sustained.
(2) Whether the lower court was right when it declared the 3rd Respondent to be the head of Regun family and the Chief Regun of Ikorodu.
(3) Whether the defence of laches and acquiescence were available to the Appellants, and if so, whether the Lower Court was right to still have gone ahead, despite same, to direct that the Appellants hand over the unsold portions of the subject matter of the case to the 3rd Respondent, for and on behalf of Regun family.
From the issues formulated by both parties, the three are not so different but are all closely related. I see it rather expedient to therefore adopt those of the respondents which are more appropriate and relating directly to the case at hand. I would also wish to first take and determine issue two while one and three are to rank second and third respectively.
The 2nd issue therefore poses a question: whether the lower court was right when it declared the 3rd Respondent to be the head of Regun family and the Chief Regun of Ikorodu.
As a starting point to the determination of this issue, it would be of significance to relate clearly the positions and status of the parties as spelt out at the onset of the plaintiffs’ claim at the lower court wherein paragraphs 1, 2, 2b, 3 and 4b at page 3 of the record are of relevance and state as follows:-
(1) The 1st plaintiff is the head of the Regun family of Ikorodu (the Regun family being the descendants of the Ten (10) children of one Regun who settled in Ikorodu, some four hundred years ago having as their family house the Eleku Place, Eleku Street, Ikorodu.
The 1st plaintiff shall rely on all the documents wherein his name is written as head of Regun Family particularly those signed by Mr. Samuel Kotoye Dada.
(2) The 2nd and 3rd plaintiffs are Principal Members of the Regun Family of Ikorodu. The plaintiffs shall rely on all the documents of Regun family wherein their names are indicated as Principal Members of the family.
(2b) The 3rd and 4th Defendants are members of Regun family.
(3) The 1st Defendants are the children grand children and other descendants of one Awo Ogidan, who sired the 1st Defendant.
……….
(4b) The 2nd Defendant, a resident of Ikorodu Town, allegedly bought a parcel of land, from the 1st Defendant from the land occupied by the 1st Defendant as customary tenants of the plaintiffs.
From the nature and the status of contending parties it is obvious that while the three plaintiffs acted “(for themselves and on behalf of the Regun family of Ikorodu)” the 1st defendant acted “(for himself and on behalf of the members of the Ogidan family).” Two previous judgments closely relating to the present appeal are exhibits 2 and 3. In otherwords, by Suit No. IK/223/65, exhibit 2 under ref, one Sode a descendant of Regun granted a portion of the land in dispute to one Awo Ogidan to farm subject to payment of an annual rent of ?5 to the family. Awo Ogidan begat Amusa the defendant and one Sadeko now (deceased). Since the death of Awo Ogidan his children had refused to pay the annual rent of ?5 and persistently challenged the title of the Regun family to the land vide a previous Suit No. IK/187/63 admitted as exhibit 3. It was decided that the defendant and his family are not members of the Regun family. The judgment which was upheld on appeal by the Supreme Court in suit No. SC/58/67.
The defendant in the suit IK/223/65 did not claim title of his over lord, the plaintiff, but only claiming to be a member of his family. The plaintiffs in that case succeeded only to the extent of their claims for a declaration of title but failed in all other claims.
It is relevant to restate that the court in the earlier decision of IK/187/63 held that the Ogidan family had no right or title to the land acquired. This was on an application brought by the Minister of Lagos Affairs under the Public Lands Acquisition Ordinance Cap.167 Laws of the Federation of Nigeria in respect of a piece of land at Ikorodu acquired by the Federal Government for Telecommunication Development, for the purpose of determining the person or persons entitled to compensation payable in respect of the said acquisition. The Regun family and Ogidan family were in that case the first and second claimants respectively. The court further held the absence of any such thing as:- “family membership by prescription.” In otherwords that in the Yoruba native law and custom, possession however long, cannot ripen into ownership, as title by prescription.
The Ogidan family not being a branch or descendant of Regun family, was held to have no right or title to the land acquired.
The relevant and apt question to pose at this juncture is whether the plaintiffs are indeed members of the Regun family; the significance of which would serve the platform upon which the action subsists. In the absence of membership or belonging, there can be no authority.
On the one hand the appellants on their pleadings held out the 1st appellant as the head of the Regun family, with 2nd and 3rd appellants being principal members of the family. On the other hand however the 3rd and 4th respondents while anchoring on the 3rd respondent as being their head, went further and levied acts of unwarranted and unbecoming behaviours against the appellants.
Submitting on the said issue, the learned appellants’ counsel recapitulated the evidence adduced by the witnesses on both sides on the claim to headship of the family and on the headship as Chief Regun. Counsel made particular references to the evidence of Chief Rasaki Kolawole Shodipo the 1st appellant as PW1 and not DW1 as wrongly stated by the counsel on their brief of argument; the evidence of PW2, Saula Adio Oyenuga/2nd appellant; DW3, Kameel Dada/3rd respondent and DW4, Rotimi Olusegun Dada Keyo were also made points of reference. Learned counsel assiduously sought leverage under the cross-examination of DW1 wherein he testified that Amusa Ashaye Shodipo (1st Appellants’ father) and Karimu Ojikutu (2nd plaintiff and witness in exhibit 2) are brothers of the same father and mother. That the witness also admitted reading in exhibit 2 that Dada and Ojikutu are members of the same family. Exhibits 2 and 3 being previous judgments relating to the land in dispute were central focus of reliance by the learned counsel.
That the evidence of Regun family in exhibit 3 revealed that Regun had 10 children one of whom was Osoojukan. That in paragraph 5 at page 13 of the same exhibit 3 Karimu Ojukutu was stated to be of Osoojukan branch and gave evidence in the case as a descendant of Regun. Further still that on page one of exhibit 2, the averments of the Regun family was quoted to have pleaded that Regun had 10 children and that the plaintiffs therein are the surviving descendants of the ten children of Regun. That DW1 and DW2 admitted both exhibits 2 and 3 as cases prosecuted by the Regun family. DW2 was submitted to have expressly admitted under cross-examination that Karimu Ojikutu (2nd plaintiff in exhibit 2 and also witness in exhibit 3) was blood brother of Amusa Shodipo, the 1st Appellant’s father. Learned counsel while connecting the nexus, wondered if there would be a better evidence to establish 1st appellant’s membership of Regun family than the fact that his father, Amusa was a brother to Karimu Ojikutu (a plaintiff in exhibit 2 and a witness in exhibit 3). A further related question posed was whether the fact that Karimu Ojikutu (from Osoojukan branch) being the blood brother of Amusa Ashaye Shodipo, the father of the 1st Appellant did not connect the 1st Appellant to Osoojukan and Ipso facto to Regun family. Several other related questions were raised by the appellants in their attempt to portray that the learned trial judge was either not in full grasp of the evidence in the case or that he was deliberate in discrediting the case of the appellants.
That the two exhibits 2 and 3, C.T.C of previous two judgments, were not tendered as judicial authorities but as documentary evidence in the case. Counsel argued that the question of the bindingness of the judgments in exhibits 2 and 3 do not therefore arise. That the learned trial judge did not only stop in his attempt to discredit the evidence of the appellants’ witnesses but went further to build a case for the defence where there was non.
Learned counsel re-iterated the duty of a judge which is to decide cases based on the evidence adduced by the parties. That it is also trite and erroneous for a judge to raise a point of law and give decision thereon without calling on counsel to address him on it.
Submitting on the headship of Regun family and Chief Regun, learned counsel re-iterated the existence of a consensus by the appellants and the respondents’ that the head of Regun family becomes Chief Regun. That it is also correct that anyone who was Olumale Eluku and head of Regun family is also the Regun of Ikorodu. That there is consensus between the Appellants and the Respondents that appointment as the head of Regun family and Chief Regun is made by the family. In other words that the appointment by the family is a condition precedent to make a member of the family as the head of the family and Chief Regun. Reference were made to the evidence of PW1 and DW1 to substantiate same. That ipse dixit evidence of his appointment will not suffice in cases where both sides gave evidence on a contested fact in issue. Reference was made to the case of Debs v Chieco (1986) 2 NSCC page 837 at 843 on ipse dixit evidence which is a mare assertion resting on the authority of an individual. Learned counsel urged us to hold that the evidence of the appointment of 3rd respondent as the head of Regun family which could be produced but was not would if produced be unfavourable to the said respondents and thus calling for the invocation of section 149(d) of the Evidence Act.
Continued reference and reliance was tenaciously made to exhibit 6, being a letter of appointment of the 1st appellant as the Olumale Eluku and Chief Regun and exhibit 7 also a letter of identification of members of the Committee of Regun family while exhibit 11 is a letter written by the 3rd respondent to members of the committee. Further reference was also made to exhibit 6 wherein learned counsel submitted the performance of all rites relating to the Chieftaincy having been fulfilled. That the name of the 1st Appellant was described in exhibit 7, a letter of identification of members of the all purpose working committee of Regun family, as the head of the family and Olumale Eluku Ikorodu. That exhibit 11 was addressed by the 3rd respondent to all purposes working committee, Regun family c/o Eluku Palace, Itunpate Ikorodu.
Learned counsel posed a question whether if the 1st appellant is only the Onimale Eluku and not a member of Regun family or the head of the Regun family, whether he would have been requested to accede to the 3rd respondents’ request to allocate Regun family land to them? That in exhibit 7 the 1st appellant was described as the head of the family and the Olumale Eluku Ikorodu. That the 3rd respondent having written exhibit 11 to members of the committee must by implication be taken to have admitted them to be principal members of Regun family. Further still that it is the customary law on land matters that the head and principal members of the family are those that are entitled to alienate the family land. Cited in support was the case of Akapo v Hakeem-Habeeb (1992) 6 NWLR (Pt.247) 266 at 292-293 a Supreme Court decision; another related authority was the case of Balogun v Balogun (1935) 2 WACA 290. That the failure of the learned trial Judge to consider exhibits 7 and 11 was purposeful and deliberate.
That if the court adopt the imaginary scale of justice and to put the evidence on both sides thereon, the evidence adduced by the appellants would be more credible and weighty. The learned counsel made a call to review the facts by the lower court which he submitted are perverse and against the weight of evidence. That the court can also exercise its right of review of the facts because they are not based on the demeanor of the witnesses but on documentary evidence. Learned counsel cited in support the case of Dikwa v Modu (1993) 3 NWLR Part 280 p.170 at 185.
Furthermore and that in the absence of first revoking the appointment of the 1st appellant by the family to pave way for appointment of another person, the installation of the 3rd respondent would be an exercise in futility without evidence of his appointment by the family. Learned counsel in the circumstance urged us to hold that the 3rd respondent is not the head of the Regun family and the Chief Regun, rather that the 1st Appellant is the head of Regun family and therefore the appointed Chief Regun.
In response to the said 2nd issue raised, the respondents’ counsel submitted the onus laid on the appellants to show that the trial judge arrived at a wrong conclusion in holding out the 3rd respondent as the head of the Regun family, and Chief Regun of Ikorodu. The learned respondents’ counsel in discrediting the submission by appellants’ counsel, took great pains to highlight those vital pieces of evidence left out by the appellants’ counsel especially the evidence of PW2 (as 2nd appellant) the 3rd respondent (as DW1) and also DW2 which counsel said corroborated that of DW1. That the pieces of evidence put together greatly operate to contradict that submitted on the appellants’ brief of argument. Reference was made to the counter-claim by the 3rd and 4th respondents at paragraphs 26 and 27 of their 2nd further amended statement of defence as the 3rd and 4th defendants at the lower court which learned counsel argued was neither controverted by the appellants nor did they controvert the pieces of evidence proferred by the 3rd respondent. That the totality of the foregoing evidence was cogent, reasonable and compelling enough to be the basis of the lower court’s decision in declaring the 3rd respondent as the head and Chief Regun of Ikorodu. Section 75 of the Evidence Act was cited to buttress the submission.
That with further reference made to paragraphs 19, 20, 24 and 25 of the 2nd Further Amended Statement of Defence and counter-claim of 3rd and 4th respondents, same are also to the effect that the 1st appellant was not a member of the Regun family and therefore not head or chief Regun. That there was no response by the 1st appellant contradicting the said averment, or even linking him with the Regun family by blood in their further amended statement of defence to the defendants counter claim. Counsel therefore reiterated the 1st appellant’s failure to place facts before the lower court to show that he was a member of any branch of Regun family, talk less of being the head or Chief Regun. That it is trite law that a plaintiff’s averments of facts must be met frontally and categorically. See Owosho v Dada (1984) 7 SC 149.
Furthermore, that the appellants reliance on the evidence given in Exhibits 2 and 3 to show that the 1st appellant actually belonged to a branch of Regun family cannot also avail them. This he argued because it only serves the purpose of discrediting such a witness in cross-examination. Relevant in support are the cases of Alakija v Abdulai (1998) 6 NWLR (Pt.552) 1 at 19; Ogunnaike v Ojayemi (1987) 3 SC 213. That the assertion that the lower court only relied on the ipse dixit evidence of the 1st respondent to hold: that he had proved that he was actually appointed by the family is improper (It should be the 3rd and not 1st respondent).
That the failure to controvert the evidence of 3rd respondent’s appointment by the family of Regun presupposes that since the issuance of Exhibit “10” is an official act which was shown to have been done in a manner which is substantially regular, it is presumed that the formal prerequisite for the validity of Exhibit “10” were complied with. Relevant in substantiation are the cases of:- Ibrahim v Bade (1996) 9 NWLR (Pt.474) 513, 586 (C-D) SC; Kindley v Military Governor of Gongola (1988) 1 NWLR (Pt.77) 445 SC; Ogbuanyinya v Okudo (No.2) (1990) 4 NWLR (Pt.146) 551, 570.
Counsel further urged the court to discontinuance the authority of Debs v Chieco cited by the appellants supra as being inappropriate. That reliance also on the provision of Section 149(d) of the Evidence Act was misplaced, since the section only deals with non-production of evidence where there is a duty on the party to provide such evidence.
That in the appellants’ pleading in their further statement of defence to 3rd and 4th defendants counter claim under special defence paragraph 1, the appellants’ pleaded that the 1st appellant has been acting as the Olumale of Eluku and the Head of Regun family since 1983. That the said exhibit 6 and the appellants statement of defence to the 3rd and 4th defendants’ 2nd further statement of defence to the counter claim must be preferred and relied upon over and above the oral evidence by the 1st appellant, that he was appointed as both Olumale Eluku and Chief Regun.
Learned counsel also made reference to exhibit 7 sought to be relied upon by the appellant which he argued is alien to the appellant but relates to one Chief Wole Shodipo. That the document exhibit 7 is at variance with the appellants statement of defence to counter-claim under their special defence paragraph 1. That the document was meant to introduce members of the committee, not to show that the 1st appellant was appointed as head of the family. That the exhibit on its own could therefore not have proved the issue of whether or not the 1st appellant was appointed head of the family.
On exhibit 11 Counsel further argued that the respondents have been consistent in their pleadings and evidence in asserting that the 1st appellant even though a non-member of their family was however appointed Olumale Eluku by the family which served a confirmation that non-members of Regun family had held the post of Olumale Eluku, in the past. That exhibits 7 and 11 are not enough to prove that the 1st appellant was a blood relation of the Regun family. That sufficient pieces of evidence abound on record to support the lower court’s findings and which were enough to sustain the decision, even if this court per adventure finds that the omission by the lower court amounted to an error in law.
Furthermore and of great significance learned counsel argued the absence of any claim in the appellant’s writ of summons or amended statement of claim upon which this court can make such an order or finding that the 1st appellant is the head of Regun family and the Chief Regun. That in the absence of the relief being within the lower court’s jurisdiction therefore, same cannot also be made the subject of this court. In otherwords, that the appellant cannot be given what they did not ask for. Learned counsel in further expatiation submitted and argued that even if this court decides to set aside the lower court’s decision to the effect that the 3rd respondent is the head of Regun family and Chief Regun, the 1st appellant cannot be held out to be the head or Chief Regun because they have no such relief in their amended statement of claim or writ of summons. The learned counsel urged us in the circumstance to resolve this issue by an answer in the affirmative and to dismiss the grounds from which the issue have been distilled.
The said issue No.2 relates to the headship of the Regun family and therefore the Chief Regun of Ikorodu. While the appellants argued the position in favour of the 1st appellant, the respondents have consistently submitted the 3rd respondent as their candidate. The appellants were the plaintiffs at the lower court. It is therefore significant and necessary to reproduce paragraph 16 of their claim at pages 4 and 5 of the record which were as follows:-
“16. Whereof the plaintiffs claim against:
(i) The 1st Defendant an order of forfeiture of their rights and privileges as customary tenants over those parcels of land shown in Plan NO.LS/E.D.228/83 prepared by one M. O. Diya a licensed surveyor, which land is situate and lying at Agbele near Ikorodu along the Chief Obafemi Awolowo Road, (Old Agbowa Road) Ikorodu Local Government of Lagos State.
(ii) A Declaration that the purported alienation of some of the parcels of land shown in the said Plan NO.LS/E.D.288/83 by the 1st Defendant to the 2nd Defendant amongst others, is null and void and of no effect whatsoever.
(iii) An order of court restraining the 1st and 2nd Defendants from henceforth trespassing on the plaintiffs land particularly all that land shown in the said plan NO.LD/E.D.228/83.”
The 3rd and 4th Defendants are the 3rd and 4th respondents in this appeal. Their further amended statement of defence and counter-claim at the lower court vide paragraph 32 at pages 15 and 16 of the record of appeal sought the following reliefs against the plaintiffs:-
“32. The Defendants claim against the Plaintiffs as follows:-
(a) A Declaration that the 3rd Defendant is the Head of Regun family and also the Chief Regun of Ikorodu.
(b) A Declaration that the 1st and 3rd Plaintiffs are not related by blood or by whatever means to Regun family of Ikorodu.
(c) A Declaration that the Plaintiffs have no locus standi to institute this action against the 1st Defendant in that they are neither members of Regun family nor were they appointed by the family to institute this action on their behalf.
(d) A Declaration that all that piece or parcel of land already sold assigned and/or alienated by the plaintiffs since they took illegal control of the affairs of the land in dispute is null and void and of no effect.
(e) An order directing the plaintiffs to pay to the defendants the sum of N1,774,000.00 being rents collected by the plaintiffs in respect of 12 rooms and 7 shops from the family house at Eleku from 1985 to year 2001.
(f) An order mandating the plaintiffs to make a full list of all the lands they have sold and the land they have allocated to members of the family and to render an up to date account of all the moneys they have received from such sales.
(g) Perpetual injunction restraining the plaintiffs whether by themselves, servants agents and/or privies from further acts of trespass on the land in dispute and from selling alienating and/or assigning the remaining portion of land In dispute.”
In response to the counter claim the plaintiffs generally traversed and denied paragraphs 16, 17, 18, 19 and 20 of the 3rd and 4th defendants amended statement of defence vide paragraph 1 of their Further Amended Statement of Defence to the 3rd and 4th Defendants counter claim: specifically and at paragraph 14 at page 19 of the record, the plaintiff averred and said:-
“14. Whereupon the plaintiffs contend that the 3rd and 4th Defendants counter-claim is speculative, gold digging and ought to be dismissed with costs.”
It is evident having regard to the appellants prayers that same is greatly at divergence to the said issue No.2 which questions the headship of Regun family and Chief Regun of Ikorodu. It is this issue that forms the thrust of the appellants’ appeal. It is more inchanting that even in the face of the counter claim by the 3rd and 4th respondents and wherein their claim also centred on the headship and Chief Regun thereof, the appellants did not see it necessary to have joined issues thereon.
As rightly submitted and argued by the learned respondents’ counsel, on their brief of argument, there was no claim in either the appellants’ writ of summons or amended statement of claim upon which this court can make such an order or finding that the 1st appellant is the head of Regun family and the Chief Regun.
In the Court of Appeal decision of Akanni v Odejide (2004) 9 NWLR (Pt.879) 575 at 606 their Lordships per Ibiyeye JCA held and said:-
“It is settled law that parties are bound by their pleadings and cannot deviate from them. It is the case they present on the basis of their pleadings that must be considered by the court. To allow a party adduce evidence contrary to his pleadings is to allow a party to make a different case at the trial from what he set out to prove. The court which is also bound by the pleadings before it is duty bound to disregard such extraneous evidence for not belonging to the issue raised. See Odofin v Ayoola (1984) 11 SC 72; Mogaji v Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt.7) 393; Emegokwe v Okadigbo (1973) 1 All NLR (Pt.1) 379, (1973) 4 SC 113 and Summit Finance Co. Ltd. v Iron Baba & Sons Ltd. (2003) 17 NWLR (Pt.848) 89 at 112.”
In the absence of such claim, the lower court would certainly be overstepping its bounds of jurisdiction to have made such an order. It is a very elementary principle of law that a party cannot be given that which has not been asked for. That would not have been within the court’s jurisdiction. In the authority of Olosunde v Oladele (1991) 4 NWLR (pt. 188) 731 it was held by this court at page 731 that:-
“A court has no power to grant a relief which has not been sough by the plaintiff or the parties, as the case may be. See Okugbule v Oyagbola (1990) 4 NWLR (PT. 147) 723.”
Also in Balogun v E.O.C.B. (Nig) Ltd. (2007) 5 NWLR (pt. 1028) 584 it was held that
“a court cannot award to a claimant what he did not claim and or prove. Ajayi v Texaco (1987) 3 NWLR (pt 62) 577; Owena Bank v Nigerian Stock Exchange (1997) 8 NWLR (Pt. 515) 1.”
Furthermore and with due reference to exhibits 2 and 3 it has been restated earlier in this judgment that the two earlier decisions have declared the property in question as that belonging to the Regun family. The said exhibits are strenuously relied upon by the appellants as supporting their case. Proof of membership of Regun family is therefore very significant, uncompromising and paramount to being the head and Chief Regun of Ikorodu. This of course is a matter of evidence and which the appellants have the onus to show that the declaration made by the lower court in favour of the 3rd respondent was perverse and therefore be set aside. Both parties heavily relied on the evidence adduced in proof of the claim in particular the appellants fervent reliance on the testimonies of 1st appellant, Chief Rasaki Sodipo, as PW1 both in Chief and under cross-examination; 2nd appellant Suala Adio Oyenuga as PW2; 3rd respondent Kameel Dada as DW1 and Rotimi Olusegun Dada Kayo as DW2 as well as to the various specific exhibits 6, 7 and 11.
It is clear on the record of appeal before us that the 3rd respondent did plead his appointment as the head of Regun family and his installation by the Oba of Ikorodu as the head and Chief Regun at paragraphs 26 and 27 of the 2nd further amended statement of defence and counter-claim of the 3rd and 4th respondents. This is evidenced at page 15 of the record of appeal and same which was vividly culminated into the counter claiming at paragraph 32 of the various reliefs sought for by the respondents. The 1st of such relief at sub paragraph (a) has been well restated earlier supra and wherein the 3rd respondent as 3rd defendant sought a declaration as the head of Regun family and also the Chief Regun of Ikorodu. Evidence in substantiation and support of this claim was testified to by the 3rd respondent in proof at page 39 at lines 29 – 34 of the record. Exhibit 10 was also tendered and admitted as certificate in proof of the appointment.
With specific reference to the plaintiffs/appellants response to the further amended statement of Defence of 3rd and 4th Defendants and counterclaim of the respondents, at pages 17-19 there is no indication that the appellants did controvert the averments by the 3rd and 4th Defendants counter-claim on their pleadings whatsoever. It is no wonder that the appellants rightly did not see it necessary to controvert the pieces of evidence given by the 3rd respondent which would have gone to no effect in the absence of any material facts pleaded as a foundation. By the provision of section 75 of the Evidence Act, it is trite that what is admitted needed not be proved. The non controvertion therefore amounted to an admission.
As rightly submitted and also argued by the learned respondents counsel, on the cumulative effects of paragraphs 19, 20, 24 and 25 of the further amended statement of defence and counter claim of the 3rd and 4th respondents at pages 14 and 15 of the record, the response by the appellants vide their paragraphs 8 and 8(a) at pages 17 and 18 of the record did not serve adequate reply. In otherwords, the respondents averred the non family membership of the 1st appellant to the Regun family and therefore not head of or Chief Regun. Furthermore that the 1st appellant only became Onimale Eluku by accident since the post was previously given to aliens outside the Regun family. Headship and Chief Regun are exclusively reserved, in the Regun family members. The failure of the appellants’ pleadings in linking the 1st appellant with the Regun family by blood therefore amounted to an admission of the respondents’ averments of their claim and counter claim.
Further still and at page 20 of the record, the 1st appellant testified that he was from Oso Ojukan branch of Regun family. The said fact is very material to the appellants’ claim and which ought to be pleaded, the absence which no evidence can be given thereon. Neither the appellants’ pleadings at pages 3 – 5 nor their defence to the counter claim at pages 17-19 averred to this very material fact. The law is trite that evidence led on facts not pleaded goes to no issue. There was therefore no facts placed by the 1st appellant before the lower court to show that he was a member of any branch of Regun family. It is obvious that membership of the Regun family serves the first prerogative to being the head or Chief Regun. Membership serves the foundation. The evidence given on the absence of such facts are therefore expunged.
Paragraph 19(a)-(f) of the further amended statement of defence of 3rd and 4th Defendants and Counter Claim at page 14 of the record is also relevant wherein the parent and background of the 1st appellant were vividly traced. He originated from Isele quarters of Ikorodu up to what led to his appointment as Olumale Eluku. The absence of an effective response to the said respondents’ averments amounted to an admission. In the case of Owosho v Dada (1984) 7 SC 149, their Lordships of the apex court at pages 163 – 164 had the following to say:-
” …a plaintiff need not proceed to prove an admitted fact. And a fact is deemed to be admitted if it is neither specifically denied nor denied by implication, having regard to other facts averred in the pleadings. A plaintiffs’ averments of facts must be met by the defendant frontally and categorically. The rules of pleadings do not allow a defendant to be hedgy or evasive in his answers to the facts averred by the plaintiff. Once he refuses to meet the facts directly – either by admitting or by denying them, except, of course, where he is not in a position to admit or deny by reason of the matter, for example, being peculiarly within the knowledge of the plaintiff – he is taken to have admitted them.”
Deducing from the foregoing authority, it is expected of the appellants to have properly traversed the averments on the respondents claim by a denial or non-admission either expressly or by necessary implication. Refusal to admit a particular allegation in a statement of claim must be stated specifically; the absence which amounted to an admission.
The appellants in their exasperation again sought reliance on the evidence given in previous cases vide exhibits 2 and 3 to show that the 1st appellant actually belonged to a branch of Regun family. With reference to the decision in the case of Alakija v Abdulai (1998) 6 NWLR (Pt.552) 1 at page 19 Onu JSC had the following to say:-
“The general principle of law is that evidence of a witness taken in earlier proceedings is not relevant in a later trial, except for the purpose of discrediting such a witness in cross-examination and for that purpose only.”
The said principle of law was evidently arrived at by their Lordships in their earlier decision in the case of Ogunnaike v Ojayemi (1987) 3 SC 213.
As right submitted by the learned respondents’ counsel therefore, the effect of the evidence in the previous decisions does not avail the appellants. In other words it is not open to the appellants to use the evidence in the previous two judgments exhibits 2 and 3 as evidence at the lower court for the purpose’ of establishing that the 1st appellant was blood member of Regun family.
In the absence of a clear cut claim by the appellants and with respondents counter claiming, it is evident therefore that contrary to the submission made by the appellants’ counsel, the evidence relating to 3rd respondent’s headship and Chief Regun is not a mere ipse dixit.
In otherwords the reference made to the Supreme Court decision of Debs v Chisco supra does not apply but irrelevant to the case at hand.
In the absence of any controversy it is now too late in the day that the appellants should make the headship and Chief Regun an issue. The effect of this is to also place the document exhibit 10 under the provision of section 150(1) of the Evidence Act, wherein a presumption of regularity is raised. In otherwords, and as rightly submitted by the learned respondents’ counsel, the presumption is that with an issuance of Exhibit 10 being an Official act which same was shown to have been done in a manner which is substantially regular, it is therefore presumed that the formal pre-requisites for the validity of the said Exhibit were duly complied with. Exhibit 10 is the certificate issued to the 3rd respondent by the Oba of Ikorodu being a document evidencing the appointment of the 3rd respondent as head of family and Chief Regun.
Relevant authorities supporting the presumption of exhibit 10 are:- Ibrahim v Barde (1996) 9 NWLR (Pt.474) 513, 586; Kindley v Military Government of Gongola (1988) 1 NWLR (Pt.77) 445 and Ogbuanyinya v Okudo (No.2) (1990) 4 NWLR (Pt.146) 551, 570.
The onus is therefore placed on the appellants upon whom the burden of proof had been shifted to prove that the 3rd respondent was never appointed by the Regun family.
It is deductively clear that the lower court’s findings in favour of relief 1 of the 3rd and 4th respondents’ counter claim was based on the pleading as well as the uncontroverted pieces of evidence which the 3rd respondent and DW2 placed before the court to prove that the 3rd respondent was actually appointed by the entire members of the Regun family in February 2000 as per the evidence placed before the lower court attesting to their averments at paragraph 26 and 27 of the pleadings supra at page 15 of the record.
Further still and again on the strength of Exhibit 7, the appellants seek reliance thereon to show that 1st appellant was described as the head of the family and Olumade Eluku. On a closer look and examination of the said exhibit 7, the name appearing thereon is Chief Wole Shodipo, while the appellants’ names are Rasaki Kolawole Shodipo. In the absence of any evidence that the appellant also bears Wole Shodipo, the said document is clearly at variance with the appellants’ statement of defence to counter-claim under their special defence at paragraph 1.
It is also imperative to restate that the failure by the lower court to have made a finding on the Exhibits 7 and 11 is not enough to warrant the setting aside of the decision on the claim as contended by the appellants. As rightly submitted by the respondents therefore, the exhibits in totality are not enough to prove that the 1st appellant was a blood relation of the Regun family. While exhibit 7 does not bear the 1st appellant’s name, exhibit 11 also confirms that non Regun members have been appointed Olumale Eluku, which did not give the right to being of Regun blood. The confirmation is obvious from the appellants’ further amended statement of defence at page 18 vide particular (1) of special defence where the 1st plaintiff had been acting as the Olumale of Eluku and the head of Regun family. Consequently, the appellants’ oral evidence at page 26 of the record that he was appointed as both Olumale Eluku and Chief Regun could not stand in the face of Exhibit 6 and their statement of defence to the 3rd and 4th defendants counter claim.
The learned appellant’s counsel cited the authority in the case of Dikwa v Modu (1993) 3 NWLR (Pt.280) p.170 at 185 wherein this court held and said:-
“The attitude of an appellate court to a finding by a trial court is not in doubt. The authorities are unanimous and consistent in the view that a Court of Appeal should not easily disturb the findings of fact of a trial judge who has the singular opportunity of listening to the witnesses and watching their performance except it is shown that such findings of fact are perverse or unsound, where however, there is ample evidence and the trial judge trial to evaluate it and make correct findings on the issue, the appeal court is in as much a good position as the failed court to deal with the facts by making necessary inferences and to make proper findings.”
The appellants have not shown that the lower court’s findings of fact on the issue at hand is perverse to warrant this court acceding to their submission and thus disturbing the decisions arrived at by that court, only to substitute same by fresh findings.
With the greatest respect to the learned appellants’ counsel therefore the said authority under reference does not operate to favour his submission, rather it serves the interest of the case of the respondents and in respect of which the attitude of this court had been restated as obvious. Contrary to the submission by the appellants’ counsel vide Section 150(1) of the Evidence Act, the conceptual effectual presumption of Exhibit 10, the certificate issued to 3rd respondent by the Oba of Ikorodu on his installation does not amount to putting something on nothing. This is in view of the evidence of his appointment by the family which had not been a matter of controversy on the facts averred and admitted and therefore not made an issue.
As rightly submitted by the learned respondents’ counsel there is no claim in the appellant’s writ of summons or Amended Statement of Claim upon which this court can either make an order or finding in favour of the 1st appellant as the head of Regun family and Chief Regun. The jurisdiction in making such an order is dependant upon the claim.
In other words, it is the claim at the lower court that serves the genesis of an appeal, without which there is no foundation. It is not within the court’s powers or jurisdiction to make an order in a vacuum. You cannot be given what you did not ask for. The court is not a father Christmas. On the one hand therefore, the learned trial Judge in my humble opinion rightly refused to grant the relief by declaring the 1st appellant as the head and Chief Regun of Ikorodu, with the relief being very alien to the appellant’s claim. On the other hand, however, with the respondents’ counter claim being an independent and a distinct claim, the nature of same is in no doubt as clearly spelt out supra. In other words it is distinctively clear especially vide their paragraph 32 at pages 15 and 16 of the record, that the 1st relief seeks the declaration of the 3rd defendant/respondent as the head of Regun family and also the Chief Regiln of Ikorodu.
The appellants have failed to join issues with the respondents on the said claim at paragraph 32. Same are deemed uncontroverted and admitted. The lower court in its judgment declared the said 3rd respondent to be the head of Regun family and the Chief Regun of Ikorodu. The said learned judge in my view arrived at a well considered decision in the circumstance of the case. Issue 2 is therefore resolved against the appellants with same in favour of the respondents.
Issues 1 and 3 are dependant upon issue No.2. While the 1st relates to the dismissal of the appellants claim for the forfeiture of the 1st respondents’ customary tenancy of the land, the 3rd questions whether the doctrine of laches and Acquiescence are applicable to the appellants’ case in the absence of pleading same.
The status of the appellants’ as plaintiffs at the lower court portrayed that they acted for themselves and on behalf of Regun family of Ikorodu. There is no evidence on the record of appeal placed before that court and supporting such mandate. The resolution of issue no.2 did not also hold out the appellants as members of Regun family. In my humble opinion, the appellants from all indications, must be seen as mere busy bodies and therefore strangers to the action devoid of any locus standi in instituting same.
In the Court of Appeal decision of Attorney General, Akwa Ibom State v Essien (2004) 7 NWLR (Pt.872) 288 Ekpe JCA at page 321 held and said:-
“The law is well settled that whether or not a plaintiff has a locus standi in a suit is determined from a totality of all the averments in his statement of claim. In other words, in dealing with the locus standi of a plaintiff, it is his statement of claim alone that has to be carefully scrutinized with a view to ascertaining whether or not it has disclosed his interest and how such interest has arisen in the subject matter of the action. See Momoh v Olotu (1970) 1 All NLR 117 at 123; Owodunni v Registered Trustees of Celestial Church of Christ (2000) 10 NWLR (Pt.675) 315; Adefulu v Oyesile (1989) 5 NWLR (Pt.122) 377.”
The term locus standi denotes the legal capacity to institute proceedings in a court of law. See Williams v Dawodu (1988) 4 NWLR (Pt.87) 189 at 192. It is an aspect of justifiability and also an issue of jurisdiction. See Thomas v Olufosoye (1986) 2 SC 325 (1986) 1 NWLR (Pt.18) 669. The fundamental aspect of locus standi is that it focuses on the party seeking to get his complaint before the court and not on the issues he wishes to have adjudicated. See Senator Abraham Adesanya v The President of Nigeria & Anor. (1981) 1 NCLR.
Also in the case of Ladejobi v Oguntayo (2004) 18 NWLR (Pt.904) 149 Musdapher, JSC at page 173 had this to say:-
“In ascertaining whether the plaintiff or the plaintiffs have standing to initiate the proceedings, the statement of claim should be looked at: see Adesokan v Adegorolu (1997) 3 NWLR (Pt.493) 261, (1997) 3 SCNJ 1 at 15.”
It is obvious from the decided authorities that the issue of locus standi does not depend on the success or the merits of the case but it is dependently on whether the plaintiff or the plaintiffs have sufficient interest or legal right in the subject matter of the dispute. In ascertaining whether a plaintiff in an action has locus standi therefore, the statement of claim must disclose a cause of action vested in him (the plaintiff) see Akanni v Odejide under reference supra. The averments in the pleading must also disclose the rights and obligations or interests which have been violated. See Adefulu v Oyesile (1989) 5 NWLR (Pt.122) 377 at 410; Dr. Thomas v Olufosoye at 685 supra; Momoh v Olotu (1970) 1 All NLR 117 and Oloriode v Oyebi (1984) 1 SCNLR 390 at 401,406 and 407.
It is also a settled principle that while the statement of claim must disclose that the plaintiff has sufficient legal interest in seeking any relief in court, such legal interest must be determined in the light of the facts and circumstances of each case. It follows therefore that interlopers and busy bodies can hardly be said to have sufficient legal interest. See Badejo v Federal Ministry of Education (1990) 4 NWLR (Pt.143) 254.
In the matter under consideration, contrary to the assertion by the appellants in the statement of claim, that the plaintiffs had the necessary standing, the evidence that came out at the trial showed that they did not. This is akin to the decision in the case of G. T. & G. C. (Nig.) Ltd. v Nevico Ltd. (2004) 3 NWLR (Pt.860) 327 at 342 wherein Ikongbeh JCA (of blessed memory) held and said:-
“When, however, all the evidence is in, the defendant would be perfectly within his right to ask that the plaintiffs’ claim be dismissed on the ground that contrary to the assertion in the statement of claim that the plaintiff had the necessary standing, the evidence that came out at the trial showed that he did not.”
The appellants in the matter at hand have no status but are on their own. Their failure to sustain issue no.2 does not give them recognizable status on issues 1 and 3 either, but are also subject to the same fate and consequent to which the deliberation of the said two issues would only amount to an academic exercise in futility. In the same vein therefore and without over flogging the horse, issues 1 and 2 are also resolved against them (the appellants).
With all the issues in this appeal having been resolved against the appellants, the appeal on the totality fails while the judgment of the Lagos State High Court delivered on the 16th of April 2002 is hereby affirmed. On the issue of costs and with same following events, I would award the sum of N10,000= to the respondents.
Other Citations: (2007)LCN/2342(CA)
