Natian Okonjo & Ors V. Mr. A.N. Omuni & Ors (2007)
LawGlobal-Hub Lead Judgment Report
GEORGE OLADEINDE SHOREMI, J.C.A.
It is good law that an admitted fact need no further proof thereof. OKOESOR V. POLICE COUNCIL (12 NWLR (pt, 834) 444; IRIRI V. ERHUR LOBARA (1991) 2 NWLR (pt, 173) 252 ASAFA FOODS FACTORY V. ALRAINE NIG. LTD. (2002) 12 NWLR PT. 781 353 But A court at the same time is not expected to believe and act on evidence that it is manifestly incredible or unreliable, mainly because the plaintiff said so and was not cross examined. See IRIRI V. ERHUHOBENA (1991) 2 NWLR Pt. 173 252″(Delivering the Leading Judgment): This is an appeal from the judgment delivered by Ogbodu J of the Delta State high Court of Justice in Ogwashi-Uku on 17/1/2001. the appellants herein were the plaintiffs in the court below and the claims of the appellants as endorsed on
their writ of summons is for
“1. A declaration that:
(a) in the absence of an Obi of Ogwashi- Uku installed after a complete compliance with the applicable laws in Delta State and approved and recognized in accordance with These laws, there is no institution and/or person(s) in Ogwashi-Uku that can legally or validly describe itself/Himself as “HIS ROYAL HIGHNESS OBI FELIX OGOCHUKWU THE 1ST or speaker for the people Of Owashi-Uku or otherwise perform the functions Of a Royal father in Ogwashi-Uku.
(b) The reference and/or description in the one year anniversary invitation card programme of the father of the day as ‘HIS ROYAL HIGHNESS OBI FELIX -OGOCHUKWU the 1st is misleading scandalous,
Prejudicial, vexatious, oppressive and embarrassing to the plaintiffs, illegal and therefore null and void.
(2) An order of injunction restraining the defendants from parading or holding or describing and/or addressing any person and/or institution as “HIS ROYAL HIGHNESS OBI FELIX OGOCHUKWU THE 1st pending such time
(i) an Obi of Ogwashi-Uku is installed, appointed,approved and recognized in conformity with the traditional Rulers and Chiefs Edict 1979 or any Other applicable law.
(3) N5 million as compensation for losses in money, time, Embarrassment and inconveniences suffered by the Plaintiffs’ family in attempting to counter and neutralize The publication made by the defendants isn’t the notice of Invitation/programme to the one year anniversary of Ogwashi-Uku Development Union (Women Wing).”
Pleadings were filed and exchanged by the parties. The appellant’s statement of claim is at pages 55 – 63 of the Records while the respondents Statement of defence is set out at pages 94- 98 Of the Record, .
After a protracted and several adjournments spanning a period of about a year trial was concluded and completed by Ogbodu, J.
At the trial only the Plaintiff participated and called one witness, The defendant abandoned the case and never showed up again Learned trial judge at the end of trial delivered a considered judgment and dismissed the case of the appellants. The trial Judge in his sum up and conclusion has this to say and I quote.
“On the relief claimed by plaintiffs in this actions, it is difficult to grant the various reliefs because it was never shown by plaintiffs that defendants claimed or purported to claim any right in this without particulars suit or any suit at all. The issue is not whether Felix Izediunor can legally or validly be ascribed any royal title when he has not been installed an Obi in compliance with the applicable laws of Delta State. I also wish to say that although the description of Felix Izediunor in the invitation cards or programme may be Misleading, it was not shown that it was an attempt to declare Him an Obi. I would think that it was a mere description which Has not infringer the rights of the plaintiff and therefore cannot be Declared null and void.
In addition, Plaintiffs also sought to an order of injunction to Restrain the defendants from parading as “HIS ROYAL HIGHNESS, OBI FELIX OGOCHUKWU THE 1ST” pending such time as an Obi of Ogwashi- Uku was installed, appointed, approved and recognized in conformity with the Traditional Rulers and Chiefs Edict, 1970 or any other applicable law. This relief, in my opinion, is also misconceived on the ground that defendants who have not been shown to be a party in the suit No. 0/5/85 cannot be restrained. In the present action, the installation, appointment, approval and recognition of an Obi of Ogwashi-Uku are never the issues in this case. A restraining order can only be in respect of a dispute over which the issues that call for restraint were contested and also that the various parties were even heard on the matter Since the defendants were not sued and heard on those issues, an order of injunction on that ground will be improper and I therefore refuse to grant it.
In addition, plaintiffs also claimed as damages the sum of N5 million Being compensation for loss in money, time, embarrassment and inconveniences suffered by the plaintiffs’ family in their attempt
to counter and neutralized the publication made by the defendants isn’t the notice of invitation/programme sent out in respect of the one year anniversary celebration of the Ogwashi-Uku Development union (women wing). It find no single evidence to support this claim as it is misconceived and baseless.
Finally, I find the entire claims of the plaintiffs as baseless and are Hereby dismissed.
I make no order as to cost.”
Appellants being dissatisfied with that judgment appeal to this Court. The Notice and Grounds of Appeal are contained on pages 146 – 150 and reproduced here without particulars
- The learned trial Judge erred in law when he held:-
“Plaintiffs failed to show that the malevolence or spite by another towards a pending suit is actionable.
This again makes no sense to me and I cannot find that it Constitutes a cause of action”.
- The learned trial Judge erred in law when he held as follows:-
“On the relief claimed by the plaintiffs in this action, it is difficult to grant the various reliefs because it was never shown by plaintiffs that defendants claim any right in this suit or any suit at all.”
- The learned trial Judge misdirected himself on the facts when he held that there was no evidence in support of the plaintiffs claim for N5,000,000.00 (Five million Naira) being compensation for loss
in money time, embarrassment and inconveniences suffered by the plaintiff family in their attempt to counter and neutralize the publication made by the defendants in the notice of invitation.
- The judgment was against the weight of evidence adduced at the Trial
By application and order of this Court, the appellants brief was deemed filed on 19/2/03 while the defendants did not file any brief of argument.
By order of this Court, leave was granted to the appellants to effect substituted service on the respondent and were duly served. Leave was granted on 9/6/05.
By leave of Court granted the appellants were allowed to argue their appeal on the appellants brief, the time allowed by the Rules for the respondents to file their brief of argument having expired.
From the Ground, of Appeal the appellant distilled two issues for the determination of this appeal.
(i) Whether the plaintiffs raised sufficient facts in the pleadings to support the relief set out therein. In other words did the plaintiffs pleadings disclose an actuable wrong to be entitled to the remedy set out in the claim.
(ii) Whether the learned trial Judge was right when he refused to enter judgment for the plaintiffs in this case when the plaintiffs case remain unchallenged.
When the appeal came up for hearing on 3/10/07 counsel for appellants adopted his brief and relied on it and urged this Court to allow the appeal of the appellants and reverse the judgment of the lower court.
In arguing issue the appellants counsel argued that
“The term cause of action has been judiciously defined by the Supreme Court ‘applying READ VS. BROWN 1889 22 QBD 128 AT 131 per Lord Eshep M.R. in LASISI FADARE & ORS. VS. ATTORNEY GENERAL, OYO STATE 1982 4 S.C. 1 AT 7 per Aniagolu J.S.c. as:
“denoting every fact (though not every piece of evidence) which it ,it would be necessary for the plaintiff to prove, if traversed to support his right to the judgment of the court”.
As a matter of fact, an act on the part of a defendant which gives the Plaintiff a cause of complaint is a cause of action. See LABOYE VS. OTUBU 2001 7 NWLR PT, 712 256 AT 279. In any cause or matter what is important is simply the presentation of the factual situation which if substantiated, entitles a plaintiff to a relief. Once there is a wrong, there must be a remedy. A wrong must not necessarily be remediable under a known head of tort for it to be justiciable.
It is further submttted that since the decision of the Supreme Court, In BELLO VS. ATTORNEY GENERAL OF OYO STATE 19865 NWLR PT. 45 828, the courts in Nigeria have been enjoined to apply maxim “UBI JUS IBI RIMEDIUM” KARIBI WHYTE J.S.C. as he then was delivering the judgment of the court inter-alia at page 871 as follows:
“I think it is erroneous to assume that the maxim Ubi Jus Ibi remedium is only an English common law principle. It is a principle of justice of universal validity. Couched In latin and available to all legal systems involved in the Impartial administration of justice. It enjoins the court to provide a remedy whenever the plaintiff has established a right.”
OPUTA J.S.C. at page 889 of the same case – BELLOE VS. OYO STATE (supra) held thus:
“HOLT C.J. in the now famous case of ASHBY VS. WHITE (1703) 2Id RAYM 98 postulated the principle that if the plaintiff has a right he must of necessity have the means to vindicate it, and a remedy, if he is injured in the enjoyment or exercise of it and indeed, it is a vain thing to imagine a right without a
remedy, for want of right and want of remedy are reciprocal”. The maxim is so fundamental to the administration of justice that where there is no remedy either by the common law or by statue the courts have been urged to create one.”
The Courts cannot therefore be deterred by the novelty of an action. They usually look at the facts. If from those facts a court is satisfied
i. that the defendant was under a duty to the plaintiff.
ii. That there was a breach of that duty.
iii. that the defendant suffered legal injury
iv. that the injury was not too remote.
If all these factual situations exist. the court will surely provide a remedy.
The law is an equal dispenser of justice and leaves no one without a remedy for His right”.
The appellants submit with respect that in this case on appeal all the factual Situations enumerated by OPUTA J.S.C. as he then was were clearly present and the appellants are entitled to the judgment of the court. The PW1 Evidence at pages III lines 12 to the end and pages 112 to 113 are very Instructive and germane in his regards. See also the concluding part of Exhibit a AT PAGE 1453 AND THE CONTENT OF exhibit b.
And (1) PELFACO LTD. VS. WAOS LTD 199710 NWLR PT 524,222 particularly are page 236.
(II) FAWEHINMI VS. STATE (1990) 1 NWLR PT 127 per AWOGU J.C.A. as the was at page 499.”
Issue II. In his argument on II he submitted thus
“Evidence which is Unchallenged and uncontradicted, if credible ought to be accepted as there is nothing on the other side to balance. Further if the evidence led on the facts pleaded is admissible, relevant,
Uncontradicted and not discredited by Cross-examination a Court can legally rely or act on it. See – EGBUNIKE VS. A.C.B. LTD. 1995 2 NWLRT PT 375 34 AT 55.
In AFRIBANK (NIG.) PLC VS. NWAZE 1998 6 NWLR PT. 553 283 at 294, the Court of Appeal per MOHAMMED J.C.A. held inter-alia as follows:
”It is also the law that where the defendant offered no evidence as happened in the present case, the plaintiffs evidence before the court in such circumstances clearly goes one way with no other side of the proverbial imaginary scale as against such evidence by or on behalf of the plaintiff. Thus the onus of proof in situation happening in such a case is discharged on minimal proof”..
See also the authority of BELLO VS. FAYOSE 1994 2 NWLR PT. 327 404 at…
The appellant case in this matter and indeed the evidence proffered in Support is not only admissible same in credible uncontroverted and Unchallenged. On the authority of all the cases mentioned above,
The Learned trial Judge ought to enter judgment for the appellants.”
In conclusion the counsel urged on this Court to allow the appeal set aside the judgment of the lower court and exercise its prove under Section 16 of the Court of Appeal Act and enter judgment for the appellant in terms of the reliefs claimed. Before I go into the merit of this appeal and in view of the argument of the counsel to the appellant I shall quote the relevant part of the only witness to the appellants it reads and quote.
“I know the 2nd and 3rd plaintiffs. We the plaintiffs are members of Umu-Obi Obahai Royal Family of Ogwuashi- Uku. I know the defendants in this case who are members of Ogwashi-Uku development Union (Women Wing).
I know the Unu-denyi family of Ogwashi-Uku. There is a dispute between that family and our family over The issue of the Obi-ship of Ogwashi-Uku, presently pending in this court and it is in Suit No. 0/5/85 – Prince T. Mowere and Ors. V. The Executive Council of Delta State and Ors. My family is Also the plaintiff in that action. The principal claim in that Suit is That out family is the one entitled to the Obi-ship of Ogwashi-Uku. I am aware that a restraining order of Injunction was ordered by Omo-Igege Judge, in that Suit, and to the best of my knowledge the injunction subsists and has Still not been discharged.
I knew one Felix Izediunor, he is the 5th defendant in that Suit No. 0/5/89. He is the pretender to the throne of Ogeashi-Uku. I do know that neither the government of this state nor the Local Government has recognized any person as the Obi of Ogwashi-Uku. We instituted contempt proceedings against him which is Presently pending in this court. It is Suit No. O/m/15/89 – Prince Nathan Okonjo and Ors. V. Felix !zediunor and 9 Ors.”
“In the month of July/August 1996, defendants celebrated their one year anniversary of their association. They printed posters and issued invitation cards to members of the public including myself.
I was sent an invitation card and this is it.
Court: The invitation card is admitted as Exhibit B in Evidence. 1st plaintiff continues: Before sending out these Invitation cards defendants had always been aware of the Various Suits pending in this court over the Obi-ship Tussle and also the injunction. Infact the entire town is aware of the injunction and even the contempt proceedings in court. 1st defendant was referred to in Exhibit B, as the president general of Ogwashi-Uku development Union. Also, in that invitation card (Exhibit B), the father of the day was referred to as His Royal Highness Obi Felix Ogochukwu I, and this is supposed to be Felix Izediunor, the 5th defendant in Exhibit ‘ A’ who was Restrained by the order of court. It was when I saw those Posters and the invitation card Exhibit B, that we proceeded to Institute the present suit on the 30th of July 1996.”
“The interim ex-parte order of 31/7/96, was served on the defendants and given vide publicity.
In the face of all these we the plaintiffs were humiliated, Ridiculed and put into odiom. The reputation of my family was greatly inured. In consequence of these we claim all the Reliefs stated in paragraph 20 of our Statement of Claim.”
I have taken pains to reproduce the submissions of the learned counsel to the appellants, the evidence of the only witness and the summing up of the learned trial Judge and his conclusion Let me not go into a voyage of some authorities on the points raised by the counsel.
First was there a cause of action. It is settled law that it is the statement of claim that has to be examined to ascertain whether or not there is a reasonable cause of action.
A cause of action is the bundle of aggregate of facts which the law will recognize as giving the plaintiff a substantive right to make the claim for the relief or remedy being sought. Thus the factual situation on which plaintiff relied to support his claim must be recognized by law as giving rise to a substantive right capable of enforcement being claimed against the defendant.
COOKEY V. FOMBO & ORS. Pt. 222 NSCQR 411
In the appeal under consideration the complaint of the appellants is that the defendants who were members of Ogwashi-Uku Development Union (Women Wing) referred to one of the contestants to the throne as Royal Highness when according to them no Ogwashi-uku had been appointed to the throne. There is no doubt that there were suits pending in various courts on this issue and none of the defendants was a party to all or any of the suits in the court. It was alleged that the defendants referred to one FELIX OGOCHUKWU the 1st as his Royal Highness as the father of the day. In exhibit a rendered by the appellants could it be said that FELIX IZEDIUNOR 5th defendant is the same as FELIX OGOCHUKWU referred to as His Royal Highness by the defendants?
The Supreme Court in the case of CHEVERON NIG. LTD. V. LDN (2007) Vol. 36 WRN 1 has this to say and I quote extensively.
“On meaning of “cause of action” and “reasonable cause of action” “I can do no more on the meaning of a cause of action than call to mind the observation made by this court per Karibi- Whyte JSC in Bello v. Attorney-General of Oyo State (1986) 5 NWLR (Pt..45) 828 at 876 thus:
‘I think a cause of action is constituted by the bundle of aggregate of facts which the law will recognize as giving the plaintiff a substantive right to make the claim against the relief or remedy being sought. Thus the factual situation on which the plaintiff relies to support his claim must be recognized by the law as giving rise to a substantive right capable of being claimed or enforced against the defendant.
In other words the factual situation relied upon must Constitute the essential ingredients of an enforceable right or claim – see Tower & Sons Ltd. V. Ripstein (1944) A.C. 254 at page 263, Read v. Brown 22 QBD 128, Cooke v. Gill ER 300, Jacksonv. Spittal (1870) LR 5 page 547. Concisely stated, an Act on the part of the defendant which gives to the plaintiff his cause of complaint is a cause of action,’
See also Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt.102) 122 at 169.
In Ibrahim v. osim (1988) 1 NSCC 1184 at 1194 this court Per Uwais JSC (as he then was) discussed the proper meaning of the Expression ‘reasonable cause of action’ thus:
‘The question therefore is what is a ‘reasonable cause of action’? The words ’cause of action’ without the adjective ‘reasonable’ had been defined by this court in Savage & Ors v. Uwechia (1972) 1 All NLR (pt. 1) 251 at page 256; (1972) 3 SC24 at page 221, where Fatai Williams, JSC (as he then was) said:
‘A cause of action is defined in Stroud’s Judicial Dictionary as the entire set of circumstances giving rise to an enforcement claim. To our mind, it is, in effect, the fact or combination of facts, which give rise to a right to sue and it consists of two elements – the wrongful act of the defendant which gives the Plaintiff his cause of complaint and the consequent damage. As Lord Esher said in Cooke v. Gill, (1873) LR8CP 107 and later in Read v. Brown (1888) 22 QBD 128 (C.A.), it is every fact I that it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. See Kusada v. Sokoto Native Authority (1968) 1 All NLR 377 where The definition in Read v. Brown (supra) was referred to with Approval’.”
“The law is indeed well settled that a cause of action is constituted by the bundle or aggregate of facts which the law will recognizes as giving a plaintiff a substantive right to make the claim against the relief or remedy being sought. In other words the factual situation on which the plaintiff relied to support his claim, must be recognized by the law as giving rise to a substantive right capable of being claimed or enforce against The defendant. That is to say, the factual situation relied upon must constitute the essential ingredients of an enforceable right. See Bello v. Attorney-General of Oyo State (1986) 5 NWLR(Pt. 45) 828 and Ibrahim v. Osim (1988) 1 NSCC 1184 at 1194.” Per Mohammed, JSC (pp. 22 – 23) line 40 – 5.
“It is therefore settled that a cause of action constitutes a bundle of facts and circumstances giving rise to the plaintiff’s enforcement claims against the defendant. The facts and circumstances have to be as pleaded in the statement of claim. See Ibrahim v. Osim (1987) 4 NWLR (pt. 67) 965. And so, it has to be ascertained by having recourse to the statement of claim. As can be seen from the definition, the proposition resolves into two crucial factors thus the defendant’s wrongful act and the consequential damage to the plaintiff. These two factors must co-exist to constitute a cause of action before the court. It does not take account of whether the cause of action will succeed or fail. A cause of action is valid irrespective of the strength or weakness of the plaintiff’s case.
See Esigbe v. Agholor (1990) 7 NWLR (Pt. 161) 234.” Per Chukwuma-Eneh JSC (p. 29) lines 30-40
From the foregoing seem to agree that the appellants from the pleadings and evidence can not be said to have a reasonable cause of action against the respondents I therefore resolve Issue one ill the negative against the appellants.
On Issue II: Since Issue 1 is resolved against the appellant Issue II automatically can not be sustained in their in favour. There is no doubt that it is good law that an admitted fact need no further proof thereof.
OKOESOR V. POLICE COUNCIL (12 NWLR (pt, 834) 444; IRIRI V. ERHUR LOBARA (1991) 2 NWLR (pt, 173) 252 ASAFA FOODS FACTORY V. ALRAINE NIG. LTD. (2002) 12 NWLR PT. 781 353
But A court at the same time is not expected to believe and act on evidence that it is manifestly incredible or unreliable, mainly because the plaintiff said so and was not cross examined.
See IRIRI V. ERHUHOBENA (1991) 2 NWLR Pt. 173 252. I agree with the trial Judge hat the claim of the appellants is misconceived and therefore cannot stand. The appeal is unmeritorious and therefore ought to be dismissed and it is dismissed. The judgment of the lower court is affirmed. There shall be no order as to cost.
Other Citations: (2007)LCN/2577(CA)
