Ogundare Osasona V. Oba Isaac Adetoyinbo Ajayi & Ors. (2009)
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SOTONYE DENTON WEST, J.C.A.
This is an appeal against the sole issue directed by the Supreme Court for rehearing by the Court of Appeal, of whether or not the trial court adopted the right attitude in handling the case by going into detailed evidence of the matter and thus re-opening all facts and issues instead of finding out if the Oluwole commission rightly came to conclusions at which it arrived.
The appellant’s counsel, Bola Aruleba Esq., on 30th April, 2009 adopted his brief of argument dated 29th December, 2008 and filed on 30th December, 2008 and a reply brief dated 23rd February, 2009 and filed 2nd March, 2009 and urged this court to allow the appeal.
Chief Duro Ajayi adopted the 1st respondent brief of argument dated 30th day of January, 2009 and filed on 2nd day of February, 2009 and urged the court to dismiss the appeal. Ojo Esq., adopted the 2nd & 3rd respondents brief dated 11th of March, 2009 and filed on 1st April 2009 and deemed properly filed and served the 30th April, 2009. They are praying the court to dismiss the appeal with substantial cost against the appellant.
This case has a cheaquered history, it has been determined up to the apex court before the Supreme Court ordered that another panel of this court should try issue c of the appellant de novo.
The order directing this court to hear issue C of the Appellant de novo was contained in the unanimous decision of the Supreme Court in the Judgment of Ogundare Osasona substituted for EZEKIEL OLATUNDE deceased -vs- OBA ADETOYINB0 AJAYI & 3 Ors, (2004) 14 NWLR (Part 894), 527. Their Lordships in one accord were of the view that this court ought to have given its views in respect of issue c of the Appellant’s issues for determination and accordingly I am obliged to quote the words of Kalgo JSC (Rtd) in his contribution to the Judgment on page 548 to 549 thus:
“I agree that the appeal ought to be allowed and the case remitted to the court of appeal to consider what was issue (A) in this court. The issue is fundamental to the consideration and determination of this appeal and it is therefore essential for this court to have the views or decisions of the Court of Appeal on the issue before this court decides on it. This was not done by the Court of Appeal which suo motu struck out ground of appeal 3 before it, from which issue (A) was distilled. I agree that the Court of Appeal was wrong in striking out ground of appeal number 3.
In the court of Appeal, the appellant formulated 8 issues for determination but with the striking out of grounds of appeal (3), (4), (5) and (8) only 4 issues were considered by the Court of Appeal. As issue (A) was distilled from ground 3, it was not considered by the Court of Appeal in reaching its decision. In the Court of Appeal issue (c) raised from ground 3 was substantially the same as issue
(A) in this court and it reads:
“(c) Whether or not the trial court adopted the right attitude in handling the case by going into detailed evidence of the matter and thus reopening all facts and issues instead of finding out if the Oluwole Commission rightly came to conclusions at which it arrived. ”
The Court of Appeal did not consider this issue because it struck out the ground from which it was distilled. It is trite law that a court or tribunal should consider all issues for determination brought before it but failure to consider and pronounce on all issues submitted to the court or tribunal may not necessarily amount to a miscarriage of justice or denial of fair hearing. UNITED
BANK OF NIGERIA Ltd vs. NWAOKOLO (1995) 6 NWLR (Pt. 400) 127. But in the circumstances of this case where the Court of Appeal suo motu, without inviting the parties to say anything decided to strike out the ground from which the issue was raised, there is in my respectful view a denial of fair hearing. See KOTOYE -vs. C. B. N. (1989) 1 NWLR (Pt. 98) 419.
It is also my view that although by virtue of section 22 of the Supreme Court Act, 1960, an issue not requiring further evidence as in this case can be considered by this court, the overriding consideration here is that it is essential to have the views or opinion of the Court of Appeal first on the issue, before this court decides on it. See BAMAIYI VS. STATE (2001) 8 NWLR (PT. 715) 270″
Therefore, it seems to me that the apex court’s directive is that this court should proffer its view on issue c which is the same as issue a in the Supreme Court when the appeal journeyed from Court of Appeal, Benin city to the Supreme Court.
This issue c their Lordships insists is fundamental to the determination of the appeal as it bothers on competence of the court and lack of decision on same by this court could amount to a miscarriage of justice or denial of fair hearing.
Therefore on the sale issue, the appellant argued that the case before this court is not one that came before a normal court in an original matter, that a judicial commission had earlier sat upon it and came out with some findings. It further argued that a court cannot substitute its own findings of facts for that of a commission of enquiry. He cited the cases of ANJAKU V NNAMANI 14 WACA 357@ 359 and 360, ADIGUN V. A.G. OYO STATE (1987) 1 NWLR (PT 53) 678 @ 698 AND EGUAMUWENSE V AMAGBIZEMWEN (1993) 9 NWLR (PT 315) 1 @ 22 to support his contention.
He further argued that the lower court turned itself into an original court looking into the declaration of the chieftaincy title in question and made his set of findings different from those of the commission and some findings are against both the findings of the commission and the existing declaration before the commission thus compounding the confusion.
He contended that the striking out of some part of sections of Exhibit 3 was part of the error adopted by the lower court.
And that what is expected of the lower court was to find out what went wrong at the Oluwole commission.
He finally submitted that the lower court totally missed the road, lost bearing and came to a wrong decision which should not be allowed to stand and that all the Commission did was right i.e. Omnia Praesumneature rite acta esse’.
The respondents in their argument submitted that the action filed at the High Court intends to invoke the original jurisdiction of the High Court and that the trial court was competent to hear evidence called by the parties being a hostile proceedings. The respondents further contended that the decision reached by the court of appeal in this matter is res judicata between parties. He cited the cases of MILITARY GOVERNOR OF ONDO STATE V. OBA ISAAC ADETOYINBO AJAYI & 3 ORS (1998) 3 NWLR (PT.540) @ P. 44, FIDELITAS SHIPPING CO. V VIO EXPORT CHILED (1966) 1 QB 630, 640 @ 642, CARDOSO V. DANIEL, (1986) 2 NWLR PT. 20 1 @ 23.
They further argued that a court of co-ordinate jurisdiction is bound to follow previous decisions of its own and they cited the case of YOUNG V BRISTOL AEROPLANE CO (1944) 2 ALL ER 239.
Arguments are further canvassed on issues and points that are not before this court and this court will not bother itself on that.
To the issue at hand, of whether the trial court adopted the right attitude in handling the case by going into detailed evidence of the matter and thus reopening all facts and issues instead of finding out if the Oluwole commission rightly came to conclusions at which it arrived. His ground three in his notice of appeal is culled below.
“The lower court erred in law by not adopting the correct approach to issue of facts decided by a judicial commission of inquiry which approach is to inquire whether the findings of the commission were properly aimed at rather than going after the whole facts again and substituting its own in place of the ones found by the commission.”
To start with it is the writ of summons and the statement of claim of the plaintiff that determines the jurisdiction of a court. See ADEYEMI V OPEYORI (1976) 9.10 SC 31 Judges have no duty and indeed no power to expand the jurisdiction conferred on them by statutes. In the African Newspaper of Nigeria and Ors vs. The Federal Republic of Nigeria (1985) 4 S. C. 76 AT 122, Oputa JSC (as he then was) observed thus:
“The quarrel the jurisdiction of court is by no means new but this quarrel have left certain significant beacon lights to guide the courts when dealing with jurisdiction on the lack of it, which are numerous. For example even though the courts have great power, yet these power are not unlimited they are bound by some lines of demarcation.”
Courts are creatures of statutes and the constitution and jurisdiction of each court is defined by the constitution especially section 6 (6) (C) of the 1999 Constitution. What determines the jurisdiction of a court has been variously pronounced upon by the Supreme Court in a numerous cases like Osun State Govt vs. Danlami (Nig) Ltd (2007) 9 NWLR (Pt. 1038) 66; Mafimisebi vs. Ehuwa (2007) 2 NWLR (Pt. 1018) indeed in Duitt and Busch Ltd. vs. Dale Power System Plc,
Where there is voluntary submission by parties to the jurisdiction of the court, the parties cannot be heard to complain.
At the lower court, the parties submitted to its jurisdiction. The Appellants are therefore now crying wolf and they cannot blow hot and cold at the same time. The fact that the trial court has jurisdiction to hear the case irrespective of the Commission’s earlier hearing is not in doubt as the Writ of Summons and Statement of Claim clearly and apparently shows that the trial court is not lacking in jurisdiction.
The following are the reliefs sought by the plaintiffs at the lower court:
- A declaration that the recommendation contained at page 49 of the Report of Oluwo/e Chieftaincy Review Commission concerning the Chieftaincy Declaration for the Elejelu of Ijelu Chieftaincy and the Government views on the Report at page 12 of the White Paper approving the recommendation is a negation and falsification of the true age-long Native Law, tradition and customs of ljelu people regulating nomination, appointment and approval of a candidate to the Elejelu of Ijelu Chieftaincy and therefore unconstitutional, null and void and of no legal effect.
- A declaration that the recommendation of the said commission and Government acceptance of same relating to the number and composition of Ijelu Kingmakers and the number of bonafide Ruling houses at Ijelu is at variance with the revered time-honoured tradition and customs of Ijelu
people and same be set aside.
- A declaration that the inclusion of Ibodi as a Ruling House to the Elejelu Chieftaincy is a discretion of the Customs and traditional history of the people of ljelu Ekiti and same is unconstitutional, ultra vires, null and void and of no legal force whatsoever.
- A declaration that the two authentic Ruling Houses for the Elejelu of Ijelu Chieftaincy are ILAO AND OGBOGBOMUDU having regard to the Native Law, Custom and Tradition of Jelu Ekiti in conformity with the Chieftaincy Declaration made by the Chieftaincy Committee of Ikole District Council on 11/7/60 and approved by the then Government of Western Region on 23rd September, 1960.
Parties at the lower court filed amended statement of claim & defence and called witnesses to establish their case and nobody complained. In fact how could the trial court make a declaration for instance Oluwole Chieftaincy Review Commission concerning the Chieftaincy declaration for the Elejelu of Ijelu Chieftaincy and the Government views on the report at page 12 of the white paper, if the trial court is denied the powers to probe into the evidence of the commission before the court.
It is obvious that before a court can come to a decision as to which direction it would base its judgment or which evidence it would believe or which one to reject, it is perfectly necessary to put the totality of the testimony adduced by both parties on a proverbial imaginary scale. It shall weight one side against the other and then decide upon the preponderance of credible evidence which weighs more. See UKAEGBU VS. NWOKOLO (2009) 3 NWLR (2009) 3 NWLR (PART. 1127) PAGE 194; ARABAMBIVS. A. B. INDUSTRY LTD (2005) 19 NWLR (PART 959) (2005) 1; ADEBAYO VS. SHOGO (2005) 7 NWLR (PT. 925) 467.
It is a matter of trite law that it is the duty of a trial court to evaluate every documentary evidence tendered before it. The evidence of the Oluwole Commission is of course just one of the evidence tendered before the trial court and the lower court adopted the attitude in handling the case by going into detailed evidence on the matter in order to come to a justiceable conclusion or decision. See AWUSE VS. ODILI (2005) 16 NWLR (PART 952) 416; OSIGWE -VS. UNIPETROL (2005) 5 NWLR (PT. 918) 261.
Therefore a trial court has a discretion to believe or disbelieve the Parties before it, and when such a discretion is exercised an appellate court is not entitled except in special circumstances to substitute its views on the evidence for those of the trial court which had the advantage of seeking and hearing the witnesses testify and this is the position. This court would not indulge in setting aside what the lower court did, because the trial court actually performed its constitutional duty of determining disputes, see section 6(6) of the Constitution of Federal Republic of Nigeria 1999.
None of the parties objected to the jurisdiction of the court, thus the lower court used his discretion to look into the evidence given before it and thus its judgment on the evidence adduced before the court. Courts’ jurisdiction are usually derived from the statutes, laws and constitution inclusive of what is contained in the writ of summons and statement of claim. See DENR LTD -VS. TRANS INT’ BANK LTD 2008 NWLR (PT.1119) 259 @ 399 AND APADI VS. BANUSO (2008) 13 NWLR (PT. 1103) 204.
The reliefs sought by the respondent calls for evidence and the decision given was in line with the evidence given at the lower court. See UDOSEN V NECON (1997) 8 NWLR (PT 506) 570 @ 586.
It should be noted that out of the eight issues before this court at the first instance seven were resolved against the appellant, and at the Supreme Court the same seven issues were still resolved against the appellant, this singular issue to my mind is just like an academic exercise which its resolution which ever way will not change the course of this case. See OGUNLADE V ADELEYE (1992) 8 NWLR PT. 260 @ 409. Similarly, after taking my time to go through the judgment of my brother, MOHAMMED JCA (as he then was) in MILITARY GOVERNOR ONDO STATE.VS. AJA YI (Supra) on page 52, where he held inter alia that:
” I must observe here that it appears from the trend of the arguments of the learned counsel to the appellant now the respondent in the cross-appeal, he did not fully comprehend the nature of the cross-appellant’s case at the lower court. The case was not instituted by way of a review to look into the decisions recommendations of the Justice Oluwole Chieftaincy Review Commission. Therefore the power of the lower court to review the findings and recommendations of the Commission was not specifically invoked in the action. The action filed by the cross-appellant from its form and nature in the of writ of summons, the statement of claim and the respective statements of defence was clearly intended to invoke the original jurisdiction of the trial court. For this reason, the approach and handling of the case by the lower court was quite in order.
It is trite law that it is the duty of the trial court which saw and heard witness testify to make findings of fact on the material evidence adduced before it. See KALIO v. WOLUCHEM (1985) 1 NWLR (Pt. 4) 610 and OBIASO & Ors. v. OKOYE& Ors. (1989) 5 NWLR (Pt.119) 80. However where a court of trial fails in its duty to make findings on material and important issues of fact where necessary, or where the trial court approaches the evidence called by the parties wrongly, the appellate court has no alternative but to allow the appeal. See REYNARD v. ALLAN 2 WACA 52 at 53, OKE v. OKE (1982) 12 SC 218, AWOTE v. OWODUNNI (No.2) (1987) 2 NWLR(Pt. 57) 367.”
I totally agree with him on his observations and findings. In all I resolve issue against the appellant in favour of the respondents to the extent that the lower court adopted the proper attitude in handling the case by going into detailed evidence of the matter and consequently reopened all facts and issues before it, in order to arrive at its own decision. For how else could a court operate without delving into evidence, for the primary duty of a trial court is to delve into evidence and come to a decision.
I therefore dismiss this appeal with a cost of N30,000.00 against the appellant in favour of the 1st Respondent.
Other Citations: (2009)LCN/3350(CA)
