Zaeed a. Ajayi & Ors. V. Attorney General, Ogun State & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

M. D. MUHAMMAD, J.C.A.

The ease that brought about this appeal had a chequered history.

Originally, the suit was commenced by the Plaintiffs, the Appellants herein, against five defendants namely: Oba T. T. Dada. the Olota of Otta, Chief Lasisi Akinremi, the Ajana of Otta, Chief Momoh Ogunrnuyiwa, the Olukolun of Olla, Chief Lawani Kosebinu, the Akogun of Otta and Chief J. Akinbiyi Ojo. On the death of the 1st and 2nd Defendants, Oba I. F. Dada, the Olota of Otta and Chief Lasisi Akinremi, the Ajana of Otta, a regency-in-council comprising three persons, to wit, Chief Akin Dosunmu, the Oluwa of Otta, Chief S.A. Adesanya, the Balogun of Otta and Chief H. A. Ojo the Scriki of Otta, was substituted particularly for the 1st Defendant being the prescribed authority. The Regency-in-Council that had a three months lifespan was, on application, subsequently substituted by the Ogun state Attorney General. The 2nd, 3rd and 4th Defendants remain the original Defendants on record and are Chief Momoh Ogunmuyiwa, the Olukolun of Otta, Chief Lawani Kosebinu, the Akoguin of Otta and Chief J. Akinbiyi Ojo respectively. It was Chief J. Akinbiyi Ojo’s appointment and installation as the Baale of Sango-Otta the Plaintiffs, to wit, Za’eed Ayinla Ajayi, Nurudeen Ajayi, Modinat Yode and Adeeye Ajoje, challenged for themselves and on behalf of the Oojabi family at the Ogun State High Court in Suit NO.HCT/20/88.

Plaintiffs’ claim against the defendants, by the former’s Amended Writ of Summons, is for:-

“1. A declaration that the 1st Plaintiff is the Bale elect of Sango-Otta in Ifo-Otta Local Government Area.

2. A declaration that the appointment installation approval of the 5th defendant is unlawful, most irregular against the custom of Sango-Otta respecting the selection of Bale of Sango-Otta, null and void and of no effect.
3. An order of injunction restraining the 1st to 4th defendants from approving the candidature of installing, causing to be installed or recognizing the 5th Defendant as the Bale of Sango Otta.
4. An order or injunction restraining the 1st to 4th (sic) defendant from parading himself as the Bale of Sango Otta.”

Pleadings were filed and exchanged. Plaintiffs’ case from their further amended statement of claim, briefly, is that the original 7th Defendant, Chief Akinbiyi Ojo, was never the head of their family, the Oojabi family, being not a member of the said family and could not have, for that reason, been lawfully appointed the Saale of Sango-Otta, a vacant chieftaincy title the Oojabi family was entitled to fill. The appointment and installation of the 7th Defendant, as the Ba’ale of Sango-Otta, therefore, are null, void and of no effect being in breach of the native law and custom of the Otta people governing the Chieftaincy. By the custom, a Baale of Sango-Otta must be selected by the Oojabi family, whose turn it then was, and presented to the Ajana through the Erika family and to the Olota of Otta, the prescribed authority. Oba T. T. Dada was the Olota of Otta, 1st Plaintiff had been selected and his name sent to the Olota through the Erika and Ajana families for approval and installation by Olota as the Saale of Sango-Otta. Instead, the 7th defendant was approved and installed by the Olota as the Baale of Sango-Otta. It is the Plaintiffs further case that the 1st Defendant was present at the Oojabi family meeting where the 1st Plaintiff was selected and a decision taken to send his name as the family candidate for the vacant Baale of Sango-Otta’s Chieftaincy title. 7th Defendant inspite of the protests against his presence in the family meeting even prayed for the 1st Plaintiff after the latter’s selection.

The case for the 1st-4th Defendants is that they are not necessary, desirable or proper parties and Plaintiffs’ case amounts to abuse of the process of the court. The 2nd-4th Defendants in particular, averred that their appointment as the Regency-in-Council after the death of the then Olota of Otta on 15th January, 1992 was for a period of three month. They were never further reconstituted. All the same, they denied Plaintiffs’ claim.

The case for the 5th-7th Defendants is that the 7th Defendant is throughout the material time, a member, indeed the Head of the Oojabi family since 1972. 7th Defendant’s headship of the family is evidenced by a Judgment of the lower court in suit No.HCL/44/80 wherein he featured as 1st plaintiff representing the Oojabi family. The judgment has confirmed 7th Defendant the head of the Oojabi family. It is their further case that 7th Defendant’s name was selected at the Oojabi family meeting of February 6th, 1988 and forwarded to the Ilupoju Ijana Development Council representing the whole Awori indigenes. 7th Defendant’s name was sent by Chief L. A. Akinremi the Ajana of Otta vide a letter dated 15th February, 1988 to the Olota of Otta, the prescribed authority, who on approval installed the 7th Defendant the Baale of Sango-Otta on 20th February, 1988. The Olota of Otta also issued the 7th Defendant a testimonial, Exhibit ‘F’, dated 20/2/88 signifying his approval and the installation of the 7th Defendant.

After Counsel addresses, the lower court found that Plaintiffs had failed to prove their case and dismissed same with costs. Being dissatisfied, Plaintiffs have appealed against the court’s judgment dated 3rd March, 1998 on a notice dated 25/5/98 but filed on 1/6/98 containing seventeen grounds of appeal.

It is important to state that after the delivery of the judgment herein appealed against, the 7th Defendant, Chief J. Akinbiyi, died. On Appellants’ application, Chief J. Akinbiyi Ojo was substituted by Chief Ebenezer Akanbi Akilo who, on the death of the former, was installed the new Baale. The Attorney General, Ogun State, the 1st Defendant substituted for the Regency-in-Council at the lower court had before the hearing of this appeal, notified this court and other parties to the appeal of his wish not to be present either in person or to be represented by Counsel at the hearing of the appeal. From the record, therefore, the Attorney General is a substitute for the late Oba T. T. Dada, the prescribed authority. He neither filed nor was any brief of argument filed on his behalf.

Learned Counsel for Respondents on record other than the Attorney General had filed two notices of motion, one on a preliminary objection challenging the competence of the appeal and the other contending that the judgment being appealed against be affirmed on other grounds. Arguments in respect of both notices are contained in the amended brief of the three Respondents settled by O. T. Akinbiyi of Counsel.

Parties to the appeal have filed and exchanged their respective briefs of arguments including the Appellants’ Reply Brief which is substantially in answer to the arguments on the two notices in the Respondents brief. Since the notice of preliminary objection touches on the jurisdiction of this court to even hear the appeal, same shall be addressed instantly to forestall the futile exercise of entertaining the appeal in the absence of jurisdiction so to do and waste of the court’s as well as the parties’ time should the preliminary objection prove meritorious.

THE PRELIMINARY OBJECTION

Arguing the preliminary objection in their brief, Learned Respondents’ Counsel contended that 3rd Respondent was only substituted in this court as successor-in-title to the 7th Defendant. The suit against the 7th Defendant was neither instituted nor defended in representative capacity. 3rd Respondent had not been shown to be representative of interest to the 7th Defendant. The 3rd Respondent had neither been shown to be aware of the suit at the lower court nor to be a member of the Oojabi family on which platform the 7th Defendant became the Baale and 1st Appellant contested for the Chieftaincy against the former. Counsel cited and relied on: YUSUF Vs. AKINDIPE (2000) 5 SCNJ 128; GENERAL HASSAN v. YAKUBU (RTD) Vs. GOVERNOR KOGI STATE & ORS (1995) 9 SCNJ 122; GREEN Vs. GREEN (1987) N.S.C.C.) (Pt. 2) 115; UNION BEVERAGES LTD Vs. PEPSI COLA INTERNATIONAL LTD. (1994) 2 SCNJ 157 At 174.

In further argument, Learned Counsel submitted that with the death of the 7th Defendant, his cause of action had also died with him leaving nothing for the 3rd Respondent to be substituted for. All the reliefs claimed against the 7th Defendant were personal to him and none had survived him for same to be further defended by the 3rd Respondent. Counsel relied on OSAGUNNA Vs. THE MILITARY GOVERNOR OF EKITI STATE & 6 ORS (2001) Vol. 3 MJSC 142 At 164-165 And MOMODU & ORS Vs. MOMOU & ORS (1991) 2 SCNJ 15 And OKETIE Vs. OLUGHOR (1995) 5 SCNJ 217. Finally, it is argued that the lower court’s decision admitting Exhibit F being an interlocutory one had been appealed against with neither the required leave nor within the time prescribed by law. Any appeal on such a ground without leave and outside the prescribed time is incompetent and should be discountenanced. Learned Counsel relied on LAMAI Vs. ORBIH (1980) 5-7 SC 28; C.C.H. NIG. LTD. Vs. EMEKA OGWURU (1993) 3 NSCC 352 And BOLEX Vs. INCAR (1997) 7 SCNJ 194 and urged us to strike out the appeal for being incompetent.

In reply, Learned Appellants’ Counsel conceded that 3rd Respondent was not a party to the action at the trial court which action brought about the instant appeal. The 3rd Respondent who would however be affected by the outcome of the appeal is, on the authority of MOBIL, OIL PLC. Vs. D.E.N.R. LTD (2004) 1 NWLR (Pt. 853) 142 At 157, a necessary party. Once the appointment and installation of the 7th Defendant is found to be illegal, the subsequent appointment and installation of the 3rd Respondent would be affected as well. It is further argued that 3rd Respondent had become a party to this appeal following Appellants’ application dated 20-5-02 and this court’s order of 30-10-02. The Respondents did not oppose the application then so they are estopped from now challenging the legality of the order.

Learned Appellant Counsel also submitted that Chieftaincy matters do survive the initial parties. The death of the 7th Defendant, therefore, would not render the appeal incompetent. Learned Counsel buttressed his submission with RE: ADEOSUN (2001) 8 NWLR (Pt. 714) 200 At 215. In further contention, Learned Counsel argued that the trial court did not make any pronouncement that was personal to the 7th Defendant, yet 3rd Respondent cannot be said not to have succeeded the 7th Defendant. Finally, Learned Counsel submitted that by virtue of the decision in ONWE Vs. OKE (2001) 3 NWLR (Pt.700) 406 At 418 the law allows an Appellant without seeking leave, once his appeal pertains the wrongful admission or rejection of evidence to so appeal after final judgment in the matter. Counsel concluded that Respondents’ objection is incompetent and urged that it be dismissed.

Now, is this appeal, for any of or all the reasons advanced by the Respondents incompetent? I think not. The instant appeal is predicated on a notice containing seventeen grounds of appeal. The assertion that the entire appeal is incompetent following the incompetence of the lone ground against the interlocutory decision of the trial court on the wrongful admission of a document is incorrect for at least two reasons. Firstly, this appeal endures even where Respondent’s objection as to the competence of the fourth ground of appeal which is ostensibly from the interlocutory decision of the lower court succeeds. The appeal survives on the basis of the other grounds of appeal which competence the Respondents have not challenged. Respondents’ preliminary objection purely on the basis of a single ground of appeal is clearly misconceived as preliminary objections are validly taken against the hearing of an appeal and not against one or more grounds of appeal which, on being discountenanced, are incapable of bringing the hearing of the appeal to a stop. In the instant case where Learned Respondents’ Counsel has not succeeded in showing by his contention that the entire appeal rather than a single ground of appeal is fundamentally defective and incompetent, he has not made appropriate use of the process provided for under Order 10 Rule 1 of the 2007 Rules of this Court which provided for preliminary objections. See BENUE STATE Vs. ULEGEDE (2001) 17 NWLR (Pt.741) 194 SC And NATIONAL ELECTRIC POWER AUTHORITY Vs. ANGO (2001) 15 NWLR (Pt.737) 627.

Secondly, Learned Counsel’s objection to the 4th ground in the notice of appeal is because the ground raises a complaint against the interlocutory decision of the lower court and had neither been filed within the time prescribed by Section 25 of the Court of Appeal Act nor with the leave of court. For ease of reference, the 4th ground of appeal inclusive of its particulars is hereunder supplied.

“(4) The Learned trial Judge erred in law when he held that Exhibit ‘F’ (the testimonial) shows that the 7th Defendant had been installed, the Baale of Sango-Otta in accordance with Native Law and Custom of Otta and also in accordance with Ogun State Chieftaincy Law.

PARTICULARS OF ERROR

(i) The Defendant witnesses did not give evidence on the content of the said Exhibit ‘F’

(ii) The said Exhibit ‘F’ was wrongly admitted in evidence, the 7th Defendant having earlier closed his case.

(iii) Court ought to have called address on the value of Exhibit ‘F”‘.

The question which yearns for answer here pertaining the foregoing ground vis-a-vis the objection of Counsel is: When did the lower court rely on Exhibit ‘F’ and make the finding which the Appellants aver by virtue of the ground of appeal to be wrong? Was the decision to the effect that “Exhibit F (the testimonial) shows that the 7th Defendant had been installed the Baale of Sango-Otta in accordance with the Law and Custom of Otta and also in accordance with Ogun State Chieftaincy Law” made when Exhibit F was being admitted or in the final judgment of the court? The finding complained or is to be found in the body at the court’s trial judgment on the matter in controversy thereby believing Learned Counsel’s contention that same relates to the lower court’s interlocutory decision.

Though Courts admit evidence in the course of trial, the use of same abides the conclusion of hearing and is made at the time the court writes its final judgment in the matter. This explains why the courts retain their powers of expunging such evidence that had been wrongly admitted in the course of trial when the courts decide finally on the admissibility of the evidence as well the probative value to attach to same in the course of writing their judgments. See OLANLOYE Vs. FATUNBI (1999) 8 NWLR (Pt. 614) 203 At 230; IKENNA Vs. BOSAH (1997) 3 NWLR (Pt. 494) 439; SALAUDEEN Vs. MAMMAN (2000) 14 NWLR (Pt. 686) 63 At 75. It is partly for this reason that a complaint against wrongful admission of evidence is never regarded as being against the court’s interlocutory decision. The reference by Learned Appellant Counsel in their Reply Brief to the Supreme Court’s decision in ONWE VS. OKE supra and more particularly the dictum of Ejiwunmi JSC hereunder reproduced for its apt relevance is apposite. His lordship stated at Page 418 of the Law Report as follows:-

“…Ordinarily, where an Appellant failed to appeal against an interlocutory Order or Ruling of a trial court within the time prescribed by Section 25(2)(a) of the Court of Appeal Act 1976, he must obtain the leave of court for his appeal to be competent. Where on the other hand, the competence of the Appeal against the Ruling is concerned with the wrongful admission of evidence or wrongful rejection of evidence, such an Appellant would not require the leave of court as the Ruling appealed against is not regarded as interlocutory decision.

The Appellant may therefore include the ground of appeal against that ruling of the trial court when appealing against the final judgment of the trial court. (underlining supplied for effect)

In the instant case, Appellant’s 4 ground at appeal is essentially not against the interlocutory decision of the trial court in admitting Exhibit ‘F’ into evidence. But even if it is, on the authority of the Apex court’s decision in WEMA BANK (NIGERIA) PLC. Vs. N. S. E. LTD. (1997) 8 NWLR (Pt. 515) 1 as further applied in ONWE VS. OKE supra, the ground being on the trial court’s wrongful admission of evidence, is competent. Respondents’ preliminary objection to the ground that it be otherwise adjudged accordingly fails.

The last leg of Respondents’ objection hinges on the fact of the death of Chief Akinbiyi Ojo. It is averred that being the person whose selection and installation the instant suit is all about, his death had brought to an end Appellants’ cause of action that had not survived the late Chief Akinbiyi Ojo. 3rd Respondent who had nothing to do with the matter was wrongly joined. The two decisions of the Supreme Court Learned Counsel for the Appellants referred us in his reply to Respondents’ Counsel’s arguments on this leg of the objection proffer a ready solution to this particular skirmish, The two decisions are MOMODU VS. MOMOH (1991) 1 NWLR (Pt.169) 608 and JOSEPH ADEBAYO OSAGUNNA Vs. THE MILITARY GOVERNOR OF EKITI STATE & 6 ORS IN RE: AYOOLA ADEOSUN supra. Looking at the pleadings of both sides in this matter, the suit had been initiated and defended in representative capacity. Plaintiffs had averred and attempted to establish for themselves and on behalf of the Oojabi family that 1st Plaintiff as well as the family are entitled to the Baale Chieftaincy. Chief Akinbiyi Ojo also defended the suit for himself and on behalf of the Oojabi family along with the Olota of Otta, the prescribed authority who equally stood for the Otta Society.

By Order 15 Rules 3 of the 2007 court of Appeal Rules which is materially the same as Order 8 Rule 9(5) of the Supreme Court Rules 1985 considered and applied in both MOMODU Vs. MOMOH and RE: AYOOLA ADEOSUN supra, in the instant case which was fought in representative capacity, the cause of action for that reason survives. It is a necessary function of this court in order to bring the matter to a close to have allowed the substitution of the 7th Defendant by the 3rd Respondent herein who on being appointed and installed Baale after the death of the 7th Defendant has clear interest in the outcome of the dispute. See OKONJI Vs. NJOKANMA (1984) 4 NWLR (pt.114) 161 At 166. Again, there is the feeble concern expressed by Learned Appellants Counsel that this Court cannot review its own decision joining the 3rd Respondent as a party to the appeal following Appellants application to that effect and the courts invocation of its powers under its rules. This concern, in my considered view, cannot be glossed over. Rather, it must be amplified. Since the court of Appeal Rules which empowered the court to make the order in the first place does not empower the court to set-aside same and the order had not been shown to be, for any other reason, a nullity, it is an order that must persist even if wrongly made, a fact which nobody has suggested and one the law does not concede. See CHIEF IRO OGBU & 3 ORS V. CHIEF OGBURU and OTHER (1981) ALL NLR 324 AT 335. From the foregoing, the objection levied by the Respondents, must and is hereby overruled. The appeal which endures will now be considered on its merits.

THE APPEAL

The Appellants have formulated six issues for the determination of this appeal a follows:-

(i) Whether the Learned Trial Judge was right to have held that the installation or purported installation of the 7th Defendant/Respondent (Chief J. Akinbiyi Ojo) was in accordance with the Native Law and Custom of Otta;

(ii) Whether the Learned Trial Judge was right to have held that the selection of the 1st Plaintiff was proper.

(iii) Whether in the light of the pleading and evidence led in this case, the case of the Plaintiff is not more probable than that of the Defendant or whether the Plaintiffs have not proved their case?

(iv) Whether the 7th Defendant (Chief Akinbiyi Ojo) was qualified to be selected or appointment as the candidate or Baale of Sango Otta?

(v) Whether the Learned Trial Judge acted correctly in law in considering the evidence of the 7th Defendant (Chief S. Akinbiyi Ojo) and his witnesses in view of his holding that his statement of defence was no longer before the court.

(vi) Whether the Learned Trial Judge was right to have allowed the 7th Defendant (Chief Akinbiyi Ojo) to reopen his case when he had earlier closed his case also whether the Learned Trial Judge ought to have considered his evidence at all having regard to the holding that his defence was not before the court.

The 2nd-4th Respondents brief contains seven issues considered necessary for the determination of the appeal. The issues read:-

(i) Whether there was any reasonable cause of action against the 2nd Respondent;

(ii) Whether the 1st and 4th Defendant before the trial court had locus standi in the case or whether there was any reasonable cause of action against them;

(iii) Whether an action could be for an Order of injunction to restrain an act which has been done.

(iv) Whether the Learned Trial Judge was right to hold that the installation of the 7th Defendant was proper;.

(v) Whether the Learned Trial Judge was right to hold that the selection of the 1st Appellant as Baale elect of Sango Otta was improper;

(vi) Whether the Learned Trial Judge acted correctly in the circumstances in considering the evidence of the 7th Defendant and his witnesses;

(vii) Whether the Learned Trial Judge was right to have allowed the 7th Defendant to re-open his case to tender a document after he had earlier closed the same,

Looking at the set of issues formulated by both sides to this appeal, those constituting the other grounds on the basis of which the Respondents contend the judgment being appealed should be affirmed excepted in the estimation, both sides to the appeal are guilty of proliferating issues which conduct this court has persistently frowned at. See: MAIDARA VS. HALILU (2000) 13 NWLR (PT 684) 257 CA AND CLAY IND. (MIG) LTD VS. AINA (1997) 8 NWLR (PT.516) 208 SC. In particular, Appellants’ grouse against the judgment of the lower court is about the court’s failure to find for them inspite of their pleadings and evidence which in their estimation had entitled them to all the reliefs they claimed. Added to this are the collateral complaints that the court had found for the Defendants inspite of the court’s findings that the Defendants never had any pleadings and evidence thereon on the basis of which the court could make any finding and still after the Defendants had been wrongly allowed to reopen their case.

The Appellants cause of action is about the wrongful selection, approval and installation of the 7th Defendant as the Baale of Sango Otta Conversely put, it is about the wrongful exclusion, non approval and non installation of the 1st Appellant to the Bale Chieftaincy. By the appeal, the Appellants are saying that the lower court has wrongly denied them the reliefs they have canvassed thereat and are entitled to by law. This shortcoming, if it is, does not justify the formulation of the high number of issues by both parties to this appeal. This informs the resolve to consider the appeal largely on the basis of Appellants’ 3rd issue which subsumes all others except the 5th and the 6th issues dealing with the trial court is resort to the evidence of the respondents without any pleadings from which the evidence emanated and the further error of allowing the Defendants to re-open their case after same had been closed. The first three issues in the Respondents brief are ostensibly drafted pursuant to the Respondents notice and they would be considered in that light. So, the issues for the determination of this appeal now draw squarely from the omnibus ground of appeal. Added to this main issue is whether or not the lower court is right in allowing the Defendants re-open their case after same had been closed. The issue on the court’s resort to the evidence led by the respondents in the absence of pleadings thereto is incompetent as same is not borne out by the record of appeal. The statement of defence filed by Mr. Oriode at pages 138-142 of the record for the original defendants endures in relation to the 5th-7th respondents herein. The issue is accordingly struckout. All arguments proffered by counsel will be streamlined and considered along the two issues framed by this court.

In arguing the main issues as framed above, Learned Appellants Counsel contends that it is wrong for the lower court to hold that 7th Defendant’s installation as the Baale is proper simply because the Olota had given his approval thereto and issued Exhibit ‘F’ the testimonial of the said appointment. 7th Defendants selection for and the Olota’s approval and installation of the said 7th Defendant that was not in compliance of the detailed procedure put in place by the custom and practices of the Otta people dealing with the Chieftaincy is not only irregular but void.

Learned Counsel submitted that their further amended statement of claim of 16th Januar, 1996 and the evidence of their witnesses established what the procedure for the Baale Chieftaincy is. None of the Defendants challenged let alone contradicted the evidence of the Plaintiffs/Appellants in this regard. Outside the evidence given by the Plaintiffs on the procedure for filling the Baale Chieftaincy stool, Abimbola Kelani Pw4 had independently testified on the tradition. The Plaintiffs prayers that had so met the requirement of the law needed to have been granted and the court’s refusal, Learned Counsel submitted, is accordingly wrong. Learned Counsel supported these submissions with ALFONTRIN LTD. Vs. A. G. FEDERATION (1996) 9 NWLR (Pt. 495) 634 At 661 and OYEDIRAN VS. ALEBIOSU II (1992) 6 NWLR (Pt. 249) 550.

In further argument, Learned Appellants’ Counsel submitted that the lower court’s findings that the 1st Plaintiff/Appellant was improperly selected since the selection was done at a meeting that was not presided by the head of the Oojabi family is informed by the trial judge’s wrong application of principles applicable in land matters to those in the instant case. In Chieftaincy matters, Counsel argued, all that is important is the selection of the candidate rather than the manner the selection was arrived at and who presided over the proceedings. The question to further answer and the court declined to is whether the 7th Defendant could preside over a meeting wherein he himself emerged as the family’s candidate. From the evidence and pleadings of both sides, it is submitted, 1st Plaintiff’s/Appellants selection was earlier in time to 7th Defendant’s purported selection. The latter was present at the meeting where the former was selected. 7th Defendant cannot resile from either the fact that Madam Adeeye Ajoje who authorized Madam Aina Ebe to preside over the meeting was indeed the head of the family or that he had attended the meeting and even endorsed the selection of the 1st Plaintiff/Appellant. The issue as to who the head of the family is, submitted Learned Appellants Counsel, was raised suo motu by the court which proceeded to determine the issue without being addressed by parties. On the authority of OKORO Vs. OKORO (1998) 3 NWLR (Pt. 540) 65, such a finding is illegal and needs to be set aside.

It is further contended that 7th Defendant had himself testified that his father being from Aro Compound and that he was related to the Oojabi family through his mother. The trial court’s finding that the 7th Defendant is from Oojabi family and thereby qualified to contest the Baale Chieftaincy is palpably erroneous. The trial court, cannot, on the basis of issue estoppel, rely on the judgment in suit HCL/44/80 to conclude that 7th Defendant is a member as well as the head of the Oojabi family, a fact the 7th Defendant did not aver to in their pleading. For issue estoppels to avail the 7th Defendant, he must give evidence as to the sameness of the parties, issues and the subject matter in Suit HCT/44/80 for same to be compared with those in the instant suit. 7th defendant did not so the defence does not avail him. Counsel relied on ADEBAYO Vs. BABALOLA (1995) 7 NWLR (Pt.408) 383 At 403.

Finally, Learned Counsel contended that in allowing the Defendants to re-open their case the court did not ensure compliance with all preconditions to be met before a party is allowed to recall his witness. The lapse argued Counsel who relied on OMOREGBE Vs. LAWANI (1980) 3-4 SC 108, is fatal and goes to the root of the justice of the trial court’s decision. Learned Counsel concluded by urging that the appeal be allowed.

In reply, Learned Respondents Counsel submitted that all the findings of the trial judge on the various issues raised by the Appellants are based on the pleadings and evidence before the court and the overriding principle is that it is the Appellants burden to prove their case.

Once, for instance, it has appeared from the evidence that 7th Defendant is the head of the Oojabi family since 1972, and up to the time material to this case, Appellants case collapses for the same Appellants have averred that the meeting whereat the 1st Appellant was selected was presided by an acting family head at the instance of the real Head of the family who was then indisposed. Once the selection of the 1st Appellant for the chieftaincy is shown to be improper, all else will equally be so affected. Appellants must accept the principle that they are bound by their pleadings and that the court had to act only on such of those pleadings which are proved by credible evidence. Learned Counsel support these submissions with the decisions in pleadings that credible evidence had been supplied. Counsel cannot approbate and reprobate at the same time. Learned Counsel supported these submissions with the decisions in YEFURU AMIDUN & ORS VS. OSHOBOJA (1984) N.S.C.C. 531 and ONYIA vs. ONIAH & ORS (1989) 1 N.S.C.C. 319.

Learned Respondents counsel further argued that the contention of Learned Appellants counsel that the court’s consideration of the evidence of the Respondents is wrong because Respondents pleadings having preceded Appellants’ further amended statement of claim the former had no pleadings to sustain the evidence led, is incorrect. The subsequent amendment by the Appellants of their pleadings did not render invalid statement of defence that was filed against this against this statement of claim that was in existence before coming into being of the further statement of claim. It would be unjust, rules on amendments apart, to exclude the Respondents case on this basis. Counsel relied on ODINAKA & ANOR vs. MOSHALU (1992) 23 N.S.C.C. (Pt.1) 625.

It is also submitted by Counsel that Appellants’ 6th issue challenging the trial courts’ decision allowing the Respondents to reopen their case being an interlocutory decision of the trial court remains incompetent as same was filed along with the notice of appeal against the final decision of the trial court outside the time prescribed by law for the filing of interlocutory appeals. The competence of the appeal apart, the decision to allow the 7th Defendant re-open their case was to ensure that the original of a document which the 7th Defendant wanted to put in evidence but was misplaced by his Counsel when he gave evidence the first time, was made available to the court. The trial court would have been unduly technical if the vital evidence is left out.

In relation to the Respondents’ notice seeking this court to affirm the judgment appealed against on grounds other than those on which the trial court based its judgment, Learned Counsel for the Respondents proffered three reasons. It is argued that the Appellants never had a reasonable cause of action against the 2nd Respondent. Since nothing was either alleged or proved against the 2nd Respondent the case against the 2nd Respondent ought to have been dismissed. The 1st and 4th Defendants (sic) before the trial court were not necessary parties and the matter should not have been decided with them as parties. They never had any locus standi. Finally and relying on the case of JOHN HOLT LTD. & ANOR Vs. HOLTS AFRICAN WORKERS UNION (1963) N.S.C.C. 315 At 318, Learned Counsel submitted that the instant action ought to have been dismissed since the injunctive relief sought by the Appellants is never available against a completed act.

In the Appellants Reply Brief. Learned Appellants Counsel have joined issues with the Respondents wherein it is submitted that Respondents cannot raise these issues without the leave of the court and having done so without the leave, the issues are incompetent and same should be discountenanced. Counsel relied on NORTH-SOUTH PETROLUEM (NIG) LTD. Vs. FGN (2002) 17 NWLR (Pt. 797) 639 At 654 and NITEL Vs. OCHOLI (2001) 10 NWLR (Pt.720) 188 At 209.18

In determining this appeal, the crucial issue to resolve is whether or not the Appellants herein are correct in their allegation that the trial court is wrong in its specific findings as well as general decision regarding their claim. This of course touches on the lower court’s evaluation of evidence of the opposing sides in relation to their pleadings and the trial court’s findings thereto. We would of course also decide if the leave granted to the Respondents to re-open their case warrant our allowing this appeal.

Learned counsel to the plaintiffs, the Appellants herein, was right in submitting five issues, given their claim and the evidence proffered, and asking the trial court to consider in resolving their case. These issues are.

“(1) who was the Head of Oojabi family at the time the 1st plaintiff was selected as the Ba’ale of Sango Otta? Was it the 4th Plaintiff Madam Adeeye Ajoje or the 7th defendant Chief 1. Akinbiyi Ojo?

(2) If the answer to (1) is that Madam Adeeye Ajoje was the Head of the family when the next issue is whether the 7th defendant is a member of the Oojabi family.

(3) If the answer to (1) is that the 7th defendant was the head of the Oojabi family, then automatically he is a members of the Oojabi family.

(4) if the 7th Defendant was the Head of Oojabi family at the time the 1st plaintiff was selected the Ba’ale of Sango Otta, what is the effect of his selection at a family presided over by Madam Adeeye Ajoje or Madam Victoria Aina definitising for Madam Ajoje who was not the Head of the Oojabi family?

(5) If the 7th defendant is not a member of Oojabi family, then automatically he could not be selected as the Ba’ale of Sango Otta.

(6) If the 7th Defendant is a member of Oojabi family, was his appointment his Baale of Sango Otta in accordance with the native law and custom of Oojabi family relating to the appointment of Baale of Sango Otta?”

In the lower court resolution of the above issues it started with the 1st and 3rd issues jointly. The court had resolve to the pleadings of the parties and the evidence relevant to these pleadings.

The court referred to paragraphs 26, 28, 29 and 30 in the Plaintiffs pleadings which read thus:-

“26. The name if the 8th defendant’s father is Gabriel Akinleye Ojo

28. The plaintiffs state further that Ibikule Igi-Agbede was a tenant to Oojabi family during the headship of Oduyomi.
29. During the headship of Oduyomi, Ibikunle Igi-Agbede were (sic) accommodated given land to cultivate and that he Igi-Agbede enjoyed the cooperation of Ojabi family to the extent that strangers make the mistake of treating or regarding Ibikunle Igiaggbede’s family and descendants as members of Oojabi family.
30. The plaintiffs will lead evidence to prove that Talabi was originally married to one Ogunsina before she divorced him and later got married to Ibikunle Igiagbede.”

The court also referred to paragraphs 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28 of the 5th-7th defendants amended statement of defence. These are reproduced hereunder for ease of reference. “19. The 7th defendant is a descendant of Oojabi, who was the ancestor of Oojabi family of Otta and the founder and owner, under the Native Law and Custom of the Yoruba, of a vast area of land situate at Sango Otta, Ogun State, Nigeria.

20. Oojabi who was an Awori man settled in Sango Otta, Ogun State, Nigeria about 200 years ago when he begat three children, namely, Alaba, Agu and Ibirun.
21. The three children of Oojabi were confirmed in the two cases, suit No. 26CV/75 of the Customary Court of Ogun State and suit No. HCL/44/80 of the High Court of Justice, Ogun State, Nigeria as Alaba, Agu and Ibirun.
22. Alaba begat Aina oro who begat Ibikunle Igi-Agbede and Abatan. Abatan begat Ogunwande who begat Lasisi Erinle, whilst Ibikunle Igi Agbede begat Madam Tonade who was the mother of the 7th defendant, Chief J. Akinbiyi Ojo the Baale of Sango Otta.

23, Agu begat Odiyomi who had several children including Omoogboku, Ogbondemi, Ajiboye Ajoje and yole, Ogbondemi begat Tinuade who is the mother of Ezekiel Laleye.

24. Ibirun begat Olamwunmi who begat Omose mother of Agbale who begat Odu mother of Taiwo Ike who begat Alhaji Aminu Ogunleye.
25. Omoogboku begat Salami Ajayi who begat Zaeed A. Ajayi and Nurudeen Ajayi – 1st and 2nd plaintiffs.
26. Yole begat Otolorin mother of Modinat Yole the 3rd plaintiff.
27. Ajiboye Ajoje begat Adeeye Ajoje the 4th plaintiff.
28. The 7th Defendant is a descendant of Ibikunle Igi-Agbede whose wife was not Talabi as alleged by the plaintiffs.”

The court resorted to 1st Plaintiffs evidence in Chief and cross examination relevant to the averments in the amended statement of claim. 1st Plaintiffs evidence in chief relevant to these issues read:-

“My father told me that the name of his father was Gabriel Ojo. My father was from Ilesha……. I do not know Ibikunle Igi-Agbede. My father told me about him that he was his neighbor and that the name of his father is Aina Aro. Both Igi-Agbede and Aina Aro are not related to my father”

PW1 in the course of cross examination stated:-

“Ibikunle – Igi-Agbede was the neighbor of my father. It is also true that he was a tenant to my father paying rent. He was given a room to live in compound. He rented a parcel of land in Sango and Idiaba via Idiroko. He was not paying rent on the land as he also worked for my father”

On their part, the 5th-7th defendants through Dw2, Lasisi Erinle gave evidence in chief thus:

“I am related to Oojabi family. Ogati begat (3) three children namely (i) Agu (ii) Ibirun and Alaba. I am related to Oojabi through Alaba. Alaba begat the father of my mother – my maternal grandmother. The name of my mother is Abinatu Ogunwede. The name of her father was Abatan. The 7th defendant is related to my mother by name Abinatu Ogunwede. The name of the mother of the in defendant is Tonade father is Ibikunle. Alaba is the father of Ibikunle. The 1st Plaintiff is related to Agu whose father is Oojabi the father of Salami Ajayi in one Ogboku and Salami Ajayi begat the Plaintiff. Agu begat Omo Ogboku.”

Under cross examination, DW2 told the court, inter-alia, thus:-

“Abatan is my maternal grandfather. It is not true that Oojabi begat only Agu and Ibirun. He begat (3) three children and not two. It is not true that Igi-Agbede brought David Abatan into Oojabi family.”

The 7th defendant as Dw4 corroborated the foregoing testimony and further referred to Exhibit E, suit No HCL/44/80 where it was held as follows:-

The Plaintiff and his witnesses have been able to prove to the satisfaction of this court by preponderance of evidence that the 1st Plaintiff has been approved head of Oojabi family since 1972 and has been performing the duties of the office. These is also evidence that the 1st plaintiff and the principal members of Oojabi family did not sell or consent to sell their family land to any of the 1st – 3rd defendants.”

The plaintiffs in suit No. HCL.44/80 is the 7th defendant in the instant suit. In resolving the issues the trial court at page 204 of the record held as follows:-

“From above, the evidence of the defendants are more reliable than that of the plaintiffs. The defendants gave a detailed geneology of their family history. This evidence is plausible. That is not all, the evidence is confirmed by the decision of the court in HCL/44/80 which decision decides the issue of the Head of Oojabi family which is an issue in this case. parties in the two cases are the same – Oojabi family and the decision is final. The family is bound by this decision and thus stopped from denying the fact.”

The lower court held its finding on the 1st and 3rd issues to have taken care of the 2nd, 4th and the 5th issues formulated by plaintiffs counsel for the determination of the case before it. Further drawing from the same findings, the court resolved the sixth issue thus:-

“The sixth of last issue is whether the 7th defendant as a members of Oojabi family was validly nominated as the Ba’ale or whether he was validly selected and appointed the Ba’ale of Sango Otta. It is the case of the defendants that the 7th defendant has been installed the Baale of Sango Otta on February 20th, 1988. The plaintiffs admit that the 7th defendant has been installed the Baale but said that the installation was unjust and against custom. The burden is on the plaintiff to prove that the 7th defendant was not selected in accordance with the custom and not presented to the Olota through the Ajana… It is on the totality of the evidence of both parties that I prefer the case of the defendant’s to that of the plaintiff and moreover it is for the plaintiffs to prove their case and this they have failed to do.”

I find the foregoing critical findings of the Lower Court, which the Appellants herein contend are wrong, unassailable. I need to stress that the 7th Defendant never had any counter-claim before the lower court which the law required him to establish. The lower court is on a solid ground to have held that the burden remained entirely on the Appellants to prove their case and they succeed solely on the strength of the case they make See: ODUKWE VS. OGUNBIYI (1998) 8 NWLR (PT.561) 339 AT 354 SC and KODILINYE VS. ODU (1935) WACA 336 AT 337. It is a common ground between the parties that a lawful appointment and installation to the Baale vacant stool required the selection of a candidate by the Oojabi family whose turn it was to occupy the stool, the presentation of the selected candidate to the Olota who then approves and installs the candidate. The only point of divergence is that whereas the plaintiffs had averred that the candidate must be presented through the Erinko family, the defendants averred that it needed not necessarily be so. Since it is the Appellants case, they must prove not only the lawful selection of the 1st Appellant and his presentation to, but also the Olota’s wrongful refusal to approve and install him. The lawful selection and presentation of the 1st Appellant to the Olota is a condition precedent to the approval of the Olota and subsequent installation by him of the 1st Appellant. In Appellants failure to prove the lawful selection of the 1st Appellant lies the end of their case.

Whether one views the lower court’s decision from the oral evidence of both sides alone or in the light of Exhibit E the judgment in suit No HCL/44/80, the conclusion is the same that there is ample evidence justifying the lower court’s crucial finding that 1st Appellant was not the candidate the Oojabi family selected for the Baale Chieftaincy. From the preponderance of the oral account given in proof of their pleadings, the imaginary scale tills more against the Appellants. Evidence abounds which the trial court relied on to conclude that the 7th defendant rather than Adeeye Ajose, the 4th plaintiff, is the head of the Oojabi family. The oral evidence proffered in defence by the Respondents reveals that 7th defendant is a member of the Oojabi family through his mother, which evidence the trial court is free and chose to believe. The Appellants have not shown that it is unreasonable for the trial court to have so believed this evidence in arriving at the findings they have appealed against. This court must concede to the trial court its primary function of evaluating the evidence led before it more so when the task touches on the credibility of the witnesses who gave the account on the basis of which the findings attacked in this appeal were made. See: OKENE VS. ORIANWO (1998) 9 NWLR (PT 566) 408 CA, OKEARA VS. OKWARA (1997) 9 NWLR CPT 527) 160 CA and SHA (JNR) VS. KWAN (2000) 12 NWLR (PT 670) 685 SC.

A second perspective to view the lower court conclusions is the use the court made of Exhibit E, the judgment in suit HCL/44/80 wherein the 7th defendant being the 1st plaintiff is adjudged “the head of Oojabi family since 1972 and has been performing the duties of the office” and that the absence of his consent and those of the principal members of the Oojabi family made the land transaction in issue in that particular suit void. In the instant case Appellants have pleaded that the head of the Oojabi family must endorse the family’s candidate to the vacant Bale stool.- They also asserted that the 7th defendant is neither a member nor the Head of the Oojabi family. To them, Madam Adeeye Ajose, the 4th Appellant is the head of the family. The respondents in joining issues with the Appellants averred in their statement of defence thus:-

28. The 7th defendant is a descendant of Ibikunle Igi-Agbede whose wife was not Talabi as alleged by the plaintiffs.
29. The 7th defendant was appointed the Head of Oojabi family of Sango Otta, Ogun State, Nigeria sometime in 1972 and had since then been performing the duties of his office as the Head of the family.
30. The Honourable Justice O. O. Odunlami confirmed that the 7th defendant is the Head of Oojabi family of Sango Otta, Ogun State in the judgment dated 14th May, 1985 in suit No.HCL/44/88 between the 7th defendant as a Representative of Oojabi family and Alhaji Basiru Imam.
31. The 7th Defendant was also declared the Head of Oojabi family by the Hon. Justice C.A. Sekoni when he was the customary Court President in a judgment delivered on the 4th day of April, 1979 in suit No. 26CV/75 between Iyabo Ogunleye and Ganiyu Akanbi Ajayi.
32. The Defendant aver that the name of the first plaintiff was not sent to the First and second Defendants for approval as a candidate to be installed the Baale of Sango Otta and that the alleged nomination and election or appointment of the 1st plaintiff by any faction or Branch of the Oojabi Family as a candidate for the post of the Baale of Sango Otta is a nullity because the nomination and appointment of the first plaintiff was not made with the approval of the 7th Defendant as the officially recognized Head of Oojabi Family otherwise called Oojabi family and that the customary traditional procedure was not followed by those who appointed the first plaintiff.
33. The Defendants aver that the action of the Plaintiffs is frivolous, vexatious, speculative and an abuse of the process of this Honourable Court and that the said action should be dismissed with substantial costs of N25,000.00 (Twenty-Five Thousand Naira) in order to serve as a deterrent to others in future.

In proof of the above paragraphs, the 7th defendant testified and had Exhibit E admitted through him by the court. No member of the Oojabi family is free to assert the contrary of the issues pronounced upon in Exhibit E by a court of competent jurisdiction. See HARUNA V. ASHIRU (1999) 7 NWLR(PT 612) 579 CA AND OSHODI V. EYIFUNMI (2000) 13 NWLR (PT 684) 298 SC. Issues similar to the issues canvassed in the instant case featured in suit HCU44/80 leading to the judgment evidence by Exhibit E: the issue of whether the 7th defendant is a member as well as the head of the Oojabi family. Exhibit E binds all members of the Oojabi family having been plaintiffs in suit HCL/44/80 with the 7th defendant, being Head of the Oojabi family, the first plaintiff therein prosecuting the matter for himself and on behalf of the entire family unless it is established that after the decision, the 7th defendant has ceased to be the Head of the family. Of course he remains a member of the family for life. The Appellants have neither in their pleadings nor in the evidence supporting their case even made suggestions along these lines. It is part of Appellants case that the head of the Oojabi family had authorized the meeting that produced him. The family Head had also endorsed his candidature. From the evidence before the court if turned out that the person whom the Appellants averred authorized the meeting and endorsed his candidate lacked such authority as the headship of the family is shown to lie somewhere else. The meeting as well as the selection of the 1st Appellant had, therefore, not been lawfully convened and made. The illegal selection cannot sustain the Olota’s approval and the installation of the 1st Appellant. Appellants counsel had argued that the lower court had applied land law principles on the authority and the role of a family Head in chieftaincy Issue. This submission is incorrect unfair to the court.

Appellants, as seen in the relevant paragraphs in the statement of claim, averred that a family meeting is lawfully convened if presided by or authorized by the family Head. The Appellants are of course bound by their pleadings and it is not open for them to resile from what they averred in these pleadings. See UZOCHUKWU VS. ER 1(1997) 7 NWLR (PT.514) 535 SC VANDERPUYE VS. ARADEBO (1998) 3 NWLR (PT.541) 271 SC and ADEKEJE VS. BALOGUN (2000) 4 NWLR (PT.561) 113 CA

Appellants last grouse is on the leave the lower court granted the Respondents to re-open their case and thereafter had Exhibit F admitted through the 7th defendant. Even where this procedure is conceded to be wrong, and it has not been here, the Appellants needed to show that the lapse had caused such miscarriage of justice to entitle this court to intervene. Appellants have not shown that the procedure has led to that miscarriage and are, for that reason, not entitled to have the lower court’s decision reversed by virtue of this particular grouse. See UNIVERSITY PRESS LTD V. I. K. MARTINS (NIG) LTD (2000) 4 NWLR (PT 654) 584 SC, ONAMADE VS. ACB LTD (1997) 1 NWLR (PT 557) 123 SC and ATUNWA VS. LADENIKA (1998) 7 NWLR (PT 557) 221 CA.

I find no merit in this appeal and I hereby dismiss it.

THE RESPONDENTS’ NOTICE

The respondents have urged us to adjudge Appellants action unmeritorious firstly on the grounds that no reasonable cause of action had been disclosed against the 2nd and 4th defendants and secondly because injunction is never granted against a completed act. I am unable to agree with the respondents on the propriety of their resort to the procedure provided under order 9 of the rules of this court. A party to an appeal who was aware of any irregularity but proceeded at the trial court to contest the action inspite of the irregularity cannot at the appellate level either through cross appeal let alone by virtue of the Respondents notice procedure challenge the decision of the trial court or seek to vary same on the basis of the irregularity.

Having condoned the irregularity he is deemed to have waived his right of objecting to the irregularity and cannot plead in any other manner to his advantage.

Besides, the Respondents notice procedure is not a facility for introducing a fresh issue or appeal without the leave of this court See OGUNBADJO VS. OWOYEMI (1993) 1 NWLR (PT 271) 517 IBE VS. ONUORAH (1999) 14 NWLR (PT. 638) 340. Respondents counsel argue that the injunction prayed for by the Appellants be refused as no grant is made where the act sought restrained is completed flows from the thinking that Appellants and infact made a case and were entitled to be granted the relief. In the instant case where Appellants had not established the threat or actual injury to any right it is inappropriate to vary the lower court’s judgment on the ground canvassed by the Respondents. The notice given by the Respondents that the judgment of the lower court be affirmed on grounds other than those on which the judgment is founded lacks merit. It is accordingly dismissed. In conclusion, the judgment of the lower court is hereby affirmed.

I assess the costs of this appeal at N20,000 and order same against the Appellants in favour of the Respondents.

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Other Citations: (2008)LCN/2815(CA)