In The Supreme Court of Nigeria
On Friday, the 6th day of April 1990
Before Their Lordships
Andrews Otutu Obaseki – Justice, Supreme Court
Kayode Eso – Justice, Supreme Court
Saidu Kawu – Justice, Supreme Court
Salihu Modibbo Alfa Belgore – Justice, Supreme Court
Philip Nnaemeka-Agu – Justice, Supreme Court
Chief R. B. Buraimoh ) – Appellant
Chief Maliki Adeniyi Esa )
Chief Salami Arojojoye Asanlu )
Chief Yesufu Ogungbesan Esa )
Chief Sanni Abidolu Osolo )
Chief Jacob Balogun Elemosho ) – Respondent
Mr. Peter Akadi )
Oba Salihu D. Alebiosu II, )
Ifelodun Local Government/Permanent Secretary)
Ministry of Local Government )
Judgement of the Court Delivered by Saidu Kawu. J.S.C.
This is a further appeal by the plaintiff in this case against the dismissal by the Court of Appeal, Kaduna Division. of his appeal against the judgment of Adeghite J., sitting in an Ilorin High Court.
In that court, the plaintiff had instituted an action against the defendants jointly And severally claiming in his amended writ of summons as follows:-
The plaintiff’s claim against the defendants both jointly and/or severally is for (i) a declaration that the plaintiff is the rightful Oba of Idera having been so appointed in October, 1979 by the Juduala Ruling House, whose turn it was to appoint a successor of the late Oba Noah Oloruntoba (from Oyan/Olupo Ruling House] who died in September, 1979, sequel to the Agreement of July28, 1962 now annexed as Annexure I to this writ of summons, (ii) a declaration that the 1st – 5th defendants who are the Idera Kingmakers cannot instal the 6th defendant who is a member of Ikota Ruling House as the Oba of Idera as now being threatened as doing so will be in breach of the aforesaid Annexure 1, (iii) an order mandating the first to fifth defendants to instal the plaintiff as the Oba of Idera and (iv) a perpetual. injunction prohibiting the 6th defendant from performing the functions of the Oba of Idera and from enjoying the perquisites of the said office; (v) the 7th defendant has no power to appoint or instal the 6th defendant as the Oba of Idera and (vi) the 8th and 9th defendants have no power to approve the appointment of the 6th defendant as the Oba of Idera.
The substance of the plaintiff’s claim was that in accordance with the terms of an agreement entered into by the members of Idera Community (Exhibits 1 and 2), it was the turn of his family to provide a candidate for the throne of Oba of Idera after the demise of Oba Noah Oloruntoba in 1979, that at a meeting of his family summoned for the purpose, he was duly elected as their candidate, and that subsequently his name was forwarded to the 1st – 5th defendants, who were the kingmakers and who wrongfully refused to instal him. It was also his case that the subsequent appointment of the 6th defendant by the 7th defendant as the Oba Idera of Idera community was wrong and that the 8th and 9th defendants who approved the appointment of the 6th defendant had no power to do so.
The plaintiff filed an amended Statement of Claim. The lst-6th defendants filed a Statement of Defence and the 7th – 9th defendants did not file any pleadings. At the trial the plaintiff did not give evidence but called two witnesses who did so on his behalf. The 1st – 6th defendants did not give evidence either but two witnesses testified on their behalf.
At the end of the trial, the learned trial Judge gave careful consideration to the evidence adduced by the parties, and in dismissing the plaintiff’s claims against all the defendants, concluded as follows:-
On the whole, I repeat that it is well known that Civil cases are decided on a preponderance of evidence. The burden is always on the plaintiff and it is burden that has to be proved to the satisfaction of the court in a case where a declaration is sought from the court. The plaintiff must rely on the strength of his own case and not on the weakness of the defendant whose duty is merely to defend. If the onus of proof on the plaintiff is not discharged, the weakness of the defendants case will not help the plaintiff.
He cited, in support of the principles of law enunciated, the fol1owing cases:-
Now the first clause of Exhibit 2 states clearly that ascension to the throne of Oba of Idera “shall be rotated amongst the following four groups of families……….The groups are then named A, B, C and D. It is an elementary rule of construction of documents that in construing Exhibit 2, one is bound to give to the operative word “rotate” used by the parties, its simple and ordinary meaning so as to be able to discover the intentions of the makers of the document. In Ogbunyiya v. Okudo (1979) 6-9 S.C.32, this court stated the rule at p.48 of the report as follows:-
One of the cardinal rules of construction of written instruments is that the words of a written instrument must in general be taken in their ordinary sense notwithstanding the fact that any such construction may not appear to carry out the purpose which it might otherwise be supposed was intended by the maker or makers of the instrument. The rule is that in construing all written instruments the grammatical and ordinary sense of the words should be adhered to, unless that would lead to some absurdity or some repugnancy or inconsistency with the rest of the instrument; the instrument has to be construed according to its literal import unless again there is something else in the context which shows that such a course would tend to derogate from the exact meaning of the words.
The verb “rotate” is defined in the Webster’s New Twentieth Dictionary Unabridged, Second Edition thus:
(1) to cause to turn round, as a wheel on its axis;
(2) to cause to go in a regular and recurring succession of changes; to cause to take turns.
Applying the rules of construction enunciated in Okudos case (supra) to the case in hand, it is my view that the intention of the makers of Exhibit 2 was that ascension to the throne of Oba Idera should be rotated amongst the four Ruling Rouses commencing from Group A and moving from that group to the next group which is group B, and from that group to C and D respectively. I therefore agree with the submission of the learned counsel for the appellant, Mr. Ijaodola that ascension to the throne of Oba Idera is rotational.
Now having held that ascension to the throne as provided in Exhibit 2 is rotational, the next question is:- was it the turn of the appellant’s family to nominate a candidate for the throne after the demise of Oba Noah Oloruntoba?
The evidence before the court was that Oba Noah Oloruntoba was the first to ascend the throne under the agreement, Exhibit 2. He was from Oyan and Olupo Ruling house which is group ‘A’. Oba Noah Oloruntoba died in September, 1979. On the true interpretation of Exhibit 2, it is my view that after the death of Oba Noah, it was the turn of Group B, that is to say the Juduala, Okeapata and Adesi families to nominate a candidate. The appellant is a member of this group.
The next question is whether the appellant was nominated as a candidate by his Ruling House. On this point, P.W. 1,Joshua Jolayemi Buraimoh testified that the Ruling Rouse of Jaduala, Oke Apata and Adesi met and nominated the appellant as their candidate. There was also before the trial court the testimony of D.W.l and D.W.2 who were both members of the same Ruling Rouse and who swore that the appellant was never nominated a candidate by the Ruling House. The learned trial Judge found that the appellant was never nominated as a candidate and his finding was upheld by the Court of Appeal. But a careful perusal of the record shows that the crucial issue of the nomination of the appellant as a candidate by his Ruling Rouse was not made an issue by the appellant because it was never pleaded. It is settled law that in civil cases, parties are bound by their pleadings, and that evidence adduced in respect of a matter not pleaded goes to no issue and such evidence should be disregarded. See Ferdinand George v. The United Bank for Africa Ltd. (1972) 8-9 S.C. 264 at page 274 and Usenfowokan v. Idowu (1969)1 All N.L.R. 125. Since the issue of the nomination of the appellant as a candidate for the stool of Oba of Idera was not pleaded in the Statement of Claim, the learned trial Judge should not have allowed evidence to be given in respect of the matter. The conclusion I have reached therefore is that the appellant had failed to prove that he was nominated a candidate for the stool of Oba Idera by the Ruling House whose turn it was to nominate a candidate after the demise of Oba Noah Oloruntoba.
In The Supreme Court of Nigeria