⦿ CASE SUMMARY OF:
Josiah Olomosola & Anor. v. Chief Aladire Oloriawo & Anor. (2001) – CA
– Cross Examination;
1. Josiah Olomosola;
2. Oba Amos Farukanmi;
1. Chief Aladire Oloriawo;
2. Isaac Fatuase (On behalf of themselves and Onofonkiyode Family of Imun Quarters, Iju);
(2002) 2 NWLR (Pt 750)113;
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– Mr. Kolawole Esan;
* FOR THE RESPONDENT
– Chief A.O. Fesobi;
⦿ FACT (as relating to the issues)
Following the death of Chief Gabriel Omoniyi, the stool of Okiti of Iju became vacant. It is the Ausi Chieftaincy of Imun Quarter, Iju. Oba Amos Farukanmi, the 1st appellant, was installed as the Okiti of Iju. Thereafter, Josiah Olomosola, the 2nd appellant, was installed as the Ausi of Imun Quarter, Iju by the 1st appellant.
An action was filed in the High Court of Ondo State, Akure Judicial Division by the respondents seeking two declarations and an order of injunction as follows:
(a) Declaration that the purported nomination and installation of Mr. Josiah Olomosola the 1st defendant as Chief Ausi of Imun Quarters, Iju by Oba Amos A. Farukanmi, the 2nd defendant sometime in March, 1993 are irregular contrary to native law and custom of Imun Quarters, Iju and thereby null and void.
(b) Declaration that Mr. Isaac Fatuase the 2nd plaintiff is the person properly nominated as the next Chief Ausi of Imun Quarters, Iju according to native law and custom of lmun Quarters, Iju and thereby entitled to be installed as the Chief Ausi of Imun Quarters, Iju.
(c) An order of perpetual injunction restraining the 1st defendant from parading himself as Chief Ausi of Imun Quarters, Iju.”
The respondents case is that the 1st appellant is not a member of their family which is Onifonkoyode family, and as such not entitled to be appointed as the Ausi of Imun Quarter, Iju. It is on that basis that the respondents challenged the appointment of the 1st appellant, claiming that his appointment was irregular, null and void as it was contrary to native law and custom of Imun Quarter.
The learned trial Judge gave judgment in favour of the respondents. He said in the penultimate paragraph:
“I have considered and evaluated the evidence adduced by both parties and their witnesses in this case. I have also weighed the evidence of the parties on the balance and have preferred that of the plaintiffs to that of the defendants. I accept the testimony of the plaintiffs and their witnesses as being true, acceptable and therefore accepted. On the other hand, and from my observations of the defendants and their witnesses, while each of them particularly both defendants, were giving evidence in the witness box, I do not feel convinced that they were speaking the truth. I find that the 1st defendant is not entitled to have been installed as the Ausi of Imun in Iju in place of the 2nd plaintiff whom I find to have been properly selected and duly entitled to have been installed as the Ausi of Imun.”
Dissatisfied, the defendants filed an appeal. Briefs were filed and exchanged.
C1. Whether the learned trial Judge was right in admitting evidence of facts and matters not pleaded to form the basis of his decision.
C2. Whether the learned trial Judge had not first demolished the case of the defendant before considering case of the plaintiff and if so whether this was erroneous in point of law.
C3. Whether the trial court was right in not disregarding the case put forward by the plaintiffs as regards the 1st defendant of the Ausi family or as to the entitlement of the 1st defendant to the Ausi Chieftaincy when that was not the case of the plaintiffs on the state of the pleadings.
⦿ HOLDING & RATIO DECIDENDI
C1. For ISSUE C1, the Court of Appeal held in favour of the Appellant.
i. Pleadings are the index or barometer of the case of the parties. They are the reference points and the parties cannot move out of them as they like. On the contrary, parties must, as a matter of our adjectival law, kotow to their pleadings and religiously adore them. The only remedy available to the parties is to amend their pleadings if they want to go outside them. They cannot spring a surprise in the judicial process by moving in and out of their pleadings just like that, without amendment. In this appeal, the learned trial Judge used evidence not borne out from pleadings in arriving at his findings and ultimate conclusion. The instances are legion. With respect, he ought not to have done so. He was clearly in error in doing so. In such a situation, an appellate Judge will certainly interfere and so I interfere.
C2. For ISSUE C2, the Court of Appeal held in favour of the respondent.
i. The purport of learned counsel for the appellants submission is that the trial Judge took first the case of the defendants for a kill and that to him was not proper. I have examined the judgment very carefully. Although, the trial Judge took the case of the defendants first, he did not dismiss their case before taking up the case of the plaintiffs. It was after analyzing both cases that he came to the conclusion that the plaintiffs case must succeed. I had earlier quoted the conclusion of the learned trial Judge in the penultimate paragraph. I do not want to go the whole hog once again. A paraphrase will suffice and it is this: the Judge considered and evaluated the evidence adduced by both parties and their witnesses. He also weighed the evidence of the parties on the balance and preferred that of the plaintiffs.
C3. For ISSUE C3, the Court of Appeal stated “I think, Issue No.3 is clearly related to Issue No.1 as it also deals with evidence not borne out of the pleadings. As I have dealt with the issue, I need not take Issue No.3 separately. Although both counsels dealt with it separately, I shall not because there is no need for that. There is clear duplication of the issue and I will not enjoy repeating myself. Counsel can afford to repeat themselves but this court will not repeat itself.”
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
“One cliche or aphorism has always worried me in the profession, and it is that in crossexamination the sky is the limit. Counsel love it. It is almost a song in the judicial process. Apart from the fact that the judicial process has nothing to do with the sky, which is not within the reach of the ordinary man, the statement is not correct in law. In law, it is not crossexamination which is said not to have any inhibition or limitation, but relevancy as a principle of the law of evidence, has to be considered. The point I am struggling to make is that evidence procured from cross examination can only be admitted if it is relevant to the live issues before the court. Counsel may decide to ask irrelevant questions (and some do) but the trial Judge cannot make use of evidence procured from such questions because they are outside the live issues in matter.” – Tobi, JCA. Olomosola v. Oloriawo (2001)
As parties are bound by their pleadings so too the Judge is bound by the pleadings and the evidence before him in his judgment. In other words, judgment must necessarily be based on triable issues as contained in the pleadings and the evidence adduced in the court. – Tobi, JCA. Olomosola v. Oloriawo (2001)
There is neither a constitutional nor a statutory requirement as to particular format in the writing of a judgment. Once a judgment contains the traditional elements by way of contents, an appellate court cannot interefere merely because it could have adopted a different style. Style in human life is personal to its owner. So too, the style of writing judgments. As long as the style adopted by the trial Judge does not ruin the traditional elements by way of contents, an appellate court will not interfere. And it is extremely difficult for the style to ruin the elements or contents of a good judgment. – Tobi, JCA. Olomosola v. Oloriawo (2001)