PRINCE ADEBOLA A. A. ADESEMOWO & ANOR v. THE MILITARY ADMINISTRATOR, OGUN STATE & ORS
(2012)LCN/5463(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of June, 2012
CA/I/69/99 (Consolidated)
RATIO
“I most respectfully stand by the true prima facie meaning of phrase “male line” given by Stroud’s Judicial Dictionary (Fifth Edition) Vol. 3 page 1513- “Male line… properly means a line commencing with a male and continued through males.” Per IKYEGH, J.C.A.
“The phrase “sons of a previous holder of the title” was interpreted by the Apex Court in Olanrewaju v. Governor of Oyo State (supra) cited by the appellant and the respondents. There the Apex Court held at page 362 of the law report inter-alia that the phrase was “…wide enough to include any person from a particular Ruling House whose father, grandfather or ancestor had been the holder of the title …” The subsequent case of Oladokun v. The Military Governor of Oyo State (supra) cited by the appellant and the respondents followed Olanrewaju (supra) by adopting the same interpretation of the said phrase.” Per IKYEGH, J.C.A.
“There was thus uncontradicted evidence from at least two traditional title holders or local chiefs – the PW6 and the DW6 – who are deemed to be conversant with the requirements of the Orimolusi Chieftaincy Declaration on the ambit of the Declaration. Their uncontradicted pieces of evidence were, therefore, admissible under sections 70, 73 (1) and 74 (c) of the Evidence Act, 2011 (formerly sections 59, 62 (1) and 63 (c) of the Evidence Act) which for quick reference are copied below- “In deciding questions of customary law and custom, the opinions of traditional rulers, chiefs or other persons having special knowledge of the customary law and custom.. are admissible (section 70). When the court has to form an opinion as to the existence of any general custom or right, the opinions as to the existence of such custom or right, or persons who would be likely to know of its existence if it existed are admissible.” [Section 73(1)] When the court has to form an opinion as to – (c) the meaning of words or terms used in particular districts or by particular classes of people, the opinions of persons having special means of knowledge on the matters specified in this section, are admissible”. [section 74(c)]” Per IKYEGH, J.C.A.
“An express admission like the one in paragraph 23 of the 5th-8th respondents’ pleadings made after the other paragraphs referred to by learned senior counsel estopped the 8th and 9th defendants from denying that they were yet to be kingmakers and were not qualified to participate in the selection exercise of the Orimolusi of Ijebu-Igbo at the material time without further proof vide Nwanko v. Nwanko (1995) 5 SCNJ 44 at 62 where the Apex Court held that formal admissions in pleadings relieve the other party of the necessity of proving the matters admitted – See also Okesuji v. Lawal (1986) 2 NWLR (pt. 22) 417, Nwadike v. Nwadike (1987) 4 NWLR (pt. 65) 394, Egbunike & Anor. v. A.C.B. Ltd. (1995) 2 NWLR (pt. 375) 34 at 53, and Order 25 Rule 15 of the Rules of the court below and the series of cases (supra) cited in the appellant’s brief.” Per IKYEGH, J.C.A.
“Contrary to established practice the court below granted a relief setting aside the removal of the 8th respondent as Agbon of Ijebu-Igbo that was not claimed by 8th respondent- See Ayanboye & Ors. v. Balogun (1990) 5 NWLR (pt. 151) 392 at 413: “…a court has no power to grant to a party that which he does not Claim. See N.H.O.S. v. Mumuni (1977) 2 S.C. 57, Akanni v. Makanju (1978) 8 and 12 S.C.I. and Omoboriowo v. Ajasin (1984) 1 SCNLR 108.” Also, the Orimolusi of Ijebu-Igbo that removed the chieftaincy title of the 8th respondent by Exhibit ‘C’ was not a party to the suit at the court below, therefore it was wrong for the court below to set aside the removal behind the back of the removing authority – See Biyu v. Ibrahim & Ors. (2006) 8 NWLR (pt. 981) 1 at 37, P.D.P. v. ANPP (1999) 3 NWLR (pt. 594) 218, Okonkwo v. Okagbue (1994) 9 NWLR (pt. 368) 301, Reynold Construction v. Reynold Brezing Brown & Anor. (1993) 6 NWLR (1993) 6 NWLR (pt. 297) 122, and Oloriode v. Oyebi (1984) 1 SCNLR 390 at 409 (alphabet A). The court below, accordingly, acted in error by setting aside the removal of the 8th respondent as Agbon of Ijebu-Igbo. I have no hesitation in reversing that aspect of the judgment of the court below. I hereby quash the said order of the court below setting aside the removal of the 8th respondent as Agbon of Ijebu-Igbo, as the court below embarked on a futile or fruitless exercise beyond the mandate of the reliefs sought before it to grant the gratuitous order- see Chief Registrar v. Vamos (1976) 1 SC 33.” Per IKYEGH, J.C.A.
JUSTICES:
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
PRINCE ADEBOLA A. A. ADESEMOWO – CA/I/69/99
AND
PRINCE MUSHFAU OMOWALE ADEMOLA KASSIM – CA/I/267B/99
(CONSOLIDATED) – Appellant(s)
AND
1. THE MILITARY ADMINISTRATOR, OGUN STATE
2. THE ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE OGUN STATE
3. THE SECRETARY, IJEBU-NORTH LOCAL GOVERNMENT
4. HIS HIGHNESS OBA SIKIRU ADETONA – CA/I/69/99
(THE AWUJALE OF IJEBU LAND) (STRUCK OUT)
5. PRINCE MUSHAFAU OMOWALE ADEMOLA KASSIM
6. CHIEF SALISU OSENI (APENA OF OJOWO)
7. CHIEF BUSARI ADAMOLEKUN (OLIWO OF OKE-AGBO)
8. CHIEF OLUSOGA FUWA (AGBON OF IJEBU-IGBO)
AND
1. PRINCE ADEBOLA A. A. ADESEMOWO
2. THE MILITARY ADMINISTRATOR OGUN STATE
3. THE ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, OGUN STATE
4. THE SECRETARY, IJEBU-NORTH LOCAL GOVERNMENT
5. HIS HIGHNESS OBA SIKIRU ADETONA – CA/I/267B/99
(THE AWUJALE OF IJEBU LAND)
6. CHIEF SALISU OSENI (APENA OF OJOWO)
7. CHIEF BUSARI ADAMOLEKUN (OLIWO OF OKE-AGBO)
8. CHIEF OLUSOGA FUWA (AGBON OF IJEBU-IGBO)
(CONSOLIDATED) – Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): Upon the death in office of one Oba Daniel Sami Adetayo Kupakude IV, the Orimolusi of Ijebu-Igbo, in Ijebu-North Local Government, in May, 1994, the 5th respondent Prince Mushafau Omowale Ademola Kassim, was selected by the King-makers over and above the appellant to occupy the stool on account of which the appellant unsuccessfully challenged the said selection at the High Court of Ogun State holding at Ijebu-Igbo (the court below) resulting in a judgment of that court in favour of the 5th respondent’s eligibility for selection for the stool, occasioning the appeal along-side Appeal No. CA/I/267A/99 and Appeal No. CA/I/267B/99 which were consolidated by an order of the Court dated 2.3.06. However, on 12.2.07, Appeal No. CA/I/267A/99 was dismissed pursuant to the notice of its withdrawal filed by the appellant on 7.2.07, leaving extant Appeal No. CA/I/69/99 and appeal No. CA/I/267B/99 which shall be taken in turn in the discourse.
Confined to the kernel of the case, it was the appellant’s stance that Ojuromi Ruling House was to produce the next Orimolusi of Ijebu-Igbo; three members of the Ruling House were initially nominated as candidates to vie for the vacant traditional stool; the appellant, a son of a previous Orimolusi of Ijebu-Igbo from the male line of Ojuromi Ruling House, was among the initial three candidates; the 5th respondent and four other candidates from the female line of Ojuromi Ruling House were subsequently added to the original three candidates after due pressure was successfully exerted on the chairman of the meeting of the Ruling House; eight candidates eventually emerged to vie for the stool and were presented to the nine (9) King-makers for the selection exercise: The Kingmakers met on 6.1.1997 for the selection exercise; among the 9 Kingmakers were four unqualified members or King-makers – one Chief Mustapha Odejayi, the Oliwo of Ojowo, now deceased, the 6th respondent, one Chief Salisu Oseni, the Apena of Ojowo, one Chief J. A. Onadeko, the Pampa of Japara, now deceased, and the 8th respondent one Chief Olusoga Fuwa, the Agbon of Ijebu-Igbo; notwithstanding their disqualification the 6th respondent, Chief Mustapha Odejayi, (the Oliwo of Ojowo), Chief J. A. Onadeko (the Pampa of Japara) and the 8th respondent whose title was stripped before the exercise sat and participated in the selection exercise by voting which resulted in the emergence of the 5th respondent with 6 votes against the 3 votes of the appellant as the Orimolusi – elect of Ijebu-Igbo.
Unconvinced of the selection exercise, the appellant challenged it before the court below on the double barrel grounds that by the Registered Declaration of Orimolusi Chieftaincy (the Declaration) regulating the selection and appointment of the Orimolusi of Ijebu-Igbo, the 5th respondent from the female line of Ojuromi Ruling House was not eligible to contest for the vacant stool and, that the participation of four of the King-makers who were, according to the appellant, not qualified to participate in the selection exercise marred the selection exercise. After the court below heard evidence from the parties and their witnesses and took written submissions for and against the suit, it held that only one of the King-makers Chief J. A. Onadeko, now deceased was not qualified to participate in the selection exercise and that the 5th respondent was in virtue of the Declaration eligible to vie for the stool.
Obviously unhappy with the decision of the court below, the appellant appealed in an original notice of appeal with eight grounds of appeal appearing at pages 462-473 of the record of appeal (the record). The notice of appeal was subsequently amended on 16.0.02, bringing the grounds of appeal to eleven (11), which were filed on 23.9.02, questioning the decision of the court below.
In a laborious further amended brief of argument comprising 32 pages, the appellant extracted eight issues for determination on the appeal at pages 2-3 thereof this way-
01. Whether the learned trial Judge was right in his interpretation of “Male Lineage” as contained in Registered Chieftaincy Declaration for the Orimolusi of Ijebu-Igbo as any male descendant (i.e. in the context of Exhibit A).
02. Whether the learned trial judge was right in holding that the 5th respondent is or male lineage and is eligible to contest for the Orimolusi Chieftaincy title with qualified candidate(s) of the male lineage on 2/1/97 and 6/1/97 having regard to the provisions of the Orimolusi Registered? Chieftaincy Declaration and the fact that the 5th Respondent’s relationship to the Ojuromi Chieftaincy family is through his mother.
03. Whether the learned trial judge was right to hold that the kingmakers at their meeting of 6/1/07 complied inadvertently with the Orimolusi Registered Chieftaincy Declaration when there is uncontradicted evidence of DW1 and DW6 who were present at that meeting to the contrary.
04. Whether the learned trial judge was right to have accepted the evidence of the DW3; which is contradictory to the pleadings to validate the appointment of Chief Mustapha Odejayi, (the Oluwo of Ojowo, the 8th Defendant at the lower court) and Chief Salisu Oseni (the Apena of Ojowo), the present 6th Respondent.
05. Whether the learned trial judge was right to have based his judgment on the evidence of the DW3, which is contrary, and at variance with and short of the evidence, he had accepted as proved to be the custom in the appointment of Oliwo, Apena and Pampas in Ijebu-Igbo in validating the participation of the said Chief Mustapha Odejayi & 6th respondent in the meeting of the kingmakers of 6/1/97
06. Whether the learned trial judge was right in 1997 to have proceeded further to determine the validity of the process of the removal of the 8th respondent after having held that the said 8th respondent received his removal letter sometimes in 1989 from the late Orimolusi of ljebu-Igbo.
07. Whether the learned trial judge was right to have relied on the provision of section 25 of the Chief’s Law of Ogun State and also at the same time putting the burden of proof that the prescribed Authority complied with the Law of Natural Justice and provisions of the Chief’s law before removing the 8th respondent on the appellant.
08. Whether the trial judge has the jurisdiction to determine the validity of the 8th respondent’s removal as at 1997 having regards to the Ogun State Chief’s Law and the statute of Limitation.”
Issues 1 and 2 covering grounds 1, 2, 3 and 11 of the notice of appeal were argued together to the effect that Exhibit ‘A’, the Declaration, regulated the selection exercise of the Orimolusi of ljebu-Igbo stool by providing these category of eligible candidates – a member of the Ruling House of the male line including sons of a previous holder of the title in the first instance; or a member of the Ruling House of the female line as the last option, if there are no members of the male line and/or sons of a previous holder of the title of the male line – but contrary to the cases of Fortune International Bank Plc v. Pegasus trading Office (2004) 11 FWLR (pt 234) 1 at 14, A/G of Bendel State v. A/G of the Federation (1981) 10 SC 1, London Transport Executive v. Betts (1959) A.C 213 and Knight, Frank & Rutley Nig. Ltd. v. A/G of Kano State (1998) 7 NWLR (pt. 556) 1 at 24, the court below ignored the proviso to paragraph (iii) (b) of the Declaration against the grain of the legal, ordinary and natural meaning of the words “Male line” appearing in the Declaration to equate the phrase to “male descendants” when the two phrases are not interchangeable vide Stroud’s Judicial Dictionary 1606, D. Amico v. Trigona 13 A.C. 815 and Allen v. Grane (1953) ALR 959; and that if the court below had construed the clear and unambiguous words of the Declaration with the proviso in paragraph (iii) (b) thereto it was bound to come to the conclusion that an eligible candidate for the vacant stool must be a member of the relevant Ruling House of the male line including sons of previous holder of the title, provided succession may devolve on a candidate of the female line of the Ruling House where there is no qualified candidate of the male line, therefore the court below was wrong when it “neglected” the said ordinary meaning of the words in the Declaration that were in line with the evidence of the PW6 and the PW8 to hold that a male descendant of Ojuromi and all male descendants of previous holders of the title whether from the male or female line of Ojuromi were qualified at the same time to vie for the stool of Orimolusi of Ijebu-Igbo.
It was further submitted that following the natural and ordinary construction of the Declaration and discarding the erroneous interpretation of the Declaration given by the court below, the appellant who is the son of Moses Oduwole whose father was late Oba Abraham Adesemowo, the first crowned Orimolusi of Ijebu-Igbo who reigned between 1929-1947, is a member of Ojuromi Ruling House and a son of a previous holder of the title from the male line as defined in the case of Olanrewaju v. Governor of Oyo State (1992) 9 NWLR (pt. 265) (pagination not supplied) and is, also, from the male line of the Ruling House having traced his genealogy or descent through unbroken male line from Oba Abraham Adesemowo to Ojuromi, the progenitor or founder of the Ruling House, was primarily entitled to vie for the stool to the exclusion of the 5th respondent of the female line of the Ruling House, therefore the nomination of the 5th respondent from the female line and other candidates of the female line at the meeting of the Ruling House as candidates at the selection exercise and subsequent selection by the King-makers were improper, ultra-vires and should be declared invalid, null and void vide the cases of Chief Immuneke(?) & Ors. v. A. G. Bendel State (1992) 6 NWLR (pt. 248) 396, Mcfoy v. U.A.C. (1952) A.C. 152, Adelaja v. Oguntayo (2001) 6 NWLR (pt. 710) 593.
Issues 4 and 5 for grounds 5, 6 and 11 were taken together to the inclination that the court below found at page 425 and page 430 of the record that the appellant pleaded and proved by credible evidence the customary law regulating the appointment of Oliwo, Apena and Olotu Pampa of each of the five quarters of Ijebu-Igbo agreeing invariably with the appellant that the formal presentation of the Oliwo or Apena to the Olori-Ilu, now Oba, of a particular quarter in Ijebu-Igbo, for blessing who in turn presents the appointee to the reigning Orimolusi of Ijebu-Igbo for capping and blessing evidencing the approval of the appointment before the appointee would function as a king-maker for the purpose of the Orimolusi Chieftaincy were not met by the 8th defendant cum DW3, one Chief Mustapha Odejayi, whose evidence on the said customary law fell short of proof of the customary law and, when weighed in the imaginary scale with the evidence of the PW8, (the appellant), the PW7, DW6 and Exhibit ‘B’, a letter written by the late Orimolusi, the prescribed authority, under section 16 of the Court of Appeal Act read with the cases of Lipede v. Sonekan (1995) 1 NWLR (pt. 374) 668, Highgrade Maritime Services Ltd. v. First Bank of Nig. Ltd. (1991) 1 NWLR (pt. 167) 290, Oduntan v. Aileru (1985) NWLR 92 at 97 and the unreported case of Odusole v. Governor of Ogun State & 5 Ors. in Appeal No. CA/I/152/94, the 8th defendant at the court below was not qualified to participate in the meeting of the King-makers on 6.1.97 where the selection of the 5th respondent as the Orimolusi of Ijebu-Igbo was made; all the more so by paragraph 23 of the 7th-9th, 13th-15th defendants’ second further amended statement of defence at page 265 of the record admitting paragraph 31 (a) of the second further amended statement of claim at page 189 of the record, the 8th defendant plainly admitted his appointment was not approved by the prescribed authority before the holder of the office of prescribed authority died; and any evidence from the defendants in the court below that was contrary to the said admission would go to no issue vide Woluchem & Ors. v. Gudi & Ors. (1981) 5 SC 291 at 320, Okagbue v. Romaine (1982) 5 SC 133 & Ogunleye v. Oni (1990) 2 NWLR (pt. 135) 745 at 782; nor was the court below right to hold at page 435 of the record that- “It seems to me that reference to 8th and 9th Defendant in the above recited paragraph is a grave drafting error” when the defendants relied on their pleadings at the court below, therefore it was not open to the court below to redraft their pleadings; consequently the admitted fact relieved the appellant of the burden to prove same and the court below was in error to have considered the evidence of the defendants in question which was contrary to the admission.
It was further submitted that the 6th respondent (9th defendant at the court below) though appointed Apena for the Osugbo Ojowo Quarter after the death of the last incumbent of the title, one Chief Asafe Ige, sometime in 1994, he was presented to Oba Kuyeba, the Ilori-Ilu of Ojowo whose appointment has been declared a nullity by this court in D. A. Odusole v. Government of Ogun State & Ors. Appeal No. CA/I/152/94 delivered on 23.1.2002, showing 6th respondent was not presented to the Orimolusi for the approval of his appointment before the death of the Orimolusi contrary to the evidence of the DW3 at pages 437-438 of the record that 6th respondent was presented by him to the Orimolusi for blessing and that, the 6th respondent has been receiving stipend from Ijebu-North Local Government when the said evidence was not on the custom pleaded and accepted by the court below, therefore the 6th respondent’s appointment having not been made in accordance with the customary law respecting the Orimolusi chieftaincy, the prescribed authority would be wrong to have approved the appointment vide Oladele & Ors. v. Oba Adekunle Aromolaran II & Ors. (1995) 6 NWLR (pt. 453) 180 at 293; more so there was evidence at page 285 of the record that between 1987 and the date the Orimolusi of Ijebu-Igbo died there was rift between the Olori-Ilus and the Orimolusi and; also, the DW3 (8th defendant) contradicted his earlier testimony by stating that “I do not know whether or not any person was presented to the Orimolusi as a traditional Chief from 1988 until he joined his ancestors in 1994”, therefore the court below was wrong to place heavy reliance on the evidence of the DW3 who contradicted himself in other portions of his testimony where he stated under cross-examination at page 284 of the record that the predecessor-in-title of the 6th respondent died about seven and half (7-1/2) years ago, whereas in his evidence-in-chief at page 283 of the record he stated that 6th respondent was appointed to replace the predecessor-in-title about ten (10) years ago which also ran counter to his admission that a new holder of the title was not appointable during the life-time of the incumbent title holder.
It was also submitted that the evidence of the DW3 (8th defendant) that he begged the Orimolusi did not imply that the Orimolusi approved the appointment of the 6th respondent as the Apena of Ojowo and; going by the admission of the DW3 that it was customary for a member of Osugbo “conclave” of another quarter to accompany a newly appointed officer of another Osugbo “conclave” upon the latter being presented to the Orimolusi which supported the evidence of the PW7, the secretary of all Osugbos in Ijebu-Igbo, at pages 218-219 of the record that no Oliwo or Apena was presented to the Orimolusi for the ratification of his appointment, which was also supported by the evidence of the DW6 at pages 296-298 of the record that the 8th defendant at the lower court and the 6th respondent were not presented to the Orimolusi for approval of their appointments, the court below was wrong to rely on the evidence of the DW3 (8th defendant) that the 6th respondent, though not obliged to testify, was expected to testify to clear the accusation against him did not testify, had his appointment approved by the Orimolusi of Ijebu-Igbo, consequently by section 149 (d) of the Evidence Act and the case of A. G. Kwara State V. Raimi (1993) 1 NWLR (pt. 272) 645, the silence of the 6th respondent should be construed against him that his appointment as Apena was not approved by the Orimolusi of Ijebu-Igbo; and that with the finding and conclusion of the court below that the 14th defendant at the court below, one Chief J.A. Onadeko, was not qualified to take part in the deliberation of the king-makers on 6.1.97, the body of King-makers was improperly constituted and rendered the exercise resulting in the selection of the 5th respondent as the Orimolusi null and invalid vide Young v. Imperial Ladies Club Ltd. (1920) AER 223, Oladokun v. Military Governor Oyo State & Ors. (1996) 8 NWLR (pt. 467) 387 and Odusole (supra).
Issues 6, 7 and 8 for grounds 7, 8, 9, 10 and 11 were argued together that the 15th defendant, now 8th respondent, by his evasive denial of his removal as Agbon in paragraphs 2, 6 (A) 11, 12, 13 and 14 of the second further amended statement of defence at pages 252, 259, 262 – 263 of the record, the said general denial is an admission of paragraph 12 (b) (iii) of the second further amended statement of claim at pages 182-183 of the record that by Exhibit ‘C’ the 8th respondent was stripped of his title of Agbon by the late Orimolusi, Oba Sami Adetayo vide Yesufu v. Cooperative Bank Ltd. (1989) 9 NWLR (pt. 110) 483, Overseas Construction Co. Ltd. v. Creek Ent. Etc. (1985) 3 NWLR (pt. 13) 407 at 418, so the evidence of the 8th respondent as the DW3 in that direction should not have been accepted by the court below, more so the 8th respondent did not challenge his removal during the life-time of the removing authority, the late Orimolusi of Ijebu-Igbo, and the onus was not on the appellant who was not the prescribed authority to justify the removal of the 8th respondent as the Chief Agbon; moreover, section 25(1) of the Chiefs Law relied upon by the court below to invalidate the removal of the 8th respondent as the Chief Agbon was inapplicable to the exercise of the power of removal by the prescribed authority under section 26 (1) and (3) (b) of the Chiefs Law in virtue of section 25(1) 7 (2) and parts 2 and 3 thereof, consequently the court below was wrong in holding that the prescribed authority was obliged to hold an inquiry before removing the 8th respondent as the Chief Agbon which amounted to a misdirection by the court below occasioning a miscarriage of justice and should be set aside by the Court vide Spaco Vehicle & Plant Hire v. Alrane Nig. Ltd. (1995) 8 NWLR (pt. 416) 655; and that especially in view of the fact that the 8th respondent, (15th defendant at the court below) did not pursue the internal remedies under section 26 (3) (c) of the Chiefs Law by making representation to the Executive Council of Ogun State through the Commissioner responsible for chieftaincy affairs within twenty-one (21) days from the date of his removal on 30.1.89, read with the cases of Sarumoh v. Asanike & Ors. (1996) 7 NWLR (pt 460) 370 and Eguamwense v. Amaghizewen (1993) 9 NWLR (pt. 315) 1 at 23, it was no longer open to the 8th respondent to query his removal, nor was the court below right to impose limitation on the statutory powers of the prescribed authority vide Akuneziri v. Okoro (2000) 12 SC (pt. 2) 75, consequently the reliance by the court below on the distinguishable cases of Ojo v. Governor of Oyo State (1989) NWLR (pt. 951) 12, Oyeyemi v. Commissioner for Local Government (1992) 2 NWLR (pt 226) 661 at 684-685 to invalidate the removal of the 8th respondent as the Chief Agbon on ground of denial of fair hearing and breach of section 25 (1) of the Chiefs Law when the issue was not properly raised before the court below by way of challenge by the 8th respondent that his removal was wrongful, the court below was wrong to raise the academic and hypothetical issue and wrongly placed the burden of proof of its legality on the appellant contrary to sections 135 and 136 of the Evidence Act and the presumption of regularity of official acts which was not dislodged by the 8th respondent; consequently, the appellant canvassed that the appeal be allowed on all the issues argued.
The 1st-3rd respondents’ amended brief filed on 9.3.12 identified two issues for determination as follows-
“(i) Whether the interpretation which the learned trial Judge placed on the provisions of the Orimolusi of Ijebu-Igbo chieftaincy Declaration (Exhibit A) is correct in Law?
(ii) Whether the findings of fact made by the learned trial Judge in respect of the composition of the King-makers held on 6/1/97 should be disturbed.”
The 1st – 3rd respondents’ amended brief supported the interpretation of clause (iii) of the Declaration by the court below with the cases of Olanrewaju v. Governor of Oyo State (1992) 9 NWLR (pt. 265) 335 at 363 and Oladokun (supra) and urged that the interpretation by the court below of that clause of the Declaration to wit-
“reading the whole paragraph (iii) of Exhibit “A” together, for any member of the Ojuromi Ruling House to quality as a candidate for the vacant stool of Orimolusi, he must be a male descendant of Ojuromi and or a male descendant of the previous holder of the title. For that reason, I hold that the 5th defendant is entitled to be nominated as a candidate of the male line through his ancestor Ojuromi”,
should be upheld by the court; adding that there were pieces of evidence adverted to by the court below at page 414 of the record disclosing the appellant’s grand father, late Oba Adesemowo, came on the throne through his mother, a descendant of Ojuromi; likewise the 5th respondent who aspired to the throne through his mother, Madam Aiyedun, showing the court below considered the issue rightly as the Declaration and section 15 (f) of the Chiefs Law did not impose a burden on the King-makers to have regard to whether or not the 5th respondent or the appellant were from the male or female line of Ojuromi Ruling House.
The 1st-3rd respondents’ brief submitted on the second issue that the court below made thorough evaluation of the evidence before it came to the right conclusion on the composition of the king-makers’ meeting of 6.1.97 at pages 416-450 of the record with the coda at page 450 thereof that-
“Having held that the four King-makers whose presence at the Kingmakers meeting of 6/1/97 is being challenged, the 8th, 9th-15th Defendants except the 14th Defendant are entitled to be part of the body who took the decision to select the 5th Defendant as the Orimolusi-elect, but that the 14th Defendant was not entitled to participate in the proceedings.”
The said findings, having not be shown to be perverse, should stand vide Olanrewaju (supra) at 359, Bunyan v. Akingboye (1999) 7 NWLR (pt. 609) 31 at 45-46, Ajagungbade III v. Laniyi (1993) 13 NWLR (pt. 633) 92 at 114, so contended the 1st-3rd respondents.
The 1st-3rd respondents’ brief also contended on the second issue that the appellant raised the issue of the removal of the 15th defendant as Agbon of Ijebu-Igbo upon which the 15th defendant joined issues with him on the pleadings and in oral evidence before the court below entitling that court to look into and pronounce upon it vide Oyekanmi v. NEPA (2000) 15 NWLR (pt. 690) 414 at 434; and that the issue of limitation regarding the questioning of the 8th respondent’s removal by the 8th respondent was not raised in the court below to enable the respondents respond to it, so it should not be looked into here, and the appeal should be dismissed.
The 5th-8th respondents’ amended brief of argument dated and filed on 7.5.07 submitted four issues for determination at pages 3-4 thereof thus:
“(a) Was the learned trial judge right in holding that on a proper interpretation of clause (iii) of the Declaration regulating the selection of the Orimolusi of Ijebu-Igbo- Chieftaincy, the 5th Defendant was entitled to be proposed as a candidate for the vacant stool of the Orimolusi. This covers grounds 1, 2, 3, 4 and 11 of the Amended Grounds of Appeal.
(b) Did the lower court in considering the issue as to whether the 8th and 9th defendants satisfied the tradition and custom relating to their respective appointments as chiefs so as to qualify as kingmakers, properly evaluate and ascribe probative value to the evidence proffered thereon by all parties and their witnesses, before arriving at his decision that the 8th, 9th and 15th defendants qualified to attend and vote at the kingmakers meeting of 6th January, 1997?. This covers Grounds 5 and 11 of the Amended Grounds of Appeal.
(c) Whether the learned trial judge was right in holding that on a global review of the joint defence of the 7th-9th, 13th-15th Defendants, the said defendants did not admit on their pleadings the fact that the 8th and 9th defendants were not presented to the late Orimolusi of Ijebu-Igbo for approval as Chiefs. This covers Ground 6 of the Amended Grounds of Appeal.
(d) Whether the learned trial judge was right in holding that Exhibit C and all the evidence offered by the Plaintiff were not sufficient in law to support the allegation that the 15th Defendant had been removed from office as a Chief as to make him ineligible to participate at the kingmakers meeting of 6/1/97. This covers Ground 7, 8, 9, 10 and 11 of the Amended Grounds of Appeal.”
Clause (iii) of the Declaration was referred to with emphasis on the words “members,” “including sons”, “male” and the cases of Rabiu v. The State (1980) 9-11 SC 130, Whunmwangbo v. Okojie (1989) 5 NWLR (pt. 122) 277, Olanrewaju v. Governor of Oyo State (1992) 9 NWLR (pt. 265) 335 at 361, Oladokun v. Governor of Oyo State (1996) 8 NWLR (pt. 467) 387 at 390 to contend that the Declaration widens the qualification base for candidates by the word “including” and goes beyond the Declarations in Olanrewaju (supra) and Oladokun (supra) to embrace the 5th defendant’s eligibility as his grandfather’s lineage was traced to Ojuromi on the male line not the female line, therefore it was unnecessary for the Kingmakers to consider candidates from the male line before turning to the female line; that the words “in the male line” were also interpreted in the case of Boys v. Bradley 68 E.R. 978 not to mean “in the line of males” to denote the inclusion of the female line in the bequest made in that case by the testator thus agreeing with D’Amico v. Trigona 13 A.C. 815, Trigona v. D’Amico (1892) A.C. 69 dealing with bequest, where unbroken descent of males from a female or ancestress, one Clara, was treated as “linea masculine” supporting the 5th respondent’s case that Madam Rahamatu Aiyedun Kassim, a female descendant of Ojuromi, was the ancestress of the 5th respondent and, the 5th respondent being a male issue qualifies as someone from the male line, just as those who claimed through “Clara” (supra); consequently the prima facie definition of “male line” in Stroud’s Judicial Dictionary (Fifth Edition) Vol. 3 page 1513 to the contrary was rightly not adopted by the court below which construed the words according to the background of the local usage within the context of the Declaration in favour of descent from Ojuromi through males interrupted by a female descendant or ancestress in tantem with the 5th respondent’s contention which, also, favoured the appellant whose line of descent from Ojuromi was broken by a female descendant.
It was argued on the second issue that the bulk of the evidence on whether the 8th and 9th defendants at the court below were qualified to sit as kingmakers on the disputed selection exercise was oral and the court below made good use of the opportunity of hearing and seeing the witnesses and drew correct conclusion from the accepted or “proved” facts based on the said oral evidence and Exhibit ‘B’ before it arrived at a decision that the appellant did not establish that 8th and 9th defendants were not qualified to participate as kingmakers in the disputed selection exercise, therefore the Court should be wary to interfere with the findings of fact made by the court below at pages 428-434, 438 of the record vide Lawal v. Dawodu (1972) ANLR 707 at 722, Bamgbade v. Balogun (1994) 1 NWLR (323) 718 at 757, Ogbu v. Ani (1994) 7 NWLR (pt. 355) 128 at 140, Iriri v. Erhurhobara (1991) 2 NWLR (pt. 173) 252 at 273; that the 8th defendant is illiterate and gave evidence in Yoruba, so it is asking too much to expect him to be exact on dates or at best his evidence on “about seven years” and “about ten years” respecting the death of the erstwhile Apena, one Salawu Oseni, are minor inconsistencies insufficient to lead to the reversal of the acceptance of his evidence by the court below; that the court below reviewed and evaluated the evidence of the PW7 and the DW6 at pages 437-438 of the record and gave cogent reasons for rejecting one version in preference to the other as given by the rival parties on the issue; and that at the time the case was heard the case which later came on appeal in Appeal No. CA/I/152/94 – Odusole v. Governor of Ogun State- had not been determined and the effort of the appellant to introduce it in the appeal by way of additional evidence was unsuccessful and that; it is “a gross abuse of process of this Court to call in aid any nullification of a person who is not a party to this action”; consequently the appellant should not be allowed to present a totally new case in the Court in this regard.
The 5th-8th respondents’ amended brief argued on the third issue that the court below was right to hold that a patrty may set up two or more inconsistent sets of facts and make claims in the alternative vide Re Morgan Owen v. Morgan (1904) 35 CH. 492, Bullen and Leake and Jacobs – Precedents of pleadings 12th Edition at 147 and considering the 2nd further amended statement of defence, especially paragraphs 2, 9, 12 (d) and 23 thereof, the court below was right to hold that it was a “grave drafting error” by the pleader, not an admission of paragraph 31(a) of the further amended statement of claim by paragraph 23 of the 2nd further amended statement of defence at page 265 of the record; moreover, admissions are not necessarily conclusive against the maker; also an admission must be clear, precise, and unequivocal and the Court must carefully examine and evaluate the admission against the particular circumstances under which it was made, especially as admissions do not bind third parties vide Nwankwo v. Nwankwo (1995) 5 NWLR (pt. 394) 153 at 197, Coker v. Olukoga (1992) 2 NWLR (pt. 329) 648 at 662.
It was submitted on the fourth issue that paragraph 12 (b) (iii) of the second further amended statement of claim at pages 182-183 of the record was traversed by paragraph 29 of the 2nd further amended statement of defence at pages 259-267 of the record showing the 15th Defendant “strongly joined issues with the plaintiff on the alleged removal or suspension of the 15th Defendant vide Exhibit C”. And, that the 15th defendant made the point that his removal or suspension evidenced by Exhibit ‘C’ was written without taking the rules of natural justice into account; also the word “removal’ or “suspension“, is a “play on words” and “really trivilaises(?) the issue in point”, so whether “removal” or “suspension” the 15th defendant’s complaint was that Exhibit ‘C’ was issued without compliance with the rules of natural justice; that the cases of Oyeyemi v. Commissioner for Local Government (1992) 2 NWLR (pt. 226) 684-685, Ojo v. Governor of Oyo State (1989) 1 NWLR (pt. 95) 1 at 12 together with section 25 (1) of the Chiefs Law were rightly applied by the court below to invalidate the removal of the 15th defendant as Agbon of Ijebu-Igbo and that the complaint of the appellant that the onus of proof was wrongly placed on him to justify the removal of the 15th defendant as Agbon of Ijebu-Igbo was adequately answered by part of the judgment of the court below at page 449 line 25 to page 450 lines 1-25 of the record; consequently the appeal should be dismissed.
The issues formulated by Mr. Akinsinde for the 1st-3rd respondents (supra) are, in my respectful opinion, concise and adequate for the consideration of the appeal. I prefer the said issues to the heavily proliferated issues of the appellant and will follow the 1st-3rd respondents’ issues in the consideration of the appeal.
The interpretation of Exhibit ‘A’, the Declaration, is central to the first issue for determination on the appeal. Clause (iii) thereof in particular, is the portion that calls for interpretation. For quick reference, I copy it below –
“The persons who may be proposed as candidates by a Ruling House entitled to fill a vacancy in the chieftaincy shall be:-
(a) Members of the Ruling House, including sons of a previous holder of the title;
(b) Of the Male line, provided that succession may devolve on the female line where there is no qualified candidate of the male line.”
The Declaration, Exhibit ‘A’, does not define “previous holder of the title,” “male line” and “female line”. In my respectful opinion, the Declaration, Exhibit A, is a piece of local subsidiary legislation codifying the custom or tradition respecting the Orimolusi Chieftaincy office – See Oladele & Ors. v. Oba Aromolaran II & Ors. (1996) 6 NWLR (pt. 453) 180, Oba Mafimisebi v. Ehuwa (2007) 1 SCNJ 258 at 291-292, or (2007) 2 NWLR (pt. 1018) 385.
The PW6, a Mr. Adediran Adejonpe, the head of the princes of Ijebu-Igbo and, also, the head of Kupakude Ruling House of the Orimolusi Chieftaincy testified uncontradicted at pages 208-213 of the record inter-alia that there are two Ruling Houses for the Orimolusi chieftaincy – Kupakude and Ojuromi; adding that “In order to qualify a candidate should have either Kupakude or Ojuromi blood in him” vide page 211 of the record, meaning the candidate must trace his root from unbroken male line to the founder of the Ruling House entitled to the chieftaincy at the material time. The PW6 stated unchallenged on the same page 211 of the record that-
“…the 5th defendant is a prince but he is of the female line, I know the maternal grandfather of the 5th defendant whose name was Sadiku. Sadiku, grandfather of the 5th defendant is prince of the female line. Abraham Adesemowo was related to Ojuromi Ruling House through his mother. His father is not related to Ojuromi…
The difference lies in the fact that in the case of the plaintiff his grandfather became an Oba when there was failure of the male line, but in the case of the 5th defendant none of his progenitors out of the ten previous Rulers of Ijebu-Igbo was an Oba…”
(My emphasis.)
It would follow from the portion of the evidence of the PW6 copied above that the unbroken male line traced to the founder of the Ruling House, in this case Ojuromi, must be exhausted before a person from the female line, implying a break in the male line by a female, would be considered for the chieftaincy.
The DW6, a Mr. Albert Oladele Onakori and, one of the King-makers of Orimolusi chieftaincy, testified uncontradicted at pages 292-294 of the record that-
“At that meeting we appointed the 15th defendant as the Secretary of the Kingmakers. The 15th defendant, at the request of all of us, read the Chieftaincy Declaration of Orimolusi to us. He explained to us that according to the Declaration we are required to first consider candidates of the male line at our meeting fixed for 6/1/97 for the appointment of the Orimolusi. He also explained to us that we are also required to consider candidates whose father had reigned before. He also explained to us that it is only when we cannot find a suitable candidate along those lines that we will consider candidates of the female line. All of us, the kingmakers, accepted his explanation…
The secretary of Ijebu-North Local Government, (the DW1, one Bisi Olasore) then read the Declaration and explained it in the same terms as the 15th defendant had done on the 3rd January, 1997.”
There was thus uncontradicted evidence from at least two traditional title holders or local chiefs – the PW6 and the DW6 – who are deemed to be conversant with the requirements of the Orimolusi Chieftaincy Declaration on the ambit of the Declaration. Their uncontradicted pieces of evidence were, therefore, admissible under sections 70, 73 (1) and 74 (c) of the Evidence Act, 2011 (formerly sections 59, 62 (1) and 63 (c) of the Evidence Act) which for quick reference are copied below-
“In deciding questions of customary law and custom, the opinions of traditional rulers, chiefs or other persons having special knowledge of the customary law and custom.. are admissible (section 70).
When the court has to form an opinion as to the existence of any general custom or right, the opinions as to the existence of such custom or right, or persons who would be likely to know of its existence if it existed are admissible.” [Section 73(1)]
When the court has to form an opinion as to –
(c) the meaning of words or terms used in particular districts or by particular classes of people, the opinions of persons having special means of knowledge on the matters specified in this section, are admissible”. [section 74(c)]
After the court below acknowledged the need to give the Declaration the interpretation to bend to the local circumstances on the ground, it put aside the vital pieces of evidence of the leading natives of the area especially the PW6 and the DW6 (supra) on the true intendment of the Declaration in favour of the foreign and merely persuasive cases of D’Amico (supra) Trigona (supra) and Boys (supra) that interpreted some testamentary dispositions inconsistent with and wider than what the said witnesses testified to.
The foreign cases (supra) on the construction of gifts, always given liberal construction in order not to defeat the intention of the testator and save the gift, should not have been applied to this case, as the facts of the case dealing with succession to a traditional stool specifying in descending and priority order two segments of the category of candidates to aspire to the stool – male line; or female line, in the event the male line does not have qualified candidates, differ from the facts of the foreign cases (supra) where there was no segmented specification and the cases had to do with bequeath of Property.
I do not, therefore, find the foreign cases (supra) authoritative, more so in D’Amico v. Trigona (supra) the Court was not confident in its judgment when it stated inter-alia that-
“Applying this rule of succession to the present case, the Appellant Salvadore would seem to be entitled to succeed under the majority created by the succession of all lineal descendants without limit was allowed.” (My emphasis)
The underlined phrase (supra) showed the Court was not assertive in its judgment that the “male line” includes the interjection of a female in the male line. A foreign decision such as D’Amico v. Trigona (supra) arrived at in tentative language using the phrase “would seem to be entitled” to control the judgment is not weighty to be of persuasive force. Moreover, in that case the female gender started the line with “Clara”, so for the gift not to fail it was inevitable for the Court in the peculiar circumstances of the case to save it by holding in the context of the case that “male line” starting from a female as ancestress included all lineal descendants, or both male and female descendants from the line of the ancestress. It is therefore not general authority for the proposition that “male line” must include male and female descendants from the line of an ancestor, in my view. I refuse to be persuaded by it.
Boys v. Bradley (supra), another foreign case dealing with testamentary gift or bequest, differs on facts from the present case which is on the category of persons eligible to a traditional stool as clearly and specifically signified in the codified custom of the stool in the Declaration in Exhibit ‘A’. I am therefore not persuaded by Boys v. Bradley (supra). I most respectfully stand by the true prima facie meaning of phrase “male line” given by Stroud’s Judicial Dictionary (Fifth Edition) Vol. 3 page 1513-
“Male line… properly means a line commencing with a male and continued through males.” (My emphasis.)
The definition in Stroud’s Judicial Dictionary (supra) also accords with the purport of the Declaration as was explained to the kingmakers before they started deliberation on the selection of the next Orimolusi of Ijebu-Igbo as stated in the trustworthy evidence of the PW6, DW1 and DW6 on the issues, not the slanted construction given by the court below and favoured by the respondents.
The phrase “sons of a previous holder of the title” was interpreted by the Apex Court in Olanrewaju v. Governor of Oyo State (supra) cited by the appellant and the respondents. There the Apex Court held at page 362 of the law report inter-alia that the phrase was “…wide enough to include any person from a particular Ruling House whose father, grandfather or ancestor had been the holder of the title …”
The subsequent case of Oladokun v. The Military Governor of Oyo State (supra) cited by the appellant and the respondents followed Olanrewaju (supra) by adopting the same interpretation of the said phrase. The appellant being a grandson of late Oba Abraham Adesemowo who was the Orimolusi of Ijebu-Igbo, is, therefore, the son of a previous holder of the title.
However, clause iii (a) of the Declaration fully read would mean “Members of the Ruling House, including sons of a previous holder of the title of the male line.” It is the additional words “of the male line” and the provision for the female line absent in Olanrewaju (supra) and Oladokun (supra) that take the Declaration beyond the Declarations in Olanrewaju (supra) and Oladokun (supra). So clause (iii) (a) of the Declaration meaningfully read as a whole conveys the message that the previous holder of the title must have been from the male line or branch of Ojuromi dynasty before his son, grandson, or male offspring would be entitled to the chieftaincy office under clause (iii) (a) of the Declaration to arrive at the true intendment of the local subsidiary legislation and meet the expectation of the tradition or custom of the locality the Declaration is designed to serve. Taken together, clause (iii) (a) of the Declaration refers to the male line of Ojuromi which is to be considered first for the traditional stool. But in the event the male line is extinct or incapable of having a candidate, then as a matter of last resort or option the female line of Ojuromi would be considered for the traditional stool, as words derive colour from the context they are used in an enactment.
Clearly the appellant and the 5th respondent were shown by the evidence on the record to belong to the female line of Ojuromi within the definition in Stroud’s Judicial Dictionary (supra). In the case of the appellant he conceded under cross-examination at page 238 of the record that his late grandfather, Oba Abraham Adesemowo, who reigned as the Orimolusi of Ijebu-Igbo from 1929-1946 was mothered by a descendant of Ojuromi: To quote part of the appellant’s evidence as the PW8 at the court below-
“I agree with you that it was the mother of Oba Adesemowo who was a descendant of Ojuromi. I also agree with you that the father of Oba Adesemowo has no relationship other than through marriage with Ojuromi.”
In the case of the 5th respondent it was common ground that one Madam Rahamatu Aiyedun, a daughter of Prince Sadiku, a descendant of Ojuromi, mothered the 5th respondent, as the wife of the 5th respondent’s father, one Kassim. The quest for the stool by the appellant and the 5th respondent through the male line of the Ruling House under clause (iii) (a) of the Declaration did not, therefore, accrue or materialise. The court below was accordingly, wrong to interpret clause iii (a) of the Declaration to accommodate the eligibility of the appellant and the 5th respondent for the traditional stool under sub-clause (iii) (a) of the Declaration, when both the appellant and the 5th respondent are from the female line of Ojuromi Ruling House whose candidature for the stool came under clause (iii) (b) of the Declaration.
The result achieved by the court below validating the candidature of the appellant and the 5th respondent for the stool was correct, though based on wrong interpretation of clause (iii) (a) of the Declaration, is sustainable under clause iii (b) of the Declaration permitting candidates from the female line of the Ruling House to vie for the stool, as a matter of last resort – See by analogy the case of Sosanya v. Onadeko & Ors. (2005) 8 NWLR (pt. 926) 185 at 223 (alphabets E-H). Notwithstanding wrong reason due to faulty interpretation of clause iii (a) of the Declaration was given by the court below allowing the candidature of the appellant and the 5th respondent for the traditional stool, its decision is supported by clause (iii) (b) of the Declaration – See Ukejianya v. Uchendu 13 WACA 45 at 46, Taiwo & Ors. v. Sowemimo (1982) 5 S.C. 60 at 74-75 to the effect that an Appeal Court is concerned with the correctness of the decision arrived at by the trial court, not necessarily the reason(s) for the decision. The appellant’s strenuous arguments that the 5th respondent was not eligible to contest the stool and that, the court below was in error to have decreed that 5th respondent should be a candidate with the appellant at the denovo selection exercise ordered by it to be conducted by the kingmakers for the emergence of the new Orimolusi of Ijebu-Igbo are, in my respectful view, untenable, and are hereby discountenanced.
Paragraph 31 (a) of the second further amended statement of claim at page 189 of the record pleaded-
“The plaintiff avers further above, that the kingmakers meeting held on 6th January, 1997 was not properly, constituted, in that:
(a) The 8th and 9th defendants who has not been duly appointed and 15th defendant who has not been duly re-instated into his position as Agbon of Ijebu-Igbo were allowed to take part in the deliberation and consideration of the candidates to the vacant stool of the Orimolusi Chieftaincy.”
Paragraph 23 of 7th-9th, 13th-15th defendants’ second further amended statement of defence at page 265 of the record averred-
“Defendants further aver that the 8th and 9th defendants mentioned in paragraph 31(a) of the Amended Statement of claim, became Chiefs only after the demise of LATE OBA ADETAYO in 1994 and so have not been accepted and fully integrated into the kingmakers circle and so had not been recognised as kingmakers and therefore were not eligible to participate in the affairs of the kingmakers and that in any case it was not the kingmakers that chose themselves for the exercise but the authorities of Ijebu-North Local Government.”
The court below reacted to the traverse in paragraph 23 of the 7th-9th, 13th-15th defendants’ second further amended statement of defence (supra) at page 435 of the record thus-
“It seems to me that reference to 8th and 9th Defendants in the above recited paragraph is a grave drafting error.”
But paragraph 24 of the second further amended statement of defence which the court below used to justify the extract (supra) has no bearing on paragraph 23 (supra) which did not plead absence or non-attendance of some kingmakers.
It is puzzling that the court below gave unsolicited assistance to the drafter of the said piece of pleadings for the purpose of defeating the conscious admission of paragraph 31 (a) of the second further amended statement of claim by paragraph 23 of the 7th-9th, 13th-15th defendants’ further amended statement of defence. I think it was not the function of the court below to aid any of the parties before it. The learned senior counsel for the 5th-8th respondents made spirited effort to change the admission of paragraph 31 (a) of the appellant’s pleadings (supra) by paragraph 23 of his clients’ pleadings, but, with deference, I am not swayed by the effort to turn black into white, so to say: The admission is crystal clear that at the time of the selection exercise the 8th and 9th defendants, Chief M. Odejayi, now deceased, and Chief S. Oseni, (the present 6th respondent) respectively, were not qualified to participate in the selection exercise as kingmakers, as they were not full fledged chiefs before the demise of Oba Adetayo in 1994 who was to ratify their appointments in his capacity as the prescribed authority.
An express admission like the one in paragraph 23 of the 5th-8th respondents’ pleadings made after the other paragraphs referred to by learned senior counsel estopped the 8th and 9th defendants from denying that they were yet to be kingmakers and were not qualified to participate in the selection exercise of the Orimolusi of Ijebu-Igbo at the material time without further proof vide Nwanko v. Nwanko (1995) 5 SCNJ 44 at 62 where the Apex Court held that formal admissions in pleadings relieve the other party of the necessity of proving the matters admitted – See also Okesuji v. Lawal (1986) 2 NWLR (pt. 22) 417, Nwadike v. Nwadike (1987) 4 NWLR (pt. 65) 394, Egbunike & Anor. v. A.C.B. Ltd. (1995) 2 NWLR (pt. 375) 34 at 53, and Order 25 Rule 15 of the Rules of the court below and the series of cases (supra) cited in the appellant’s brief.
The PW8 (appellant) gave unshaken evidence of the lack of qualification of the 8th defendant (Chief M. Odejayi, now deceased), 9th defendant (Chief S. Oseni, now 6th respondent), 14th defendant (Chief J. A. Onadeko, now deceased) at page 236 of the record-
“The 8th and 9th defendants were among those who took part at the nomination meeting of 6/1/97. The 14th and 15th Defendant’s also took part at the meeting. The four kingmakers are not entitled to sit at that meeting. By Ijebu-Igbo tradition and custom before an Oliwo can take his part as a Kingmaker of the Orimolusi Chieftaincy he must have complied with or gone through the following: after his nomination at the Osugbo conclave as the Oluwo, he must be presented to the Olorilu of his Quarter for Approval, the Quarter Olorilu (or Oba as they are now called) will present the Oluwo to the Orimolusi who is the prescribed authority in respect of minor chieftaincies, who will bless and cap the new Oliwo. In the case of the 8th defendant he was neither blessed nor capped by the Orimolusi. The same procedure applies to the Apena of each quarter. The 9th defendant became Apena of Ojowo during the reign of the present Olorilu Ojowo Oba Kuyeba. The 9th defendant was not presented to the Orimolusi, Oba Adetayo, before he joined his ancestors. In the case of the 14th defendant he was not presented to the Orimolusi Oba Adetayo, before his demise”
The 8th defendant did not produce in evidence his letter of appointment to displace the PW8’s evidence, when such appointments bear letters of appointment, for example Exhibit ‘D’ carrying the appointment of one Mr. David Adebayo Kuyeba as Olorilu of Ojowo. There was also the uncontradicted evidence of the PW2, Mr. Bisi Olasore, the secretary of Ijebu-North Local Government, at page 114 of the record in respect of the vacant title of Oluwo Osugbo of Ojowo of Ijebu-Igbo thus-
“Exhibit B deals with a minor chieftaincy matter in respect of Ojowo, Ijebu-Igbo. I see that the title of Oluwo Osugbo of Ojowo was stated to be vacant in that Exhibit.”
The PW2 further stated at page 116 of the record-
“The two titles of Agbon and Oluwo of Ijebu-Igbo come within the jurisdiction of the Orimolusi of Ijebu-Igbo as the prescribed Authority.”
The PW2 added at page 159 of the record-
“If on the 6th of January, 1997 I was aware of Exhibit B and C I would have raised objection to the 8th and 15th Defendant’s participation in the deliberation of the kingmakers of 6/1/97.”
Exhibit ‘G’ from Ijebu-North Local Government requesting the 15th defendant (8th respondent) to furnish evidence of his appointment as Agbon of Ijebu-Igbo was on the available evidence on record not honoured showing the 15th defendant had no such letter of appointment and that, if he had any, the record of Ijebu-North Local Government would have revealed it.
So the issue of the 8th defendant receiving some stipend from Ijebu-North Local Government could not have undermined Exhibit ‘B’ as the totality of the evidence of the PW2 had shown Ijebu-North Local government had not received Exhibit ‘B’ as to stop payment of the stipend to 8th defendant, which payments appeared to have been made in error having regard to the portion of the PW2’s evidence at page 159 of the record (supra). Both the PW7 and the DW6 were at one that 9th defendant’s appointment was not approved by the approving authority, the Orimolusi of Ijebu-Igbo, as required by custom and tradition, which was held by the court below to have been pleaded and proved by the appellant. The 9th defendant who was at the centre of the storm would not testify to clear his position.
In my opinion, the pieces of evidence from the appellant’s witnesses referred to (supra) fortified the 8th-9th defendants’ admission in paragraph 23 of their pleadings (supra) and the court below was wrong to jettison the said pieces of evidence in favour of the rather feeble evidence on the issue from the defence – See Agbonifo v. Aiwereoba (1988) NWLR (pt. 70) 325; more so there was no letter from the Orimolusi, the prescribed authority, rescinding or withdrawing Exhibit ‘B’, therefore whether he forgave 9th defendant before his death, as stated by the 8th defendant in the court below was not shown to have resulted in the cancellation of Exhibit ‘B’; nor did the series of documents admitted in evidence as Exhibits from Ijebu-North Local Government on the issue formally set aside Exhibit ‘B’ issued by the appropriate authority that was, also, the prescribed authority to reverse the decision in Exhibit ‘B’. Accordingly, the court below was wrong to hold that the 9th defendant was a chief and qualified kingmaker to participate in the selection exercise of the Orimolusi of Ijebu-Igbo.
Exhibit ‘C’ states-
“For quite time, I have noticed that all your utterances and behaviours, as a Chief of Ijebu-Igbo have been against the interest, unity and progress of Ijebu-Igbo and our people. You have along with some other people and a few chiefs of the town pitched a camp against the Orimolusi and Ijebu-Igbo since the past three or more years. You have indulged with others to write petitions against the authority of Orimolusi which are capable of incitement and of very dangerous consequences.
As a result of above, a cross-section of the people of Ijebu-Igbo from within and without the town and also including chiefs, elders and prominent indigenes have clamoured for your removal from Ijebu-Igbo chieftaincy. After due consideration of the agitation for immediate stripping of your chieftaincy title, now therefore, I, Oba Adetayo Kupakude IV, the Orimolusi of Ijebu-Igbo and the Prescribed Authority for the area traditionally associated with Ijebu-Igbo in the Ijebu North Local Government of Ogun State having been satisfied that you no longer enjoy my confidence and therefore unworthy of the holder of an Ijebu-Igbo chieftaincy do strip you of the title of Agbon of Ijebu-Igbo with effect from the date of this letter, I therefore order that you stop parading yourself as a chief of this town forthwith and henceforth.”
By Exhibit ‘C’, the 8th respondent was removed from office as Agbon of Ijebu-Igbo by the Orimolusi of Ijebu-Igbo, the prescribed authority. The 8th respondent did not challenge the removal by action in court, nor did the 8th respondent take administrative steps to set aside the stripping of his chieftaincy title of Agbon of Ijebu-Igbo by Exhibit ‘C’. Even the second further amended statement of defence incorporating the 8th respondent’s defence at pages 259-267 of the record did not set up a counter-claim by the 8th respondent to set aside the said removal.
Contrary to established practice the court below granted a relief setting aside the removal of the 8th respondent as Agbon of Ijebu-Igbo that was not claimed by 8th respondent- See Ayanboye & Ors. v. Balogun (1990) 5 NWLR (pt. 151) 392 at 413:
“…a court has no power to grant to a party that which he does not Claim. See N.H.O.S. v. Mumuni (1977) 2 S.C. 57, Akanni v. Makanju (1978) 8 and 12 S.C.I. and Omoboriowo v. Ajasin (1984) 1 SCNLR 108.”
Also, the Orimolusi of Ijebu-Igbo that removed the chieftaincy title of the 8th respondent by Exhibit ‘C’ was not a party to the suit at the court below, therefore it was wrong for the court below to set aside the removal behind the back of the removing authority – See Biyu v. Ibrahim & Ors. (2006) 8 NWLR (pt. 981) 1 at 37, P.D.P. v. ANPP (1999) 3 NWLR (pt. 594) 218, Okonkwo v. Okagbue (1994) 9 NWLR (pt. 368) 301, Reynold Construction v. Reynold Brezing Brown & Anor. (1993) 6 NWLR (1993) 6 NWLR (pt. 297) 122, and Oloriode v. Oyebi (1984) 1 SCNLR 390 at 409 (alphabet A).
The court below, accordingly, acted in error by setting aside the removal of the 8th respondent as Agbon of Ijebu-Igbo. I have no hesitation in reversing that aspect of the judgment of the court below. I hereby quash the said order of the court below setting aside the removal of the 8th respondent as Agbon of Ijebu-Igbo, as the court below embarked on a futile or fruitless exercise beyond the mandate of the reliefs sought before it to grant the gratuitous order- see Chief Registrar v. Vamos (1976) 1 SC 33.
On the whole, appeal No. CA/I/69/99 has merit on the issue respecting the improper composition of the kingmakers at the selection exercise of 6.1.97 that produced the 5th respondent as the Orimolusi of Ijebu-Igbo. I accordingly allow appeal No. CA/I/69/99 in part. The decision of the court below validating the kingmakership status of the 8th, 9th and 15th defendants is hereby set aside. It is hereby ordered that until the vice afflicting the status of the 9th defendant, now 6th respondent, and 15th defendant, now 8th respondent, is cured, before they will participate as kingmakers for the selection of the Orimolusi of Ijebu-Igbo.
Regarding appeal No. CA/I/267B/99, the appellant extracted one issue for determination at page 2 of the appellant’s amended brief of argument dated and filed on 30.4.07 by his learned senior counsel, Mr. Adesanya, For ease of reference I copy the said single issue for determination below –
“Whether the learned trial Judge was right in invalidating the decision of the Kingmakers appointing the 5th Defendant as the Orimolusi elect at their meeting of 6.1.97 when on the evidence of voting accepted by the trial Judge, the vote of the 14th Defendant cast for the 5th Defendant would not have affected the result of the appointment of the 5th Defendant and thereby reduce his majority below five votes that was needed for him to be appointed as Orimolusi of Ijebu-Igbo.”
The court below invalidated the selection of the 5th defendant as the Orimolusi of Ijebu-Igbo on the sole ground that the 14th defendant was not qualified to vote at the selection exercise as a kingmaker. For ease of reference the relevant portion of the judgment of the court below read-
“In the case on hand the 14th Defendant not having been proved to be appointed the Olotu Pampa of Japara is prohibited by statute from attending or and participating in the proceedings of the kingmakers of 6/1/97. His presence and participation in the proceedings invalidated the decision taken by the kingmakers in selecting the 5th Defendant as the new Orimolusi of Ijebu-Igbo…
I HEREBY DECLARE that the meeting of the kingmakers of 6/1/97, in so far as the 14th Defendant who is not entitled to participate as a kingmaker, participated and voted thereat, is improperly constituted and the selection by them of the 5th Defendant as Orimolusi elect in irregular null and void.”
It was principally argued by the appellant that following the case of Ibrahim v. Aliyu (2000) 12 NWLR (pt. 683) 38 at 51-52, the 14th defendant’s vote should have been removed from the six votes cast for the 5th defendant which could not have materially affected the result of the selection exercise and; that the case of Oladokun v. Governor of Oyo State (1996) 8 NWLR (pt. 467) 387 at 390 used by the court below to nullify the selection exercise is distinguishable from the facts of the present case in that not all the kingmakers in Oladokun (supra) were invited to participate at the selection exercise in that case, which was one of the grounds complained of in that case, unlike the present case, consequently the vote of the 14th defendant should have been disregarded and the selection of the 5th defendant, now appellant, upheld by the court below on the remaining five votes of the appellant against the three votes of the 1st respondent, therefore Appeal No. CA/I/267B/99 be allowed.
The 1st respondent adopted the appellant’s issue for determination in his amended brief of argument dated 4.5.07 and filed on 7.5.07, to contend that by virtue of section 15 (e) and (f) of the Chiefs Law of Ogun State and the Registered Chieftaincy declaration for the Orimolusi of Ijebu-Igbo the kingmakers described in paragraph IV of the Declaration constitute a statutory body empowered to perform a special function which can only be exercised upon their proper constitution in terms of number and qualification vide Mogaji v. Matori (2000) FWLR (pt. 18) 237 at 252 following Madukolu v. Nkemdilim (1962) 1 ALL N.L.R. 587 read with the English case of Young v. Ladies Imperial Club Ltd. (1920) ALL E.R. (Rep.) 223 at 227-228 cited with approval in Oladokun v. Military Governor of Oyo State (1996) 8 NWLR (pt. 467) 387 at 391 to the effect that the failure to invite all the kingmakers to participate at the selection exercise of a chief voided the exercise on ground of improper composition of the kingmakers vide Macfoy v. U.A.C. (1962) A.C. 152; and that Ibrahim (supra) was decided on its peculiar facts, as the plaintiff in that case was unable to prove that the kingmakers were truly not qualified to participate in the selection exercise and, also, the Chiefs Order, 1990, relied upon in Ibrahim (supra) created an electoral college with quorum of seven qualified members, unlike the present case; consequently appeal No. CA/I/267B/99 should be dismissed.
The 2nd-4th respondents did not file brief of argument on account of which they were not heard in argument on the appeal – See Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR (pt 55) 179.
The 6th-8th respondents’ amended brief of argument dated and filed on 4.5.07 opened with the preliminary submission that the traditional role of a respondent is ordinarily to defend the decision appealed against and, in the absence of a cross-appeal, a respondent ought not to challenge the decision appealed against vide Adefulu v. Oyesile (1989) 5 NWLR (pt 122) 377 at 417 and Obasanjo v. Buhari (2003) 17 NWLR (pt 850) 510 at 554-555: provided that in exceptional circumstances a respondent may depart from the traditional role and align with the appellant to avoid proliferation of appeals and may concede the appeal in the respondent’s brief vide Order 18 Rule 4 (2) of the Court of Appeal Rules, 2011 and the case of Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR (pt. 55) 179; and that the 6th-8th respondents in fact voted for the appellant as kingmakers at the meeting of 6.1.97 and it would be “invidious, dishonourable and unconscionable” for them to “approbate and reprobate” by supporting the decision of the court below vide Akpa v. Itodo (1997) 5 NWLR (pt. 506) 589, Adeleke v. Osha (2006) 16 NWLR (pt 1006) 608 at 663 and INEC & Ors. v. Obi & Ors. (2006) 14 NWLR (pt. 999) 1 at 197.
The 6th-8th respondents then identified one issue for determination at page 4 of their amended brief thus-
“Was the appointment of the 5th defendant/appellant invalid, null and void simply because the 14th defendant (now deceased) was held by the trial Judge not to be qualified (as a kingmaker) to participate in the proceedings of the kingmakers of 6th January 1997?”
In arguing the single issue for determination (supra), the 6th-8th respondents adopted “in toto” the appellant’s arguments together with the case of Ibrahim (supra) to urge that the appeal be allowed and the decision of the court below set aside as it “would amount to a gross miscarriage of justice to nullify the appellant’s election” on the invalid vote of the unqualified kingmaker when there were five valid votes to sustain the election.
In my considered opinion, the issue formulated by the appellant is compendious for the discussion of the appeal. I hereby follow it in the consideration of the appeal, Ibrahim (supra) dealt with codified customary law on the selection of a chief as in the present case which codified the customary law on the selection of the Orimolusi of Ijebu-Igbo; also, Ibrahim (supra) dealt with the effect of some unqualified kingmakers participating in the selection exercise of a chief as in the present case; the quorum stipulated in the chieftaincy post considered in Ibrahim (supra) was not the central issue there, as all that was in contest was the participation of three unqualified kingmakers in the selection exercise of a chief in that case, consequently the facts in both cases on the participation of unqualified kingmakers in the selection of a chief are the same. Also, where no quorum is stipulated, simple majority of the votes of the qualified members at the meeting would carry the day vide section 53 (a) of the Interpretation Law, Ogun State, to this effect-
“Save as may be otherwise expressly provided by any written Law-
(a) Whether any act or thing is by any written Law required to be done, or any decision taken, by a body of persons consisting of not less than three such act or thing may be done, or such decision taken, in the name of that body by a majority of those persons.”
Young (supra) followed in Oladokun (supra) dealt with non attendance of some persons whose attendance was necessary at a meeting on account of non service of notice of the meeting on them which led to the holding by the court of Appeal (England) that the meeting was bad for excluding the uninvited members, which the Apex Court followed in Oladokun (supra) to hold that the meeting of some of the qualified kingmakers in that case without the invitation of all the qualified kingmakers was bad, consequently both cases are distinguishable from this case dealing inter-alia with the participation of unqualified kingmakers in the selection exercise of a chief.
Accordingly, I agree with learned senior counsel for the appellant Mr. Adesanya, that the effect of the participation of the 14th defendant (now deceased) in the selection exercise vitiated only his vote, but it did not vitiate the votes of the other qualified kingmakers that participated in the exercise and following Ibrahim (supra) especially the lead judgment of Kalgo, J.S.C. (as he was) the vitiated vote of the 14th defendant should have been discarded by the court below leaving the appellant with five votes which should not, per se, have led to the nullification of the selection of the appellant as held by the court below. There is therefore merit in appeal No. CA/I/267B/99 which I hereby allow and quash the decision of the court below nullifying the selection of the appellant as the Orimolusi of Ijebu-Igbo on the sole ground that the 14th defendant participated in the selection exercise when he was not a qualified kingmaker.
The net result I reach in appeal No. CA/I/69/99 and appeal No. CA/I/267B/99 is that of the nine (9) kingmakers that composed the meeting for the selection exercise, four of them – the 8th, 9tn, 14th and 15th defendants were not qualified to participate as kingmakers. Their participation in the selection exercise was therefore bad. The consequence is to delete their votes, which are hereby deleted leaving the 5th respondent in appeal No. CA/I/69/99 and appellant in appeal No. CA/I/267B/99 with two (2) votes against the 3 votes of the appellant in appeal No. CA/I/69/99 and 1st respondent in appeal No. CA/I/267B/99 which would have entitled him to win the selection exercise against the 5th respondent in appeal No. CA/I/69/99 and appellant in appeal No. CA/I/267B/99 – See Ibrahim (supra).
The 3rd respondent is accordingly ordered to set in motion the necessary machinery for the qualified kingmakers to reconvene for the purpose of selecting one of the candidates from the male line, but in the event no qualified candidate is found in the male line, candidates from the female line shall be considered and presented by the Head of Ojuromi family for selection or appointment as the Orumolusi of Ijebu-Igbo by the kingmakers.
As for the 8th defendant, a Mr. M Odejayi, and the 14th defendant, a Mr. J. A. Onadeko, their reported demise that led to the striking out of their names from the case has, by natural consequence, eliminated their participation in the new selection exercise for the appointment of the Orimolusi of Ijebu-Igbo at which the appellant and the 5th respondent are eligible for consideration as candidates of the female line of Ojuromi Ruling House, provided there is no qualified candidate(s) of the male line of Ojuromi Ruling House. Parties to bear their costs.
ADZIRA GANA MSHELIA, J.C.A.: I had the advantage of reading in draft the lead judgment of my learned brother IKYEGH, J.C.A just delivered. I agree with the reasoning and conclusions arrived thereat. My learned brother had adequately considered the issues raised in the two consolidated appeals. For the same reasons clearly stated in the lead judgment which I adopt as mine, I too allow appeal No. CA/I/69/99 in part and abide by the consequential orders made including the order made on costs. I also allow the appeal No CA/I/267B/99 and abide by the consequential orders made in the lead judgment costs inclusive.
MODUPE FASANMI, J.C.A.: I had the opportunity of reading the draft of the lead judgment of my learned brother Ikyegh J.C.A. just delivered.
I agree entirely with the reasoning and conclusion. I adopt same as mine and abide by the consequential orders contained therein.
Appearances
CHIEF K. A. AKINYELE (with Mr. D. ODUGUWA) – CA/I/69/99
MR. A. ADESANYA, S.A.N. (with MR. ALLI) – CA/I/267B/99 For Appellant
AND
Mr. P. O. AKINSINDE, DIRECTOR ADVISORY SERVICES, (MINISTRY OF JUSTICE, OGUN STATE) – for 1st-3rd Respondents (with Mr. AKAPO).
MR. A. ADESANYA, S.A.N., (with MR. ALLI) – for 5th-8th Respondents. – CA/I/69/99
CHIEF K. A. AKINYELE (with MR. D. ODUGUWA) – for the 1st Respondent.
MR. P. O. AKINSINDE, DIRECTOR, ADVISORY SERVICES (MINISTRY OF JUSTICE, OGUN STATE) for the 2ND-4TH Respondents (with MR. AKAPO).
DR. A. I. LAYONU, S.A.N. (with MR. A. ANUODO) – For 6TH-8TH Respondents. – CA/I/267B/99 For Respondent
