PRINCE SALIU ADEBISI SADIKU V. PRINCE MUSAFAU OMOWALE KASSIM & ORS
(2012)LCN/5465(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of June, 2012
CA/I/268/99
RATIO
INTERPRETATION OF STATUTES: WHERE THE WORDS OF A STATUTE ARE UNAMBIGUOUS, THE WORDS MUST BE GIVEN THEIR PLAIN AND ORDINARY MEANING
It is trite that where the provisions of a statute are unambiguous, the expressions of words therein must be given their plain and ordinary meaning and the court will not expand those provisions to include any extraneous provisions not stated therein. See A.G. FEDERATION v. GUARDIAN NEWSPAPER (1999) 9 NWLR Part 618 page 187 at 264, OVIAWE v. IRP (Nig.) Ltd. (1997) 3 NWLR Part 492 Page 126 at 139 Paras E-F, TASHA v. UBN Plc. (2003) 36 WRN Page 64 and ARAKA v. EGBUE (2003) 33 WRN Page 1.PER MODUPE FASANMI, J.C.A.
EVIDENCE: WHEN THERE IS NOT EVIDENCE TO PROVE A CLAIM, THE EXERCISE WILL BE NULL AND VOID
I am therefore of the view that the procedure adopted by the Kingmakers at their meeting held on the 6th of January, 1997 (Exhibit B) was a gross violation of the mandatory provisions of paragraph (iii) (a) and (b) of the Orimolusi of Ijebu Igbo Chieftaincy Declaration. In the absence of any evidence that there is no suitable candidate from the male line before appointing from the female line, the exercise is null and void.
See MACFOY VS. U.A.C. LTD (1962) A.C. Page 152 at 160 where Lord Denning says:
“If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court to set aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
The decision of the Kingmakers appointing the 1st Respondent as the Orimolusi of Ijebu-Igbo elect is therefore a nullity and the finding of the trial court is hereby set aside. Issue three is hereby resolved in favour of the Appellant.PER MODUPE FASANMI, 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 SALIU ADEBISI SADIKU Appellant(s)
AND
1. PRINCE MUSAFAU OMOWALE KASSIM
2. CHIEF SALIU OSENI
(Apena of Ojowo, Ijebu-Igbo)
3. CHIEF MUSARI ADAMOLEKUN
(Oluwo of Oke-Agbo, Ijebu-Igbo)
4. CHIEF OLUSOGA FUWA
(Agbon of Ijebu-Igbo)
5. THE EXECUTIVE GOVERNOR OF OGUN STATE
6. THE EXECUTIVE COUNCIL OGUN STATE Respondent(s)
MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of an Ogun State High Court sitting in Ijebu-Igbo Judicial Division which was delivered on the 30th of July, 1998 wherein the learned trial Judge dismissed the Appellant’s claims.
The facts which led to this action before this court are that sometime in May 1994, Oba Daniel Adetayo Kupakude IV, the Orimolusi of Ijebu-Igbo joined his ancestors. In the event, a vacancy occurred in the stool of the Orimolusi of Ijebu-Igbo. The filling of the stool is governed by a Registered Declaration made under the Chiefs Law of Ogun State. The Declaration contains the Customary Law regulating the filling of the Orimolusi of Ijebu-Igbo Chieftaincy. In accordance with the Declaration, it was the turn of the Ojuromi Ruling House to propose candidates to fill the vacancy. Members of the said Ruling House met and nominated eight members of the house, whose names were sent to the Kingmakers.
The Kingmakers met and six of them voted for the 1st Defendant, whilst three voted for some other candidate other than the Appellant who was the Plaintiff at the lower court. Appellant being aggrieved by the outcome of the whole exercise filed the action at the lower court praying for the reliefs set out in his statement of claim at pages 27-28 of the record.
The grouse of the Appellant is that the 1st Respondent was not eligible to be proposed as a candidate for the vacant stool because he is from the female line of the family. Another ground of his complaint against the appointment of the 1st Respondent is that the Appellant’s candidature was not considered at all by the Kingmakers. While 1st Respondent’s case was that he was eligible for selection and appointment to the office of the Orimolusi of Ijebu-Igbo being a member of the Ojuromi Ruling House, a son of a previous holder of the title and a male descendant of the Ruling House.
Pleadings were filed and exchanged between the parties.
The case went on trial. At the close of evidence, Learned Counsel to the parties addressed the court and judgment was reserved till 30/7/98. The learned trial Judge in his judgment delivered on the 30th July, 1998 dismissed the Appellant’s claims. Appellant being dissatisfied with the judgment appealed to this court vide his notice of appeal dated 31st July, 1998 at pages 127-129 of the record of appeal.
In compliance with the rules of this Court, Appellant’s amended brief of argument pursuant to the Order of this Court made on 12th February, 2007 is dated 4th of May, 2007 but filed on 8th of May, 2007. 1st-4th Respondents’ amended brief of argument is dated and filed 9th of May, 2007. 5th – 6th Respondents’ amended brief of argument is dated 1st of February, 2012 but filed on the 9th of March, 2012.
Appellant distilled three issues for determination from the grounds contained in the notice and amended notice of appeal as follows:-
(1) Whether the Kingmakers of Orimolusi of Ijebu-Igbo Chieftaincy at their meeting held on the 6th of January, 1997 as contained in exhibit B, did select or appoint a candidate in accordance with the provisions of the Orimolusi of Ijebu-Igbo Chieftaincy Declaration (Exhibit A) and Section 15(1), (e), (f)(ii) and (iii) of the Chiefs Law, Cap 20 Volume 1 Laws of Ogun State of Nigeria 1978;
(2) Whether the interpretation which the learned trial Judge placed on the provisions of the Orimolusi of Ijebu-Igbo Chieftaincy Declaration (Exhibit) is correct in law;
(3) Having regard to the totality of the evidence before the Trial Court, and the procedure adopted by the Kingmakers at their meeting held on the 6th day of January, 1997, (exhibit B) could it be said that, the Kingmakers did consider first candidates from the male line before proceeding to consider other candidates from the female line.
1st-4th Respondents distilled two issues for determination as follows:-
(1) 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 1st Defendant was entitled to be proposed as a candidate for the vacant stool of the Orimolusi;
(2) Whether on a calm review of the facts accepted by the learned trial Judge, it can be said that the Kingmakers considered the candidature of the Plaintiff before appointing the 1st Respondent as the Orimolusi.
5th – 6th Respondents distilled two issues for determination as follows:-
(1) Whether the 1st Respondent is entitled to be nominated or selected as a candidate to fill the vacant stool of Orimolusi of Ijebu-Igbo in view of the provisions of the Chieftaincy Declaration of Orimolusi of Ijebu-Igbo and the Chiefs Law of Ogun State.
(2) Whether the candidacy of the Plaintiff was considered by the Kingmakers at their meeting on 6/1/97.
In my considered view, the issues for determination couched by the Appellant are apt for determination of the appeal and same shall be followed in the consideration of the appeal. The arguments on issues one and two will be taken together to avoid unnecessary repetition.
ISSUE ONE
Whether the Kingmakers of Orimolusi of Ijebu-Igbo Chieftaincy at their meeting held on the 6th day of January, 1997 as contained in exhibit B, did select or appoint a candidate in accordance with the provisions of the Orimolusi of Ijebu-Igbo Chieftaincy Declaration (Exhibit A) and Section 15(1) (e) (f) (ii) and (iii) of the Chiefs Law, Cap 20 Vol.1, Laws of Ogun State of Nigeria 1978.
AND
ISSUE TWO
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.
Learned Counsel for the Appellant submitted that the crucial points to be considered and argued under these issues are the scope and exhaustiveness of Orimolusi of Ijebu-Igbo Chieftaincy Declaration. In other words, whether the Orimolusi Chieftaincy Declaration tendered as Exhibit A recognizes all male candidates irrespective of their genealogy to be from male lineage. He submitted that the Orimolusi of Ijebu-Igbo Chieftaincy Declaration tendered as Exhibit A particularly paragraph (iii) Clauses (a) and (b) stipulates the qualification of candidates who can occupy the stool of Orimolusi of Ijebu-Igbo to be:-
“(iii) 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”.
He contended that in the course of interpreting the term “MALE LINE” as contained in Exhibit A and the Chieftaincy Declaration in the cases of OLANREWAJU v. THE GOVERNOR OF OYO STATE (1992) 9 NWLR Part 265 Page 335 and MUSTAPHA OLADOKUN V. GOVERNOR OF OYO STATE (1996) 8 NWLR Part 467 Page 387 cited by the Learned Senior Counsel for the 1st – 4th Respondents and Learned Counsel for the 5th-6th Respondents respectively, the learned trial Judge came to an erroneous conclusion by equating male line with male descendant. He submitted further that the provisions of the said paragraph (iii) (a) and (b) together with its proviso (i.e. Exhibit A) is clear and unambiguous and it ought to be given its plain ordinary grammatical and natural meaning when interpreting same.
Submitted further that the candidate of the female line can only be considered by the Kingmakers going by the provision of paragraph (iii) (a) and (b) of the Orimolusi of Ijebu-Igbo Chieftaincy Declaration (Exhibit A) if and only if there is no qualified candidate of the male line. The right of any candidate of the female line to the stool of Orimolusi of Ijebu-Igbo therefore becomes secondary.
Learned Counsel for the Appellant argued that from the minutes of the meeting of the Kingmakers Exhibit B, the kingmakers though met to select or appoint an Orimolusi of Ijebu-Igbo, the exercise was not in compliance with the mandatory provisions of paragraph (iii) (a) and (b) of the Orimolusi of Ijebu-Igbo Chieftaincy Declaration which enjoins the Kingmakers to first select or appoint a candidate from the male, after which they are enjoined to select or appoint from the female line if there is no suitable candidate from the male line. He submitted that the finding of the learned trial Judge and conclusion reached thereafter was reached without proper interpretation and consideration placed on the unambiguous provisions of paragraph (iii) (a) and (b) together with its proviso to the Orimolusi of Ijebu-Igbo Chieftaincy Declaration (Exhibit A) which error is fatal to the Appellant’s case. Submitted further that a breach of mandatory enactment renders what had been done null and void. Reliance was placed on the cases of ODUA INVESTMENT COMPANY LIMITED VS. J.T. ALABI (1997) 10 N.W.L.R. Part 523 at 57 and NIGERIAN BOTTLING CO. PLC VS. OSOFISAN (2000) FWLR (PT. 7) Page 1181 at 1192 paras G-H. Learned Counsel for the Appellant urged the court to set aside the decision of the trial court and resolve issues one and two in favour of the Appellant.
Learned Silk for the 1st-4th Respondents submitted that the Appellant’s case is that the chain of the candidate to the founder of the family must be an unbroken male chain while 1st Respondent’s case is that a male member of the ruling house who could trace his descent to Ojuromi belongs to the male line. Submitted further that there is no where in the declaration that a candidate of the male line should trace his lineage through a continuous line of males. Submitted further that the meaning to be ascribed to “Male Line” can only be decided on after Clause (iii) of the declaration is construed as a whole and in the light of Oladokun and Olanrewaju’s cases supra. Learned Silk submitted that the learned trial Judge was right in holding that 1st Respondent is a “son of a previous holder of the title”.
Learned Silk further stated that descendancy does not connote direct and continuous male lineage but refers to and includes a broad tracing of lineage either as has been held in both Olanrewaju and Oladokun’s cases, through a grandfather or an ancestor. 1st Respondent’s grandfather having traced his lineage to Ojuromi, gives 1st Respondent right to the male line and not of the female line. On a proper construction of Clause (iii) of the Declaration as interpreted particularly in the Olanrewaju and Oladokun’s cases, 1st Respondent was entitled to be nominated as a candidate of the male line as well as being a son of a previous holder of the title Ojuromi. Learned Silk for the 1st-4th Respondents further contended that determination of who comes from the male or female line is not (within the provisions of exhibit A) the responsibility of the Kingmakers. It is the Ruling House that has the duty of proposing its members for the vacant stool. It is also the Ruling House that has to ensure that members proposed are members of the Ruling House, including sons of previous holder and of the male line. The Kingmakers are to assume that the lineage issue must have been decided on by the Ruling House and that they are only required to pick one of the candidates forwarded to them. The Appellant if he has a cause of action whatsoever in respect of the lineage issue, should have sued the Ruling House in a representative capacity and not the Kingmakers who under the declaration Exhibit A have no responsibility or duty to ascertain if whoever they appoint is from the female or male line. Learned Silk urged the court to resolve issues one and two against the Appellant.
Learned Counsel for the 5th and 6th Respondents submitted that the 1st Respondent being a member of Ojuromi Ruling House and having been nominated by members of the said Ruling House who are the ones entitled to nominate or select candidates according to Customary Law is qualified to be a candidate to fill the vacancy. He relied on the case of ADEFULE v. OYESILE (1985) 5 NWLR (part 122) Page 377 at 420 – 421. He submitted further that by being a son of a previous holder of the title (Oba Ojuromi) the 1st Respondent is qualified to be a candidate to fill the vacant stool of Orimolusi of Ijebu-Igbo.
Submitted further that it is immaterial that he could only trace his lineage through his mother since his qualification is predicated upon his being a son of a previous holder of the title. He contended further that the word “sons of a previous holder” also came up for judicial interpretation in OLANREWAJU VS. GOVERNOR OF OYO STATE (1992) 23 NSCC Part 3 Page 389 at 403 Paragraphs 6 – 9 where the Supreme Court held thus:-
“It is important to observe that the words of Clause 2 of paragraph (iii) are “sons of previous holders of the title”.
These are wide enough to include any person from the particular Ruling House whose father, grandfather or ancestor had been the holder of the title.”
The above interpretation was also adopted by the same court in OLADOKUN VS. GOVERNOR OF OYO STATE (1996) 8 N.W.L.R. Part 467 page 387 at 390. Learned Counsel for the 5th and 6th Respondents urged the court to hold that the 1st Respondent is entitled to be appointed or selected as Orimolusi of Ijebu-Igbo on the ground that he is a son of previous holder of the title. Learned Counsel urged the court to resolve issues one and two against the Appellant.
It is the law that once a declaration has been made and registered in respect of native law or customary law with regards to any subject, that declaration becomes the codified native law and custom to the exclusion of all other laws and practices. See the cases of DARAMOLA VS. A.G. ONDO STATE (2000) 7 N.W.L.R. Part 665 Page 440 at 472 and AGBETOBA VS. LAGOS STATE EXECUTIVE COUNCIL (1991) 1 N.W.L.R. Part 188 Page 664.
The Orimolusi of Ijebu-Igbo Chieftaincy Declaration tendered as exhibit A particularly paragraph (iii) Clauses (a) and (b) stipulates the qualification of candidates who can occupy the stool of Orimolusi of Ijebu-Igbo thus:
“(iii) 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 a succession may devolve on the female line where there is no qualified candidate of the male line.”
It is well settled that where the words in a statute are clear and unambiguous, they should be given their plain and ordinary meanings and are not subject to any other interpretation except where this would lead to a manifest absurdity or injustice. See UDOYE V. STATE (1967) NMLR Page 197, YEROKUN V. ADELEKE (1960) SCNLR PAGE 267, AQUA LTD. V. ONDO SPORTS COUNCIL (1988) 4 NWLR PART 91 at PAGE 622, BUHARI V. OBASANJO (2005) ALL FWLR PART 273 PAGE 1 at 189 PARAS B – C AND OLANREWAJU V. GOVERNOR OF OYO STATE (1992) 9 NWLR PART 265 PAGE 335 AT 362 PARAS C-D.
Going from the above premise and interpreting Clause III of the declaration, candidate to be eligible to fill the vacancy must be:
(a) Member of the Ojuromi 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 two clauses in paragraph (iii) of the Declaration must be read together to give meaning and effect to paragraph (iii) of the Orimolusi Chieftaincy Declaration. It is the law that provisions of a statute are to be read together in order to give effect and meaning to the statute unless the intention of the draftsman cannot be achieved. See Olanrewaju Vs. Governor of Oyo State supra at 362 Paras B-C.
Applying the above principles of law to the case at hand, from the evidence of the head of the family who testified as 2nd Plaintiff Witness at pages 67-69 of the record of appeal that: “1st Defendant is the son of Aiyedun (female) sister of the Plaintiff”.
At page 69 under cross examination 2nd Plaintiff said:
“The only reason why I said that 1st Defendant is of the female line was because he claimed entitlement through his mother Aiyedun”.
In my humble view, 1st Respondent who was the 1st Defendant at the lower court is therefore a candidate of the female line who can only be considered by the Kingmakers going by the provision of paragraph (iii) (a) and (b) of the Orimolusi of Ijebu-Igbo Chieftaincy Declaration (Exhibit A) if and only if there is no qualified candidate of the male line. I am in tandem with the submission of the Learned Counsel for the Appellant that the right of any candidate of the female line to the stool of Orimolusi of Ijebu-Igbo therefore becomes secondary.
I am unable to agree with the submission of the learned silk for the 1st-4th Respondents submission that 1st Respondent’s grandfather having traced his lineage to Ojuromi, 1st Respondent was of the male line and not of the female line. The construction of clause (iii) of the Declaration as interpreted particularly in the Olanrewaju and Oladokun’s cases are distinguishable from the case at hand because in Olanrewaju’s case, the relevant declaration is set out at page 361 para E of the report. It reads as follows:-
“The persons who may be proposed as candidates by a Ruling House entitled to fill a vacancy in the chieftaincy shall be:
“(1) Male members of the ruling house;
(2) Sons of previous holders of the title”.
In Oladokun’s case, the declaration reads as follows:-
“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;
(b) of the male line only;
(c) sons of a previous holder of the title.”
In the case at hand, the relevant phrase in the Orimolusi declaration reads thus:
“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 Houses 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.
Underlining is mine for emphasis.
The proviso that succession may devolve on the female line where there is no qualified candidate of the male line makes it distinguishable from Olanrewaju and Oladokun’s cases supra. The two cases do not have the proviso in Orimolusi Chieftaincy Declaration in their own respective Declaration. I am therefore of the humble view that the two cases are not applicable to the case at hand.
The plain and ordinary interpretation of the proviso in paragraph (iii)(a) and (b) of the Orimolusi of Ijebu-Igbo Chieftaincy Declaration enjoins the Kingmakers to first select or appoint a candidate from the male line after which they are enjoined to select or appoint from the female line if there is no suitable candidate from the male line.
Learned Counsel for the Appellant rightly submitted that the learned trial court came to an erroneous conclusion by equating male line with male descendant. At page 115 lines 115 of the Record of Appeal, the learned trial Judge erroneously concluded by stating thus:
“There is no dispute between the Plaintiff and the 1st Defendant as to their ancestry. There is evidence that they are both descendants of Ojuromi who was an Oba. I therefore hold that the 1st Defendant is entitled as a male descendant of Ojuromi and as son of a previous holder (Oba Ojuromi) to be considered for the vacant stool of the Orimolusi on equal footing with the Plaintiff. The argument that the plaintiff is more qualified than the 1st Defendant just because he could trace his lineage all through male is not tenable in the con in which “male line” is used in Exhibit A and upon the evidence before me.”
I therefore hold that the conclusion is a miscarriage of justice to the Appellant case to say the least. The conclusion was reached without proper interpretation and consideration placed on the unambiguous provision of paragraph (iii) (a) and (b) together with its proviso to the Orimolusi of Ijebu-Igbo Chieftaincy Declaration Exhibit A. The breach of the proviso has rendered what had been done i.e the selection or appointment null and void and of no effect. It is sufficient to say once again that all the conditions stipulated in the declaration must be exhausted i.e. it is only where there is no qualified candidate from the male line that succession may devolve on the female line. To construe paragraph (iii) of the declaration in the manner posited by the Respondents and the learned trial court is to defeat completely the intendment of the Customary law as stated in Exhibit A which enjoins the Kingmakers to first select or appoint a candidate from the male line after which they are enjoined to select from the female line if there is no suitable candidate from the male line which they have failed to do. Issues one and two are hereby resolved in favour of the Appellant and against the Respondents.
ISSUE THREE
Having regard to the totality of the evidence before the trial court and the procedure adopted before the trial court and the procedure adopted by the Kingmakers at their meeting hold on the 6th day of January, 1997, (Exhibit B) could it be said that, the Kingmakers did consider first candidates from the male line before proceeding to consider other candidates from the female line.
Learned Counsel for the Appellant submitted that from exhibit B i.e. minute of the Kingmakers meeting) vis-a-vis the evidence of 1st P.W and 2nd D.W. that some of the Kingmakers did not wish to first consider the candidate of the male line before selecting the 1st Respondent who from the evidence is from the female line is a gross violation of the mandatory provisions of paragraph (iii)(a) and (b) of the Orimolusi of Ijebu-Igbo Chieftaincy Declaration and Section 15(1)(f)(ii) of Chiefs Law of Ogun State and therefore such exercise should be declared null and void since there are qualified candidates from the male line.
Reliance was placed on the case of MCFOY VS. U.A.C. (1962) A.C. at 152. He urged the court to set aside the decision of the Kingmakers in appointing the 1st Respondent as Orimolusi of Ijebu-Igbo elect and order fresh meeting of the Kingmakers to first deliberate on the candidates from the male line among whom is the Appellant before deliberating on the other candidates from the female line if no suitable candidate is found from the male line. Learned Counsel urged the court to resolve issue three in favour of the Appellant and allow the appeal.
Learned Silk for the 1st – 4th Respondents submitted that the 1st P.W., the 3rd P.W., 1st Defendant, 2nd D.W. and the 5th D.W. all testified on this issue. Under cross examination, the 1st D.W. agreed that the head of the family explained the lineage of all candidates to the Kingmakers. He agreed that Exhibit B, the minutes of the meeting also contained this fact. Learned Silk referred to page 63 line 1-6 of the record. 1st P.W. also agreed that the Head of the family presented all the candidates to the Kingmakers. At a stage, all the Kingmakers went out of the venue of the meeting and conferred among themselves. On their return, they decided to vote on two of the eight nominated candidates.
Learned Senior Counsel submitted that the Appellant has equated consideration of candidature with voting for such candidate. To the Appellant, the fact that he gets no vote, the necessary meaning therefore is that the Kingmakers did not consider him. He referred to the case of OLANREWAJU VS. GOVERNOR OF OYO STATE (1992) 9 N.W.L.R. Part 265 Page 335 at 370 Paras B-C.
He contended further that none of the King makers found the Appellant worthy of holding the high office of the Orimulusi, hence none of them voted for him. Submitted that the Appellant’s candidature was indeed considered. On the issue that those being candidates on the male line should have been voted on first before those from the female line, learned silk submitted that this line of argument would put unnecessary fetter on the right given to each Kingmaker to vote for a candidate of his choice. It was clear to each Kingmaker who the so called candidates from the male or female line were. The Declaration does not say that a candidate from the female line cannot be chosen. The above notwithstanding, the case of the 1st Respondent is that all the candidates being descendants of Ojuromi are all from the male line. Learned Silk urged the court to resolve this issue against the Appellant and dismiss the appeal. Learned Counsel for the 5th and 6th Respondents submitted that the evidence of P.W.1 Bisi Olasore provides an insight as to whether the candidature of the Appellant was considered.
Submitted that what the Kingmakers went out to do when they went out of the venue of the meeting and conferred among themselves was to discuss the candidates sent to them. It was after they came back that they started to nominate candidates and vote. He submitted that the Appellant was more concerned with the voting pattern of the Kingmakers and this was the reason why he claimed that he was not considered. He contended further that this argument is not tenable. Reliance was placed on the case of Olanrewaju Vs. The Governor of Oyo State supra. In this case, there were 9 Kingmakers present at the Kingmakers meeting. 6 of them voted for the 1st Respondent whilst the remaining 3 voted for Prince Adesemowo (one of the candidates). Submitted therefore that the learned trial Judge was right in finding and holding that the Appellant was considered by the Kingmakers as same is borne out by the evidence of the witnesses before him.
On the point whether the Appellant should have been considered first by the Kingmakers before considering other candidates from the female line, learned counsel submitted that the Appellant’s right to be considered by the Kingmakers is not over and above the right of the 1st Respondent or the other candidates all of them being sons of a previous holder of the title. Learned Counsel for the 5th and 6th Respondents urged the court to resolve this issue against the Appellant and dismiss the appeal. Issue three deals mainly with the proviso in the paragraph iii Clause B of the Orimolusi of Ijebu-Igbo Chieftaincy Declaration Exhibit A which stipulates:
(iii) The persons who may be proposed as candidates by a Ruling House entitled to fill a vacancy in the Chieftaincy shall be:
(b) of the male line, provided that succession may devolve on the female line where there is no qualified candidate of the male line.
It is trite that where the provisions of a statute are unambiguous, the expressions of words therein must be given their plain and ordinary meaning and the court will not expand those provisions to include any extraneous provisions not stated therein. See A.G. FEDERATION v. GUARDIAN NEWSPAPER (1999) 9 NWLR Part 618 page 187 at 264, OVIAWE v. IRP (Nig.) Ltd. (1997) 3 NWLR Part 492 Page 126 at 139 Paras E-F, TASHA v. UBN Plc. (2003) 36 WRN Page 64 and ARAKA v. EGBUE (2003) 33 WRN Page 1.
A plain and ordinary interpretation of this proviso is that candidates from the male line should first be considered by the Kingmakers. It is only where there is no qualified candidates from the male line that succession may devolve on the female line. The head of the family explained the lineage of the candidates to the Kingmakers at the meeting of the Kingmakers held on 6th of January, 1997.
2nd D.W. Albert Oladipupo at page 75 lines 27-32 and page 76lines 1-12 stated thus:
“The kingmakers return into an inner chamber to discuss among ourselves but at that discussion, there was a violent disagreement between us, three of us on one side and six on the other side; The cause of the confusion is that 2nd, 3rd, 4th, 9th and 10th Defendants at the discussion in the inner chambers expressed their desire not to adhere to the declaration as previously explained, understood and agreed by us while the 5th, 6th and 7th defendants insist on strict adherence to the declaration.
When we returned into the body of the hall, the 2nd Defendant nominated the 1st Defendant, that nomination was supported by the 3rd Defendant. I then nominated Prince Atanda Adesemowo, being the son of a previous holder; the 5th defendant supported my nomination.” Underline is mine for emphasis,
From the evidence of 2nd D.W. on the printed record, the candidates from the male line all through has right over and above candidates from the female line.
I am unable to agree with the submissions of the learned silk for the 1st- 4th Respondents and Learned Counsel for the 5th – 6th Respondents that the Appellant’s right to be considered by the Kingmakers is not over and above the rights of the 1st Respondent or the other candidates when the head of the family has made a clarification as to the lineage of the eight candidates shortlisted. If the Declaration had wanted all the candidates to be considered on the premise of the candidates being sons of a previous holder of the title, the proviso in paragraph (iii) Clause B would not have been inserted by the draftsman of the declaration.
Once the declaration has been made and registered in respect of native law or customary law with regards to any subject (i.e. Chieftaincy) that Declaration becomes the codified native law and custom to the exclusion of other laws and practices. See DARAMOLA V. A.G. ONDO STATE (2000) 7 N.W.L.R. Part 665 Page 440 at 472 and AGBETOBA VS. LAGOS STATE EXECUTIVE COUNCIL (1991) 1 N.W.L.R. Part 188 at 664.
There is nothing from exhibit B which showed that the appellant being from the male line was considered by the Kingmakers and found not suitable before appointing the 1st Respondent as the Orimolusi of Ijebu-Igbo elect. The evidence of 1st P.W, and particularly that of 2nd D.W. which had earlier on been reproduced in this judgment showed that some of the Kingmakers did not wish to first consider the candidate of the male line before selecting the 1st Respondent who from the evidence is from the female line.
The finding of the learned trial Judge at page 124 from paragraph 3 of the record of appeal that:
“All the candidates by their lineage through Ojuromi are qualified to be considered on equal basis” cannot be correct and it runs contrary to the proviso in paragraph (iii) Clauses (a) and (b) of the Orimolusi of Ijebu Igbo Chieftaincy Declaration”.
Is therefore erroneous or perverse.
The case of OLANREWAJU VS. GOVERNOR OF OYO STATE supra cited by the learned silk for the 1st-4th Respondents and Learned Counsel to the 5th and 6th Respondents are not applicable. It is not in pari material with the case at hand because the Chieftaincy Declaration in Olanrewaju’s case does not have the proviso of male line provided that succession may devolve on the female line where there is no qualified candidate of the male line.”
It would have been apt if Orimolusi Chieftaincy Declaration had been limited to:
(1) Male members of the Ruling House (2) sons of previous holders of the title as was the situation in Olanrewaju’s case.
I am therefore of the view that the procedure adopted by the Kingmakers at their meeting held on the 6th of January, 1997 (Exhibit B) was a gross violation of the mandatory provisions of paragraph (iii) (a) and (b) of the Orimolusi of Ijebu Igbo Chieftaincy Declaration. In the absence of any evidence that there is no suitable candidate from the male line before appointing from the female line, the exercise is null and void.
See MACFOY VS. U.A.C. LTD (1962) A.C. Page 152 at 160 where Lord Denning says:
“If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court to set aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
The decision of the Kingmakers appointing the 1st Respondent as the Orimolusi of Ijebu-Igbo elect is therefore a nullity and the finding of the trial court is hereby set aside. Issue three is hereby resolved in favour of the Appellant.
Having resolved all the issues in favour of the Appellant I find merit in this appeal and it succeeds. Appeal is hereby allowed. The judgment of Justice B. O. Ogunade delivered on 30/7/1998 is hereby set aside. It is hereby ordered that the Kingmakers should hold a fresh meeting to first deliberate and select or appoint candidates from the male line among whom is the Appellant before deliberating only on the other candidates from the female line if no suitable candidate is found from the male line to be selected or appointed as the Orimolusi of Ijebu-Igbo. Parties to bear their own costs.
ADZIRA GANA MSHELIA, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, FASANMI, J.C.A. just delivered, with which I find myself in complete agreement. I only wish to add few words of mine for the purpose of emphasis.
The grouse of the appellant is that the 1st respondent was not eligible to be proposed as a candidate for the vacant stool of Orimolusi of Ijebu-Igbo because he is from the female line of the family. While1st respondent’s case was that he was eligible for selection and appointment to the office of the Orimolusi of Ijebu-Igbo being a member of the Ojuromi Ruling House, a son of a previous holder of the title and a male descendant of the Ruling House.
The filling of the stool is governed by a Registered Declaration made under the Chief Law of Ogun State. The Declaration contains the Customary Law regulating the filling of the Orimolusi of Ijebu-Igbo Chieftaincy. The Orimolusi of Ijebu- Igbo Chieftaincy Declaration tendered as Exhibit A particularly paragraph (iii) clauses (a) and (b) stipulates the qualification of candidates who can occupy the stool of Orimolusi of Ijebu-Igbo as follows:-
“(iii) 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 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”.
It is well settled that where the words of a statute are clear and unambiguous, they should be given their plain and ordinary meanings.
Similarly in construction of statutes it has always been of assistance to keep constantly in mind the purpose of the provision and the mischief sought to prevent. Accordingly words should be construed to give effect to such purposes. See Mobil vs. FBIR (1977) 3 SC 53 and Agbetona vs. L.S.E.C (1991) 4 NWLR (pt. 188) 664 at 690 paras A-B. Going by the clear provisions of paragraph (iii) (a) and (b) of the Orimolusi of Ijebu-Igbo chieftaincy Declaration (Exhibit A) 1st respondent who was the 1st Defendant at the lower court being a candidate of the female line can only be considered by the Kingmakers if and only if there is no qualified candidate of the male line. To construe paragraph (iii) of the declaration in the manner posited by the respondents and the learned trial judge is to defeat completely the intendment of the customary law.
The breach of the proviso has rendered what had been done i.e the selection or appointment null and void and of no effect.
For this and the clear reasons fully considered in the lead judgment which I adopt as mine, I too allow the appeal and set aside the judgment of Ogunade J. delivered on 30/7/1998. I also abide by the consequential orders made in the lead judgment inclusive of costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in full agreement with the judgment prepared by my learned brother, Fasanmi, J.C.A., which I had the privilege of reading in advance.
Appearances
A. OSINUGAFor Appellant
AND
BAMBO ADESANYA (SAN) with R. O. ALLI – appears for the 1st – 4th Respondents
P.O. AKINSINDE Director of Advisory Services Ogun State Ministry of Justice with E. A. AKAPO Assistant Chief State Counsel – appears for the 5th and 6th RespondentsFor Respondent
