ALHAJI KADIR AREMU EGUDU-OJA & ANOR V. SALAHU AJIBOYE & ORS
(2013)LCN/6754(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 26th day of June, 2013
CA/IL/66/2011
Before Their Lordships
PAUL ADAMU GALINJEJustice of The Court of Appeal of Nigeria
HUSSEIN MUKHTARJustice of The Court of Appeal of Nigeria
TIJJANI ABUBAKARJustice of The Court of Appeal of Nigeria
Between
1. ALHAJI KADIR AREMU EGUDU-OJA
(Head of Family)
2. CHIEF YUSUF AMUDA OLOYEDE
(The Baale of Egudu Oja, For Themselves and on behalf of Alapa Ajayi Giwa’s Royal Family)Appellant(s)
AND
1. SALAHU AJIBOYE (Head of Family)
2. WAHEED KAREEM (Oba Elect)
3. RAIMI AJAPE (Kingmaker)
(For Themselves and on behalf of Onifade’s Family, Egudu-Oja)Respondent(s)
RATIO
WHETHER OR NOT A CONTRACTION TOUCHING ON AN EXTRANEOUS ISSUE DISCREDITS THE TESTIMONY OF A WITNESS
A contradiction touching on an extraneous issue will not discredit the testimony of a witness. To be relevant, the alleged contradiction must be capable of influencing the decision of the Court one way or another but not on an extraneous or irrelevant issue. PER MUKHTAR, J.C.A.
HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): This Appeal emanates from the judgment of the High Court of Kwara State (coram M. AbdulGafar, J) delivered. On the 6th June 2011 granting the entire claims of the Respondents who were the claimants and dismissing the entire counter claims made by the Appellants who were the Defendants against the Respondents. The disgruntled Appellant’s challenged that decision by filing a Notice of Appeal predicated upon ten (10) grounds as reproduced hereunder:-
GROUND ONE:
The trial court erred and misdirected itself in fact when it held inter alia that:
“…Notwithstanding the contradictions pointed out by Mr. Saka which are not the material (sic), I have found the evidence of claimants credible in this regard…”
GROUND TWO
The trial court erred in law and misdirected itself when it held that:
“…As for the Defendants I have also considered the evidence of DW1 – DW4 who testified that they are descendants of Ajayi Giwa and ObaOnifade who founded Egudu-Oja. It is also the evidence of the defence that Ajayi begat (sic) Onifade who like Egudu-Oja where he appointed the claimants’ ancestor as Baale.
Notwithstanding to the complaint of Dr. Aje as the inconsistency on the children of Oba Onifade particularly Dedayo, I also find the evidence of defence credible…”
GROUND THREE:
“The claimants have pointed to such recent facts as their ownership of land in Egudu-Oja of successive appointment of Baale from their family as well the litigations on land the family had conducted leading to exhibits 1, 2, and 3…”
GROUND FOUR:
“…The claimants in particular pointed to the finding of fact in Exhibit g at page z to the effect that Ajayi Giwa is the progenitor of Baale Egudu Family who owned the land Egudu which devolved on from Ajayi Giwa through Baale Adisa…”
GROUND FIVE:
The trial court erred and misdirected itself when it held inter-alia that:
“…The Defendants have not fared well in this regard as they have very little to show by way of recent facts. The Defendants’ act of recent years is mainly the fact that they are from Ile-Oba…”
GROUND SIX:-
The trial court erred in law and misdirected itself when it held that:
“…I hold that having traced their ancestry to Ajayi Giwa the founder of Egudu-Oja and having successively produced the Baale of Egudu-Oja which is the highest traditional title in Egudu-Oja, it is the 2nd Claimant that is entitled to ascend the stool of Egudu-Oja as against the 2nd Defendant who is descendant of Onifade who reigned in Agonda but only moved to Egudu-Oja when has reign was threatened by the returned of deposed Alapa Oyekunle.”
GROUND SEVEN:
“…In the light of the finding of fact that the Claimants’ family have always produced Baale which has been the only leadership the town Egudu-Oja has know (sic), I hold that with the decentralization of Alapa stool among the three communities viz Agbonda, Omido and Egudu-Oja, it follows that the claimants’ family have consistently produced the ruler in Egudu-Oja vide Baale is entitled to produce the Alapa of the newly created Egudu-Oja stool. The claimants have become so entitled not simply because they have been able to prove through traditional history that they are descendants of Ajayi Giwa, the founder of Egudu-Oja Land the only kind of rulership that has existed in Egudu-Oja.”
GROUND EIGHT:
The trial court erred in law and misdirected itself when it held that:
“With regard to the dispute as to whether there has been an agreement that Onifade’s family should have the first shot at the stool of Alapa of Egudu-Oja, I do not find any such agreement has been reached in evidence the tight of contradictory of the Defendants-in that regard…”
GROUND NINE:
The trial court erred in law and misdirected itself when it held:
“With regard to the Defendants’ counterclaim, the same fails in its entirety and it is hereby dismissed.”
GROUND TEN:
The judgment is against the weight of evidence.
From the foregoing grounds of appeal seven issues were distilled for determination as follows:-
1. Whether the evidence proffered by the Respondents and their witnesses which the trial court held that it contained contradictions have any probative value which made the trial court in holding their evidence credible and whether the Respondents can approbate and reprobate.
2. Whether the evidence proffered by the Appellants and their witnesses which was held by the learned trial Judge as credible had any contradiction and whether there was any inconsistency in the evidence of the Appellant at the trial court as regards the children of Oba Onifade.
3. Whether Exhibits 1, 2, 3 – 7 heavily relied upon by the Respondents at the lower court have any probative value which entitled the claimants/Respondent” to their claims as held by the trial Court.
4. Whether having regard to issues and 3, the doctrine of “facts in recent years” as laid down in Kojo vs. Bonsie (1957) 1 WLR 1223 applies to the suit as at hand and whether facts admitted need further proof see paragraph 10, pg 79, See paragraph 15 pg 79.
5. Whether the custom stool and tradition of Egudu-Oja chieftaincy ca’ be laid or established without recourse to Agbonda and Omido respectively and whether the Respondents’ Ajayi Giwa had any linkage or lineage with the reigned Alapas of Eku-Apa Land until 2007 when Eku-Apa Chieftaincy stool was decentralized.
6. Whether the Respondents have established Eku-Apa chieftaincy tradition and custom which stipulates that Baale can be converted to Oba and whether the trial court did not demonstrate a lack of understanding of the Appellants’ case as to amount to a breach of fair hearing.
7. Whether upon an objective and dispassionate appraisal of evidence before the trial Court, the evidence of the Appellants did outweigh that of the Respondents sufficiently enough to entitle the Appellants to judgment and a dismissal of the Respondents, claims.
The Respondents on their part raised six similar issues to those of the Appellants, the Respondents’ issue 6 subsuming the Appellants last two issues 6 and 7. The Respondents’ six issues are as follows:-
1. Whether the Respondents evidence and that of their witnesses as narrated before the trial Court is credible and probable to warrant the trial court to grant the Respondents’ claims.
2. Whether the credibility of the Appellants, evidence before the trial court has been defeated by evidence of facts of recent years narrated by the Respondents before the trial Court and the inconsistency in the Appellants’ evidence.
3. Whether the trial court was right in holding that Exhibit 1, 2, 3, 4, 5, 6, and 7 are of probative value and therefore relevant to this case in arriving at the Court’s decision.
4. Whether the trial court was right to have applied the rule established by the Court in KOJO II vs. BONSIE (1957) 1 WLR 1223 to test the credibility of traditional history narrated by the parties before the trial Court by reference to facts in recent years to determine which of the completing historical narrations is more probable between that of the Appellants and the Respondents.
5. Whether it is expedient for the Appellants and Respondents who gave conflicting traditional histories before the trial Court to establish their claim to proof of facts in recent years.
6. Whether the Respondents have by traditional histories narrated before the trial Court and evidence of facts in recent years establishment that they are descendants of Ajayi Giwa, the founder of Egudu-Oja.
The Appellants seven issues will form the bedrock the determination of this appeal.
The Respondents filed a claim at the lower Court as claimants against the Appellants as defendants by their writ of summons and front loaded, inter alia, with statement of claim dated and filed on 2nd May 2008 and witnesses’ statements on oath in respect chieftaincy dispute seeking for the following declaratory reliefs:-
(i) That the Onifade Family has no root in Egudu-Oja and is not entitled to nominate, appoint and install any of its members or, any other person to the stool of Alapa of Egudu-Oja; or, to participate in the process of nomination, appointment and installation of Alapa of Egudu-Oja.
(ii) That the Ajayi Giwa Royal Family is the rightful family to present a candidate for the Alapa of Egudu-Oja Royal Stool.
(iii) That the 2nd Claimant, is entitled and is the rightful candidate to be nominated, appointment and installed as the Alapa of Egudu-Oja.
The Respondents also sought for a perpetual injunction restraining the Onifade Family from nominating, appointment or enthroning the 2nd Defendant or any other person as the Alapa of Egudu-Oja Town in the Irepodun Local Government Area of Kwara State.
The Appellants filed a statement of defence dated 17th and filed on 19th June 2008 wherein they endorsed a counter claim against the Respondents seeking, inter alia, the following declaratory reliefs:-
1. A declaration that the 1st and 2nd claimants family are not entitled to the Obaship of Egudu-Oja since they are not related in any way to the founder of Egudu-Oja Ajayi Giwa.
2. A declaration that only descendants of Ajayi Giwa, excluding the 1st and 2nd Claimants family are entitled to the Obaship of Egudu-Oja.
The Respondents in their reply to the statement of defence and counter claim of 27 paragraphs filed on 7th October 2008 denied the Appellants’ depositions and further averred, inter alia, in paragraphs 26 and 27 thereof as follows:-
“26. In further answer to paragraph 20 of the statement of defence and counter claim; the claimants/counter defendants aver that is forbidden in Yorubaland:
(a) For ascendancy to a throne to be from maternal side as in the case of Onifade whose father originated from Offer; and,
(b) For a family to have right to the throne in more than one town as the defendants/counter-claimants from Agbonda are trying to claim right to the Alapa of Agbonda and Egudu Chieftaincy thrones at the same time.
“27. Whereof the claimants/counter-defendants aver:
(i) That the Defendants/Counter claimants’ claims are frivolous, contrary to Yoruba custom and baseless.
(ii) That the said claim be dismissed costs; and, with substantial
(iii)That the Claimants/counter-defendants’ claims be granted with substantial costs against the defendants/counter claimants.”
After holding a pre-trial conference the following three issues emerged as disputed:-
(i) Whether the claimant’s family are members of Ajaji Giwa family.
(ii) Whether it is the 2nd Claimant or the 2nd defendant that is entitled to ascend the stool of Alapa of Egudu-Oja
(iii) whether the fact that the claimants made families were Baale is sufficient to entitle them to ascend throne of Alapa.”
After hearing the case, the learned trial Judge found that the claimants had proved that they are the descendants of Ajayi Giwa the founder of the Egudu-Oja and owners of the Egudu-Oja and owners of the Egudu-Oja land and the only monarchy that has existed in Egudu-Oja. The learned trial Judge concluded thus:-
“In the light of the foregoing, I therefore find the claimants and make the following orders:-
(i) A declaration that the Onifade’s family is not entitled to nominate, appoint or install any its members or any other person to the stool of Alapa of Egudu-Oja.
(ii) A declaration that the Ajayi Giwa family is the rightful family entitled to present a candidate for the stool of Alapa of Egudu-Oja.
(iii) A declaration that the 2nd claimant is the person entitled to be nominated, appointed and installed as the Alapa of Egudu-Oja.
(iv) An order of perpetual injunction restraining the Onifade’s family from nominating, appointing or installing the 2nd defendant or any other person as the Alapa of Egudu-Oja in Irepodun Local Government Area of Kwara State.
With regard to the defendants’ counterclaim, the same fails in its entirety and it is hereby dismissed.”
The resolution to the issues for determination argued by as raised and both parties will determine the correctness or otherwise of foregoing decision of the Court below.
ISSUE ONE:
Whether the Respondents’ evidence and that of their witnesses as narrated before the trial court is credible enough for the court to grant the Respondents, claims.
The learned Counsel for the Appellants Iliasu Saka, Esq. contended that the Respondents are not any way and therefore not entitled to contest the Chieftaincy stool of the Egudu-Oja. Rather it is the Appellants who are related to the Egudu-Oja. The Appellant relied on what they called the uncontroverted evidence adduced by them at the trial, while in contrast they evidence of the Respondents witnesses was full of irreconcilable contradictions, which ought to be disbelieved by the trial court.
It was contended for the Appellants that the Respondents also failed to prove the Eku-Apa or Egudu custom upon which their claims was based. It was further contended that the chain of the lineage of Ajayi Giwa whom they claimed was their ancestor was not proved by the Respondents. The Appellants contended that the Respondents were not connected to the Ajayi-Giwa having failed to lead evidence on issues regarding the following posers:
1. Who gave birth to Ajayi Giwa.
2. What are the names of Eku-Apa Kings (The Alapas of Eku-Apa) that reigned and ruled before and after Ajayi Giwa.
3. Who appointed the first Baale of Egudu-Oja (Baba Aje) before Adisa Oloyede became Baale at Egudu-Oja.
4. Assuming but not conceding that the purported Ajayi Giwa being claimed by the Respondents as their Great Grand Father was succeeded by Adisa Baale, how can a successor of an Oba (An Alapa of Eku-Apa who reigned between 1886 – 19889 be succeeded by a Baale)? My Lords, this issue remained unresolved;
5. Who were Baba Aje and Ajibowu that reigned as Baales in Egudu-Oja before Adisa ((The Respondents’ father) as maintained by PW6 during cross-examination at pp.228-229.
6. Why was Ile Baale called “Ile Tuntun” before 1910 when it changed to Ile Baale. We refer my lords to pages 222 – 230. The evidence of PW1 – PW7 contradicts each other that no reasonable court would lay credence to it.
It was argued that Chieftaincy is a matter of custom and tradition that must be proved on preponderance of evidence. It was further argued for the Appellants that the Respondents had failed to give the history of the Egudu-Oja monarchy. Parties at the trial court were on common ground that Oba Onifade ruled the entire Eku-Apa Land inclusive of Agbonda, Omido, Egudu, Ajengbe, etc.
The learned counsel for the Appellants argued that from this undisputed history of the Egudu-Oja monarchy, the Oba Onifade who ruled the entire Eku-Apa land from 1918 to 1937 cannot be subservant to the Royal Baale in Egudu-Oja. Reference was made to the testimony of PW2 Rafiu Oloyede Abidoyin under cross examination where he said:
“Ibare is the first settlement of Eku-Apa. Baale is quite different from Oba. There can be an Oba and a Baale in a community. Oba is superior to Baale is any town.”
The 2nd claimant Respondent Yusuf Oloyede who testified as PW4 stated under cross examination thus:-
“I’m the Baale of Egudu-Oja because where there is no Oba. It is a Baale who rules. There have been 5 Baales before me. I was appointed as Baale in 1989. I have been in Lagos since 1972. The 1st claimant is my father. I made him my deputy to look after the affair of Egudu-Oja. I believe him in what he tells me. Onifade did not reign in Egudu. He had taken refuge there and died there. When Onifade was king, he ruled over the whole of Apa land including Egudu. He was buried in Egudu. I do not know where he was buried.”
It is pertinent that the contradiction here if any regarding whether Onifade was buried in Egudu or elsewhere is not material as it is not relevant to the facts in issue which is a dispute in respect of the monarchy in Egudu-Oja. A contradiction touching on an extraneous issue will not discredit the testimony of a witness. To be relevant, the alleged contradiction must be capable of influencing the decision of the Court one way or another but not on an extraneous or irrelevant issue.
The learned counsel for the Appellants further referred to the testimony of the PW6 Sulaiman Olatunji testified thus:-
“Onifade was not Oba in Egudu but he reigned at Agbonda. Onifade reigned as Oba over the entire Eku-Apa land. Ajengbe, Omido, Agbonda etc. are in Eku-Apa. I left Egudu for Lagos at about 17 years of age. I do not know the place Onifade was buried at Egudu Oja. About 7 Baale have reigned in Egudu-Oja. They are Baba Aje, Ajibowu, Adisa, Lawani, Sanni Oloyede, Ibrahim Oloyede, Yusuf Oloyede.”
It was contended that the foregoing testimony of the PW6 is quite appropriate regarding the claimants/respondents claim that the Onifade family has not root in Egudu and is not entitled to nominate any of its member to the stool of Alapa of Egudu-Oja.
A further reference was made to the testimony of the PW7 Karimu Adewuyi where he testified thus:-
“I am a descendant of Ajaji Giwa from Egudu. The father of Ajayi Giwa is from Ile-Ife. Ajayi Giwa is the son of Oganogbodo. Egudu Oja is about three hundred years. Oyekunle was the first king of Agbonda. Onifade reigned after Oyekunle was removed. Awurela was the 3rd kind at Agbonda. I don’t know the number of chiefs in Agbonda. There is Ile-Oba in Egudu-Oja with a reason. I do not know the name of the Commissioner for Chieftaincy in Kwara State. I met the commissioner at a meeting in 1998 to settle the dispute between the communities. Onifade did not reign over the whole of Ekuapa land. He reigned in Agbonda but he came down to Egudu.”
It was submitted for the Appellants that the Respondents neither proved their claim nor were they able to defend the Appellants’ counter claim. The court was urged to upturn the judgment of the Court below as being pervasive.
The learned counsel for the Respondents contended that the evidence adduced by the Respondents before the trial court was credible enough to sustain their claim. The averments made by the Respondents in paragraphs 12, 13, 14, 15, 16, 19, 20, 21 of their statement of claim contain facts in rebuttal of the Appellants’ averments in paragraphs 6, 10, 11 and 12 of their joint statement of defence and counter-claim. The Respondents also gave evidence before the trial court to deny the Appellants’ averment in paragraphs 6, 10, 11 and 12 of their statement of claim and counter-claim (See pages 8, 9, 10, 11, 13, 14, 222, 223, 224, 225, 226, 227, 228, 229 and 230 of the Record).
The respondents testified to the following facts:
(a) That as a direct descendants of Ajayi Giwa they are entitled to the stool of Oba of Egudu-Oja.
(b) That Onifade is not from Egudu-Oja his but had maternal link with Egbonda while his father hailed from Offa.
(c) That Onifade is not descendant of Ajayi Giwa but rather he lived at Ile Olasan in Agbonda where his mother.
(d) That the ascentry Onifade to the stool of Alapa of Eku Apa (not Alapa of Egudu-oja) was as a matter of expediencies which made him requested that he should be permitted to relocate to a portion of Egudu’s land (far from Agbonda) so that he would not be harmed by Oba Oyekunle who abdicated the throne Alapa of Eku Apa land and now returned back to Agbonda from Edidi to continue his reign.
(e) That the whole of Eku-Apa land built a palace for Onifade to sojourn because he had no compound or family at Egudu-Oja.
(f) That the reigning Baale of Egudu when Onifade came to Egudu was Adisa Oloyede (father of the 2nd Respondent).
The Respondents before the trial court never admitted that the Appellants are descendants of Ajayi Giwa and that they are entitled to the stool of Alapa of Egudu Oja but rather established that the Appellants are strangers in Egudu Oja who have not ascentral link with Ajayi Giwa founder of Egudu-Oja.
It is submitted for the Respondents that an admission must be exact, clear, unequivocal and unambiguous in relation to the facts admitted. See ARCHIBONG VS. ITA (2004) 2 NWLR (pt.858) 590 at 592.
It is also contended for the Respondents that paragraphs 8, 12, 13, 14 and 15 of the Respondents’ reply to statement of defence and counter claim dated 7/10/2008 do not amount to admission of the Appellants claims in this matter. It is submitted that the Respondents have by their evidence and facts adduced before the trial court established that they are entitled to the stool of Alapa of Egudu Oja as the direct descendants of Ajayi Giwa who founded Egudu-Oja. The historical narrations as contained in the evidence of the Respondents given by PW1 – PW7 were consistent. See pages 8, 9, 10, 11, 13 and 14 of the Record. It was also submitted that the Respondents were consistent under cross examination. (See pages 222, 223, 224, 225, 226, 227, 228, 229 and 230 of the Record and section 139(1) of the Evidence Act.
The learned counsel for the Respondents, F. B. Fabiyi Esq. argued that the evidences of PW2, PW4, PW6 and PW1 which the Appellants referred to in paragraphs 4.1.9; 4.1.10; 4.1.11; and 4.1.12 of their briefs are not contradictory. The witnesses gave consistent evidence on different but similar issues. PW2 told the Court in his testimony thus:-
(a) Ile Baale in Egudu-Oja is really Ile Tuntun.
(b) That it was around 1910 that it was called Ile Baale.
(c) Ibare was the first settlement of Egudu-Oja.
(d) Baale is quite different from Oba.
(e) There can be Baale and Oba in a community.
(f) Oba is superior to Baale in any town.
Pw4 stated that Onifade was King who ruled over the whole Eku of -Apa land including Egudu. The PW6 evidence stated, inter alia, that Onifade was not Oba in Egudu but he reigned at Agbonda. He however, turned around to say that Onifade reigned as Oba over the entire Eku-Apa land. He also listed the 7 Baales that have reigned in Egudu-Oja, which included Baba Aje, Ajibowu Adisa, Lawani Sanni Oloyede, Yusuf Oloyede.
PW7 in his testimony stated, inter alia, that he is a descendant of Ajayi Giwa from Egudu, whose father is from Ile-Ife and that dayr Giwa is the son of Oganogbodo. The learned counsel for the Respondents submitted that an analysis of the evidence of PW2, PW4, PW6 and Pw7 at the instance of the Appellants revealed that the PW4 and PW6 told the court that Onifade reigned over the entire Eku-Apa land while the PW6 and PW7 conceded under cross examination that Ajayi Giwa founded and settled at Egudu Oja. The PW2 and PW6 agreed that there was a place called Ibare where their progenitor, Ajan Giwa stayed before he finally settled at Egudu – Oja.
It was argued for the Respondents that the testimonies of PW2, PW4, PW6 and PW7 under cross examination were consistent with their evidence in Chief and showed in clear terms the Respondents’ historical linkage with Ajayi Giwa (their progenitor and founder of Egudu-Oja) and the stool of Alapa of Egudu-Oja.
It was further argued that the Respondents in paragraphs 12, 13 and 16 0f their statement of claims had pleaded facts about Ajayi Giwa upon which they based their evidence that they descendants of are the Ajayi Giwa the founder of Egudu Oja (See paragraphs 2, 3, 4, 5, 6 and 7 on page 8; paragraphs 5 and 6 on page 10, paragraphs 26 and 27 on page 11; paragraphs 5 and 6 on page 13 of the Record. parties are required to plead facts and not the evidence required to prove such facts.
It was further contended for the Respondents that Exhibit 1 did not contradict the Respondents pleadings but rather buttressed the Respondents’ case. It is the evidence of the Appellants that Chief Yusuf Amuda Oloyede (PW2) is the current Baale of Egudu – Oja and that Baale is appointed from Ajayi Giwa’s family (also known as Ile Baale or formerly as Ile Tuntun).
The learned Counsel for the Respondents urged the Court to resolve this issue in favour of the Respondents and against the Appellants.
It is pertinent to observe that from the pleadings and evidence adduced by both parties, the 2nd Appellant is a descendant of the Onifade family and their candidate for the Alapaa of Egudu Chieftaincy stool, while 1st and 2nd Respondents are the Head of the Baale of Egudu-Oja Family in the Irepodun Local Government Area of Kwara State and the current Baale of Egudu – Oja community respectively.
Also while the Respondents pleaded in paragraph 19 of their statement of claim that the Onifade Family, from which the 1st and 2nd Appellants descend, has no claim or title to any land in Egudu-Oja, the same Respondents in paragraph 17 of the statement of claim pleaded thus:-
“Onifade reigned as the 19th Alapaa of Eku Appa Between 1918 and 1937.
It is glaring therefore from the statement of claim that both Ajayi Giwa and Onifade reigned as Alapaa of Eku-Apaa from 1980 to 1889 and from 1918 to 1937 respectively. These averments on their own are self defeating of the Respondents, claim of declaratory reliefs in their statement of claim and perpetual injunction and a self-centered attempt to exclude the Onifade Ruling House and exclusively restrict the monarchy of the Alapaa of Egudu-Oja in the Irepodun Local Government Area of Kwara State to the Respondents, Ajayi Giwa Ruling House alone.
These, apart from the averments in the Appellants, joint statement of defence and the counter-claim coupled with the evidence led at the trial court, are sufficient to discredit both the Respondents’ claim and the Appellants, counter claim as no Ruling House in any monarchy can arrogate to itself the exclusive right to nominate candidate or be appointed or installed to the throne and completely extinguish an equal right in that regard. It further contradicts the clear provision of section 3(1) of the Chiefs (Appointment and Deposition) Law Cap. C9 Laws of Kwara State of Nigeria 2006, which provides thus:-
“3. Appointment of chiefs in accordance with customary law and practice:
(1) Upon the death, resignation or deposition of any chief other than a chief of a kind referred to in section 4, the Governor may appoint as the successor of such chief or head chief, any person selected in that behalf by those entitled by and customary law practice to select in accordance with customary law and practice.”
Each of the Ruling Houses of both the Appellants and the Respondents has a stake in the monarchy and an equal right to nominate candidate for the appointment and installation of the Alapa of Egudu-Oja in the Irepodun Local Government Area of Kwara State. It is the exclusive preserve of the Kingmakers for tat monarch to select the most suitable amongst the contestants to the throne and for the Governor of Kwara State to approve the appointment of one whom God the Almighty Has selected from amongst the candidates recommended by the Kingmakers as provided by section 3 of the chiefs (Appointment and Deposition) Law, Cap. C9 Laws of Kwara state of Nigeria 2006. This appraisal leads one to resolving the elegant poser in issue one, as raised by the Respondents, in the negative and in favour of the Appellants against the Respondents. It similarly resolves issue two on all fours and renders all the remaining issues academic into which the Court will not delve. The Appeal succeeds per force on this score hereby and is allowed.
The judgment of the court below delivered on the 6th June 2011 is hereby set aside. In its stead both the main claim and the counter claim succeed partiality to the extent that both the Appellants and the Respondents’ Ruling Houses that is the Ajayi Giwa and the Onifade Royal families are each entitled to nominate a candidate or candidates from deserving contestants to the throne for screening and selection by the Kingmakers of the monarchy of Alapa of Egudu-oja in the Irepodun Local Government Area of Kwara State.
There shall be cost of N30,000.00 (Thirty Thousand Naira Only) to the Appellants against the Respondents.
PAUL ADAMU GALINJE, J.C.A.: I have had the privilege of reading judgment just in draft, the delivered by my learned brother, Mukhtar JCA, and I agree with the reasoning contained therein and the conclusion arrived thereat. From the pleadings, it appears that both Ajayi Giwa and Onifade families reigned as Alapaa of Eku Apaa at one time or the other. It will therefore be unfair to exclude Onifade Family from contesting for the stool of Alapaa of Egudu-Oja without any justifiable reasons.
For the same reasons ably set out in the lead judgment of my brother, I too allow the appeal. I abide by all the consequential orders made therein, including order as to cost.
TIJANI ABUBAKAR, J.C.A.: I agree.
Appearances
Iliasu Saka Esq.For Appellant
AND
F. B. Fabiyi Esq.For Respondent
