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AGBOOLA v. OLATOKE & ORS

AGBOOLA v. OLATOKE & ORS

(2022)LCN/16106(CA) 

In the Court of Appeal

(ILORIN JUDICIAL DIVISION)

On Friday, May 27, 2022

CA/IL/18/2019

Before Our Lordships:

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

Isaiah Olufemi Akeju Justice of the Court of Appeal

Kenneth Ikechukwu Amadi Justice of the Court of Appeal

Between

PRINCE CALEB OLAYINKA OYELOLA AGBOOLA APPELANT(S)

And

1. CHIEF AFOLABI O. OLATOKE, THE ESSA OF IGOSUN 2. CHIEF ELIJAJH SALAKO, THE ODOFIN OF IGOSUN 3. CHIEF M.O RAJI, THE OJOKO OF IGOSUN 4. CHIEF ABRAHAM ADEBAYO, THE OSOLO OF IGOSUN 5. CHIEF J.O FAWOLE, THE ELEMO OF IGOSUN (THE KINGMAKERS) 6. THE HONOURABLE COMMISSIONER FOR LOCAL GOVERNMENT AND CHIEFTAINCY AFFAIRS, KWARA STATE. RESPONDENT(S)

 

RATIO

WHETHER OR NOT A PERSON WHO SEEKS A DECLARATORY RELIEF MUST RELY ON THE STRENGTH OF HIS CASE

The law is settled that a person who seeks a declaratory relief must rely on the strength of his case. See Fabunmi v. Agbe (1985) 1 NWLR (Pt. 2) 299. The principal claim in this case is claim 3, that is; “a declaration that the claimant’s lineage of Abolusodun (who hailed from Oke-Odofin Royal Compound) is entitled to the 14th Onigosun of Igosun land being a rotational chieftaincy”. The primary duty of the claimant is to trace his family genealogical history to the Ablusodun thereafter, trace the said Abolusodun to the Ile Oke-Odofin. He failed to do so but argued that it is not necessary because the case is not that of title to land. PER AMADI, J.C.A.

WHETHER OR NOT A KINGMAKER CAN BECOME A KING

I am in total agreement that a kingmaker never becomes king. The role of kingmaker is as sacrosanct as that of the king.
“… Kingmakers have vested right in a Chieftaincy stool as each of them has a constitutional right to take part in the selection or appointment of a successor to the stool in the event of a vacancy in the stool and in fact that no amendment to a Chieftaincy declaration could be made to abrogate that right after it had accrued. See: Ndayako V. Dantoro (2004) 13 NWLR (Pt.889) 187. Ojo V. Governor of Oyo State. (1989) 1 NWLR (Pt. 95) 1.” Per Owoade, JCA.
In Obatuga VS Oyebokun (2014) LPELR 22344
“… Kingmakers have a vested right to vacant Chieftaincy stool as each of them has a constitutional right to take part in the selection or appointment of a successor to the stool in the event of a vacancy in the Stool. NDAYAKO v. DANTORO (2004) 13 NWLR (PT 889) 187.” Per Denton-West, JCA.
As can be seen, kingmakers have their role in the process of who becomes king. Kingmakers make the king but never become king. They are like two streams that never mix. Each has its own traditional role. PER NDUKWE-ANYANWU, J.C.A.:

KENNETH IKECHUKWU AMADI, J.C.A. (Delivering the Leading Judgment): The appeal herein is against the judgment of the Kwara State High Court, sitting at Ilorin, (hereinafter referred to as the trial Court) delivered on 4th day of August, 2017 by Hon. Justice A.A. Adebara in Suit No. KWS/ER/2/2012.

The Appellant herein was the claimant at the lower Court, while the respondents were the defendants. By a writ of summons issued on the 5th day of December 2012, the claimant claimed from the defendants as follows:
i. AN ORDER of this Honourable Court restraining the 1st-5th defendants either by themselves, their privies, assigns, representatives from selecting, presenting and installing, appointing any other candidate except the claimant (Prince Caleb Olayinka Oyelola Agboola) herein from filling the vacant stool of (14th) Onigosun of Igosun Land from any other ruling Houses, except the Claimant’s Ruling House (Oke-Odofin Ruling/Royal Compound, Igosun)
​ii. AN ORDER OF INJUNCTION, restraining prohibiting the 6th defendant either by himself, her privies assigns representatives from accepting, approving for appointment and recognizing any other candidate as the 14th Onigosun of Igosun Land except the claimant herein.
iii. A declaration that the claimant’s lineage of Abolusodun (who hailed from Oke-Odofin Royal Compound) is entitled to the 14th Onigosun of Igosun Land being a rotational chieftaincy.
iv. AND for such further Order(s) as this Honourable Court may deem fit to make in the circumstances of this case”.

The trial Court dismissed his claims in its entirety. Aggrieved by the judgment the Appellant appealed to this Honourable Court via a Notice of Appeal raising 12 grounds filed on the 7th December, 2017 as follows:
GROUND ONE:
The lower trial Court erred in law when it held that- It follows from the above that the first cycle of rotation started with Oyeleye from Ile Ijaoye ruling house and rotated to Kolawole Kajogbola from Ile Akolehin ruling house and ended with Kolawole Kajogbola from Ile Oba Oke ruling house. The 2nd cycle of rotation started with Bamidele Oyedeji from Ijaoye ruling house who was the last Onigosun who became demised in 2012. It necessarily follows from the above order of rotation that ruling house to produce the next onigosun of Igosun Land in Ile Akolehin ruling house and I so hold”.
GROUND TWO:
The lower Court erred in law when it held thus: “from the evidence before the Court, I have held earlier on accepting the evidence of DW1 and DW2 that there are three ruling houses in Igosun namely, Ile Oba Oke, Ile Ijaoye and Ile Akoolehim having rejected the Claimant’s evidence that Ile Oke Odofin is also a ruling house”.
GROUND THREE:
The trial Court erred in law when it held that: “from all the above, one point that agitates one’s mind is that if it is true as asserted by the Claimant that his family (OKe – Odofin family) is a descendant of founders of Igosun and more particularly descendant of Lakale (the 1st Onigosun) since it is agreed that Lakade and Lakale are brothers, the rationale why two ruling houses of Ile Oke – Odofin and Ile Oba – Oke will come from them has not been given.”
GROUND FOUR:
The lower Court erred in law when it held:
“from all what I have said above, I am unable to believe and accept the evidence of the Claimant that Lakale (The 1st Onigosun), Abolusodun (The 2nd Onigosun) and Akinnu (The 4th Onigosun) are from what he purportedly alleged to be Oke – Odofin ruling house which I find to be non – existing rather, I believe and accept the evidence of the 1st – 5th defendants’ witnesses DW1 and DW2 that the said Lakale, Abolusodun and AKinnu who reigned as the 1st, 2nd and 4th Onigosun respectively were from Ile – Oba Oke ruling house”.
GROUND FIVE:
The trial Court erred in law when it held that: “Furthermore, in spite of the pleaded facts by the Claimant that the official beaded crown that was given to the 11th Onigosun of Igosun, Oba Kolawole Kajogbola by the Alapa of Eku – Apa, Oba David Oyeniyi was done with the special request made by the Alapa of EkuApa, that the representative of Oke – Odofin Royal compound Igosun must not only be in attendance but must also accept the beaded crown as one of the ruling houses in Igosun Land as well as what was credited to Alapa of Eku Apa that he said “no presence of Oke – Odofin ruling house representatives, beaded crown for Igosun people for their monarch” as a result of which Oke – Odofin royal house Igosun sent Chief John Aroyehun, Late P.A. James, Aderibigbe Ademola and Pa Solomon Oladipo for the beaded crown, the claimant called neither the Alapa of Eku Apa nor any among the three representatives still alive allegedly sent to represent Oke – Odofin Royal house to collect the beaded crown.”
GROUND SIX:
The trial Court erred in law when it held thus: “As if the above is not enough, the Claimant had sued Chief Elijah Salako, the Odofin of Igosun (as the 2nd Defendant); Chief M.O. Raji the Ojoko of Igosun (as the 3rd Defendant and Chief J.O. Fawole, the Elemo of Igosun (as the 5th Defendant). They were sued along with the 1st Defendant (the Eesa of Igosun) and the 4th defendant (the Osolo of Igosun). All of them filed a joint statement of defence against the Claimant’s claims. They were all ad idem that there are only three ruling houses in Igosun namely Ile Oba Oke, Ile Ijaoye, Ile Akoolehim and that there is no ruling house in Igosun by name Ile Oke Odofin as alleged by the Claimant”.
GROUND SEVEN:
The trial Court erred in law when it held that: “It is also important to state that PW1 agreed under cross-examination in line with the 1st to 5th defendants’ pleadings that the claimant family in 1994 wrote to the Igosun community seeking to be considered as one of the ruling houses in Igosun which request was turned down”.
GROUND EIGHT:
The trial Court erred in law when it held thus: “It is significant to note here that the claimant never pleaded nor led a scintilla of evidence to show and trace his family root to Abolusodun. He neither pleaded nor led evidence as to the names of his grandfather, great grandfathers neither did he trace their root and link to Abolusodun”.
GROUND NINE:
The trial Court had no jurisdiction to entertain the 1st – 5th Respondents’ defence at the lower Court.
GROUND TEN OF APPEAL:
The trial Court erred in law when it held that: ”I have looked at the exhibits tendered by the claimant to see if they are of any assistance to the Claimant’s case. Exhibit ‘1’ is titled “Itan Ilu Igosun by Oloye Joseph Fawole”. It is written in Yoruba Language which is not the official Language of the Court. The official language for the Court is English
GROUND ELEVEN OF APPEAL:
The trial Court erred in law it held that:
“From the foregoing, it is clear that when the evidence of parties is weighted in an imaginary scale, the evidence of the 1st-5th defendants carries more weight than that of the Claimants on this crucial issue of the lineage of the Claimant viz-a-viz his entitlement to the throne on Onigosun of Igosun. The weight I have accorded the evidence makes same to be more credible and acceptable than of the Claimant.”
GROUND TWELVE:
The judgment is against the weight of evidence.
The learned counsel raised the issue of nullity of judgment in this case and thereafter raised 5 issues for determination as follows:
1. Whether the trial Court was right in its holden that the Onigosun of Igosun stool is exclusively rotated among three Ruling Houses to wit: Ile Oba Oke, Ile Ijaoye and Ile Akoolehin and thus discountenanced the Appellant’s Oke Odofin Ruling House.
2. Whether the trial Court’s speculative rationale for rejecting Oke-Odofin Ruling House being that two ruling houses cannot come from the same family is not without jurisdiction, preserved and a miscarriage of justice.
3. Whether the trial Court in failing to take unchallenged and uncontroverted evidence adduced by the Appellant and his witnesses as admitted and proved was not in breach of fair hearing to the Appellant.
4. Whether the joint statement of defence filed with other defendants by Chief Elijah Salako, Odofin of Igosun, Chief M.O. Raji, Ojoko of Igosun and Chief J.O. Fawole, Elemo of Igosun all sued in their official traditional title goes against the credit of the Appellant’s case in defence of his family’s right to the stool of Onigosun as a Ruling House.
5. Whether the trial Court’s judgment is not against the weight of evidence.

On the issue of nullity of judgment, Counsel argued that at page 447 of the record of proceedings judgment was delivered on the 29th September, 2017. But on the face of the judgment, it was delivered on Friday, 4th August 2017 and signed on 29th September, 2017. Counsel argued that if the Court sat and judgment was delivered on the 4th August 2017, its signing on the 29th September 2017 is suspect and taints the judgment with a tar of nullity. Counsel urged the Court to view the discrepancy as substantial enough to nullify the judgment and nullify it.

In respect of issue one, counsel submitted that by Section 16(2) of the Evidence Act 2011, custom and tradition is a question of fact and the burden of proof is on the person alleging its existence, counsel referred to the case of Mrs Pauline Asika and 3 Ors V Charles Chukwuma Atuanya (2008) ALL FWRL (Pt. 433) 1293, 1319, counsel argued that the claimant pleaded the fact and gave evidence of 4 (four) ruling houses in Onigosun and listed them as Ile Oke Odofin, Ile Oba Oke, Ile Ijaoye and Ile Akoolehin. That his ruling house was originally called Ile Oba Oke-Odofin. That this is supported by a cash receipt issued to Mr. Elijah Agboola of Ile Oba Oke Odofin (exhibit 4) by Igosun Progressive Union Annual Development Levy dated 23/12/2019. That Lakade and Lakale two blood brothers founded Igosun Community. That Lakade was the older of the two. That he was offered the Kingship during the institution of the Oba for the 1st time, refused but nominated his younger brother Lakale on ground of age. Thus Lakale became the first Oba of Igosun.

That consequently, Lakade left the compound migrated to Isake Igosun, where he founded another compound. That his direct son Oba Olaofegun, was later enthroned as the 5th Onigosune of Igosun. That he changed the family name to Ile Oba Oke. That is; instead of Isale of Igosun. That the other ruling houses of Akoolehin and Ile Ijaoye are strangers who became ruling houses as a result of their affinity with Oba Abolusodim the 2nd Oba Onigosun who was a direct son of Lakale. That Lakade and Lakale on evidence were the progenitors of Oke Ode Afin corrupted as Oke Odofin. That Oba Lakale the 1st Onigosun of Igosun reigned from there and so also Oba Abolusodun and Oba Akinnu emerged from there and reigned from there. Oke – Odofin was correctly referred to as Ile Oba that is a ruling House. See paragraph 5:16 page 10 of the Appellants Brief of Argument. Counsel urged the Court to resolve this issue in favour of the Appellant.

​In respect of issue two, counsel argued that originally, there was only one compound in the whole of Igosun; that is the Oke – Odofin compound, that following the ascension of Lakale to the throne as 1st Oba Onigosun, his elder brother Lakade left the compound and founded a separate house or Compound known as Isale Igosun. That Lakale’s direct son became the 5th Oba Onigosun, Oba Olaofegun and he changed the name of the compound from Isale Igosun to Ile Oba Oke Royal family. Counsel submitted that the evidence of the founding of Isale Igosun compound and its change of name to Ile Oba Oke Royal family remains unchallenged, counsel urged the Court to so hold. Counsel referred to Ijebu- Ode Local Government v Adedeji Balogun & Co. Ltd (1991) I SCNJ 1, 18-19. Counsel submitted that the above evidence on the founding of Isale compound now Ile Oba Oke sufficiently explains the founding of both Oke Ode Afin (corrupted as Oke Odofin) Ruling House and Ile Oba Loke Ruling House, therefore the holding of the lower Court that:.
“Since it is agreed that Lakade and Lakale are brothers, the rationale why two ruling houses of Ile Oke Odofin and Ile Oba Oke will come from them has not been given” is a perversion which occasioned a miscarriage of Justice. Counsel urged the Court to resolve this issue against the Respondents and in favour of the Appellant.

In respect of issue three, the learned counsel submitted that the Appellant’s right to fair hearing means hearing in accordance with the provisions and principles of law. That the Appellant in paragraph 31 of his statement of claim pleaded the fact that the beaded crown of the Onigosun was handed over to representatives of the Oke Odofin not only as a ruling house but as a foremost ruling house was not denied nor controverted. That the Court ought to have accepted it as established. That the rejection of the above established fact by the trial Court on the ground that those to whom the crown were handed over or those that received it in the Appellant’s Oke Odofin family or the Eleku Apa were not called as witness(s) amounts to a denial of fair hearing. Counsel referred to the cases of Enaye S.R. Abah v Eribo Monday (2015) All FWLR (pt. 795) 268, 288. Counsel urged the Court to resolve this issue in favour of the Appellant.

​In respect of issue four Counsel argued that though 2nd, 3rd and 5th defendants who were sued in their traditional official capacities are members or affiliates of Oke Odofin family. That they were mere passive nominal parties that though they filed a joint statement of defence with other defendants in which they denied that Oke Odofin is a ruling house. That the law recognizes that certain individuals within a family setting may be careless if their family’s right is trampled upon and taken away as long as it benefits them. But their action did not derogate the competence of the Appellant to maintain this suit or the credit of his case that in the case of Mr. Sheriff Meinudu Olubode V. Ayotide Global Investment Ltd (2017) All FWLR (Pt. 893) 1285 @ 1303 it was held that “A member of the family can sue to protect or defend the interest of the property of the family in respect of any property, even if he has not the consent of the family to bring the action.” Counsel submitted that the discredit of the Appellant’s case in that score is a perversion of justice, and ought not to be allowed, urging the Court to resolve this issue in favour of the Appellant.

​In respect of issue five counsel argued that in proof of ruling house, unlike proof of ownership of land by traditional evidence, where a claimant is expected to state his root of tittle and trace it in an unbroken chain to himself, that in proof of a ruling home, it suffices if it is proved that at least one Oba had emerged from the house, that in this case, the Appellant led evidence of three of them from his house viz: first Oba Lakale, second was Oba Abolusodim and third was Oba Akinnu who reigned from his Oke – Odofin ruling house.
Counsel urged the Court to resolve this issue in favour of the Appellant and to allow this appeal.

The learned counsel for the 1st, 3rd and 4th Respondents in his own Respondent’s brief of argument adopted the 5 (five) issues raised by counsel to the Appellant and argued them as follows:
In respect of issue one, counsel submitted that in Yoruba land it is the custom that a kingmaker cannot ascend to the throne of the land but only fills vacancy stool that his family is entitled to, that the Appellant’s family are the kingmakers occupying three chiefs of Odofin (2nd Respondent), Ojoko (3rd Respondent) and Elemo (5th) Respondents, that is 3 (three) out of the 5(five) kingmakers of Igosun, confirming that they are only entitled to the traditional chieftaincy kingmakers of Igosun land and therefore not entitled to the stool of Onigosun of Igosun. “That a person claiming to be recognized as a king must come from a ruling house but in this case, the Appellant’s family is not from a ruling house but only sought to be recognized as a ruling house. That proof to a stool is a matter of family right and exhibit 4 relied upon by the Appellant is a mere payment of levy receipt and cannot prove a custom of a community or confer a family right of a ruling house on the Appellant. Counsel urged the Court to resolve this issue is favour of the Appellant.

In respect of issue two, counsel submitted that the Appellant’s claims are in the nature of declarative reliefs and that the law is settled that in declarative reliefs the claimant must prove his case by credible evidence and not to rely on the weakness or admission of his opponent, counsel referred to Okereke v Umahi (2015) ALL FWLR (pt 833) 1902 at 1939. Counsel submitted that the Appellant did not trace the origin of his family to Abolusodin or made any reference to Kings that have emanated from Odofin clan. Even at that, while he claimed that Abolusodin came from Ile Odofin under cross-examination he admitted that Abolusodin was a direct son of Lakale who together with his brother Lakade were the founders of Igosun and hail from Ile Oba Oke family. Counsel argued that the foregoing is very contradicting. That the holding of the lower Court was borne out of the evidence before the Court. Counsel urged the Court to resolve this issue against the Appellant.

​In respect of issue three, counsel argued that the issue is founded in respect of the alleged conduct or dictation of one Alapa of Eku Apa who allegedly handed the beaded Royal crown of Igosun to them through a representation from Ile Odofin. Counsel argued that the said pleading remained a hearsay evidence as long as the said Alapa of Eku Apa was not called to testify to that effect. That even at that, recognizing a house as a ruling house in Igosun is exclusively a customary law of Igosun and once a house is not so recognized as such then there is no external person that can confer such a right on a person who is not qualified to hold such a position. That cases are won on hard facts and not on instincts and speculations. Counsel referred to the case of Onyekwuluje V RSG (2015) All FWLR (Pt. 809) 842 at 881 and urged the Court to resolve this issue in favour of the Appellant.

In respect of issue four, counsel submitted that the joint statement of defence of the 1st-5th Respondents remain their pleadings at the lower Court, which supports the contention that the Odofin family has no business with the stool of Igosun but that they are entitled to three high chiefs among the kingmakers which is currently occupied by the 2nd 3rd and 5th Respondents. Counsel urged Court to resolve this issue in favour of the Respondent.

In respect of issue five, the learned counsel argued that the judgment of the trial Court was borne out of the evidence before the Court that the Appellant admitted under cross-examination that his family wrote a letter in 1994 to be recognized as a ruling house in Igosun which request was rejected, that there was evidence that the Appellant’s house has 3(three) of the honoured chiefs out of 5 (five) who are the kingmakers and under Yoruba native law and custom cannot ascend the throne which custom is also applicable to the Igosun people. Counsel urged the Court to dismiss this appeal and affirm the judgment of the trial Court.

The learned counsel for the 6th Respondent in his own brief of argument raised 3 (three) issues for determination thus:
1. Whether the Court below was right in its holden that the Onigosun of Igosun stool is exclusively rotated among three ruling houses to wit: Ile Oba Oke, Ile Ijaoye and Ile Akoolehin.
2. Whether the Court below was right in its findings and decision that two ruling houses cannot come from one family.
3. Whether based on the available facts and evidence, the Appellant’s right to fair hearing was breached by the trial Court.

In respect of issue one, counsel submitted that it is trite that parties are bound by their pleadings, that the Appellant heavily relied on exhibit 4, a purported receipt which the Appellant claimed to have accorded them the recognition as a Royal family in Igosun. That a receipt only confirms evidence of payment of a particular amount and nothing more, counsel referred to Gana v FRN (2015) LPELR 44344, Ajisegiri & Ors v Shodiya & Ors (2018) LPELR 44864.

​Continuing counsel argued that the evidence of the witnesses of the Appellant were full of contradictions; that while the PW2 claims that he knows the Appellant under cross-examination it turns out that he does not know the Appellant’s father, grandfather and great-grandfather. That the PW3, under cross-examination also admitted that the Oke Odofin compound or family was not recognized as a ruling house in Igosun. Counsel submitted that these are material contradictions in the case of the Appellant which are substantial and made the case of the Appellant unreliable. That the trial Court was right in holding that Oke-Odofin cannot be a kingmaker and at the same time be a ruling house. Counsel urged that the Court to resolve this issue against the Appellant.

​In respect of issue three, counsel argued that quite contrary to the submission of the learned counsel to the Appellant that their averment in paragraph 31 of the statement of claim regarding the handing over of the beaded crown to a representative of the Oke Odofin house for the Igosun people was not denied, that the 1st-5th Respondents denied it in paragraph 1 of their statement of defence while the 6th Respondent denied it in paragraph 3 of her statement of defence. Counsel referred to pages, 150 and 128 of the record. That apart from that, the Appellant failed to give evidence to substantiate that assertion by supplying the time, the place and circumstance that warranted that averment. Counsel submitted that the Appellant had every opportunity to submit/present his case at the lower Court unhindered and he presented his case and the trial Court evaluated the case and gave judgment in accordance with the evidence led by the parties. Counsel urged the Court to resolve this issue against the Appellant and to dismiss this appeal.

RESOLUTION:
The learned counsel for the Appellant donated 5 issues for determination. Counsel for the 1st, 3rd and 4th Respondents adopted the said 5 issues as donated by counsel for the Appellant while counsel for the 6th Respondent raised 3 (three) issues for determination.

I adopt the 5 issues raised by counsel for the Appellant in the resolution of this appeal. But before then, counsel for the Appellant raised the issue of nullity of judgment based on the fact that while the title of the judgment has the date; “Friday the 4th day of August, 2017” as the date the judgment was delivered, the learned trial Judge signed the judgment on 29/09/2017. I have looked at the record of proceedings on 26/07/2017, the matter was adjourned for judgment to a date to be communicated to the learned counsel on both sides. Then on 29/09/2017, the claimant (appellant) was present, 1st, 2nd, 3rd and 5th defendants (respondents) were present. Iliasu Saka Esq., represented the claimant (appellant). Abdulhafeez Idris Esq., represented 5th defendant (respondent) and held the brief of A.M. Ladan Esq., for the 6th defendant (6th respondent). The Court went on and delivered its judgment. It is very clear that the judgment was delivered in open Court before the parties and counsel on 29/09/2017, which date was also the date the trial Judge signed it out. The fact that the judgment has another date on its heading, cannot nullify or invalidate the judgment, errors occur in human conduct. An error as to the date of judgment cannot invalidate it, where there is a doubt as to the actual date of delivering a judgment; the date upon which the trial Judge endorsed the judgment is the actual date. In view of the foregoing, the submission or argument of nullity of the judgment herein is hereby refused and discountenanced.

I shall now go to the merit of the appeal. In respect of issue one, there is no doubt that this case seeks declaratory reliefs. The law is settled that a person who seeks a declaratory relief must rely on the strength of his case. See Fabunmi v. Agbe (1985) 1 NWLR (Pt. 2) 299. The principal claim in this case is claim 3, that is; “a declaration that the claimant’s lineage of Abolusodun (who hailed from Oke-Odofin Royal Compound) is entitled to the 14th Onigosun of Igosun land being a rotational chieftaincy”. The primary duty of the claimant is to trace his family genealogical history to the Ablusodun thereafter, trace the said Abolusodun to the Ile Oke-Odofin. He failed to do so but argued that it is not necessary because the case is not that of title to land.

​Both parties agreed that Igosun was founded by 2 blood brothers Lakade and Lakale. That Lakade was senior to Lakale. That Lakade was offered the Kingship as the 1st Onigosun but he declined on ground of age and nominated his brother Lakale who became the 1st Onigosun. There is also evidence that Lakade thereafter, left that and founded another compound called Isale Igosun. There is evidence that not less than 3 (three) descendants of Lakade ascended the throne and they came from Ile-Oba Oke ruling house. The learned trial Judge at page 25 of the judgment (Page 472 -273 of the record) held thus:
Attempt by the claimant at proving that the Ile Oke Odofin is a ruling house in Igosun to bring the number of ruling houses to four (4) met the brickwall when under cross-examination, the claimant as the PWI who at one breadth said Olaofeegun, Opabunmi, Atinu Oyekunle, Oyeniyan and Joseph Kolawole Abioye were the Onigosun that have reigned who came from the Ile Oba Oke (according to him descendants of Lakade) but yet in another breadth under the same cross-examination said that Atinu Oyekunle, Oyeniyan, Joseph Kolawole Abioye were direct descendants of Akinnu (the 4th Onigosun of Igosun) whom he had stated came from Ile-Oke Odofin ruling house. This is a fatal contradiction which he never explained and has cast a dent on his case. By this contradictory evidence, he has mingled both Ile Oba Oke ruling house and Ile Oke Odofin (if at all it exists as a ruling house) together as one. I am in agreement with the defendants who pleaded and testified that the descendants of Lakade and Lakale (founders of Igosun formed the nucleus of Ile Oba Oke ruling family.

Furthermore, both parties equally agreed that from 1945 the kingship stool was being rotated between 3 ruling houses. That the Appellant wrote a letter in 1994 for recognition as a ruling house which was refused on the ground that his compound is an honoured family with the responsibility of producing 3 out of the 5 (five) kingmakers. That 3 out of the 5 present kingmakers with the traditional titles of Odofin of Igosun Ofoko of Igosun and Elemo of Igosun who are the 1st, 2nd and 3rd Respondents are members of his family. That under native law and custom of Yoruba people including Igosun people, a kingmaker cannot at the same time ascend the throne.

Section 14 of the Evidence Act provides that a custom may be adopted as part of the law governing a particular set of circumstances if it can be noticed judicially or can be proved. See Kareem v. Ogunde (1972) 1 SC 126. The defendants successfully proved the custom that a member of the family of kingmakers cannot ascend the throne, therefore issues 1, 4 and 5 are resolved against the Appellant.

In respect of issue 2, the dismissal of the case of the Appellant was not based on the ground that two ruling houses cannot come from the same family but as quoted above, failure to prove the Appellant’s case. It is very clear that the Appellant failed to draw any line or establish the difference between Ile Oke-Odofin ruling house, on the one hand and Ile Oba Oke ruling house, on the other hand. And which belonged to the descendants of Lakade on the one hand and Lakale on the other hand. It was equally established that the Appellant belonged to Oke Odofin house which produced 3 out of the 5 Kingmakers and therefore, not entitled to ascend the throne. This issue is equally resolved against the Appellant.

In respect of issue 3, I agree with the learned counsel for the 1st–5th Respondents that there was no evidence to establish the assertion of receiving the beaded crown by the Oke-Odofin house for the Igosun Community as there is no evidence as to the time or place when that occurred or where it took place and no witness was called for that purpose that therefore, remains an assertion. I have to state that this case did not challenge the method of admitting or establishing a ruling house. It was about recognizing a ruling house which presupposes that the Appellant’s family was a ruling house before and later lost that right.

In all, this appeal is lacking in merit. It is hereby dismissed. The judgment of the lower Court delivered on 4/8/2017 is hereby affirmed.

Now, to the Cross-Appeal. The 2nd, and 5th Respondents cross-appealed on 12/03/2021 which was deemed properly filed on 15/03/2021.

They raised a sole ground of appeal thus:
Whether the trial Court was wrong when it held that there are 3 ruling houses to wit: Ile Oba Oke, Ile Ijaoye and Ile Akoolehim and thereby excluding oke Odofin ruling house from among the ruling houses in Igosun Town.

The 1st, 3rd and 4th Respondents filed a Notice of Preliminary Objection to the cross appeal on the ground that it is the duty of the Respondent to defend the judgment of the lower Court and further that a respondent cannot file a cross-appeal which intends to challenge the judgment of the lower Court that supports his defence/claim at the lower Court.

The 1st -5th Respondents filed a joint statement of defence and gave joint evidence. The law does not allow a party to approbate and reprobate at the same time. They have filed a joint statement of defence and enjoyed the benefit of the judgment. It is trite that benefits and burden run together. Having enjoyed the benefit of the judgment they should equally endure the burden. The Preliminary Objection is sustained and cross-appeal of the 2nd and 5th Respondents is hereby struck out.
Judgment is entered accordingly.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother KENNETH IKECHUKWU AMADI, JCA. I am in total agreement that a kingmaker never becomes king. The role of kingmaker is as sacrosanct as that of the king.
“… Kingmakers have vested right in a Chieftaincy stool as each of them has a constitutional right to take part in the selection or appointment of a successor to the stool in the event of a vacancy in the stool and in fact that no amendment to a Chieftaincy declaration could be made to abrogate that right after it had accrued. See: Ndayako V. Dantoro (2004) 13 NWLR (Pt.889) 187. Ojo V. Governor of Oyo State. (1989) 1 NWLR (Pt. 95) 1.” Per Owoade, JCA.
In Obatuga VS Oyebokun (2014) LPELR 22344
“… Kingmakers have a vested right to vacant Chieftaincy stool as each of them has a constitutional right to take part in the selection or appointment of a successor to the stool in the event of a vacancy in the Stool. NDAYAKO v. DANTORO (2004) 13 NWLR (PT 889) 187.” Per Denton-West, JCA.
As can be seen, kingmakers have their role in the process of who becomes king. Kingmakers make the king but never become king. They are like two streams that never mix. Each has its own traditional role.

The Appellant’s family as kingmakers cannot and will not metamorphose into a ruling house.
The appeal of the Appellant is misconceived.

For this, I also join my learned brother in holding that this appeal lacks merit. It is dismissed. I also affirm the judgment of the lower Court.
I abide by the conclusions reached as to the Cross Appeal of the respondents.

ISAIAH OLUFEMI AKEJU, J.C.A.: I have read the judgment of my learned brother, KENNETH IKECHUKWU AMADI, JCA, I agree with the reasoning and conclusion therein. The preliminary objection is sustained while the cross-appeal is struck out. I abide by the consequential order.

Appearances:

J. S. BAMIGBOYE, (SAN) with him, B. OYALEKE, ESQ. SULAIMAN ALAMOYO, ESQ. and A. T. SMITH, Esq. For Appellant(s)

B. A. OLADIPO, ESQ. for 1st, 3rd and 4th Respondents

J. A. OLADIPO, ESQ. for 2nd and 5th Respondents.

A. A. DAIB, (CHIEF STATE COUNSEL) with him, M. A. Z. USMAN, ESQ. for 6th Respondent. For Respondent(s)