Chief Joseph Odetoye Oyeyemi V. Commissioner For Local Govt., Kwara State & Ors. (1992)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C.

This is an appeal by the plaintiff against the judgment of the Court of Appeal, Kaduna Division, which had allowed an appeal by the defendants against the judgment of Orilonise, J. sitting in an Ilorin High Court. The Court of Appeal had also made a consequential order of non-suit against the plaintiff.

The plaintiff had in the High Court claimed for a declaration that he was recognized as the Bale of Oro by the 1st, 2nd and 3rd defendants, that their purported withdrawal of the recognition and subsequent recognition of the 5th defendant was null and void. He also claimed an order of injunction restraining the 5th defendant from parading himself as the Bale of Oro Town.

Plaintiffs case in a nutshell was that he was duly nominated by Bale Egin Orunmila ruling house, presented to the kingmakers of Oro by the Asanlu of Oro and Aro of Oro and was duly installed as the Bale of Oro on the 1st of August, 1980. He was duly recognized by the 1st to 4th defendants. He acted in that capacity and defendant’s functionaries addressed correspondences to him as such until 14th June, 1982, when the defendants purported to withdraw his recognition as Bale without a hearing. The 3rd defendant by Exhibit D, dated 7th December, 1982, conveyed the recognition of the 5th defendant by the local government.

I should mention at this stage that the 5th defendant died before this appeal came up for hearing. An attempt in a motion filed by his brother, one Alhaji Mustapha Atoyebi to be substituted for the 5th defendant as a respondent in this appeal was refused by the Court on the ground that claims numbered 5 and 6 in the suit were personal actions against the 5th defendant. The applicant had no interest in the subject matter of the suit. The rule for substitution in such cases is governed by the application of the maxim: actio personalis moritur cum persona – a personal right of action dies with the person. It postulates that an action based on the personal rights of a deceased person dies with the person. Examples of such actions are those not being ex contractu for breach, debt, covenant or other similar duty to be performed which can be maintained or continued by or against the deceased person’s personal representatives, or actions brought by or against the deceased person as sale or one of the representatives of a group of people where the cause of action survives the death of the deceased. The maxim applied to an action by or against a deceased person which were founded on malfeasance or misfeasance to the person or property of the deceased as well as to his person or personal right, such actions died with the deceased. Although, in England, the rule has been substantially modified by the Law Reform (Miscellaneous Provisions) Act of 1934, that Act does not apply in Nigeria, and we have not been referred to any law applicable in Kwara State which has similar provisions as the Act of 1934 in England. On the principle, we held the view that the right, if any of the 5th defendant to the Chieftaincy stool died with him. I shall, therefore, consider this appeal on the basis of the right of the plaintiff (appellant) as against the remaining defendants (1st to 4th respondents).

So, I need to refer only to those findings of fact by the learned trial judge which relate to the 1st to 4th respondents, the learned trial judge found, inter alia, as follows:

(i) That there are two ruling houses in Oro town, and that the plaintiff belongs to one of them;

(ii That the plaintiff was installed as the Bale of Oro on the 1st of August, 1980;

(iii) That the Kwara State Government recognized the appointment of the plaintiff as the Bale and that he continued to receive his salary as Bale from the 2nd of August, 1980, till the 14th of June, 1982. It is useful to refer to the evidence of D.W.3, the Oloro of Oro on this question of recognition of the plaintiff as the Bale. He testified as follows:

“I know Alhaji Adamu Atta one time Governor of Kwara State. After the recognition of the plaintiff by the 3rd defendant as the Bale of Oro and before I installed the 5th defendant in accordance with Ekumosan Oro native law and custom I protested to the Governor that the appointment of the plaintiff was not proper and he agreed that I should install another Bale.

I can remember the 17th June, 1982, That was the day the 5th defendant was installed as Bale of Oro by me”.

Under cross-examination the Oloro of Oro went further to say:

“I am aware that the plaintiff was recognized on 4th December, 1980 as the Bale of Oro by the Irepodun Local Government (3rd defendant). I went and complained to the then Governor of Kwara State about the recognition accorded the plaintiff as Bale of Oro in June, 1982. My complaint to the Governor was verbal.”

(iv) Importantly, the learned trial judge after listening to the evidence found as a fact that contrary to the provision of section 3 (2) of the Chiefs (Appointment and Deposition) Law, 1963, when the Governor received complaints about the allegedly wrongful appointment and installation of the plaintiff as the Bale of Oro, he did not hold any inquiry before he withdrew the recognition.