Chief Samuel Adebisi Falomo V. Oba Omoniyi Banigbe & Ors (1998)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Kaduna Division, which had on the 6th day of April, 1995 allowed the appeal by the defendants from the decision of Ojo, J., sitting at Ilorin in the High Court of Kwara State of the Federal Republic of Nigeria.

The plaintiff had on the 27th day of July, 1993 instituted an action against the defendants jointly and severally claiming as follows:-

“(1) That the Olusin of Ijara- Iji Isin is not a recognised chief under the Chiefs Appointment and Deposition Law Cap 20, Laws of Kwara State (1963), Northern Nigeria Laws applicable to Kwara State and the appointment to that office does not require the approval of Kwara State Governor or Government.

(2) That under Ijara-Iji Isin native law and custom, a person cannot be appointed to the post of Olusin of Ijara-Iji Isin until he is presented by the majority of the members of his royal house to the kingmakers (Ihafa) and the majority of the kingmakers have accepted the candidature after certifying the propriety of the candidate.

(3) That the plaintiff having been presented by his royal family, accepted by the Ihafa (the kingmakers) and has been properly approved by the Irepodun Local Government Area is the rightful Olusin of Ijara-Iji Isin.

(4) An injunction restraining the defendants from reviewing the appointment of the plaintiff as the Olusin of Ijara -Iji Isin.

(5) An injunction restraining the 1st defendant from parading and or pretending to be the Olusin of Ijara-Iji Isin and from advertising or sponsoring advertisements through his agents or servants that he is Olusin of Ijara-Iji Isin or doing any other acts in negation of the appointment of the plaintiff as the Olusin of Ijara Iji-Isin.”

The plaintiff on the same 27th day of July, 1993 filed two applications against the defendants. The first was an ex parte application of interim injunction restraining, inter alia, the 1st defendant from parading himself as the Olusin of Ijara Iji Isin, and the 2nd and 3rd defendants from reviewing the appointment of the plaintiff as the Olusin of Ijara Iji Isin pending the determination of the motion on notice for interlocutory injunction filed in the cause. The second application was the substantive motion on notice for an order of interlocutory injunction praying the court for the following orders, namely –

“1. AN INTERLOCUTORY INJUNCTION restraining the 1st defendant from parading and or pretending to be the Olusin of Ijara/Iji Isin and from advertising or sponsoring advertisements through his agents or servants that he is the Olusin of Ijara Iji Isin or doing any other acts in negation of the appointment of the plaintiff as the Olusin of Ijara Iji Isin pending the determination of the substantive suit.

2. AN INTERLOCUTORY INJUNCTION restraining the 2nd and 3rd defendants their agents or privies from reviewing the appointment of the plaintiff as the Olusin of Ijara Iji Isin pending the hearing of the substantive suit.
3. AND for such further or other orders as the honourable court may deem fit to make in the circumstances of this case.”

On the 28th day of July, 1993, the ex parte application for interim injunction restraining the 1st defendant from parading himself as the Olusin of Ijara Iji Isin, and the 2nd and 3rd defendants from reviewing the appointment of the plaintiff as the Olusin of Ijara Iji Isin pending the determination of the said substantive motion on notice was granted as prayed. The substantive motion on notice was thereafter adjourned to the 30th July, 1993 for hearing.

From the affidavit evidence before the court, it is the case of the plaintiff that the stool of Olusin of Ijara Iji Isin became vacant on the demise of the late Olusin, Oba Jacob Olafioye Omiyale on the 14th day of July, 1992. The claim was that the stool of Olusin of Ijara Iji Isin was rotated between Ijara and Iji families. Each of the two families had its kingmakers and did not interfere with the other family when it was its turn to appoint an Oba. The plaintiff deposed that as it became the turn of Ijara Isin family, to which he belonged, to present candidate for the vacant stool, his ruling house in 1992 duly nominated him in accordance with their tradition and customary usages and forwarded his name to the kingmakers for approval. The kingmakers after due consultations ratified and accepted his nomination as the Olusin of Ijara Iji Isin. The Ijara chiefs which included the kingmakers headed by the Baale, the Ijara Isin Development Council and the Irepodun Local Government duly approved the appointment of the plaintiff as the Olusin of Ijara Iji Isin. Exhibits A and 2 were annexed to the plaintiff’s affidavit in proof of the various procedural stages and consultations the nomination of the plaintiff as the Olusin went through. Exhibit 3 was said to be the approval of the plaintiff’s nomination and his appointment as the Olusin of Ijara Iji Isin by the Irepodun Local Government Council with effect from the 9th July, 1993. The plaintiff added that on the 20th July, 1993, the 1st defendant and/or his supporters carried radio and other advertisements to the effect that the plaintiff’s appointment as Olusin of Ijara Iji Isin was null and void and congratulating the 1st defendant for his purported appointment as the Oha Ijara Iji Isin. On the 22nd July, 1993 the 1st defendant and members of his family sang and danced round the town with the 1st defendant parading himself as the Olusin and addressed as “Kabiyesi”. It was then alleged that the said actions of the 1st defendant were causing untold confusion and tension to the entire community and embarrassment to the plaintiff whose letter of appointment, Exhibit 3, was neither revoked nor withdrawn.

The 1st defendant in his own counter-affidavit deposed that before the year 1911, the title of Olusin of Ijara Isin belonged exclusively to his family. He stated that it was not until the year 1911 that some “meddlesome interlopers” from Okegunsin and Odo Ijara “snatched” the throne from his family. The 1st defendant claimed that he was installed traditionally as the Olusin of Ijara Isin on the 19th July, 1993. He described the installation of the plaintiff as a desecration of the native law and custom governing the Olusin chieftaincy.

At the conclusion of arguments, the learned trial Judge in a considered ruling on the 11th day of January, 1994 dismissed the application for interlocutory injunction. He however restrained both the plaintiff and the 1st defendant from parading themselves as the Olusin of Ijara Isin pending the determination of the suit.