Alhaji Sule Agbetoba & Ors. V. The Lagos State Executive Council & Ors (1991)
LawGlobal-Hub Lead Judgment Report
G. KARIBI-WHYTE, J.S.C.
Appellants, representing the Muti ruling house of the Onikoyi Chieftaincy family has again appealed to this Court, challenging the dismissal by the Court of Appeal, Lagos Division of their appeal against the judgment of C.A. Johnson, C.J. dated 23rd October, 1985.
In the High Court of Lagos State appellants as plaintiffs in two separate suits, ID/42M/81 and M/153/81 subsequently consolidated had asked for the following eleven reliefs from the Defendants/respondents.
(i) A declaration that the declaration issued by the Lagos State Executive Council on the 27th day of July, 1977 and registered on the 1st August, 1977 under the Oba and Chiefs of Lagos Law 1975 is still effective and binding on the Lagos State Government;
(ii) A declaration that the 3rd appellant was properly selected by the Muti Ruling House of the Onikoyi Chieftaincy Family to fill the vacant stool of Chief Onikoyi of Lagos.
(iii) A declaration that the 3rd appellant’s appointment is entitled to be approved as the Chief Onikoyi of Lagos Elect by the Lagos State Executive Council pursuant to Section 5(2) of the Oba and Chiefs of Lagos Law 1975;
(iv) A declaration that the Lagos State Executive Council or any of the respondents have no right or power to amend the declaration of the 27th July, 1977 and registered on the 1st August, 1977;
(v) That the Oba and Chiefs of Lagos State Law, 1981 is unconstitutional in that sections 6, 7, 8, 9, 10, 11 and 12 thereof and all other sections relating to Customary law tantamount to the delegation of Legislative Powers to the Chieftaincy Committee, Chiefs Council, the Commissioner responsible for chieftaincy matters and Governor, such delegation being contrary to the spirit and provisions of the Constitution of the Federal Republic of Nigeria, 1979;
(vi) A declaration that the Oba and Chiefs of Lagos State Law, 1981 is unconstitutional in that it failed to satisfy the constitutional requirements for passing Law;
(vii) That any declaration and particularly the Onikoyi Chieftaincy Declaration dated 20th November, 1981 made under the Oba and Chiefs of Lagos State Law, 1981 is null and void and of no effect;
(viii) That the 3rd appellant having been selected by the Muti Ruling House under the declaration dated the 27th of July, 1977 is entitled to be considered and approved as the Chief Onikoyi of Lagos by the Lagos State Executive Council and/or the 1st Respondent;
(ix) That the selection of the 3rd appellant remains valid and unaffected by the purported Chieftaincy declaration dated the 20th day of November, 1981;
(x) That the Chieftaincy declaration dated 20th November, 1981 and subsequent selection and approval of the 4th respondent (joined by the Order of Court) as Chief Onikoyi are premeditated, actuated and motivated by malice and as such the Declaration is null and void;
(xi) That the selection and approval of appointment of the 4th respondent as Chief Onikoyi of Lagos by the 1st respondent is improper and irregular and of no effect”
The claims which are inextricably tied to the question of the appointment and recognition of the 3rd plaintiff/appellant as the Chief Onikoyi of Lagos, and the claims of 1st – 3rd plaintiff of the Muti Ruling House as the only Ruling House was originally against the Ist-3rd defendants/respondents. The 4th defendant/respondent, of the Dosunmu Ruling House claiming to have been approved as the Chief Onikoyi of Lagos by the Lagos State Executive Council applied and was joined as defendant in Suit No. M/153/81.
Thus the battle line between the two ruling houses who have been contesting the Chieftaincy since the death in 1966 of Edwin A. Bajulaiye the last Chief Onikoyi was drawn on the recognition by the Lagos State Government of the 4th defendant/respondent as the Chief Onikoyi of Lagos.
The background facts leading to this litigation is somewhat confused, although not really complicated. In brief it could be stated to be as follows –
Chief Onikoyi of Lagos is one of the very important land owning Chiefs of Lagos. It has an ancestory going back to before the cession of Lagos to the British in 1861. But what concerns us here, are the competing claims by the plaintiffs appellants that there is only one ruling House, i.e. the Muti Ruling House; as against the claim by the defendants who maintain that there are two ruling houses, i.e. the Dosunmu House being the second. This is the root cause of this long drawn acrimonious litigation.
The issue came into focus on the death in 1966 of Chief E.A. Bajulaiye, the incumbent Onikoyi. As a result of protracted disagreements and petition to the Lagos State Government among members of the Onikoyi Chieftaincy family, the Military Government of Lagos State in 1973 in a letter C.B. 217/25 dated 3/12/73 requested the Chieftaincy Committee of Lagos Island Local Government to prepare and submit in writing a declaration in respect of the Onikoyi Chieftaincy Family.
The effort by the Oba-in-Council, headed by Oba Oyekan II to settle the dispute ended in the inability of the two ruling houses to agree on a single declaration. Oba Oyekan II, then set up Committee of Idejo Chiefs to reconcile the differences in the positions of the two ruling houses. Although the Idejo Chiefs met and agreed that there are two ruling houses, the Muti branch of the Onikoyi Chieftaincy family could not be reconciled to accept the idea. The matter was reported to the Governor who referred the issue to a standing Tribunal of Inquiry in 1976. The Tribunal found that there were two ruling houses in the Onikoyi Chieftaincy Family, namely Muti and Dosunmu.
In 1977 the State Executive Council considered and rejected the report of the standing Tribunal. Following this, and the refusal of the Chieftaincy Committee of the Lagos Island Local Government to make a declaration that there was only the ruling house, the Executive Council in 1977 made the declaration in respect of the Onikoyi Chieftaincy. This is Exhibit 4 in these proceedings.
Following this Declaration, plaintiffs/appellants submitted the name of the 3rd appellant to the Government for appointment as Chief Onikoyi. The nomination was not approved by the Executive Council as required by law.
In 1978 following several petitions complaining about the state of the Onikoyi Chieftaincy, the Military Governor directed the matter to be taken before the Executive Council, and that all actions towards filling the position be suspended. This was the position when the civilian administration assumed office in 1979. The new administration reviewed the situation and rejected the declaration dated 27th July, 1977, i.e. Exh.4. On the other hand the Governor considered and accepted the recommendations of the Report of the Standing Tribunal of Inquiry, which found that there were two Ruling Houses in the Onikoyi Chieftaincy family, namely the Muti and Dosunmu Ruling Houses. The Chieftaincy Committee of the Lagos Island Local Government was directed to make a new declaration in respect of the Onikoyi Chieftaincy.
The new declaration made by the Lagos Island Local Government Chieftaincy Committee was approved and registered in accordance with the provisions of the Oba and Chiefs of Lagos State Law, 1981. These are Exh. “9” and “9A” in these proceedings. The Dosumu ruling house was invited to nominate the candidate to fill the vacant chieftaincy of Onikoyi of Ikoyi – See Exh. 19 in this proceeding. Accordingly, the 4th defendant/respondent was presented as the new Chief Onikoyi of Lagos. His appointment was approved by the Lagos State Government on the 31st December, 1981. The appointment was published in the Gazette by Lagos State Legal Notice No. 2 of 1982, Exh. 34.
Although several legal arguments have been put forward in respect of the eleven reliefs claimed, the central issues in the litigation between the two Ruling Houses of Muti and Dosunmu in the Onikoyi Chieftaincy family is whether Muti Ruling House is the only Ruling House, and that the Dosunmu Ruling House is not. And whether the 3rd appellant Idowu O. Fafunwa, or the 4th respondent, Adamo Fagbemi Onikoyi, should succeed to the vacant Onikoyi Chieftaincy. The issues relating to the validity of Declarations Exh. 9 though crucial and relevant are merely to support the Chief contention.
The contention of the defendants is that there are two ruling Houses, and the Dosunmu Ruling House is one of them. They also contend that the 1977 Onikoyi Chieftaincy Declaration, i.e. Exhibit 4 was defective and not made by the prescribed authority. It was contended that the Oba and Chiefs of Lagos State Law, 1981 was passed into law on the 18th day of November, 1981, and received the assent of the Governor on the same date.
The trial Judge, Johnson, J. dismissed the action, having rejected all the claims by the plaintiffs. In dismissing the claims the learned Judge held that (i) there were two Ruling Houses in the Onikoyi Chieftaincy family, namely, the Muti Ruling House and the Dosunmu Ruling House (ii) 3rd Appellant was not properly selected by the Muti Ruling House and that having not complied with the provisions of the Oba and Chiefs of Lagos Edict No.2 of 1975 S.5(2) was not entitled to be approved as the Chief Onikoyi of Lagos Elect (iii) it was held 3rd appellant had no vested right from the selection of appointment which could be preserved. (iv) He also held that there was power in the Lagos State Executive Council to amend the 1977, declaration. and that the Oba and Chiefs Lagos State Law, 1981 was not unconstitutional. The trial Judge held that the selection and approval of the appointment of the 4th Respondent was proper and regular.
Plaintiffs appealed to the Court of Appeal alleging 14 grounds of error against the judgment of the trial Judge.
Learned counsel formulated ten issues from the grounds of appeal. These are –
- Whether or not the Onikoyi Chieftaincy Declaration is still effective and binding on the Lagos State Government.
- Whether or not silence by the Lagos State Executive Council could rightly be interpreted to mean refusal to approve the candidature and selection of the 3rd appellant in all the circumstances of this case.
- Whether or not the 3rd appellant has a vested right which ought to be considered fully before any other nomination to fill the vacant stool and in view of the Supreme Court’s judgment in S. Afolabi & Ors. v. Governor of Oyo State & Ors. (1985 2) NWLR (Pt 9) 734, and S.15 of the Obas and Chiefs Law.
- Whether or not the Onikoyi Chieftaincy Declaration 1981 was valid and proper.
- How many branches are in the Onikoyi Chieftaincy Family
- Whether or not the Dosunmu branch of the Onikoyi Chieftaincy Family are Alabagbe or Omo-Oye
- Whether or not the 4th respondent is a blood member of the Onikoyi Chieftaincy Family and entitled to become a Chief Onikoyi
- Whether or not the selection and approval of the 4th respondent as Chief Onikoyi by the 1st Respondent was proper and valid
- Whether not (in view of the material contradictions in the evidence of the Defence witnesses as to categories of membership in the Onikoyi Chieftaincy Family at various times) the Court is entitled to come to the conclusion it did in its judgment being appealed against.
- The Constitutionality of the Obas and Chiefs of Lagos Stale Law, 1981.
Learned counsel to the respondents adopted in their argument the issues formulated by learned Counsel to the appellants. In the judgment dismissing the appeal, the Court below held that Exhibit 4 purporting to be a Chieftaincy declaration under the Chiefs Law in 1975 cannot be so regarded. The Court gave two reasons. First, to be approved as a declaration, it must have been passed by a committee designated under the Oba and Chiefs Law 1975, and the declaration should have been so endorsed. This was not so in Exhibit 4. Secondly, the declaration was purported to have been made under a Law which had nothing to do with the Oba and Chiefs Law of 1975 of Lagos State.
The Court below held that the inference drawn by the learned Judge from the refusal of the Lagos State Government to approve the nomination of the 3rd Appellant was right.
On the question whether the 3rd appellant had by his selection acquired a vested right to preclude the nomination of any other person as Chief Onikoyi of Lagos, the Court of Appeal held that the judgment of this Court in Afolabi & Ors . v. Governor of Oyo Slate & Ors. (supra) relied upon by the appellant was not applicable. It was held that Exhibit 4 not being a valid declaration under the Oba and Chiefs Edict 1975 of Lagos 3rd appellant did not acquire any right which vested under the instrument which was in any event defective.
Referring to the constitutionality of the Oba and Chiefs of Lagos Law 1981 which is Exh.17, and Exhibit 9 and 9A made thereunder, the Court below observed that the attack was not on the vires to make the law. The challenge was as to its validity on the ground of lack of assent on the face of the law. The Court below held that the law was assented to having gone through the normal legislative procedure. It was also held that Exhibits 9a is also validly made under the Oba and Chiefs of Lagos Law 1981. The Court conceded that Exhibit 9 made under the repealed Section 2(2) of the Oba and Chiefs of Lagos Edict 1975 was invalid. The judgment considered together issues 5. 6. 7. 8 and 9 concerning the position of the 4th Appellant in relation to the issue of the Chief Onikoyi of Ikoyi, which is the subject matter of this protracted litigation. It was held that Exhibit 4, the Declaration made under the new repealed Oba and Chief of Lagos Edict 1975, Exhibit., 5 and 5(a) as to what constitutes branches of the Onikoyi of Ikoyi Chieftaincy family were irrelevant. The true customary law on the Onikoyi Chieftaincy Family is as stated in Exhibit 9(a) duly made under the Oba and Chiefs of Lagos, Law 1981. The Court held that the 4th Respondent having on the evidence been found to be the grandson of Chief Dosunmu Onikoyi, a former Onikoyi of Lagos between 1860-1891, his selection and approval was proper and valid.
Appellants have filed five grounds of appeal against the judgment of the Court of Appeal. The grounds of appeal excluding their particulars are as follows
“(i) The Court of Appeal (in the judgment of Hon. Justice A. Ademola J.C.A. erred in law when it held as follows:
“My view of the matter so far on issue 1 and 2 is that Exhibit 4, though purporting to be a Chieftaincy Declaration under the Chiefs Law of 1975 of Lagos State cannot really be regarded as such. Before it can be approved, it must have been passed by a Committee designated under the Obas and Chiefs 1975 Law to do so. There must be such endorsement on the declaration. This is not so on Exhibit 4.”
(ii) The Court of Appeal (in the judgment of Hon. Justice A. Ademola, J.C.A. erred and misdirected themselves and or failed to properly direct themselves in law when they held as follows:-
“Another defect as pointed out by Mr. Oseni is that the power of approval was made under the law which has nothing to do with the Obas and Chief Law of 1975 of Lagos State. The defects are so important in my view that they might have been contributory to the Government in-action in not giving approval to the purported nomination of the 3rd Appellant.”
(iii) The Court of Appeal (in the judgment of Hon. Justice A. Ademola, J C.A.) erred in law when considering the distinction between this case and that of Afolabi & Ors. v. Governor of Oyo State (1985) 2 NWLR (Pt.9) p.734
“I am of the view that the issue here is quite different from the issue in the S. Afolabi & Ors. case (supra)
“I cannot say that the Declaration earlier made under the Obas and Chiefs Law of Lagos State 1975 whereas, the Declaration earlier made in 1957 in the Afolabi’s case was conceded in that case to be still valid and subsisting side by side with the one made in 1982:”
“Could it be said that Exhibit 4 had been validly made under the Obas and Chiefs Law of 1975”
“I have come to the conclusion that Exhibit 4 cannot be regarded as a valid Declaration under the then Obas and Chiefs Law of Lagos State 1975, in so far as the purported approval given to it was not made under the correct Law by the Executive Council of Lagos State.”
“It follows, therefore, in my view that no vested right can be acquired under the instrument which in my own view is defective in the many forms and substances as pointed out in the argument and the brief of the respondents.”
(v) The Court of Appeal erred in law (in the judgment of Hon. Justice E.O.I. Akpata, J.C.A.) when they held that
“In effect, the qualification of the 4th Respondent and the method of which he was nominated was not altered by Exhibit 9A. His nomination therefore records with the requirements of Exhibit 9A which was promulgated.”
Learned Counsel filed briefs of argument which they adopted, and relied upon in argument before us. Learned Counsel to the Appellant seems to have reproduced the ten issues for determination he formulated as arising from the grounds of appeal in the Court below. On his part learned Counsel to the 4th Respondent has formulated 13 issues in reply to the argument of learned Counsel to the Appellant. In addition, he has formulated four other issues which could be argued within the issues formulated by learned counsel to Appellants and the separate issues formulated by learned counsel to the 1st-3rd Respondents. This is to say the least a fairly complex method of determining the issues at stake in the same appeal. It seems to me that although the grounds of appeal were before counsel, they have not been united in what the grounds are challenging. This attitude leaves the Court in an invidious situation of settling for the parties from the grounds of appeal what the issues at stake are. It is both unfortunate and embarrassing for the court to find itself in such a situation.
This Court has consistently and in several decisions advised counsel formulating issues for determination arising from grounds of appeal, to avoid prolixity and keep closely within the confines of the grounds of appeal relied upon. The ideal is to formulate an issue as encompassing more that one ground of appeal. It is not only undesirable, but also confusing to split a ground of appeal into more than one issues. The practice of splitting grounds of appeal is likely to confuse consideration of principal issues with subsidiary issues. Whereas the principal issues are essential for the determination of the case, the subsidiary issues are formulations towards the elucidation of the principal issues. They cannot justifiably be regarded as issues for determination. In the instant case, the principal issues for determination relate to the validity of Exhibit 4, on which the 3rd Appellant relies, for the vested right claimed, an the validity of Exhibit 17, 9 and 9A, the documents on which 4th Respondent relics which are based on the Oba and Chiefs of Lagos Law, 1981. The real issue is whether the 3rd Appellant has been validly excluded from the race for the Onikoyi of Lagos Chieftaincy, as against whether the 4th Respondent has been validly appointed the Chief Onikoyi of Lagos.
I consider the formulation of the issues for determination by learned Counsel to the 1st-3rd Respondents more consonant with the grounds of appeal filed, and consistent with the principles for formulating issues. I will therefore adopt them in this judgment.
The issues for determination therefore are as follows –
“1. Whether the Court of Appeal was right when it held that no vested right can be acquired under the instrument, that is, Onikoyi Chieftaincy Declaration Exhibit “4” purported to have been made under the Chiefs Edict of Lagos 1975, which is defective in many forms and substance. Consequently, the claim of the 3rd Appellant under Exhibit “4” cannot be sustained.
- Whether the Court of Appeal was right in its view that the Supreme Court decision in the case of S. Afolabi & Ors. v. Governor of Oyo State & Ors. (1985) 2 NWLR (Pt.9)734 could not be of assistance to the appellants.
- Whether the Court of Appeal was right when it held that the Obas and Chiefs Law 1981 Exhibit 17, went through the normal legislative process in its enactment under section 94 of the 1979 Constitution of the Federation of Nigeria and that there is nothing unconstitutional in Exhibit 9 and “9(A).”
- Whether the Court of Appeal was right when it held that the true Customary law on the Onikoyi Chieftaincy Family is as stated in Exhibit 9(A) duly made under the Obas and Chiefs of Lagos State Law, 1981 and that various inquiries conducted by the Lagos State Government showed that the Chieftaincy Family consists two branches, namely; Muti and Dosunmu, and that the selection and approval of the 4th respondent as the Onikoyi, being the grandson of the Chief Dosunmu Onikoyi a former Onikoyi of Lagos between 1860-1891 is proper and valid.
- Whether the Court of Appeal was right when it dismissed the appeal of the Appellants and confirmed the judgment of Johnson C.J. of Lagos State.
I am satisfied the above issues have adequately taken into account all the grounds of appeal filed and argued.
Before I discuss the submissions of learned counsel in this appeal, I wish to touch on a preliminary point relating to some irregularity in the approach adopted by Chief Benson S.A.N, in his brief of argument. After his formulation of issue for determination based on the grounds of appeal, learned Senior Counsel reverted to argue the grounds of appeal from which the issues were formulated. The essence of formulating issues is to sieve and distil the real and principal from the secondary or subsidiary issues. The principal issues are those essential for the determination of the decision of the action litigated by the parties. The subsidiary issues are generally of assistance in the determination of the principal issues but are not essential for the decision of the case between the parties.
The grounds of appeal having been subsumed in the issues formulated, Counsel should only argue the appeal on the issues as formulated. Arguing the issues as formulated is invariably arguing the grounds of appeal from which they were formulated.
I shall first consider issues 1 and 11. These issues are concerned with the validity of Exhibit 4, and the question whether the 3rd appellant had by his selection acquired a vested right to be appointed tile Onikoyi of Lagos. “Exhibit 4” is the Onikoyi Declaration 1977 made under section 2(2) of the Oba and Chiefs of Lagos Edict 1975. I have already stated the findings of the Court below.
Chief Benson S.A.N for the appellants submitted in his brief of argument and in his oral expatiation of same before us that “Exhibit 4: the Declaration on which the 3rd Appellant was selected was valid and the selection and nomination were validly made according to the Oba and Chiefs of Lagos Edict No.3 of 1975. Learned senior Counsel argued that the Court of Appeal was wrong to hold that Exhibit 4, did not emanate from a Committee under the Oba and Chiefs Law, and therefore was not an existing law. In his submission section 2(2) of the Oba and Chiefs of Lagos State (Amendment) Edict No.5 of 1976 or Edict No.18 is clear on the point that it is all existing law. The criticism of “Exhibit 4” and what the court below decided, was that the Declaration was made by the Executive Council, and not as required by S.2(1) of the law, by a Committee or Chiefs and approved by the Executive Council. In this case the Executive Council made tile Declaration after rejecting the Report of a Tribunal of Inquiry which it considered unfavourable. Learned Counsel submitted that the Declaration was valid. He argued that since the Declaration was registered, it was saved by section 43 of the Obas and Chiefs of Lagos Law No.6 of 1981 even though 3rd Appellant was not appointed to a recognized chieftaincy under the Obas and Chiefs Edict 1975.
It was further submitted that section 44 of the Oba and Chiefs Law 1981 was intended to save appointments under the Oba and Chiefs Edict No.2 of 1975. The court below was therefore wrong to have considered that the nomination and appointment of 3rd appellant to give him a vested right must have been made under the Oba and Chiefs Edict 1975. The law intended two circumstances. There should be a registered declaration by section 43, and a nomination under it, and (2) an appointment It was submitted that the existence of one without the other did not vitiate the declaration, and nomination of 3rd appellant under it. Both exist and are saved exclusively independent of each other by sections 43 and 44 of the Oba and Chiefs Law 1981. Accordingly both the nomination of 3rd Appellant founded on “Exhibit 4,” and “Exhibit 4” itself are valid.
Learned senior counsel then argued that in the circumstance it was erroneous for the Court below to conclude that the silence of Government to act was indicative of the rejection of !he nomination and therefore a refusal to appoint the 3rd appellant.
Finally, relying on Afolabi & Ors. v. Governor of Oyo State & Ors. (supra), it was submitted that since the nomination of 3rd appellant remained extant, no other nomination could be made until the 3rd appellant had been properly considered and decided upon. Accordingly the nomination and appointment of the 4th Respondent by virtue of Exhibits 9 and 9A are illegal, null and void.
There seems to me a misunderstanding of the reasons given by the Courts below for rejecting the Declaration of Customary Law made under the Oba and Chiefs of Lagos Edict 1975, i.e. Exhibit 4 and for holding that 3rd Appellant had not by his selection by the Muti Ruling House acquired a vested right.
Learned Counsel to the Respondents, relying on section 5 of the Oba and Chiefs of Lagos State Edict 1975, submitted that Exhibit 4 relied upon by Appellants was defective having neither been made, nor been approved in compliance with the provisions of sections 1, 2(11), 5(2) (3), 7 of the Oba and Chiefs of Lagos Edict 1975. It was submitted that 3rd Appellant’s claim to nomination and appointment did not go beyond the stage of selection by the Muti Ruling House. It was also submitted that Appellants had relied on a non-existing law for the validity of the Declaration. The Edict No.5 of 1976 which was cited as amending the Oba and Chiefs Law of Lagos State is a Forestry law which could not have such effect. I think a better appreciation, a clearer picture and understanding of the issue raised can be had from analysis of the statutory provision enabling the selection, nomination and appointment of Chiefs under the Oba and Chiefs of Lagos State Edict, 1975.
The appointment of a traditional Chief of Lagos is now governed by the Oba and Chiefs of Lagos State Law, No. 6 of 1981. This law which came into force on the 18th November, 1981, by section 42 repealed the Chiefs Law, Cap.25 Laws of Lagos State 1973, Oba and Chiefs of Lagos Edict No.2 of 1975, Oba and Chiefs of Lagos (Amendment) Edict No.5 of 1976, Chiefs (Amendment) Edict No.21 of 1978; Chiefs (Amendment) (No.2) Edict No.22 of 1978, section 43 of this Law preserved Declarations made or registered under the repealed enactment as if they have been made under this law. Section 44 preserved approvals to appointments to a recognised Chieftaincy under the provisions of any of the repealed enactments. The effect of these provisions is that valid Declarations made under the repealed laws, and approvals to nominations made under such repealed laws remain valid and effective as if they were made under the new law.
The 3rd Appellant in this appeal claims to have been selected and nominated by virtue of the enabling provisions of the Oba and Chiefs of Lagos State Edict No.2 of 1975. It is argued on his behalf that his interest in the appointment of Chief Onikoyi of Lagos has by virtue of sections 43 and 44 of the Oba and Chiefs of Lagos State Law No.6 of 1981 vested. Accordingly the appointment of the 4th Respondent during the pendency of his vested interest was void. In fact it was also contended that the law under which the 4th Respondent was appointed was null and void on the grounds of unconstitutionality.
Since the period within which 3rd Appellant is concerned is convered by the Oba and Chiefs of Lagos Edict No.2 of 1975, the rights of the 3rd Appellant can only be considered under that law. Section 7(1) of the Edict No.2 of 1975 prescribes the procedure for filling a vacancy in a traditional Chieftaincy of Lagos. There is no dispute that the Onikoyi of Lagos is a traditional Chieftaincy and therefore there must be compliance with section 7 of the Edict No.2 of 1975.
The section provides for the Head of the Chieftaincy family after being requested by the relevant Permanent Secretary to fill the vacancy, to summon a Meeting of the Senior members of the family representing all the ruling Houses or a Special Committee for that purpose where there is one, with the Head of the Family as Chairman to consider and decide on the basis of rotation where there is more than one Ruling House, whose turn it is in the registered declaration to fill the vacancy. The Head of the Ruling House is required to submit in writing within three months to the Oba-in-Council, for ratification, the name of the candidate who enjoys the support of a majority of the particular Ruling House. If the Ruling House so entitled failed to do so within the period prescribed, the Ruling House next entitled shall present a candidate within one month of such failure. The Oba-in-Council shall ratify the selection within fifteen days. The candidate so selected shall thereafter be recommended by the Oba for approval and recognition by the Executive Council.
Until approval and recognition by the Executive Council, it seem to me obvious that the exercise of selection and nomination remains incomplete. This is because the Executive Council has a discretion to accept or reject the candidate recommended for appointment – S.9(1) of Edict No.2 of 1975, or S.22 of Law No.6 of 1981. The Executive Council may even reject a candidate who is in all respects qualified to be appointed and where the procedure for making the appointment have been complied with, if it is in the interest of peace, order and good government to do so. S.9(3)(e) of Edict No.2 of 1975, now S.22(2)(e) Law No.6 of 1981. The decision of the Executive Council is before Oct. 1, 1979 final. Since Oct. 1, 1979, the Governor’s decision under S.22(2) of Law No.6 of 1981 is not final. It is important to observe that section 1(1) of the Oba and Chiefs of Lagos Edict 1975 provided for the principles to guide the selection and appointment of traditional Chiefs. This is now section 6(1) of the Oba and Chiefs of Lagos Law No.6 of 1981.
The Customary law governing the selection, appointment and recognition of traditional Chiefs shall be contained in the Declaration made by a Committee for the selection of traditional Chiefs and registered with the Ministry of Local Government and Chieftaincy Affairs to be retained in safe custody (see 2(1) of Edict No.2 of 1975, and S.10(1) of Law No. 6 of 1981. The matters stated therein shall be deemed to be the customary law regulating the selection of a person to be the holder of the Chieftaincy to the exclusion of any customary usage or rule. – See S.2(2) of Edict No.2 of 1975, S.10(1) of Law No.6 of 1981.
The Declaration shall contain (a) the number of the Ruling Houses, and their identity, (b) the order of rotation of the right to fill the vacancy (c) the method of selection by the Ruling House.- See S.1(1) of Edict No.2 of 1975, and S.6(1) Law of 1981.
Where the Declaration made by the Committee is obscure or insufficiently states the customary law, the Executive Council or now, the relevant Commissioner may refer the Declaration back to the Committee for further consideration – Section 1(3). The Executive Council and now the Commissioner is empowered to make, vary or revoke the standing orders for the proceedings of the Committee, the time within which the Declaration may be made or the form in which it should be made.
A Declaration takes effect on registration.
The Executive Council, (and now the Governor) is not obliged to approve a registered declaration, or amended declaration. It may refuse to approve where it is not satisfied that the customary law stated is true, or the statements inaccurately or insufficiently declare the customary law regulating the selection of a Chief, or where it does not contain a sufficient description of the method of selection of the chieftaincy; or where it contains errors as to form or substance; or is otherwise faulty or objectionable. In any of these cases, the Executive Council and now the Governor may require the Committee to amend the declaration in the way it may specify, or to make a new declaration as it may consider necessary. – See S.12 Law No.6 of 1981. The principles guiding the selection of a traditional Chief are enshrined in S.5(1) of the Edict.
It is of crucial importance to mention that section 5(2)(3) provide as follows
“(2) A candidate whose selection has been consented to by the Oba in Council shall be recommended for recognition and approval by the Executive Council.
(3) A candidate whose appointment as a Chief has been approved by the Executive Council shall be declared as “Chief-elect” and the approval shall constitute an authority for him to succeed to the Chieftaincy and to occupy and use the family Iga.”
After this by no means brief analysis of the law, I turn to the claim of the 3rd Appellant that his appointment was based on a Declaration made under section 1. Section 1 (1) of Edict No. 2 1975, has constituted a Committee in accordance with Schedule 1 to the Edict to make the Declaration. Although “Exhibit 4,” dated 27th July, 1977 and registered on the 1st August, 1977 the relevant declaration appears to have complied with the content of the customary law as required by S.1 (1); there is nothing to show that it was made by the Committee prescribed by the Edict.
Respondents have contended that the Oba and Chiefs of Lagos Edict No.2 of 1975 (as amended by Edict No.5 of 1976) under which the Executive Council purported to have approved the Declaration did not exist. Accordingly the Declaration was therefore invalid. I do not think the Oba and Chiefs of Lagos Edict No. 2 of 1975 has become invalid merely because of a false description of the amending Edict. There is no doubt that the description has not adversely affected the law. By the application of the maxim falsa demonstration non nocet cum de Corpore (persona) constat, the law remains unaffected. The mere false description does not make an instrument inoperative.
However, the same Edict was amended by the Oba and Chiefs of Lagos (Amendment) Edict No.18 of 1976. This Edict substituted a new section 2 with respect to the Registration of declarations for the original section. It came into force on the 1st February, 1975. This in my view was the amendment referred to. Learned counsel to the Appellant has ignored the rule of construction ut res magis valeat quam pereat. The Construction contended for by Appellants seem to me absurd and unmeritorious. I think the principle of construction adopted by this Court in Falobi v. Falobi (1976) 1 NMLR 169 at p. 177 is applicable. In that case Fatayi- Williams J.S.C. dealing with a matter where an application was made under the Matrimonial Proceedings and Property Act 1970 of England instead of under the Infants Law Cap.49 Laws of Western Nigeria made this most potent and beneficial declaration. He said.:
“In our view, if a relief or remedy is provided for by any written law (or by the common law or in equity for that matter), that relief seeking it, cannot be denied to the applicant simply because he has applied for it under the wrong law.
To do so would be patently unjust”.
So, in this case will it be unjust if the only fault is the citation of the wrong law, when in fact the correct law was available to the parties and to the Court.
This however, does not conclude the matter in favour of the Appellants. For the registered Declaration to be valid, it must comply strictly with the enabling provisions. It is not valid merely by virtue of its being registered.
As I have already pointed out the Declaration was not made by the Committee constituted under Schedule I to the Edict. The Executive Council cannot therefore eo ipso approve such a Declaration. The situation is not one under S.3(3) of Edict No.2 of 1975, where the Executive Council is empowered to make a Declaration by amending a registered declaration in accordance with the powers conferred on the Committee by this Edict. It was averred that the Declaration was made by the Executive Council itself when the Committee refused to make a declaration of Customary law that there is only one Ruling House namely the Muti Ruling House. This averment has not been denied. There is clearly no section of the law enabling the Executive Council to make a declaration in such circumstance. I therefore agree with the submissions of learned counsel to the Respondents that “Exhibit 4” is not valid.
On the above view the issue of any right pursuant to the invalid declaration arising therefrom and then vesting in the 3rd Appellant does not arise. – See Adam v. Duke (1927) 8 NLR.88.
The evidence before the trial Judge was that the Executive Council had refused to approve the recommendation of the 3rd Appellant. There was also “Exhibit 8” where it was clearly stated that the nomination of 3rd Appellant was not approved and that he the Governor was not going to act on the nomination of the 3rd Appellant made under “Exhibit 4.” There is no doubt section 9(1) of the Edict No.2 of 1975 gives a very wide power to the Executive Council to approve or reject a candidate recommended for appointment as a traditional Chief. The Executive Council was acting within its legal powers in refusing to approve the nomination of3rd Appellant. If the Declaration were valid, 3rd Appellant would have had rights accruing to him from the selection by the Muti Ruling House, only after the consent of the Oba-in-Council to his selection, and the Executive Council shall have approved the recommendation to them by the Oba-in-Council for this recognition. It is only after this process that 3rd Appellant would be declared by S.5(3) of the Edict as “Chief-elect.” The approval shall constitute an authority for him to succeed to the chieftaincy.
For a right to be described as having vested, it must be more than mere expectation based on anticipation of continuance. It must have actually settled on the person enjoying the right but for the mere formality of conferment. It should not be contingent on the happening of any event This position cannot be attained until the Executive Council gives its approval in accordance with S.5(3) of the Edict No.2 of 1975.
Learned Counsel to the Appellants has relied on Afolabi & Ors. v. Governor of Oyo State & Ors. (supra) for the contention that he had accrued rights which have vested at the time the appointment of 4th Respondent was made. I do not accept that interpretation of the ratio of that case.
I agree with the Court below and with the submission of learned counsel to the Respondents that Afolabi & Ors. v. Governor of Oyo State & Ors. is not of any assistance. In the first place, whereas ”Exhibit 4, the Declaration in the instant case is not a valid declaration, the Declaration of 1957 relied upon in the Afolabi’s case was recognised by the parties as valid side by side with the one made in 1982.
In the instant case the view of the Court below that the repeal of the Edict No.2 of 1975, by S.42ofthe 1981 law affected the validity of the Declaration is not as a matter of general principle correct. If the Declaration was valid, before the repeal of the Edict No.2 of 1975, it would not have been rendered invalid by the repeal. The crucial difference in the two cases is that whereas there is no valid Declaration in the instant case, there was a valid declaration in the Afolabi’s case. The two decisions are clearly distinguishable and distinct. Afolabi’s case cannot therefore be relied upon in the instant case.
I now turn to the third issue, which is a challenge to the validity of the Oba and Chiefs of Lagos State Law No.6 of 1981 on grounds of unconstitutionality. It was contended that the amendment “Exhibit 29” which sought to correct the error by stating the date it was assented to in Exhibit 29 tantamount to an amendment of the law without complying with section 94 of the Constitution 1979. The validity of the appointment of the 4th Respondent as Chief Onikoyi rests entirely on this issue.
Learned counsel to the Appellants has contended that the Oba and Chiefs of Lagos State Law No.6 of 1981 “Exhibit 17” is unconstitutional having not received the Governor’s assent. Accordingly the appointment of the 4th Respondent is invalid. He goes further to submit that the declaration of customary law dated 13/10/82 Exhibit 9 under which the 4th Respondent was appointed having been made by virtue of the void law, without seeking a fresh nomination and a fresh approval the appointment itself relying on the first void law is void. It is not saved by the subsequent declaration “Exhibit 9A” made on the 29th November, 1982. The position, it was submitted, is as if no nomination had been made. Learned Counsel pointed out that the error could only have been cured by calling for a fresh nomination under “Exhibit 9A” and another approval after the nomination. The contention of learned counsel is that “Exhibit 9A ” purports to validate the nomination of the 4th Respondent without specific reference in the Declaration.
Concisely stated, the contention of Appellants is that the enabling legislation, that is, the Oba and Chiefs of Lagos State Law No.6 of 1981 having not received the assent of the governor is unconstitutional and void. Accordingly the declaration made under the law are themselves void.
The contention of the Appellants that publication of a corrigenda about the assent to a legislation is quite ingenious, But the argument seems to have ignored the substance for the form. There has been no dispute that the Bill went through all the three stages in the legislative process in compliance with section 94 of the Constitution 1979. The corrigendum which appeared in “Exhibit 29” was intended for the correction of an obvious Printer’s error. Nothing was added or removed from the of the legislation. In short it is not in any sense a different law and therefore an amendment to the law.
The corrigendum is a normal practice in publishing legislation for the correction of ineffectual printing errors which do not affect the substance or form A of the legislation itself. This is one such form and cannot be correctly regarded as an amendment.
The principal being valid, the Declaration made under it in compliance with the enabling provisions is also valid.
I think “Exhibits 9 and 9A” are validly made.
It should be borne in mind that “Exhibit 9” the first declaration, was made under section 2(2) of the Oba and Chiefs of Lagos Edict No. 2 of 1975; repealed by section 42 of the Oba and Chiefs of Lagos Law No.6 of 1981 which came into force on the 18th November, 1981. As long as the declaration was made under a valid exercise of enabling powers, the repeal of the enabling law did not affect the validity of anything duly done under the enactment – See Ogamioba v. Oghene (1961) 1 All NLR.59; (1961) 1SCNLR 115 Tuke v. Queen (1961) 1 All NLR.258; (1961) 1 SCNLR 357 S.6 (1) (b) of the Interpretation Act 1964. On the 13th October, 1981 when “Exhibit 9 ” was made, the Oba and Chiefs of Lagos Edict No.2 of 1975 was still in force. For the avoidance of doubt I have to point out that on a careful reading of Exhibit 9, I find no erroneous statement which has affected the substance of the Declaration. The recital of the approval by the Executive Council, by a consequential amendment under the Constitution should read the Governor. I have already stated that the false description that the amendment was made under a non-existent law did not affect the operation of the law. The question of the consent of the Ruling House was not an issue.
It is pertinent to observe that “Exhibit 9A” was made on the 20th November, 1981, two days after the enabling law, the Oba and Chiefs of Lagos Law No.6 of 1981, came into force. The validity of “Exhibit 9A.” under which declaration the 4th Respondent was selected and nominated for the position of the Chief Onikoyi of Lagos is therefore not in doubt. Stricto sensu, there is no amendment in Exhibit 9A as to the number, identity of the Ruling Houses, the persons being proposed by the Ruling House entitled to fill the vacancy and the method of nomination by the Ruling House. The Dosunmu Ruling House had since 18th April, 1979 selected the 4th Respondent as the candidate to fill the vacancy.
It is also significant to observe that the 4th Respondent was presented to the Oba-in-Council on the 30th December, 1981 after the coming into force on the 18th November, 1981, of the enabling law. – See Exhibits 27, 28.
Appellants have contended that Exhibit 9 being the exercise of a delegated power is invalid. This is based on the principle that a delegated power cannot be delegated Delegatus non potest delegare. The contention seems to me a misapprehension of the purpose of the exercise and a misunderstanding of the relevant provisions of section 6(1)(2), 10,11 of the Oba and Chiefs Law 1981. The enabling provisions are for a declaration of the governing customary law by the Chieftaincy Committee. It is accepted that customary law is a question of fact to be proved in each case. A registered declaration of the fact will obviate the necessity of proof on each occasion. It is not an exercise of legislative powers.
Now the Oba and Chiefs of Lagos Law No.6 of 1981 has made identical provisions with respect to the law relating to the selection, nomination, appointment of Chiefs as with the repealed law. Hence the Declaration Exhibit 9A made under section 6 of the present law was in compliance registered on the 20th November, 1981.
Chief Benson for the Appellant has argued that the nomination of the 4th Respondent ante dating the registration of the Declaration renders the nomination invalid. I do not think so. 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- See I.G.P. v. Marke (1957) 2 FSC. 5; (1957) SCNLR 53. Accordingly the words should be construed to give effect to such purposes. See Mobil v. FBIR (1977) 3 SC.53. A reading of the provisions of section 6 shows that a Declaration is not an enabling instrument. It merely gives the guidelines which must be adhered to by those nominating candidates. It has been provided in the interest of clarity and uniformity. It is true a declaration comes into effect on registration – See S.10(2). It is deemed the customary law regulating the selection of a person to be the holder of a recognised chieftaincy to the exclusion of any other customary law or usage. I do not understand the provision to mean, and it should not be taken to mean that a nomination made before the registration of the Declaration which in all respect conforms with the subsequent Declaration will be invalid. There is no provision that a nomination cannot be made before registration of the Declaration. Such construction cannot be even by implication from the words of the section. The exercise of nomination is different from the making of a Declaration…Whereas the selection etc. is made by the Ruling House, the Declaration of customary law is made by the Chieftaincy Committee of the Local Government Council.
Exhibit 9A is valid and the nomination of the 4th Respondent is not invalid merely because it was made before the registration of the Declaration. The only disqualifying feature of a nomination is where it can be shown that there was non-compliance with the registered declaration and accordingly the customary law governing the selection and appointment of the Chieftaincy… This is because the nomination does not derive its validy from the Declaration but the Customary law so declared. Since it has not in the instant case been shown that the nomination did not conform with any of the prescribed conditions and the customary law in the declaration, the nomination remains valid.
I now turn to the fourth issue whether Exhibit 9A is a reflection of the true customary law on the Onikoyi Chieftaincy as can be gathered from the various inquiries conducted by the Lagos State Government.
Now the crux of the contention between the two branches of the Onikoyi Chieftaincy is the argument whether there is only one Ruling House as claimed by the Muti Ruling House, or two, as claimed by the Dosunmu Riling House. Several Exhibits tendered in this case clearly disclose that the predominant view is in support of the existence of two Ruling Houses of the Onikoyi Chieftaincy Family. These are the Muti and the Dosunmu. For instance Exhibit 2, Report of the Standing Tribunal of Inquiry into Onikoyi Chieftaincy, referred to as the Hotonu Tribunal. The Declaration of the White Cap Chiefs Exhibit 37 – The Governors Speech, delivered on 30/9/81, Exhibit 8; there were also Exhibits 18, 19, and 20, 25, 29 all these declared the existence of two ruling houses.
It was therefore right for the Declaration in Exh.9 to state that there arc two ruling houses consistent with the preponderance of evidence on the issue. These overwhelming support for the existence of two ruling houses backed by the historical fact of Dosunmu Onikoyi who reigned between 1860-1891 strengthened the resolved of the Lagos State Government to come out unequivocally in support. There was uncontradicted evidence that 4th Respondent is the grandson of Dosunmu Onikoyi and therefore traces his descent and claim to the Onikoyi Chieftaincy by blood. There was also evidence which was undisputed that the Muti branch has enjoyed an uninterrupted accession to the Onikoyi Chieftaincy since after the death of Dosunmu Onikoyi in 1891.
The Dosunmu branch has not had the chance to present a candidate. Dosunmu Onikoyi through who the branch derives their claim has been the only one. The last Onikoyi was Edwin Bajulaiye, of the Muti branch whose death in 1966 has given rise to the dispute and consequent litigation. It has been agreed by all those who support the two Ruling Houses rule that it is now the turn of the Dosunmu House.
Pursuant to the Oba and Chiefs of Lagos Law No.6 of 1981, the appropriate authority invited the Dosunmu Ruling House to nominate a candidate for succession to the vacant Onikoyi Chieftaincy – See “Exhibit 19.” The selection of the 4th Respondent was made by the Dosunmu Ruling House – See Exhibit 28A. The 4th Respondent was accordingly nominated, and approved by the Governor of Lagos State as Onikoyi of Lagos under sections22(1) and 22(3) of Law No. 6 of 1981, with effect from 13th December, 1981. See “Exhibit 20” Exhibit 28 and Lagos State Legal Notice No.2 of 1982, of 21st January, 1982, 4th Respondent therefore satisfied every requirement prescribed by law for accession to the Onikoyi of Lagos Chieftaincy, See section 17(1) (e) (i), 18 of Law No.6 of 1981. In the circumstance it is unfair to accuse the Lagos State Government of partisanship in the dispute, or to allege malice because of the speed with which the nomination by the Dosunmu Ruling House and the approval of 4th Respondent as the Chief Onikoyi of Lagos by the Governor was conducted. The Lagos State Government acted within its legal rights. Malice cannot legitimately be inferred from the fact that the 3rd Respondent lost in the ensuing legal encounter.- See Mayor, etc. of Bradford Corporation v. Pickles (1895) A.C.587. The last issue for determination is the general issue whether the Count of Appeal was right in dismissing the appeal of the Appellants and affirming the decision of the learned trial Judge
I have discussed both the law and the facts involved in this appeal and argued before both courts below. The Court of Appeal has affirmed all the findings of fact made by the trial Judge. Learned Counsel to the Appellants Chief Benson S.A.N., has not adduced any reasons why the Court of Appeal ought not to have affirmed all or any of them, or why this Court should not also agree with the Court below. In the circumstances this Court accepts the findings of facts being the concurrent findings of two lower courts.
I accept the construction of the law that “Exhibit 4″ on which the 3rd Appellant relies is invalid. It therefore was not, in accordance with section 1(1) of Edict No.2 of 1975, and could not have been the customary law of the Onikoyi chieftaincy. Furthermore, since 3rd Appellant’s nomination was not approved by the Governor, he acquired no right by the nomination which could have vested in him if he was validly nominated and approved by the Executive Council. Accordingly he had no rights which surviced the repeal of the Oba and Chiefs of Lagos Edict No.2 of 1975 and which could be recognised by sections 43, 44 of the Oba and Chiefs of Lagos Law No.6 of 1981.
On the other band the 4th Respondent was validly nominated by the Dosunmu Ruling House whose turn it was to present a candidate for the Onikoyi Chieftaincy. The Oba and Chiefs of Lagos Law No.6 of 1981, was validly made and the Declaration of Customary law made there under was valid. The 4th Respondent having satisfied all the prescribed conditions for accession to the Onikoyi Chieftaincy the trial Judge was right in dismissing the claims of the Plaintiffs. The Court not Appeal was right in affirming the decision of the trial Judge.
The appeal of the Appellants fail on all the grounds of appeal filed and argued. The appeal is accordingly dismissed.
Appellant’ shall pay N500 as cost, to each set of Respondent.A. O. OBASEKI, J.S.C.: I have had the advantage of reading in draft the judgment just delivered by my learned brother. Karibi- Whyte. J.S.C. and I find that his opinions on all the issues raised for determination in this appeal accord with mine. I therefore adopt tem as my own.
The appeal fails and I hereby dismiss it. The appellants shall pay each set of respondent costs fixed at N500.00.