Chief Jimoh Abolarin & Ors V. Prince Abiodun Ogundele & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SOTONYE DENTON-WEST, J.C.A. (Delivering the Leading Judgment)

Once more it seems chieftaincy tussle is a constant factor that causes unrest amongst our kindred within the family lineage. This of course was the crux of this appeal which emanates from the Omu-Aran Division of the High Court of Kwara state, coram M.A. Gafar J, where the respondent was the claimant, whilst the appellants were the defendants at the lower court. The respondents sought the following reliefs against the appellants thus:

1. Declaration that the lineages of Omotobi Aroge Ijodekun and Awosilo, being direct descendants of Amunyunbole, the founder of Omido, are entitled to present/produce Oba for Omido.
2. Injunction, restraining the 6th Defendant and the lineage of Eniayewu from presenting a candidate for the stool of Oba of Omido to the 1st and 5th Defendants.
3. Injunction restraining the 1st – 5th Defendants from accepting, for consideration/installation/appointment, any candidate from Enioyewu lineage of Amunyunbole’s Ruling House, Omido.
4. Order nullifying the presentation, appointment/installation of the 6th Defendant by Enioyewu’s lineage and 1st – 5th Defendants or of any other person from Eniayewu’s lineage of Amunyunbole’s Ruling House, as Oba of Omido/or Aropa of Eka Apa or by whatever other description.
5. Order directing the 1st – 5th Defendants to limit their choice of Oba of Omido to the claimant and the other to candidates earlier presented to them, the three being from Omotobi Aroge Ijadekun lineage of Amunyunbole Royal/Ruling House.

The lower court granted all the reliefs except relief 5 in his judgment delivered on Wednesday, the 28th day of July, 2010.

The following are the reliefs granted

1. A declaration that the 1st – 5th defendants, acted contrary to the established procedure of Eku-Apo law applicable in Omido by directing the Amunyunbole ruling house to nominate three candidates.
2. An order nullifying the purported nomination, selection or installation of the 6th defendant as Oba of Omido.
3. An order directing the 1st – 5th defendants to re-commence the process by calling on Amunyunbole ruling house to nominate a candidate for the stool of Oba of Omido.
4. An order of injunction restraining the 1st – 5th defendants from accepting, selecting or parading the 6th defendant as the Oba of Omido and the 6th defendant from so parading himself,

The appellants are dissatisfied; hence this appeals on 25th day of January, 2011.

The appellants represented by Toyin Oladipo Esq. adopted their Appellants’ brief of argument dated and filed on 28/10/2010. The appellants similarly adopted the reply brief dated 29/11/2010 and filed 30/11/2010, the counsel prayed the court to grant the appellants, appeal.

The respondent’s counsel O.S. Ogidiolu Esq. adopted the respondents brief dated and filed on 22/11/2010 and prayed this court to dismiss the appeal and uphold the judgment of the lower court. He further argued that he need not file a cross-appeal in respect of Exhibit 13 and he further cited two additional authorities i.e. contract Resources (Nig.) Ltd. & 10r v. Dorunic Wende (1999) 5 NWLR (Pt 544) and Chief Emmanuel Ogunbadejo v. Otunba A.C.A Owoyemi (1993) 1 NWLR (pt 271) 517 at 534.

The appellants distilled five issues for the determination of this appeal thus:

1. Was the trial judge right when he held that the Alapa of Omido is not recognized by the Governor of Kwara state as defined in the chiefs (Appointment and Deposition) Law and the Respondent was therefore not required to pay the N100, 000.00 deposits for the court to have jurisdiction?
2. Whether the lower court ought to have disregarded exhibits 3 and 4 which were not written in English language and whose translator did not testify.
3. Whether the lower court was right to disbelieve DW1’s evidence that the protest of the Amunyunbole family was late and whether the respondent having fully participated in the selection process and lost is not estopped from or has not waived his right to complain against the procedure adopted by the Kingmakers of Omido.
4. Whether the respondent proved the existence of Omotobi Aroge Ijadekun lineage.
5. Whether the respondent proved the custom of Omido on the selection of Aropo and whether it was a breach of that custom for the Kingmakers to ask for three (3) names or nominations.

The respondent adopted intoto, issues 1, 3, 4 and 5 as formulated in the Appellants’ brief of argument and recoursed issue 2 thus:

“Whether the lower court ought to have expunged Exhibits 3 and 4 from the record and whether failure to do so has occasioned a miscarriage of justice.”

In determining this appeal all issues will be resolved seriatim.

ISSUE ONE

Was the trial judge right when he held that the Alapa of Omido is not recognized by the Governor of Kwara State as defined in the chiefs (Appointment and Deposition) Law and the Respondent was therefore not required to pay the N100, 000.00 deposits for the court to have jurisdiction.

The learned counsel to the appellant submitted that the lower court erred in overruling the objection of the appellants on the issue. He argued that the error occurred because the lower court interpreted “recognize” used in the definition of “Chief’ to mean “granted”. He submitted that in the chiefs (Appointment and Deposition) Law of Kwara State, a person or a stool is a chief once he is recognized by the Governor as such, he may be graded or ungraded because grading is not a requirement of the definition of even section 15 (1) of the law.