Kadiri Okanola V. Chief Jonathan Abioye & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA J.C.A. (Delivering the Lead Ruling)

This ruling is in respect of an application dated 16th November, 2009 and filed on the same date praying for an order of this court deleting the names of 2nd, 4th and 7th respondents now deceased as respondents in this appeal; and for leave of the court permitting Anthony Akintunde Oyediran to join as a respondent in the appeal. The grounds for the application are set out in the motion paper. The application is supported by a 6 paragraph affidavit with one annexure, exhibit A; letter dated 7/9/09 to the Chief Registrar Court of appeal Ibadan notifying him of the death on various dates of the 2nd, 4th and 7th respondents.

In opposition to the application for joinder the 1st respondent filed, a 21 paragraph counter affidavit deposed to by one Adegoke Ogunsola a legal practitioner in the law firm of Olatoye Aminu & Co, the 1st respondent’s counsel. There are five exhibits annexed to the counter affidavit. The appellant as respondent in opposition also filed a counter affidavit of 23 paragraphs deposed to by Rashidi Isamotu, legal practitioner in the law office of O. Fagbemi & Co, appellant’s counsel.

In response to these counter affidavits, the applicant/party interested filed two separate further affidavits. The further affidavit in response to the 1st respondents counter affidavit is dated 15/2/10 and filed same day with 9 paragraphs. The further affidavit in response to the appellant/respondent’s counter-affidavit is dated 17/2/10 and filed same day with 6 paragraphs. The applicant/party interested also filed a further affidavit dated 27/4/10 on same day with 5 paragraphs and three exhibits.

In moving the application, Awoniyi Alabi Esq learned counsel for the applicant/party interested submitted that the application was brought pursuant to Section 15 of the Court of Appeal Act, 2004, Order 15 rules 1 & 2 of the Court of Appeal Rules 2011 and under the inherent jurisdiction of this court. Counsel submitted that the applicant had been a stakeholder and a necessary party in the appeal right from the lower court where his interest was represented by the deceased 2nd, 4th and 7th respondents. He further submitted that the failure of the applicant to join in the case in the lower court was a procedural irregularity which ought not to affect the present application.

Counsel relied on the case of Re Mogaji (1986) 1 NWLR (Pt.19) 759 @ 766 – 768B. Citing also the cases of Re Abacha (2000) FWLR (Pt.2) 217 @ 230. para 3 & 235. para 6: Uku v. Okumagbe (1974) All NLR 429 @ 446: Oiukwu v. Gov. of Lagos State (1985) 2 NWLR (Pt.10) 806 @ 815 G – H, learned counsel submitted that this court can join the applicant even against the wish of the other respondents. Learned counsel urged us to grant the application.

Wuraola Ogunfolabi Esq for the appellant/respondent relying on the case of Yakubu v. Governor of Kogi State (1995) 8 NWLR (Pt.414) 386 @ 402 submitted that the applicant failed to disclose to the Honourable court his interest in this appeal. Counsel contended that the applicant’s affidavit did not show that any claim was made against him in the lower court or that the judgment of the lower court affected him in any way. Counsel submitted that the case has been on for over 20 years and the applicant was aware of its pendency and waited till now to apply to be joined. Citing the case of Osho & Anor v. Foreign Finance Corporation & Anor (1991) 4 NWLR (Pt.184) 157 @ 171. Counsel urged us to refuse the application.

The 1st respondent’s counsel was absent but was duly served with hearing notice.

It is necessary to give a brief resume of the facts of this case for proper understanding or grasp of the issues involved in this application.

The dispute is in respect of the stool of Olokinni of Okinni, a minor Chieftaincy in Egbedore Local Government Area of Osun State. There are seven ruling houses namely, (1) Oluyeyin (2) Atoyebi (3) Oyewole (4) Olatunbosun (5) Abiodun (6) Kinnimofisomo and (7) Olanrewaju. Whenever a vacancy occurred, all the ruling houses except the ruling house that produced the last Olokinni vied for the vacant stool. Each ruling house nominated its candidate and forwarded same (according to the appellants) to the prescribed authority, the Oludo of Ido-Osun (the 1st defendant/appellant) for consideration and approval. The appellants claimed there were no kingmakers. But the plaintiffs/respondents disagree. Their stand is that there are kingmakers and that the names of the candidates are forwarded to Okinni Kingmakers whose duty is to consider and select a candidate out of the lot and present same to the Oludo, the prescribed authority for approval, appointment and installation.

On the death of the last Olokinni, Oba Yesufu Oyewumi, from Atoyebi ruling house on 11/6/90, the other six ruling houses except Atoyebi vied for the vacant stool and those interested submitted the names of their nominees for consideration. While the meeting of the kingmakers was on as to which ruling house to select from, a meeting was held at the palace of the Oludo where it was agreed that only the ruling houses that had produced only one Olokinni in the past should be considered in fairness to all the ruling houses. The ruling houses that fell into this category were three – (1) Oyewole (2) Kinnimofisome (3) Abiodun. Of these three ruling houses Oyewole withdrew from the race on the ground that she had no suitable candidate. The second ruling house Kinnimofisome claimed they presented one candidate Anthony Akintunde Oyediran, the applicant/party interested herein. There was however another claimant from the ruling house. So there was some kind of internal wrangling. The third ruling house of Abiodun presented the 2nd defendant/appellant. The 1st plaintiff the head of the kingmakers who was to present a candidate to the prescribed authority ignored the candidates from the recommended ruling houses and picked the second plaintif, Rufus Olaniyi Ilori (now deceased) from Olatunbosun ruling house. The prescribed authority the 1st defendant/appellant apparently cashed in on the confusion and inspite of protest from the community appointed and installed Kadiri Okanola, the 2nd defendant/appellant as the Olokinni. The 1st plaintiff Abioye, Esa of Okinni for himself and on behalf of Okinni Kingmakers with the deceased Rufus Ilori as 2nd plaintiff sued the prescribed authority, Oba Jimoh Oyeyemi, the Oludo of Ido-Osun as 1st defendant and Okanola on behalf of Abiodun ruling house as 2nd defendant. The 3rd – 8th defendants on their own as kingmakers now applied and were joined as defendants in the suit. In the suit the plaintiffs claimed as follows:

1. Declaration that it is the traditional role of Okinni Kingmakers headed by the 1st plaintiff to select a candidate for the vacant stool of Olokinni of Okinni.
2. Declaration that the selection of the 2nd defendant for the vacant stool of the said Olokinni by the 1st defendant and his subsequent installation by the 1st defendant …..is contrary to Okinni native law and custom and is therefore null and void and of no effect.
3. Declaration that the selection of the 2nd plaintiff to fill vacant stool of Olokinni is in accordance with native law and custom. 4. Injunction to restrain the 2nd defendant from parading himself as the Olokinni of Okinni or performing functions attached to the office till the determination of this suit.

The learned trial Judge granted declarations (1) and (2) above but dismissed reliefs (3) and (a). The 1st and 2nd defendants being dissatisfied with the judgment of the lower court with respect to reliefs (1) and (2) appealed to this court. It is in respect of this appeal that the applicant/party interested is seeking to be joined as a party.

This application for joinder is brought under Section 15 Court of Appeal Act, 2004 and order 15 rules 1 & 2 of the Court of Appeal Rules 2011. Order 15 Rules (1) & (2) provide:

1. “It shall be the duty of Counsel representing a party to an appeal to give immediate notice of the death of that party, to the registrar of the court below or to the Registrar of the court (as the case may require) and to all other parties affected by the appeal as soon as he becomes aware of the fact.
2. Where it is necessary to add or substitute a new party for the deceased, an application shall, subject to the provisions of Order 4 Rule 10, be made in that behalf to the court below or the court either by any existing party to the appeal or by any person who wishes to be added or substituted.”

It was stated as one of the grounds for the application that the applicant Anthony Akintunde Oyediran is a rival candidate/claimant to Olokinni Chieftaincy with the appellant; that the 2nd – 7th respondents had been defending the suit since the trial stage and up to this appeal for themselves and on his behalf. An examination of the processes filed in the lower court especially the statement of defence of the 3rd – 8th defendants at pages 11 – 18 of the record of appeal confirm that indeed the applicant is a claimant to the stool in dispute. Paragraph 6 of the statement of defence of the 3rd – 8th defendants who are kingmakers in Okinni township averred that the applicant was chosen by a majority vote of 6-3-1 to be presented to the prescribed authority for approval as the next Olokinni of Okinni.