Oba Oyebade Lipede, The Alake Of Abeokuta & Ors V. Chief Adio Sonekan & Anor (1995)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

The plaintiffs’ (herein respondents’) claim against the six defendants (2nd to the 6th, who are now appellants herein) contained in their Writ of Summons filed in the Ogun State High Court and dated 19th of July, 1984, is as follows:-

“(a) A declaration that the Itoko Customary Law in Abeokuta affirmed in writing by the Chiefs and people of the area in 1958 and 1968 on the appointment of a candidate to the Ashipa Egba Chieftaincy Title classified as a minor chieftaincy Title is to the effect that such appointment has to be made in rotation between the Balogun line of Chiefs and the Jagunna line of Chiefs both of Itoko Abeokuta.

(b) A declaration that the application of the 1957 registered declaration in respect of the Ashipa Egba Chieftaincy Title has been revoked by virtue of W.S.L.N. No.6 of 1976 and that the purported appointment of the 3rd defendant as Ashipa Egba from 1st May, 1984, made mala fide by the 2nd, 3rd, 5th and 6th defendants by the application of the 1957 registered declaration is illegal null and void.

(c) An Order directing the 2nd defendant to perform his statutory duty as prescribed authority bona fide under the Chiefs Law – to wit: to approve the appointment of the 1st plaintiff as the holder of the Chieftaincy Title of Ashipa Egba which had been made and notified to him for approval by those entitled to do so under Itoko Customary Law.”

Pleadings were ordered, filed and exchanged by the parties. While the respondents eventually amended their Statement of Claim, the 2nd to 6th appellants did the same by amending their Statement of defence.

The facts of this case arose out of a dispute between the respondents and the appellants relating to the Ashipa Egba Chieftaincy which prior to 1976 was a recognised chieftaincy to which part 2 of the Chiefs Law Cap. 19, Laws of Western Region of Nigeria, 1959 applied and had a registered Chieftaincy Declaration. By virtue of section 9 of the Chiefs Law (supra), the registered declaration became the only Customary Law applicable to or regulating the filling of the vacant title of Ashipa Egba.

The Chieftaincy declaration in respect of Ashipa Egba vide Exhibit 18 it will be recalled was put to use in appointing the two immediate past Ashipa Egba called Chiefs Ogundipe and Bolarinwa in 1958 and 1968 respectively.

The respondents’ case is that according to the customary law of Itoko to which the Ashipa Egba Chieftaincy is associated, there are only two lines of Chiefs viz, the Balogun and Jagunna, entitled on rotational basis, to fill any vacancy in the Chieftaincy. They contended that the 3rd appellant does not belong to any of the two lines of Chiefs and has no right to become Ashipa Egba. They tendered two letters (Exhibits 1 and 2) forwarded to the Alake of Egbaland in 1958 and 1968 as part of the Customary Law governing the appointment of an Ashipa Egba and contended that Exhibit 18 (the 1958 registered Declaration) is no longer applicable and that 1st respondent having been appointed by the Ologun Chiefs of Itoko as Ashipa, the 2nd appellant should be compelled to approve his appointment.

The appellants on the other hand contended that the only customary laws relevant for the succession to the Ashipa Egba Chieftaincy is the 1958 registered declaration viz. Exhibit 18 notwithstanding the deletion of the chieftaincy (Ashipa Egba) from the list of recognised chieftaincies by W.S.L.N No.6 of 1976, adding that the appointment of 3rd appellant was based on Exhibit 18 simpliciter.

In its judgment delivered on 10th July, 1985, the High Court (per Adegboyega Odunsi, J.) dismissed the respondent’s claim.

Aggrieved by the said decision the respondents appealed to the Court of Appeal sitting in Ibadan on seven grounds. That court (hereinafter referred to as the court below) (per Kutigi, J.C.A.) (as he then was), Omololu- Thomas and Sulu Gambari, JJ.C.A.) allowed their appeal in part.

Being dissatisfied with this decision, the appellants (without 1st defendant) have appealed to the Supreme Court on ten grounds contained in their Notice of Appeal filed on 8th of July, 1988.

Parties exchanged briefs of argument in accordance with the rules of this Court. The appellants formulated five issues which the respondents in turn have adopted as follows:-