Prince Adebola A. A. Adesemowo & Anor V. The Military Administrator, Ogun State & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): Upon the death in office of one Oba Daniel Sami Adetayo Kupakude IV, the Orimolusi of Ijebu-Igbo, in Ijebu-North Local Government, in May, 1994, the 5th respondent Prince Mushafau Omowale Ademola Kassim, was selected by the King-makers over and above the appellant to occupy the stool on account of which the appellant unsuccessfully challenged the said selection at the High Court of Ogun State holding at Ijebu-Igbo (the court below) resulting in a judgment of that court in favour of the 5th respondent’s eligibility for selection for the stool, occasioning the appeal along-side Appeal No. CA/I/267A/99 and Appeal No. CA/I/267B/99 which were consolidated by an order of the Court dated 2.3.06. However, on 12.2.07, Appeal No. CA/I/267A/99 was dismissed pursuant to the notice of its withdrawal filed by the appellant on 7.2.07, leaving extant Appeal No. CA/I/69/99 and appeal No. CA/I/267B/99 which shall be taken in turn in the discourse.

Confined to the kernel of the case, it was the appellant’s stance that Ojuromi Ruling House was to produce the next Orimolusi of Ijebu-Igbo; three members of the Ruling House were initially nominated as candidates to vie for the vacant traditional stool; the appellant, a son of a previous Orimolusi of Ijebu-Igbo from the male line of Ojuromi Ruling House, was among the initial three candidates; the 5th respondent and four other candidates from the female line of Ojuromi Ruling House were subsequently added to the original three candidates after due pressure was successfully exerted on the chairman of the meeting of the Ruling House; eight candidates eventually emerged to vie for the stool and were presented to the nine (9) King-makers for the selection exercise: The Kingmakers met on 6.1.1997 for the selection exercise; among the 9 Kingmakers were four unqualified members or King-makers – one Chief Mustapha Odejayi, the Oliwo of Ojowo, now deceased, the 6th respondent, one Chief Salisu Oseni, the Apena of Ojowo, one Chief J. A. Onadeko, the Pampa of Japara, now deceased, and the 8th respondent one Chief Olusoga Fuwa, the Agbon of Ijebu-Igbo; notwithstanding their disqualification the 6th respondent, Chief Mustapha Odejayi, (the Oliwo of Ojowo), Chief J. A. Onadeko (the Pampa of Japara) and the 8th respondent whose title was stripped before the exercise sat and participated in the selection exercise by voting which resulted in the emergence of the 5th respondent with 6 votes against the 3 votes of the appellant as the Orimolusi – elect of Ijebu-Igbo.

Unconvinced of the selection exercise, the appellant challenged it before the court below on the double barrel grounds that by the Registered Declaration of Orimolusi Chieftaincy (the Declaration) regulating the selection and appointment of the Orimolusi of Ijebu-Igbo, the 5th respondent from the female line of Ojuromi Ruling House was not eligible to contest for the vacant stool and, that the participation of four of the King-makers who were, according to the appellant, not qualified to participate in the selection exercise marred the selection exercise. After the court below heard evidence from the parties and their witnesses and took written submissions for and against the suit, it held that only one of the King-makers Chief J. A. Onadeko, now deceased was not qualified to participate in the selection exercise and that the 5th respondent was in virtue of the Declaration eligible to vie for the stool.

Obviously unhappy with the decision of the court below, the appellant appealed in an original notice of appeal with eight grounds of appeal appearing at pages 462-473 of the record of appeal (the record). The notice of appeal was subsequently amended on 16.0.02, bringing the grounds of appeal to eleven (11), which were filed on 23.9.02, questioning the decision of the court below.

In a laborious further amended brief of argument comprising 32 pages, the appellant extracted eight issues for determination on the appeal at pages 2-3 thereof this way-

1. Whether the learned trial Judge was right in his interpretation of “Male Lineage” as contained in Registered Chieftaincy Declaration for the Orimolusi of Ijebu-Igbo as any male descendant (i.e. in the context of Exhibit A).
2. Whether the learned trial judge was right in holding that the 5th respondent is or male lineage and is eligible to contest for the Orimolusi Chieftaincy title with qualified candidate(s) of the male lineage on 2/1/97 and 6/1/97 having regard to the provisions of the Orimolusi Registered? Chieftaincy Declaration and the fact that the 5th Respondent’s relationship to the Ojuromi Chieftaincy family is through his mother.
3. Whether the learned trial judge was right to hold that the kingmakers at their meeting of 6/1/07 complied inadvertently with the Orimolusi Registered Chieftaincy Declaration when there is uncontradicted evidence of DW1 and DW6 who were present at that meeting to the contrary.
4. Whether the learned trial judge was right to have accepted the evidence of the DW3; which is contradictory to the pleadings to validate the appointment of Chief Mustapha Odejayi, (the Oluwo of Ojowo, the 8th Defendant at the lower court) and Chief Salisu Oseni (the Apena of Ojowo), the present 6th Respondent.
5. Whether the learned trial judge was right to have based his judgment on the evidence of the DW3, which is contrary, and at variance with and short of the evidence, he had accepted as proved to be the custom in the appointment of Oliwo, Apena and Pampas in Ijebu-Igbo in validating the participation of the said Chief Mustapha Odejayi & 6th respondent in the meeting of the kingmakers of 6/1/97
6. Whether the learned trial judge was right in 1997 to have proceeded further to determine the validity of the process of the removal of the 8th respondent after having held that the said 8th respondent received his removal letter sometimes in 1989 from the late Orimolusi of ljebu-Igbo.
7. Whether the learned trial judge was right to have relied on the provision of section 25 of the Chief’s Law of Ogun State and also at the same time putting the burden of proof that the prescribed Authority complied with the Law of Natural Justice and provisions of the Chief’s law before removing the 8th respondent on the appellant.
8. Whether the trial judge has the jurisdiction to determine the validity of the 8th respondent’s removal as at 1997 having regards to the Ogun State Chief’s Law and the statute of Limitation.”

Issues 1 and 2 covering grounds 1, 2, 3 and 11 of the notice of appeal were argued together to the effect that Exhibit ‘A’, the Declaration, regulated the selection exercise of the Orimolusi of ljebu-Igbo stool by providing these category of eligible candidates – a member of the Ruling House of the male line including sons of a previous holder of the title in the first instance; or a member of the Ruling House of the female line as the last option, if there are no members of the male line and/or sons of a previous holder of the title of the male line – but contrary to the cases of Fortune International Bank Plc v. Pegasus trading Office (2004) 11 FWLR (pt 234) 1 at 14, A/G of Bendel State v. A/G of the Federation (1981) 10 SC 1, London Transport Executive v. Betts (1959) A.C 213 and Knight, Frank & Rutley Nig. Ltd. v. A/G of Kano State (1998) 7 NWLR (pt. 556) 1 at 24, the court below ignored the proviso to paragraph (iii) (b) of the Declaration against the grain of the legal, ordinary and natural meaning of the words “Male line” appearing in the Declaration to equate the phrase to “male descendants” when the two phrases are not interchangeable vide Stroud’s Judicial Dictionary 1606, D. Amico v. Trigona 13 A.C. 815 and Allen v. Grane (1953) ALR 959; and that if the court below had construed the clear and unambiguous words of the Declaration with the proviso in paragraph (iii) (b) thereto it was bound to come to the conclusion that an eligible candidate for the vacant stool must be a member of the relevant Ruling House of the male line including sons of previous holder of the title, provided succession may devolve on a candidate of the female line of the Ruling House where there is no qualified candidate of the male line, therefore the court below was wrong when it “neglected” the said ordinary meaning of the words in the Declaration that were in line with the evidence of the PW6 and the PW8 to hold that a male descendant of Ojuromi and all male descendants of previous holders of the title whether from the male or female line of Ojuromi were qualified at the same time to vie for the stool of Orimolusi of Ijebu-Igbo.

It was further submitted that following the natural and ordinary construction of the Declaration and discarding the erroneous interpretation of the Declaration given by the court below, the appellant who is the son of Moses Oduwole whose father was late Oba Abraham Adesemowo, the first crowned Orimolusi of Ijebu-Igbo who reigned between 1929-1947, is a member of Ojuromi Ruling House and a son of a previous holder of the title from the male line as defined in the case of Olanrewaju v. Governor of Oyo State (1992) 9 NWLR (pt. 265) (pagination not supplied) and is, also, from the male line of the Ruling House having traced his genealogy or descent through unbroken male line from Oba Abraham Adesemowo to Ojuromi, the progenitor or founder of the Ruling House, was primarily entitled to vie for the stool to the exclusion of the 5th respondent of the female line of the Ruling House, therefore the nomination of the 5th respondent from the female line and other candidates of the female line at the meeting of the Ruling House as candidates at the selection exercise and subsequent selection by the King-makers were improper, ultra-vires and should be declared invalid, null and void vide the cases of Chief Immuneke(?) & Ors. v. A. G. Bendel State (1992) 6 NWLR (pt. 248) 396, Mcfoy v. U.A.C. (1952) A.C. 152, Adelaja v. Oguntayo (2001) 6 NWLR (pt. 710) 593.

Issues 4 and 5 for grounds 5, 6 and 11 were taken together to the inclination that the court below found at page 425 and page 430 of the record that the appellant pleaded and proved by credible evidence the customary law regulating the appointment of Oliwo, Apena and Olotu Pampa of each of the five quarters of Ijebu-Igbo agreeing invariably with the appellant that the formal presentation of the Oliwo or Apena to the Olori-Ilu, now Oba, of a particular quarter in Ijebu-Igbo, for blessing who in turn presents the appointee to the reigning Orimolusi of Ijebu-Igbo for capping and blessing evidencing the approval of the appointment before the appointee would function as a king-maker for the purpose of the Orimolusi Chieftaincy were not met by the 8th defendant cum DW3, one Chief Mustapha Odejayi, whose evidence on the said customary law fell short of proof of the customary law and, when weighed in the imaginary scale with the evidence of the PW8, (the appellant), the PW7, DW6 and Exhibit ‘B’, a letter written by the late Orimolusi, the prescribed authority, under section 16 of the Court of Appeal Act read with the cases of Lipede v. Sonekan (1995) 1 NWLR (pt. 374) 668, Highgrade Maritime Services Ltd. v. First Bank of Nig. Ltd. (1991) 1 NWLR (pt. 167) 290, Oduntan v. Aileru (1985) NWLR 92 at 97 and the unreported case of Odusole v. Governor of Ogun State & 5 Ors. in Appeal No. CA/I/152/94, the 8th defendant at the court below was not qualified to participate in the meeting of the King-makers on 6.1.97 where the selection of the 5th respondent as the Orimolusi of Ijebu-Igbo was made; all the more so by paragraph 23 of the 7th-9th, 13th-15th defendants’ second further amended statement of defence at page 265 of the record admitting paragraph 31 (a) of the second further amended statement of claim at page 189 of the record, the 8th defendant plainly admitted his appointment was not approved by the prescribed authority before the holder of the office of prescribed authority died; and any evidence from the defendants in the court below that was contrary to the said admission would go to no issue vide Woluchem & Ors. v. Gudi & Ors. (1981) 5 SC 291 at 320, Okagbue v. Romaine (1982) 5 SC 133 & Ogunleye v. Oni (1990) 2 NWLR (pt. 135) 745 at 782; nor was the court below right to hold at page 435 of the record that- “It seems to me that reference to 8th and 9th Defendant in the above recited paragraph is a grave drafting error” when the defendants relied on their pleadings at the court below, therefore it was not open to the court below to redraft their pleadings; consequently the admitted fact relieved the appellant of the burden to prove same and the court below was in error to have considered the evidence of the defendants in question which was contrary to the admission.

It was further submitted that the 6th respondent (9th defendant at the court below) though appointed Apena for the Osugbo Ojowo Quarter after the death of the last incumbent of the title, one Chief Asafe Ige, sometime in 1994, he was presented to Oba Kuyeba, the Ilori-Ilu of Ojowo whose appointment has been declared a nullity by this court in D. A. Odusole v. Government of Ogun State & Ors. Appeal No. CA/I/152/94 delivered on 23.1.2002, showing 6th respondent was not presented to the Orimolusi for the approval of his appointment before the death of the Orimolusi contrary to the evidence of the DW3 at pages 437-438 of the record that 6th respondent was presented by him to the Orimolusi for blessing and that, the 6th respondent has been receiving stipend from Ijebu-North Local Government when the said evidence was not on the custom pleaded and accepted by the court below, therefore the 6th respondent’s appointment having not been made in accordance with the customary law respecting the Orimolusi chieftaincy, the prescribed authority would be wrong to have approved the appointment vide Oladele & Ors. v. Oba Adekunle Aromolaran II & Ors. (1995) 6 NWLR (pt. 453) 180 at 293; more so there was evidence at page 285 of the record that between 1987 and the date the Orimolusi of Ijebu-Igbo died there was rift between the Olori-Ilus and the Orimolusi and; also, the DW3 (8th defendant) contradicted his earlier testimony by stating that “I do not know whether or not any person was presented to the Orimolusi as a traditional Chief from 1988 until he joined his ancestors in 1994”, therefore the court below was wrong to place heavy reliance on the evidence of the DW3 who contradicted himself in other portions of his testimony where he stated under cross-examination at page 284 of the record that the predecessor-in-title of the 6th respondent died about seven and half (7-1/2) years ago, whereas in his evidence-in-chief at page 283 of the record he stated that 6th respondent was appointed to replace the predecessor-in-title about ten (10) years ago which also ran counter to his admission that a new holder of the title was not appointable during the life-time of the incumbent title holder.

It was also submitted that the evidence of the DW3 (8th defendant) that he begged the Orimolusi did not imply that the Orimolusi approved the appointment of the 6th respondent as the Apena of Ojowo and; going by the admission of the DW3 that it was customary for a member of Osugbo “conclave” of another quarter to accompany a newly appointed officer of another Osugbo “conclave” upon the latter being presented to the Orimolusi which supported the evidence of the PW7, the secretary of all Osugbos in Ijebu-Igbo, at pages 218-219 of the record that no Oliwo or Apena was presented to the Orimolusi for the ratification of his appointment, which was also supported by the evidence of the DW6 at pages 296-298 of the record that the 8th defendant at the lower court and the 6th respondent were not presented to the Orimolusi for approval of their appointments, the court below was wrong to rely on the evidence of the DW3 (8th defendant) that the 6th respondent, though not obliged to testify, was expected to testify to clear the accusation against him did not testify, had his appointment approved by the Orimolusi of Ijebu-Igbo, consequently by section 149 (d) of the Evidence Act and the case of A. G. Kwara State V. Raimi (1993) 1 NWLR (pt. 272) 645, the silence of the 6th respondent should be construed against him that his appointment as Apena was not approved by the Orimolusi of Ijebu-Igbo; and that with the finding and conclusion of the court below that the 14th defendant at the court below, one Chief J.A. Onadeko, was not qualified to take part in the deliberation of the king-makers on 6.1.97, the body of King-makers was improperly constituted and rendered the exercise resulting in the selection of the 5th respondent as the Orimolusi null and invalid vide Young v. Imperial Ladies Club Ltd. (1920) AER 223, Oladokun v. Military Governor Oyo State & Ors. (1996) 8 NWLR (pt. 467) 387 and Odusole (supra).

Issues 6, 7 and 8 for grounds 7, 8, 9, 10 and 11 were argued together that the 15th defendant, now 8th respondent, by his evasive denial of his removal as Agbon in paragraphs 2, 6 (A) 11, 12, 13 and 14 of the second further amended statement of defence at pages 252, 259, 262 – 263 of the record, the said general denial is an admission of paragraph 12 (b) (iii) of the second further amended statement of claim at pages 182-183 of the record that by Exhibit ‘C’ the 8th respondent was stripped of his title of Agbon by the late Orimolusi, Oba Sami Adetayo vide Yesufu v. Cooperative Bank Ltd. (1989) 9 NWLR (pt. 110) 483, Overseas Construction Co. Ltd. v. Creek Ent. Etc. (1985) 3 NWLR (pt. 13) 407 at 418, so the evidence of the 8th respondent as the DW3 in that direction should not have been accepted by the court below, more so the 8th respondent did not challenge his removal during the life-time of the removing authority, the late Orimolusi of Ijebu-Igbo, and the onus was not on the appellant who was not the prescribed authority to justify the removal of the 8th respondent as the Chief Agbon; moreover, section 25(1) of the Chiefs Law relied upon by the court below to invalidate the removal of the 8th respondent as the Chief Agbon was inapplicable to the exercise of the power of removal by the prescribed authority under section 26 (1) and (3) (b) of the Chiefs Law in virtue of section 25(1) 7 (2) and parts 2 and 3 thereof, consequently the court below was wrong in holding that the prescribed authority was obliged to hold an inquiry before removing the 8th respondent as the Chief Agbon which amounted to a misdirection by the court below occasioning a miscarriage of justice and should be set aside by the Court vide Spaco Vehicle & Plant Hire v. Alrane Nig. Ltd. (1995) 8 NWLR (pt. 416) 655; and that especially in view of the fact that the 8th respondent, (15th defendant at the court below) did not pursue the internal remedies under section 26 (3) (c) of the Chiefs Law by making representation to the Executive Council of Ogun State through the Commissioner responsible for chieftaincy affairs within twenty-one (21) days from the date of his removal on 30.1.89, read with the cases of Sarumoh v. Asanike & Ors. (1996) 7 NWLR (pt 460) 370 and Eguamwense v. Amaghizewen (1993) 9 NWLR (pt. 315) 1 at 23, it was no longer open to the 8th respondent to query his removal, nor was the court below right to impose limitation on the statutory powers of the prescribed authority vide Akuneziri v. Okoro (2000) 12 SC (pt. 2) 75, consequently the reliance by the court below on the distinguishable cases of Ojo v. Governor of Oyo State (1989) NWLR (pt. 951) 12, Oyeyemi v. Commissioner for Local Government (1992) 2 NWLR (pt 226) 661 at 684-685 to invalidate the removal of the 8th respondent as the Chief Agbon on ground of denial of fair hearing and breach of section 25 (1) of the Chiefs Law when the issue was not properly raised before the court below by way of challenge by the 8th respondent that his removal was wrongful, the court below was wrong to raise the academic and hypothetical issue and wrongly placed the burden of proof of its legality on the appellant contrary to sections 135 and 136 of the Evidence Act and the presumption of regularity of official acts which was not dislodged by the 8th respondent; consequently, the appellant canvassed that the appeal be allowed on all the issues argued.

The 1st-3rd respondents’ amended brief filed on 9.3.12 identified two issues for determination as follows-

“(i) Whether the interpretation which the learned trial Judge placed on the provisions of the Orimolusi of Ijebu-Igbo chieftaincy Declaration (Exhibit A) is correct in Law?

(ii) Whether the findings of fact made by the learned trial Judge in respect of the composition of the King-makers held on 6/1/97 should be disturbed.”