Prince Ademolu Odeneye Vs Prince David Olu Efunuga (1990) LLJR-SC

Prince Ademolu Odeneye Vs Prince David Olu Efunuga (1990)

LawGlobal-Hub Lead Judgment Report

KARIBI-WHYTE, J.S.C. 

On the 18th day of April, 1988, the Court of Appeal, Ibadan Division, dismissed the appeal of the defendants/appellants against the judgment of Sonoiki, J. of the High Court of Ogun State, sitting at Shagamu and delivered on the 28th November,1986. This appeal before us by Prince Odeneye, the 5th defendant, dated 22/4/88 is against the judgment of the Court of Appeal just referred to.

The issues for determination before this court are as formulated by learned counsel to the 5th defendant/appellant. They are entirely based on the determination of the question whether the procedure adopted in the election of Prince Odeneye as the Alakenne of lkenne, is in accordance with the enabling customary law declaration, and are as follows-

(i) Whether the plaintiff has locus standi to bring this action; and

(ii) Whether paragraph (v) of the declaration relating to the Alakenne of Ikenne chieftaincy (exhibit “A”) is ultra vires section 4(2)(a)(v) of the Chiefs Law of Ogun State.

The issues will be much clearer after a recapitulation of background facts, even if cursory, leading to the institution of the action. The facts are that on thursday the 18th July, 1985, pursuant to a letter from the 4th defendant No.IDM.28/105 the Obara Ruling House, the principal ruling house, in Ikenne, there are others, and the one to which both the plaintiff/respondent, and the 1st and 5th defendant/appellant belong, held a meeting for the purpose of deciding the question of the filling of the vacant position of the Ajakenne of Ikenne chieftaincy. The 1st defendant in this case presided at this meeting. He is the Head of Obara Ruling House. The second defendant, Attorney-General of the state, is a nominal defendant. The third defendant, subsequently substituted with the secretary to the government has ministerial responsibility in chieftaincy matters. The 4th defendant is the chief executive of the Ijebu-Remo Local Government responsible for setting in motion the process of filling the vacancy, subject matter of this action.

At the aforesaid meeting of the Obara Ruling House on the 18th July, 1985, plaintiff/respondent was one of the four candidates nominated, whose names were to be and were eventually sent to the kingmakers in respect of the vacant Alakenne of Ikenne chieftaincy, purportedly in compliance with the letter No. IDM/28/105 of the 4th defendant referred to above and the Alakenne of Ikenne chieftaincy declaration 1958.

After the meeting, the plaintiff met the 1st defendant in his house and complained to him orally, and subsequently in writing, that the procedure adopted and the nomination made at the meeting of the 18th July, 1985 was contrary to the Alakenne of Ikenne chieftaincy declaration of 1958, that is exhibit A.

On the 26th day of July, 1985, the kingmakers purported to have appointed the 5th defendant, the Alakenne of Ikenne from the list of four names including the names of the plaintiff and the 5th defendant, under the Alakenne of Ikenne chieftaincy declaration 1958.

On the 29th July, 1985, plaintiff/respondent issued a writ of summons claiming, from the defendants as follows-

“i. A declaration that the purported nomination of four candidates for the vacant stool of Alakenne of Ikenne chieftaincy at a meeting of the Obara Ruling House held on 18th July, 1985, being contrary to the provisions of the Alakenne of Ikenne Chieftaincy Declaration of 1958, is null, void and of no effect.

ii. An order directing the 4th defendant to issue a fresh notice inviting the 1st defendant to summon a meeting of the Obara Ruling House for the purpose of nominating “a candidate” to fill the vacant stool of the Alakenne of Ikenne Chieftaincy in accordance with paragraph (v) of the provisions of the Alakenne of Ikenne Chieftaincy Declaration 1958.

iii. Plaintiff also claims commensurate costs against all the defendant

Prince Ademolu Odeneye, who was chosen as the Alakenne of Ikenne by the kingmakers on the 26th July, 1985, was not one of the defendants in the action brought by plaintiff on the 29th July, 1985. On the 5th August, 1985 Prince Ademolu Odeneye brought a motion seeking to be joined as one of the defendants. The application was granted and the said Prince Ademolu Odeneye became the 5th defendant.

Pleadings were filed and exchanged. Parties led oral evidence in support of their pleadings. The contention of the defendants at the trial are the same as the issues for determination formulated before this court. It was contended that paragraph (v) of exhibit “A” is inconsistent with and ultra vires sections 4, 14 and 15 of the Chiefs’ Law. Secondly, it was submitted that the plaintiff has no locus standi to bring the action and that it is only the family represented by its head who can bring this action. It was also contended that the writ of summons and statement of claim did not disclose any cause of action.

The learned trial Judge rejected all the contentions.

He held that exhibit “A”, the Alakenne of Ikenne Chieftaincy Declaration 1958 was not inconsistent with sections 4, 14 and 15 of the Chiefs Law, Cap.20, accordingly, the purported nomination of four candidates for the vacant stool of Alakenne of Ikenne Chieftaincy at the meeting of the Obara Ruling House on the 18th July, 1985 is contrary to the provisions of the Alakenne of Ikenne Chieftaincy Declaration 1958, and is consequently null and void.

On the question of locus standi, the learned Judge held that plaintiff being one of the four candidates nominated on the 18th July, 1985, and therefore has sufficient interest in filling of the vacant stool of Alakenne of Ikenne which could be adversely affected if he was denied the right to bring this action.

Learned trial Judge held that the writ of summons and statement of claim disclose a cause of action. The claims of the plaintiff were accordingly granted.

The defendants appealed against the decision to the Court of Appeal. Parties filed briefs of argument on which they relied and expatiated orally. Five grounds of appeal were relied upon. The main issues for determination formulated, which represent the kernel of the matter, were still confined to the issues of the locus standi of the plaintiff, and the validity of the nomination exercise of the 18th July, 1985. What was described therein as subsidiary issues could be subsumed under the second main issue.

The Court of Appeal dismissed the appeal and affirmed decision of the learned trial Judge that the plaintiff had sufficient interest in the subject matter of the action to enable the court to accord him locus standi.

In respect of the second main issue, the Court of Appeal construed the provisions of the Alakenne of Ikenne Chieftaincy Declaration 1958 as not inconsistent with the Chiefs Law, Cap. 20 of Ogun State, and accordingly held that the nomination made by the Obara Ruling House was not done in accordance with the requirements of exhibit “A” i.e. the Alakenne of Ikenne Chieftaincy Declaration 1958 and is therefore invalid.

The appeal was therefore dismissed and the judgment of the trial court was affirmed. The 5th defendant, Prince Ademolu Odeneye is the only appellant before this court. Appellant has filed several grounds of appeal against the judgment of the Court of Appeal referred to above. Learned senior counsel have filed briefs of argument on which they relied in their arguments before us. Learned counsel to the appellant has formulated two issues for determination which have been accepted and adopted by learned senior counsel to the respondents. The issues formulated are as follows-

“2.01. Whether the plaintiff/respondent has locus standi to bring this action for a declaration nullifying the nomination exercise.

2.02. Whether paragraph (v) or exhibit “A” is not ultra vires section 4(2)(a)(v).”

I have considered it unnecessary to reproduce the grounds of appeal because they are well covered by the formulation of the issues for determination accepted by the parties.

Before hearing this appeal, Mr. Onafowokan, S.A.N., learned counsel to the appellants observed that briefs of argument of respondents were filed out of time. Mr. G. O. K. Ajayi, S.A.N. then made an oral application and was granted extension of time within which to file his brief of argument.

I think it is more appropriate in my consideration of the issues to begin with the first, which is whether plaintiff/respondent had locus standi to bring this action. If it is shown that the respondent had no locus standi to commence the action, the appeal succeeds in limine. A consideration of the second issue therefore becomes unnecessary and irrelevant. The main contention of the appellant is that the plaintiff/respondent had no locus standi to commence this action. Learned senior counsel to the appellant cited the locus classicus of Adesanya v. President (1981) 5 S.C. 112 at p.162 (1981) 2 NCLR 358 and submitted that plaintiff/respondent had not shown that by the nomination by the Obara Ruling House of four candidates his civil rights and obligations have been violated or adversely affected. It is not sufficient to say merely that he was one of the four so nominated; and that the exercise was invalid. Again it was not the contention of the respondent that he had the right to be nominated by the Obara Ruling House to the exclusion of all others. Accordingly, the right so violated if at all, was not peculiar to the plaintiff/respondent.

It was submitted relying on Momoh v. Oloru (1970) 1 All N.L.R.117 that the plaintiff being a member of the Obara Ruling House, by itself, whose turn it is to produce a candidate for the vacant stool of the Alakenne of Ikenne Chieftaincy, and participating at the nomination meeting did not accord respondent the locus standi to institute the action. It was finally submitted that the court below was in error to hold that respondent had the locus standi to institute this action when on the pleadings there was nothing to show that his civil rights and obligations have been violated or threatened or adversely affected by the exercise complained of. Learned counsel to the appellant distinguished the decision of Orogon v. Soremekun (1986) 5 NWLR (Pt.44) 688 relied upon in the court below, on the fact, that in that case, plaintiffs pleaded the capacity in which their action was brought. This is not the position in this case.

Chief G.O.K. Ajayi, S.A.N. learned senior counsel to the respondent has in his brief of argument, which he adopted in his elaboration of the arguments before us, submitted that the court below was right when it held that a candidate at an election has an interest in its conduct, and that he therefore has the locus standi to complain about any aspect of that election which is not in accordance with the law.

Chief G.O.K. Ajayi, S.A.N., reframed what he considered to be the proper issue of locus standi for consideration in this action, as follows :

” Does the plaintiff’s capacity or position as a candidate give him locus standi to challenge the nomination exercise carried out by the Obara Ruling House.”

Having stated the contentions of the parties I shall now proceed to consider the contentions before us on the first issue. It is now well settled that locus standi is the legal capacity to institute proceedings in a court of law see Thomas v. Olufosoye (1986) 1 NWLR (Pt.18) 669.

Accordingly locus standi will only be accorded to a plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected see Adesanya v. President of the Federal Republic of Nigeria & Anor (supra); Thomas v. Olufosoye (1986) I NWLR (Pt.18) 669; A.G. Kaduna State v. Hassan (1985) 2 NWLR (Pt.8) 483. I do not think learned counsel to the appellant is correct in his criticism of the court below that respondent did not in his pleading disclose the existence of his civil rights and obligations which could be affected by the exercise of the nomination to the vacant stool of Alakenne of Ikenne.

Learned counsel to the respondent has submitted and correctly that plaintiffs complaint was about the whole exercise of the nomination leading to the appointment of the Alakenne of Ikenne, and that he therefore properly complained to those who were in charge of that exercise.

The Court of Appeal in its judgment considering this issue referred to paragraphs 1, 8, 9, 10, 11 and 12 of the statement of claim and observed that “whether or not the applicant has locus standi to sue is a matter to be determined on the state of the pleadings. The court observed that the paragraphs of the statement of claim referred to contained averments that

(a) the plaintiff is a member of the Obara Ruling House.

(b) that was the turn of the said ruling house to produce a candidate to fill the vacant stool of the Alakenne;

(c) that the plaintiff was one of those who participated at the said meeting for the selection of the Alakenne;

(d) that he was one of the four candidates who eventually got selected and presented to the kingmakers for the purpose of filling the vacant stool.

I agree entirely with the court below and the submission of Chief G.O.K. Ajayi. S.A.N. that the averments in the pleadings disclose not only that respondent is a member of the Obara Ruling House, whose turn it is to produce a candidate to fill the vacant stool of Alakenne of Ikenne, but that he not only participated at the meeting for the selection of the candidate for nomination, and also was one of the four candidates who were eventually selected and presented to the kingmakers for the purpose of filling the vacant stool. He therefore had sufficient interest in ensuring compliance with the law relied upon for the filling of the vacancy in which he is interested.

I think the facts of this case are quite different from the decision of Momoh & anor. v. Olotu (1970) 1 All N.L.R. 117 relied upon by learned counsel to the appellant. In the instant case as distinguished from Momoh v. Olotu (supra); respondent was not only a member of the ruling house as in Momoh v. Olotu, (supra), but he has actually been selected and presented together with four others to the kingmakers for the purpose of filling the vacant stool. The pleadings in the instant case have satisfied what Ademola, C.J.N. said the plaintiff in Momoh v. Olotu & Anor. (supra) lacked. He said at p.113:

“…it is not enough for the plaintiff to state that he is a member of the family he has to state further that he has an interest in the chieftaincy title, and furthermore, state in his statement of claim how his interest in the chieftaincy title arose.”

In the case respondent has shown both his interest and how it arose. In Adefulu v. Oyesite (1989) 5 NWLR (Pt.122) 377 S.C. it was held that any purported selection by the kingmakers or its approval by the governor of a person not nominated by the ruling house is an exercise in futility. In Momoh v. Olotu (supra) appellant was held not to have locus standi because he could only show that he was a member of the family, without showing any further interest he had in the chieftaincy title.

Learned counsel to the appellant contended that “the pleading that the nomination was invalid without any allegation of infraction of or its adverse effect on the plaintiff’s civil rights and obligations poses no question to be settled between the plaintiff and the appellant as to the civil rights and obligations of the plaintiff.”

There seems to me a fundamental misconception by learned counsel to the respondent about the scope of the rights of action provided under the constitution 1979. It is well settled that there is locus standi wherever there is a justiciable dispute. Section 6(6)(b) of the constitution 1979 provides that the judicial powers of the courts

“… extend to all matters between persons or between government or authority and any person in Nigeria and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligation of that person.”

There is the contention between persons about the filling of the vacant chieftaincy stool of the Alakenne of Ikenne. It is also not in dispute that respondent is one of those presented to the Kingmakers for the filling of the vacant stool. It is therefore not arguable that respondent is interested in the exercise for the filling of the vacant stool of the Alakenne of Ikenne. There was therefore clearly a litis contestatio not only between respondent and the 1st, 2nd, 3rd and 4th defendants, responsible for the faulty nomination exercise, but also the 5th defendant, who claimed to have been elected to the vacant stool of the Alakenne of Ikenne. This is what accords locus standi.

The decision of Thomas v. Olufosoye (1986) 1 NWLR (Pt.18) 669 is clearly different in that there, appellants having stated that they had no interest themselves in the office in question (Bishop of Lagos) would suffer no injury. Indeed no question of their civil rights and obligations was in issue; see also Adefulu v. Oyesile (1989) 5 NWLR (Pt.122) 377 S.C.; Maradesa v. Governor Oyo State (1986) 3 NWLR (Pt.27) 125 where like Momoh v. Olotu (supra) where it was not shown that he belongs to any ruling house entitled to present a candidate to fill any vacancy, or

(2) a member of the Orile-Owu community

(3) he was a candidate or kingmaker, there was no locus standi to bring the action.

The respondent in the instant case has been aptly described by the court below. It was said,

“He certainly is no “busy body”‘ or a “meddlesome interloper.” He has a stake a clearly defined and recognisable stake, which he wants protected. In this regard it is self evident that any wrongful procedure adopted in the selection of an Alakenne is sure to affect him adversely, as indeed he says, it has.”

I agree entirely. The subject matter of attack by the respondent is the procedure followed in the selection and appointment of Alakenne of Ikenne. There is clearly no doubt that respondent had locus standi to question the procedure followed in the purported filling of the vacant stool of the Alakenne of Ikenne and to seek for a declaration as to its validity. The learned trial Judge was right to so declare and the court below to affirm the decision.

I now turn to the contention in the second issue for determination. This issue involves the interpretation of exhibit “A” that is, the Alakenne of Ikenne Chieftaincy Declaration 1958.

Learned counsel to the appellant has submitted in his brief of argument that whereas section 4(2)(a)(v) of the Chieftaincy Law, pursuant to which exhibit “A” was made only authorises the Chieftaincy Committee of the competent council to prescribe the customary law relating to the method of nomination of each ruling house, paragraph V of exhibit “A” while purporting to do this contains a statement limiting the number of candidates eligible for nomination to one. It was then argued that the enabling provision of section 4(2)(a)(v) referred to did not authorise the determination of the number of candidates that could be so nominated. It was submitted that paragraph V of exhibit “A” which authorises the family to nominate a qualified candidate for the chieftaincy without prescribing how that “qualified candidate” is to be nominated is ultra vires the enabling provision. Learned counsel cited and relied on Nigerian Railway Corporation & Anor. v. Holloway & Anor. (1965) NMLR 237 at 241; Uta Construction & Engineering Property Ltd. & Anor. v. Pataky (1965) 3 All E.R. 650. It was finally submitted that by limiting the number of candidates eligible for nomination to one, while purporting to state the customary law relating to the method of nomination by the ruling house, paragraph V of exhibit “A” is ultra vires section 4(2)(a)(v) of the Chiefs Law and is accordingly null and void and of no effect.

In rejecting the construction by learned counsel to the appellants that paragraph V of exhibit “A” is ultra vires the provisions of section 4(2)(a)(v) of the Chief’s Law. Chief G. O. K. Ajayi, S.A.N. for the respondents submitted that the proper approach is to consider the statute as a whole. He argued that sections 2 and 15 of the Law clearly envisage a situation where the rxhibit “A” could not be in conflict with the Chiefs Law as a whole.

In his further submission with respect to the alleged conflict of paragraph v of exhibit “A” with section 4(2)(a)(v) of the Chiefs Law, learned counsel pointed out that the expression “shall include” envisages that the relevant customary law is not excluded. Learned counsel then concluded that “the most that can be said of paragraph (v) of exhibit “A” is that it not only states the customary law relating to the method of nomination, it also states that only one person can be nominated.”

Learned counsel submitted that the assertion by appellants that the number of candidates “eligible for nomination” is limited to one is not correct.

He referred to paragraph (iii) of the declaration which provides that members of the ruling house of the male line may be proposed as candidates. He submitted that many may be proposed, but only one may be nominated.

Arguing further, learned counsel submitted that the declaration is not exhaustive as to what it could contain, and it is nowhere stated that a declaration shall not contain any prohibition on the number of candidates or of persons nominated.

Finally it was submitted that the customary law of the Alakenne of Ikenne Chieftaincy is that whilst it is the ruling house which makes the choice; the only and proper function of the kingmakers is to accept or reject the person chosen by the family.

I shall now turn to the construction of the provisions of section 4(2)(a)(v) of the Chieftaincy Law of Ogun State and paragraph V of exhibit “A” the Alakenne of Ikenne Chieftaincy Declaration 1958 to determine whether or not the two provisions are inconsistent. I appreciate that exhibit “A” was made by virtue of powers vested under section 4(2)(a)(v), and is therefore a subsidiary legislation.

I shall now hereunder and for ease of reference reproduce the relevant provisions of sections 4, 9 and 14 of the Chieftaincy Law of Ogun State, Cap.20

“4. (1) Subject to the provision of this law, a committee of a competent council –

“(v) the method of nomination by each ruling house is as follows-

The ruling house whose turn it is to provide a candidate, shall nominate at a family meeting to be summoned by the head of the senior ruling house, i.e. Obara, a qualified candidate for kingmaker. The nominee will be presented to the Oliwo, and the kingmakers for acceptance at the Oliwo’s house. The Oliwo shall be the chairman at the meeting.”

Exhibit “A”, and paragraph v thereof reproduced above, was made under and by virtue of section 4(2)(a) of the Chiefs Law of Ogun State, Cap.20. It is therefore a subsidiary legislation which derives its validity from the Chiefs law, its provisions therefore, must be in conformity with the terms of its enabling law see Din v. A-G., Fed. (1988) 4 NWLR (Pt.87) 147 p.154; Macfisheries (wholesale & Retail) Ltd. v. Coventry Corporation (1957) 3 All E.R. 299 at p.302; Kaycee (Nig.) Ltd. v. Prompt Shipping Corporation & Anor. (1986) 1 NWLR (Pt.15) 180.

In construing the provisions of exhibit “A”, it is permissible and indeed, relevant and important not only to read the relevant sections of the enabling statute, but also other related sections in that statute and the statute as a whole. The primary responsibility of the court is to ascertain the intention of the legislature so as to give effect to it see Ojokolobo v. Alamu (1987) 3 NWLR (Pt.61) 377 at part 3. Such an approach provides the Judge with the key to unlock the elusive and sometimes obscure intentions of the legislation buried in ambiguous expressions.

On a careful reading of sections 4, 9 and 15 of the Chief’s Law, Cap.20, it seems to me that the Chief’s Law contemplated and envisaged the situation where a declaration of customary law could be made enabling the nomination of either a candidate, who would be appointed or rejected by the kingmakers, or candidates among who the kingmakers could appoint one. Section 9 provides that the registered declaration shall be deemed to be the customary law regulating the selection of a person to be the holder of that chieftaincy to the exclusion of any other customary usage or rule. It is instructive to refer to the provisions of section 15 which deals with the procedure to fill vacancies in ruling house chieftaincies. It could be seen from the relevant provisions of section 15(1)(a)(b)(c)(d), the expression, is “candidate or candidates.”

It is in section 15(1)(f), that the distinction was clearly made. The relevant part provides in (1)(f)(i)(ii)(iv),

“(i) if the name of only one candidate is submitted who appears to the kingmakers to be qualified and not disqualified in accordance with section 14, they shall declare him appointed;

(ii) if the names of more than one candidate are submitted who appear to the kingmakers to be qualified, and not disqualified in accordance with section 14, the names of those candidates shall be submitted to the vote of the kingmakers and the candidate who obtains the majority of votes of the kingmakers present and voting shall be declared appointed.”

Under (iv) the kingmakers are entitled to reject an only candidate if he is disqualified in accordance with section 14 of the Chief’s Law.

It follows therefore from the above that the Chiefs Law provide for the circumstances where there is only one candidate, or in the situations where there are two or more candidates. The words of section 15 are clear and unambiguous.

They do not require any interpretation and should be given their plain literal meaning. The words themselves negative the necessity of a resort to importation of section 40 of the interpretation law where the singular includes the plural and vice versa.

Similarly unambiguous and clear are the words of exhibit “A”. They should be construed in their ordinary plain meaning. Exhibit “A “, as has been shown contains the declaration of the customary law relating to the Alakenne of Ikenne Chieftaincy which regulates the selection of a person to be the holder of the recognised Chieftaincy of Alakenne of Ikenne see Edewor v. Uwegba (1987) 1 NWLR (Pt.50) 313. It is the customary law which applies to the consideration of the respondent for the vacant stool of the Alakenne of Ikenne.

As I have observed in this judgment, the words of the declaration of customary law relating to the Alakenne of Ikenne Chieftaincy, that is exhibit “A”, are clear, plain and unambiguous. If given their literal meaning, the Obara Ruling House is required at a family meeting summoned by its head to provide a qualified candidate for the kingmakers. The nominee will be presented to the Oliwo and the kingmakers for acceptance.

It seems to me that where the candidate chosen at a family meeting summoned by the head of the family is presented to the kingmakers for acceptance is qualified to be so presented, acceptance by the kingmakers is a fait accompli. They cannot refuse to appoint. see Taiwo v. Sarumi 2 NLR 106. Hence where more than one candidate is presented to the kingmakers, even if they are all qualified, the procedure is a contravention of exhibit “A” contrary to the customary law for the filling of the vacant stool of Alakenne.

The declared customary law in accordance with exhibit “A” is that ONLY ONE CANDIDATE shall be nominated at the family meeting to be presented by the ruling family whose turn is to provide of candidate. I therefore agree with the court below that the learned trial Judge was right that the declaration in exhibit A was not in conflict with its enabling law and that the nomination made by the Obara Ruling House was not done in accordance with exhibit “A “, and is accordingly therefore invalid.

The appeal of the appellant therefore fails and is hereby dismissed. The judgment of the Court of Appeal dated the 18th April, 1988 affirming the judgment of the trial Judge dated 28/11/86 is hereby affirmed. Appellant shall pay costs assessed at N500 to the plaintiff/respondent.

Other Citation: (1990) LCN/2404(SC)