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Prince Godfrey Kolawole Mustapha V. Governor Of Lagos State & Ors. (1987)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C.

This suit arose out of the contest for the Chieftaincy Stool of the Oloja of Igbogbo in the Ikorodu area of Lagos State. On the 29th November, 1977, the last holder of the Oloja of Igbogho Stool, Oba J.O.O. Odugbose died. The Stool thus became vacant. The present Appellant and the 3rd Respondent were the main contestants for the vacant Stool.

By Legal Notice No.6 of 1979 dated 24th July, 1979, tendered in these proceedings as Exhibit D3/A, the Military Government of Lagos State approved the appointment of Johnson Olatunji Fatola, the 3rd Respondent as the new Oloja of Igbogbo.

An instrument of appointment made under the hand and seal of the Military Administrator of Lagos State dated 29th August, 1979, and published in the Lagos State Official Gazette No. 35 Vol. 12 of 30/8/79 was given to the said 3rd Respondent. This instrument was tendered in these proceedings as Exhibit D/30.

Following these developments, the Plaintiff, contending that the 3rd Respondent was not a member of the RADEMO RULING HOUSE whose turn it was to produce the next Oloja, that the 3rd Respondent was never presented to the kingmakers and that his appointment was not only contrary to the Registered declaration on the Igbogbo Chieftaincy title but was ultra vires some sections of the Chiefs Law of Lagos State, in October, 1982 commenced a suit in the Lagos State High Court claiming the following reliefs which were later amended and read –

“(i) A Declaration that the Nomination made on the 9th January, 1979 of the 3rd Defendant or any other nomination, and the subsequent APPROVAL by the Lagos State Executive Council without the APPOINTMENT of the 3rd Defendant by the Kingmakers is invalid and ultra vires the provisions of the Chiefs Law Cap. 25 of Lagos State of NIGERIA.

(ii) A DECLARATION that the said nomination and appointment were not in accordance with the custom and customary laws of the Igbogbo people and also not in accordance with the registered declaration in respect of the Igbogbo Chieftaincy Title.

(iii) A DECLARATION that the NOMINATION of the Plaintiff by the Rademo Ruling House and the subsequent APPOINTMENT by the Kingmakers which was duly communicated to the Lagos State Government was and is valid and in accordance with the customs of Igbogbo people, and also in compliance with the Registered Declaration in respect of the Igbogbo Chieftaincy Title

(iv) A PERPETUAL INJUNCTION restraining the 1st, 2nd and 4th Defendants their agents and privies from regarding. Recognizing and dealing with the 3rd Defendant as the Oloja of Igbogbo.

(v) A PERPETUAL INJUNCTION restraining the 3rd Defendant from parading himself as and/or performing the functions of Oloja of Igbogbo.

(vi) A DECLARATION that the action of the Lagos State Executive Council in approving the “appointment” of the 3rd defendant is outside the provisions of the Chiefs Law Cap. 25 Laws of Lagos State of NIGERIA

(vii) A DECLARATION that the 3rd Defendant was never appointed within the provisions of the Chiefs Law Cap. 25 Laws of Lagos State and therefore the purported approval by the Lagos State Executive Council is null and void and of no effect.”

Pleadings were ordered filed and delivered. I do not propose to set down the pleadings of the parties except paragraphs 16, 17 and 18 of the 3rd Respondent” statement of defence in which he challenged the jurisdiction of the High Court to entertain the appellant’s claim. Those paragraphs which in my view go to the main issue to be determined in this appeal stated –

“16. This was followed by the Military Administrator of Lagos State’s Instrument of Appointment of the 3rd Defendant (The 3rd Defendant will rely on the said Instrument of Appointment as Oloja of Igbogbo.)

The 3rd Defendant’s appointment was moreover published in the Lagos State of Nigeria Official Gazette No. 35 Vol. 12 of 30th day of August, 1979. (The 3rd Defendant will rely on the said Gazette).
The 3rd Defendant contends that by virtue of Sections 25(1) and ‘2 of the Chiefs Law Cap. 25 under which the 3rd Defendant’s appointment was made, and also Section 6 of the Constitution of the Federal Republic of NIGERIA, the Plaintiff’s suit herein is legally misconceived and must be dismissed with costs”.

At the trial, the Plaintiff and his witnesses gave evidence. The 3rd Respondent gave no evidence besides tendering Exhibit D.3/A. The learned trial Judge, Ilori, J. reserved judgment on 9th November, 1984. Prior to this judgment, final addresses had been concluded on 19th July, 1984. On 4th October, 1984 the Plaintiff/Appellant made an application to amend his Statement of Claim, an application which the learned trial Judge granted after argument by counsel on both sides.

In his judgment, Ilori, J, extensively reviewed the evidence led before him and considered the plea of the Respondents herein for an ouster of jurisdiction. The learned trial judge posed two questions the first of which he answered by agreeing that –

“any action of the Executive, taken under and in accordance with the provisions of the Chiefs Law, before 1st October,1979, is protected by the ouster provisions in Sections 25(6) and 52 of the Chiefs Law and Section 161(3) of the 1963 Constitution. The law must be applied in this respect as at the time the cause of action arose, not the time the Court’s jurisdiction was invoked.”

As regards the second question –

“where immunity from Suit protects the Executive’s action taken under a particular statute, will that immunity hold good where the Executive knowingly acts in violation of and contrary to the provisions of the enabling statute The learned trial Judge held as follows –

“It is settled law that where a statute empowers an authority to perform an act upon the existence of prescribed conditions, the donee of the power has no jurisdiction to exercise the statutory power until the conditions prescribed in the statute exist. Any act done without existence of the condition precedent is a nullity and the Court will set it aside despite any provision in the statute excluding the Court’s jurisdiction……

The ouster provisions relied upon by the 3rd Defendant will not protect an action extrinsic to the Chiefs Law,a void action which does not exist at all in law. The provisions will however operate to debar the courts from exercising jurisdiction in all cases where the Executive Council arrived at an erroneous conclusion”

The learned trial Judge accordingly gave judgment in favour of the Appellant and granted prayers 3 and 7 above. It is pertinent to add even at this stage that the learned trial Judge did not advert his mind to Section 6 of the Constitution which was raised before him. The 3rd Respondent herein appealed to the Court of Appeal (Uthman Mohammed, Kutigi and Kolawole, J.J.C.A) which on 16th July,1985 allowed the appeal. The appellant then appealed to this Court. Filing 6 grounds of appeal.

The questions for determination in this appeal appear to me to be mainly two. In that regard it would appear to me that the formulation of those questions by learned counsel to the 3rd Respondent. Chief Gani Fawehinmi is preferable. In his brief of argument, they were listed as-

“(1) Whether or not the Court of Appeal was right when it held that the trial Judge had no jurisdiction to entertain the cause of action in view of Section 6(6)(d) of the 1979) Constitution of the Federal Republic of Nigeria.

(2) Whether or not the Court of Appeal was right when it held that the judgment of the High Court was delivered in contravention of Section 258(1) of the 1979 Constitution”

On the 1st issue which is raised by grounds 1, 2, 3 and 4 of his grounds of appeal. Dr. Onagoruwa. learned counsel to the Appellant contended before this Court that the question ought to be whether the Lagos State Government properly promulgated the instrument (i.e. of approval of appointment of 3rd Respondent) and not whether the Lagos State Executive Council had power to promulgate the Instrument. He submitted that Exhibit D3/A in so far as it does not comply with the Chiefs Law is a nullity. It was his view that Sections 19, 20, 22 and 24 of the Chief’s Law, Cap. 25 Laws of Lagos State are preconditions for the validity of Exhibit D3/A. On Section 6(6)(d) of the 1979 Constitution on which the Court of Appeal based the ouster of the High Court’s jurisdiction, he submitted that for Exhibit D3/A to amount to an existing law on which an ouster can be based it must comply with Section 25 of the Chief’s Law. Exhibit D3/A he submitted was not an existing law. He referred to Sections 3,4 and 12(3) of Decree No. 32 of l975. Finally on this point, learned counsel submitted that even if Exhibit D3/A was a statutory instrument, Section 6(6)(d) of the Constitution should be interpreted in the spirit of the preamble to the Nigeria Constitution.

On the 2nd issue, Dr.Onagoruwa contended that the Court of Appeal was wrong in holding that the learned trial Judge’s judgment contravened Section 258(1) of the 1979 Constitution. He referred to the decisions of this Court in Dominic Onuora Ifezue v. Livinus Mbadugba & Anor. (1984) 5 S.C. 79; Paul Odi v. Obaniyi Osafile (1985) 1 N.W.L.R, 17; Sodipo v. Leminkainen and Anor. (1985) 2 N.W.L.R. 547 and Awoyale v. Ogunbiyi (1985) 2 N.W.L.R. 861.

Chief Gani Fawehinmi in reply on the first issue, referred to the Instrument of Appointment Exhibit D3/B and contended that the appointment cannot be set aside without setting aside that exhibit. He submitted that Exhibit D3/B was a law made before 1st October, 1979 and it was an existing law by virtue of Section 274(4)(b) of the 1979 Constitution. Legal Notices were regarded as laws for purposes of Section 6(6)(d) of the Constitution, he submitted. He referred to Attorney-General of Imo State v Attorney-General of the Federation (1983) 2 S.C.N.L.R. 108. As regards Section 6(6)(d) of the Constitution learned counsel submitted that 3 elements were important viz

(i) Is the instrument one made before 1st October, 1979

(ii) Is the instrument an existing law.

(iii) Did the Cause of action arise before 1st October, 1979

He submitted that once these 3 elements were present, the jurisdiction of the Court would be ousted. As regards learned counsel for the appellant’s reference to Sections 19,20,22 and 24 of the Chief’s Law, Chief Fawehinmi said that by the presumption of regularity it must be presumed that the Lagos State Government had complied with these sections before making exhibits D3/A and D3/B. He contended that what was in issue was the competence of the Lagos State Government to make those exhibits and this the courts could not question by virtue of Section 6(6)(d) of the Constitution.

He referred to F.S. Uwaifo v. Attorney-General of Bendel State (1983) 4 S.C.N.L.R.I., 35; Madukolu v. Nkemdilim (1962) 1 All N.L.R. at. 587.

On the second issue. Chief Fawehinmi supporting the decision of the Court of Appeal, contended that the reopening of the case after the suit had been set down for judgment was a sham and that it took it outside the decision of this Court in Shodipo (Supra). The submissions of Learned Solicitor-General of Lagos State who appeared for the 1st, 2nd and 4th Respondents were similar to those of Chief Fawehinmi and need not be repeated.

The issues to be decided in this appeal have been the subject of several decisions of this Court. They do not in my view call for any long discourse. Furthermore, since the issue of jurisdiction of the High Court is the central issue for determination it seems pointless to me delving into the evidence led before the High Court, or into the findings of fact of that Court.

It seems settled, and indeed it was not a matter seriously in dispute between the parties, that the law applicable to these proceedings was the law at the time the cause of action arose and not at the time the jurisdiction of the Court was invoked. It is not also contested that the cause of action arose in June 1979. The appointment of the 3rd Respondent as the Oloja of Igbogbo was approved by the Executive Council by a Notice effective from 28th June, 1979 i.e. Exhibit D3/A. The applicable laws to this case would therefore be the Chiefs Laws. Cap. 25 Laws of Lagos State as well as the Constitution (Basic Provisions) Act No. 32 of 1975. Also applicable are Exhibits D3/A, and D3/B both of which were made before 1st October, 1979. By Section 14(2) of Decree No. 32 made before 1st October, 1975. Section 161(3) of the Constitution of the Federation 1963, as modified by the Constitution Suspension and Modification Decree No. 1 of 1966, also was still in force. Exhibit D3/A. the Legal Notice indicating the approval of the appointment of the 3rd Respondent by the Executive Council of Lagos State reads as follows –

L.S.L.N. No.6 of 1979 THE CHIEFS LAW (CAP. 25) The Oloja of Igbogbo (Approval of Appointment) Notice /979 Commencement: 20th June, 1979.

In exercise of the powers conferred by Section 25(1) of the Chiefs Law, and of all other powers enabling it in that behalf, the Executive Council of the Lagos State of Nigeria has with effect from 28th June, 1979, approved the appointment of MR JOHNSON OLA FATOLA as the Oloja of Igbogbo in the Ikorodu Local Government Area.
This Notice may be cited as the Oloja of Igbogbo (Approval of Appointment) Notice 1979 and shall be deemed to have come into force on the 28th of June, 1970.

(Sgd.) C.A. Coker

Secretary to the Military Government, Lagos State

The other instrument Exhibit D3/B was made by the Military Administrator of Lagos State, then Navy Captain Okoh Ebitu Ukiwe. It was headed-

“Instrument of Appointment of the Oloja of Igbogbo and was dated 29th August, 1979.

There is no doubt that the Military Administrator and the Executive Council of Lagos State had power to make these instruments. By Section 1(3) of the Constitution (Basic Provisions) Act No. 32 of 1975, the Military Governor of a State –

“subject to subsection (2) above and to the Constitution of the Federation……… shall have power to make laws for the peace, order and good government of the State”

By Section 7(1) of the Act, the State Executive Council is constituted with the Military Governor as Chairman. Section 12(3) of the Act provides that – “where a power to make an instrument is conferred on the Military Governor of a State by any law, then without prejudice to the exercise of the power by the Military Governor in person, any instrument made in the exercise of that power may be executed under the hand of the Commissioner or Permanent Secretary to the department of government of that State responsible for the matter to which the instrument relates or under the hand of the Secretary to the Military Government of the State”

It is also trite that by the Interpretation Act 1964, Law means-

“any law enacted or having effect as if enacted by the legislature of a Region and includes any instrument having the force of law which is made under a law”

These legal notice and instrument were made before the 1st October, 1979. The next question is, were they existing law pursuant to Section 274 of the 1979 Constitution I shall later deal with the contention of Dr. Onagoruwa that they are a nullity and are not existing law. Section 274(4)(b) defines existing law as –

“any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date comes into force after that date”

By this definition, Exhibits D3/A and D3/B are existing law having been made and being in force before 1st October, 1979. Idigbe, J.S.C. of revered memory, considering a similar issue in Uwaifo vs Attorney-General of Bendel State (Supra) said of the statutory instrument in that case,

“In my view the expression “existing law” in Section (6)(6)(d) aforesaid means “‘any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when the Constitution (1979) came in force”

Learned Counsel for the Appellant Dr.Onagoruwa, as earlier indicated, contends that these instruments were a nullity and they could not qualify as existing law as they were not made in accordance with Sections 19, 20, 22 and 24 of the Chiefs Law of Lagos State. I shall set them, and Section 25 which contains the ouster clause, down. They provide as follows-

“19(1)” A person shall, unless he is disqualified be qualified to be a candidate to fill a vacancy in a recognised chieftaincy if –

(a) he is proposed by the ruling house or the persons having the right to nominate candidates are entitled to propose, according to customary law, and

(b)(i) he is a person whom the ruling house or the persons having the right to nominate candidates are entitled to propose, according to customary law, as a candidate or

(ii) he is unanimously proposed as a candidate by the members of the ruling house or the persons entitled to nominate candidates.

(2) No person shall be qualified to be a candidate for a recognized chieftaincy – who (a) (b) (c).

20(1) Where a vacancy occurs in a ruling house chieftaincy and a declaration has effect with respect to that chieftaincy-

(a) the Secretary of the competent council shall announce the name of the ruling house entitled according to customary law to provide candidates to fill that vacancy (b)(c)(d)(c).

22(1) Where-

(a) the Secretary of the competent councilor the kingmakers fail to discharge any functions conferred upon them by Section 20 within the time required or (b)………….

the State Commissioner may appoint such persons to exercise and perform those powers and duties as he may think fit in place of the Secretary, Kingmakers or other persons in default.

As soon as practicable after the declaration of an appointment, the Secretary of the competent council shall inform the State Commissioner thereof and if the consent of any person is required to the appointment, whether that consent has been granted or withheld.

25(1) Subject to the provisions of this Section, the Executive Council may approve or set aside an appointment of a recogniscd Chief……..

(6) The decision of the Executive Council under this section shall be final and shall not be questioned in any court”

It has been contended for the Appellant that these provisions of the Chiefs Law were not complied with and so the decision of the Executive Council as evidenced by Exhibit D3/A was a nullity and could not be an existing law. The sections I have set down above deal with such matters as qualifications of candidates, performance of functions, and even matters to which the Executive Council may have regard to before deciding to approve or set aside an appointment. These could be correctly referred to as conditions precedent to the exercise of the power of the Executive Council. Section 25(1) under which the Executive Council is empowered to approve an appointment is specifically made subject to the provisions of that section, and therein the provisions of sections 19, 20, 21, 24 are mentioned. It would seem to me that ordinarily if these pre-conditions are not satisfied or the Executive Council fails to comply with any of them, a decision to approve or set aside an appointment can be challenged for it can be argued that such a decision is not a decision of the Executive Council within the meaning of Section 25(1) of the relevant law. In my view the presumption of regularity would be rebutted if there is evidence that the Executive Council acted after a flagrant disregard of the Sections of the Chiefs Law to which it ought to have regard. It is in such a sense that I would agree that Section 25(6) of the Chiefs Law ought not to be conclusive on the issue. The Chiefs Law, Cap 25 Laws of Lagos State, is now an existing law under the 1979 Constitution. If I had to consider the issue of ouster of jurisdiction after the coming into effect of the 1979 Constitution, I would feel more fortified in the view I have taken as to the proper attitude to Section 25(6) of the Chiefs Law. In such a case I would feel that its provisions ought to be interpreted such that they do not conflict with the provisions of the Constitution. In such a situation to interpret Section 25(6) of the Chiefs Law such that the Courts are excluded in the face of flagrant disregard of the provisions of that law, would in my view be contrary to the spirit of the 1979 Constitution the preamble to which provides for a Constitution –

“for the purpose of promoting the good government and welfare of all persons in our country on the principles of Freedom, Equality and Justice and for the purpose of consolidating the Unity of our people”

Our Constitution is not only replete with copious provisions protecting the rights of the individual but Section 6 which gives judicial power to oust Courts states in Subsection 6(b) that that power –

Shall 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 obligations of that person”

But this argument cannot extend to Section 6(6)(d) of the Constitution, one of the other ouster clauses put in the path of the Appellant. That is a Constitutional provision limiting the judicial power which the Constitution itself gave to the Courts. The Courts cannot, in my view, arrogate to themselves power which the Constitution, the source of their own power, has excluded from them. That is in my view how Section 6(6)(d) must be read. It specifically provides that

“6. The judicial power vested in accordance with the foregoing provisions of this section –

(d) shall not as from the date when this section comes into force, extend to an existing law made all or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law”

(italics mine)

It follows that if any law or instrument falls within the provisions above, the jurisdiction of the Court is ousted completely in relation to any proceedings or action which seeks to question it. The real meaning and intendment of Section 6(6)(d) of the Constitution have been examined by this Court in Uwaifo v. Attorney-General of Bendel State (Supra) where forfeiture of Assets Edict made by the Military Governor of Bendel State pursuant to powers conferred on him by the Public Officer’s (Special Provisions) Decree No. 10 of 1976 (now Act No. 10 of 1976) was unsuccessfully challenged. In that case Idigbe, J.S.C. made some apposite pronouncements. The learned Justice, after posing the questions-

“What exactly does the expression ‘for determining any issue or question as to the competence of any authority ….

What exactly does the expression “existing law” in the con of Section 6(6)(d) aforesaid mean Is it really open to courts in the country, by virtue of the sub-section to pronounce on the validity of an existing law If so is there any limitation on the area or scope of any such inquiry Went on to hold that “It seems to me that while the Constitution empowers the courts to inquire into the validity of an existing law, it clearly intends that the courts should not inquire into proceedings which seek to determine issues or questions as to the competence of any authority or person (i.e. the legal capacity. power. legal qualification or jurisdiction of any authority or person) to make any existing law promulgated between 15th January 1966 and 1st October, 1979; in other words, the courts are precluded from inquiring into the validity of any such laws”

In that same case I held the view, which I still hold that-

“it was the intention of the framers of 1979 Constitution as can be gleaned from the wording of Section 6(6)(d) that no court, even after 1st October, 1979, should have jurisdiction to question any Edict or Decree made between 15th January, 1966 and 30th September, 1979 on the ground that the person or authority which made it had no capacity or power to make it.”

Nor does the argument of the spirit of the Constitution raised against Section 25(6) of the Chiefs Law apply to Section 161(3) of the Constitution of the Federation 1963 which is modified and saved by Section 14(2) of Decree (now Act) No 32 of 1975. That provision of the Constitution stated that

“161(3) Notwithstanding anything in any other provisions of this Constitution (including in particular Section 32 of this Constitution) but without prejudice to the proviso to subsection (1) of Section 22 and subsection (4) of Section 27 of this Constitution, no chieftaincy question shall be entertained by any court of law in Nigeria, and a certificate which is executed by an authority authorized in that behalf by a law coming into force in a territory on or after the date of the commencement of this Constitution (including a law passed before that date) and which states ….. shall be conclusive evidence of the matters set out in that statement”

See also Section 165(1) of the same Constitution.

Section 161(3) of the 1963 Constitution is a constitutional provision which was no doubt intended to deal with the spate of chieftaincy disputes afflicting the country at that time. This provision was inserted into the 1963 Constitution notwithstanding that the preamble to that Constitution stated the goals of the framers of the Constitution as including furthering-

“the ends of liberty, equality and justice both in our country and in the world at large”

To apply the opinions in Uwaifo’s case which were in accord with the unanimous decision of this Court, can Exhibits D3/A and D3/B be questioned. I think not. They were clearly existing Laws made between 15th January, 1968 and 1st October 1979 (See Uwaifo’s case. Also Attorney-General of Imo State v Attorney-General of the Federation (Supra). The Court cannot examine whether Sections 19, 20, 22 and 24 of the Chiefs Law were complied with before Exhibits D3/A and D3/R were made without thereby questioning the legal capacity of the Administrator or the Executive Council to make them – in effect, without questioning their validity. Once these 2 Exhibits are shown to fall within the ambit of Section 6(6)(d) of the 1979 Constitution, that is the end of the matter. I am therefore of the view that the Court of Appeal was right in holding that the jurisdiction of the High Court was ousted by Section 6(6)(d) of the Constitution. Also for the reasons I have given above one would arrive at the same conclusion as to the effect of Section 161(3) of the 1963 Constitution.

There would be no need to examine compliance or non-compliance with Sections of the Chiefs Law once there was in existence a certificate stating” that a particular person is or was, by reference to that territory or a part of it. a Chief of a specified grade or a specified time or during a specified period”

I think Exhibits D3/A and D3/B would serve that purpose. Nor would the issue arise having regard to Section 105 above.

The result of this decision is that the second issue becomes merely academic. I shall only touch it briefly because the Court of Appeal clearly erred in holding that the High Court breached the provisions of Section 258(1) of the 1979 Constitution. The principles relating to this provision of the Constitution have been examined by this Court in lfezue v Mbadugba (Supra); Paul Odi v. Osafile (Supra); Sodipo v. Leminnkainen and Anor (Supra); and Awoyale v Ogunbiyi (Supra) and it is not necessary to repeat these principles. It is clear that the Court of Appeal did not advert their minds to the decision of this Court in the Sodipo case. This decision was given by this Court on 12th July, 1985 while the Court of Appeal delivered its judgment in this matter on 16th July, 1985 – a mere 4 days. In Sodipo this Court considered the question of reopening a case after final address had been taken and judgment reserved and upheld it provided that such a reopening must be done within the earlier 3 months period and that judgment must be delivered within 3 months from the date of the subsequent final addresses. Aniagalu, J.S.C. delivering the judgment of the Court in that case said –

“It appears to me that the matter revolves on the issue of jurisdiction. Once a judge has reserved judgment after conclusion of evidence (where evidence was taken) and final addresses, he must deliver his judgment within three months thereafter. If he waits and does nothing till the three months are over he is functus officio and has no more the jurisdiction to deliver the judgment. But within the three months period he is still seized with the case and can exercise all the powers he has been given by law in respect of the case. One of these powers is to recall counsel and parties for further argument.”

In the instant case, final addresses were given before the learned trial judge on 19th July, 1984 and judgment reserved. Such judgment would have validly been delivered on or before 18th October, 1984. On 4th October, 1984 an application to amend the plaintiff’s statement of claim was granted by the learned trial judge. On 17th October, 1984 what would appear to me to be final addresses were taken and judgment was delivered on 9th November, 1984. Learned Counsel for the Respondent relying on the dicta in the Sodipo case and in Awoyale v. Ogunbiyi (Supra) submitted that the reopening here was a sham one calculated to secure an illegal extension of the mandatory 3 months period stipulated by Section 258(1) of the Constitution. With all respect, I do not think so. Surely the Appellant was entitled by virtue of Order 25, Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 1972 to amend his pleadings for the purpose of determining the real question in controversy between the parties. Nor do I accept the contention that the addresses were a repetition of what was said on 19th July, 1984. I take note of the fact that the Appellant amended the 1st paragraphs of his ‘Statement of Claim to ask for further reliefs; that on the 4th October, 1984 both Miss Aderemi for 1st, 2nd and 4th Defendants, and Mr. Awokoya for 3rd Defendant addressed the Court opposing the amendment as lacking in merit; that on the invitation of the Court to be addressed further on the amendment, Mr. Awokoya for 3rd Defendant on 10th October, 1984 offered substantial and long address on the amended Statement of Claim.

To my view, therefore, the judgment delivered on 9th November, 1984 was valid. The submissions of learned counsel for the Appellant on this part of the Appeal are upheld.

Notwithstanding this, however, and for all the reasons already given in this judgment, this Appeal must fail. It is accordingly dismissed. The judgment of the Court of Appeal dated 16th July, 1985 is affirmed in part. I award costs of N300.00 against the Appellant in favour of each set of Respondents, i.e. 3rd Respondent and 1st, 2nd and 4th Respondents.This suit arose out of the contest for the Chieftaincy Stool of the Oloja of Igbogbo in the Ikorodu area of Lagos State. On the 29th November, 1977, the last holder of the Oloja of Igbogho Stool, Oba J.O.O. Odugbose died. The Stool thus became vacant. The present Appellant and the 3rd Respondent were the main contestants for the vacant Stool. By Legal Notice No.6 of 1979 dated 24th July, 1979, tendered in these proceedings as Exhibit D3/A, the Military Government of Lagos State approved the appointment of Johnson Olatunji Fatola, the 3rd Respondent as the new Oloja of Igbogbo. An instrument of appointment made under the hand and seal of the Military Administrator of Lagos State dated 29th August, 1979, and published in the Lagos State Official Gazette No. 35 Vol. 12 of 30/8/79 was given to the said 3rd Respondent. This instrument was tendered in these proceedings as Exhibit D/30.