Prince Oyesunle Alabi Ogundare & Anor V. Shittu Ladokun Ogunlowo & Ors (1997) LLJR-SC

Prince Oyesunle Alabi Ogundare & Anor V. Shittu Ladokun Ogunlowo & Ors (1997)

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The appellants were plaintiffs at the trial High Court asking for declaration that the plaintiffs’ family are the ruling house to present a candidate for the vacant stool of Baale (Asundunrin) of lsundunrin. The chieftaincy of Baale Isundunrin was previously recognised but later derecognised to a minor chieftaincy under the prescribed Authority of Elejigbo (Ogiyan) of Ejigbo in 1976.

Under the native law and custom of Isundunrin which found legality in a declaration by virtue of S. 4(2) Chiefs Law 1957 was made on 13th August 1958 (see Declaration of Customary Law Regulating the selection of Baale of Isundunrin 1958). The declaration identified five ruling houses of Isundunrin as follows:

I. Mobile

  1. Ogunlanade
  2. Ibitan
  3. Ogundare
  4. Tanpe

The order in the declaration is the succession line. At the time of 1958 declaration, the incumbent Baale was Fagbemi Oloyede who belonged to Tanpe Ruling House; he died in 1962. Oloyede was succeeded as Baale by Amusa Amusan Oyewale from Ogunlanade Ruling House; he in turn died in 1985. By the order of the declaration and by native law and custom, the next Baale should come from Mobile Ruling House when Oloyede of Tanpe Ruling House died in 1962.

There was however a private arrangement (“treaty” according to parties) between Mobile Ruling House and Ogunlanade Ruling House whereby Mobile surrendered the succession right to Ogunlanade Ruling House in 1963. This agreement was strictly between the two Ruling Houses and the others, to wit, Ibitan, Ogundare and Tanpe were not party to it. When Oyewole died in 1985, Ogunlanade Ruling House, apparently in accordance with its agreement with Mobile Ruling House invited Mobile Ruling House to present a candidate. A dispute therefore ensued as the Ruling Houses that were not parties to the agreement between Mobile and Ogunlanade maintained they were not bound by it. The 4th respondent, who was the prescribed authority, called the entire parties together – the five ruling houses. At the meeting both Mobile and Ogundare Ruling Houses claimed the right to present a candidate. Thus the problem defied solution at that stage. Under the declaration and by native law and custom, the order of succession was in favour of the next Ruling House after Ogunlanade, that is to say, Ibitan Ruling House. The 4th respondent (Elejigbo) thereafter called another meeting attended only by Mobile and Ogundare Ruling Houses. The 1st appellant, Oyesunle Alabi Ogundare was then presented as a candidate. This was communicated to the 2nd respondent, the Governor, who protested the nomination as a result of the petitions received and also no doubt after referring to the declaration. The government therefore advised the 4th respondent to shelve further action on the matter so that the 1st appellant would not be appointed.

A government investigation discovered the swapping arrangement between Mobile and Ogunlanade and concluded that Ibitan Ruling House was to present a candidate. The 4th respondent was therefore advised to revoke any nomination or selection already made and to invite Ibitan Ruling House to present a candidate. 4th Respondent obeyed this directive. He advised the 1st appellant from parading himself as the Baale Osundunrin. This led to the litigation by the 1st appellant and others which culminated in this appeal.

At the trial court the appellant were granted all the reliefs sought. This led to the appeal to the Court of Appeal. It is remarkable that the trial court held that the declaration had set down the order of succession in accordance with the custom of Osundunrin but at the same time held that the 1st appellant (as a plaintiff) was properly selected as Baale. The Court of Appeal set aside the judgment of the trial court and dismissed the plaintiffs’ case. There was no appeal against the decision of the trial court recognising the declaration as the true sequence of succession to the Court of Appeal.

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The appeal to this court has tried to make much of the Declaration as irrelevant as the Baale of Isundunrin is no longer a recognised major Chief. In all appeals, the issues to be argued are those based on the grounds of appeal by either side on the finding of the trial Judge on the declaration and the argument not of that issue was not relevant. Aboyeji v.Momoh (1994)4 NWLR (Pt.341) 646, 664; Ajadi v. Okenihun (1985) 1 NWLR (Pt.3) 484; (1985) 1 All NLR 213, 219. By canvassing in this court matters decided in the trial Court and not adverted to in the Court of Appeal, without leave having been obtained to argue matters not argued in the Court of Appeal, such matters or issues are incompetently before this court and will be discountenanced. This Court is only competent to entertain appeals from the Court of Appeal and not from any court below the Court of Appeal. Ogoyi v. Umagba (1995) 9 NWLR (Pt.419) 283, 293; Oduntan v. General Oil Ltd. (1995) 4 NWLR (Pt.387) 1, 101. Similarly the appellate court will deal only with matters duly canvassed at the trial court and appealed against. The issues of fair-hearing or breach of Sections 20, 21 and 22(6) of the Chiefs Law never came into argument at the trial Court nor at the Court of Appeal, and no leave having been obtained to argue them as novel issues not raised in the courts below, are not competent for argument in this court. There was no pronouncement on these issues at the trial court, and no appeal was lodged on this failure in the Court of Appeal, it is therefore incompetent in this court for the appellants to start raising issues of lack of fair hearing, or breach of natural justice in the conduct of investigation into the selection of Baale of Isundunrin. In the absence of a decision on a point, and that point has been canvassed at the trial court, the course open to the party aggrieved is to appeal against that non-decision. Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387,433,434; Adesokan v. Adetunji (1994) 5 NWLR (Pt.346) 540, 575, 576.

The five ruling houses exist and this is not in dispute. It is also not in dispute that without involving the three other ruling houses, the Mobile and Ogunlanade Ruling Houses concluded an arrangement whereby the former Ruling House had to forgo their turn in 1963 for the latter. Had they involved the other three Ruling Houses in this secret arrangement, the story might likely be different. Once Mobile surrendered their right for Ogunlanade Ruling House, the next House to present a candidate is Ibitan. The Court of Appeal was therefore justified in holding that the Ibitan Ruling House this time around was to present a candidate in setting aside the decision of the trial court.

It must be pointed out that declarations on chieftaincies were the results of investigations as to the native laws and customs of the localities as unanimously or overwhelmingly agreed by them. They are useful guides when those chieftaincies are derecognised as to the laws and customs of the people as to succession and order of succession. There can be law derecognising a chieftaincy, that is mainly for government purpose, it does not mean the chieftaincy does not exist because the community served by each chief does not necessarily cease to exist. The declarations are the statement in permanent form as to the mode of succession of chieftaincy in each community in regard to tradition, native law and custom.

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For the foregoing reasons, I find no merit in this appeal and I dismiss it with N1,000.00 costs to each set of respondents against the appellants.

I. L. KUTIGI, J.S.C.: I have had the privilege of reading in advance the judgment just delivered by my learned brother, Belgore, J.S.C. I agree with him that the appeal lacks merit and ought to be dismissed. The Court of Appeal was right when it said:

The correct finding or conclusion opened to the trial court having rightly and properly found that the Mobile Ruling House wantonly wasted or abandoned or waived its chance on the rotational order, and which waiver the Ogunlanade Ruling House, which was the next Ruling House to Mobile, appropriately cashed upon, the next ruling house after Ogunlanade on the rotational order, which it had accepted is Ibitan Ruling House. It is an old adage that “opportunity once lost can never be regained, so let it be with Mobile Ruling House………The first respondent not being a member of Ibitan Ruling House, it stands to reason, cannot become Baale of Isundunrin immediately. He has to wait for the turn of his ruling house on the order of rotation before he can produce his own candidature. The first respondent having sought and obtained the chieftaincy when it was not the turn of his Ruling House to produce Asundunrin acted wrongly or illegally. Consequently his selection, appointment and approval was null and void.”

As I said the appeal is devoid of merit and it is hereby dismissed with costs as assessed.

E. O. OGWUEGBU, J.S.C.: I have had the opportunity of reading the judgment of my learned brother Belgore, J.S.C. just delivered. I agree with his reasoning and conclusions. I however wish to make the following contribution only for the sake of emphasis.

The plaintiffs who are the appellants in this court based their case on the native law and custom relating to the Baale of Isundunrin Chieftaincy. The issues canvassed in the court of trial were:-

  1. The number and identity of the Ruling Houses entitled to the chieftaincy;
  2. the rotational order of succession by the Ruling Houses;
  3. the Ruling House entitled to provide a candidate on the death of the last incumbent; and
  4. the method or procedure for filling the vacancy.

The learned trial Judge found that the earliest recorded and reliable history of the Isundunrin Chieftaincy is Exhibit “D” which sets out clearly the number and identity of the Ruling Houses as:

  1. Mobile
  2. Ogunlanade,
  3. Ibitan,
  4. Ogundare and
  5. Tanpe

and that the above order provides the sequence of succession. He rejected the rotational order pleaded and relied upon by the plaintiffs which placed Tanpe Ruling House first and Ibitan last.

The learned trial Judge also found that Mobile Ruling House consigned its turn to Ogunlanade Ruling House and “wantonly wasted its chances in the rotational order.” (See Exhibit “L”). He later in his judgment held as follows:

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“The ruling houses have so badly disrupted this sequential order that it will be making the rules of law supersede the rules of equity to hold that anyone ruling house should now resume a third turn

while another has not taken a second turn.”

He finally held that Ogundare ruling house is the next ruling house to present a candidate for a second round after Amusa Amusan Oyewale Kehinde from Ogunlanade ruling house. By importing equitable consideration into his judgment, the learned trial Judge by what I term judicial legislation threw overboard and or repealed Exhibit “0” which is the applicable customary law to the chieftaincy. The court does not have that power. The office of the judge is jus dicere, not jus dare. See Okumagba v. Egbe (1965) All NLR 62 at 67.

The Court of Appeal in setting aside the decision of the learned trial Judge correctly observed as follows:

“The correct finding or conclusion opened {sic} to the trial court, having rightly and properly found that Mobile ruling house wantonly wasted or abandoned or waived its chance on the rotation order, and which waiver the Ogunlanade ruling house which was the next ruling house to Mobile, appropriately cashed upon the next ruling house after Ogunlanade on the rotation order, which it had accepted, is Ibitan ruling house …………..

Next to Mobile on the order of rotation is Ogunlanade who provided the immediate past Asundunrin or Baale of Isundunrin, Oba Amusa Amusan Kehinde Oyewale. The ruling house whose turn it is to provide Baale according to the order of rotation accepted by the trial court, is Ibitan.”

It was also erroneous for the plaintiffs/appellants to lead evidence of native law and custom regulating the Baale of Isundunrin Chieftaincy outside the Chieftaincy Declaration of 1958 (Exhibit “D”) which contains a legally binding written statement of the customary law regulating the selection and appointment of a candidate when a vacancy occurs. It must be restated that where a declaration exists in respect of a recognised chieftaincy, the reduction in rank of that chieftaincy to a minor one does not change the customary law as contained in the declaration relating to entitlement, selection and appointment to it.

The provisions of such a declaration should prevail until it is amended. See: Agbetoba v. Lagos State Executive Council (1991) 4 NWLR (Pt.188) 664; Ayoade v. Military Governor of Ogun State (1993) 8 NWLR (Pt.309) 111 and Oladele & Ors. v. Aromolaran II & Ors. (1996) 6 NWLR (Pt.453) 180. Consequently, the court below was right in declaring the selection, appointment and approval of the 1st respondent as the Asundunrin of Isundunrin a nullity.

In the circumstances, I am satisfied that this appeal lacks merit and it is hereby dismissed with N1,000.00 costs to each set of respondents.


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