Victor Adefioye Ayoade V. The Executive Governor Of Osun State & Ors (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A.: (Delivering the Leading Judgment)

This is an appeal against the judgment of Honourable Justice S.O. Falola of the Osun State High Court of Justice Osogbo delivered on 27th day of February, 2012.

The appeal is at the instance of the 5th Defendant in the suit instituted by the 6th to the 9th Respondents as Plaintiffs against the 1st to the 4th Respondents the Appellant as the 5th Defendant and the 5th Respondent as the 6th Plaintiff at the Osogbo Judicial Division of the Osun State High Court of Justice. The 6th – 9th Respondents as Plaintiffs by an Originating Summons sought the determination of the following questions:

1. Whether the Registered Shoko of Ikire Chieftaincy Declaration dated 23rd of June 1958 and made as a subsidiary legislation to the Chiefs Law, (cap. 19) Laws of Western Nigeria 1957 is still valid and operational having regards to the fact that the said parent legislation is no longer operational having been repealed and replaced first by the Chiefs Law cap, 21, laws of Oyo State 1978 and Chief Law cap. 25 Laws of Osun State 2004.
2. Whether the Shoko Chieftaincy having been de-recognized by The Recognized Chieftaincy (miscellaneous provisions) Order 1978 and made a minor chieftaincy is still subject to the provisions of the written Chieftaincy Declaration of 1957 and who between and amongst the Defendants has the duty to now install any Chief Shoko of Itaakun Ikire.
3. Whether the Osun State Government, as represented by the 1st – 4th Defendants, is not obliged to complete the amendment of the Registered Shoko of Ikire Chieftaincy Declaration dated 23rd June 1958 (if found to be still operative) having been found to be defective by the inclusion of Momimi Ruling House as a ruling house entitled to present candidate for the Shoko Chieftaincy by the J.B. Abegunde Commission of Public Inquiry and accepted by Government which commenced the process of amending the said Declaration before the Chieftaincy was derecognized.
4. Whether by the findings of the J.B. Abegunde Commission of Inquiry (which findings were accepted by the Government) to the effect that Momimi family is not entitled to be made a Ruling House entitled to nominate candidate for the Shoko Chieftaincy of Ikire, the 5th Defendant or any other member of Momimi is still entitled to become or parade himself as Shoko of Ikire.

And upon the determination of the said questions, the Plaintiffs (6th – 9th Respondents) prayed for the grant of the following claims:

1. A declaration that the Registered Shoko of Ikire Chieftaincy Declaration dated 23rd of June 1958 and made as a subsidiary legislation to the Chiefs Laws, 1957 is no longer valid or operational having regards to the fact that the said parent legislation is no longer operational having been replaced first by the Chiefs Laws cap. 21, Laws of Oyo State, 1978 and Chiefs Law cap. 21 Laws of Osun State 2004.
2. A declaration that the 1st – 4th Defendants have no direct role to play in the selection and installation of Chief Shoko of Itaakun, Ikire, the Shoko Chieftaincy having been de-recognized by the Recognized Chieftaincy (miscellaneous provisions) order 1978 and made a minor Chieftaincy over which the 6th Defendant has installation duty as the prescribed Authority.
3. A declaration that the 6th Defendant as the prescribed Authority over the Shoko Chieftaincy is the person entitled to approve and install Chief Shoko or determine any dispute as to the rightful person entitled to be installation.
4. A declaration that the findings and conclusions or judgment of the J.B. Abegunde Commission of Inquiry to the effect that there are only four Ruling House namely. Metiku, Ademuyiwa, Atere and Falade to the exclusion of Momimi family is still valid and binding customary law relating to Shoko Chieftaincy.
5. A declaration that the 5th Defendant as a member of the Momimi family and other members of the said Momimi Ruling family are not entitled to be installed as Chief Shoko of Itaakun Ikire.
6. An order compelling the Osun State Government as represented by the 1st – 4th Defendant to forthwith complete the amendment of the Shoko Chieftaincy Declaration in line with the findings of J.B. Abegunde commission of Public Inquiry and the amendment processes commenced thereafter by the Government which accepted the findings and recommendations.
7. An order restraining forthwith the 5th Defendant from parading himself as Chief Shoko or as person entitled to become Chief Shoko of Itaakun Ikire.
8. An order restraining the 1st, 2nd, 3rd, 4th and 6th Defendants from recognizing and or paying any salary or allowances to the 5th Defendant as the Shoko of Ikire.

The case of the 6th – 9th Respondents as Plaintiffs from the affidavit evidence is that before the making of the Shoko Chieftaincy Declaration of 1958, there had always been four Ruling Houses of Shoko Chieftaincy, namely (a) Metiku (b) Ademuyiwa (c)Atere and (d) Falade.

The Chieftaincy Declaration of 1958 included the Appellant’s Momimi Ruling House which led to series of protests by the four (4) Ruling Houses mentioned above and resulted in the setting up of J.B. Abegunde Commission of Enquiry. The Abegunde Commission of Enquiry found the Shoko Chieftaincy Declaration of 1958 to be defective and the Commission’s findings were accepted by the Government through the statement issued by Dr. L.O. Adegbite, the then Commissioner for Local Government and Chieftaincy Affairs and steps were taken to disregard the defective Declaration.

Consequently, upon that, the Appellant’s family instituted an action in suit HOY/5/73 which action was later withdrawn and in 1976 the Shoko Chieftaincy was derecognized and relegated to a part III Chieftaincy which meant the Shoko Chieftaincy Declaration no longer subsist and as such excludes Momimi family from filing of Shoko Chieftaincy.

Furthermore, in 1993 the Appellant’s family instituted an action in Suit No. HIW/170/93 on the matter but the 6th – 9th Respondents and Government were not made parties to the action and since the judgment, there have been outside court acrimonies between the four (4) families and the Appellant’s family, hence there is need for the Osun State Government to complete the amendment of the Chieftaincy Declaration or declare it void in line with the findings of the Abegunde commission of Inquiry.

Finally, it is the case of the 6th – 9th Respondents that sometime in 2010, the Appellant started to lay claim to the office of Shoko of Ikire and also demanding for his allowances and that it is the Akire of Ikire who is the prescribed authority to Shoko of Ikire and he has not approved and or installed the Appellant as Shoko of Ikire. The 1st to 3rd Respondents filed a counter affidavit in the court below.

They deposed that the 5th Respondent (6th Defendant) is a mere consenting authority and not a prescribed authority to the Shoko of Ikire Chieftaincy, and that the 1958 Chieftaincy Declaration was validly made and reflect the true and correct tradition and customary law relevant to the Shoko of Ikire Chieftaincy.

They conceded that the J.B. Abegunde Commission made some recommendations, but such remains recommendations, and that Suit No. HOY/5/73 instituted by the Momimi family was not determined on merit.

They further deposed that by a letter Exhibit MOJ I, the Appellant (5th Defendant) has since been recognized and that suit HIW/170/93 has decided many issues raised by the 6th – 9th Respondents (Plaintiffs).

1st to 3rd Respondents (Defendants) further contended that since the 1958 Chieftaincy Declaration of Shoko of Ikire has not been amended or revoked, it is still the subsisting declaration governing the appointment and selection of Shoko of Ikire Chieftaincy. That though the Recognized Chieftaincy (Miscellaneous Provisions) Order 1978 derecognized the Shoko of Ikire Chieftaincy by reducing the rank of the Chieftaincy to Minor Chieftaincy, this does not change the customary law as codified in the Chieftaincy Declaration, and such should prevail until amended contrary to the prayers contained in the 4th and 5th reliefs of the Plaintiffs (6th – 9th Respondents). They contended that the Appellant (5th Defendant) has been installed since 1998 and that by a letter dated 15th July 2003 Exhibit MOJ 1 the 5th Defendant (Appellant) cannot now be restrained from performing the function of that office.

The 4th Respondent (4th Defendant) the Irewole Local Government Ikire contended that the Chiefs Law 1957 under which Chieftaincy Declaration was made had been repealed and replaced by the Chiefs Law of Oyo State 1978 and finally Chiefs Law Osun State cap 25 of 2002. That the report of Abegunde Commission of Inquiry and the attempt to implement it by amending the Chieftaincy Declaration have all become obsolete. The 4th Respondent conceded that Government has concluded the amendment process and was about sealing it when it was decided that since the Chieftaincy has become a minor Chieftaincy, there was no need for an amendment of the Declaration which does not apply to the Shoko of Ikire Chieftaincy any more. The 4th Respondent contended further that the principal law having been repealed with its subsidiary legislation (Shoko of Ikire Chieftaincy Declaration) the two have become so obsolete and no longer valid for purpose of actions not commenced or completed before the repeal.