Lawrence Adebola Oredoyin & Others v Chief Akala Arowolo & Others (SC 68/1989) [1989] NGSC 11 (10 July 1989)


In The Supreme Court of Nigeria

On Friday , 11th day of July 1989

SC 68/1989

Between

Lawrence Adebola Oredoyin .......            Appellants

Attorney-General, Lagos State

Johnson Kalejaiye Okelarin

And

Chief Akala Arowolo             .......            Respondents

Chief Salawu Shoderu

Chief Bakare Okobale

 

 

Judgment of the Court

Delivered by

Eso . J.S.C

 

 

An appeal has been filed against the judgment of the Court of Appeal [Ademola, Uthman Mohammed and Owolabi, JJ.C.A.]. The majority judgment, which was the judgment of the court, was written by Owolabi Kolawole, J.C.A., with which Adenekan Ademola, J.C.A., concurred, with Uthman Mohammed, J.C.A., dissenting.

 

It was a chieftaincy matter and the claim of the plaintiffs, Chief Akala Arowole, Chief Salawn Soberu and Chief Bakare Okobale for themselves and as representatives of all members of Osugbo and other cults in Imota, except the first to third defendants, was as follows:

 

(i)     A declaration that the appointment of the 1st defendant Lawrence Adebola Oredoym as the Ramodu Imota is unlawful and ought to he set aside.

 

(ii)     An order setting aside the said appointment;

 

(iii)     An order restraining the 1st defendant from holding himself out as the Ramodu of Irnota or performing any of the customary A functions of the said Chieftaincy.

 

(iv)     A declaration that the 3rd defendant is not qualified to hold the office of Olisa of Imota and accordingly his purported appointment to that office is null and void and

 

(v)     An injunction restraining the 3rd defendant from holding himself out as the Olisa of Imota or performing any of the customary functions of the said Chieftaincy.

 

The learned trial Judge, Martins, J., took evidence, and after a close examination of the facts, made some findings of fact. It is necessary that I set them out hereunder:

 

The third defendant. J.K. Okelarin was appointed the Olisa of Imota on 7th June, 1978. There was no dispute surrounding his appointment, and both parties to this action, agreed that he was appointed as such Olisa by the late Oba named Adejo that is, the predecessor in title of Lawrence Adebola Oredoym who is the first defendant to this suit. The dispute surrounding the third defendant was that while the plaintiffs claimed an Olisa must belong to one of the ruling houses the contention of the defendants was that this needed not be so. The Judge resolved the issue as follows -

 

On a calm view of these submission, on the evidence available before me, I am of the view that the third defendant is the present Olisa of Imota, he having been duly elected or appointed by late Oba Adejo, the predecessor in title of the first defendant. The plaintiffs themselves in their evidence did not deny his being the Olisa at Imota now. Some of them took part in his installation as the Olisa sixth, P.W. in particular who is the first plaintiff. It was contended that the Olisa must be from the Ruling Houses, the plaintiffs themselves could not confirm that all Olisas were from the Ruling Houses' The learned Judge further found that the Lagos State Government, by Gazette No.15 of 7th October, 1981, acknowledged the appointment of the Olisa as having been made under the Chiefs Law.

 

Now, there has not been an appeal against this finding of fact. No such appeal was lodged to the Court of Appeal and obviously, no such appeal could have been lodged, nor in fact, was lodged to this court. The Judge dismissed the case against the third defendant.

 

As regards the first defendant, the contention of the plaintiffs was that an appointment of Ramodu of Imota, by balloting, was contrary to native law and custom which only permitted consultation with Ifa Oracle.

 

The defendants however relied upon legislation, that is, the Oba and Chiefs Law 1981 No.6, which of course, permits no place for the Ifa Oracle. The Chieftaincy Declaration, which was made in 1957, and under which the 1st defendant was appointed, says nothing about consultation with Ifa Oracle. The learned trial Judge in regard to the Ifa Oracle held -

 

The plaintiffs must be living in a different world whenever they talk about Ifa Oracle in the selection of Ramodu or they are behind time or they do not move with the time.

 

The learned trial Judge therefore dismissed the plaintiffs' claim in its entirety.

 

Plaintiffs appealed to the Court of Appeal. In that court the questions for determination were –

 

(1)     Whether the Chieftaincy Declaration Exhibit J permitted the Senlu Ruling House to present three candidates to the Kingmakers or it was required to present only one?

 

(2)     If the Senlu Ruling House was required to present only one candidate to the Kingmakers, whether the Kingmakers could legitimately make any selection from the three presented?

 

(3)     If both the Senlu Ruling House and the Kingmakers or either of them acted contrary to Exhibit J whether such acts were illegal and vitiated the whole process?

 

However, the point which really came for determination in that court, and which though the court regarded as a new point, yet permitted the same to be argued, was whether or not the Kingmakers must deliberate upon one candidate or could deliberate upon more than one, having regard to the Declaration. Exhibit J But what does Exhibit J, say? It provides –

 

(i)     There are four Ruling Houses and the identity of each such ruling house is:

 

1.     Oyemade House

2.     Senlu House

3.     Olugayan House

4.     Lasademo House

 

(ii)     The order of rotation in which the respective ruling houses are entitled to provide candidates to fill successive vacancies in the chieftaincies shall be:-

 

1.     Senlu House

2.     Olugayan House

3.     Lasademo House

4.     Oyemade House (present ruling house)

 

(iii)   The persons who may be proposed as candidates by a ruling house entitled to fill a vacancy in the chieftaincy shall be:-

 

(a)     Members of the ruling house

 

(b)   of the male line; provided that succession may devolve on the female line where there is no qualified candidate of the male line.

 

(iv)    There are seven Kingmakers as under :-

 

1.     Olisa

2.     Oluwo

3.     Apena

4.     Ogbeni-Odi

5.     Ogbeni-Oja

6.     Alakan

7.     Gbasemo

 

(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 family head a candidate for the chieftaincy to be presented by the family head to the kingmakers at a meeting of the Kingmakers to be summoned by the leader of the Kingmakers. Made by the Ikosi District Council which has been designated as the competent council by Western Region Legal Notice No.352 of 1955 as amended by Western Region Legal Notice 222 of 1956, and sealed in accordance with Standing Orders dated 31st day of August, l956. Seal.

 

Now, the Court of Appeal held that by virtue of section 11 of the Oba and Chiefs Law, Exhibit J is the customary law regulating the selection of Ramodu of Imota, and. as Exhibit J has provided that –

 

the Ruling House whose turn it is to provide a candidate shall nominate at a family meeting to be summoned by the family head a candidate……….

 

and further, as Exhibit J never spoke of "candidates," then the court held that until there is a process of amendment, all authorities, bodies and persons must comply, to the letter, with the provisions of the exhibit

 

Owolabi Kolawole, J.C.A. held further –

 

I am satisfied that the Chieftaincy Declaration Exhibit J did not permit the Senlu Ruling House to present three candidates to the Kingmakers. The customary law which regulates the selection of the Ramodu of Imota Chieftaincy provides for the presentation of one candidate to the Kingmakers. It was therefore contrary to the customary law as enacted in the Registered Chieftaincy Declaration Exhibit J to deliberate over the three candidates presented by Senlu Ruling House

 

The Court of Appeal, as I have earlier stated, allowed the appeal and it was on the point aforesaid that the court granted the plaintiffs the declaration sought, setting aside the appointment of Lawrence Adebola Oredovin as the Ramodu of Imota and restraining the said Oredoyin from holding himself out as the Ramodu or performing any of the customary functions of the said chieftaincy.

 

In a powerful dissenting judgment, Uthman Mohammed, J.C.A., disagreed with the lead judgment on both the introduction of a fresh point of law which was never canvassed at the trial court and the submission of learned counsel for the appellants as regards the Registered Declaration on the Ramodu Ruling House Chieftaincy Ex. J. The learned Justice of the Court of Appeal, made copious reference to the contents of Exhibit J and held that plaintiffs never pleaded the exhibit nor compliance thereto, either directly or by implication. Indeed, what they pleaded was the native law and custom which was based on Oshugbo and other cults which demanded consultation with Ifa Oracle. Uthman Mohammed , J.C.A., held further-

 

I strongly believe that if the attention of the learned trail Judge had been drawn to the new meaning being given to exhibit J, either through pleading or oral submissions he would have made a finding on the provisions of this document. It is therefore fundamental that such a new point of law could only be raised at the court below. For the above reasons I hold a strong view that the point of law being raised now is not within the exception to the rule, that points raised for the first time, in an appeal court, will not be adduced in respect of this case to explain the purport in exhibit J, if the issues had been joined by the parties at the lower court.

 

As regards the interpretation given to Exhibit J, the learned Justice disagreed that it should be construed to provide for the presentation of only one candidate by the Ruling House. He held that the Declaration was badly drafted, but notwithstanding, it could not be construed as the plaintiffs had submitted. He dismissed the plaintiffs' appeal.

 

The defendants who lost, as per the majority judgment of the Court of Appeal have now appealed to this court. We are obliged to all learned counsel in this case for the lucidity of their briefs.

 

Chicf G.O.K. Ajayi. S.A.N., who appeared for the 1st defendant/appellant in this court raised the issue of locus standi of the plaintiffs upon the ground that none of the two candidates who had been defeated by the Kingmakers' decision has challenged the result of the election, and neither has been a party to these proceedings. He relied upon the case of Abraham Adesanya v. The President of the Federal Republic of Nigeria (1981) 2 N.C.L.R. 358

 

Learned counsel, thereafter, referred to the case before the trail court which was twofold that is-

 

(1)     That the election of the 1st defendant as Ramodu was void because the 3 rd defendant participated and voted as Olisa of Imota while he was not the due holder of the title.

 

(2)     That the selection of the 1st defendant made by ballot was against native law and custom.

 

There was no appeal against the finding of the learned trial court, counsel contended, on the first issue, that is, that the 3rd defendant was the due holder of the Olisa of Imota title, and that the case was one of a straight fight between the Chieftaincy Declaration and the Ifa Oracle. The contention on the Chieftaincy Declaration, by the plaintiffs, in the Court of Appeal was "a complete turn about from their case on the pleadings and the evidence," counsel concluded. The plaintiffs had abandoned the Ifa Oracle issue, in the Court of Appeal, and in that court now maintained that the Declaration was relevant but was not complied with to the letter.

 

Learned counsel also relied upon a brief which had earlier been filed for the 1st defendant by Chief Alokolaro, and which brief had earlier was mainly on the acceptance of the Registered Declaration as governing the selection as opposed to the Ifa Oracle.

 

Mr. E.O. Sofunde, S.A.N., appeared for the plaintiffs/respondents and formulated the issues which he regarded arose for determination as follows-

 

1.     Whether it is open to the appellant to contend in this Honourable Court that the issue as to non-complaince with Exhibit ‘J’ was an issue which the Court of Appeal ought not to have allowed the plaintiffs to canvass before them?

 

2.     If the answer to question (1) is yes, whether the said issue was an issue which the Court of Appeal ought not to have entertained?

 

3.     If the answers to questions (1) and/or (2) are in the negative, whether Exhibit 'J' permits the presentation of more than one candidate to the Kingmakers for selection? and

 

4.     If the answer to question (3) is in the negative, whether the presentation of three candidates instead of one to the Kingmakers vitiated the selection and appointment of the 1st defendant?

 

Counsel submitted that the motion for leave to argue the proposed grounds of appeal was granted without objection by counsel for the defendants in the Court of Appeal and that as a result thereof, it was too late to raise any objection in this court. He relied upon the decision of this court in Fadare & Ors. v. Attorney- Genera1of Oyo State(l982)4 S.C. I. He further submitted that the defendant was caught by the rule of estoppel and argued in his brief that-

"An estoppel is thus created, because the rule (if law is that it is not only issues which were decided that cannot be raised again, but also issues which ought properly to have been raised and decided.

 

As regards the case of Kate Enterprises Ltd. v. Daewoo Nigeria Ltd. (1985) 2 N.W.L.R. (Pt.5) 116, which Uthman Mohammed, J.C.A., relied upon in his dissenting judgment, Mr Sofunde submitted that in that case, leave to appeal was obtained in the Court of Appeal, but that this court had held in Fadare & Ors. v. Attorney-General of Oyo State (1982) 4 S.C. 1 that the proper court to obtain leave to argue a fresh point was the court to which the appeal lay. Learned counsel then argued –

 

In so far as leave to amend the grounds of appeal in this case herein was granted by the Court of Appeal to which the appeal lay, and which court was the proper court to grant leave to argue a point not raised in the trial court, Mohammed J. C. A., was wrong to have relied on the Kate Enterprises cases. What he did is similar to what the learned trial Judge did in Lawal v. Dawodu (1972) 1 All N. .L. R. (Part 2) 270 OR (1972) 7 S.C. 83 by first admitting a document during trial, and later in his judgment rejecting it because it was inadmissible.

 

Counsel then took great pains to examine Exhibit 'J' and submitted that if it is examined with section 20 of the Chiefs Law [Cap. 20] Laws of the Lagos State, though the Kingmakers have power by law to select a candidate from one or more, depending on the number presented, the number presented must depend on the provision of the Declaration. In this case, Exhibit J requires the presentation of only one candidate.

 

Mr. Sofunde then treated Exhibit J as an existing law, under section 274 of the Constitution, and submitted that an infringement of the exhibit by selecting only one of three is illegal. I suppose on the logic of learned counsel, the Chiefs Law as an existing law requires more than one candidate and as the Declaration, also as an existing law requires one candidate, there is a conflict. Mr. Sofunde did not advert his mind to this and so could not have told us which of the two "existing" legislation should be followed!

 

The 2nd defendant/appellant - the Attorney-General of Lagos State was represented by Mrs. Dolapo Akinsanya. She argued and very brilliantly too, in her brief, for I would wish to put this specially on record. having regard to the fact that she was the only non-Senior Advocate in this case, that plurality of candidates is permitted and section 17 of the Chiefs Law would in any event override Exhibit J even if Exhibit J does not permit of plurality.

 

As regards the case which was put forward by the plaintiffs in the trial court, Mrs. Akinsanya's argument supported Chief Ajayi. She contended that there could be no estoppel on the issue of the lower court allowing the motion in which leave was sought to argue additional grounds of appeal. She asked for the appeal to be allowed in line with the Chief Ajayi’s contention.

 

In their oral argument, all the learned counsel adopted their briefs.

 

Now the issue of locus standi has been raised, not for the first time, in this court. It was also raised in the Court of Appeal. There is no doubt that the issue, which really goes to jurisdiction, could be raised at any stage, and certainly, there would be nothing wrong with its being raised, even for the first time, here. However, this being a chieftaincy matter, which deals with a fundamental custom of the people and which is so important in their culture especially in this part of the country. I would prefer to deal with the issue of locus standi, if and only if the appellants could not succeed on the other substantive issues which go to the root of the appointment and which issues have pervaded the case right from the court of trial to this court. For, if they succeed on those issues, then it would be more satisfying to all the parties herein and also the community over which the chieftaincy reigns or is to reign, than what might appear to them,(though, constitutionally it is not), as a mere technical issue.

 

I would therefore proceed to examine the point raised by Chief Ajayi that the plaintiffs could not change their stand on appeal and the issue of estoppel with which Mr. Sofunde countered it, in his brief. There is no doubt, as Chief Ajayi had submitted, that the case, of the parties in the trial court was one of a straight fight between the Chieftaincy Declaration and the Ifa Oracle. That was the case the trial court examined, and that was the case he decided upon. It was in the Court of Appeal that the plaintiffs raised, for the first time ever, non-compliance with Exhibit J which exhibit they maintained in the trial court not to be applicable to this chieftaincy.

 

Mr. Sofunde’s brief argued that the Court of Appeal was right to have allowed the issue of Exhibit J to be canvassed. The plaintiffs in that court, before arguing the point brought a motion to the court under Order 3. Rule 2(5) and 16 of the Court of Appeal Rules, granting them leave to amend their grounds of appeal by substituting new grounds. It was the schedule to that motion that brought in an examination of the provisions of Exhibit J. When on 25th March l987 the motion was moved, the two counsel representing the defendants severally raised no objection.

 

The question which was raised by the plaintiffs/respondent, and which must he answered is whether this has created an estoppel. Learned counsel, in his brief, referred to the dictum of Aniagolu, J.S.C., in Aro v. Fabolude (l983) 2 S.C. 75 at pp.84 to 85 when the learned Justice of the Supreme Court said –

 

the principle (estoppel) has been applied, in the public interest of the desirability of seeking an end to litigation to an accommodation of a wider spectrum not only to points upon which the court was actually required by the parties to form an opinion which properly belonged to the subject-matter of litigation and which the parties exercising reasonable diligence might have brought forward at the time

 

I think, with utmost respect to learned counsel, this case is authority against the position they have now assumed. They were aware of the Chieftaincy Declaration. It was pleaded by their opponents. The plaintiffs themselves referred to it in their Reply but maintained it did not apply. Are they, then, not estopped from raising it in the Court of Appeal or in this court if they are to apply the decision in Aro v. Fabolude?

I think, the Court of Appeal ought not to have granted leave to introduce those new grounds of appeal, but then having done so, they should not have proceeded to "try" a case which was opposed to the one put up in the trial court. This was definitely not put up as an alternative, but, the plaintiffs regarded it as a point which was to be aborted at the trial.

 

But even assuming there is an estoppel, and that the plaintiffs/respondent could rely on Exhibit J, what would be the construction to be placed upon the Exhibit?

 

The pertinent words for construction are "The Ruling house shall nominate a candidate…………, and the question is: must the ruling house be tied down only to providing one candidate, in which case the provision for Kingmakers in the exercise, is merely cosmetic, or could they provide candidates as it, would appear they could, on a proper construction of the words, in the same Declaration;

 

The persons who may be proposed as candidates by a ruling house…………..

 

The use of the "candidate" would appear to me to be an inelegant draft by the Draftsman. But even then, the High Court was never permitted to decide on this, as the point never arose before that court. As Chief Ajayi has rightly submitted, and I agree, the two issues –

 

(1)     3rd defendant being the present Olisa of Imota; and

 

(2)     selection of Ramodu by Ifa Oracle

 

which were the only issues before the trial court ended with that court. No issue was raised by the plaintiffs on the compliance or not with the Customary law which is now the Chieftaincy Declaration, nor could have been joined by the defendants as it was never raised by the plaintiffs, and if joined, then it could have been argued that section 20 of the Chiefs Law (Cap. 25) Laws of the Lagos State 1973 permits the ruling house to submit more than one candidate from whom the Kingmakers could make a choice of one.

 

But more importantly is the making of the Court of Appeal or this court the venue for such decision, having regard to the case of the plaintiffs in the trial court. In his address in the trial court, learned counsel for the plaintiffs put the following up as the case for the plaintiffs –

 

I now come to the case of the plaintiffs against the 3rd defendant. See the averments in plaintiffs Reply. The 1st and 3rd defendants in this action did not aver in this action that the Oshugbo cult is not the paramount cult in Imota and that they have the last say after consultation with the Ifa Oracle as to who will be the RAMODU of Imota. Full regard must be given to Ifa Oracle in respect of the choice of RAMODU.…………………………........................................................................................

 

I now come to the case of the plaintiffs against the 1st defendant. It was the part played by the 3rd defendant in the appointment of the 1st defendant as RAM ODU that forced the plaintiffs to bring the 1st and 2nd defendants into court. If the 3rd defendant had not acted in the way he had done the 1st and 2nd defendants may not be in court. But for the facts that issue of appointment of RAMODU affects the 1st and 2nd defendants they have to be joined hence they are in court in this action as far as Native Laws and Customs are concerned. Native Laws are not codified it is common knowledge and adhered to strictly by those who have maintained the law. There could not be any documentary evidence in respect of Native Law and Custom. We have proved to this Hon. Court that the Oshugbo cult is the custodian of Native Law and Custom of Imota." (Italics mine for emphasis)

 

And if the case of the plaintiffs was that there was no documentary evidence in respect of Native Law and Custom, and no codification of Native Law and Custom which is the other word for Declaration, how could they now stage what Chief Ajayi has rightly termed "a complete turn-around." I agree with learned Senior Advocate when he said –

 

In the Appeal Court they now abandoned their case based on the Ifa Oracle and conceded that (as maintained all along by the defendants) the choice was indeed governed by the Ramodu of Imota Chieftaincy Declaration but now contended that the Court of Appeal should give them judgment on the basis that:

 

(a)     It was the Chieftaincy Declaration that was applicable and

 

(b)     The provisions of the Chieftaincy declaration had not been complied with.

 

This is precisely what the Court of Appeal did. They gave judgment for the plaintiffs on the basis of the exact opposite of their case on the pleadings and evidence and upon a point which the defendants never fought or contested on the pleadings and evidence. (Italics mine)

 

The Court of Appeal could not rightly do this. Uthman Mohammed, J.C.A., was right in his analysis and I humbly adopt his reasoning to wit:

 

It is evidently clear that the appellants did not plead exhibit J, nor did they plead non compliance with it, either directly or by implication. As a matter of fact what was pleaded was the native laws and custom based on Oshugbo and other cults. Most of the witnesses for the appellants described the method of appointing a Ramodu of Imota under their native law and custom to be through consultation with Ifa Oracle and Oshugbo cult. Paragraph 6 of the Amended Statement of Claim even mentioned that membership of Oshugbo cult was required by the native law and custom and that such practice had been embodied in the registered declaration relating to the appointment of Ramodu of Imota. It was in the respective amended statements of Defence of the 1st, 2nd and 3rd respondents that the Registered Declaration, exhibit J, was pleaded. The learned trial Judge made a thorough review of the evidence adduced, including the application of the Registered Declaration, exhibit J, and dismissed the appellants' claim. He made no comment on the new legal point being advanced, that exhibit J provided for the nomination of only one candidate instead of the three presented to the Kingmakers. There was no need to comment on it because it was not an issue canvassed before him (again italics mine)

 

This court has decided in Fadiora v. Gbadebo (1978) 3 S.C. 219 that –

 

However, the law is that where a point of law which has not been taken in the court below is put forward by an appellant for the first time in a court of appeal that court ought not to decide in his favour unless it is satisfied beyond doubt:

 

(a)     that it has before it all the facts bearing on the new contention as completely as if it has been raised in the lower court (i.e.) court of first instance), and

 

(b)   that no satisfactory explanation could have been given in the court below if it had been so raised……………….....................................................................................................................................................

 

As regards raising such point

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