Prince Eyimade Ojo & Others v The Governor of Oyo State & Others (SC 218/1985) [1989] NGSC 15 (12 January 1989)


In The Supreme Court of Nigeria

On Friday, the 13th day of January 1989

SC 218/1985

Between

Prince Eyimade Ojo                         .......                      Applicants

Chief Ajibade Adesina (The Onsa of Ilora)

Chief J.O. Wojuola (The Ejemu of Ilora)

Chief Adedewe Abake (The Iyalode of Ilora)

And

The Governor of Oyo State             .......                      Respondents

The Attorney- General of Oyo State

Prince Layiwola Olawore

S.A. Lalude

( The Secretary, Oyo South Local Government)

Judgement of the Court

Delivered by

Nnamani, J.S.C. 

In this Suit which commenced in Oyo Judicial Division of the High Court of Oyo State, the Plaintiffs claimed against the Defendants the following reliefs:-

1.      Declaration that the 1956 Baale of Ilora Chieftaincy Declaration is the only valid declaration in respect of the Baale of Ilora Chieftaincy and that the present Kingmakers are the only persons entitled to select a Baale of Ilora-elect.

2.     Declaration that the Secretary of Oyo South Local Government's Circular Letter reference No. OYLS6535/Vol. 11/394 of 11th January 1982 appointing warrant Kingmakers and inviting such appointees to consider a list of candidates for the purpose of filling the vacancy in the Baale of Ilora Chieftaincy is improper, invalid and of no effect.

3.     Declaration that the purported meeting of the warrant Kingmakers held at Jobele on Wednesday. 13th January. 1982 and the selection of a candidate for the filling of Baale of Ilora Chieftaincy is against the customs and traditions of Ilora, unconstitutional, invalid, improper and of no effect.

4.     Injunction restraining the 3rd defendant from further participation in the processes (as Baale-Elect) appointment and installation of the Baale of Ilora and from parading himself as Baale Elect of Ilora.

5.     Injunction restraining the 1st defendant from approving the 3rd defendant or and other candidate that the 4th defendant may submit to him as Baale-Elect of Ilora and subsequently installing any such candidate as Baale of Ilora.

6.     Injunction restraining the 4th defendant from further participation in any exercise connected with the processes of the approval and installation of the 3rd defendant as Baale Elect of Ilora.

Pleadings were ordered and were filed and exchanged by the parties. On the 2nd June, 1982 Falade J., delivered judgment and dismissed all the claims. An appeal to the Court of Appeal (Uche-Omo, Sulu-Gambari and Onu, JJ.C.A.) was dismissed on 28th November. 1984. The appellants then appealed to this Court filing 7 grounds of appeal. Briefs of argument were filed by Counsel to both parties.

In his brief of argument, learned Counsel to the appellants. Mr. Olanipekun set down the issues for determination. In his own view these were:-

1.     Whether the Chieftaincy Declaration in this matter is the only one that should be used in the selection of Baale of Ilora in view of Section 9 of the Chiefs Law of Oyo State Cap. 21, 1978.

2.     Whether the Governor of Oyo State or any one has an arbitrary right of taking away vested rights in a law without legislative approval or the repeal of such section

3.     Whether it is not against the traditions of Ilora people to select a Baale of Ilora outside Onsa’s House in Ilora.

4.     Whether the Kingmakers have not complied with the Declaration by appointing the Appellant.

5.     Whether in view of all the foregoing the 1st Respondent was right in appointing warrant Kingmakers to displace legal Kingmakers.

6.     Whether the Court of Appeal was right in not allowing the appeal after they had held that a ground of appeal partially succeeds and did not state the extent and effect of such success on the appeal.

Learned counsel to the 3rd defendant/respondent Mr. Afolabi, raised in issue 2 of the issues for determination, a matter which is important to the determination of this appeal.

This is:-

What is the effect of Sections 13 and 16 of the Chiefs Law, Cap.19, Laws of Western Region of Nigeria 1959 on such customif it exists at all?

All the counsel elaborated on their briefs of argument in oral address to this Court and I do not find it necessary to set down those addresses except as is necessary in this judgment. This is also a case in which I do not find it necessary to set down the pleadings of the parties. I shall of course refer to them as necessary in the course of this judgment. As regards the pleadings, I observe that there is very little dispute between the parties. For instance, there is no dispute that there was a vacancy in the Baale of Ilora Chieftaincy; that there was a Chieftaincy Declaration in 1956 for the Baale of Ilora Chieftaincy; that it was the turn of the Okunla Ruling House to provide the next Baale; that six candidates were provided for the vacant stool; that the 1st appointment of 1st Appellant, Eyinade Ojo, was set aside by the Oyo State Government. The areas of dispute relate to whether a Baale of Ilora is ever appointed outside the ONSA'S house, particularly at JOBELE, and whether 3rd Respondent was a member of the Okunla Ruling house. In the course of this judgment, it will be seen that the question of the custom on the venue of the appointment of the Baale, or more particularly whether a Baale could be appointed at JOBELE has become largely irrelevant. It is also to be remembered that there is no claim herein for a declaration that 1st defendant acted ultra vires his powers in rejecting the 1st appointment of 1st appellant as Baale of Ilora. In the circumstances, it is my view that any pleadings, evidence or submissions relating to the removal of the 1st Appellant are really irrelevant to the main issues in this case.

However, in order to understand this case, it is necessary to set down the facts. I would adopt the resume given by the learned trial Judge. According to this, the stool of Baale of Ilora became vacant in 1979 as a result of the death of Chief Oparinde, the then incumbent. By the Baale of Ilora Chieftaincy Declaration 1956 it became the turn of Okunla Ruling House to present a candidate to fill the vacant stool. Six candidates were nominated by the members of Okunla Ruling House which included Eyimade Ojo (1st Plaintiff), Olayiwola Olawore (3rd defendant), Deacon S. Ola Ojo, Festus Bisiriyu, Inaolaji Akinyemi and Ajibi Oyekola. The late Olanniba Ajala, ( the then head of the Ruling House presented them to the traditional kingmakers. The living five traditional kingmakers included Chief Ogunrombi, the Odofin; Chief D.K. Sangonte, the Balogun; Chief Wajuola Oyesoro, the Ejemu; Chief Adedewe Abake, the lyalode and Chief Ajibade Adesina, the Onsa and their Chairman. The other three kingmakers had died. The kingmakers met, deliberated and considered the six contestants and by a majority of three to two, appointed Eyimade Ojo as Baale of Ilora. Their resolution and certificate of appointment were sent to the Governor (1st defendant) for approval. However. the appointment was set aside because of representations and petitions the Government received from the members of Ilora Community. The Government ordered a fresh exercise to be conducted but directed that on the ground of what it called interest ofjustice, Chief Wojuola Oyesoro, the Ejemu of Ilora should not participate in the deliberation or meetings of the kingmakers. The Secretary to the Oyo South Local Government (4th defendant) set the ball rolling by inviting again the Okunla Ruling House to meet and nominate fresh candidates for the said vacant stool. The Ruling House met and nominated 5 candidates including 1st Plaintiff and 3rd defendant. Karimu Oyewole Aiki, the new head of Okunla Ruling House presented them to the traditional kingmakers for deliberation and consideration. The kingmakers met but the 4th defendant objected to the Ejemu taking part because of the directive of the Government that he should not take part. Chief Wojuola Oyesoro, the said Ejemu insisted that he would participate and even vote short of which he would cause trouble. He even threatened his colleagues with 'Juju'. Chief Ajibade Adesina, the Onsa and head of the kingmakers, supported the Ejemu and he himself threatened that no meeting would be held except the Ejemu was allowed to participate and vote contrary to the Government's directive. The Onsa thereafter refused to call any in meetings of the traditional kingmakers despite several appeals and warnings by the Government. Of course the Onsa in several letters made his own position clear. The Government then subsequently appointed eight warrant kingmakers in persons of Chief Ezekeil Ogunrombi. Chief D.K. Sangonte, Chief J.E. Ojo, Owoade Aderinkola, Madani Kikelomo Atiko. Olorode. Alhaji Opelovern and P.A. Arokale who met at Jobele (on 13/1/82 and considered the five contestants (3 were actually absent although they seem to have had notice of the meeting) before unanimously appointing Olayiwola Olawore as the Baale of Ilora. Their recommendation and Certificate of Appointment were sent to the Governor of Oyo State who approved same on 12/2/82.

The learned trial Judge made some findings of fact and arrived at sonic conclusions in his judgment. These included the following:-

(1)     That the 3rd defendant/respondent Olayiwola Olawore is a member (if the Okunla Ruling House.

(2)     That there was no dispute between the parties as to there being a Baale of Ilora Chieftaincy Declaration I 956.

(3)     That the alleged custom that no Baale of Ilora is ever appointed outside the House of the ONSA let alone at JOBELE was not proved by the evidence led by the plaintiffs and the onus was clearly on them to establish the custom by evidence, and

(4)     That the traditional kingmakers defaulted in their duty of appointing the Baale and so the 1st defendant was right to have appointed warrant kingmakers having exercised powers vested (in him by Section 13 of the Chiefs Law. 1959."

All these findings and conclusions were affirmed by the Court of Appeal. As regards the issue of custom (if not appointing the Baale outside the ONSA'S house, it held that the plaintiffs failed to establish this by evidence. It, however, disagreed with the learned trial Judge's finding that the plaintiffs did not state the Custom. This disagreement is not enough, as Mr. Olanipekun so strenuously urged on this Court, for holding that the Court of Appeal ought to have allowed the appeal on that ground. It is significant, and this is a matter I shall advert to more fully later in this judgment, that the Court of Appeal did not deal with issues of the Ejemu's exclusion and the alleged default of the traditional kingmakers although these issues arose in my view from ground 5 of the grounds of appeal before that Court, and from the submissions made to it.

It is clear that what we have in this appeal are concurrent findings of fact and concurrent judgments of two lower courts. The burden on the appellant in such circumstances is to show exceptional circumstances that would justify interference with the concurrent verdict. A Court of Appeal, as is now trite, will not interfere with the finding of fact of a lower court unless it is satisfied that such findings are perverse, or that the Judge did not utilise properly the opportunity of seeing and hearing the witnesses. It is not surprising therefore that learned Counsel to the 3rd Defendant hammered at this relying on decisions of this Court and earlier courts. Such decisions include Kodilinye v. Mbanefo Odu 2 W.A.C.A 336 at 338; Fabumiyi and Anor. v. Obaje and Anor. (1968) N.M.L.R. 242 at 247; Chief Frank Ebba v. Chief Warri Ogodo and Anor (1984)4 S.C. 84; Victor Woluchem and Ors. V. Chief

Simeon Gudi and Ors. (1981)5 S.C. 291 at 326.

 

Certainly if this appeal turned solely on the findings of the two courts, I would have had no difficulty in accepting Mr. Afolabi's submissions. It does not. It turns, in my view, on the manner in which the learned trial Judge applied the law to the accepted facts - particularly on the matter of the exclusion of the Ejemu from participating in the Baale selection process; the so-called default of the traditional kingmakers and the appointment of the warrant kingmakers. To come properly to this matter, it is expedient and tidier to start from the 1956 Baale of Ilora Chieftaincy Declaration which is accepted by both sides. The Declaration tendered in evidence as Exhibit P13 was in paragraphs 1.2 and 4 in these terms:

 

Declaration

 

In exercise of the powers conferred upon the Local Government Councils by Section 3(1) of the Western Region Appointment and Recognition of Chiefs Law 1954, the following declarations in respect of succession to the Baaleship of Ilora are hereby made:

 

1.     That 4 Ruling Houses shall have the right to provide candidates for Baaleship of Ilora namely:

 

1.     Oke

2.     Okunla

3.     Aduloju and

4.     Akoka.

 

2.     That the order of rotation in which every family specified in paragraph 1 above is entitled to provide a candidate shall be:-

 

1.     Oke

2.     Okunla

3.     Aduloju

4.     Akoka

 

4.     That the following 8 Chiefs are entitled to select the holder of the Chieftaincy:

 

1.     TheOnsa

2.     The Odofin

3.     Thejagun

4.     The Balogun

5.     TheFjemu

6.     The Elemo

7.     The Otunba

8.     The lyalode.

 

It has to be noted that the words of paragraph 4 of the Declaration are entitled to select. This appears to me to connote a vested right in each of those Chiefs. But I am unable to agree with the submissions of Mr. Olanipekun to the effect that these provisions are immutable, or that the rights cannot be touched in any circumstance. Surely the Declaration must be read subject to provisions of the Chief's Law which in an appropriate case may make it impossible for any of these chiefs to participate. This can happen in a number of cases. It may happen if, pursuant to Section 13(1) of the Chiefs Law Cap 19 Laws of the Western Region 1959 applicable to Oyo State, the persons competent to act in any selection of a chief having defaulted in the performance of their duty, the Minister (the powers must now be that of the Governor under the 1979 Constitution) appoints other persons to carry out the functions. Section 13(1) of the 1959 Chiefs Law provides as follows:-

 

(1)     Where-

 

(a)     the Secretary of the competent council or the kingmakers fail to discharge any function conferred upon them by Section 11 within the time required; or

 

(b)     in the case of a recognised chieftaincy other than a ruling house chieftaincy, any person entitled to nominate, select or appoint to a vacancy fail to exercise their powers within such time as appears reasonable to the Minister, the Minister 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 person in default.

 

The same provision was made in Section 17 of the Chiefs Law Cap.21 Laws of Oyo State 1978. Reliance is being put on the provisions of Cap. 19 of 1959 as the 1978 Chiefs Law came into effect in 1983 and is not applicable to this case.

 

Secondly, it may happen if the Declaration is amended. Section 9A was inserted by the Chiefs (Amendment) Law No.14 of 1963. It was in these terms:

 

9A  (1)     Where the Governor-in-Council is satisfied that a registered declaration

 

(a)     does not contain a true or sufficiently clear statement of the customary law which regulates the selection of a person to be the holder of a recognised chieftaincy; or

 

(b)     does not contain a sufficient description of the method of selection of the holder of such a chieftaincy; or

 

(c)     contains any error whether as to its form or substance or

 

(d)     is otherwise defective, faulty or objectionable, having regard to the provisions of the law, the Governor-in-Council (which must under the new Constitution be the Governor) may require the Chieftaincy Committee of A the competent council to amend such declaration in any respect that he may specify; or to make a declaration according as he may consider necessary or desirable in each case.

 

Section 9A(3) authorises the Governor in Council (now Governor) to amend a Declaration if the competent chieftaincy Committee refuses to do so. Section 9(b)(1) stipulates that any amended Declaration shall be reregistered or registered as the case may be. No amendment of the 1956 Declaration was done in this Suit nor had any procedure been set in motion for any such amendment. The question of default will be considered hereunder. ff there has been no default, and no amendment of the Declaration, it becomes difficult to see on what basis the Governor can remove any of the named C Chiefs in Section 4 of the Declaration of 1956 and appoint other kingmakers. The rights are indeed vested rights and in my view cannot just be set aside by the mere ipsi dixit of the Governor. Indeed so jealously do Courts guard vested rights that they look at any legislation which attempts to derogate from them as if it were a penal legislation which has to be construed very strictly. See Wilson v Attorney-General of Bendel State (1985)1 N.W.L.R. (Pt.4) D 572. There is also a presumption that the legislature does not intend to limit vested rights further than clearly appears from the enactment See In Re Metropolitan Film Studio's Application (1962)1 W.L.R. 1315 and generally on the points, the decision of this Court in Afolabi v Governor of Oyo State (1985) 2 N.W.L.R. Part 9, 734.

 

It follows that even if it can be said that there is something in the Chiefs Law which can derogate from the vested rights of the Chiefs under the 1956 Declaration, such an intendment has to be quite clear. The Governor cannot rightly exercise any of the powers conferred on him by the Chiefs law if its effect would be to derogate from vested rights. If in purported exercise of powers conferred by Section 13(1) of the Chiefs Law 1959, the Governor removes any of the named Chiefs and appoints a new kingmaker on the ground of default, and it turns out that there is no default, such exercise of powers would be null and void and would in no way disturb the vested rights to select the Baale conferred on the named Chiefs in the 1956 Declaration. The question can, therefore, be posed as the learned trial Judge did. Did the traditional kingmakers default from the performance of their duties?

 

From what I have been saying above, Section 13(1) of the Chiefs Law has to be construed strictly while considering this question of default. In arriving at his conclusion that the traditional Kingmakers had defaulted in their duties, the learned trial Judge had this to say,

 

The five names were sent to the Onsa (the 2nd plaintiff) as the Chairman for the consideration of the kingmakers by a letter dated 31st August, 1981 Exhibit P4 - giving them seven days. They met within the schedule time but failed to agree hence they could not discharge their duty as kingmakers as required by law. On 14th October, 1981, another letter - Exhibit P5 - was written to the second plaintiff, the Onsa, to convene the meeting of the kingmakers and appoint a Baale of Ilora. The Onsa, by his letter dated 16th October, 1981 - Exhibit P6 accepted the offer and invited the 4th defendant to the meeting of 20/10/81 both as an observer and secretary to the meeting. No meeting was eventually held. Several correspondences were exchanged between the Onsa and the Secretary appealing to Onsa to discharge his legal duty, yet the Onsa refused. Irrespective of his reason not to convene the meeting of the kingmakers, I hold as of fact that the Onsa as well as the other qualified kingmakers refused to discharge their duties as kingmakers contrary to the provisions of the Chiefs Law. 'Default' means nothing more, nothing less, than not doing what is reasonable under the circumstances – not doing something which you ought to do, having regard to the relations which you occupy towards the other person interested in the transaction. See In re Bayley - Worthington Cohens Contract (1909)1 Ch. D 648 at 658. The kingmakers have a duty both to the Ilora community to appoint a Baale for them a duty to the contestants that their names are considered and that one of them is duly appointed Baale of Ilora and to the Government to see that the proper procedure is followed and the exercise is completed within the time laid down by law. But, for the reasons best known to them, they have defaulted. And in doing so, the Government acted properly in appointing eight warrant kingmakers to substitute them.

(italics mine)

 

Strangely enough, in arriving at this conclusion the learned trial Judge did not consider the position of the Ejemu who had been excluded by the Government of Oyo State from participating in the selection process "in the interest of justice." This in my view was a serious omission. It was the exclusion of the Ejemu which precipitated the crisis between the traditional kingmakers and the 4th defendant. The correspondence shows that the Onsa was willing to convene a meeting of the kingmakers, and indeed convened one, but it could not hold because, while the 4th Defendant insisted that the Ejemu must not participate in the meeting, the Ejemu himself, supported by Onsa, insisted that he must participate as he had a right to so participate and there was no justification for excluding him.

 

Admittedly several letters were written by the 4th defendant to the Onsa. See Exhibits P3, P5, P7, P9 and P10; the Onsa wrote complaining of the venue of the proposed meeting which he claimed violated the Customs of the people of Ilora. He always ended by inviting the 4th defendant to a meeting of the kingmakers at the Onsa's compound.

 

The move to exclude the Ejemu, Chief J.O. Wojuola, seemed to have started from a petition dated 20th January, 1981 addressed to the Governor of Oyo State by 3 aggrieved persons (including the 3rd defendant herein) complaining about earlier appointment of the 1st Plaintiff as Baale of Ilora. One of the grounds of complaint was that –

 

the candidate selected for the post of the Baale of Ilora comes from a family whose head is a member of the kingmaking body.

 

The petitioners requested the Governor to institute an Administrative Inquiry "to determine the validity of the statement of the fact that the canditate selected by the kingmakers is a member of the family whose head is one of the kingmakers." In this petition tendered in the proceedings as Exhibit D6, the name of this kingmaker who was head of the selected candidate's family was not mentioned. In a letter dated 24th March, 1981 and addressed to the Secretary, Oyo Local Government, Oyo, the Secretary to the Government of Oyo State wrote that following this petition, an Inquiry was held and its report had now been submitted to Government. He informed the Secretary Oyo Local Government that the Government had decided that the process for the selection of the Baale of Ilora be started de novo. The letter ended as follows:-

 

It has also been noted that since Chiefs Elemo and Ejemu are also heads of their ruling houses, they cannot be judges in their own case. In this pending action on the recommendation that the declaration should he amended to remove these two chiefs from the list of the kingmakers, they should not be allowed to take part in the present appointment exercise. In this case, since the stool of Elemo is at present vacant, the Ejemu who is in post should not be allowed to take part in the subsequent meeting of the kingmakers to select a new Baale of Ilora.

 

If an inquiry was indeed held to establish the fact that the candidate selected belonged to a family the head of which was one of the kingmakers, there is nothing on record to show that the Ejemu, Chief Wojuola gave evidence at such an inquiry. In any case, it is not suggested in the letter set down abeve that he was that kingmaker. The 1956 Declaration states that there are 4 Ruling Houses in Ilora. It is not stated which House the Ejemu was head. In any case it cannot be Okunla for it was in evidence that the head of that House at the time the 1st plaintiff was presented as a candidate for the Baaleship was Olanniba Ajala. After his death, Karimu Oyewole Aiki became head. It was agreed, and indeed it was not in dispute, that it was the turn of Okunla House to provide the next Baale. What then was the relevance of the Ejemu being excluded because he is also head of a Ruling. House and cannot be judge in his own cause? Absolutely none. In my view, the Ejemu was unjustifiably and illegally prevented from participating in the processes for the selection of the Baale. Indeed it was mentioned in the letter set down above that there was a recommendation that the Declaration be amended so as to remove him and the Elemo. The Declaration had not been amended. The Governor, in my judgment, had no power to remove the Ejemu Indeed, from the reasons given in the letter of 24th March. 1981 for his exclusion it is not difficult to see that his exclusion was certainly not in the interest of justice as claimed.

 

It would he strange in the extreme to hold that the Ejemu, who was illegally excluded from participating in the selection processes, and who insisted on his right to participate and was willing to carry out his traditional duties, can be said to have defaulted so as to attract the exercise of powers under Section 13(1) of the Chiefs Law. The Ejemu was entitled to resis

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