Wahabi Aigbotosho Sijuola Olanrewaju V. The Governor Of Oyo State & Ors. (1992)

LawGlobal-Hub Lead Judgment Report

B. KARIBI-WHYTE, J.S.C.

This is yet another of the recurring, litigations over Chieftaincy disputes in the southern part of this country. Several efforts have been made to control litigations on Chieftaincy by means of legislation and through administrative regulations. The jurisdiction of the courts have been ousted and restored; the categories of chiefs have been classified and defined. Chieftaincy declarations have been encouraged to prescribe the customary law on the matter. The problem remains hydra-headed, insoluble and unabating.

This appeal originated from the dispute to the successor of the late Baale of Out, Baale Tijani Awolola, from the Ayilola Ruling House till his demise on the 31st August, 1980 was the Baale of Otu. Otu is in Iseyin North Local Government Area of Oyo State. In accordance with the Chieftaincy Declaration, 1960, there are two Ruling Houses in Otu, entitled to present candidates to fill the vacancy. These are the Ayilola Ruling House and the Opo Ruling House. The order of rotation prescribed in the Baale of Otu Chieftaincy Declaration, made under section 4(2) of the Chiefs Law, 1957 – Exhibit K, is 1. Opo 2. Ayinlola, ruling house in that order. The Declaration Exhibit K also prescribes the qualification and preconditions for eligibility. It also stated the titles and number of the Kingmakers, and the method of nomination by each ruling house.

Since Baale Awolola was from the Ayilola Ruling House, it was now the turn of Opo Ruling House to produce the next Baale to fill the vacant office. For this purpose a joint meeting of all the seven branches of the Opo Ruling House was convened and held on the 19th March, 1981 to nominate a candidate or candidates for consideration by the Kingmakers. The meeting was presided by Pa Gbadamosi Banmeke, the Mogaji of the Ruling House. The Secretary of the Iseyin Local Government attended as an observer. He was accompanied by an official of the council.

The meeting nominated four candidates. These included the plaintiff and the 4th defendant. The names of all the candidates nominated were sent to the Kingmakers for consideration; and selection of any one of them as the Baale of Out.

The Kingmakers in their meeting of the 11th July, 1981, by a majority vote of 2:1, selected the 4th defendant as the new Baale of Otu. There was an organized protest against the decision of the Kingmakers.

Following several petitions, the Governor of Oyo State set up a commission of Inquiry into the validity or otherwise of the meeting of the Opo Ruling House of the 19th March, 1981. The Commission of Inquiry reported that the nomination made at the meeting of the Opo Ruling House on the 19th March, 1981 was valid.

On the 21st October, 1988, plaintiff issued a writ of summons against the defendants in the High Court at Shaki, Oyo State challenging the nomination, and claiming as follows:-

“The plaintiff’s claim against the defendants jointly and severally is for:-

1. A declaration that the purported nomination of the 4th defendant by the 5th and 6th defendants for the vacant stool of the Baale of Otu in Iseyin Local Government Area some time in May/June, 1981 is unlawful, contrary to natural justice, and therefore null and void.
2. A declaration that the 4th defendant is not eligible or entitled to be nominated and or installed as the Baale of Out in Iseyin North Local Government Area.

OR ALTERNATIVELY

A declaration that the plaintiff is better qualified and commands greater public support than the 4th defendant.

3. An injunction restraining the 1st and 3rd defendants and their servants and agents from taking any further steps towards approving, effecting or causing the installation of the 4th defendant as the Baale of Otu.”

Plaintiff immediately applied for interim injunction restraining the 1st-3rd defendants from approving-and recognizing the 4th defendant. The application was refused.

The case was tried on the pleadings of the parties. The issues in the High Court were:-

1. That the 4th defendant was not eligible to be nominated.
2. That plaintiff was eligible.
3. The nomination meeting of the Opo Ruling House of the 19/3/81 was invalid.
4. The Meeting of the Kingmakers of June 11, 1981 was invalid.
5. The 4th defendant did not enjoy popular support.

The learned trial Judge in his judgment delivered on the 10th July,1984, granted all the reliefs and resolved all the issues in favour of the plaintiff.

The 4th, 5th and 6th defendants appealed to the Court of Appeal against the judgment. The issues canvassed were the same as were resolved against them in the High Court. The judgment of the learned trial Judge was set aside. All the reliefs claimed by the plaintiff were dismissed. Plaintiff dissatisfied has now appealed to this court. five grounds of appeal have been filed. They are as follows:-

“1. The learned appellate Judges erred in law when they reassessed and re-evaluated the evidence in this case and reversed the findings of fact of the trial court on the eligibility of the 4th defendant for nomination and appointment as Baale of Out, the eligibility of the plaintiff for nomination and appointment as Baale of Out, the irregularities that afflicted the nomination meeting of the Opo Ruling House, and the Kingmakers meeting.

PARTICULARS OF ERROR IN LAW

(a) Where a trial court has properly evaluated the evidence and made findings of fact on such evidence, as herein. It is not open to a court of appeal to embark on a fresh appraisal of the same evidence or to disturb the findings of the trial court or substitute its own views from those of the trial court except it is shown that the findings of the trial court are unsound, or perverse or not supported by the evidence.

(b) It was not shown and there was no finding by the Court of Appeal that the findings of fact of the trial court on the issues mentioned above were unsound, or perverse or not supported by the evidence.

2.The learned appellate Judges erred in law when they held that the plaintiff was not eligible to be nominated by the Opo Ruling House when there was evidence on record showing that the plaintiff fulfilled the conditions laid down in the declaration.

PARTICULARS OF ERRORS OF LAW

(a) There was evidence accepted by the trial court and not appealed against that the plaintiff is a male member of Opo Ruling House.

(b) There was also evidence accepted by the trial Court and not subject of appeal that the plaintiff is a grandson of Ajilola the first Baale of Otu.

(c) There is nothing in the Baale of Otu Chieftaincy Declaration requiring that the previous holder of the title to whom a contestant for the chieftaincy traces his entitlement, should belong to the same ruling house as the contestant.

(d) The decision of the trial court that the plaintiff is eligible for nomination as Baale of Otu is right on the evidence.

3. The learned appellate Judges erred in law when they held that the decision of the trial court to invalidate the nomination meeting of the Opo Ruling House held on 9/3/81 was wrong and untenable.

PARTICULARS OF ERRORS IN LAW

(a) Apart from the finding of the trial court that the minutes of the meeting were recorded by an official of the council brought by the Secretary of the council, the learned trial Judge also found that the deliberation at the meeting could have been influenced by the role played by the said official with the concurrence of the Secretary.

(b) The learned trial Judge also found inter alia that the minutes told material lies about what happened at the meeting and all these findings were not subject of appeal by the defendants.

(c) Once it is shown that minutes of the nomination meeting were recorded, the only proof of the proceeding of the meeting is the minutes. Oral evidence of the decision at the meeting will be inadmissible as proof.

4. The learned appellate Judges erred in law when they held that there was no justification for the learned trial Judge to invalidate the meeting of the Kingmakers held on 11th June, 1981.

PARTICULARS OF ERRORS OF LAW

(a) there was evidence that the Secretary of the council attended the meeting: of the Kingmakers and brought an official who recorded the minutes of the meeting.

(b) Contrary to the provisions of Section 15(i) (f) (ii) of the Chiefs Law the names of only two out of the four candidates for the Baale of Otu Chieftaincy were submitted to he votes of the Kingmakers.

(c) The doctrine of waiver invoked by the lower court has no application ill this case, having regard to the pleadings.

5. The learned appellate Judges erred in law when they upheld the complaint against the holding of the trial court that the plaintiff commands greater popular support for the Baale of Out Chieftaincy than the 4th defendant when on the evidence before the court the holding was right and unimpeachable.
6. The learned appellate Judges erred in law and misdirected themselves when they held that the appointment of the 4th defendant as Baale of Otu complied with the Chiefs Law and Baale of Otu Chieftaincy Declaration.

PARTICULARS OF ERRORS OF LAW AND MISDIRECTION

(a) There was evidence, accepted by the trial court that the 4th defendant did not fulfil the conditions laid down in the Baale of Otu Chieftaincy Declaration which is a codification of the customary law relating to the chieftaincy.

(b) The learned trial Judge also found on the evidence that both the nominations and appointment of the 4th defendant were invalid,

7. Further grounds of appeal will be tiled on receipt of the records of proceedings.”

Counsel filed their briefs of argument, which they adopted and relied upon in their argument before us. Learned counsel to the appellant formulated the following issues for determination:-

“(i) Whether the 4th defendant was eligible to be nominated for the Baale of Otu Chieftaincy.

(ii) Whether the plaintiff was eligible to be nominated for the Baale of Otu Chieftaincy

(iii) Whether the nomination meeting of Opo Ruling House held on 19th March,1981 was valid.

(iv) Whether the Kingmakers meeting of 11th June. 1981 was valid.

(v) Whether the 4th defendant enjoyed the popular support of Otu Community as a candidate for appointment to the stool.”

Learned counsel to the 4th, 5th and 6th respondents have also formulated the three issues, which can conveniently be reduced to two. The issues are as follows:”

From the view point of the 4th, 5th and 6th defendants/respondents, the following questions arise for determination in this appeal:-

2.1 Whether or not the plaintiff/appellant is eligible for nomination as a candidate for the Baale of Otu Chieftaincy as required under the Baale of Otu Chieftaincy Declaration of 1960

2.2 Whether or not the 4th defendant/respondent is eligible for nomination as a candidate for the Baale of Otu Chieftaincy as required under the Baale of Otu Chieftaincy Declaration of 1960

2.3 Whether or not the nomination, selection, approval and appointment of the 4th defendant/respondent as the Baale of Otu is in accordance with the Baale of Otu Chieftaincy Declaration of 1960, and the Chiefs Law, Cap.21, Volume 1, Laws of Oyo State of Nigeria, 1978

Issues 2.2 and 2.3 which are on the eligibility for nomination of the 4th defendant and his selection, approval and appointment as the Baale of Otu in accordance with the Baale of Otu Chieftaincy Declaration 1960, and the State Chiefs Law. Since the formulation of the issues by the appellant contains a better coverage of the grounds of appeal filed. I have adopted that formulation for the purposes of this judgment. The 1st and 2nd respondent did not file any brief of argument. They did not seek leave to dispense with same and were therefore not heard. The 3rd respondent did not take part in this appeal.

Argument of Counsel

Learned counsel for the appellant in his brief of argument dealt with the issues in the order in which they are indicated. Issue 8.2, concerns the re-evaluation and reappraisal in the Court of Appeal, of findings of fact relating to the 4th defendant’s qualification for nomination as a candidate by the learned trial Judge. The Court of Appeal reversed the findings of fact by the learned trial Judge that the 4th defendant was not qualified to be nominated as a candidate by the Opo Ruling House.

Chief Afe Babalola referred to the grounds relied by the Court of Appeal for reversing the learned trial Judge. These are:-

(a) that the father of the 4th defendant had sometime contested for the appointment of the Baale of Otu.

(b) It was not then contended that 4th defendant’s father was not a prince.

(c) At the meeting of the Opo Ruling House of the 19th March, 1981, held for the nomination, the point that 4th defendant was not a member of the Ruling House was not raised.

(d) The 4th defendant was nominated along with the others.

(e) The learned trial Judge did not consider the effect of the letter Exhibit 19, written to Bashorun Otu, and Exhibit 20, a petition to the Alaafin of Oyo and copied to the District Officer and the Divisional Council, Oyo, dated 23/1/54. Learned counsel to the appellant has submitted that the reasons given by Court of Appeal are illogical. It was also submitted that the fact that 4th defendant’s father contested the position of Baale of Otu without the criticism that he is not a prince is not sufficient reason to set aside the express finding by the learned trial Judge that 4th defendant was not qualified to be nominated to contest the vacant position.

Learned counsel pointed out that the learned trial Judge came to his conclusion after a thorough review and evaluation of the evidence relating to the qualification for nomination for the vacant position of the Baale of Otu. The fact whether 4th defendant is a member of the Opo Ruling House, whose turn it was to produce a candidate was considered. The learned trial Judge examined Exhibits 19 and 20 and held that they had no evidential value and were not of any assistance. In support of his submission, learned counsel referred to the evidence of the paternity of 4th defendant in the testimony of plaintiff and his witnesses, who were not shaken in cross-examination, and that the learned trial Judge carefully evaluated all these evidence before making his finding.

Chief Afe Babalola referred us to the well settled principle of law that a court of law should not interfere with the findings of fact of the trial court except where it is manifest from the record that the findings of fact do not flow from the evidence before the court. In other words, where the findings of fact are supported by the evidence before the court, it is not open to an appeal court to embark on a fresh appraisal of such evidence, in the case and substitute its own views for that of the trial court. Learned counsel cited and relied on Ebba v. Ogodo (1984) 4 S.C. 84; (1984) 1 SCNLR 372: Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt.5) 41; and others on the point. It was submitted that the court did not show that the findings of fact of the trial Judge was perverse.

In his brief of argument, learned counsel to the respondents submitted that the learned trial Judge based the reasoning for the disqualification of the 4th defendant on his paternity. He stated as follows:-

“‘The 4th defendant is not qualified to be Baale of Otu since he has no blood relationship with either the Opo or Ajilola Ruling House. His father was one Bamikunle. Bamikunle was the son of one Aferanjeun from Akaparo House in Iganna. Bamikunle’s mother is Lagbende Efunwumi. Baale of Otu Fagbayi was the husband of Lagbende Efunwumi. After having a first son named Adeoye for Fagbayi. Lagbende had a quarrel with Fagbayi, the then Baale of Otu. Lagbende then packed to her father’s house at Akaparo House Iganna. During the separation Lagbende and Aferanjeun became friends. As a result of the association, Lagbende became pregnant for Aferanjeun. When the pregnancy became six months in existence the dispute between Fagbayi and Lagbende was settled. At first Fagbayi refused to have Lagbende back on account of the pregnancy but Fagbayi’s relations prevailed on him and he accepted the pregnancy and Lagbende. As a result of this pregnancy the 4th defendant’s father was born and Fagbayi gave him Bamikunle as a name. ”

The crux of the reasoning is based on the assumption that 4th defendant had no Sanguinal relationship with any of the two Ruling Houses. It was held that he is merely the grandson of the wife of Oba Otu Fagbayi. His natural grand father was Aferanjeun from Akaparo in Iganna. It was admitted that Oba Out Fagbayi the husband of his father’s mother christened his grand father Bamikunle. Thus, although not responsible for the pregnancy. Oba Otu Fagbayi accepted it, and the son born.

4th defendant denied the story of the circumstances of the birth of his grandfather, and gave evidence of his genealogy. He gave evidence of how his grandfather Bamikunle was born to Oba Fagbayi of Opo Ruling House. He also gave oral and documentary evidence of how his father, Oyeniran was referred to as the Daodu, and representing his grandfather Fagbayi of Otu as President of the Customary Court when the latter became too old to sit in court. He relied on Exhibits 13, 19 and 20 in these proceedings. He called Pa Gbadamosi Banmeke. the Mogaji of Opo Ruling House and others who are the kingmakers as witnesses in support of his evidence. It was submitted that the learned trial Judge did not consider or properly evaluate the evidence of these witnesses as to the paternity of 4th defendant and his eligibility to the Baaleship.

Learned counsel submitted that the evidence of P. W.1 which the learned trial Judge relied upon in determining the paternity of 4th defendant and consequent

A disqualification is shaky and unreliable. The evidence of P.W.1, Emmanuel Oyebisi contradicts that of the plaintiff himself in respect of the paternity of 4th defendant.

It was the submission that the findings and declarations made by the learned trial Judge are perverse and unsound having regard to the overwhelming evidence before him of the 4th defendant’s membership of Opo Ruling House and as a Prince of Otu.

Learned counsel referred specifically to the issue of paternity and the Yoruba customary law relating to acknowledgement of paternity of a child. It was submitted, without conceding the allegation of illegitimacy but assuming that on the evidence of plaintiff whichwas accepted by the learned trial Judge, Bamikunle, the grandfather of 4th defendant would be the legitimate son of Oba Fagbayi, having been acknowledged as his son even before birth. He relied on the evidence of the plaintiff that:-

“Fagbayi’s relations prevailed on him and he accepted pregnancy and Lagbende. As a result of the pregnancy the 4th defendant’s father was born and Fagbayi gave him Bamikunle as name.”

It was submitted that it is not conceivable how the learned trial Judge could still on this evidence hold that.

“I cannot find any acts of acknowledgment by Baale Fagbayi towards and in favour of Bamikunle, the 4th defendant’s father.”

It was submitted that the finding of the learned trial Judge on the issue is accordingly perverse and not flowing from the evidence before him.

“I will consider the first issue anon because I regard it as central to the determination of this appeal. Chief Afe Babalola in his argument has relied essentially on the determination of the issue of paternity of the 4th defendant, and the fact that the Court of Appeal had relied on the consideration that the issue had not been raised against him all through the nomination. He also referred to the fact that the issue not being raised against him or his father in earlier contest did not mean that the disability did not exist.

There is no doubt if the issue of paternity is properly resolved against the 4th defendant as the learned trial Judge did, casus cadit. The question whether he is a member of the Opo Ruling House, and son of a former Otu will therefore not arise. The Court of Appeal has re-evaluated the evidence before the learned trial Judge. They have come to the conclusion different from his findings. I agree entirely with the Court of Appeal.

Chief Afe Babalola’s submission that the Court of Appeal ordinarily has no jurisdiction to re-evaluate and make findings of fact on issues in respect of which findings have been made by the learned trial Judge is perfectly correct, valid and unassailable. This is because the trial court enjoys the monopoly of trying facts, listening to, seeing and observing the demeanour of witnesses, it has the peculiar advantage of assessing the oral evidence at first hand. Its determinations unless perverse, and not flowing from such evidence are conclusive.The findings of facts are however, not sacrosanct. This is the well settled law, replete with decided cases, citation of which are unnecessary and have often been made ad nauseam.

But the principles under which the Court of Appeal will interfere are also well settled. These principles which will be stated hereafter, govern and explain the relative complementary roles of both the trial court and appellate courts in the administration of justice. The first principle is that it is not the function of an appellate court to make findings of fact where this has been done by the trial court, and to reopen issues of fact finally determined by the trial court. see Nwosu v. Board of Customs & Excise (1988) 5 NWLR (Pt. 93) 225. it is not permitted to do so even if it would have come to a different finding if it were to do so. – See Egonu v. Egonu (1978) 11 – 12 SC. 111. Motunwase v. Sorungbe (1988) 5 NWLR (Pt. 92) 90. The judicial role of an appellate court is to superintend, review and correct any errors made by the trial court. It is to see whether the trial court applied the applicable law or adhered to the proper procedure in arriving at its decision. See Oroke v. Ede (1964) NNLR 118.

The second principle is that the Court of Appeal in the interest of justice is entitled to set aside findings of fact made by the trial Judge, where such findings of fact are not based on the fact of the trial Judge having seen and heard the witnesses or from conclusions from demeanour in the witness box. See Onwuuika v. Ediala (1989) 1 NWLR (Pt. 96) 182. where however, the trial Judge has failed to take advantage of the opportunity of seeing, hearing and observing the witness or to exercise his discretion properly, or where the finding cannot be regarded as resulting from the evidence, the Court of Appeal will be at liberty to make his own findings of fact from such evidence. See Ntiaro v. Akpam (1918) 3 NLR 10; Olafosoye v. Olorunfemi (1989) 1 NWLR (Pt. 95) 26. There is a presumption in favour of the finding of the trial court. The onus is therefore on the appellant challenging the finding to show that it is wrong. A doubt whether the trial court has discharged his discretion properly is resolved in favour of the trial court. See Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301. Adeyeye v. ajiboye (1987) 3 NWLR (Pt. 61) 432.

Let us now apply the above principles to the finding of the Court of Appeal setting the aside the finding of fact of the learned Trial Judge. I have already quoted in this judgment, the passage in the learned trial Judge’s judgment in which he relied to disqualify the 4th defendant. There is no doubt that issue was clearly joined on the paternity of the 4th defendant. Since evidence relied upon by both sides was based on traditional history, the learned trial Judge ought to have considered evidence of acts in recent years which were in evidence in Exhibit 13,19 and 20 for the purpose of determining which of the versions is more probable. See Kojo II v. Bonsie (!957) 1 WLR 1223; Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301. There was the evidence that at the meeting of the Opo Ruling House on 19/3/81 to nominate candidates the issue of non-eligibility of 4th defendant was not raised. He was nominated and his name sent to the Kingmakers along with three others for consideration.

The learned trial Judge failed to do that. He went on after finding on the evidence that:-

“Fagbayi’s relations prevailed on him and he accepted pregnancy and Lagbende. As a result of the pregnancy the 4th defendant’s father was born and Fagbayi gave him Bamikunle as name.”

He went on to hold,

“I cannot find any acts of acknowledgement by Baale Fagbayi towards and in favour of Bamikunle, the 4th defendant’s father.”

Surely the acceptance of Lagbende’s pregnancy by Oba Fagbayi, naming of the child, are recognized acts of acknowledgement in Yoruba customary law. Learned trial Judge could not have ignored that finding. 4th defendant tendered Exhibit 13. It was his case that Dawodu returned to therein was his father. The 4th defendant’s father had also contested, but lost the coveted Baale of Otu Chieftaincy. This was disclosed by Exhibits 19 & 20.

Chief Babalola has argued that the court below could not set aside the finding merely on the claim that the father of 4th defendant had contested the Stool of Baale of Otu and that it was not contested that he was not a Prince. The Court of Appeal did not rely on that fact alone. The main consideration was that those facts constituted acts in recent years which in addition to his traditional history of his pedigree made his claim to paternity more probable than the story of the plaintiff that 4th defendant was not a member of the Opo Ruling House. A finding in disregard of such evidence is undoubtedly perverse. It does not follow from the evidence. The learned trial Judge was wrong to have made those findings of fact. The Court of Appeal was therefore perfectly entitled to set it aside and evaluate the evidence and come to a finding consistent with the evidence. I think the Court of Appeal was right to take into consideration all the evidence ignored by the learned trial Judge.

The second issue for determination is based on the eligibility of the 4th defendant for nomination in accordance with Exhibit K.

A consideration of this issue involves the interpretation of Exhibit K. Exhibit K is the Chieftaincy Declaration made under section 4(2) of the Chiefs Law 1957. The Opo and Ayilola Ruling I louses arc the only Ruling Houses recognised by the Declaration. There is an order of rotation. The relevant part of the declaration in this issue is paragraph (iii) which states:

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

1. Male members of the Ruling House.
2. Sons or previous holders of the title.”

Chief Afe Babalola, construing the declaration submitted that paragraph (iii) did not prohibit (a) contestants from a Ruling house other than the Ruling House whose turn it is to fill the vacancy. (b) Only male members of the Ruling House next entitled to present a candidate/ candidates for the Chieftaincy can vie for the stool. In his view the expression “sons of previous holders of the title” cannot be confined to the ruling house to which the contestant belongs as was held by the Court of Appeal. It was submitted that it did not matter whether the previous holder belonged to a different ruling house from the candidate tracing his entitlement to him. The Court of Appeal was in its interpretation importing into the provisions which were not in the declaration and were not intended by the legislation. The Court of Appeal was not entitled to do so. See Magor & St. Mellons R.D.C. v. Newport Corporation (1952) AC 189.

In his reply learned counsel to the respondent submitted that the correct interpretation of paragraph (iii) of Exhibit K is that qualification for a candidate for nomination for the Baale of Otu Chieftaincy must show that he must be a male member of the ruling house entitled to fill the vacancy, and must also be the son of a previous holder of the title from the ruling house entitled to fill the vacancy. Learned counsel submitted that the phrase “by a ruling house entitled to fill a vacancy in the Chieftaincy” is the controlling expression limiting the category entitled to apply. The expression appearing in the introductory part of the provisions of paragraph (iii) has limited the two following prerequisites of the person who may he proposed as a candidate to the Ruling House whose turn it is to produce the Baale of Out.

In construing the provisions of a statute it is important to have in mind the clearly defined objectives of such a statute. See Maizabo v. Sokoto N.A. (1957) 2 F.S.C. 13; (1957) SCNLR 142. In this case paragraph (ii) of Exhibit K states the order in which the respective ruling houses arc entitled to provide candidates to fill successive vacancies in the Chieftaincy to be

1. Opo. 2. Ayilola.

Thus the provisions will at anyone time, only be applicable to the ruling house entitled to provide candidates to fill the vacancy in the Chieftaincy. The two clauses are not to apply in the alternative. They are intended to be complementary. The absence of any connecting expression, such as ‘and’ between (i) and (ii) does not suggest that they should apply in the alternative. The two such clauses must be read together to give meaning and effect to clause iii. Unless so read. The intention of the declaration cannot be achieved. The words arc clear and unambiguous and are not subject to any other interpretation. – See Udoye v. State (1967) NMLR 197. The object of all constructions to discover the intention of the law-maker as is deducible from the language used – See Ifezue v. Mbadugbe (19R4) 1 SCNLR.427.

It is well-settled that where the words of a statute are clear and unambiguous, the ordinary meaning of the words used are to he adopted, except where this will lead to absurdity or injustice – Yerokun v. Adeleke (1960) 5 FSC 126, (1960) SCNLR 267; Ahmed v. Kassim (1958) 3 FSC. 51; (1958) SCNLR 28. Adopting the literal interpretation, there is no doubt that only male members of the Ruling House, who are son of previous holders of the title in such Ruling House entitled to present a candidate are qualified to contest.

It should be observed that not every male member of the entitled Ruling House falls within the category of persons entitled to contest. Such a broad definition will introduce members of the Ruling House not entitled at customary law to contest. On the other hand, the qualification “sons of previous holders of the title”, will limit qualification to contest to children of previous holders of the title only, thereby depriving their cousins whose fathers died without holding the title. As unjust as this provision is to the last mentioned, the words are clear and unambiguous to be given a different construction – See Ahmed v. Kasim (supra) Lawal v. G.B. Ollivant (1972).3 SC. 124. The meaning so given to the words is sensible and appropriate. I do not see that the construction given to the declaration leads to absurdity or some repugnancy or inconsistent with the rest of the declaration.

The construction suggested by Chief Afe Babalola that any male members of the family who can establish his connection with a previous holder of the title, even if not with the ruling house is entitled to present a candidate, seems to me to he inconsistent with the objectives of the Declaration, In his construction, it is immaterial whether the previous holder belongs to the particular ruling house because they all have a common ancestor. Such a construction if accepted will neutralise the principle or rotation as between ruling houses introduced by the Declaration. It will result in the importation or a concept not intended. Such construction will in my respectful view lead to absurdity and defeat the declared intention of the principle of rotation – See Osho v. Phillips (1972) 4 S.C. 259: Mobil v. F.B.I.R. (1977) 3 S.C. 97.

I shall now apply the principles of construction to the position of 4th defendant. I have already held in this judgment that 4th defendant is a male descendant of a previously holder of the title to Baale of Otu. He is also a descendant on the male fine. It seems to me that he falls within the qualification prescribed in Exhibit K.

The Court of appeal is therefore right in its construction of clause (iii) of Exhibit K when it held that

“to be qualified as a candidate. a person must be a male member of the ruling house whose turn it is to present a candidate or candidates and must be a descendant on the male line of a previous holder of the title of the Baale of Otu. And as the 4th defendant fulfils both conditions I hold he was qualified to be nominated a candidate by the Opo ruling house:’

It is important to observe that the words of clause 2 of paragraph (iii) are ”’sons of previous holders of the title.” These are wide enough to include any person from the particular Ruling House whose father, grandfather or ancestor had been the holder of the title. The other construction contended for which will limit eligibility to the children of the immediate past title holders, thus barring the Opo Ruling House forever, unless there are sons of an immediate demised holder cannot he read into that clause which is plain, simple and unambiguous. It should be read to convey the ordinary meaning of the words used.

Now, let us consider on the evidence before the learned trial judge whether he was right to have declared plaintiff entitled to contest the nomination. In the first place, it is common ground that on the death of Baale Awolola of Ayilola Ruling house, it was the turn of the Opo Ruling House to present a candidate/candidates. Thus, plaintiff to qualify must show that he is of Opo Ruling House and descends from a male member who was a previous holder of the title from Opo Ruling House.

In his finding of fact, against which there was no appeal the learned trial judge found that plaintiff is of the Ayilola Ruling House, and that “there is no evidence that any of the people through whom the plaintiff has claimed relationship in Opo Ruling House have ever been a Baale of Otu, so he cannot claim to be son of previous holder of the Opo ruling house.”

Despite this finding the learned trial judge went on to find the plaintiff eligible when he stated:

“‘But the plaintiff also lays claim to the Baaleship from his mother side when he said’ “‘My paternal grandmother is Yejide. Ayilola was Yejide’s father” Ayilola was the 1ST Baale of Otu having led his people there from Odo Ogun near Iseyin.

There is no doubt this claim is founded on the maternal relationship of the plaintiff to Ayilola, the 1st Baale of Otu. But the learned trial judge still held that plaintiff is a male member of the Ayilola Ruling House, and the son of a previous holder of the title. Whatever definition of the word “son” has been accepted, the dominant consideration is that the male member must be of the ruling House entitled under the declaration to present a candidate/candidates to fill the vacancy. It is therefore difficult to conceive how it could he justifiably and validly held that plaintiff, a male member of Ayilola house, who has traced his paternal ancestor as a previous holder of the title through his mother, can fall within the same definition of a contestant in the Opo Ruling House. The findings of the learned trial judge explicitly recognised that plaintiff was not a member of the Opo Ruling House and implicit in the same findings is that he was not eligible to contest the nomination to the vacant stool.

Plaintiff did not appeal against these findings in the Court below and is deemed to have accepted them.

I therefore agree with the finding of the Court of Appeal that the learned trial judge was wrong. It was clearly not the turn of the Ayilola Ruling House to present one or more of its members to fill the vacancy created by the demise of Baale Tijani Awolola of Otu. Plaintiff was therefore not eligible for nomination for the Baale of Otu Chieftaincy. This issue also is resolved against the appellant. Where the candidates are in all other respects evenly matched.

Since in the instant case the plaintiff and the 4th Defendant are not evenly matched, the plaintiff having been correctly held to be of Ayilola House. The 4th defendant has been held to be a direct descendant of Baale Fagbayi of Otu from the Opo Ruling House, and which is the ruling House entitled to present a candidate to fill the existing vacancy, there appears to me no basis for comparison of their relative merits for the appointment. The plaintiff is not qualified to contest for the appointment. The Court of Appeal was therefore right in their view that “In any event having held that the respondent. on the findings of the learned trial judge is not eligible to contest on the platform of the Opo Ruling House, the question of the extent of his popular support tapers into insignificance.” I wish at this point to discuss the question of the relevance of the popularity of the plaintiff. Chief Afe Babalola has submitted that the popularity of the candidate being one of the circumstances to be taken into consideration. The Court of Appeal was wrong to have held that the issue of popularity was insignificant having regard to their decision that the plaintiff was not eligible to contest nomination and appointment to the stool on the platform of Opo Ruling House. It seems to me a little difficult to appreciate the argument of Chief Afe Babalola, the refutation of which can be found in his argument itself. He contends that “it was misdirection for the Court of Appeal to hold at page 387 lines 11 to 15 that the question of popular support tapered into insignificance in view of their finding that the plaintiff was not eligible for nomination.” His argument was that “such a view could only encourage the imposition of a candidate whose ability, character and popular support do not bespeak the exalted office of a Baale.” I have not been persuaded that that is the invariable result. There is no doubt that the issue of consideration of popular support is as between two candidates equally qualified to be appointed. This is what section 15(1)(f)(iii) of the Chiefs Law can be construed to have provided when it said:

“in voting upon candidates the Kingmakers shall have regard to the relative ability, character and poplar support of each candidate. ”

This is predicated upon the fact that the candidates are from the same ruling house entitled to present a candidate, and are therefore equally entitled to be presented. Even in the case of candidates equally qualified, the kingmakers are not bound, but shall have regard, all other things being equal, to the appointment of the candidate with superior popularity. The expression “have regard” merely points to the additional factor which the kingmakers can take into account in tilting the balance of equality in favour of the more poplar candidate.

I now turn to the third issue. This issue concerns the validity vel non of the meeting of the Opo Ruling House on 19/3/81. The Court of Appeal set aside the finding of the learned trial judge that the meeting of the Opo Ruling House dated 19/3/81 wherein the candidates were nominated was invalid. The Court of Appeal reversed the trial judge on the ground that he declared the meeting invalid on the sole ground that the minutes were taken down by a non-member of the Opo Ruling House.

Chief Afe Babalola submitted that the Court of Appeal was wrong. His contention was that the trial judge did not invalidate the meeting of the 19th March. 1981, only on the ground that the minutes were taken down by an official of the local government council brought by the Secretary of the council, but also on the ground that (i) the deliberations at the meeting could have been influenced by the role played by the official with the concurrence of the Secretary (ii) the minutes told material lies about what happened at the meeting.

It was also submitted that the view of the Court of Appeal that oral evidence of the proceedings at the meeting of the 19/3/81 could still be relied upon if the minutes can establish the proceedings of the meeting. Accordingly if the minutes are shown to contain falsehoods, it means there is no evidence to establish the proceedings of the meeting; and any purported nomination at the meeting will be null and void.

Learned Counsel to the 4th, 5th and 6th respondents submitted in reply that the said nomination meeting of the 19/3/81 was valid, and the Court of Appeal was right in setting it aside. Learned Counsel pointed out the circumstances in which the Secretary to the Council and an official attended the meeting as an observer and how the official was accepted by the meeting to act as its secretary in respect of that meeting. It was submitted that section 15(1)(b)(d) of the Chiefs Law, Cap. 21 Vol. 1 Laws of Oyo State, did not stipulate the minutes of the nomination meeting shall be taken down in writing. There is also nothing prohibiting an official of the local Council taking minutes at the meeting.

It was submitted that there was no evidence before the learned trial judge from which he could come to the conclusion that the meeting could have been influenced by the mere recording of the minutes by an official of Iseyin Local Government Council.

The minute was tendered by 3rd witness for the plaintiff as reflecting the true and correct proceedings at the meeting. It was submitted that even if the minutes were discountenanced, the undisputed oral evidence of the parties on record of the proceedings was sufficient to satisfy the provisions of section 15(1)(b) and 15(1)(d) of the of Chiefs Law and the Baale of Otu Chieftaincy Declaration of 1960.

It was submitted that the only possible effect of the presence of the Secretary of the Iseyin Local Government and his official at the meeting of 19/3/81 is to render the proceedings irregular. Since it has nor been shown to have occasioned a miscarriage of justice, it cannot invalidate the nominations made at such meetings. It was finally submitted that the finding of the learned trial judge was accordingly perverse and the Court of Appeal was right in setting it aside.

It seems to me from the contention of Chief Afe Babalola that the gravamen of Appellants complaint against the meeting of the 19th March. 1981, when the nomination for the prospective Baale of Otu was made, is that Secretary of Iseyin Local Government was present at the meeting, and an official of the local Government took minutes of the proceedings at the meeting.

The meeting of the 19 March, 1981 in which plaintiff, the 4th defendant and two others, were nominated to contest the vacant position of the Baale of Otu was presided over by the Mogaji of the Opo Ruling House. Pa Gbadamosi Banmeke. It was a meeting convened under section 11(b) of the Chiefs Law for the purpose of making the nomination. Apart from the Secretary of the Iseyin Local Government, who was present as an observer, and an official of the Local Government who took minutes at the meeting, no person other than the member of Opo Ruling House was present.

I do not think that on the evidence before him, the learned trial judge can justify the finding for declaring the meeting of the 19th March, 1981 null and void. Both witnesses for the plaintiff and those for the 4th defendant agreed that the minute as recorded was correct. P.W.3. Stephen Adedokun Olaifa tendered Exh. C., as representing the minutes of the meeting, 4th defendant. D.W. 1. Gbadamosi Banmeke, who is the head of the Opo Ruling House and Samuel Omofoye, respectively gave similar evidence. It was not in dispute that Exhibit C or Exhibits D 6-9 correctly recorded the proceedings at the meeting. It is not also in dispute that Pa Gbadamosi Banmeke presided over the meeting as head of the Opo Ruling House. Furthermore, the decision arrived al the meeting is not disputed. The complaint is that the person who recorded the minutes is an official of Iseyin Local Government, and the presence of the Secretary to the Local Government.

It has been suggested, although not the case of appellants, that the presence of the Secretary and the Council Official at the meeting was sufficiently intimidating and overbearing and that it was capable of coercing the Opo Ruling House into coming to a decision it might not have taken. There was no suggestion that the minute of the meeting was falsified. Since there was no proof that the minutes did not represent what transpired, and oral evidence of the witnesses have been ad idem its to what happened al the meeting of the 19th March, 1981, a criticism of the minutes is only based on considerations aliunde, and not on factors capable of rendering the meeting invalid.

I agree with the Court of Appeal that the fact that the minutes of the meeting was taken down by a non-member of the Opo Ruling House is not sufficient reason for invalidating it except that is a statutory disqualifying condition. In any event the provisions of the Chiefs’ Law which prescribed the holding of the meeting did not anticipate the recording of minutes at such meeting. In my view, the intention was to create a forum for the family to nominate those eligible to contest. Beside section 15(1)(d) of the Chiefs Law, renders lawful attendance as an observer by the Secretary at meetings of the ruling house, upon directives issued by the Commissioner of Local Government and Chieftaincy Affairs.

Finally, there is no rule which makes the recorded minutes, the only admissible evidence of what transpired at the meeting. On general principle, where the parties are ad idem as to the matter in dispute, the minutes of the meeting appears to me hardly relevant, and will not he a stronger evidence. Rather, the minutes will be falsified by such evidence. The Court of Appeal was in as good position as the trial judge in the circumstances of this case to evaluate the facts and reach a decision consistent with the facts. The considerations relied upon by the learned trial judge for declaring the meeting of the 19th March, 1981 invalid, did not follow from and could not have reasonably been deduced from the evidence before him. The finding being perverse, the Court of Appeal was right in setting it aside and making a finding consistent with the evidence which the learned trial judge ought to have made if he had properly evaluated the evidence before him.

The learned trial judge also set aside the decision of the Kingmakers appointing the 4th defendant, the new Baale of Otu. Chief Babalola has attacked the decision or the Court of Appeal reversing the trial judge on the ground that the Court of Appeal was wrong in the reasoning that the Kingmakers could only exercise one vote each and exhausted their votes on the two candidates voted upon. They had complied with the provisions of section 15(1)(f)(iii), Chiefs Law. Cap.21 of Oyo State. It was argued that since four candidate were nominated, the kingmakers were obliged to vote on all the candidates, and that failure to do that is a non-compliance with the mandatory provision of section 15(1)(f)(iii).

It was submitted that the conclusion of the Court of Appeal that the Kingmakers not objecting to the presence of the secretary to the Local Government constituted a waiver of their right is untenable. Learned Counsel argued that the question of a waiver of any personal right did not arise since no personal right was involved – He cited on Ariori & ors. v. Elemo & ors. (1981) 1 S.C.13: (1981) 1 SCNLR 1. It was finally submitted that the doctrine if waiver can only be raised against a person who having abandoned his rights or benefits is seeking subsequently to rely on such rights or benefits. The Kingmakers arc not in that situation.

Before considering this respect of this appeal. I prefer to set out the statutory provisions enabling the Kingmakers to make the appointment and to consider the disqualifying conditions stipulated therein.

Section 14(1) of the Chiefs Law Cap, 21 of Oyo State provides as follows-

A person shall, unless he is disqualified, be qualified to be a candidate to fill a vacancy in a recognized chieftaincy if-

(a) he is proposed by the ruling house or the persons having the right to nominate the candidate according to customary law: and

(b)(i) if he is a person whom the ruling house or the persons having the right to nominate candidates arc 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.”

There is no doubt 4th defendant was proposed by the Opo Ruling House which is the Ruling House entitled to nominate candidates according to customary law. It has neither been alleged nor established that 4th defendant is disqualified, within the disabilities prescribed in section 14(2) of the Chiefs law. These are that he:-

(a) suffers from serious physical infirmity; or

(b) has under any law in force in Nigeria, been found or declared to be a lunatic or adjudged to be of unsound mind; or

(c) has, in any part of the Commonwealth –

(i) been sentenced to death or imprisonment for a term exceeding two years; or

(ii) been convicted of an offence involving dishonesty and sentenced to imprisonment there for, and has not been granted a pardon.

The above are the preconditions for the valid exercise of the kingmakers of the power to make the appointment.

The procedure for the filling of a vacancy in a Ruling House Chieftaincy has been prescribed in S.15 of the Chiefs Law. The procedure is as follows-

(a) Not later than 14 days of the occurrence of the vacancy, the secretary of the competent Local Government Council shall announce the name of the Ruling House entitled to fill the vacancy.

(b) Not later than 14 days after the announcement in (a) the relevant

Ruling House shall submit the name of a candidate or candidates to the Kingmakers.

(c) If the ruling house entitled to provide a candidate or candidates fails to do so within the stipulated period of 14 days, the next ruling House will be called upon to provide a candidate within 14 days immediately following an announcement of their entitlement to do so.

Section 15(2) prescribes the method for the announcement of the vacancy in the Chieftaincy. These are (1) be delivering a notice in writing to the ruling house concerned and (2) by publishing a notice in the manner required by the local Government Law, for the publication of notices of a Council, and (3) by giving notice in any manner required by customary law within 14 days of the occurrence of the vacancy. I think the methods are in the alternative. The word “and” connecting the distinct alternatives should be read as “or” to give meaning and effect to the sub-section.

After the above procedure, where applicable has been complied with the name or names of the candidate or candidates will be submitted to the Kingmakers. The Kingmakers shall not more than seven days after the submission to them of the name or names of the candidate, proceed to select a person to fill the vacancy.

It is important to observe that the word “shall” which is predatory rather then directive has been used in all the paragraphs of the section. Compliance is therefore binding and not left to the discretion of the person to whom the section imposes the duty.

This now brings us to whether the learned trial judge was right in invalidating the meeting of the Kingmakers. It could be seen from the plain words of section 15(1) (e) of the Chiefs Law, Cap.2 Laws of Oyo State, that the Kingmakers are required to proceed to select a person to fill the vacancy within not more than seven days after the submission of the name to them.

Hence in order to declare the nomination by the ruling house or selection by the Kingmakers invalid, it will be necessary to show that the nomination is not in compliance with sections 14 or 15 of the Chiefs Law discussed above as the case may be, See Afolabi v. Gov. of Oyo State (1985) 2 NWLR (Pt.9) 734 where failure to announce the appropriate ruling house was regarded as breach of S.15(1).

I have already considered the question of the validity of the meeting of the Ruling House in this judgment. The learned trial judge gave the following reasons for invalidating the meeting of the Kingmakers of the 11th July, 1981. First, there was present at the meeting, officials of Iseyin North Local Government. Secondly, the Kingmakers voted for only two of the four candidates submitted to them for consideration.

I shall consider these two reasons in that order. The contention that attendance at the meeting of the kingmakers of the 11th July, 1981 invalidated the meeting, seems to me to be relying on irrelevant considerations in determining the validity of the meeting. It is helpful to set out the two provisions of section 15(1) relating to the holding of meetings in respect of the nomination and appointment of candidates to a vacant chieftaincy.

Sub-section (1)(d) and (e) provide,

“‘(d) it shall be lawful for the secretary to attend as an observer any meeting of the ruling house mentioned in sub-paragraphs (b) and (c) of this sub-section upon directives issued in that behalf by the Commissioner for Local Government and Chieftaincy Affairs;

(e) Within not more than seven days after the submission of the name of a candidate or candidates the kingmakers shall proceed to select a person to fill the vacancy in accordance with the provisions of paragraph (c) of this sub-section;”

I think, the reference is to sub-paragraph (1). This is because it is that subparagraph which prescribes the method of selection.

Now, it is clear that sub-paragraph (d) refers to (b) and (c) which concern the meeting of the Ruling House relating to the nomination of candidates. This paragraph renders lawful attendance at such meeting by the Secretary of the Local Government. On the other hand, the provision of sub-paragraph (e) is silent on the issue. It neither prohibits nor permits. It is however clear from the provisions of sub-paragraph (f) that the Kingmakers will deliberate on their selection at a meeting. The question is whether presence of the secretary and officials per se invalidates the meeting. I do not think mere presence of the secretary and officials at the meeting of the Kingmakers without more is sufficient of invalidate the meeting.

There was no evidence that they participated in the meeting and contributed in the deliberation to select the successful candidate. It is clear from the evidence before the learned trial judge that there was no dispute about the decision of the kingmakers. The three kingmakers, namely, the 5th, 6th and 7th defendants agreed with the result of the election. It was also evident from their testimony that only the three kingmakers deliberated and participated in the selection of the 4th defendant. It is clear that they were not influenced by the presence of the secretary of the Local Government and his official as was being suggested by learned counsel to the appellant.

The second reason for invalidating the meeting of the Kingmakers is that of the alleged non consideration of two of the four contestants submitted to them. I do not think Chief Afe Babalola is right in his submission that the two other contestants who did not score any vote were not considered. Learned Counsel had relied on the contention that the two contestants who are alleged not to have been considered, are not parties to the action, and also that the action was not brought in a representative capacity. No issue was joined in respect of the non-consideration of the candidature of these other contestants.

The position is clarified by sub-paragraph (ii) of paragraph (f) of the sub-section which state –

“(ii) if the names of more than one candidate are submitted who appear to the kingmakers to be qualified, and not disqualified in accordance with section 14, the names of those candidates shall be submitted to the votes of the kingmakers and the candidate who obtain the majority of votes or the kingmakers present and voting shall be declared appointed.”

The Kingmakers exercised their power by voting as required under this subparagraph. Since there were only three Kingmakers, and each entitled to one vote in respect of the candidates, each Kingmaker had to vote only once for a candidate of his choice. Two of the Kingmakers 5th & 6th Defendants voted for the 4th defendant. The 7th defendant voted for the plaintiff. This resulted in the 2 votes for the 4th defendant, and the one vote for the plaintiff. All the Kingmakers having exhausted their votes, the other two contestants had nil. It is therefore not correct that they were not considered: and that the provisions of section 11(1) (f) (ii) was therefore not complied with. There was therefore no justification for the learned trial judge invalidating the meeting of the Kingmakers of the 11th July, 1981. The Court was therefore right in setting it aside. I endorse their finding. I have held on my construction of section 15(1)(e) that the presence of the secretary of the Council and other officials al the meeting of the Kingmakers, not as participants, but as service officials, does not affect the deliberations of the Kingmakers and consequently the decision at their meeting. Accordingly the question of the waiver of the right to exclude persons did not arise and was not necessary for consideration. Chief Afe Babalola was right in his submission that the issue here is not one of abandonment of any personal right or benefit conferred on the Kingmakers by statute since they were not concerned in the selection or the candidate exercising a personal right. The performance of their duty under the provisions of section 15(1)(f)(iii) of the Chiefs Law of Oyo State, Cap. 21 was in discharge of a public duty.

For the reasons I have given above, the appeal fails and is hereby dismissed. Appellant shall pay costs assessed at N1,000 to the 4th, 5th and 6th respondents.S. KAWU, J.S.C.: I have had the advantage of reading, in draft, the lead judgment of my learned brother. Karibi-Whyte, J.S.C., which has just been delivered. I agree with him and for the reasons lucidly set out in the lead judgment. I too will dismiss the appeal with N1,000.00 costs awarded to the respondents.A. B. WALI, J.S.C.: I have the privilege of seeing before now, a copy of the lead judgment of my learned brother. Karibi-Whyte, J.S.C., I entirely agree with his reasoning and conclusion and endorse the same as mine.

For those same reasons stated in the lead judgment, I also hereby dismiss the appeal with N1,000.00 costs to the 4th, 5th and 6th respondents.

E. O. OGBUEGBU, J.S.C.: I have had the preview of the judgment of my learned brother, Karibi-Whyte, J.S.C. I agree with the reasons and conclusion therein. I adopt the judgment as mine and do not wish to add anything to it.

Accordingly, the appeal fails and is dismissed by me. I abide by the order as to costs made in the lead judgment.

U. MOHAMMED, J.S.C.: I have had the advantage of a preview of the lead judgment of my learned brother, Karibi-Whyte, J.S.C., just read. I agree entirely with his reasoning and conclusions. I have nothing to add. I agree that there is no merit in the appeal and I dismiss it with N1,000.00 costs to each of the 4th, 5th and 6th respondents.

Appeal dismissed.

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SC.206/1987