Gabriel O. Okeshola V. The Military Governor of Oyo State & Ors (2000)

LawGlobal-Hub Lead Judgment Report

MUKHTAR, J.C.A.

This is an appeal against the judgment of Kolawole J. of the Oyo State High Court sitting in Ibadan. The claims of the plaintiff (who is now the appellant) in that court as per the writ of summons are as follows:

1. Declaration that under the system regulating succession to the stool of Baale of Pako it is the turn of Omusulaja family to nominate a candidate or candidates for appointment to the vacancy in the Baale of Pako chieftaincy.
2. Declaration that the kingmakers for appointment of the Baale of Pako chieftaincy are the Odofin, Balogun and Jagun of Pako.
3. Declaration that the purported nomination and of appointment of the 3rd defendant of Pako chiefs in council is illegal, irregular, wrongful, invalid and in breach of the customs relating to Pako chieftaincy.
4. Declaration that the direction of the 1st defendant contained in letter Ref. No. CB. 141.175/18/88 of 9th October, 1987 asking the 2nd defendant to approve the appointment of the 3rd defendant as Baale of Pako is illegal without or in excess of jurisdiction, irregular, wrongful and null and void.
5. An order setting aside the said letter.
6. An order directing the 2nd defendant to approve the appointment of the plaintiff as the Baale of Pako forthwith.
7. Injunction restraining the defendants by themselves, their agents, servants and or privies or otherwise howsoever from approving or recognising the 3rd defendant as the Baale of Pako.
8. Injunction restraining the 3rd defendant from parading himself as the Baale of Pako.

The summary of the case of the plaintiff is that, he was nominated by the Omusulaja family of Pako to fill the vacancy created by the demise of Baale Alli Adebisi Ajibade in April, 1984, and it became the turn of Tubi ruling house to present a candidate. Three branches of Tubi ruling house exist. The plaintiff’s name was forwarded to the kingmakers who appointed him the Baale of Pako and forwarded his name to the prescribed authority, the Baale of Igboora (the 2nd defendant). The 3rd defendant from Iwo-Lafisagba branch of Tubi ruling house was presented to the 2nd defendant; hence there was a dispute on whose appointment to approve. The 1st defendant in a letter dated 9th October, 1987 requested the 2nd defendant to approve the appointment of the 3rd defendant.

The 1st defendant denied most of his averments and asserted that the kingmakers held a meeting at Odofin’s house on 23rd February, 1986 and elected the 3rd defendant with 8 votes against 3 votes for the plaintiff. As a result of the dispute in the appointment there was an investigation, and after the investigation, another election which still saw the 3rd defendant as the winner was held.

Witnesses gave evidence and counsel addressed the court. Learned trial Judge appraised the various evidence, and at the end of the day granted two reliefs to the plaintiff. The plaintiff was unhappy with the decision, and appealed to this court on 6 grounds of appeal. Counsel exchanged briefs of argument which were adopted at the hearing of the appeal. Issues for determination were raised in each brief of argument. Six issues were formulated in the appellant’s brief of argument, and they read:-

(i) Whether on the evidence before the court the learned trial Judge was justified in failing to hold that there are traditionally only three kingmakers for the Baale of Pako chieftaincy.

(ii) Whether the learned trial Judge was justified in refusing to hold that appointment to the Baale of Pako chieftaincy is rotational when there was clear and satisfactory evidence before him in favour of such holding.

(iii) If issues (i) and (ii) are determined in the negative, whether the nomination and appointment of the 3rd defendant as Baale of Pako were valid considering that the same were not made by the Omosulaja family and the three traditional kingmakers of Pako respectively.

(iv) Whether the Executive Council is empowered under the law to approve the appointment of a minor chieftaincy office holder.

(v) Whether the prescribed authority over a minor chieftaincy can be compelled by the executive council to exercise his powers in a particular way.

(vi) Whether the learned trial Judge was right in making an order not sought by any of the parties before him.

The 1st and 3rd respondents adopted the above issues in their briefs of argument.

I will start the treatment of this appeal with the first issue supra. The number of kingmakers entitled to appoint the Baale of Pako under the Pako native law and custom is the crucial point of this issue. The appellant in paragraphs 15 and 16 of the statement of claim pleaded the number as follows:-

15. The kingmakers entitled to appoint the Baale of Pako under the custom and tradition of Pako are the Odofin, Jagun and Balogun and they (minus the Balogun, then deceased) were the ones who appointed the plaintiff.
16. The kingmakers could under the Pako custom act notwithstanding any vacancy in their number and at their discretion could appoint any of the lesser chiefs in Pako to sit with them when deliberating over an appointment.

The evidence adduced to prove the above averments are:-

P.W.1:-

The kingmakers for the Baale of Pako chieftaincy are (1) Odofin (2) Lagun (3) Balogun and sometimes two other minor chiefs in Pako.

It is not correct that all the chiefs in Pako are kingmakers for Baale of Pako chieftaincy.

When cross-examined P.W.1 said:-

“Any of the chiefs can be accepted to assist the kingmakers in the appointment of Baale.”

P.W. 2 in his evidence testified thus:

“The kingmakers for the Baale of Pako chieftaincy are chiefs Odofin, Lagun, Balogun. These are the three kingmakers but if they like they can choose one of the lesser chiefs to join them as the 4th kingmaker.” (Italics mine).

The above pieces of evidence are not in consonance with paragraphs (15) and (16) of the plaintiff’s statement of claim supra.

The 3rd defendant in paragraphs 17 of his statement of defence averred:-

17. With reference to paragraphs 15 and 16 of the statement of claim, the 3rd defendant avers that all the Chiefs-in-Council always act as kingmakers for the appointment of a new Baale of Pako as none of the Pako Chiefs is by custom, specially named as kingmakers to the exclusion of the rest of the chiefs.

The 3rd defendant adduced evidence to the effect that all the Chiefs of Pako are usually involved in the appointment of Baale. I am however particularly drawn by the evidence of D.W.4 who in course of examination-in-chief in laying down past precedence of appointments of Baales of Pako gave the following piece of evidence.

“I knew the late Bale Ajibade. I took part in his appointment. Four kingmakers selected him. The four kingmakers were the Odofin Ogunbowale, Baase Adeleke, Balogun Adeogba and I.”

Interestingly he immediately further said:-

“All the Chiefs of Pako appoint the Baale of Pako. All the Chiefs of Pako are kingmakers for the Baale of Pako chieftaincy.”

I find it difficult to reconcile the two pieces of evidence, both given virtually in the same breath, for whereas the former seems to support the case of the plaintiff, the latter is the opposite. It was as though the witness after giving the former evidence suddenly became alert to his responsibility to the court and immediately changed gear.

But the D.W. 7, the son of the said Ajibade in his evidence asserted that there are no kingmakers in Pako, and that all the chiefs elected his father. Another chief, Olayiwola Sangodare confirmed the pieces of evidence thus:-

“All the living chiefs of Pako that attend are the kingmakers for the Baale of Pako chieftaincy. The late Baale of Pako was chief Adebisi Ajao Ajibade. After his death, we the kingmakers did something to appoint a new Baale.”

Learned Counsel for the appellant made heavy weather of the evidence of D.W.4 on the appointment of Baale Ajibade (reproduced above) which he says corroborates the plaintiff’s evidence and placed reliance on the case of Mogaji v. Odofin (1978) 4 S.C. 91. I agree that the Supreme Court held that evidence given by a witness against the party that called him is an admission against that party and it carries a very heavy weight, but in this case it can be seen that D.W.4 made two conflicting statements immediately after the other. As I said above, virtually in the same breath. It was not as though it took the rigour of cross-examination to elicit the second later statement from him. It was as though he made a mistake which he immediately corrected on his own. One can observe that they are contained in the same paragraph. To illustrate this view point are the following pieces of evidence given under cross-examination that are consistent with his earlier evidence on the composition of the body that appoints a Baale of Pako.

“There is no permanent body of king makers in Pako. It is only those who are appointed by the body of chiefs ad hoc to carry out a particular exercise that forms the body of kingmakers for that exercise.

All the chiefs appointed Alayande. I do not know precisely the number of the chiefs who appointed Alayande…

….

….

…

It is also true that all the chiefs of Pako thumb printed the letter of appointment of Kutemu which was sent to the Olubadan ..

….

….

Baale Omilana was appointed by fourteen Pako chiefs and they all thumbprinted his letter of appointment.”

I think the above pieces of evidence clarified whatever uncertainty the former piece of evidence of D.W.4 reproduced earlier in this judgment, may have created. It is as clear as crystal that his evidence was to the effect that all the chiefs of Pako are involved in the appointment of Baale of Pako. At any rate the appellant cannot rely on that former evidence because it is not entirely in support of his case, which was predicted on a different composition that was short of one. See paragraph (15) of the statement of claim which is reproduced above. The evidence is contrary to the averment and the plaintiff’s evidence. See the case of Chief Igunbor Igbodim & Ors. v. Chief Ugbedo Obianke & Ors. (1976) 1 NMLR 212 cited in the 1st respondent’s brief of argument. A party can only draw support from such evidence If, it is consistent with and corroborates his own case. Although in the case of N.B.N. Ltd. v. T.A.S.A. Ltd. (1996) 8NWLR (Pt. 468) 511, I said a party can take advantage of the opponent’s case that supports his case, the evidence must really support his case. I endorse the argument of learned counsel for the 3rd respondent that it is not the 3rd defendant who should show that there are more than three kingmakers for the Baale of Pako chieftaincy, but rather it is the plaintiff who should show that there are only three kingmakers. His reliance on the case of Solomon v. Mogaji (1982) 11 S.C.1 is in order. It is trite law that he who asserts must prove. See sections 135, 136 and 137 of the Evidence Act, Cap 112, 1990, Laws of the Federation of Nigeria. A cardinal principle of law is that in civil cases a party must prove his case on credible and cogent evidence, for such cases are determined on preponderance of evidence and balance of probabilities. See Elias v. Omo-Bare (1982) 5 S.C. 25, Imana v. Robinson (1979) 3-4 S.C.1 and Umeania v. Emodi (1996) 2 NWLR (Pt. 430) Page 348.

It is also trite that a plaintiff must prove his case with credible and cogent evidence to succeed in his claims on the strength of his case, as the law does not allow him to rely on the weakness of opponent’s case. See Egonu v. Egonu (1978) 11/12 S.C.111, Piaro v. Tenalo (1976) 12 S.C. 31, and Atuanya v. Onyejekwe (1975) 3 S.C. 161. There are however exception to this rule, where a defendant is counter-claiming and there are facts in the defendant’s case that supports the plaintiff’s case. See Eholor v. Osayande (1992) 6 NWLR (Pt. 249) Pages 524, and Progress Bank (Nig.) Ltd. v. Ugonna (Nig.) Ltd. (1996) 3 NWLR (Pt. 435) Page 202.

In my opinion, there is no weakness in the case of the defendants that the plaintiff/appellant can rely upon, bearing in mind my views on the variance in the pleadings of the plaintiff and the evidence of D.W.4 he sought to draw support from. In the instant case the plaintiff did not adduce cogent evidence or tender any document to prove his case that there are only three kingmakers for the appointment of Baale of Pako, whereas the defendants tendered Exhibits ‘Q’ and ‘H’. I will reproduce the pertinent portions of these exhibits here. Exh. “H”, a report of discreet investigation conducted by the Secretary Ibarapa Local Government to the Baale of Pako Chieftaincy Dispute has on page (7) the following pertinent extract of the report:-

“He admitted that, he was still maintaining his title as Odofin when late Chief Ali Ajibade was appointed Baale of Pako and that he and Chief Balogun were the oldest Chiefs then. He concluded that the traditional procedure for appointment of Baale of Pako is as follows:-

The family ruling house would present candidate to him and he would in turn present him before the Pako Chiefs at a meeting to ratify the nomination before being finally blessed by the Baale of Igbo Ora who is the prescribed authority.”

(Italicising is mine)

On page (3) of Exh. ‘Q’ which is the report of the inquiry into the vacant stool of Baale of Pako in Igboora the following was stated:

“(b) Chief Sangodare – Otun of Pako;

He re-stated that at the meeting of Chiefs, Lamidi Akinyemi had eight votes while Okesola Isola had three votes. He was surprised why Odofin has turned round to alter the decision of a majority of the chiefs. Whereas he presided over the meeting at which the votes were cast.”

The above all re-affirm the case of the 3rd defendant that more than three chiefs of Pako took part in the exercise of the appointment of Baale of Pako. Learned counsel for the appellant attacked the reliance on Exh. ‘B’ by the learned trial Judge, and argued that such document is not within S. 198 of the Evidence Act, proof of its content, and that the trial Judge was wrong to treat the said Exh. ‘B’ as legal evidence. He placed reliance on the cases of Ajide v. Kelani (1985) 11 S.C. 120; (1985) 3 NWLR (Pt.12) 248, and Ayinde v. Salawu (1989) 3 NWLR (Pt.109) Page 297 and S. 91 of the Evidence Act Cap. 112 1990 Laws of the Federation of Nigeria. On the other hand S.91(1)(4) of the said Evidence Act which learned counsel for the 1st respondent has referred this court to, in response to the supra submission provides that:-

“91(1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied:-

(a) If the maker of the statement either;

(1) Had personal knowledge of the matters dealt with by the statement;

(4) For the purposes of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part thereof was written, made or produced by him, with his own hand, or was signed or initialed by him or otherwise recognised by him in writing as one for the accuracy of which he is responsible.”

Exh. ‘B’ having come within the above provision and having not been objected to by the other counsel was properly admitted, and the learned trial Judge was at liberty to rely on it. It is on record that Exh. ‘B’ was tendered in court through Odofin of Pako the witness of the plaintiff, and it is also on record that the said exhibit was admitted without any objection from any counsel. I fail to see that Exh. ‘B’ is unreliable or was wrongly admitted in view of the provisions of the Evidence Act reproduced supra and I fail to see that the reliance thereon by the learned trial Judge is wrong. In Exh. ‘B’ a letter written by the Secretary of Pako Chiefs addressed to Council of Obas, Ibarapa dated 10/3/79, and titled vacant stool of the Baale of Pako Igboora ‘filling of:-

Four Chiefs, who purportedly acting for the Chiefs of Pako wrote:-

“We, the undersigned, have been mandated by the entire chiefs of Pako quarters in Igboora, to inform your office that the entire Ajon Ruling House has presented before us for consideration, approval or otherwise, the name and person of Chief Alliu Ajao Adebisi the present Sobaloju of Pako to fill the stool of Baale of Pako which became vacant a couple of months ago.

2. We are therefore, in return, presenting the said Chief Alliu Ajao Adebisi as a person to fill the vacant stool after a careful and studied consideration.”

(Italicising mine).

The letter was tendered for the purpose of proving the past precedence of the appointment of Baale of Pako by more than three chiefs of Pako, as is the case of the plaintiff. It confirms the case of the 3rd defendant that all the Chiefs of Pako form the body that is concerned with the appointment. The above content of Exh. ‘B’ therefore went a long way into convincing the court that long standing practice of the appointment of Baale of Pako is that all the Chiefs in Pako are usually involved, and it is not confined to only three Chiefs as postulated by the plaintiff/appellant. The other chiefs as is signified in Exh. ‘8’ are not precluded in the exercise.

I am therefore satisfied that the contents of Exh. ‘B’ ‘H’, Q’ and all other relevant oral evidence, combined together. Influenced the learned trial Judge in finding and holding thus:-

“But when one considers his (the Odofin’s) concession that all the chiefs of Pako may be presented at the meeting where a Baale of Pako is to be appointed, albeit as mere onlookers and that these other chiefs were so present when Alli Ajibade was appointed, I am prepared to believe and I do believe that the evidence that all the Chiefs of Pako form the body of kingmakers of Pako is the correct version of the history of Pako in this regard. When one looks at the way Exhibit ‘B’ is written too, one is bound to agree that the four Chiefs who wrote or were supposed to write Exhibit ‘B’ did so on behalf of the other chiefs of Pako…

If the 1st P.W. said that all the Chiefs of Pako were present at the meeting at which Alli Ajibade was appointed and the four chiefs who forwarded his name to the Baale of Igboora as per Exhibit ‘B’ that they were mandated to do so by the entire chiefs of Pako, I am prepared to hold, and I do hold that it is the entire chiefs of Pako who made the appointment of Alli Ajibade, I am prepared to go further and hold that it is the entire chiefs of Pako who form the body of kingmakers. There is evidence which I believe that when Chief Wale Adeniran asked the Odofin Ogunbowale (1st P.W.) if there were any special kingmakers, he said ‘no’ and said that a tree does not make a forest.”

The above findings are not in any way perverse as they are in my view borne out of evidence, which the learned trial Judge painstakingly evaluated. I therefore hold that the learned trial Judge did not err, for he drew the right inference from the facts before him as he is entitled to do under the law. See Kalio v. Woluchem (1985) 1 NWLR (Pt. 4) Page 610. In the light of the foregoing discussions I will answer issue (1) supra in the affirmative and dismiss ground of appeal No. (1) to which it is married.

I will now proceed to issue No. (2) supra which revolves around the rotational aspect of the Tubi ruling house. In paragraphs (6), (9) and (10) of the statement of claim, the plaintiff made the following averments.

6. Within the Tubi ruling houses there are three branches namely:

(i) Alayande

(ii) Iwolafisagba/Adele/Omusulaja and

(iii) Ogunbi

9. The last Baale of Pako came from Ajon ruling house and according to the rotational order followed in succession to the chieftaincy; it is now the turn of Tubi ruling house to present a candidate for the stool.
10. According to the custom relating to the chieftaincy, it is now the turn of Omusulaja family to present a candidate for the stool.

At this juncture, I will look at the various pieces of evidence that were adduced by the plaintiff in support of the above averments. P.W.3 Chief Kareem Olabode the Jagun of Pako testified thus:-

“After the death of Baale Alli Ajibade, the Omusulaja family nominated the plaintiff as the next person to become Baale … There were meetings of the Tubi ruling house held to resolve the dispute between the plaintiff and the 3rd defendant over the chieftaincy.

The Omusulaja and Adele families agreed that Omusulaja should present the candidate but the Iwolafisagba had a Baale as recently as 1956 – 1964 whereas Adele has never had a turn and that they (Iwolafisagba) should wait but they did not agree.”

P.W. 2 under cross examination by Counsel for the 3rd defendant/respondent further said:-

“There had been Baale of Pako from Omusulaja in the distant past. There have been Baale from Alayande and Iwolafisagba. I would not know if Ogunbi Had produced a Baale in the past. The Adele family has not produced a Baale.”

The P.W.3 the plaintiff/appellant himself gave the following evidence:-

“Iwolafisagba family had also had one Baale. He was Akinyemi the father of the 3rd defendant.”

…Omusulaja family also had had a Baale. That was during the Dahomean war of the country. It was not at the present Pako. It was the original homestead of Pako. The Baales from Alayande family and that from Iwolafisagba who was the father of the 3rd defendant reigned in the present Pako. The Omusulaja family has not had a Baale in the present Pako. The Adele family has not had a Baale whether at the old or new site of Pako. The Ogunbi family too has not had a Baale either in the old or new site of Pako.”

What the above pieces of evidence portend is that Iwo lafisagba and Omusulaja branches of the ruling house have enjoyed the Baaleship of Pako in the past, to the exclusion of the Adele branch. When one takes note of the evidence against the backdrop of P.W1’s evidence under cross-examination one is bound to conclude that the Baaleship of Pako has not been strictly on rotational basis within the Tubi Ruling House. The relevant evidence of P.W.1 under cross-examination reads:

“I have known eight Baales of Pako in my lifetime. I did not know Baale Fadeyi personally but I learnt of him in history. I know that he came from Omusulaja branch of Tubi ruling house, Baale Akinyemi was from Iwolafisagba branch of the Tubi ruling house. Baale Omilana was from Omoni ruling house. Baale Ajibade was from Ajon ruling house.”

If the Baaleship of Pako was rotational, then how come that Adele family never produced a Baale of Pako? Baale Fadeyi from Omusulaja branch of the Tubi ruling house was long ago Baale, and now in the exercise that is presently in controversy another Omusulaja family member of the said Tubi ruling house was nominated. I cannot reconcile the two pieces of evidence. In fact, the evidence of the plaintiff/appellant has not proved that the Baale of Pako rotated amongst the other ruling houses, since there is no evidence to prove that Ogunbi and Adele ruling houses produced Baales of Pako. Indeed, the facts before the learned trial Judge were so much against the case of the plaintiff that he was constrained to make the following finding:-

“I cannot therefore accept the submission that there is a rotation amongst the families within each ruling house. If there is such a rotation, they the Adele and Omusulaja families must take their turns before Alayande, Iwolafisagba and Omusulaja families who had had turns in the past…

The plaintiff has therefore not proved which family’s turn it is to present a candidate or that it is his family’s turn to present a candidate.”

I cannot see that the learned trial Judge erred by making the above finding. To this end I endorse the submissions of learned counsel for the 1st and 3rd respondents that the plaintiff will only be entitled to judgment if the trial Judge accepted his evidence and if such evidence supports his case. They relied on the case of Borno Holding Company Ltd. v. Bogoeo (1971) 1 All NLR 324. For the foregoing reasoning, I answer this issue in the affirmative and thus dismiss the ground of Appeal No. (3) related to it.

The argument under issue (3) supra is hinged on the result or outcome of the discussions on the two issues have been answered in the affirmative, and so the court has found that all the chiefs of Pako are involved in the appointment of Baale of Pako, and that the plaintiff/appellant has not proved that it is the turn of Omusulaja family to present the next candidate for the appointment of the Baale of Pako. This, being the position the only point to be considered under this issue is the validity or otherwise of the nomination and appointment of the 3rd defendant/respondent. In determining this point I believe the content of Exh. G1(5) will be of great assistance, so I will reproduce it here below. The Exhibit G 1(5) from Tubi ruling house, and addressed to Pako Chiefs-in-council reads as follows:-

“Nomination to the stool of Baale Pako:

Reference to our meeting of 20th July, 1986 with you instructing our ruling house to start on the nomination to Baale Pako Stool. Denovo, the five families have met and finally came out with these resolutions.

Two nominations were made. The first nomination was for Mr. Lamidi Olayide Akan Akinyemi which was supported by the following families:

(1) Alayande (2) Ogunbi and (3) Iwo lafisagba.

The second nomination was for Mr. Okesola Isola which was supported by the following families:

(1) Omusulaja and (2) Adele.

As the two nominees are from Tubi ruling house we hereby forward the two names to you for suitable consideration and for onward transmission to the prescribed authority.”

On the appointment of the kingmakers, it is on record that only three of the Chiefs of Pako refused to vote for the 3rd respondent. See Exhibit ‘Q’. Evidence abound in the lower court that there are more than 9 chiefs in Pako, and Exh. G1(4) is of one of the evidence, for thereon are names of twelve chiefs and if three refused to vote for the 3rd respondent, then the majority voted for him.

In view of the above evidence I hold that the learned trial Judge was correct when he held:-

“In my view, they were both validly nominated and as I have held that all the chiefs of Pako form the body of kingmakers, the appointment of the 3rd defendant by the kingmakers by a majority is also valid.”

Issue No. (3) supra is thus resolved in favour of the respondents. Consequently ground of appeal No. (5) fails and it is dismissed.

Issue (4) supra deals with the validity or otherwise of the appointment of the 3rd respondent by the Oyo State Government. It is on record that even though the 2nd respondent was the prescribed authority at the time of the nomination exercise, his power as the prescribed authority was revoked vide Exh. ‘K’ Oyo State Legal Notice No. 12 of 1988, titled, “The Prescribed Authorities (Delegation of Powers) (Revocation) Notice, 1988”, bears 5th January, 1988 as date of commencement, even though it is dated 12/5/88. Paragraph (2) of the notice states:-

“2. The delegation of powers conferred upon the Executive Council by the Military Governor under sub-sections (2) and (3) of section 22 of the Chiefs Laws to the Baale of Igboora as the prescribed Authority with respect to minor chiefs whose chieftaincy titles are associated with the native community in the area traditionally associated with Igboora town is hereby revoked.”

The above clearly shows that the 2nd respondent’s power as a prescribed authority was revoked from the said 5/1/88, the fact that the date the legal notice was made was 12/5/88 notwithstanding. The approval of the appointment of the 3rd respondent as the Baale of Pako emanating from the office of the Secretary to the Military Government is contained in Exh. ‘L’ and dated 22/1/88. Exh. ‘L’ addressed to the 3rd defendant/respondent reads as follows:

“It gives me great pleasure to inform you that the Military Governor of Oyo State has approved your appointment as the Baale of Pako Quarters in Igboora in accordance with the provisions of section 17(b) and 22(1) of the Chiefs Law (Cap. 21).

A notice to this effect will soon be published in the Oyo State of Nigeria Gazette.”

The argument of learned counsel for the appellant that the learned trial Judge’s application of S. 26(3) of the Chiefs Law is erroneous is weak and cannot stand. The case of Eleso v. Governor of Ogun State (1990) 2NWLR (Pt 133) Page 420 is not apposite. What is more the Chiefs Law gives a prescribed authority the power to approve the appointment of the 3rd respondent, and paragraph (3) of Exh. ‘K’ has made the Secretary to the Military Governor the prescribed authority to approve the appointment of the 3rd respondent by making him a prescribed authority. Perhaps I should reproduce the said paragraph (3) here for the purpose of clarity. It reads:-

3. The words Baale of Igboora mentioned as the Prescribed Authority in Serial No. 123 in the second column of the schedule to the delegation of Functions Notice 1978, are hereby deleted and the words “Secretary to the Military Government” substituted there for.

It is instructive to note that it was the said Secretary to the Military Government that signed Exh. ‘K’ which approved the appointment that is, the bone of contention in this appeal, but then the problem was with the time the approval was given. The learned trial Judge however dealt with this issue thoroughly in his judgment, on page 170 of the printed record of proceedings, and made the correct finding on it. In the light of the above discussion this issue is resolved in favour of the respondent, and so it’s related ground of appeal No. (2) also and it is hereby dismissed.

The validity of Exh. ‘M’ is the subject of discussion under the next issue raised in the appellant’s brief of argument. The grouse of the appellant’s counsel here is with the learned trial Judge’s finding that Exh. ‘M’ was valid, as he has submitted that a prescribed authority being a repository of statutory power cannot be dictated to or compelled to exercise his statutory power by the Executive Council. In order to determine this question of validity I will have to consider the content of Exh. ‘M’, which reads:-

“…After a careful consideration of the report of the investigation into the procedure adopted for the filling of the vacant stool of Baale of Pako, the Government has come to the conclusion that all the chiefs in Pako quarters constitute the kingmakers for the selection of Baale of ‘Pako’. This is borne out from the fact that in the exercise of selecting the last three Baales, all the chiefs participated and the letter of recommendation of appointment of the last incumbent, Chief Alli Ajibade, was signed not by the three most senior chiefs in the quarters but by four chiefs two of whom are ‘senior’ ones and two ‘junior’ chiefs. That letter indicated clearly that the signatories were mandated by the other chiefs…

In the circumstances, the Military Governor has directed that you be requested to give approval to the candidature of Lamidi Akinyemi who was nominated by the majority of the members of the ruling house and got the support of all but two of the chiefs in the quarters.”

(Italicising is mine)

It is instructive to note that the letter was by way of an appeal to the 2nd respondent. The use of the word ‘requested’ supra is indicative of such an appeal and act of persuasion, it is not a compelling directive or dictation as such. At any rate the 1st respondent did not give the directives just out of the blues, without some antecedents that necessitated an investigation into the dispute in order to douse the inferno that was imminent and to resolve the stalemate. As it is reflected above, the author of Exh. ‘M’ took the pains of setting out in details the report of the investigation panel that was set up to determine the customary procedure adopted in the appointment of the Baale of Pako in the past. It was after carefully stating the outcome of the investigation that the request of approval was made. As a matter of fact it is undoubtedly the report that informed the writing of the letter and the request. This definitely was not an unwarranted interference (even if it is so called) for the duty of ensuring the peaceful co-existence of members of the communities within the state rested on the 1st respondent. But then, it is obvious that the 2nd respondent was not persuaded by the content of Exh. ‘M’ for he refused to approve the appointment of the 3rd respondent, from 9/10/87, the date on Exh. ‘M’, until 22/1/88, when the approval was given by the Government. In fact this exercise caused the revocation of the power of the 2nd respondent as a prescribed authority in order to cover the approval of the appointment with same form of authority. The provisions of sections 22 and 23 of the Chiefs Law Cap.21 is applicable here. In this respect, and all other discussion supra I resolve the issue in favour of the respondent, and dismiss ground of Appeal No.4 to which it is married.

I will now precede to the last issue for determination. According to counsel for the appellant, the learned trial Judge held that the 3rd respondent’s appointment was invalid, when there was no such prayer in the plaintiff’s statement of claim, nor did any of the defendants file a counter-claim. It is his contention that the trial Judge’s finding amounted to granting a relief not claimed by any of the parties, which is against the general principle of law. He placed reliance on the cases of Awijo v. Olunlade (1975) 1 NMLR 82, Tometi v. Ajaguna (1975) 1 NMLR 122, Obioma v. Olomu (1978) 3 S.C. 1, and Odofin v. Agu (1992) 3NWLR (Pt. 229) 350. Learned counsel for the 3rd respondent in response, has argued that the two reliefs granted are what the learned trial Judge considered to be the effect of the judgment, and that it neither added nor removed from the judgment, and so no miscarriage of justice has been occasioned. The extract of the judgment learned counsel is complaining against is the conclusion which reads:-

“I grant the plaintiff the following:-

1. A declaration that the approval of the appointment of the 3rd defendant as Baale of Pako is invalid in that it was against the rules of natural justice.”

I cannot see that the above is an order as such. The learned trial Judge was merely clarifying the effect of his judgment in order to allay any doubt that may be conceived by the parties or anyone reading the judgment. At any rate even if the said conclusion is wrong (I am not conceding that it is) I fail to see that it has caused any injustice to the appellant or occasioned any miscarriage of justice. In the words of Babalakin JSC in the case of Onwuka v. Omogui (1992) 3 NWLR (Pt.230) Page 393:-

“It is not every slip of lower court that will result in an appeal being allowed; for a mistake to warrant such a result it must be substantial in the sense that it affects or influences the decision appealed against. See Osafile & Anor. v. Odi & Anor. (No.1) (1990) 3 NWLR (Pt.137) 130. See also the case of Osho & Anor. v. Foreign Finance Corporation & Anor. (1991) 4 NWLR (Pt.184) 157.”

In this wise, I resolve the last issue in favour of the respondents, and dismiss ground of appeal No. (6) to which it is married.

The end result of this appeal is that it fails in its entirety and it is hereby dismissed. I assess costs at N3000 in favour of the 3rd respondent.

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Other Citations: (2000)LCN/0663(CA)