Jeje Oladele & Ors V. Oba Adekunle Aromolaran II & Ors. (1996)
LAWGLOBAL HUB Lead Judgment Report
OGUNDARE, J.S.C.
The main question calling for determination in this appeal is as to whether a registered declaration made under the provisions of the Chiefs Law Cap. 21 Laws of Oyo State, 1978 (still applicable in Osun State) when a particular chieftaincy came under Part 2 of the said Law still has force of law notwithstanding that the said chieftaincy has been reduced in status and now comes under Part 3 of the said Law.
The Odole Chieftaincy is a traditional and hereditary title in Ilesa in Osun State. The Chieftaincy, at one time, was under Part 2 of the Chiefs Law and was then a recognised chieftaincy. In 1975 a declaration was made and registered pursuant to section 4 of the law stating the customary law pertaining to the selection and appointment of holders of the chieftaincy.
By legal notice OY. SLN 18 of 1978 entitled. The Recognised Chieftaincies (Miscellaneous Provisions) Order issued in 1978 by the Governor of Oyo State – Ilesa was then in Oyo State – the Odole Chieftaincy was removed from the list of recognized chieftaincies to which Part 2 of the Law applies and was thereby reduced in status to a minor chieftaincy to which the provisions of Part 3 of the Law apply.
Consequent upon the death of Chief Ayo Babatope (the previous holder of the title) on or about the 13th day of April, 1985 there was a vacancy in the chieftaincy. There were a number of contestants all claiming to descend from Logun-Edu. The 1st defendant, the Owa Obokun, Adimula of Ijesha is the prescribed authority in respect of the chieftaincy. Sometime, in June 1986 he appointed Chief Ayotunde Esan (the 4th defendant) to succeed to the vacancy.
Members of Logun-Edu family protested and when the 1st defendant would not rescind his decision the plaintiffs, for themselves and on behalf of Odole Chieftaincy Family, sued the 4 defendants claiming, as per paragraph 35 of their amended statement of claim, as follows:-
“i. Declaration that Odole Chieftaincy title is hereditary.
ii. Declaration that 4th defendant is not in anyway related to Logun-Edu the first Chief of Odole of Ilesa.
iii. Declaration that selection installation of the 4th defendant as Chief Odole by the 1st defendant or/and 1st-3rd defendants on 14th day of June 1986 is null and void and of no consequence in that the 4th defendant claims to belong to Arobiomo ruling house which the plaintiffs are not conceding and when it has not come to the turn of that Arobiomo ruling house.
iv. Perpetual injunction restraining the 4th defendant from parading himself as Chief Odole of Ilesa and also restraining 1st and/or 1st-3rd defendants from performing other traditional ceremonies and/or rites pertaining to the installation of Odole chieftaincy title.”
Pleadings having been filed and exchanged and amended the action proceeded to trial, at the end of which and after addresses by learned counsel for the parties, the learned trial Judge, in a reserved judgment adjudged as follows:-
“(i) The declaration sought that Odole Chieftaincy title is hereditary is hereby granted in favour of the plaintiffs.
(ii) The declaration sought that the 4th defendant is not in anyway related to Logun-Edu, the first Odole of Ilesa, is hereby refused.
(iii) The declaration sought that the selection and installation of the 4th defendant by the 1st defendant is null and void and of no consequence is hereby granted in favour of the plaintiffs. The declaration sought against the 2nd and 3rd defendants however fail and are hereby refused and dismissed.
(iv) The 4th defendant is hereby restrained by a perpetual injunction from parading himself as Chief Odole of Ilesa and the 1st defendant is also hereby restrained from performing other traditional ceremonies and/or rites pertaining to the installation of any Odole until a new selection is made in the appropriate customary manner or accord with Section 22 of the Chiefs Law, Cap. 21, Laws of Oyo State of Nigeria.”
The 1st and 4th defendants were displeased with the said judgment and both appealed separately to the Court of Appeal (Ibadan Division) which Court allowed the appeals, set aside the judgment of the trial High Court and dismissed plaintiffs’ claims (3) and (4). It is against that judgment that the plaintiffs have now appealed to this Court.
In accordance with the Rules of this Court the parties filed and exchanged their respective briefs of argument. The plaintiffs also filed a reply brief. In the plaintiffs/appellants brief the following question is formulated as calling for determination in this appeal.
“The only issue for determination in the appeal is whether the judgment of the trial Court nullifying the appointment of the 4th defendant/respondent as Odole should have been set aside by the Court of Appeal for the reasons given in the passage set out on pages 3 to 4 of this brief having regard to the reasons given by the learned trial Judge for refusing to act or accept Exhibit “1A” and yet in another breath using the contents of Exhibit “1A” to nullify the appointment of the 4th defendant.”
The 1st defendant/respondent in his brief, however states the issue as hereunder:
“Whether the Court below ought to have confirmed the use of Exhibit 1A in favour of the appellants when the learned trial Judge had earlier ruled he was not going to make use of it in favour of either party to the litigation”
The 3rd and 4th defendants/respondents appear to endorse the issue as set out in the appellants’ brief. The 2nd defendant had since died.
The plaintiffs in their reply brief invited this Court to “depart and over-rule its previous decision in Oba Oyebade Lipede v. Chief Adio Sonekan given on 20th January, 1995 and reported in (1995) 1 NWLR (Pt.374), 668” on the following grounds:-
“(a) The said decision was erroneous in law,
(b) The said decision was given per incuriam in that the Court took no cognizance of Section 6(1)(a) of the Interpretation Act 1964; the said decision was therefore inadvertently given.
(c) The attention of the Court was not called to its decision as per Karibi- Whyte, J.S.C. in Alhaji Sule Agbetoba & Anor v. The Lagos State Executive Council & Ors. (1991) 4 NWLR (Pt.188), page 664 and it is undesirable that there should be two conflicting decisions on the same point of law by the Supreme Court.
(d) The decision in Lipede’s case (supra) is repugnant to public policy.”
The 4th respondent filed a further brief in answer to the submissions made by the plaintiffs on this issue.
At the trial in the High Court, it was not in dispute that the Odole Chieftaincy is hereditary in that it is the preserve of the descendants of Logun-Edu. It is equally not in dispute that there are now 3 branches (known as ruling houses) of the Logun Edu family to wit, Nikunogbo, Ogboro and Arobiomo. What was in dispute at the trial court were:-
(1) Was the 4th defendant a member of Logun-Edu family through the Arobiomo ruling house and
(2) Was the system of appointment rotational among the 3 ruling houses of the Logun-Edu family
The learned trial Judge found, and the Court below affirmed it, and this is no longer contested in this appeal, that the 4th defendant is a member of the Arobiomo ruling house of the Logun-Edu family and was therefore, entitled to the Odole chieftaincy. The learned Judge, however, found that appointment to the office was by rotation among the three ruling houses constituting the Logun-Edu family and that it was not the turn of the Arobiomo ruling house to present a candidate to fill the vacancy occasioned by the death of Chief Babatope.
The Court of Appeal, in setting aside the judgment of the trial High Court, opined that the trial Judge was in error to use the registered declaration to reach his decision that appointment was rotational among the three ruling houses. After he had held that the document could not be used to the advantage of either party to the proceedings. It further found that the 1st respondent was the prescribed authority. It finally concluded that the trial Judge, having found that the 4th defendant is a member of the Arobiomo ruling house of the Logun-Edu family, should have upheld his appointment by the 1st defendant.
In their amended statement of claim, the plaintiffs pleaded, inter alia, as follows:-
“13. That prior to June 3rd, 1975, there had been 4 ruling houses namely:- Nikunogbo, Oduyodo, Lijetu Oyinbo, Arobiomo but by 3/6/76 a new declaration under section 4(2) of the Chiefs Law was made thereby creating 3 ruling houses as follows:-
(a) Nikunogbo
(b) Ogboro
(c) Arobiomo
13(A) Granted but not conceeding that even if the 4th defendant belongs to Odole Chieftaincy Family, his selection and installation are null and void in that he claims to belong to Arobiomo Ruling House.
13(b) That the selection and installation of Odole is by rotation among the three ruling houses and that the next ruling house to nominate or provide a candidate is the Ogboro ruling house (vide ruling house declaration of 21st day of May, 1975.
X X X X X X X X X
- That on 14th day of June, 1986, the 1st defendant or/and 1st-3rd defendants nominated and selected the 4th defendant and installed him the Odole of Ilesa contrary to the custom of Ijesa land as the 4th defendant is not in anyway related to Odole chieftaincy family i.e. he is not a descendant of Logun-edu the first Odole of Ilesa.”
Paragraphs 13-13(B) are crucial in the determination of this appeal. It was contended in the court below, as well as in this Court, by the 1st and 4th defendants that as the trial Judge held that the Chieftaincy Declaration (Exhibit 1A) could not be used in favour of either side, it was wrong of him to turn round later to use the same document to find that appointment to the Odole Chieftaincy was rotational.
It was further contended that without Exhibit 1A, that finding would have no evidence to support it in that customary law as to rotation was not separately pleaded and any oral evidence tending towards such proof would be inadmissible as going to no issue. It is further contended in this Court by the 2 defendants that Exhibit 1A was no longer of any relevance to the Odole Chieftaincy following the reduction, in status, of that chieftaincy from being a recognised chieftaincy to which Part 2 of the Law applied, to minor chieftaincy coming under Part 3 of the Law.
Needless to say that the plaintiffs, both in the court below and in this Court, contended to the contrary. They maintain in this Court that Exhibit 1A is very relevant being a codification of the customary law relating to the selection and appointment of the Odole. They further contend that paragraphs 13(A) and 13(b) plead facts independent of Exhibit 1A pleaded in paragraph 13. They invite us to depart and over-rule our previous decision in Oba Oyebade Lipede v. Chief Adio Sonekan (1995) 1 NWLR (Pt.374) 668. They urge us to follow and apply the dictum of Karibi-Whyte, J.S.C. in Agbeloba v. Lagos Slate Executive Council (1991) 4 NWLR (Pt.188) 664 at Pp. 688B and 689. The grounds for the invitation have earlier been stated in this judgment; I need not repeat them here.
The first question to ask is this: Has Exhibit 1A, the Odole Chieftaincy Declaration made pursuant to Section 4 of the Chiefs Law, Cap. 21 Laws of Oyo State, become valueless following the relegation of the Odole Chieftaincy to the rank of minor chiefs Section 4 which comes under Part 2 of the Law provides for the making of a chieftaincy declaration. It reads:-
“4(1) Subject to the provisions of this law, a committee of a competent council:-
(a) may; and
(b) shall, if so required by the Commissioner make a declaration in writing stating the customary law which regulates the selection of a person to be the holder of a recognized chieftaincy.
(2) In the case of a ruling house chieftaincy the declaration shall include:-
(a) a statement of the customary law relating to the following matters:-
(i) the number of ruling houses and the identity of each such ruling house:
(ii) where there is more than one ruling house, the order of rotation in which the respective ruling houses are entitled to provide candidates to fill successive vacancies in the chieftaincy;
(iii) the persons who may be proposed as candidates by a ruling house entitled to fill a vacancy in the chieftaincy;
(iv) the number and identity of the kingmakers;
(v) the method of nomination by each ruling house; and
(vi) the identity of any other person whose consent is required to an appointment made by the kingmakers, and the usage regulating the granting or withholding of such consent; and
(b) Where, before the making of the declaration, the right of providing candidates has not been exercised under customary law in accordance with an ascertainable order of rotation, the recommendation of the committee as to the order in which the ruling houses should exercise that right after the coming into effect of the declaration.
(3) In the case of a recognised chieftaincy other than a ruling house chieftaincy, the declaration shall contain a sufficient description of the method of selection of the holder of the chieftaincy.
(4) In exercise of their powers under this section a committee shall ensure that no family is declared as a ruling house which is not generally recognised as such at the time of making the declaration by the community with which the chief concerned is associated,and in particular shall not declare as a ruling house a family which has been in the remote past so recognised but is not recognised at the time of making the declaration.”
A declaration made by the competent committee is transmitted to the Council for onward transmission to the Governor (now Administrator) of the State – see section 5. The Governor may, in turn, approve or refuse to approve the declaration.
Section 7 of the law provides:
“7(1) The Executive Council may approve or refuse to approve a declaration made by a committee of a competent council.
(2) Before exercising its powers under subsection (1) of this section the Executive Council may:-
(a) cause an inquiry to be held in accordance with section 25; or
(b) whether or not an inquiry has been held, require the committee which made the declaration to amend the declaration in any respect that the Executive Council may specify.
(3) Where in respect of a chieftaincy:-
(a) a committee of a competent council fails to make a declaration within six months of being required to do so in accordance with section 4 or
(b) a committee of a competent council fails to amend the declaration in the respects specified by the Executive Council within six months of being required to do so in accordance with subsection (2) of this section.
the Executive Council may make a declaration in respect of that chieftaincy in accordance with the powers conferred on the committee.
(4) Before exercising any of the powers conferred by subsection (3) of this section, the Executive Council may cause such inquiries to be held in accordance with section 25 as appear to it to be necessary or desirable.
(5) Upon a declaration in respect of a chieftaincy being made by the Executive Council every declaration made under this Law or the repealed Law relating to that chieftaincy that is not approved shall be void and of no effect.”
On the declaration being approved by the Governor, it is registered and comes into effect. Its legal effect is stated in Section 9 which reads:-
“9. Where a declaration in respect of a recognised chieftaincy is registered under this part, the matters therein stated (including any recommendation under paragraph (b) of subsection (2) of subsection 4 shall be deemed to be the Customary law regulating the selection of a person to be the holder of that chieftaincy to the exclusion of any other customary usage or rule. (Italics mine)
Sections 10-12 make provisions for amendments to the declaration.
The power to approve or set aside an appointment made in accordance with a registered declaration lies with the Governor: See Section 20 subsections (1) and (3) of which provide:
“20(1) Subject to the provisions of this section, the Executive Council may approve or set aside an appointment of a recognised chief.
(3) In determining whether to approve or set aside an appointment under this section the Executive Council may have regard to:-
(a) Whether the provisions of section 15 or section 16 have been complied with;
(b) Whether any candidate was qualified or disqualified in accordance with the provisions of section 14:
(c) Whether the customary law relating to the appointment has been complied with;
(d) Whether the kingmakers, in the case of a ruling house chieftaincy; had due regard to the ability, character or popular support of any candidate; or
(e) Whether the appointment was obtained corruptly or by the undue influence of any person
and may, notwithstanding that it appears to it the appointment has been made in accordance with the provisions of this law, set aside an appointment if it is that it is in the interests of peace, order and good government to do so.”
Thus the Governor is empowered by law to approve an appointment made in accordance with the relevant customary law as declared in the registered declaration relating to the particular office: See Sections 15 and 16 of the Law.
This power he has in relation to recognized chieftaincies come under part 2 of the law.
Section 22 of the Law deals with the appointment and approval of appointment of minor chiefs. Subsections (1) and (3) of this section provide:-
“22(1) The Executive Council may appoint in respect of the area (which expression shall in this part and part 4 be deemed to include a reference to part of an area) of any Local Government or group of Local Governments, an authority (in this part referred to as the prescribed authority) consisting of one person or of more persons than one, who may be the chairman and other members of a committee, established by section 5, to exercise the powers conferred by this section in respect of the office of any minor chief whose chieftaincy title is associated with a native community in that area.
(3) Where there is a dispute whether a person has been appointed in accordance with customary law to a minor chieftaincy the prescribed authority may determine the dispute.”
For the “Executive Council” where the expression appears Law read “Governor.”
Reading the Law as a whole, it would appear that in its scheme the power to approve the appointment to the chieftaincies coming under Part 2 of the Law and known as recognized chieftaincies is vested in the Governor (Administrator) while a similar power in respect of chieftaincies coming under Part 3 is vested in the prescribed authority over such chieftaincies. In either case, however the appointment must be made in accordance with the customary law pertaining to the particular chieftaincy before it can be approved by the Governor or prescribed authority as the case may be. The declaration made pursuant to section 4 provides the proof of such customary law in relation to recognised chieftaincies. The Law is silent as to the mode of proof of the customary law relating to the selection and appointment of minor chiefs. One, therefore, has to fall back on section 14 of the Evidence Act which provides:-
“14(1) A custom may be adopted as part of the law governing a particular set of circumstances if it can be noticed judicially or can be proved to exist by evidence. The burden of proving a custom shall lie upon the person alleging its existence.
“14(2) A custom may be judicially noticed by the court if it has been acted upon by a court of superior or co-ordinate jurisdiction in the same area to an extent which justified the court asked to apply it in assuming that the persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration.
(3) Where a custom cannot be established as one judicially noticed it may be established and adopted as part of the law governing particular circumstances by calling evidence to show that persons or the class of persons concerned in the particular area regard the alleged custom as binding upon them:
Provided that in case of any custom relied upon in any judicial proceeding it shall not be enforced as law if it is contrary to public policy and is not in accordance with natural justice, equity and good conscience.”
As by operation of law judicial notice has to be taken of a registered declaration, the declaration comes within the purview of section 14 of the Evidence Act; it is not an exception to it. In my respectful view, section 9 of the Law is not inconsistent with section 14 of the Act.
With this background I now turn to the case of Oba Oyebade Lipede v. Adio Sonekan (supra) we are invited to over-rule. Our attention is called to some dicta in that case which are said to be inconsistent with the dictum of Karibi-Whyte, J.S.C. in Agbetoba v. Lagos State Executive Council (supra). In the former case, Onu, J.S.C. in his lead judgment observed at page 686-687 of the Report thus:-
“This issue which is relevant to grounds 2 and 4 of the grounds of appeal asks of what the custom or customary law regulating succession to Ashipa Egba Chieftaincy is
Two questions, in my opinion, naturally emanate as off-shoots of this issue. They are:-
(i) Is Exhibit “18” (the 1958 Registered Declaration) still operative after 1976 as the Customary Law regulating the Ashipa Egba Chieftaincy
(ii) If the answer is in the positive, is Exhibit “18” exhaustive of the Customary law regulating the Ashipa Egba Chieftaincy
While at the trial the appellants answered the above two questions in the positive, the respondents for their part, gave a negative answer.
Now, Exhibit “18” is the 1958 Registered Declaration relating to the Ashipa Chieftaincy title and made at the time pursuant to Sections 4 and 5 of the Chiefs Law Cap. 19 Western Region of Nigeria, 1959, the corresponding provisions of which are now to be found in the Chiefs Law, Cap. 20 Laws of Ogun State, 1978.
It is common ground between the parties that prior to 1976, the Ashipa Egba Chieftaincy was a recognised Chieftaincy to which the Chiefs Law (ibid) applied. In 1976, however, with the promulgation of Western State Legal Notice No.6 (W.S.L.N. No. 6) – The Recognised Chieftaincies Revocation and Miscellaneous Provisions) Order – the application of the Chiefs Law Provisions) order- the application of the Chiefs Law to the Ashipa Egba Chieftaincy was revoked. In effect, that chieftaincy by operation of law, became a minor chieftaincy to which the Law became applicable. That being the case, Exhibit “18” became inapplicable and no longer affected the appointment to be made into such Chieftaincy after the coming into operation W.S.L.N. No.6 of 1976. In other words, Exhibit “18” which hitherto applied to a recognised chieftaincy became inoperable by reason of the fact that the Ashipa Egba Chieftaincy became a minor chieftaincy once it was de-recognised.
The inapplicability of the provisions of Sections 4 and 5 of the Chiefs Law (ibid) having to do with recognised Chieftaincy (ibid) aside, the application of Exhibit “18” to the minor chieftaincy of Ashipa Egba would run counter to the tenor and the general intendment of the Chiefs Law Cap. 20 as well as the W.S.L.N. No. 6 of 1976. This is because when the selection of the Ashipa Egba was governed by the Chiefs Law as a recognised Chieftaincy, the Alake of Egbaland was not the prescribed authority but rather part of the selection or recommending process. With the de-recognition of the chieftaincy and it demotion to a minor chieftaincy, the Alake of Egbaland became the prescribed authority. It will be absurd therefore to maintain a situation where the Alake shall be the prescribed authority as well as a kingmaker, both rolled into one.
Thus, the provision in Exhibit “18” making the Alake a kingmaker will be perfectly in order before the amending law came into force moreso, that at the time, the confirming or prescribed authority was the Governor-in-council and in setting that the chieftaincy was recognised and governed by the Chiefs Law. After the amendment of the latter Law in 1976, to have retained the Alake as one of the kingmakers, as reflected in Exhibit 18, in a set up where he is made the confirming or prescribed authority, would be absurd and unlawful.
For the above reasons, it is clear that Exhibit 18 is clearly inapplicable to the Ashipa Egba Chieftaincy, now a minor chieftaincy.” .
Later in the judgment, the learned Justice of the Supreme Court observed at page 690:-
“I fully endorse the respondents argument on this point that to so hold would amount to a clear refusal to recognise the change introduced by the amendment effected by W.S.L.N. No.6 of 1976 (ibid). The amendment introduced in my view, was to wipe away the use of registered declarations in respect of the Ashipa Egba chieftaincy among other minor chieftaincies which hitherto enjoyed privileges as recognised chieftaincies.”
Uwais, J.S.C. (as he then was)., in his own judgment, stated thus at pages 698-699:
“Now section 40 of the Chiefs Law, Cap. 20 by virtue of which Exhibit 18 was made, has not been repealed but the Chieftaincy of Ashipa Egba ceases, by the operation of the 1976 Revocation Order (W.S.L.N. No.6 of 1976), to be a recognised chieftaincy. Consequently, Part 2 of the Chiefs Law ceases to apply to the chieftaincy. It follows, by analogy to section 4 subsection (2)(c) of the Interpretation Act, Cap. 192, that Exhibit 18 (which is a statutory instrument) ceases to have effect. Furthermore, by the repeal of the Recognised Chieftaincies order, 1959 (W.R.L.N No. 22 of 1959) by the 1976 Order (W.R.L.N. No.6 of 1976), so far as it applies to the Chieftaincy of Ashipa Egba, Exhibit 18, though not expressly or specifically revoked is deemed “spent” and “obsolete”. Both the words “spent” and “obsolete” have been defined on Pp. 357 and 358 of Crales on Statute Law, 17th Edition, as follows:-
‘Spent – that is, enactments spent or exhausted in operation by the accomplishment of the purposes for which they were passed, either at the moment of their first taking effect or on the happening of some event or on the doing of some act authorised or required.
“Obsolete” – where the state of things contemplated by the enactment has ceased to exist, or the enactment is of such a nature as to be no longer capable of being put in force, regard being had to the alteration of political or social circumstances.”
In the latter case, however, Karibi- Whyte, J.S.C. opined at page 689 of the Report thus:-
“The enabling provisions are for a declaration of the governing customary law by the Chieftaincy Committee. It is accepted that customary law is a question of fact to be proved in each case.A registered declaration of the fact will obviate the necessity of proof on each occasion. It is not an exercise of legislative powers.”
Although, the invitation is to overrule Oba Oyebade Lipede v. Adio Sonekan (supra), nothing has been urged to suggest that the case was wrongly decided. The criticism of the judgments in the case is directed at the correctness or otherwise of the dicta of Uwais and Onu, J.J.S.C. set out above, rather than the correctness of the final decision reached. Subject to what I will say later on the said dicta, I am of the respectful view that the decision reached in that case is sound. The dicta complained of did not form the basis of the judgment in the case.
I stated above that a registered declaration made pursuant to the provisions of the Law, provides the proof of which judicial notice is taken of the customary law relating to the selection and appointment of a chief. The restriction of the making of a declaration to recognized chieftaincies is not far-fetched as the approval of such appointment is by the Governor of the State; it is necessary that he must be sure that an appointment for which his approval is sought is made in accordance with customary law.
The best and least controversial way of ascertaining this is to have the customary law ascertained by people knowledgeable in the law and reduce same into writing. This obviates the necessity of having inquiries conducted to ascertain what the customary law is each time an appointment exercise is to be conducted. The Governor may not be from the area of the chieftaincy and may not be knowledgeable in the custom of the area. The registered declaration helps him in no small measure to determine what the customary law is.
The approval of the appointment of a minor chief lies with the prescribed authority appointed by the Governor under section 22(1) of the Law. The appointment of the chief is made in accordance with customary law. It is not difficult for the prescribed authority, invariably the traditional ruler in the area, to ascertain the customary law pertaining to the selection and appointment of a chief in his area. Thus, the need for a statement in writing, declaration of the customary law on the issue, though desirable, is not as demanding as where the approval is to be made by the Governor.
Where a registered declaration exists, it is, in my respectful view, admissible evidence of the customary law relating to the selection and appointment of the chief it pertains to. It does not matter that the chieftaincy is a recognised or minor chieftaincy. Just as the court may take judicial notice of a custom relating to the selection and appointment of a chief “if it has been acted upon by a court of superior or co-ordinate jurisdiction in the same area to an extent which justifies the court asked to apply it in assuming that the persons or the class of persons concerned in that area look upon the same as binding”, so also, in my respectful view, may it take judicial notice of such custom that is reduced into writing in accordance with section 4 of the Law. There is nothing in section 22 of the Law which restricts the mode of proving the customary law relating to the selection and appointment of a minor chief to any particular method. Any method that satisfies the requirements of section 14 of the Evidence Act will, in my humble view, suffice. And if a declaration exists in respect of that chieftaincy when it was a recognised chieftaincy, the reduction in rank of the chieftaincy to a minor chieftaincy will not change the customary law relating to selection and appointment to it. The customary law remains the same irrespective of the status accorded the chieftaincy by the Governor.
It is in the light of the above reasoning that I have come to share the view expressed by Karibi-Whyte, J.S.C. in Agbetoba v. Lagos State Executive Council (supra). A registered declaration, where it exists, obviates the necessity of proof by oral evidence, of the custom on each occasion that the issue arises for determination in court. With profound respect to my learned brothers Onu, J.S.C. and Uwais, J.S.C. (as he then was), I find myself unable to agree with them that a registered declaration becomes inapplicable when the chieftaincy to which it relates is reduced in status from being a recognised chief to becoming a minor chief nor that it becomes “spent” or “obsolete”. A registered declaration is declaratory of the custom relating to the selection and appointment of the chief to which it relates. As Muhammad, J.C.A. put it, in Ayoade v. Military Governor of Ogun State (1993) 8 NWLR (Pt.309) 111, 127-128, and quite rightly in my respectful view:-
“The purpose of a registered declaration is to embody in a legally binding written statement, the customary law of a particular area, setting out clearly the method regulating the nomination and selection of a candidate to fill a vacancy in the chieftaincy of that area. This is to avoid uncertainty in the customary law of the area.”
There is nothing in the Law to suggest that that custom varies with the rank accorded the chief by the Governor. It may be that a recognised chief enjoys some privileges which are denied the minor chief but it is not the same thing as saying that the custom relating to his selection and appointment changes with whatever rank it pleases the Governor to clothe him with at any particular time. If the registered declaration states that custom when he is a recognised chief, it cannot be logically said that it no longer states the custom because he has been reduced to a minor chief.
The conclusion I finally reach is that Exhibit 1A in these proceedings is admissible in proof of the customary law relating to the selection and appointment of the Odole of Ilesa. It is not valueless. And since Exhibit 1A provides for a rotational system, that system ought to prevail.
The next question I now have to consider is whether there was any admissible oral evidence outside Exhibit 1A that proved that appointment to the Odole Chieftaincy was rotational among the 3 branches of the Logun-Edu family. To answer this question one has to look at the plaintiff’s pleadings and evidence in support; the onus was on them to prove the custom. I have earlier in this judgment set out the penultimate paragraphs of their pleadings. Kolawole, J.C.A. delivering the lead judgment of the court below (with which the other Justices that heard the appeal in that court agreed), observed:
“Paragraphs 6,8,9 and 10 of the respondents’ amended statement of claim clearly show their case namely:-
(1) That the Odole Chieftaincy title is hereditary and restricted only to the descendants of Logun-Edu the first Odole of Ilesha
(2) That the plaintiffs are the descendants of Logun-Edu.
(3) That the 4th defendant is not in any way related to the Odole Chieftaincy family.”
It would appear that the learned Justice, with respect to him overlooked paragraph 13(b) and 35(iii) of the amended statement of claim which alleged that appointment was by rotation among the 3 ruling houses and that it was not the turn of the Arobiomo Ruling House to which the 4th defendant claimed to belong. The 4th defendant understood plaintiffs’ case in this light. The learned Justice of Appeal observed:-
“According to the learned Senior Advocate, the summary of the plaintiffs’ claim against the 4th appellant is:-
(a) That the 4th appellant is not a member of Logun-Edu family.
(b) That even if he is a member of the family, it is not the turn of the Arobiomo branch of Logun-Edu family to which the 4th appellant claims he belongs.
This is spelt out in paragraph 3 of the respondents claim in the court below, already reproduced above. Paragraphs 10, 13, 23, 27 and 32 of the amended statement of claim clearly amplified the complaint of the respondents.”
On the issue of rotation, this is how the learned Justice resolved it. He said:
“Counsel then submitted that the only issue which remains is whether it was the turn of Arobiomo Ruling House in accordance with the custom of Ijesa. Paragraph 13(b) of the statement of claim states that the selection and installation of Odole is by rotation among the three ruling house: (i.e. Nikunogbo, Ogboro and Arobiomo) and that the next Ruling House to nominate or provide a candidate is the Ogboro Ruling House (vide Ruling House Declaration of 21st day of May,1975).
According to Chief Babalola the learned Judge held at page 212 that Exhibit “1A” cannot apply to Odole Chieftaincy title. The learned Judge further held at page 212 at lines 33 to 35 that:-
“Further, I find myself unable to apply Exhibit 1(A) formally to the advantage of either party to this litigation.
Exhibit 1(A) is the document upon which the respondents” relied to make a case for rotation among the three Ruling Houses. The Judge having agreed that it would not be used to the advantage of either party to the litigation proceeded to apply and to give effect to the Ruling House Declaration from pages 213 lines 37-39 to page 217.
The learned Judge held at page 216 lines 28-33 and page 217 line 1-4 that:
“Even though I hold that Exhibit 1(A) does not have the effect that the plaintiffs ascribed to it, it is nevertheless, my view (and I so find and hold) that it is a true expression of tested and practised tradition and custom relating to the Odole Chieftaincy title which was merely reduced into written form, as then required, for administrative workability and ease.”
The learned trial Judge has given judgment on matters not pleaded. He has further given consideration to a point he had earlier in his judgment held he would not use to the advantage of either party. On a proper direction, it is contended, the learned trial Judge ought to have dismissed the respondents case.”
Later in his judgment, he said:-
“Learned counsel submitted that there is abundant evidence to support the third leg of the respondents claim as to rotation among the three Ruling Houses.
The answer to that submission however is that paragraph 13(b) of the respondents statement of claim based the issue of rotation on Exhibit 1(A), which the learned Judge specifically stated he was not going to rely upon. It follows that oral evidence cannot be substituted for what has been reduced into a written form.
Furthermore, the respondents can only obtain the declaration which they seek in their third claim only if there is the absence of the two factors namely:-
(1) That the 4th appellant is not a member of the Arobiomo Ruling House a branch of Logun-Edu Family, and
(2) That it was not the turn of Arobiomo Ruling House to present a candidate for the Odole Chieftaincy Title.
The learned trial Judge found that the 4th appellant is a member of the Arobiomo Ruling House. Exhibit 1(A). is not available to be used to the advantage of either party. There was therefore no basis for the learned trial Judge to grant the declaration sought in the third claim.”
It is this last passage particularly, that has come under attack in this appeal. It is submitted by the Plaintiffs that the court below was wrong in the conclusion it reached. For the 1st and 4th defendants it is contended that the only issue joined on rotation was Exhibit 1A and the trial Judge having found that he could not use that document to the advantage of any of the parties, it was not open to him any longer to find that rotation applied to the chieftaincy. It is further contended that the plaintiff did not plead any other customary law on which any evidence could be based to justify the trial Judge in finding that the Odole Chieftaincy was rotational.
I have already found that Exhibit 1A (the Declaration) is not valueless. The plaintiffs have not relied on it alone. They pleaded in paragraph 13(b), and led evidence to the effect, that succession to the Odole was by rotation; The learned trial Judge acted on this evidence to find in favour of rotation. I cannot see how his finding can be faulted.
Although it is not directly contended by the 1st and 4th defendants that the evidence in favour was inadmissible, that, in reality, is the effect of their submission that there was no pleading on customary law other than Exhibit 1A. I do not agree with the defendants on this point. Paragraph 13(b) of the amended statement of claim clearly pleaded rotation independent of Exhibit 1A pleaded in paragraph 13. The phrase “vide ruling house declaration …. of 21st day of May, 1975” in brackets at the end of the paragraph relates only to the next ruling house to provide a candidate. And on this there was copious evidence from the 1st witness for the 4th defendant who testified thus:-
“We have Nikunogbo, Ogboro and Arobiomo ruling houses. Late Babatope was from Nikunogbo. He died about 2 years ago. Awodiya preceded Babatope. He was from Arobiomo branch. The 4th defendant belongs to Arobiomo Ruling House.”
From the evidence of this witness, it is crystal clear that the ruling house whose turn it was to present a candidate to fill the vacancy occasioned by the death of Chief Babatope, is Ogboro. 4th defendant not being a member of that ruling house would not be qualified for appointment as the Odole to succeed Chief Babatope.
The conclusion I finally reach is that this appeal succeeds and it is hereby allowed by me. I set aside the judgment of the court below together with the order for costs and restore the judgment of the trial High Court. I award to the plaintiffs the sum of N1,000.00 costs of this appeal to be paid by the 4th defendant only.
SC.284/1991
