Kassim V. Adesemowo & Ors (2021)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This is an appeal against the consolidated judgment of the Court of Appeal, Ibadan Division delivered on the 14th day of June, 2012 in the consolidated Appeal Nos. CA/I/69/99 and CA/I/267B/99, wherein the Court of Appeal allowed the appeal of the Appellant in Appeal No. CA/I/267B/99 and 4th Respondent in Appeal No. CA/I/69/99 being the Appellant in this appeal and quashed the decision of the High Court nullifying the selection of the Appellant herein as Orimolusi of Ijebu Igbo on the sole ground that the 14th Defendant (at the trial Court) participated in the selection exercise when he was not a qualified kingmaker. The Court of Appeal also allowed the appeal of the 1st Respondent in this appeal who was the Appellant in appeal No. CA/I/69/99 and 1st Respondent in appeal No. CA/I/267B/2012 at the Court below, only to the extent of nullifying the participation of the 8th, 9th, 14th and 15th Defendants at the High Court who participated at the meeting of the kingmakers held on 6th January, 1997, the consequence of which gave the Respondent herein three (3) votes of the qualified kingmakers against (2) votes of the Appellant in this appeal. A brief facts giving birth to this appeal will suffice.

Upon the demise of Oba Daniel Adelayo Kupakude 1, the Orimolusi of Ijebu Igbo in 1994, it became the turn of Ojuromi Ruling House to fill the vacancy created by his death. In line with the provisions of the Chiefs Law of Ogun State, Cap 20, Laws of Ogun State, the secretary of the competent council, the Ijebu North Local Government set the machinery in motion by issuing a Public Notice calling on the Ojuromi Ruling House to hold a meeting for the purpose of filling the vacant stool of Orimolusi of Ijebu Igbo.

Eight candidates were nominated by the Ojuromi Ruling House including the Appellant and 1st Respondent herein. At the meeting of the kingmakers held on 6th January, 1997, the Appellant was nominated by a majority of six (6) votes against the 1st Respondent with three (3) votes. As a result, the Appellant’s name was forwarded to the Executive council of Ogun State for approval.

​Being aggrieved by the decision of the kingmakers, the 1st Respondent herein instituted an action at the High Court of Ogun State holden at Ijebu Igbo in suit No. HCB/5/97. By paragraph 39 of his amended statement of claim filed on the 17th day of March, 1997, the 1st Respondent claimed as follows:-

“1. A declaration that the nomination of the 5th Defendant by the Ojuromi Ruling House of Orimolusi chieftaincy of Ijebu-Igbo at the Ruling House meeting held on 2nd January, 1997 which was presided over by the 6th Defendant as the acting head of Ojuromi Ruling House and the subsequent selection/appointment of the said 5th Defendant as the Oba Orimolusi elect of Ijebu-Igbo, by the 7th-15th defendants who acted as the kingmakers at their meeting held on 6th January, 1997 are irregular, improper, illegal null and void, same being contrary to the provisions of the Orimolusi Chieftaincy declaration and the chiefs law, Cap. 20 (as amended) Laws of Ogun State of Nigeria.

2. A declaration that the meeting of Ijebu-Igbo kingmakers held on 6th January, 1997 by which the 7th-15th defendants purportedly selected/appointed the 5th defendant as the Oba Orimolusi – elect was not properly constituted and therefore incapable of performing the statutory duty of selecting/appointing any candidate or candidates as Oba Orimolusi – elect and the said selection/appointment of the 5th defendant as the Oba Orimolusi – elect is irregular, improper, illegal, null and void and of no effect.
3. An order setting aside the purported nomination of the 5th defendant by the Ojuromi Ruling House of Ijebu-Igbo and his subsequent selection/appointment as Orimolusi elect of Ijebu-Igbo by the 7th-15th defendants who acted as the kingmakers of the Orimolusi Chieftaincy title of Ijebu-Igbo as the said 5th defendant was not eligible to be proposed as a candidate for the vacant stool of Orimolusi of Ijebu-Igbo nor could he be selected/appointed.
4. An order of injunction restraining the 4th defendant being the consenting authority to the Orimolusi Chieftaincy, from giving his consent to the said purported appointment or selection of the 5th defendant as the Oba Orimolusi elect of Ijebu-Igbo by the 7th-15th defendants.
5. An order of injunction restraining the 5th defendant from parading or holding himself out as Oba Orimolusi elect of Ijebu-Igbo and from presenting himself to anybody whatsoever for any installation as the Orimolusi of Ijebu-Igbo.
6. An order of injunction restraining 1st and 2nd defendants either by themselves, their servants, agents and/or functionaries from giving effect to the purported selection/appointment of the 5th defendant as Oba Orimolusi ofIjebu-Igbo.
7. And for such consequential orders or further reliefs as the Honourable Court may deem fit to make in the circumstances”.

Pleadings were filed and exchanged by the parties and after the trial and final addresses of counsel, the learned trial Judge delivered his judgment on the 11th day of August, 1998.

In his judgment, the learned trial Judge held that the selection/nomination of the Appellant by the Ojuromi Ruling House was valid and in accordance with both the Orimolusi of Ijebu-Igbo Chieftaincy Declaration and the Cheifs Law of Ogun State, 1978. The learned trial Judge however held that the participation of the 14th Defendant, Chief J. A. Onadeko (the Pampa of Japara) was improper and that his participation invalidated the meeting of the kingmakers and as such, same is null and void.

​Being aggrieved with the different findings and holding of the learned trial Judge, both the Appellant and the 1st Respondent appealed against same to the lower Court in Appeal Nos. CA/I/69/99 and CA/I/267B/99. The two appeals were later consolidated by the order of the Court of Appeal and heard together. Briefs were filed and exchanged as usual.

In their judgment, (at the risk of repetition), in respect of suit No. CA/I/69/99, the learned Justices of the lower Court upheld the decision of the learned trial Judge that the Appellant was entitled to be selected as a candidate to fill the vacant stool of Orimolusi of Ijebu-Igbo but contrary to the decision of the learned trial Judge, held that he is from the female line and ought to have been considered only where there is no suitable candidate from the male line.

The lower Court further held that the 8th, 9th and 15th defendants were not entitled to participate at the kingmakers’ meeting held on 6th January, 1997.

With regards to suit No. CA/I/267B/99, the lower Court held that the 8th, 9th and 15th defendants were not entitled to participate at the meeting but reversed the decision of the learned trial Judge and held that their participation did not render the meeting invalid. The lower Court finally held as follows:-

“The net result I reach in appeal No. CA/I/69/99 and appeal No. CA/I/267B/99 is that nine (9) kingmakers that composed the meeting for the selection exercise, four of them – 8th, 9th, 14th and 15th defendants were not qualified to participate as kingmakers. Their participation in the selection exercise was therefore bad. The consequence is to delete their votes, which are hereby deleted leaving the 5th Respondent in appeal No. CA/I/69/99 and Appellant in appeal No. CA/I/267B/99 with two (2) votes against the 3 votes of the Appellant in appeal No. CA/I/69/99 and 1st Respondent in appeal No. CA/I/267B/99 which would have entitled him to win the selection exercise against the 5th Respondent in appeal No. CA/I/267B/99 — see Ibrahim (supra). The 3rd Respondent is accordingly ordered to set in motion the necessary machinery for the qualified kingmakers to reconvene for the purpose of selecting one of the candidates from the male line, but in the event no qualified candidate is found in the male line, candidates from the female line shall be considered and presented by the Head of Ojuromi family for selection or appointment as the Orimolusi of Ijebu-Igbo by the kingmakers.”

Further aggrieved by the decision of the Court below, the Appellant has appealed to this Court vide notice of appeal filed on 2nd October, 2014 upon the leave of this Court being sought and obtained. Both parties filed and exchanged briefs in consonant with the rules of this Court.

In the Appellant’s brief settled by Dr. Olumide Ayeni, SAN and filed on 24/8/2015, though deemed filed on 5/6/18, five issues are distilled for the determination of this appeal as follows:-

1. Whether the Court of Appeal decided erroneously when it decided that the Appellant was from the female line of the Ojuromi Ruling House contrary to the proper construction of the Orimolusi Chieftaincy Declaration and preponderance of evidence before it and the trial Court
2. Whether the Court of Appeal decided erroneously in holding that the “male line” by virtue of the Orimolusi Chieftaincy Declaration means an unbroken line of males which is contrary to the copious evidence accepted by the trial Court to the effect that “male line” is determined by a trace of the male ancestor or progenitor of the Appellant.
3. Whether the Court of Appeal decided erroneously that the 7th-9th, 13th-15th Defendants admitted in their pleadings that the 8th and 9th Defendants were not kingmakers having regard to the 7th-9th, 13th-15th Defendants 2nd Further Amended Statement of Defence as well as material and evidence before it.
4. Whether the Court of Appeal decided erroneously in reversing the finding of the trial Court that the 8th, 9th and 15th Defendants were qualified to participate as kingmakers in the kingmakers’ meeting for the selection of candidate to fill the vacant stool of Orimolusi of Ijebu-Igbo Chieftaincy title.
5. Whether the Court of Appeal decided erroneously by holding that the trial Court set aside the removal of the 15th Defendant as Agbon when all that the trial Court did was to decide that there was no evidence before it that the 15th Defendant was removed from office as the Agbon.

For the 1st Respondent, his brief of argument was settled by Prince Debo Oduguwa, of counsel and filed on 3/8/18. It is the learned counsel’s position that only two issues are germane for the determination of this appeal which he has submitted thus:-

1. Whether from the preponderance of evidence adduced at the trial and upon proper construction of clause (iii)(a) and (b) of the Registered Chieftaincy Declaration of the Orimolusi of Ijebu Igbo, the learned Justices of the Court of Appeal were correct to have adjudged the Appellant as a candidate of the female line of Ojuromi Ruling House.
2. Whether on proper consideration and construction of the pleadings of the parties and the preponderance of evidence adduced and accepted at the trial, the learned Justices of the Court of Appeal were correct in finding and holding that the 8th, 9th and 15th Defendants (at the trial Court) were not qualified to participate as kingmakers in the selection exercise of Orimolusi elect of Ijebu Igbo held at the meeting of 6th January, 1997 and consequently nullifying their votes.

Also, P. O. Akinsinde, Esq. learned counsel for the 2nd-4th Respondents, settled the brief of the 2nd-4th Respondents which was filed on 10/6/18. Learned counsel formulated four issues as follows:-

1. Whether upon a proper construction of the Orimolusi of Ijebu Igbo Chieftaincy Declaration, the learned Justices of the Court of Appeal were correct in holding that the Appellant is from the female line of Ojuromi Ruling House.
2. Whether the learned Justices of the Court of Appeal correctly held that the 7th-9th and 13th-15th Defendants admitted in their pleadings that the 8th and 9th Defendants were not kingmakers.
3. Whether the learned Justices of the Court of Appeal were right when they held that 8th, 9th and 15th Defendants were not qualified to participate as kingmakers.
4. Whether the learned Justices of the Court of Appeal were not in error when they held that the trial Court set aside the removal of the 15th Defendant.

The learned counsel for the appellant argued issues 1 and 2 together, issue 3 separately and issues 4 and 5 together. I intend to be guided in determining this appeal based on the Appellant’s compartmentalization of issues as well arranged by his counsel. All the issues by the two set of respondents are well encapsulated in the three set of issues donated by the appellant.

ISSUES 1 AND 2

Arguing issues 1 and 2 together, the learned counsel for the Appellant submitted that the Court of Appeal was in error to hold that the 1st Respondent was from the male line of the Ojuromi Ruling House while the appellant was from the female line of the same Ruling House. That the lower Court misconstrued the term male line as provided by paragraph (iii) (a) and (b) of the Orimolusi of Ijebu Igbo Chieftaincy Declaration (exhibit A) and therefore erroneously concluded that the Appellant was from the female line of the Ojuromi Ruling House.

It is learned counsel’s contention that the lower Court was wrong to interpret the chieftaincy declaration along the line of Stroud’s Judicial Dictionary (Fifth Edition) page 1513 where the term or phrase Male line is defined to mean:-

“Male line… Properly means a line commencing with a male and continued through males.”

​Dr. Ayeni, argued further that the Court of Appeal fell into grave error in its interpretation of paragraph (iii) (a) and (b) of the Chieftaincy Declaration to mean that it is only the offspring of Ojuromi through his continuous male descendants that can first be considered for the vacant stool of Orimolusi and that only in the absence of an offspring of Ojuromi through his continuous male descendants who are qualified before an offspring from a female descendant of the male ancestry can be.

Relying on Oladokun v The Military Governor of Oyo State & 13 Ors (1996) 8 NWLR (pt 467) 387, 407 paragraphs G-H, learned counsel submitted that the definition of “son” by implication connotes that any male descendant of a previous holder of the title of necessity qualifies as being from the male line since a “son” has been defined to include any person whose father, grandfather or ancestor had been a previous holder of the title in contest.

In conclusion, learned counsel submitted that ascendancy to the throne of Orimolusi does not connote a direct and continuous male lineage or progenitorship in unbroken order, but one of reference to and inclusive of a grandfather or ancestor who so qualifies as held in Oladokun’s case. He urged this Court to resolve the two issues in favour of the Appellant.

In response, the learned counsel for the 1st Respondent submitted that, if properly construed, and/or interpreted, the declaration creates three (3) categories of persons who may be proposed by a Ruling House in the event of a vacancy in the chieftaincy namely:-

(a) Candidates of the male line with an unbroken chain of males up to the progenitor

(b) Sons of a previous holder of the title with an unbroken chain of male line to a particular previous holder and without regard to the gender genealogy of the previous holder of the title, and

(c) Candidates of the female line who could only be considered where there is no qualified candidates from categories (a) and (b) above.

According to him, members of the Ruling House and Sons of a previous holder of the Orimolusi of Ijebu-Igbo are categorized together under clause (iii) (a), the resultant effect being that once a person is a male member of the Ruling House or Son of a previous holder of the title of the male line, they are both qualified to be entitled to the throne under clause (iii) (a) because being the son of a previous holder already qualifies such candidate as being a member of the Ruling House and also being from the male line to the previous holder irrespective of the lineage of the previous holder. On rules of interpretation of statutes, learned counsel referred to the cases of Adesanoye v Adewole (2006) All FWLR (pt. 340) 1000 at 1023, Amasike v Registrar General CAC (2006) 3 NWLR (pt. 968) 462. Learned counsel referred to the evidence of the PW6 and DW6 and concluded that there is abundant credible and unchallenged evidence that the 1st Respondent herein is a son of Moses Oduwole Adesemowo whose father was Oba Abraham Adesemowo, Orimolusi of Ijebu-Igbo who reigned between 1929-1947. That the appellant herein on the other hand is only related to the Ojuromi Ruling House through his mother. He opined that the learned Justices of the Court below were therefore right in adjudging the Appellant as a candidate of the female line. He urged the Court to resolve this issue against the Appellant.

For the 2nd—4th Respondents, their counsel, P. O. Akinsinde, Esq, after a brief appraisal of the judgment of the Court below and the evidence of PW6 and DW6 at the trial Court, submitted that there is nothing in the evidence of the DW6 to suggest that male line means, in the context of the Orimolusi of Ijebu-Igbo Chieftaincy Declaration, a line commencing from males and continuing through males. That considering the evidence of DW6 if anybody can be said to understand the ambit of the Orimolusi Chieftaincy Declaration, it would be the 15th Defendant who read and explained the declaration to others and not as the learned Justices of the lower Court held.

The learned counsel contended that the evidence of PW6 that Sadiku is a prince of the female line is unreliable and should not have been given any weight in view of the decision of the Court of Appeal in the sister case of Prince Saliu Adebisi Sadiku v Prince Mushafau Kassim & Ors in appeal No. CA/1/268/99 wherein it was held that the Appellant therein who is the uncle of the appellant in this appeal is of the male line.

Learned counsel urged this Court to rely on evidence as evaluated by the learned trial Judge and not that as usurped by the Court below relying on Attorney General of Ekiti State v Prince Michael Daramola & Ors (2003) 8 SCM 1 at 32. He also emphasized the definition of “Sons of a previous holder” as defined in Olarenwaju v Governor of Oyo State (1992) 23 NSCC (pt. 3) 289 and Oladokun v Governor of Oyo State (1996) 9-10 SCNJ 107. He urged the Court to uphold the judgment of the learned trial Judge and set aside the judgment of the Court of Appeal on this issue.

RESOLUTION

In this Country, there are Chieftaincy titles or stools as there are communities and ethnic groups. And as in the political sphere where rules and regulations are made to guide and regulate political activities and filling of vacant offices, so also in chieftaincy matters. However, unlike in political matters, the issue as to who is qualified to ascend to any traditional stool or throne is subject to the customary law and traditions of the people of that locality which is a question of facts to be proved by credible evidence unless frequent proof of same has made it to attain the legal status of notoriety so as to be judicially noticeable. See Olowu v Olowu (1985) 3 NWLR (pt. 13) 372, Agbai v Okogbue (1991) 7 NWLR (pt. 204) 391.

In Oba Adebanjo Mafimisebi & Anor v Prince Macaulay Ehuwa & 8 Ors (2007) 2 NWLR (pt. 1018) 385 at 428 this Court observed that it was to avoid the problem of calling evidence each time a particular native law and custom needs to be established in relation to a chieftaincy in the former Western Region of Nigeria that gave rise to the attempt at codification of the relevant customary laws and traditions of the relevant people in relation to particular chieftaincies otherwise known as Chieftaincy Declarations. Therefore, the purpose of a registered Chieftaincy Declaration is to embody in a legally binding written statement of fact, the customary law of the relevant area in which the method of regulating the nomination and selection of a candidate to fill a vacancy is clearly stated so as to avoid uncertainty.

Thus, the registered chieftaincy Declaration is therefore a declaration of the tradition, customary law and usages pertaining to the selection and appointment to a particular chieftaincy stool which necessarily dispenses with the need of proof by oral evidence of such tradition, custom, usages each time the need arises to determine the matter.

It is the duty of the Court to apply the provisions of a chieftaincy Declaration to the facts of the case established by evidence particularly as the Court has no power to assume the functions of the chieftaincy committee as regards the making or amendment of customary law governing the selection and appointment of traditional chiefs in such relevant case. See Oladele v Aromolaran II (1996) 6 NWLR (pt. 453) 180, Adigun v Attorney General Oyo State (1987) 1 NWLR (pt. 53) 678.

I need to add that where evidence is led by any party which is contrary to the provisions of a registered chieftaincy declaration, such contrary evidence will be discountenanced by the Court as no evidence shall be led to defeat the contents of a registered chieftaincy declaration.

In the instant case, there is no dispute both at the Trial High Court and the Court of Appeal that it was the turn of Ojuromi Ruling House to fill the vacant stool of Orimolusi of Ijebu Igbo and that the applicable customary law is contained in the Orimolusi of Ijebu-Igbo Chieftaincy Declaration registered on the 14th of November, 1958. This declaration was tendered and admitted as Exhibit A in the trial Court.

Clause (111) (a) and (b) of the Orimolusi of Ijebu-Igbo Chieftaincy Declaration aforesaid provides as follows:-

“(111) The persons who may be proposed as candidates by a Ruling House entitled to fill the vacancy in the chieftaincy title shall be:-

(a) members of the ruling house, including sons of a previous holder of the title;

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

In order to properly appreciate any argument on the issue of whether the appellant is from the male or female line of Ojuromi Ruling House, it is pertinent to take a closer look at the above relevant portion of the chieftaincy declaration. Both the appellant’s counsel and that of the respondents have made frantic efforts in interpreting the above declarations and as I can see, their interpretations are just to suit their respective positions. Thank God, the declaration is made in simple English language. The law is trite that where the words used in a statute are clear and unambiguous, the Courts are enjoined to interpret the words in their ordinary and natural meanings. And it is basic that one of the vital canons of interpretation of statutes is that a Court of record should be mindful to make broad interpretation or what is sometimes referred to as giving same a liberal approach. A Court should give a holistic interpretation to a statute as required by law. It should be a purposeful interpretation. See NURTW & Anor v RTEAN & Ors (2012) 10 NWLR (pt. 1307) 170, Elabanjo & Anor vs Dawodu (2006) 15 NWLR (pt. 1001) 76, Attorney General of Ogun State & Ors v Attorney General of the Federation (2002) LPELR-621 (SC), Board of Customs v Barau (1982) 10 SC page 48, (1982) LPELR-786 (SC), Adewunmi & Anor v Attorney General of Ekiti State (2002) 2 NWLR (pt. 751) 474.

Let me state clearly that one other cardinal rule of interpretation is to avoid judicial legislation and also avoid making nonsense of the statute in order not to defeat the manifest intention of the legislation. See Olowu v Abolore & Anor (1993) 5 NWLR (pt. 293) 255, Osho v Philips (1972) 4 SC 259.

Bearing the above rules of interpretation of statutes in mind, what then is the meaning of the Orimolusi of Ijebu-Igbo registered Chieftaincy Declaration particularly Clause (III) (a) and (b)? I have had the benefit of reading the views expressed by the learned trial Judge, the Court below and learned counsel on both sides. I shall now make the final meaning of the said declaration known.

My Lords, as I can glean from Clause (111) (a) and (b) of the Orimolusi of Ijebu-Igbo registered Chieftaincy Declaration, the main intention of the declaration is to make members of a Ruling House competent to fill the vacant stool of Orimolusi of Ijebu-Igbo, including sons of a previous holder of the title, to be of the male line, and they are entitled to be selected to fill the said vacancy in the first place. In other words, the first set of persons who may be proposed as candidates by a Ruling House entitled to fill the vacancy in the chieftaincy title shall be members of the Ruling House, including sons of a previous holder of the title, of the male line. That is to say, whether as a member of the Ruling House or as a son of a previous holder of the title, one must come from the male line before he is eligible to be selected in the first place. The declaration leaves no one in doubt that membership of the “male line” is a critical factor in eligibility in selecting a successor to the stool of Orimolusi. Both parties do agree that the first sets of candidates to be considered in filling the vacancy are those of the male line but the disagreement is on the meaning of the male line. I shall return to this issue anon.

​My Lords, there is a proviso that succession may be devolved on the female line where there is no qualified candidate of the male line. In other words, members of the female line of the chieftaincy family can only be considered for the stool where there is a failure of qualified candidates from the male line. There is no doubt about this.

In the judgment of the learned trial Judge, on page 409 of the record, the following conclusions are recorded:-

“It appears to me that the clause ‘members of the ruling house, including sons of a previous holder of the title in paragraph (111) (a) of Exhibit A means members of the ruling house generally, (subject to his being of the male line) or sons of previous holders of the title. However, the qualification required of a candidate does not end at being just a member of the ruling house or being sons of a previous holder of the title, the candidate is required, in either case, to be of the male line.”

The above position was agreed and upheld by the Court below. That is to say, whether a candidate seeking the title or stool is a member of the ruling house or son of a previous holder of the title, he must be of the male line. This group fall within clause (111) (a) and part of (b) of the Chieftaincy Declaration. As I said earlier, the proviso accommodates candidates of the female line only where there is no qualified candidate of the male line. Where there are qualified candidates of the male line, members of the female line must take the back seat.

The question may be asked: what is the male line? Trying their hands on the definition, the learned Justices of the Court below, relying on the definition given in Stroud’s Judicial Dictionary, (5th Edition) Vol. 3 page 1113, they held as follows on page 623 of the record:-

“I most respectfully stand by the true prima facie meaning of the phrase “Male line” given by Stroud’s Judicial Dictionary (Fifth Edition) Vol. 3 page 1513 –

“Male line… Properly means a line commencing with a male and continued through males.” (my emphasis):

The definition in Stroud’s Judicial Dictionary (supra) also accords with the purport of the Declaration as was explained to the kingmakers before they started deliberations on the selection of the next Orimolusi of Ijebu-Igbo as stated in the trustworthy evidence of the PW6, DW1 and DW6 on the issues, not the slanted construction given by the Court below and favoured by the respondents.”

I agree entirely with the above summation by the Court below. Even apart from the definition of male line in Stroud’s Judicial Dictionary relied upon by the Court below, the mere dichotomy between male line and female line in the Chieftaincy Declaration points irresistibly to a logical conclusion that the intention of the makers of the declaration was to make the male line an unbroken one. That is the reason why allowance is made for those members of the chieftaincy family from the female line should there be a failure to fill the vacancy through the male line. Even the case of Oladokun v Military Governor of Oyo State & 13 Ors (1996) 8 NWLR (pt. 467) 387 at 407 G-H relied upon by the learned counsel for the Appellant does not avail them. In that case, Ogundare, JSC held in that case as follows:-

“Reading Clause 111 of Exhibit K as a whole it is my view 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 Baale of Otu.” (underline mine for emphasis)

There, the emphasis is still on the male line.

I have read the Orimolusi of Ijebu-Igbo Chieftaincy Declaration over and over again particularly Clause (111) (a) and (b) thereof and I have not seen anything to suggest that a person who has been selected as Orimolusi through the female line automatically transforms into a male line. The fact remains that he became an Oba through the female line due to the failure of the male line to produce a suitable candidate. Can a leopard change its skin? The answer is No. What this means is that when the stool becomes vacant, the male descendants of the Orimolusi who occupied the office through the female line, become qualified to vie for the office only through the female line. It further means that they can be considered only if there is a failure to get a credible candidate of the male line. That is the way I understand this matter and I sincerely believe that this is the correct position.

The learned Justices of the Court of Appeal took time to make a clear distinction between the instant case and the cases of Olarenwaju v Governor of Oyo State (supra) and Oladokun v Military Governor of Oyo State ​(supra). The lower Court said on page 624 of the record as follows:-

“However, clause 111 (a) of the Declaration fully read would mean “members of the Ruling House, including sons of a previous holder of the title of the male line.” It is the additional words “of the male line” and the provision for the female line absent in Olarenwaju (supra) and Oladokun (supra) that take the Declaration beyond the Declarations in Olarenwaju (supra) and Oladokun (supra). So Clause (111) (a) of the Declaration meaningfully read as a whole conveys the message that the previous holder of the title must have been from the male line or branch of Ojuromi dynasty before his son, grandson, or male offspring would be entitled to the chieftaincy office under clause (111) (a) of the declaration to arrive at the true intendment of the local subsidiary legislation and meet the expectation of the tradition or custom of the locality the Declaration is designed to serve. Taken together, Clause (111) (a) of the Declaration refers to the male line of Ojuromi which is to be considered first for the traditional stool. But in the event the male line is extinct or incapable of having a candidate, then as a matter of last resort or option, the female line of Ojuromi would be considered for the traditional stool, as words derive colour from the context they are used in an enactment.”

As can be seen above, my understanding of the Declaration accords with that expressed by the learned Justices of the Court below. The lower Court took time to explain and interpret the content of Clause (111) (a) and (b) of the Declaration and I have nothing to fault them. I rather commend them for their incisive analysis and conclusion. It is the erroneous interpretation of the “male line” that made the learned counsel for the Appellant to hold the view that the appellant has changed his position from female line to male line simply because he could trace his ancestry to a former holder of the title. This cannot be true as there is nothing in the chieftaincy declaration to suggest that the descendants of a ruling house can change from female line to male line and vice versa. I dare say, once a male liner, always a male liner and once a female liner, always a female liner. I have nothing more to say on that issue.

​In the light of all I have said above, can it be faulted, the position of the Court below that both the Appellant herein and the 1st Respondent are all members of the female line of Ojuromi family? I hasten to say that the said decision cannot be faulted. This is what the lower Court said on page 625 of the record to wit:-

“Clearly the appellant and the 5th respondent were shown by evidence on the record to belong to the female line of Ojuromi within the definition in Stroud’s Judicial Dictionary (supra). In the case of the appellant, he conceded under cross-examination at page 238 of the record that his late grandfather, Oba Abraham Adesemowo, who reigned as the Orimolusi of Ijebu-Igbo from 1929-1948 was mothered by a descendant of Ojuromi. To quote part of the appellant’s evidence as the PW8 at the Court below –

“I agree with you that it was the mother of Oba Adesemowo who was a descendant of Ojuromi, I also agree with you that the father of Oba Adesemowo has no relationship other than through marriage with Ojuromi.”

In the case of the 5th respondent, it was common ground that one Madam Rahamatu Aiyedun, a daughter of Prince Sadikun, a descendant of Ojumoromi, mothered the 5th respondent, as the wife of the 5th respondent’s father, one Kassim. The quest for the stool by the appellant and the 5th respondent through the male line of the Ruling House under clause (111) (a) of the Declaration did not, therefore accrue or materialize. The Court below was, accordingly wrong to interpret clause (111) (a) of the Declaration to accommodate the eligibility of the appellant and the 5th respondent for the traditional stool under sub-clause (111) (a) of the Declaration, when both the Appellant and the 5th respondent are from the female line of Ojuromi Ruling House whose candidature for the stool came under clause (111) (b) of the Declaration.”

​Again, apart from the erroneous interpretation of “male line” by the learned counsel for the Appellant, he has not faulted the facts as analyzed by the Court below which shows that both the appellant herein (as 5th respondent at the Court below) and the 1st Respondent herein (as Appellant at the Court below) are both members of Ojuromi Ruling House but of the female line. I agree entirely with the reasoning and conclusion of the Court below on the issue. For the avoidance of doubt, I agree with the Court below that the appellant herein and the 1st respondent are members of Ojuromi Ruling House but of the female line. Accordingly, issues 1 and 2 are resolved against the Appellant.

ISSUES 3, 4 AND 5

These issues interrogate the decision of the lower Court that the 7th-9th, 13th-15th Defendants admitted in their pleadings that the 8th and 9th Defendants were not kingmakers having regard to the 7th-9th, 13th-15th Defendant’s 2nd further Amended Statement of Defence as well as maternal evidence before it and that in consequent of it, they were disqualified including the 14th and 15th Defendants. What this means is that issues 3, 4 and 5 are interwoven and ought to be resolved together.

In the judgment of the Court of Appeal delivered on 14th June, 2012, the learned Justices held that the 7th-9th and 13th-15th Defendants admitted in paragraph 13 of their 2nd Further Amended Statement of Defence that the 8th and 9th defendants were not kingmakers and therefore not qualified to participate in the selection exercise as kingmakers. Earlier in his judgment, the learned trial Judge, in consideration of this point held that references to the 8th and 9th Defendants in paragraph 23 was a grave drafting error as other paragraphs of the same pleadings demonstrated.

The learned Senior counsel for the Appellant submitted that the situation is one where two or more different parts of a pleading demonstrate contradictions in respect of the same matter. He contended that the position of the law is that in a situation where there are conflicting averments in a particular pleading, it is not open to a party to choose one of such conflicting averment while closing his eyes to the other for the purpose of agitating an admission or estoppel. That the pleadings would have to be considered as a whole to determine if there has been an admission or not, relying on Buhari & Anor vs Obasanjo & 264 Ors (2005) 13 NWLR (pt. 941) 1 at 261, International Brokers of Nigeria v Atlantic Textiles Manufactures Company Limited (1996) 8 NWLR (pt. 466) 316 at 329 F-G, Nwankwo v Nwanwko (1995) 5 NWLR (pt. 394) 153 at 171 C -D.

​The learned Senior counsel argued issues 4 and 5 together which, in the main faults the re-evaluation of evidence by the Court below which upturned the decision of the learned trial Judge on some members’ qualification as kingmakers. Dr. Ayeni, in the circumstance submitted that the Court below ought not, except in exceptional circumstances interfere with what must be the outcome of a dispassionate consideration of the evidence by the trial Court. That the ascription of probative values to the evidence comes at a later stage of the whole process and this is done by the Judge who saw and heard those witnesses who gave evidence before him. He places reliance on Lawal v Dawodu & Anor (1972) All NLR (Reprint) 707 at 722, Ndayako v Dantoro (2004) 13 NWLR (pt. 889) 187 at 216-217, Ogbu v Ani (1994) 7 NWLR (pt. 355) 128, Iriri v Erhurhobara (1991) 2 NWLR (pt. 173) 252 etc.

The learned Silk submitted that the learned trial Judge correctly reviewed the evidence of each of the 1st Respondent and the 8th Defendant as well as PW6 and PW7 at the end of which the trial Court held that the 8th Defendant validly participated at the kingmakers’ meeting, being convinced that he had been presented to the late Orimolusi before he died. The learned Senior counsel also made submission regarding the 9th and 15th defendants. That the Court below ought not have interfered with the findings of the trial Court. He urged this Court to hold that the 8th, 9th and 15th defendants were qualified to act as kingmakers in the selection of the 5th defendant as the Orimolusi of Ijebu- Igbo. He also urged this Court to resolve issues 3, 4 and 5 in favour of the Appellant.

In response, the learned counsel for the 1st Respondent, referred to paragraph 23 of the 2nd Further Amended Statement of Defence of the 7th-9th and 13th-15th defendants and submitted that the statement contained therein is unequivocal and cannot be said to be a typographical or drafting error. That the drafter of the pleading knew clearly what was being written and alluded to and the message it intended to pass on. Learned counsel referred to Section 20 of the Evidence Act, 2011 as to what constitutes an admission and the case of Alhassan v Ishaku & Ors (2016) LEGAL PEDIA (SC) Andy.

​Learned counsel contended that it was the failure of the learned trial Judge to properly evaluate the evidence which led to a perverse decision in respect of the admission. That it was this failure of the trial Judge which necessitated the Court below to interfere with evaluation of evidence on the issue. It is his view that the Court below went on to evaluate the correctness of the conclusion of the trial Court based on the evidence adduced before the trial Court particularly the evidence of PW8 whose evidence the learned Justices described as unshaken evidence of lack of qualification of the 8th defendant, 9th defendant and 14th defendant. So also on the 15th defendant, in which the lower Court faulted the trial Court’s award to the 15th defendant what he did not seek for, relying on Oduwole v West (2010) Vol. 5-7 MJSC (pt. 11) 1 at 39, Standard Engineering v NBCI (2006) Vol. 6 MJSC, Bhojsons Plc v Daniel Kalio (2006) 5 MJSC 136.

Learned counsel agrees that it is the primary function of the trial Court to evaluate evidence but that where the findings and conclusion of the trial Court is not supported by evidence and the pleadings or where a trial Court draws wrong conclusion on the pleadings and evidence, thus making its findings perverse, the appellate Court shall assume the position of the trial Court and make proper findings, relying on Odulana v Oladejo (2013) All FWLR (pt. 707) 746, Obidike v State (2014) vol. 1-3 MJSC 50. He urged the Court to resolve these issues against the Appellant.

On his part, the learned counsel for the 2nd—4th respondents submitted that the onus is on the claimant to succeed on the strength of his own case and that even where there is an admission by the defendant in any paragraph of his pleadings, the Court is enjoined to examine the evidence and the entire pleadings of the parties in arriving at a decision on the matter, relying on Buhari v Obasanjo (supra) and Okochi v Animkwoi & Ors (2003) 6 SCM 112 at 123. Referring to paragraph 9, (a) and (b) of the said Statement of Defence learned counsel submitted that consideration of a paragraph relating to the same issue in subsequent paragraphs must be considered in order to shed more light on the matter. He opined that the learned trial Judge was right to refer to it as a grave drafting error.

​In respect of the decision of the Court below which held that the 8th, 9th and 15th defendants were not qualified to have participated as kingmakers, learned counsel submitted that the evidence as evaluated by the learned trial Judge should be followed and not as done by the Court of Appeal. He urged the Court to affirm the composition of the kingmakers as held by the trial Court and also the meaning of the Chieftaincy Declaration by the trial Court.

RESOLUTION:-

The three issues (3), (4) and (5) discussed herein were triggered off by paragraph 31 (a) of the second Further Amended Statement of Claim of the plaintiff as found at page 189 of the record of appeal. The said paragraph 31 (a) states:-

“The plaintiff avers further above that the kingmakers’ meeting held on 6th January, 1997 was not properly constituted, in that:

(a) The 8th and 9th defendants who had not been duly appointed and 15th defendant who has not been duly re-instated into his position as Agbon of Ijebu-Igbo were allowed to take part in the deliberation and consideration of the candidates to the vacant stool of Orimolusi chieftaincy.”

To the above averment, the 7th-9th and 13th-15th defendants in their paragraph 23 of their second further amended statement of defence averred as follows at page 265 of the record:-

“Defendants further aver that the 8th and 9th defendants mentioned in paragraph 31 (a) of the Amended Statement of Claim, became chiefs only after the demise of LATE OBA ADETAYO in 1994 and so have not been accepted and fully integrated into the kingmakers’ circle and so had not been recognized as kingmakers and therefore were not eligible to participate in the affairs of the kingmakers and that in any case it was not the kingmakers that chose themselves for the exercise but the authorities of Ijebu-North Local Government.”

With the above averments of the plaintiff and the traverse also set out, the stage was set for the two Courts below to say why things should be so. First to speak, as expected was the learned trial Judge who stated on page 435 of the record as follows:-

“It seems to me that reference to 8th and 9th defendants in the above recited paragraph is a grave drafting error.”

The Court below straight away faulted the position of the learned trial Judge in the following words:-

“It is puzzling that the Court below gave unsolicited assistance to the drafter of the said piece of pleadings for the purpose of defeating the conscious admission of paragraph 31 (a) of the second further amended statement of claim by paragraph 23 of the 7th-9th, 13th-15th defendants’ further amended statement of defence. I think it was not the function of the Court below to aid any of the parties before it. The learned Senior counsel for the 5th-8th respondents made spirited effort to change the admission of paragraph 31 (a) of the appellants pleadings (supra) by paragraph 23 of his clients pleadings, but, with deference, I am not swayed by the effort to turn black into white, so to say.”

The Court below went on to say further on the matter that:-

“The admission is crystal clear that at the time of the selection exercise, the 8th and 9th defendants, Chief M. Odejayi now deceased, and Chief S. Oseni, (the present 6th respondent) respectively, were not qualified to participate in the selection exercise as kingmakers, as they were not full fledged chiefs before the demise of Oba Adetayo in 1994 who was to ratify their appointments in his capacity as the prescribed authority.”

See page 628 of the record.

​My Lords, it is elementary jurisprudence to address you on the issue of admission which is defined as a voluntary acknowledgment made by a party of the existence of the truth of certain facts which are inconsistent with his claim in an action. It is a concession made by a party of the existence of certain facts, a statement made by a party of the existence of a fact which is relevant to the cause of the adversary. See Adusei v Adebayo (2012) 3 NWLR (pt 1288) 534, Omisore v Aregbesola (2015) LPELR-24803 (SC), Nigerian Advertising Services Ltd & Anor v United Bank for Africa Plc & Anor (2005) 14 NWLR (pt. 945) 421.

The learned Senior counsel for the Appellant and that of the 2nd-4th Respondents argued strenuously that paragraph 23 of the 7th-9th, 13th-15th defendants’ further amended statement of defence was not an admission because they had earlier denied paragraph 31 (a) of the second further amended statement of claim. Without much ado, I have no doubt in my mind that the Court below was right when it held that it was a clear and an unambiguous admission. Imagine the detailed facts contained in the said paragraph 23 of their second further amended statement of defence that the 8th and 9th defendants became chiefs only after the demise of late Oba Adetayo in 1994 and that they had not been accepted and fully integrated into the kingmakers’ circle. They stated also that the 8th and 9th defendants had not been recognized as kingmakers and therefore were not eligible to participate in the affairs of the kingmakers. These facts are too detailed to be regarded as a “grave drafting error” as the learned trial Judge would want us to believe.

Although, the Court below held that paragraph 23 of the 7th-9th and 9th—15th defendants’ further amended statement of defence was a crystal clear admission of paragraph 31 (a) of the claimants’ (1st Respondent herein) 2nd further amended statement of claim, it did not however base its decision solely on the said admission. The lower Court went further to interrogate the correctness of the conclusion of the trial Court based on the evidence adduced before it, particularly the evidence of PW8 which the Court below described as “unshaken evidence of the lack of qualification of the 8th defendant (Chief M. Odejayi, now deceased), 9th defendant (Chief S Oseni, now 6th Respondent), 14th defendant (Chief J. A. Onadeko, now deceased) at page 236 of the record.”

This is what PW8 (now 1st Respondent) said in his evidence at page 236 of the record.

“The 8th and 9th defendants were among those who took part at the nomination meeting of 6/1/97. The 14th and 15th defendants also took part at the meeting. The four kingmakers are not entitled to sit at that meeting. By Ijebu-Igbo tradition and custom, before an Oluwo can take his part as a kingmaker of the Orimolusi Chieftaincy, he must have complied with or gone through the following:- after his nomination at the Osugbo conclave as the Oluwo, he must be presented to the Olurilu of his Quarter for approval, the Quarter Olorilu (or Oba as they are now called) will present the Oluwo to the Orimolusi who is the prescribed authority in respect of minor chieftaincies, who will bless and cap the new Oluwo. In the case of the 8th defendant, he was neither blessed nor capped by the Orimolusi. The same procedure applies to the Apena of each quarter. The 9th defendant became Apena of Ojowo during the reign of the present Olorilu Ojowo Oba Kuyeba. The 9th defendant was not presented to the Orimolusi, Oba Adetayo before he joined his ancestors. In the case of the 14th defendant he was not presented to the Orimolusi Oba Adetayo before his demise.”

The Court below observed that the 8th defendant did nothing to contradict the evidence of PW8 reproduced above. Specifically, that he failed to produce in evidence his letter of appointment to displace PW8’s evidence when such appointments bear letters of appointment, for example Exhibit D carrying the appointment of one Mr. David Adebayo Kuyeba as Olorilu of Ojowo.

As if that was not enough, the secretary of Ijebu-North Local Government gave damaging evidence against the 8th 9th and 15th defendants as purported kingmakers. His evidence is on page 114 of the record in respect of the vacant title of Oluwo Osugbo of Ojowo of Ijebu-Igbo as follows:-

“Exhibit B deals with a minor chieftaincy matter in respect of Ojowo, Ijebu-Igbo. I see that the title of Olowo Osugbo of Ojowo was stated to be vacant in that Exhibit.”

He testified as PW2 and he further stated at page 116 of the record thus:-

“The two titles of Agbon and Oluwo of Ijebu-Igbo come within the jurisdiction of the Orimolusi of Ijebu-Igbo as the Prescribed Authority. ”

On page 159 of the record, PW2 made it more explicit as follows:-

“If on the 6th of January, 1997, I was aware of Exhibits B and C, I would have raised objection to the 8th and 15th defendants’ participation in the deliberations of the kingmakers of 6/1/97.”

From the foregoing evidence on the printed record supporting the pleading in the statement of claim that the 8th, 9th, 14th and 15th defendants who participated as kingmakers were not qualified, coupled with the clear admission in paragraph 23 of the 7th—9th, 13th—15th defendants’ second further amended statement of defence, is it surprising that the Court below reached the conclusion it did? I do not think so. As was pointed out by the Court below in its judgment, exhibit G from Ijebu-North Local Government requesting the 15th defendant to furnish evidence of his appointment as Agbon of Ijebu-Igbo was not honoured showing that the 15th defendant had no such letter of appointment, and that, if he had any, the record of Ijebu-North Local Government would have revealed it. Even the 9th defendant who was challenged and at the centre of the storm would not testify to clear his position.

One issue which baffles me as was observed by the Court below, is the content of Exhibit C which the learned trial Judge set aside unsolicited. In the said letter, the 8th defendant was stripped of his title by the Orimolusi of Ijebu- Igbo. However, the learned trial Judge set aside the said decision of the Orimolusi. The Court below, in reversing the decision of the learned trial Judge on this respect, made the following weighty conclusion thus:-

“Even the second further amended statement of defence incorporating the 8th respondent’s defence at pages 259-267 of the record did not set up a counter-claim by the 8th Respondent to set aside the said removal. Contrary to established practice, the Court below granted a relief setting aside the removal of the 8th Respondent as Agbon of Ijebu-Igbo that was not claimed by the 8th respondent. See Ayanboye & Ors v Balogun (1990) 5 NWLR (pt. 151) 392 at 413 … Also, the Orimolusi of Ijebu-Igbo that removed the chieftaincy title from the 8th respondent by Exhibit C was not a party to the suit at the Court below, therefore, it was wrong for the Court below to set aside the removal behind the back of the removing authority.”

I agree entirely with the decision of the Court below on this issue. It is elementary law that a Court is not a father christmas. Its jurisdiction is generally limited to the issue properly presented to it. The Court cannot generally make pronouncement that affect parties who are not before it and on issues not properly joined before it. This is what the learned trial Court did and it is my view that the Court below was right to set it aside. See Okere v Amadi & Ors (2005) 14 NWLR (pt. 945) 545, Jim-Jaja v COP Rivers State & Ors (2013) 6 NWLR (pt. 1350) 225, Egonu v Egonu (1978) 11-12 SC 111 at 133, Babatunde Ajayi v Texaco Nig Ltd (1987) 9-10 SC page 1 at 27, Etim Ekpenyong v Inyang Nyong (1975) 2 SC 71 at 80, Edebiri v Edebiri (1997) 4 SCNJ 177, (1997) 4 NWLR (pt. 498) 165, Omokuwajo v FRN (2013) 9 NWLR (pt. 1359) 300.

On the whole, I agree with the Court below that the 8th, 9th, 14th and 15th defendants who took part in the kingmakers meeting of 6/1/97 to select the Orimolusi of Ijebu-Igbo were not qualified to take part in the exercise. Thus, issues 3, 4 and 5 are resolved against the appellant.

Having resolved the five issues against the appellant, there is nothing left to be said than to pronounce that there is no merit in this appeal. It is accordingly dismissed. The judgment of the Court below ordering a fresh exercise to select the Orimolusi of Ijebu-Igbo with qualified candidates and competent kingmakers is hereby affirmed. I shall make no order as to costs.

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SC.448/2012