Mustafa Oladokun V. The Military Governor Of Oyo State & Ors (1996)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C. 

The main issue calling for determination in this appeal relates to the interpretation of the chieftaincy declaration of the Onjo of Okeho Chieftaincy, registered on 12th February 1958. Following a vacancy in the office of the Onjo, steps were taken to fill the vacancy.

The Secretary to the Kajola Local Government called on the Etielu Ruling House whose turn it was to present a candidate to do so. By the terms of the Chieftaincy Declaration, the meeting of the Ruling House had to be summoned by the Mogaji Ijo. There was at the time a dispute as to the validity of the appointment of Labode Akano as the Mogaji Ijo in consequence of which the Secretary of the Kajola Local Government summoned a meeting of the Etielu Ruling House to consider the nomination of candidates for presentation to the kingmakers.

The Ruling House held a meeting on the 22nd of August 1985 at which four candidates were proposed. A vote was taken. The Plaintiff who was one of the candidates scored 20 votes; Y.O. Sunmonu another candidate scored 18 votes. Alhaji Shittu Ishola a third candidate scored 7 votes and Chief Oyebanji Oladokun the fourth candidate scored 1 vote. The names of the four candidates were presented to the kingmakers by the Secretary to the Local Government.

Under the declaration, there are thirteen kingmakers including Mogaji Ijo and Bale Olele. At the meeting of the kingmakers held on 3/8/85, ten of them were present. Mogaji Ijo and Bale Olele were not invited to the meeting. The ten kingmakers voted on the four candidates presented before them. Mustafa Oladokun scored 3 votes and Y.O. Sunmonu scored 7 votes.

The other two candidates had no vote. The name of Sunmonu was forwarded to the Alafin of Oyo for his consent to the appointment of Sunmonu as the Onjo of Okeho. The Alafin refused to give his consent. The 1st defendant directed him to do so. But before the Alafin could comply, Mustafa Oladokun who was unhappy about the outcome of the exercise instituted proceedings leading to this appeal. Y.O. Sunmonu the successful candidate was joined as the 14th defendant in the action.

In his writ of summons Mustafa Oladokun claimed as hereunder:

“1. Declaration that the plaintiff who scored twenty (20) votes at the joint meeting of Etielu Ruling House held on 22nd August, 1985 is the candidate nominated by Etielu Ruling House pursuant to Clause (v) of Onjo of Okeho Chieftaincy Declaration registered on 12th February, 1958.

2. Declaration that the forwarding of 4 names by the Secretary to the kingmakers inspite of the selection of the plaintiff by the family was contrary to custom and the existing declaration, irregular, without foundation and ineffective.
3. Declaration that the plaintiffs name is the only one that should have been forwarded to the kingmakers in accordance with provisions of the existing declaration and the custom of Okeho relating to Onjo of Okeho.
4. Declaration that the reversal of the plaintiff’s nomination by the kingmakers and the substitution therefor of the name of the 14th Defendant by the kingmakers is contrary to custom and the existing declaration.

Alternative to reliefs 1 – 4 above

5. Declaration that the joint meeting of Etiele Ruling House held on 22nd of August 1985 was irregular null and void and of no effect in that, the meeting was not summoned by the Mogaji Ijo as stipulated in the existing declaration.
6. Declaration that the meeting of the kingmakers at which the 14th defendant was voted for was irregular, null and void and of no effect in that the kingmakers were not invited.
7. Declaration that the 14th defendant not being the son of previous Onjo is not qualified to be an Onjo of Okeho.
8. Declaration that the 1st defendant’s directive to the 13th defendant that the 13th defendant should exercise his discretionary power as a consenting authority in a particular manner i.e. to consent to the appointment of the 14th defendant within 7 days is unconstitutional, contrary to law, improper, null and void and of no effect.
9. Injunction restraining the 13th defendant by himself his agents, servants or privies from or otherwise howsoever from consenting to the nomination of the 14th defendant.
10. An order of injunction restraining the defendants, their agents, servants or privies from or otherwise howsoever from consenting to the nomination of the 14th defendant.
11. An order of injunction restraining the 14th defendant from presenting or parading himself for installation as the Onjo of Okeho”

Pleadings having been filed and exchanged, the action proceeded to trial at the conclusion of which the learned trial Judge found –

1. that “there is nothing in Section 15(1) (c) of the Chiefs Law that empowers the Secretary of a Local Government to summon a meeting of members of a Ruling House. All the Section requires is for the Secretary to announce the name of the Ruling House entitled according to the customary law to provide a candidate or candidates, as the case may be, to fill the vacancy.”
2. that “it is the Mogaji Ijo who should under normal circumstances summon a meeting of the family whenever there is a vacancy.”
3. that there is no evidence that Mogaji Ijo “is a recognized chieftaincy” under the Chiefs Law.
4. that the decision of the Grade C Customary Court as contained in Exhibit A in respect of Labode Akano’s appointment as Mogaji Ijo is still subsisting and valid as it has not been set aside;
5. that at the time the Secretary of the Kajola Local Government invited the Etielu Ruling House to hold a family meeting to nominate a candidate or candidates to fill the vacant stool of the Onjo of Okeho in 1985, there was no incumbent Mogaji Ijo;
6. that if there was any irregularity at all in the summoning of the meeting of the Etielu family, it was waived by the parties and as there was no Mogaji Ijo, the family meeting was properly held;
7. that the Chieftaincy Declaration “envisages that more than one candidate may be proposed by the family for the consideration of the kingmakers. Reading the whole of the Declaration together the only conclusion one can reach is that the name of more than one candidate may be sent to the kingmakers for their consideration;
8. that there were no incumbents of the chieftaincies of Mogaji Ijo and Baale of Olele. No one could have been validly invited to represent the holder at the kingmakers meeting of August 1985, consequently the meeting of August 1985 at which the kingmakers selected the 14th defendant was properly constituted;
9. that the qualifications enumerated in paragraph (iii) of the Chieftaincy Declaration are disjunctive and not conjunctive and that, therefore, anyone that has one of the qualifications enumerated in that paragraph will be entitled for selection to the vacant stool.

In the net result the learned trial Judge found that the plaintiff failed in all his claims and dismissed the action.

Being dissatisfied with this judgment the plaintiff appealed to the Court of Appeal which latter Court in the lead judgment of Ogwuegbu, J .C.A (as he then was) (with which Kolawole, J.C.A. agreed) found:

1. that the trial in the Grade ‘C’ Customary Court is a nullity and, therefore, the appointment of Labode Akano as Mogaji Ijo remained valid;
2. that the Mogaji Ijo was wrongfully excluded from summoning the family meeting and participating at the meeting of the kingmakers to select the Onjo of Okeho;
3. but that as Mogaji Ijo is not a party to the present proceedings nor the other kingmaker (Baale of Olele) who was not invited to the meeting of the kingmakers did not complain about their exclusion in the present proceedings either as a party or as a witness the issue of their exclusion in the circumstances appears to me academic and the plaintiff having agreed with all the steps taken by the family at the meeting, he has waived his right to complain;
4. that the Ruling House is perfectly entitled to provide one candidate or more than one candidate;
5. that Clause (iii) of the Chieftaincy Declaration must be read conjunctively to avoid absurdity and capricious result;
6. that the phrase “son of a previous holder” appearing in Clause (iii) (c) of the Chieftaincy Declaration means direct sons of a previous holder of the title; it does not include grandson, great -grandson and great-great-grandson; that consequently Y.O. Sunmonu (the 14th defendant) not being a direct son of a previous holder of the title is not qualified under the declaration to be nominated or selected for the vacant stool of Onjo of Okeho and the Alaafin of Oyo was right in not confirming his appointment.

Upon these findings the Court below allowed the appeal of Oladokun (who shall hereinafter be referred to as the Plaintiff) and set aside the judgment of the trial Judge and granted the 7th, 8th, 9th, 10th and 11th alternative reliefs of the plaintiff.

Akpabio,J .C.A. in minority judgment agreed with the conclusion reached by his learned brethren but fora different reason. In his judgment he held the view that the family meeting at which candidates were nominated for consideration by the kingmakers was invalid as it was not summoned by the Mogaji Ijo. He set aside the whole nomination exercise and ordered that the exercise be commenced de novo and that a fresh meeting be summoned by the Mogaji Ijo.

Being dissatisfied with the judgment of the Court of Appeal the 4th to the 6th, the 8th, the 9th and the 14th defendants appealed to this Court complaining against the whole decision and seeking from this Court an order setting aside the judgment of the Court of Appeal and dismissing the plaintiff’s claims in their entirety. The plaintiff too was unhappy about some aspects of the majority decision of the Court of Appeal and cross-appealed to this Court. Briefs of argument were filed and exchanged. The defendants/appellants who shall hereinafter be referred to as “defendants” simpliciter, filed reply briefs in answer to the plaintiff’s brief and the brief of the 1st and 2nd defendants/respondents.

The defendants in their brief of argument set out for determination as many issues as there are grounds of appeal in their notice of appeal. The plaintiff, however, posed two questions for the determination of the main appeal. These are:

1. What is the construction to be placed on Exhibit “A” (sic) (the Chieftaincy Declaration) as to who is to be appointed, the conditions to be satisfied and whether the sons of previous holders include grandsons
2. Whether the judgment of the Court of Appeal was against the weight of evidence.

Having regard to the judgment appealed against and the grounds of appeal, question (1) as formulated by the plaintiff is adequate enough for the determination of the defendants appeal before us.

The plaintiff, in his brief of argument, has also posed questions for the determination of his cross-appeal: These are:

(i) Whether the Court of Appeal was right in restricting the interpretation of clause (iii) (c) of Exhibit “1”

(ii) Whether the exclusion of the Mogaji Ijo from the family meeting called for the selection of candidates was academic, considering the effect of the exclusion of the Cross-Appellant, and whether the said Mogaji Ijo had waived his right to be summoned and to be present at the family meeting where the nomination took place.

(iii) Whether under the declaration, Exhibit “1” Clause (v) the nomination of candidates should not be restricted to only one candidate.”

These questions are adopted by the defendants in their Reply Brief to plaintiff’s brief. I have considered the preliminary objections taken in the briefs of the plaintiff and defendants. I can find no substance in any of the said objections; it is clear from the grounds of appeal filed by the defendants (as inelegantly as some of them might have been drafted) that the complaints of the defendants, as well as those of the plaintiff in his cross-appeal, are against the construction given by the court below to some paragraphs of the chieftaincy declaration (Exhibit 1) in issue in these proceedings.

At the oral hearing of the appeal and cross-appeal, learned counsel for the respective parties proffered oral arguments in further elucidation of the arguments contained in their respective briefs. Learned counsel for the defendants, Chief Adejumo objected to the stand of the 1st and 2nd defendants in this Court He observed that both in their pleadings in the court of trial and their brief in the court below the 1st and 2nd defendants/respondents supported the case of the other defendants, except the 13th defendant. He further observed that in this Court the 1st and 2nd defendants now pitched their tent in the plaintiff’s camp, as shown by the arguments in their brief. This, learned counsel opined, was improper as parties are bound by their pleadings.

I think the objection is misconceived. The 1st and 2nd defendants have not resiled from their pleadings. Instead, the facts are not in dispute. What they have done is to accept the construction placed on Exhibit 1 by the Court below. Hence they have not appealed against the judgment of that court. And this they are entitled to do.

I now turn to the appeals on hand. As the determination centres on the construction of Exhibit 1, I need to set out the declaration in extenso at this stage.

Exhibit 1 reads:

“DECLARATION MADE UNDER SECTION 4(2) OF THE CHIEFS LAW, 1957, OF THE CUSTOMARY LAW REGULATING THE SELECTION TO THE ONJO OF OKEHO CHIEFTAINCY.

(i) There are two ruling houses and the identity of each such ruling house is:

1. Etielu

(2) Adeniyi

(ii) The order of rotation in which the respective ruling houses are entitled to provide candidates to fill successive vacancies in the chieftaincy shall be:

1. Adeniyi
2. Etielu (present ruling house)

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

(a) members of the ruling house

(b) of the male line only

(c) sons of a previous holder of the title.

There are thirteen kingmakers as under:

1. Mogaji Ijo
2. The Baale Pamo
3. The Jagun Yaba
4. The Baogan
5. The Baale Bode
6. The Alashia
7. The Baale Olele
8. The Baale Gbonje
9. The Alubo
10. The Baale Ishemi
11. The Baale Oke Ogun
12. The Onimoba
13. The Baale Ogan

(v) The method of nomination by each ruling house is as follows:-

The ruling house whose turn it is to provide a candidate shall nominate at a family meeting to be summoned by the Mogaji Ijo. Whoever is nominated by the family shall be presented to the thirteen kingmakers.

(vi) The consent of the Alafin of Oyo is required to confirm the appointment of the candidate put forward by the kingmakers as the Onjo of Okeho. Such consent could not be withheld by him if the candidate possessess any of the qualifications under paragraph (iii) of this declaration.”

Meetings of the Ruling House and kingmakers

Paragraph (v) of Exhibit 1 provides that the meeting of the ruling house called to nominate a candidate is to be summoned by the Mogaji Ijo. It is not in dispute that the meeting of the Etielu ruling house held on 22/8/85 at which the plaintiff and the 14th defendant, among others, were nominated, was not summoned by the Mogaji Ijo, Labode Akano but by the Secretary to the Kajola Local Government. Labode Akano was not invited to nor present at the meeting. Both the plaintiff and the 14th defendant were present and took part in the deliberations at the meeting. The court below held that the Mogaji Ijo was wrongfully excluded from summoning the family meeting but that as he did not complain and as the plaintiff attended the meeting and took part in the deliberations, he had waived his right to complain. The same finding was made by that Court in respect of the exclusion of the Mogaji Ijo and Baale of Olele from the meeting of the kingmakers summoned to appoint a new Onjo of Okeho, Ogwuegbu, J.C.A. said:

“I am satisfied that the Mogaji Ijo was wrongfully excluded from summoning the family meeting and participating at the meeting of the kingmakers to select the Onjo of Okeho.

What therefore is the effect of the exclusion of the Mogaji Ijo from the exercises leading to the selection of the 14th respondent The declaration regulating the selection to the Onjo of Okeho Exhibit “1” was made under S.4(2) of the Chiefs Law of Western Region of Nigeria, 1957. It is a subsidiary legislation. Paragraph (v) of the Declaration provides that the ruling house whose turn it is to provide a candidate shall nominate at a family meeting to be summoned by the Mogaji Ijo. Paragraph (iv) of the said declaration makes provision for the kingmakers. Mogaji Ijo is one of them.

Even though the function of the Mogaji Ijo is to summon a meeting of the family whose turn it is to provide a candidate and also to participate and vote along with the other kingmakers in the selection of the Onjo of Okeho, it is my firm view that the Mogaji Ijo had a constitutional right to summon the family meeting whether he took part in the voting at the family meeting or not. He equally had the same right to take part in the selection or appointment of the Onjo of Okeho in case of vacancy in the chieftaincy as in this case. Therefore, the exclusion of the Mogaji Ijo from the exercise based on Exhibit “8” was wrongful and unconstitutional. The rights conferred by the Onjo of Okeho Chieftaincy Declaration Exhibit “1” are vested rights which the 3rd respondent cannot set aside by his misinterpretation of the proceedings in Exhibit “8” See Ojo v. Governor of Oyo State (1989) 1 NWLR (PL 95) 1 at 14.

The Mogaji Ijo is not a party to the present proceedings nor the other kingmaker who was not invited to the meeting of the kingmakers. None of them has complained about his exclusion in the proceedings either as a party or as a witness. The issue of their exclusion in the circumstances appears to me academic more so when the issue of waiver is considered”

After considering the elements of waiver, the learned Justice concluded:

“I am of the view that both elements of waiver are present in this case. The appellant agreed with all the steps taken by the family at the meeting. In his evidence he testified that if his name was the only name submitted to the kingmakers, he would not have complained about the procedure adopted in summoning and holding the meeting. He cannot therefore, approbate and reprobate. The failure of the Mogaji Ijo to summon the meeting of the ruling house and the failure of the 3rd respondent to invite him and the other living kingmaker to the meeting of the kingmakers cannot in my view vitiate the selection. Both men never complained of the violation of their rights.”

Learned counsel for the plaintiff submitted that the court below was right in holding that the exclusion of the Mogaji Ijo from summoning and attending the family meeting and his exclusion and that of the Baale of Olele from the meeting of the kingmakers was wrongful. He, however, submitted that the conclusion that that right was waived was irrelevant Chief Adejumo, for the defendants, submitted that the conclusion of the court below was correct. He argued that as more than a majority of kingmakers met to appoint, their meeting could not be vitiated and relied on section 53 of the Interpretation Law of Oyo State, for this submission.

Learned counsel further submitted that the provision that the family meeting be summoned by the Mogaji Ijo was directory only and non-compliance would not render the meeting invalid. He observed that both the Chiefs Law and the chieftaincy declaration were silent on the consequences of non-compliance with the provision as to the summoning of the family meeting.

Learned counsel also relied on paragraph 111 on pages 320 to 322 of Maxwell on Interpretation of Statutes (8th ed) – and admitted that the power given to the Mogaji Ijo was a privilege and not a right.

I think the argument of learned counsel, Chief Adejumo is misplaced. The court below found that by his exclusion from summoning the meeting of the family, the Mogaji Ijo’s right was infringed. The defendants did not appeal against this finding. It is not now open to them to argue that what Exhibit “I” confers on the Mogaji Ijo is a privilege and not a right. They can only seek to justify the finding of the court below by arguing in favour of waiver found by the court below to disentitle the plaintiff to complain.

The question that arises now is: Has the plaintiff waived his right to complain on the facts of this case The right to summon the family meeting is that of the Mogaji Ijo. Similarly, the right to attend the meeting of the kingmakers to select a candidate is that of the Mogaji Ijo and Baale of Olele. Neither belongs to the plaintiff who could therefore not be said to have waived the right. One cannot waive a right one does not possess. Be that as it may, plaintiff in paragraph 28(g) of his statement of clam averred:

“The plaintiff will contend as follows:-

(g) That the family meeting at which the four candidates were selected was null and void in that it was not summoned by the Mogaji of Ijo”

He also challenged the validity of this meeting in alternative relief 5 of his claims. True enough plaintiff said in his evidence:

“I agreed with all the steps taken by the family at the meeting. If only my name had been sent to the kingmakers, I would not have worried about the procedure adopted in calling and holding the meeting.”

That cannot stop him from questioning the validity of the meeting if it was otherwise invalid.

It is not in dispute that Exhibit T requires that Mogaji Ijo is to summon a family meeting whenever nomination is to be made to the office of Onjo of Okeho. The meeting of August 1985 was not summoned by him, nor even by another principal member of the Etielu family but the Secretary to the Kajola Local Government. That meeting, in my humble view, could not be the meeting envisaged in Exhibit T. The meeting of the ruling house envisaged by the declaration is a special meeting of the ruling house summoned by the Mogaji Ijo for the sole purpose of nominating candidate(s) to fill the vacancy occurring in the Onjo of Okeho Chieftaincy title. It is for this reason that I share the view of Akpabio, J .C.A. who, in his judgment, said:

“From the foregoing provision it becomes clear that the presence of the Mogaji Ijo at the family meeting was not just a cosmetic necessity, but a legal requirement for the validity of such a meeting, which could not be compromised or waived by anybody. He was in fact to be the person to summon it. If it was not summoned by him, then the meeting was not properly constituted. So for that reason, I am of the firm view that it was not right for the 3rd respondent to have summoned the family meeting of which he was not a member.”

I hold the meeting of the Etielu ruling house held on 22nd August 1985 to nominate candidate(s) for the filling of the vacancy in the Onjo of Okeho title, invalid. The kingmakers met on 30th August 1985 to select a candidate to fill the vacancy. Exhibit T provides for 13 kingmakers. It is not in dispute that one of the 13 was dead as at 30th August 1985. Mogaji Ijo and Baale of Olele had then problems in their respective families. The Secretary to the Kajola Local Government, as Secretary to the kingmakers summoned the meeting of the kingmakers to which he invited 10 of them. He did not invite Labode Akano, the Mogaji Ijo and the Baale of Olele to the meeting because of the problems the two chiefs were then having in their families. I think he acted wrongly. And the consequence of his wrongful act is that the meeting of the kingmakers held on 30th August 1985 was invalid – see: Young v. Ladies Imperial Club Ltd. (1920) All E.R. Rep. 223, 227-228 per Lord Sterndale, M.R.:

“To my mind it is not shown that she would never have attended, but whether she would, or whether she would not, in my opinion there was no ground whatsoever for not giving her the opportunity and, therefore, no excuse for not summoning her. If that be so, this meeting is bad. It is an invalid meeting quite incapable of acting under r.42. It was argued that to hold this would be a very dangerous thing, because it might interfere with the internal management of clubs. In my opinion, it would be a very much more dangerous thing to hold otherwise, because that would be leaving it to the discretion of the secretary or somebody to omit to summon people because it was thought they would not attend.

That, to my mind, would be a very objectionable thing indeed. But I do not think it matters one way or the other. It is a pure point of law, and, in my opinion, it ought to be decided in the plaintiffs favour.”

The argument that a majority of the kingmakers was present is beside the point. The issue is that not all those entitled to attend were invited to the meeting. The Secretary had not the right to determine on his own who, or not, to invite to the meeting. He ought and, indeed, must invite all those eligible to attend and alive at the time. The two chiefs excluded in this case were the incumbents of their respective offices at the time. The meeting is invalid and I so declare.

Eligibility of 14th Defendant:

It is not in dispute that the 14th defendant is a grandson of a previous holder of the title of Onjo of Okeho. The Court below, per Ogwuegbu, J.C.A. held:

“Clause (iii) (c) which states that the persons who may be proposed as candidates by a ruling house entitled to fill a vacancy shall be sons of a previous holder of the title kept off from the race any person whose father was not a previous holder of the title and who is not a son of such a previous holder of the title. This being the case, sons of a previous holder of the title must mean direct sons of a previous holder of the title. I also hold the view that’ Son’ does not include grandson, great grandson and great great grandson.”

Chief Adejumo has argued in the Brief –

“Having regard to the above dictionary definition of the word |”Son”, it is submitted that it will be a very narrow construction for the word in the con of succession to chieftaincy title to limit the meaning to that in (1) only that is “a boy or man in relation to either or both of his parents” It is submitted that the wider meaning in (2) (a) above should be preferred here that is male descendant or male members of a family.”

So it is submitted that the word “sons” in Clause (iii) (c) should be construed as meaning ‘male descendants of a previous holder of the title; and male members of the family of a previous holder of the title.”

I think he has support for his submission in the decision of this Court in Olanrewaju v. Governor of Oyo State & Ors. (1992) 9 NWLR (Pt. 265) 335,362,363, where this Court, per Karibi-Whyte J.S.C. after first observing as follows;

“It should be observed that not every male member of the entitled Ruling House falls within the category of persons entitled to contest. Such a broad definition will introduce members of the Ruling House not entitled at customary law to contest. On the other hand, the qualification “sons of previous holders of the title, will limit qualification to contest to children of previous holders of the title only, thereby depriving their cousins whose fathers died without holding the title. As unjust as this provision is to the last mentioned, the words are clear and unambiguous to be given a different construction – See Ahmed v. Kassim (supra). Lawal v. G.B. Ollivant (Nig.) Ltd. (1972) 2 SC. 124. The meaning so given to the words is sensible and appropriate. I do not see that the construction given to the declaration leads to absurdity or some repugnancy or inconsistent with the rest of the declaration.”

held subsequently:

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

In the Court of Appeal in that case I had expressed the view that –

“The Chieftaincy Declaration (Exhibit K) requires that a person to be proposed as candidate must not only be a male member of the ruling house but must also be a son of a previous holder of the title of Baale of Otu. The question that arises is: who is a son of previous holder of the title Mr. Joshua submits that “son” includes a grandson. Mr. Awomolo for his part, submits that the word means any legitimate descendant of a previous holder. The New Elizabethan Reference Dictionary published by George Newnes Ltd. defines “son” as meaning a male child in relation to a parent or parents; a descendant. The same definitions appear in the New Concise Oxford Dictionary and in the shorter Oxford English Dictionary. In effect the son may mean a male child of a parent or parents or a male descendant. Obviously, in its narrower sense it means a male child while in its broader sense it means a descendant. Which meaning to apply depends on the con in which the word is used.”

and concluded:

“Reading Clause (iii) 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.”

The plaintiff has sought to distinguish the present case from Olanrewaju. He argued that the phrase construed was “sons of previous holders of the title” whereas in the Onjo of Okeho declaration the phrase is “sons of a previous holder of the title.” It was then submitted in the Brief thus:

“It is submitted that the fact that different words were employed by the draftsmen of the two declarations underscores the point that the phrase “previous holders” in Olanrewaju’ s case is different from “previous holder” in this case.”

With respect, I can see no difference in the two phrases; they mean one and the same thing and convey the same sense and meaning.

We have not been invited in his appeal to depart from our decision in Olanrewaju. It, therefore, has to be followed. In the result, I must hold that the court below was in error in its construction of the phrase “sons of a previous holder of the title” appearing in Exhibit ‘1’. In consequence, I hold that the 14th defendant is eligible to the title of Onjo of Okeho.

Number of Candidates to be Nominated:

Again, it is not disputed that the plaintiff scored the highest votes among four candidates proposed and considered at the Etielu family meeting of 22nd August 1985. It is his contention that it was only his name that should have been transmitted to the kingmakers as Exhibit ‘1’ allowed the family to nominate only one candidate. The defendants contend to the contrary.

Paragraph (v) of Exhibit ‘1’ appears incomplete as regards the number of candidates that the Ruling House can nominate. The paragraph reads:

“The method of nomination by each ruling house is as follows:

The ruling house whose turn it is to provide a candidate shall nominate at a family meeting to be summoned by the Mogaji Ijo. Whoever is nominated by the family shall be presented to the thirteen kingmakers.”

There is a lacuna in the declaration as to the number of candidates a Ruling House is enjoined to nominate. This lacuna can be filled by evidence – see: Edewor v. Uwegba (1987) 1NWLR (Pt.50) 313, 343-345; Oba Lipede & Ors. v. Sonekan & Anor. (1995) 1 NWLR (pt.374) 668,699-700. There is evidence on record that on previous occasions more than one candidate had been nominated for consideration by the kingmakers. In so far therefore, as a chieftaincy declaration is a restatement, in writing, of the customary law relating to the selection and appointment of a particular Chief, effect has to be given to it subject, of course, to the filling, by evidence, of any gap, as in this case, that may be apparent on its surface. In the light of the evidence, therefore, I must conclude that the Courts below are right in holding that the Etielu Ruling House has a right to nominate more than one candidate. And I so hold.

Consent of the Alafin:

The declaration (Exhibit “1”) provides for the consent of the Alafin to the appointment of the candidate forwarded by the kingmakers as the Onjo of Okeho. The declaration further stipulates that such consent is not to be withheld if the candidate put forward by the kingmakers possessess any of the qualifications under Paragraph (iii) of the declaration. Paragraph (iii) lists the following three qualifications:

(a) member of the Ruling House,

(b) of the male line only and

(c) son of a previous holder of the title.

It is contended by the defendants that by the use of the word “ANY” in paragraph (vi) the three qualifications are disjunctive, that is, a candidate need not possess all the qualifications; it is sufficient if he possessess any of them and that once a candidate selected by the kingmakers possessess any of these three qualifications the Alafin of Oyo is duty bound to give his consent to the appointment of such a candidate. This argument found favour with the trial Judge.

The plaintiff however, contended, and still contends, that the three qualifications are conjunctive, that is, a candidate to be eligible for appointment must possess all the three qualifications. This argument found favour with the court below. Ogwuegbu, J.C.A. observed as follows:

“The words of the Registered Declaration is clear but it is not free from ambiguity which leads to absurdity. I should therefore treat the word ‘Any’ appearing in clause (vi) of Exhibit 1 as surplusage and tautologuous. It is therefore the duty of this court to modify the uncertainty created by clause (vi). The inconvenience and the absurdity is manifest and I am not in any way rewriting the Registered Declaration regulating the selection to the Onjo of Okeho chieftaincy.”

I agree entirely with the views expressed by the Court below in the above passage. To construe paragraph (iii) of the declaration in the manner suggested by the defendants is to defeat completely the intendment of the customary law as stated in Exhibit T. I think this issue has been thoroughly thrashed out by this Court in Olanrewaju (supra). It is sufficient to say once again that the candidate to qualify for any appointment must possess all the three qualifications enumerated in paragraph (iii) of Exhibit T.

The final conclusion I have reached having regard to all I have said above is that the appeal of the defendants succeeds in part, and that is, to the extent that the 14th defendant being a grandson of a previous holder of the title of Onjo of Okeho is eligible to vie for the title. Having held that the meetings of the Etielu Ruling House held on 22nd August 1985 and of the kingmakers of Okeho held on 30th August 1985 were invalid, the whole exercise conducted in August 1985 to fill the vacancy is void and the appointment of the 14th defendant resulting therefrom is equally null and void; the exercise is to commence all over again. Subject to the above, I affirm the judgment of the court below, including the order for costs, and enter judgment for the plaintiff in terms of his alternative reliefs 5, 6, 8, 9, 10 and 11. His reliefs 1 – 4 and alternative relief 7 stand dismissed.

The cross-appeal of the plaintiff also succeeds in part, to the extent that I declare null and void the meetings of the Etielu Ruling House and of the kingmakers.

I make no order as to the costs of this appeal.

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SC.201/1991