Mustafa Oladokun Vs Military Governor Of Oyo State And Others (1996)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, JSC

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 plaintiff’s 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 Etielu 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 recognised 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, JCA (as he then was) (with which Kolawole, JCA 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 that 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, JCA in minority judgment agreed with the conclusion reached by his learned brethren but for a 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 plaintiffs 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 ‘I’

(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 ‘I’ 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.

(iv) 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 Alaafin 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 possesses 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, JCA 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 ‘I’ was made under S4(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 Mogaii Ijo had a constitutional right to summon the family meeting whether he took part in the voting at the family meeting to 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 ‘I’ 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 (Pt. 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

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Other Citation: (1996) LCN/2662(SC)