Obala Of Otan-aiyegbaju & Ors. V. Chief Joseph Adesina & Ors. (1999)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

This is an appeal from the judgment of the Court of Appeal, Ibadan Division. The issue in dispute is succession to the stool of Owa of Otan-Aiyegbaju. The claim of the 1st and 2nd plaintiffs, who are respondents in this appeal, is as follows:

“1. That pursuant to the Olota chieftaincy declaration of 1957, it is only the Olasuka ruling house that is entitled to present the next candidates to the Otan-Aiyegbaju kingmakers, for appointment as the next Owa of Otan-Aiyegbaju.

2. That the 2nd plaintiff being the only candidate, from Olasuka ruling house, that was presented to the 3rd, 4th, 5th, 6th, 7th and 8th defendants as the kingmakers of Otan-Aiyegbaju is the lawful and legitimate Owa-elect of Otan-Aiyegbaju.
3. That the 9th defendant, being one of the sons of the immediate past Owa of Otan-Aiyegbaju, His Highness, Oba G.A. Oyejobi Adeniran, Owa Olamodi II, from the Olamodi ruling house, is not entitled to be appointed the Owa-elect or Otan-Aiyegbaju; therefore, his appointment and recommendation through the 2nd defendant to the 1st defendant for appointment as the next Owa of Otan-Aiyegbaju, by the 3rd, 4th, 5th, 6th, 7th & 8th defendants is ultra vires the 3rd to the 8th defendants, therefore, illegal, null and void and of no effect.
4. An injunction restraining the 1st defendant, his agents and privies from approving the appointment of the 9th defendant as the next Owa of Otan-Aiyegbaju.
5. An injunction restraining the 2nd to the 8th defendants, their servants, agents or privies from parading the 9th defendant as the Owa-elect of Otan-Aiyegbaju.
6. An injunction restraining the 9th defendant from parading himself as the Owa-elect of Otan-Aiyegbaju’”

The dispute in the chieftaincy of Otan-Aiyegbaju started after the demise of Oba G.A. Oyejobi Adeniran Olamodi II on 14/8/82. Pursuant to a letter written by the Secretary to Oyo State Government to the Secretary to Ila Local Government the latter wrote a letter to the kingmakers of Otan-Aiyegbaju chieftaincy to select a candidate from Olasuka ruling house. Under the Owa of Otan-Aiyegbaju 1957 chieftaincy declaration there are four ruling houses namely, Olamodi, Olasuka, Olatanka and Olaruka. Whenever a vacancy arises the kingmakers will select a person from the ruling house whose turn under the rotation order is to produce a candidate to fill the vacant stool. Since the deceased Oba G.A. Oyejobi Adeniran Olamodi II was from Olamodi ruling house, the next candidate for the succession to the stool of Owa of Otan-Aiyegbaju under the order or rotation shall come from Olasuka ruling house.

The Olasuka ruling house met and nominated the 2nd respondent as their candidate for the vacant stool of Owa of Otan-Aiyegbaju chieftaincy. The nomination was duly conveyed to the kingmakers for their deliberations. The kingmakers did not act in time. After some days the Secretary to Ila Local Government wrote another letter directing the kingmakers to select a candidate from Olasuka ruling house for the appointment. It was after the issuance of the second letter from the Secretary to the Local Government that the kingmakers met and appointed Edward A.A. Adeniran, the 3rd respondent in this appeal, to fill the stool left vacant following the demise of his father. The appointment was obviously contrary to the provisions of rotation in the 1957 chieftaincy declaration for the Owa of Otan-Aiyegbaju stool. Dissatisfied with the action of the kingmakers, the 1st and 2nd respondents went to court and claimed as per their writ of summons. Pleadings were called and delivered. The kingmakers and Edward A.A. Adeniran denied the claim. Edward A. A. Adeniran in addition to his denial filed a counter-claim against the plaintiffs as follows:

i Declaration that the declaration setting out the method of selection of a person to be Olotan of Otan made by the Ifelodun District Council and approved at lbadan on the 27th day of May, 1957 and registered on the 29th day of June. 1957 and also approved to remain unchanged by the Government of Oyo State following the recommendation of Ademola Chieftaincy Review Panel is null, void and of no effect as it recognises Olasuka, Olaruka and Olatanka as distinct ruling houses apart from Olamodi ruling house which is the only ruling house known and recognised in respect of Olotan of Otan chieftaincy title in accordance with the native law and custom of Otan-Aiyegbaju.

ii. Declaration that there is only one ruling house which has the right to provide candidate or candidates for the Olotan chieftaincy and its identity is Olamodi.”

The case was heard by Sijuwade J. (as he then was). At the close of the hearing where witnesses on both sides gave evidence the learned trial Judge dismissed the entire claim of the plaintiffs. For the reason given in his judgment the learned trial Judge granted the first prayer in the counter-claim filed by Edward A. A. Adeniran in the following words:

“On the other hand, the counter-claim of the 7th defendant in leg one succeeds. The chieftaincy declaration on Olotan of Otan-Aiyegbaju made in 1957 that is Exhibit ‘M’ or rather on Owa of Otan-Aiyegbaju (as it is now known) which is also referred to in Exhibit ‘L174’ to ‘L180′ in this case is declared for the reasons given above, null and void and of no effect, and it is accordingly set aside with costs which I shall now proceed to assess.”

Dissatisfied with this judgment, the 1st and 2nd plaintiffs (respondents in this appeal) went before the Court of Appeal on eleven grounds of appeal. In the appeal before this court, Chief Folake Solanke, SAN submitted issue 1, in the appellants’ brief, that grounds 1-10 filed by the respondents at the Court of Appeal were incompetent to sustain the plaintiffs’/respondents’ appeal. In view of this submission it is imperative to reproduce all the grounds of appeal filed by the plaintiffs/respondents before the Court of Appeal. The grounds cover 13 pages of this judgment, but one cannot appreciate the arguments of appellants’ counsel against the grounds if they are not reproduced in full. They are as follows:

“1. The learned trial Judge erred in law when he reasoned as follows:

a. I have gone through the pleadings of the parties and I have seen nowhere the plaintiffs have traced themselves as male descendants of Olamodi … The right to the ascension of the throne of Owa of Otan-Aiyegbaju as I said earlier in this judgment is commonly accepted by both parties as strictly hereditary and restricted to only male Omo Owa or their male descendants.

b. From the pleadings of the parties there are certain facts which I find undisputed by the parties and which I intend to restate here below as forming the historical background and development of the chieftaincy tussle within the family, and which also regard as findings of fact by this court as well.

c. That the succession to Owa of Otan-Aiyegbaju chieftaincy is hereditary and only male Omo Owa or their male descendants can contest the stool.

d. It should be noted that the family tree attached to the statement of claim of the plaintiffs is virtually the same with the one tied to the statement of defence and counter-claim, but for the purpose of this judgment, and having regard to the details of the dates of reign of some of these past Owas which were not challenged by the defence during the proceedings, reliance will be placed on the former.

e. I have also gone through the averments in paragraphs 66, 67, 68 and 69 of the statement of claim in the submission of Mr. Adeniran to show that the 2nd plaintiff had asserted his right as being qualified to be nominated, and the implication of the averment of the pleadings in paragraph 12 of the statement of defence of the 7th defendant on those paragraphs which I hold does not improve the situation as it does not discharge the burden imposed on the 2nd plaintiff. What paragraph 12 of the statement of defence of the 7th defendant reads is:

’12. As regards paragraphs 66, 67 and 68 the 9th defendant (now 7th defendant) admits that any male direct descendant of Olamodi I from the male line is entitled to be considered for nomination for the chieftaincy title of Olotan of Otan-Aiyegbaju.’

Particulars:

The learned trial Judge’s reasoning that he had gone through the pleadings and had not found where the plaintiffs traced themselves as male descendants of Olamodi, even though the same learned trial Judge admitted issues were not joined on the matter, contravenes established rules of practice and procedure whereby parties are bound by their pleadings and by the same reasoning it could not be held or inferred that the 7th defendant’s father was unanimously nominated as the Owa of Otan-Aiyegbaju and reigned as such notwithstanding, because we have not been told who the 7th defendant’s grand father was and so on to great, grand father to the lineal ancestor Olamodi which by the family tree the trial Judge himself relied upon spanned over a period of 500 years.

Issues therefore were not joined because it is a basic presumption known to all the parties to the dispute that only male Omo-Owa from the patrilineal descendants are usually considered, the fact that the 2nd plaintiff was so considered confirmed the basic presumption otherwise extent and limit of the case litigants are bound to meet will remain a mirage.

This is further contained in paragraph 5 of the findings of the court, quoted in paragraph (c) above. It is trite law that no party shall be taken by surprise, if the defendants had doubted whether the 2nd plaintiff had descended from the male lineage they should have joined issue specifically on that.

Again the learned trial Judge did not advert his mind to the provisions of the principal law which conferred locus standi on the Olasuka family and not individuals, and which said Olasuka the learned trial Judge had held was legally traced to Olamodi their lineal ancestor.

2. The learned trial Judge erred in law and in fact when he held as follows:

‘I have even taken into consideration the evidence of Chief Thomas Babarinde the Odofin of Otan-Aiyegbaju that Okoyode, Egunnike and Edward Adeniran were those whose nomination were considered by the kingmakers on 19/4/83 and the fact that Okeyode was rejected might be due to many reasons. On this score alone the plaintiffs’ case must fail.’

Particulars:

The learned trial Judge went on an illusory voyage of discovery unknown to law, since his reasoning that the fact that Okeyode was rejected might be due to many reasons which neither the witness nor any other witness testified to before the court. A court should not speculate on any evidence not led before it.

3. The learned trial Judge erred in law and in fact when he held as follows:-

‘I must admit that the drafting of the said declaration is now far from being clumsy, but the use of the phrase shall select and the word “family” tend to confuse the powers, right and duty of the organs concerned in the whole exercise.

Exhibits “H” and “J” which seem to qualify the word family as used in Exhibit “‘M” by adding the word “ruling” do not improve the situation. Words and phrases should be given their ordinary and intended meaning by the maker of the document. The selection which is required to be made is unambiguously directed to the family, but whose turn it is to present a candidate. Perhaps this other qualification gives the impression that the family being referred to in paragraph (e) should be read to mean ruling family. And even then that ruling family relevant is not concerned with the selection.’ ‘If Exhibit “M” is regarded as having been duly registered as a declaration it is expected under the Chiefs Law to include among other things:

“4(2)(v) the method of nomination by each ruling house, and”

which it does not contain … Exhibit “M’ being a subsidiary regulation as to the appropriate customary law applicable to the appointment and selection for a traditional chief in my view can always be examined in the light of the enabling enactment of law.’

Particulars

The learned trial Judge did not advert his mind to the widely accepted legal guidelines applicable to interpretation, that where a subsidiary legislation is in conflict with the principal law under which it is made, the subsidiary law is void only to extent of the conflict, hence the principal law prevails over the inconsistent part of the subsidiary. The inadvertence on the part of the learned trial Judge made him to rule that the Olasuka ruling family which had already by the family tree traced its genealogy to the lineal ancestor Olamodi has no locus standi to sue, because the declaration Exhibit ‘M’ says the family shall not be concerned as a body. While Part 2 of the applicable law Cap. 21 Chiefs Law of Oyo State 1978 applies as the learned trial Judge himself so held at paragraph 9 of his judgment on his findings of fact.

The learned trial Judge erred in law when considering the motion of the Oyo State Government and Ila Local Government to withdraw from the suit as he did not properly evaluate the pleadings before him and thereby excluding the Government of Oyo State and the Ila Local Government who were necessary parties to prove before the court that they complied with the law.

Particulars

When as at the date of the motion the plaintiffs reply and counter-claim had been served on the Government and therein the plaintiffs had contended that Oba Oyejobi Adeniran was crowned pursuant to the 1957 Olotan of Otan-Ajyegbaju chieftaincy declaration. This is because the principal parties who performed the crowning were both the Ila Local Government and the then Government of Western Region of Nigeria of which Oyo State is the successor.

The learned trial Judge had therefore failed to observe a principal tenet of natural justice of giving both the Oyo State Government and the Ila Local Government the opportunity of showing whether or not they complied with the law they took an oath to defend and uphold.

Statement of claim filed 28/7/93, 9th defendant’s defence and counter-claim filed on 10/10/84. Reply to defence and counter-claim was filed on 15/10/84. Motion to be struck from the case was brought on 22/11/85. Hence both the Oyo State Government and the Ila Local Government never filed a defence before … the motion was moved and prayer to be struck out granted. Whereas Order 23 rule 1 Oyo State High Court Civil Procedure Rules 1978 reads as follows:

‘No demurer shall be allowed.’

When it even became apparent to the 7th defendant’s counsel that his counter-claim cannot be granted unless both the Oyo State Government and IIa Local Government were joined, the counsel brought an application dated 27/5/96 which for personal reasons best known to the Judge he refused to list for adjudication.

Furthermore, the kingmaker that gave evidence was not a kingmaker at the time. Further, that the judgment of the learned trial Judge is an exercise in futility as it is not binding on both the Oyo State Government and Ila Local Government and usurpation of the power conferred on the Commissioner by virtue of section 25 by forcing an inquiry on parties who are not convinced another futile enquiry should be held. As again the judgment is not binding on the Olamodi family not being a party to the suit nor was the 7th defendant suing or being sued as a representative of the said family. Paragraphs 8, 9, 10 of the affidavit in support of motion dated 22/11/85 read as follows:

‘8. That if the 1st defendant was aware that the nomination of the 9th defendant was proper the 1st defendant would have made the appointment.

9. That the 1st and 2nd defendants had acted in accordance with the provisions of the Law and they are not in anyway at fault or involved in the matter.
10. That the learned trial Judge has erred in law by overruling himself and acting as an appellate court over his ruling on the motion of Oyo State Government and Ila Local Government to withdraw from the action.

Particulars

The learned trial Judge accepted the submission of the counsel to Oyo State Government and Ila Local Government, to the effect that they complied with the law and that the 1st to 6th defendants had acted wrongly.

The sum total of the judgment dated 1717/86 is that the 1st to 6th defendants acted rightly contrary to the view of the learned trial Judge held on the reaction, wherein the Governor, alleged they acted wrongly.

Paragraphs 5 to 12 of the affidavit in support of motion dated 22/11/85 read as follows:

5. That Mrs. V. Asaolu Senior State Counsel, solicitor to the 1st and 2nd defendants/applicants informed me and I verily believed him that there is nothing in the statement of claim that calls for any statement of defence by the 1st and 2nd defendants to be filed.
6. That looking through the whole of the statement of claim there is no triable issue that necessitates the suits going into trial against the 1st and 2nd defendants/applicants.
7. That the allegations in the statement of claim are internal matters between the plaintiff and the 3rd to 9th defendants which ought to be resolved by the parties.
8. That if the 1st defendant was aware that the nomination of the 9th defendant was proper the 1st defendant would have made the appointment.
9. That there is no approval of the 9th defendant by the 1st defendant so the plaintiff cannot complain.
10. That the 1st and 2nd defendants had acted in accordance with the provision of the law and they are not in anyway at fault or involved in the matter.
11. That the affair is premature and also misconceived because the 1st and 2nd defendants had not done anything at all in connection with the nomination and/or appointment of the Owas of Olotan-Aiyegbaju and as such the action and abuse of the court process.
12. That it is the usual practice of the Government to stay action when there is court action on a case and the Government does not want to interfere with the court process.
13. The learned trial Judge erred in law when he held as follows:

‘Whilst the defence does not seriously challenge the admissibility of Exhibit M which is also reproduced and incorporated in Ademola Chieftaincy Declaration Review Commission Report Exhibits L174 – L180, the bone of contention of the defence which the plaintiff’s counsel for one reason or the other has both in his response as well as his pleading refrained absolutely from adverting his mind to it is that declaration and it is does not give any right to the royal family of Otan Aiyegbaju ruling house or otherwise to make such nomination of any candidate to the kingmakers for consideration as the Chiefs Law under which it was made invariably provides …

In the circumstances, Exhibit ‘O’ which is the paper or the nomination upon which leg two of the plaintiff’s claim is based cannot be validated as it is an exercise ultra vires the family presenting it and the 1st – 6th defendants by virtue of the provisions of Exhibit “H” cannot be held to have violated the declaration since they are free to select from the family whose turn it is to present as candidate.’

Particulars

The application letter Exhibit D cannot be an exercise in futility as it was done pursuant to Exhibits G. H & J which were discretionary powers conferred on the Commissioner by virtue of the principal Law Section 3 of the Chiefs Law Cap. 21 1979 Laws of Oyo State.

The procedure adopted is known to the principal and it overrides any subsidiary legislation.

7. The learned trial Judge erred in law and in fact when he held as follows:

‘I refer to the evidence; of the 2nd P.W. Anthony Okeyode under cross-examination by Chief Abolade where he admitted as follows:

It is not because of the agitation of Elemu and Onigbo families to become the Olotan of Otan-Aiyegbaju that brought into being the 1957 declaration but rather because of noncompliance strictly with the rotational system.

This is a piece of contradiction which the plaintiff might wish to take advantage of but which in the light of other findings above by me, cannot relieve them of the burden of proof that rests on the plaintiffs in a case of this nature.’

Particulars

The learned trial Judge took irrelevant and inadmissible evidence into consideration since customary laws are proved by preponderance of evidence, there is not such admissible evidence before the court. The evidence of the 4th defendants and that of 7th defendant relied upon are inadmissible evidence because both 4th and 7th defendants are estopped from denying what they or their representative in interest had admitted in writing further more oral evidence cannot be used to vary a written document.

Further Particulars

‘Whilst the plaintiffs contended rigorously of the existence of four ruling houses in Otan-Aiyegbaju namely: Olamode, Olasuka, Olatanka and Olaruka and supported same by both oral and documentary evidence and their counsel submitted that the 7th defendant being a son to immediate Late Owa is estopped by virtue of s. 150 …’Notwithstanding: this defect, the production of Exhibit L 174 – L 180 tendred by the consent of the parties counsel seems to have cured this defect. .

8. The learned trial Judge erred in law when he held as follows:

‘This leads me to the other serious point of contention as to the existence of the number of ruling houses at Otan-Aiyegbaju. And in doing: this, both sides have referred to the meaning of the phrase.

“Ruling House” under the Chiefs Law which is:

“In relation to a chieftaincy means the descendants of a lineal ancestors entitled in accordance with customary law to provide from amongst their own numbers a candidate or candidates for appointment by the kingmakers as holder of that chieftaincy.”

See s.2 of the Chiefs Law Cap. 21 Laws of Oyo Slate 1978.

The fact as presented by both sides support the existence of four ruling houses, which are not ruling houses in consonance with the meaning given to a ruling house under the Chiefs Law but more or less branches of the family tree with a common lineal ancestor called Olamodi who was the first Olotan of Otan-Aiyegbaju.’

Particulars

The learned trial Judge by holding that Olasuka, Olatanka and Olaruka as branches of Olamodi their lineal ancestor cannot be ruling house as per definition of ruling house in the Chiefs Law Cap. 21 section 2 (1978) Laws of Oyo State has ignored a principal canon of interpretation. Assuming that Olamodi is one ruling house the claim of rotational order by the branches is not against natural justice, equity and good conscience.

9. The learned trial Judge erred in law and in fact when he held as follows:

‘The plaintiffs have not proved that the 7th defendant or any agent of his used any undue influence, fraud or misled the kingmakers at the latter’s meeting of 19th April, 1983, when the one Egunnike was being considered. The fact that the kingmakers did not confine their election to the Olasuka branch of the royal family. I hold in the light of the foregoing facts, does not offend against the native law and custom of the people of Otan-Aiyegbaju and appointment of the 7th defendant as Owa elect of Otan-Aiyegbaju was therefore validly and legally made and it cannot therefore be declared null and void.

Particulars

Since the learned trial Judge had ruled the 1957 declaration null and void and of no effect and as the preliminary exercise of nomination was based on the directive from the Government of the Ila Local Government down to the kingmakers on the assumption that the 1957 declaration was legal and subsisting, such preliminary exercise is similarly null and void. Furthermore the principal law recognizes no customary law except that which is contained in the 1957 declaration. An exercise carried in furtherance of a custom unknown to it is an exercise in futility.

10. The learned trial Judge erred in law by failing to evaluate the implications of Exhibits C, E, F & L on the whole proceeding.

Particulars

The learned trial Judge erred in law and in fact for failing to appreciate that even if the parties had in the past not followed the law or strict order of rotation by the report and findings of the Ademola Commission of Inquiry the parties are presumed to have freshly affirmed their commitment to the order of rotation in the 1957 Olotan chieftaincy declaration.

11. The judgment is against the weight of evidence”

The grounds came under severe attack by both Chief Folake Solanke, SAN for 1st to 6th respondents (appellants in this appeal) and Chief G.O.K. Ajayi for the 7th respondent. Edward A.A. Adeniran. The two learned Senior Advocates made considerable submissions, supported by authorities and urged the Court of Appeal to declare grounds 1-10 incompetent. Learned Justice of the Court of Appeal, Akpabio. J.C.A., who wrote the lead judgment, with which Sulu-Gambari and Ogwuegbu J.J.C.A. (as they then were) concurred, agreed with the submissions of the two Senior Advocates that grounds 2,3,6,7,8,9 and 10 were incompetent. The grounds were accordingly struck out. The learned Justice was however unable to accept that grounds 1,4 and 5 were not competent. He therefore dismissed the objection raised against them.

At the conclusion of his judgment Akpahio J.C.A. allowed the appeal filed by the plaintiffs, basing his reasoning on issues 8, 9, 12, 13 and 14 formulated to cover grounds 1, 4 and 5. The judgment of Sijuwade J., was accordingly set aside.

The plaintiffs’ claims 1, 3, 4 and 5 were granted and the counter-claim filed by Edward Adeniran dismissed.

Dissatisfied with the decision of the Court of Appeal, Chief Solanke, SAN filed 10 grounds of appeal and sought for the following reliefs:

i. That the judgment of the Court of Appeal Ibadan dated 619/91 be set aside.

ii. That the claims of the plaintiffs be dismissed with substantial costs.

iii. That judgment be entered in favour of the defendants/appellants.

iv. Any further order or other orders as the Supreme Court may deem fit to make”

Both learned counsel formulated 10 issues from the grounds of appeal. I have looked into those issues and with respect I identify the following issues as relevant for the determination of this appeal.

“1. Whether or not grounds 1-10 of the plaintiffs’/appellants’ grounds of appeal were competent to sustain the plaintiffs’ appeal.

2. Whether or not the Court of Appeal was correct to have predicated its judgment on three of the erroneous grounds of appeal.
3. Whether or not it was right for the Court of Appeal to postulate that certain parties to wit: ‘the State Government and the Ila Local Government’ had to be in (sic) the opposite side before the 1957 chieftaincy title declaration could be contested (page 317 of the record).
4. Whether or not the Court of Appeal was correct in not considering the other vital facts to be legally proved by the appellants to establish “locus standi” in addition to belonging to a ruling family.
5. Whether or not the evidence on record was sufficient to support the appeal.
6. Whether assuming that the particulars were faulty, should the appeal of the plaintiffs/respondents have been dismissed on technical grounds without giving them a fair hearing, and without the consideration of Order 3 rule 2(5) and (6) of the Court of Appeal Rules
7. Whether the honourable Court of Appeal was right in granting the declarations having held that grounds 1,4 & 5 of the appeal were proper even though ground 11 was struck out”

After the decision of the High Court, in this case, the appeal to the Court of Appeal, Ibadan, would have been a very straight-forward one in view of the provisions of the 1957 chieftaincy declaration for the stool of Owa of Otan-Aiyegbaju. But Mr. Akinwunmi Adeniran, learned counsel for the plaintiffs/appellants before the Court of Appeal, made a simple appeal difficult when he filed 11 grounds of appeal with particulars which were written in wide and irrelevant details. The grounds and the particulars given to them cover most of the pages in the judgment of the Court of Appeal. To make it worse the learned counsel formulated 22 issues, couched in a particular style which makes their meaning difficult to decipher. I agree entirely with both Chief Folake Solanke, SAN and Chief G.O.K Ajayi. SAN, that the way the grounds of appeal were couched made it difficult for them to formulate issues from them.

However, the learned Justice of the Court of Appeal went through such difficult analysis, following the observations and objections raised by the two Senior Advocates and concluded that grounds 2, 3, 6, 7, 8, 9 and 10 were incompetent because the so called particulars given to the grounds did not identify how the decision, finding or holding of the learned trial Judge was faulty or erroneous. The learned Justice however accepted that grounds 1, 4 and 5, although inelegantly drafted, had some substance and he gave them a pass mark.

Chief Folake Solanke SAN., in this appeal, submitted on the issue in respect of grounds 1,4 and 5 that the grounds were incompetent because they too were in breach of Order 3 rule 2(2), 2(3) and 2(4) of Court of Appeal Rules 1981. In support of her argument she referred to cases of Bala v. Bankole (1986) 3 NWLR (Pt. 27) 141 at 143; Amukuwa v. Ohia (1986) 5 NWLR (Pt. 40) 150 and Onuma v. Nwokoro (1987) 1 NWLR (PI. 48) 149. Learned Senior Advocate also referred to the issues raised by Mr. Adeniran on the said grounds and argued that the Court of Appeal was in error to rely on those issues which the learned counsel formulated against incompetent grounds. She emphasized that an issue for determination in an appeal must be formulated in concrete terms and must be related to and arise from the grounds of appeal filed A.G. of Kwara State v. Olawale (1993) 1 NWLR (Pt. 272) 645 and Okpala v. Ibeme (1989) 2 NWLR (Pt. 102) 208.

I have earlier in this judgment disapproved strongly the way and manner Mr. Adeniran formulated the grounds of appeal against the judgment of the trial High Court. However I have also looked into grounds 1, 4 and 5 which the learned Justice of the Court of Appeal gave the pass mark and I agree with the lower court although the grounds were inelegantly drafted they can be accepted as having sailed through.

I now consider the matter raised in issue 3, where it has been observed that since the Government of Oyo State and Ila Local Government were no longer parties to the proceedings the learned trial Judge was in error to entertain the counter-claim of the 3rd respondent, Edward A,A, Adeniran, I cannot see how Chief Folake Solanke, SAN, could fault this opinion. In the first declaration prayed for by the 3rd respondent in the counter-claim he sought for the nullification of Owa of Otan-Aiyegbaju 1957 chieftaincy declaration and declare instead that there was only one ruling house instead of four for succession to the throne of Owa of Own-Aiyegbaju. This obviously cannot be justiciable without making both the Oyo State Government and Ila Local Government necessary parties to the action.

A counter-claim is a cross-action with the plaintiff becoming the defendant to the counter-claim – S. Oragbade v. Chief S.1.M. Onitiju (1962) I All NLR 32; (1962) I SCNLR 70. Thus, if the plaintiff cannot be the proper opposing party to the claim in the counter-claim, the proper thing is to strike it out. The 1957 Otan-Aiyegbaju chieftaincy declaration cannot be impeached without making those who made the law and got it registered necessary parties to the suit. The lower court is therefore quite right to strike out the counter-claim filed by the 3rd respondent.

The learned Justice of the Court of Appeal considered the issue of locus standi and dismissed the opinion of the learned trial Judge that the appellants had no locus standi to bring this action in the following words:

“But in the instant case, it was the turn of Olasuka family to produce the next Owa Otan-Aiyegbaju, according to the chieftaincy declaration of 1957, and the second appellant had already been nominated by his family as the Owa elect. He cannot, therefore be said not to have had any interest in the subject matter, nor to have failed to show how his interest arose. So the holding of the learned trial Judge that the appellants had no locus standi to bring the action was clearly erroneous and must be set aside. As far as the assertion of the learned trial Judge that there was no assertion in the statement of claim of the appellants that the 2nd appellant descended from a male line and not a female line, as required by the 1957 declaration, this was not a disputed point, as no issue was joined in it. Both parties attached their family trees or genealogies to their statement of claim and statement of defence respectively. That of the appellant clearly shows that their ancestor Olasuka had once been an Owa. So wherein lies the controversy Issues Nos. 8 & 9 formulated in respect of ground I of the appeal must be answered in the negative. It was wrong for the learned trial Judge to have held that the appellants had no locus standi.”

The 1st respondent as head of Olasuka ruling house sued on behalf of the ruling house and the 2nd respondent who was unanimously nominated as the candidate of Olasuka ruling house for the vacant stool sued for himself. It is without doubt that the plaintiffs had locus standi to initiate these proceedings. I agree entirely with Akpabio JCA, that the respondents had locus standi to sue.

In sum, even though grounds 1, 4 and 5 which were found competent by the Court of Appeal and the issues formulated against them were inelegantly drafted it is clear that the provisions of 1957 chieftaincy declaration on the succession to the throne of Owa of Otan-Aiyegbaju makes the cast of the plaintiffs/respondents meritorious. Learned Justices Ogwuegbu JCA (as he then was) in his contribution to the lead judgment of Akpabio JCA made an apt conclusion to the whole case in the following words:

“The appellants’ claim is based on Exhibit ‘M’ which is a subsidiary legislation. It has not been amended and has remained in force since 29/6/57. It is deemed to be the customary law regulating succession when a vacancy occurs in the Olotan chieftaincy. Since it was registered it excludes any other customary law or usage and will continue to be in force until amended or set aside by a competent court.

In the result, this appeal fails and it is dismissed. The judgment of the Court of Appeal, Ibadan Division, in which it allowed an appeal brought by the plaintiffs/respondents from the judgment of Sijuwade J., is hereby affirmed. I award N10,000.00 costs in favour of the plaintiffs/respondents.

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SC.22/93