Prince Fatai Adelaja V. Otunba Adesesan a. Oguntayo & Ors (2000)

LawGlobal-Hub Lead Judgment Report

MUKHTAR, J.C.A.

The reliefs sought by the plaintiff as per the writ of summons in the lower court are as follows:

1. A declaration that, being a kingmaker by virtue of registered declaration for Ajalorun of Ijebu-Ife Chieftaincy, the 1st defendant is not eligible to be nominated, selected or appointed, approved and installed as the Ajalorun of Ijebu-Ife in the Ijebu East Local Government Area of Ogun State.
2. A declaration that being the Oraderomo of Ijebu- Ife the 1st defendant is not eligible to be nominated selected or appointed, approved and installed as Ajalorun of Ijebu-Ife.
3. A declaration that the purported nomination of the defendant as a candidate by the Afurukeregboye ruling house for the filling of the vacant stool of Ajalorun of Ijebu-Ife is irregular, illegal unconstitutional, null and void.
4. A declaration that the purported selection of the 1st defendant by the 2nd, 3rd, 4th, 5th, 6th and 7th defendants as the Ajalorun of Ijebu-Ife is irregular, illegal, unconstitutional, null and void.
5. An order setting aside the purported nomination, selection or appointment of the 1st defendant as the Ajalorun of Ijebu-Ife.
6. Perpetual injunction restraining the 8th and 9th defendants from giving approval to the purported selection or appointment of the 1st defendant as Ajalorun of Ijebu-Ife.

Pleadings were ordered by the trial Judge and closed at reply to the statement of defence of the 1st defendant. The case of the plaintiff as contained in his statement of claim is that there are three ruling houses in Ijebu-Ife, namely Amesofe, Olufesogbade and Afurukeregboye, to which he belongs. The 1st – 7th defendants are the kingmakers of Ijebu-Ife, whilst the 1st defendant is the head of all Omo Obas whose responsibility it is to convene a meeting of any ruling house whose turn is to nominate a candidate to fill the Ajalorun of Ijebu-Ife vacant stool, and to present the nominated candidate to the kingmakers. After the demise of Oba Adebambo Oyenuga it became the turn of Afurukeregboye ruling house to nominate a candidate. A meeting of the said ruling house was convened and the plaintiff and six others were nominated, but the nomination of the 1st defendant was objected to by himself and some persons, but at a meeting held at the night of 18/5/95 the 1st defendant was appointed the Ajalorun of Ijebu-Ife by his co-king makers.

It is the case of the 1st defendant that he is eligible to be nominated or appointed to fill the vacant stool of Ajalorun of Ijebu-Ife under the provisions of the Chiefs Law of Ogun State and the declaration. When he was nominated, he did not deliberate with the kingmakers when they were considering the nominated candidates. More over he was within his rights as provided by the Chiefs Law and declaration, to be nominated as a candidate and appointed as the Ajalorun in so far as the declaration does not state that an Oraderemo and/or a kingmaker shall not be eligible for such appointment. The pleadings of the 2nd – 9th defendants are in consonance with those of the 1st defendant, and they in fact confirm that the 1st defendant is qualified to be nominated or appointed as the Ajalorun of Ijebu-Ife, and that his nomination and selection are valid in law.

Witnesses testified for both sides to the litigation, and counsel addressed the court. The trial Judge appraised the evidence, considered counsel’s addresses and dismissed the plaintiff’s case. Dissatisfied with the decision the plaintiff appealed to this court originally on 8 grounds of appeal which were amended and increased to 14 grounds on the order of this court. In compliance with Order 6 Rules (2) and (4) of the Court of Appeal Rules 1981 as amended. Counsel exchanged briefs of argument, which were adopted at the hearing of the appeal. Seven issues for determination were formulated in the appellant’s brief of argument. The respondents also raised issues for determination in their briefs of argument. In the appellant’s reply to 1st respondent’s brief the learned S.A.N. objected to issues 2, 3, 4 and 5 formulated by the 1st respondent in his brief of argument, and urged the court to strike them out. The gravamen of his objection is that the issues are outside the grounds of appeal filed by the appellant, and since he has not cross-appealed he cannot formulate the said issues. He placed reliance on the cases of Union Bank of Nigeria Ltd. v. Simeon Osezuah (1997) 2 NWLR (Pt.485) 28; Buraimoh v. Bamgbose (1989) 3 NWLR (pt. 109) 352.

The position of the law is that issues formulated for the purpose of treatment of an appeal must derive their source from framed grounds of appeal, and not out of the blues or just any pleading or decision attacked by a party. In other words, a ground of appeal must first of all be framed, it is then a related issue will be distilled from the ground. Once there is no ground of appeal that forms the basis of an issue then the issue becomes superfluous and non-issue and must be struck out. See Oshinupebi v. Saibu & Ors. (1982) 7 SC 104, Western Steel Works Ltd. v. Iron & Steel Workers Union (1987) 1 NWLR (Pt.49) 284, and Unegbu v. Woli (1997) 2 NWLR (Pt. 486) 194. I have perused the issues raised in the 1st respondents brief of argument, and my opinion is that going through the appellant’s grounds of appeal, I find that the issues complained against are related to the grounds of appeal. So even though the 1st respondent did not cross-appeal, the fact that the issues arose from the appellant’s ground of appeal makes them valid. Issue (1) derives its source from ground (2) of the appeal issue (iv) derives its source from ground of appeal no. (2) and so on and so forth. I have however not adopted the issues of the 1st respondent for the treatment of this appeal, only those of the appellant. The objection is overruled. I will adopt the issues raised in the appellant’s brief of argument in treating the appeal, and I will take them individually and or merge some together, starting with issue (1) which reads thus:-

Whether the learned trial Judge was right in holding that she disbelieved the evidence of the appellant that the 1st respondent descended from the male line of Afurukeregboye ruling house because he, the appellant did not plead the genealogy of the 1st respondent in the statement of claim but in reply to the statement of the defence of the 1st respondent.

It is a fact that the appellant pleaded the reason for his alleged disqualification of the 1st respondent in his statement of claim as follows:-

17. The plaintiff avers that when he challenged the 1st defendant before the meeting of Afrurukeregboye ruling house held on 20/3/95 that he (the 1st defendant) was not a member of the Afurukeregboye ruling house, the 1st defendant stated that he is related to all the three ruling houses and particularly belonged to Afurukeregboye ruling house from his paternal side.
18. The plaintiff avers that he was present in court on 28/3/89 and heard the 1st defendant state in his evidence that he belonged to Afurukeregboye ruling house from his paternal side. The 1st defendant’s evidence in suit No.HCJ/6/85 refers.
19. The plaintiff maintains that the 1st defendant is not eligible as a member of Afurukeregboye ruling house for the filling of the vacant stool of Ajalorun of Ijebu-Ife.

The 1st respondent in his statement of defence specifically denied paragraph (19) (supra) with the following averment.

6. With respect to paragraph 19 of the statement of claim the 1st defendant avers under the provisions of the Chiefs Law of Ogun State and the declaration, he is eligible to be nominated and/or selected or appointed to fill the vacant stool of Ajalorun of Ijebu-Ife.

In particular, the evidence of the appellant in support of the (supra) averment reads:-

“We opposed his candidature on the grounds that as a kingmaker with specific duties he is not entitled. We also protested that he is not a member of the ruling house through the female line. We said he had no right to be a candidate. I think my protest was recorded.”

In the course of cross examination the appellant’s evidence was not as forthcoming for he said:-

“I do not know that there is a declaration in respect of Ajalorun chieftaincy. See Exhibit ‘C8’. It is the declaration. All the custom of the people cannot be in the declaration. There is nothing in the declaration which says specifically that an Oraderemo cannot be an Ajalorun. But it is understood because he has been given specific duties to perform. Exhibits ‘C10’-‘C11’ is the minutes of Afurukeregboye ruling house dated 20/3/95. Minutes of nomination. It is not recorded in the minutes that I raised the objection that the 1st defendant is from the male line.”

The pertinent question here is, within the above evidence, can it be said that the appellant proved the disqualification of the 1st respondent to the Ajalorun Chieftaincy of Ijebu-Ife? Before the answer to this question can be determined I will first of all go further to examine the exhibits mentioned (supra) and the stages in the procedure for filling of the vacant stool. The first stage is the nomination. For expediency I will examine Exh. ‘L’, the declaration of the customary law regulating the selection of the Ajalorun Chieftaincy and reproduce the relevant provision below. It reads:-

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

(a) member of the ruling house, and

(b) of the female line. Succession shall not at any time devolve on the male line. If there is no suitable man from the female line a woman from the female line shall be appointed.

Whereas, it can be said that it is doubtful that the appellant proved that the 1st respondent is a member of the Afurukeregboye ruling house on the male line, the 1st respondent pleaded and proved that he is a member of the said house on the female line. In his statement of defence the following facts were averred:

11. With reference to paragraphs 17, 18 and 19 of the statement of claim, the 1st defendant avers as follows:

(a) That he is a member of the Afurukeregboye ruling house of the female line.

(b) That his great paternal grandmother, Princess Adeite Adeoti was a daughter of Oba Olumona Afurukeregboye the 30th Ajalorun of Ijebu-Ife and his claim to the vacant stool of Ajalorun is through Princess Adeite Adeote.

A cousin of the 1st respondent, Yekinni Adesanya Oguntayo gave evidence on the genealogy of the 1st respondent, in a bid to support the (supra) averment, as follows:-

“The 1st defendant is my 1st cousin. The 1st defendant and I are related to Afurukeregboye through the female line. Olumona was the first to bear the name Afurukeregboye. No other Oba bore the name Afurukeregboye before Olumona. It is not possible that anyone can claim to belong to the Afurukeregboye ruling house without being related to Oba Olumona. I know Adeite. She is the daughter of Olumona. Adeite Adeoti is the mother of Olufowobi Oguntayo and he begat Raji Osibade and he begat Adesesan Oguntayo the 1st defendant.”

Suffice to say that the above piece of evidence, even though not coming from the 1st respondent himself has established his claim that he is a member of the Ruling house by female line through Adeite his great grand mother.

Then there was the allegation of complaint of the eligibility of the 1st respondent on his descendancy by the appellant and some other members of the Afurukeregboye ruling house. In his evidence the appellant testified that he thought his protest was recorded, but looking at the record of the meeting Exh. ‘C10’ the complaint on the genealogy of the 1st respondent is not contained therein. The only protest recorded is in respect of the impropriety of the Oraderemo, the position he held, to be nominated or appointed as an Ajalorun. In fact the petition he wrote to the then Military Administrator of Ogun State Exh. ‘C’ did not raise any complaint or protest on the genealogy of the 1st respondent. The complaints on Exhibits ‘C10’ and ‘C” are all in respect of the 1st respondent’s disqualification because he was an Oraderemo, a kingmaker, who should not be nominated to fill the vacant stool of Ajalorun. It is as clear as crystal therefore that the appellant has not established his claim and allegation that the 1st respondent was not qualified or eligible to be nominated or appointed as the Ajalorun because he did not come within the category of those eligible as stated in the declaration Exh. ‘L’. In the circumstance I fail to see that the first stage is irregular, illegal, unconstitutional null and void as professed in the appellant’s brief of argument. I am satisfied therefore that the 1st respondent was validly nominated and so the argument canvassed in respect of a second stage of the appointment by the appellant is of no importance.

On the genealogy of the 1st respondent which the appellant’s brief of argument has dwelt on at length, I believe it was a question of pleadings and evidence which would and was easily resolved through evaluation by the learned trial Judge. Learned trial Judge in dealing with the genealogy made the following finding after evaluating the evidence of ineligibility before her:-

“I disbelieve the evidence of the plaintiff that he protested the nomination of the 1st defendant on ground of his descent from a male line. I hold that this ground of protest is an afterthought. This is even obvious from the pleading of the plaintiff. If he knew as a fact that the 1st defendant descended from male line, why did he first challenge him that he was not a member of Afurukeregboye ruling house? Why did he plead the genealogy of the 1st defendant in the reply and not in the statement of claim?”

The later part of the above extract of the judgment has been attacked in the appellant’s brief of argument i.e. the portion on the pleadings of genealogy. The pertinent question to be asked on this point is what is the function of a reply to statement of defence and when does it become necessary. The answer to this question is encapsulated by Iguh JSC in the case of lshola v. S.G.B (Nig.) Ltd. (1997) 2 NWLR (Pt. 488) 405 thus:-

“It cannot be overemphasised that the proper function of a reply in the statement of pleading is to raise in answer to the defence, any matter which, to be admissible in evidence, must be specifically pleaded, or which makes the defence not maintainable or which otherwise might take the defence by suprise or, where because of the defence filed, the plaintiff proposes to lead evidence in rebuttal or to raise issues of fact nor arising out of the two previous pleadings.”

See also Artra Ind. Ltd. v. NBCI (1997) 1 NWLR (Pt. 483) 574; Bakare v. Ibrahim (1973) 6 SC 205, and Akeredolu v. Akinremi (1989) 3 NWLR (pt. 108) 164.I am guided by the above. In the instant case the 1st respondent in his statement of defence pleaded his genealogy, and it is sequence to this that the appellant deemed it fit to file a reply to the statement of defence. It is quite clear that the purpose of the reply was to answer the pleading on the said genealogy which the appellant intended to give evidence on. The purport of the reply thus falls within the ambit of the above function. When the appellant filed his statement of claim it is obvious that he did not consider that aspect of the case necessary, but the averment in paragraph (11) of the statement of defence of the 1st respondent woke him up to this responsibility, and he in turn averred as he did in paragraphs (10) and (11) of his reply. The averments are no doubt in order, and should not have been faulted. It is not as though the appellant introduced a completely new issue to the case. He was perfectly in line. The learned trial Judge therefore erred when she faulted the pleading of the genealogy in the reply to the statement of defence, because the appellant was perfectly in line. The learned trial Judge therefore erred when she faulted the pleading of the genealogy in the reply to the statement of defence, because the appellant was perfectly in order to do so. When writing a judgment a Judge is at liberty to bring whatever materials are before him into exploring the merit or otherwise of each side to the suit, and in the process strengthen his belief of the side he is inclined to put more premium on. I mean a deep and analytically considered judgment must contain an overall consideration of the pleadings and evidence as they relate to one another, and a Judge in doing so is not restrained from putting his thought on every minor detail into the judgment and drawing whatever inferences he deems right. I think the most important aspect of this discussion and issue is the evaluation of the evidence before the court i.e. whether the learned trial Judge properly evaluated the evidence both sides adduced based on the pleadings and along the line made proper use of the advantage of seeing and hearing the witnesses when they gave evidence. In this respect this first issue is resolved in favour of the appellant, and so grounds of appeal Nos. 6, 9, 10 and 12 of appeal to which the issue is married succeed in part.

Issue No. (2) revolves around the rejection of the proceedings in case No. HCJ/6/85. It is simply put, whether the learned trial Judge was right in admitting in evidence the genealogy of the 1st respondent and rejecting the proceedings in HCJ/6/85 I think this will suffice as the issue, for I find it unnecessary to reproduce the other part of the issue as is contained in the appellant’s brief of argument. This issue was treated together with issue No. (3) in the appellant’s brief of argument, which reads:- whether the rejection of the proceedings in HCJ/6/85 was wrongful and so crucial thereby occasioning a substantial miscarriage of justice in the sense that if the evidence had been admitted, the decision of the court below would not have been the same. Before I proceed with the treatment of this issue I will have to consider a notice of preliminary objection raised in the 1st respondent’s brief of argument, which attacks ground of appeal No. (13) from which the issue derives its source. It is a complaint against the competence of the ground. At the hearing of the appeal learned Counsel for the 1st respondent moved the objection. He however conceded that an application for leave to appeal against the interlocutory ruling was granted. Whatever anomaly may have arisen from the said ground (13) of appeal has therefore been cured by the subsequent leave to appeal obtained (that is if at all it required leave). I will now proceed with the treatment of the two issues above, by looking at the record of what transpired on the day the proceedings in suit No. HCJ/6/85 was sought to be tendered. On page 91 of the printed record of proceedings of this appeal can be found the following

Mr. Ayanlaja:

I object to the admissibility of this document. See section 34 of the Evidence Act. It is evidence in a previous proceedings. It is inadmissible in this proceedings.

Submits that in so far as the proceedings contravene section 34, it is irrelevant and inadmissible. Mr Osinuga:

I object to the admissibility. I associate myself with the submission of counsel.

Mr. Mabekoje:

objects the admissibility of the documents.

Chief Coker:

At this stage I withdraw the evidence and the witness.

Mr. Ayanlaja:

The document should be marked rejected.

Chief Coker:.

The witness is withdrawn, the document cannot be marked rejected.

At the end of the objections, the trial Judge ruled thus:-

“It is my view that in view of the facts already placed before this court, the fact that Chief Coker had not replied to the objection raised by learned counsel for the 1st defendant does not preclude the court from making a ruling on the admissibility of the document.

In my view the document is not admissible. It is to be marked rejected.”

It is the contention of learned Counsel for the appellant that the trial Judge did not give reasons for the rejection of the document. He further referred to S.34(1) of the Evidence Act supra and relied upon the cases of Ikenye v. Ofune (1985)2NWLR(Pt.5) 1, and L.S.D.P.C. v.Adold/Stammint. (Nigeria)Ltd. (1994) 7 NWLR (Pt.358) 545. Perhaps I should reproduce the provision of the said S.34(1) at this juncture. It reads:-

34(1) Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceedings, or in a later stage of the same judicial proceeding, the truth of the facts which it states when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or which his presence cannot be obtained without any amount of delay or expense which, in the circumstances of the case, the court considers unreasonable.

Learned Counsel for the appellant has argued that the learned trial Judge refused to hear learned Counsel for the appellant before delivering the ruling. I subscribe to this argument because no where in the record of what transpired on the day the ruling was given, (which has already been reproduced above) is it reflected that learned counsel for the appellant was called to be heard on the objection raised by the other counsel. In fact he had the opportunity to be heard, only before the document was sought to be marked, for after the objections, he withdrew the evidence and the witness. When learned Counsel for the 1st respondent implored the court that the document be marked rejected, Chief Coker, of counsel for the appellant said the witness is withdrawn, the document cannot be marked rejected, but he was not called upon to reply to the objection raised by counsel to the respondents. This is reflected in the learned trial Judge’s judgment where she said inter alia:-

“It is my view that in view of the facts already placed before this court, that Chief Coker had not replied to the objection raised by learned Counsel for the 1st defendant does not preclude the court from making a ruling on the admissibility of the document.”

That is a very wrong view, for the principle of fair hearing and audi alteram patem has been violated. When the respondents gave their reasons for objecting to the admissibility of the document, it was incumbent on the learned Judge to hear appellant’s counsel’s address on it. Equity and fair play demands that both parties be heard in order to ensure that justice prevails, for in depriving the other side the opportunity of being heard before rejecting the document in totality, a miscarriage of justice has been occasioned. See Olagunyi v. Oyeniran (1996) 6 NWLR (pt. 453) 127. The heavy weather made about the breach of the rule of audi alteram patem to my mind is warranted even if the evidence and witness were voluntarily withdrawn by learned counsel for the appellant before the ruling. I refuse to endorse the argument of learned state counsel that the fact that the learned trial Judge failed to give reasons for rejecting the said document is immaterial. That he conceded that the document was inadmissible and withdrew it at that stage does not warrant the rejection of it at that stage, for by so doing the appellant was completely shut out as far as the record of proceeding of suit No. HCJ/6/85 upon which he relied heavily was concerned. If it had not been marked rejected he would have found another avenue of tendering it. The next area of discussion is, assuming that the document was admitted in evidence, would it have made the appellant’s case stronger, or on the other hand has the rejection of it caused any substantial miscarriage of justice? Learned Counsel’s view is that the document would have lent credence to their case, and that its rejection has caused miscarriage of justice. Learned Counsel for the 1st respondent’s oral argument in court is that there was no way that the document could have affected the outcome of the case even if it was admitted because it would have been used for the purpose of testing the veracity of the 1st respondent, who at any rate did not give evidence.

My answer to the former question above, is that the document HCJ/6/85 may have assisted the appellant in reinforcing his case on the genealogy of the 1st respondent, but the point is, the provision of S. 34 of the Evidence Act supra has not been met, and so, even learned Counsel for the appellant deemed it fit to withdraw the document at the stage he did. The grouse of the appellant is that he should have been availed another opportunity of bringing it back into evidence. In fact it seems it was the pivot of his case, and steps should have probably been taken to ensure that it sailed through without any hitch. The oral evidence of the appellant on the descendancy line of the 1st respondent is wishy-washy and in nowhere cogent enough to sustain his claim. But then, the 1st respondent adduced evidence which was believed by the learned trial Judge and which sufficed in dislodging the appellant’s case. In this wise, the objection of the proceedings has to my mind caused miscarriage of justice. I therefore reject the submission of the learned state counsel, and say the cases of Opigo v. Yukwe (1997) 6 NWLR (pt. 509) 428, and Olubode v. Salami (1985) 2 NWLR (Pt.7) 282 are not apposite to this case. The fact that the 1st respondent did not give evidence, and so he couldn’t have been cross-examined on the evidence in case No. HCJ/6/85 is immaterial. The cases of Ogualaji v. A.-G., Rivers State & Anor. (1997) 6 NWLR (Pt. 508) 209 and Igiehon v. Omoregie (1993) 2 NWLR (Pt. 276) 398 cited by the learned S.A.N. are applicable and relevant in this case, for the evidence in that proceeding is very crucial to the case of the appellant, and its rejection has caused substantial miscarriage of justice. As a matter of fact the learned trial Judge was very much aware of this, that in her judgment she observed thus:-

“If in fact, the 1st defendant descended from a male line, that would have been a conclusive disqualification of the nomination, appointment or approval of the 1st defendant as the Ajalorun.”

In the light of the above reasonings, I resolve the above two issues in favour of the appellants. Grounds 6, 7, 10, 11 and 13 of the grounds of appeal to which the issues are married succeed.

The third issue raised in the appellant’s brief of argument is, whether the learned trial Judge should not have considered the effect of the provisions of section 15(1)(t)(iii) of the Chiefs Law, Cap. 20, Volume 1 Laws of Ogun State of Nigeria, 1978. In canvassing argument on this issue learned Counsel for the appellant referred to S. 15 of the Chiefs Law and a portion of Exh. ‘L’ which has already been reproduced above. I will reproduce the provision of S. 15 of the Chiefs Law but not before reproducing the provision of S. 14 of the said law, which I find to be pertinent to this discussion. It reads –

14(1) A person shall, unless he is disqualified, be qualified to be a candidate to fill a vacancy in a recognised chieftaincy if:-

(a) He is proposed by the ruling house or the persons having the right to nominate the candidate according to customary law; and

(i) He is a person whom the ruling house or the persons having the right to nominate candidates are entitled to propose, according to customary law, as a candidate; or

(ii) He is unanimously proposed as a candidate by members of the ruling house or the persons entitled to nominate candidates. The disqualifications are stated in S. 2 of the said law which states:-

(2) No person shall be qualified to be a candidate for a recognized chieftaincy who;

(a) suffers from serious physical infirmity or

(b) has under any law in force in Nigeria been found or declared to be a lunatic or adjudged to be of unsound mind; or

(c) has, in any part of the Commonwealth;

(i) been sentenced to death or imprisonment for a term exceeding two years; or

(ii) been convicted of an offence involving dishonesty and sentenced to imprisonment therefore, and has not been granted a free pardon.

A thorough perusal of the record of proceedings does not reveal that the 1st respondent falls within the ambit of the disqualification reproduced above, nor is it the case of the appellant that the 1st respondent is so disqualified. The bone of contention is the genealogy of the 1st respondent and the fact that because he is the Oraderemo he is estopped from vying for the stool of Ajalorun, which at any rate have not been proved by the appellant. For all intent and purposes the 1st respondent was therefore qualified under S. 14(1) of the Chiefs Law, for he was nominated by a member of the Afurukeregboye ruling house and proposed by the said ruling house. In effect, S. 14 of the Chiefs Law supra has not been violated in any way. S. 15(1) f of the law stipulates thus:-

15(1) Where a vacancy occurs in a ruling house chieftaincy and a declaration has effect with respect to that chieftaincy: –

(f)” If the name of only one candidate is submitted who appears to the kingmakers to be qualified and not disqualified in accordance with Section 14, they shall declare him to be appointed;

(ii) If the names of more than one candidate are submitted who appear to the kingmakers to be qualified and not disqualified in accordance with Section 14, the names of those candidates shall be submitted to the vote of the kingmakers and the candidate who obtains the majority of votes of the kingmakers present and voting shall be declared appointed;

(iii) In voting upon candidates the kingmakers shall have regard to the relative ability, character and popular support of each candidate…

(iv)…

I agree that the above provisions are mandatory, but there is no provision on the need to examine the credentials of all the members present during the nomination exercise. If that was a requirement, the law or Exh. ‘L’ would have said so, but both are silent on it. On clause (iii), it is the contention of learned Counsel for the appellant that the provision was not complied with. The exercise of the selection of a candidate by the kingmakers is contained in Exh. ‘F’, the minutes of the meeting I will now examine and reproduce a pertinent portion of the said Exhibit.

The third paragraph of Exh. ‘F’ reads:-

He thereafter presented the curriculum vitae and documents submitted by one candidate to the kingmakers. The chairman of the kingmakers reminded the members the ground on which a candidate can be disqualified which includes among others, record of imprisonment, insanity and imprisonment for a term exceeding two years. He then sought the opinion of members on the candidates in the light of his speech. Furthermore, he cited various sections of the chieftaincy laws relevant to the selection of a new Oba and thereafter implored all the kingmakers present to vote according to the dictate of their minds.”

The above shows that the kingmakers complied with the provision of S.15 of the Chiefs Law (supra), and in particular clause (iii). The candidates do not have to be physically present at the meeting of the kingmakers for there is no provision to that effect in S. 15 supra. The argument put forward by learned Counsel for the appellant that the candidates nominated have to be presented to the kingmakers is, with due respect baseless. I endorse the contention of learned state counsel for the 8th and 9th respondents that although paragraph 5 of Exh. L does not specifically provide for submission of names, it must be interpreted in such a way that it will conform to the Chiefs Law. See Odeneye v. Egunuga (1990) NSCC VL. 21 (pt.3) 543, (1990) 7 NWLR (Pt. 164) 618 referred to. In order to understand the heavy weather made of the interpretation of paragraph (5) of Exh. ‘L’ I think it will be of great assistance to reproduce the said paragraph at this juncture. The title of Exh. ‘L’ reads:-

“Declaration made under Section 4(2) of the Chiefs Law, 1957 of the Customary Law Regulating the selection to the Ajalorun Chieftaincy”, then paragraph (5) reads:-

“A candidate or candidates for the chieftaincy shall be nominated by the ruling house at a family meeting to be convened by the Oraderemo and shall be presented to the kingmakers by the Oraderemo.”

The fact that the above is a subsidiary legislation made under the Chiefs law, it must indeed be interpreted to conform with the Chiefs Law. It is trite that the provisions in a statute must be given their plain ordinary and grammatical meaning where the words used are clear and unambiguous. See Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546, and Ayoade v. Military Governor of Ogun State (1993) 8 NWLR (Pt.309) 111, cited by learned state counsel. See also Owena Bank (Nig.) Plc. v. N.S.E. Ltd. (1997) 8 NWLR (pt. 515) 1, and Awolowo v. Shagari (1979) All NLR 120. In this wise the observation of the learned trial Judge that the nominated candidates do not have to be physically presented to the kingmaker is not out of line.

For the foregoing reasoning the above issue 4 is resolved in favour of the respondents, and so ground of appeal No. 12 to which it is related fails, and it is hereby dismissed.

The fifth issue for determination is whether the learned trial Judge was right in holding that the 1st respondent as the Oraderemo of Ijebu-Ife and kingmaker under the Registered Chieftaincy Declaration regulating the selection of the Ajalorun of Ijebu-Ife. Exhibit ‘L’ and the Chiefs Law, Cap. 2, Volume 1 Laws of Ogun State of Nigeria, 1970, is a person entitled and/or eligible to be nominated or appointed for or as the recognised chieftaincy of the Ajalorun of Ijebu-Ife. The argument under this issue is that the 1st respondent as the Oraderemo of Ijebu-Ife and Head of the Princes and Princesses of Ijebu-Ife has statutory duties to perform the nomination, presentation and the appointment of a candidate to fill the vacant stool of the Ajalorun of Ijebu-Ife and therefore could not be proposed for the Chieftaincy nor could he be appointed as Ajalorun. In his brief of argument learned counsel for the 1st respondent has argued that if it is the custom of the people that an Oraderemo whose functions are recognised by custom as stated in the declaration, is not eligible for consideration as a candidate for the stool, the declaration would have been explicit on it. In dealing with these arguments the need to examine the declaration, Exh. ‘L’ becomes imperative, for it is the most vital document that governs the appointment of the chieftaincy that is the bone of contention, and whatever proceedings are to be taken are subject to its provisions as a point of reference. All parties involved in the exercise of the nomination, and appointment of an Ajalorun of Ijebu-Ife are bound by the content of the declaration, Exh. ‘L’. The provisions therein must be given ordinary and straight forward meaning and be adhered to by all involved in the exercise, and whatever is not specifically mentioned therein will not be imported into it. I have carefully perused Exh. ‘L’ and nowhere therein do I find a clause that precludes an Oraderemo from being nominated or appointed. The relevant portion of Exh. ‘L’ for the purpose of this discussion is clause (iii) and it reads:

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

(a) A member of the ruling house;

(b) of the female line, succession shall not at any time devolve on the male line. If there is no suitable man from female line, a woman from the female line shall be appointed.

(c) Successors shall not necessarily be sons of a previous holder of the title. A candidate shall however be able to trace his or her direct descent from a previous holder of the title.

What clause (iii) (supra) stipulates are as clear as crystal, and there is no doubt in my mind that if it is the custom of the community that an Oraderemo is not eligible to be appointed, or that he is precluded from vying for the stool, Exh. ‘L’ would not have been silent on this, but would have specifically said so. In the absence of this disqualification in Exh. ‘L’, it cannot be imported to the declaration by inference or otherwise that just because the 1st respondent is an Oraderemo who is charged with the duty of convening a meeting of the ruling house whose turn it is to produce an Ajalorun as is stated in clause (v) of Exh. ‘L’ then he is restrained from vying for the stool. I agree that by virtue of clause (v) “A candidate or candidates for the chieftaincy shall be nominated by the ruling house at a family meeting to be convened by the Oraderemo and shall be presented to the kingmakers by the oraderemo.”

The fact however remains that even though the duty of doing some acts that form part of an important aspect of that appointment rests on the 1st respondent, he is not debarred by the above reproduced clause. At any rate it is on record that the 1st respondent was neither present at the meeting of the kingmakers meeting of 8/5/95 nor chaired the meeting, as is reflected in Exh. ‘F’. This is clearly illustrated in the second to last paragraph of the exhibit, which states:-

“The voting was done openly by show of hands. The result was immediately announced by High Chief Ade Duduyemi.”

The above presupposes that it was not the 1st respondent who presided over or chaired the occasion of the kingmakers’ meeting that eventually chose the 1st respondent. I believe he absolved himself from the duties of Oraderemo as soon as he showed his interest in the chieftaincy in dispute. It cannot therefore be said that he had conflict of interest in the real sense of it. On the past Oraderemos not contesting the office of Ajalorun, the mere fact that they never did, does not confirm the fact that they are precluded or barred by any law from vying for the stool. It may well be that they were never interested and so never bothered. The omission to challenge the evidence on this fact is therefore of no consequence, for as long as the registered chieftaincy declaration (Exh L) does not specifically preclude the 1st respondent from contesting, nobody can import extraneous meanings into it. The custom of the Ijebu-Ife has been codified into Exh. ‘L’ and any provision or requirement not contained in it remains inapplicable and worthless. In this vein I find solace in the words of Belgore JSC in the case of Prince Oyekunle Alabi Ogundare & 1 Or. v. Shittu Ladokun Ogunlowo (1997) 6 NWLR (Pt. 509) 360 which reads:-

“It must be pointed out that declaration on chieftaincies were the results of investigations as to the native laws and custom of the localities as unanimously or overwhelmingly agreed by them.

They are useful guides when those chieftaincies are derecognized as to the laws and customs of the people as to succession and order of succession. There can be law derecognising a chieftaincy, that is mainly for government purpose, it does not mean the chieftaincy does not exist because the community served by each chief does not necessarily cease to exist. The declarations are the statement in permanent form as to the mode of succession of chieftaincy in each community in regard to tradition, native law and custom.”

See Olanrewaju v. Governor of Oyo State (1992) NWLR (Pt. 265) 335 Lipede v. Sonekan (1995) 1 NWLR (pt.374) 668; Ayoade v. Military Governor of Ogun State (1993) 8 NWLR (Pt. 309) 111 and Imonikhe v. Attorney General of Bendel State (1992) 6 NWLR (Pt. 248) 396. In the light of the above reasoning my answer to the above issue is in the affirmative. Its related grounds of appeal Nos. 1, 3, 5 and 8 fail and are hereby dismissed.

The sixth issue for determination is whether the learned trial Judge was right in her finding that neither the allegation of undue influence on the part of the 1st respondent nor likelihood of bias on the part of the 2nd – 7th respondents was substantiated. It is on record that the appellant made the following averments touching on undue influence in his statement of claim:-

24. The plaintiff stated that the 1st defendant told him that he will use his influence among his fellow kingmakers to get himself appointed by the kingmakers as the Ajalorun of Ijebu-Ife.
25. Further to paragraph 24 above, the plaintiff states that the 1st defendant in pursuance of this objective goal held a meeting with the 2nd defendant who is the most senior kingmaker in the night of 20/3/95 in the absence of other kingmakers to map out their strategies to get the 1st defendant appointed.
26. The plaintiff avers that the 2nd, 3rd, 4th, 5th, 6th and 7th defendants were biased in their purported selection or appointment of the 1st defendant as the Ajalorun of Ijebu-Ife.
27. Further to paragraph 37 above, the plaintiff avers that at the said party, the 6th defendant started to fan the 1st defendant as is usually done to a natural ruler. The public was made to understand that the appointment of the 1st defendant was a forgone conclusion.

The above averments were denied by the respondents. The appellant gave evidence in support of the averments and the evidence were not successfully debunked in the course of cross examination. The pertinent question however is, did the allegations constitute undue influence and bias, on the part of the 2nd – 7th respondents? Learned Counsel for the appellant has argued that because of the status of the 1st respondent as a kingmaker the 2nd – 7th respondents were bound o be influenced and biased. It may well be so, but the proof of the allegations of undue influence and bias goes beyond what was given in evidence by the appellant that the 1st respondent had a meeting in the night of 20/3/95 in which he was not present to hear what transpired therein, or that the 1st respondent held a party which the other kingmakers, attended or that someone was fanning the 1st respondent are not to my mind sufficient proof of undue influence or bias. After all, as learned counsel has already professed they are all co-peers and presumably friends, so nothing prevents the 1st respondent from inviting them to the party. The allegation of the fanning of the 1st respondent was explained by DW3 when in evidence in chief he said inter alia –

“I did not fan the 1st defendant nor did I call him Kabiyesi. But I fanned the Obas and the gentlemen present and they all gave me substantial money. We had no king then so I could not have called the 1st defendant Kabiyesi.”

The heavy weather made of the position of the 1st respondent as a kingmaker may have its merit but then having held above that by virtue of Exh. ‘L’ the 1st respondent could contest and be appointed an Ajalorun, his membership of the clique of kingmakers cannot per se be held against him, is automatically confirming undue influence without actual proof of it and bias. Since Exh. ‘L’ stipulates that it is the kingmakers that will ultimately select the Ajalorun they are bound to do so, and there is no way of circumventing it, just because one of them is contesting. The case of Dimes v. Grand Junction Canal Company 3 H.L. Cas. 759 cited in the appellant’s brief of argument is not relevant to the instant case, because the 1st respondent was not present at the meeting of the kingmakers where he was selected. It is on record that the learned trial Judge after evaluating the evidence of the above allegations found thus in her judgment:

“Undue influence is constructive fraud and equity will save a person from being victimised by other people. Therefore a transaction will be set aside only if there is satisfactory evidence that it has been procured by undue influence. The plaintiff’s complaint is that the defendant unduly influenced the 2nd – 7th defendants. There is however no substance in the evidence adduced. They were all imaginary conclusions drawn from apparently normal interrogation between the 1st defendant and the 2nd – 7th defendants …

The above is a finding of fact and we have been told vide numerous authorities that we should not interfere with such findings, unless such findings are not consistent with the evidence before the court. See Iriri v. Erurhobara (1991) 2 NWLR (pt.173) 252. Bamgbade v. Balogun (1994) I NWLR (pt.323) 718; Ebba v. Ogodo (1984) 1 SC NLR 372, and Egri v. Uperi (1973) 11 SC 299. In view of the above discussion my answer to the sixth issue is in the affirmative. Grounds of appeal No. (4) therefore fails and it is dismissed.

Learned Counsel for the appellant has adopted his submissions on all the issues discussed above in respect of the seventh issue. I find this a wise idea because the evaluation of evidence has been thoroughly dealt with above, and to proffer argument on it again will result in unnecessary repetition. The end result of the appeal is that it succeeds in part, and it is allowed, but before I make any order I will look at the reliefs sought by the appellant in the notice of appeal. The relief is to set aside the judgment of the lower court and give judgment in favour of the plaintiff as claimed in the lower court. It is my view that if we grant the reliefs sought in the writ of summons, and then we are giving credence to the allegations that the 1st respondent is not eligible to be nominated or appointed the Ajalorun of Ijebu-lfe, which is in essence not the purport of the judgment. I have observed in the earlier part of this judgment that the learned trial Judge erred in rejecting an exhibit proposed to be tendered in evidence, and this has occasioned a miscarriage of justice. In a situation such as this, it is my belief that it will be in order to order a retrial of the case de novo. In the case of Okonkwo v. Udoh (1997) NWLR (Pt. 519) 16; Mohammed J.S.C. in ordering a retrial had this to say:-

“…this court had once held in Awote v. Owodunni (No. 2) (1987) 2 NWLR (Pt. 57) 366 that where a court of trial fails to advert its mind to and treat all issues in controversy fully, and there is insufficient material before the appeal court for the resolution of the matter, the proper order to make is one of retrial. If an appeal court says that a trial Judge has committed both misfeasance and nonfeasance during trial which he presided over, it would mean that the decision of that court amounted to miscarriage of justice.

What will constitute a miscarriage of justice may vary not only in relation to the particular facts, but also with regard to the jurisdiction which has been invoked by the proceedings in question; and to reach the conclusion that a miscarriage of justice has taken place does not require a finding that a different result necessarily would have been reached in the proceedings said to be affected by the miscarriage. It is enough if what is done is not justice according to law. See Wilson v. Wilson (1969) NLR 9.”

I am fortified by the above, and hold that the present case is one that warrants an order of retrial denovo. See Afribank (Nig.) Plc. v. Shanu (1997) 7NWLR (Pt.5 14) 601, and Owonikoko v. Aroworaiye (1997) 10 NWLR (pt. 523) 61. It is in this vein that I hereby order a retrial of the case denovo. The judgment of the lower court is set aside. I make no order as to costs.

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Other Citations: (2000)LCN/0670(CA)