Prince Kilani Adekeye & Ors. V. Prince Summonu Adesina & Ors (2010)

LAWGLOBAL HUB Lead Judgment Report

S. N. ONNOGHEN, JSC

This is an appeal against the judgment of the Court of Appeal in appeal N0.CA/1/75/99 delivered on the 8th day of January, 2003 in which the court allowed the appeal of the present 1st and 2nd respondents against the judgment of the High Court of Osun State Holden at Ikirun in Suit N0.HIK/15/97 delivered on the 30th day of June, 1998 in favour of the defendants/Present appellants.

In addition to allowing the appeal of the 1st and 2nd respondents, the lower court also dismissed the cross appeal of the present appellants against the said judgment of the trial court.

The respondents in this court instituted the suit as plaintiffs against the appellants claiming the following reliefs:

(i) A declaration that there are two and only two lineages of Elemo Ruling House, Oyan, namely: – Elemo Olarinoye and Elemo Aresinkeye Lineages.

(ii) A declaration that the report of a discreet investigation alleged conducted by the secretary to the fourth defendant which purportedly increased the number of lineages of Elemo Ruling House to five (by splitting Aresinkeye Lineage into four) as unfair inequitable void and unconstitutional being arrived at without giving the Olarinoye Lineages a hearing at all or any notice whatsoever of such investigation.

(iii)A declaration that it is the turn of Olarinoye Lineage Elemo Ruling House Oyan to produce a candidate for the Oloyan of Oyan Chieftaincy.

(iv) A declaration that the attendance of the 5th and 6th defendants (Kingmakers) at the family meeting of Elemo Ruling House held on 22nd day of November, 1996 was an open demonstration of bias and the 5th and 6th defendants are as such disqualified from participating in any meeting of Kingmakers summoned for the consideration of any candidate nominated on the aforesaid date.

(v) A declaration that the selection of the 1st defendant by the 5th defendant at a meeting commandeered and conducted by the secretary to the 3rd defendant on 26th November, 1996 was oppressive, irregular, null and void.

(vi) An injunction restraining the 2nd defendant from relying on the aforesaid report of discreet investigation and or the nomination conducted on 20th November, 1996 in making an appointment to the Oloyan of Oyan Chieftaincy.

(vii) An injunction restraining the 2nd defendant from appointing the 1st defendant who is from (one of the lineages secretly created from Aresinkeye) lineage as the next Oloyan of Oyan.

The facts of the case include the following:-

The Oloyan of Oyan Chieftaincy is a Ruling House Chieftaincy with a registered Chieftaincy Declaration. On the 23rd day of August, 1996, Oba Omotoso Oyegbile, an occupant of that chieftaincy passed on thereby creating a vacancy.

It is agreed that there are four ruling houses in the registered declaration of the chieftaincy, Exhibit G2, entitled to present candidates for the throne in rotation. These are:-

(a) Elemo

(b) Laojo

(c) Olomooba, and

(d) Daodu or Dawodu

Also not disputed is the fact that following the demise of the said Oba, it was the turn of the Elemo Ruling House to present the candidate to fill the vacancy. To actualize this and as required by law, the secretary of Odo-Otin Local Government, the 5th respondent herein, wrote to the Kingmakers to call on the next Ruling House, that is, Elemo, to present candidate(s) for appointment as Oloyan of Oyan.

In Exhibit G2, Chieftaincy Declaration of Oloyan of Oyan, there are six Kingmakers recognized by law to act but at the material time only four of them were alive to function. The said 5th respondent duly informed the Elemo Ruling House to present candidates to fill the vacancy, as a result of which members of Elemo Ruling House held a meeting on the 22nd day of November, 1996 to select candidates for the stool. The secretary of the 5th respondent in the person of Mr. S. O Fadara attended the said meeting in accordance with statutory requirements in the capacity of an observer. At the meeting both the 1st appellant and 1st respondent were duly nominated as candidates for the stool in question. PW3 acted as secretary of Elemo Ruling House at the meeting in question and took down the minutes while one Pa Oke was the chairman. The minutes of the meeting of 22nd November, 1996 recording the nominations was sent to the Kingmakers as a result of which the Kingmakers met on the 26th day of November, 1996 to elect/select a candidate out of the two for appointment as the Oloyan of Oyan.

At that meeting, three of the four existing and functional Kingmakers supported the candidature of the 1st appellant, while one supported the 1st respondent as a result of which the secretary to the 5th respondent forwarded the name of the 1st appellant to the 3rd respondent, the appointing authority, for appointment as the Oloyan of Oyan, The 1st appellant was consequently appointed and installed the Oloyan of Oyan sometime in 1997.

The only Kingmaker who supported the candidature of the 1st respondent is the 2nd respondent, who also gave evidence as PW5 at the trial.

It is the case of the 1st and 2nd respondents that there are two distinct lineages in Elemo Ruling Housing, namely: Olarinoye and Aresinkeye and that Elemo Ruling House had in the past produced three Oloyans out of which only one came from Olarinoye while the other two came from Aresinkeye lineage; that the meeting of 22nd November, 1996 evidenced in Exhibit c, was stalemated; that during the meeting of the Kingmakers on the 26th day of November, 1996, the 2nd respondent protested inspite of which protest three out of the four Kingmakers supported the 1st appellant while only the 2nd respondent supported the 1st respondent resulting in the 5th respondent sending the name of the 1st appellant to the 3rd respondent for appointment insipte of the circumstances.

However, it is the case of the appellants that the Elemo Ruling House has five lineages namely.

(i) Olarinoye

(ii) Ige

(iii) Onuola

(iv) Mejowuye/Aresinkeye and

(v) Oluyeye

and that whenever it was the turn of Elemo Ruling House to present a candidate for the throne, it was an open contest among the eligible members of the ruling house without regard to whichever lineage; that the 1st appellant and 1st respondent were regularly nominated in a regular meeting of the ruling house held on 22nd November, 1996 out of which the Kingmakers selected the 1st appellant for the throne in their meeting of 26th November, 1996: that the 1st respondent haven taken part through his Olarinoye lineage in the nomination exercise of 22nd November, 1996 was estopped from impugning the exercise; that the 2nd respondent haven chaired the Kingmakers’ meeting of 26th November, 1996 was estopped from attacking the appointment of the 1st appellant resulting from that meeting; that the nomination, selection and appointment of the 1st appellant was regular and in accordance with the native law and custom of Oyan relevant to the appointment of Oloyan of Oyan.

The trial court held that there are two lineages of Elemo Ruling House which occupy the throne by rotation and that it was the turn of Olarinoye lineage to produce the next Oloyan of Oyan; that the chieftaincy Declaration, Exhibit “G2″, which governs the Oloyan Chieftaincy, was in-exhaustive and that there was a lacuna in it which the court is competent to fill, that the 1st respondent was estopped from impugning the nomination exercise of 22nd November, 1996; that it was not unusual for the names of more than one candidate to be submitted to the Kingmakers for them to choose one for the vacant throne/stool; that the 1st and 2nd respondents proved their reliefs in paragraph 66(a) and (c) of the Amended Statement of claim and accordingly awarded same to them. The trial court also held that reliefs 1, 3 and 4 of paragraph 50 of the appellants counter claim were successful and ordered accordingly.

The reliefs in the counter-claim are as follows:-

‘(1) A declaration that the 1st defendant as the candidate who enjoys the support of the majority of the entire members of the Elemo Ruling House as demonstrated at the meeting of the said family on 22nd November, 1996 where he was selected as candidate and approved by majority of the Kingmakers for the Oloyan of Oyan chieftaincy at their meeting of 26th November, 1996 is the person entitled to be installed as the Oloyan of Oyan.

(2) A declaration that the 1st plaintiff and the 2na plaintiff are estopped from challenging the selection and approval of the 1st defendant having voluntarily participated in the Elemo Ruling House and Kingmakers, meeting respectively whereat the 1st defendant was selected by a majority of the members of the Elemo Ruling House and his candidature approved by a naiotit4 of the Kingmakers.

(3) An order directing the 2na defendant to approve without any further delay the candidature of the 1st defendant for installation as the Oloyan or Oyan.

(4) An order of injunction restraining the 2nd plaintiff from doing or refusing to do anything that nay affect the prompt installation to the 1st defendant as the Oloyan of Oyan”.

On appeal and cross appeal to the lower court, the court held that the appeal of the 1st and 2nd respondents succeeded while the cross appeal of the 1st and 2nd appellants failed.

It is against that decision that the instant appeal was filed, the issues for the determination of which have been identified by learned senior counsel for the appellants, YUSUF O. ALI ESQ SAN, in the appellants’ brief of argument filed on 23rd December, 2004 as follows:-

“1. Whether the court below was right to have upheld the decision of the trial court to the effect that the selection of an Oloyan from the Elemo Ruling House was based on the principle of rotation between the two lineages of the family and that it was the turn of he Olarinoye lineage to produce the next Oloyan when there was no pleadings nor evidence to support these crucial findings and when the 1st and 2nd respondents did not make out any case deserving of the crucial findings.

2. Whether the court below was right to have upturned the decision of the trial court that the right of the 1st respondent was caught up by abandonment and/or waiver moreover when the court below misconstrued the basis of the defence of abandonment and waiver as raised and agitated by the appellants.
3. Whether the court below was right to have agreed with the trial court that the Oloyan Chieftaincy Declaration, Exhibit G2 was scanty and in exhaustive and that it was right to resort to other evidence oral or documentary to fill in the perceived lacuna”.

The above issues have been adopted by learned counsel for the 1st and 2nd respondents, ADEMOLA ADEGBOLA ESQ, in the brief of argument filed on 17th March, 2005.

It is important to note that apart from the instant appeal there is an appeal by the 5th and 6th appellants as evidenced in the brief of argument prepared by O. A ADENIJI ESQ and deemed filed on 28th May, 2007 and another appeal by the 7th appellant.

It is strange that rather than performing the traditional role of respondents to the appeal of the appellants, the respondents, except the 1st and 2nd respondents, filed no respondent brief but appealed separately against the decision of the lower court even when, upon going through their grounds of appeal and the issues canvassed in their briefs of argument there is really nothing to choose between their so called appeals and that of the appellants, particularly as they adopted the same issues formulated by learned senior counsel for the appellants, which issues had earlier been reproduced in this judgment.

There is however a preliminary objection by 1st and 2nd respondents against the appeal of the 7th appellant as argued in the 1st and 2nd respondents brief filed on 12th March, 2009 in which learned counsel has argued that the judgment of the lower court not haven decided anything against the 7th appellant, Odo-Otin Local Government, the said appellant cannot be a party aggrieved by the said decision of the lower court and cannot therefore appeal against same, relying on Societe Generals Bank (Nig) Ltd vs Afekoro (1999) 11 NWLR (Pt. 627) 521 at 537: Mobil Producing Nig. Unlimited vs Monokpo (2004.) 2 MJSC 1 at 17; that the 7th appellant, though the 4th defendant at the trial court, did not appeal against the decision of the trial court to the lower court and that none of the five reliefs granted by the lower court can be said to have affected the 7th appellant. It is instructive to note that learned counsel for the 7th appellant refused and/or neglected to file a reply brief to the brief of the 1st and 2nd respondents which would have made it possible for him to confront the issues/points canvassed in the preliminary objection, neither did he make any oral presentation on the matter at the hearing of the appeal. I hold the considered view that the failure or neglect of the 7th appellant to file a reply brief or make oral presentation in response to the points/canvassed in the objection means that the 7th appellant concedes the points so canvassed because he has no answer to them.

I had earlier reproduced the reliefs claimed by the 1st and 2nd respondents at the trial court and it is clear that none of them adversely affected the interest of the 4th defendant/7th appellant so as to qualify the 7th appellant to be considered a person aggrieved by an order of court so as to ground the locus standi of the 7tn appellant to appeal against the said judgment. The 7th appellant has not suffered any legal grievance arising from the said judgment, see Sun Insurance office Ltd v. Ojemuyiwa (1965) 1 All NLR 1; Mobil Producing Nigeria Unlimited v. Monokpo (2004) 2 MJSC 1 at 17.

It is therefore settled law that a party to proceedings, as the 4th Defendant/7th appellant cannot appeal a decision arrived at in that proceedings except the same wrongfully deprives him of an entitlement or something which he had a legal right to demand.

Finally looking at the grounds of appeal of the 7th appellant it is clear that 7th appellant merely reproduced the grounds of appeal of the 1st – 4th appellants as its own and proceeded further to adopt the issues formulated by learned senior counsel for the said appellants arising from the said grounds of appeal, in the 7th appellants brief filed on 18th November, 2008.

It is therefore very clear that the preliminary objection raised against the appeal of the 7th appellant is well founded and is consequently upheld by me with the result that the appeal of the 7th appellant is liable to be struck out. I hereby order accordingly.

On the appeal of the 5th and 6th appellants who were the 2nd and 3rd defendants at the trial court, there is no preliminary objection against same but there is no difference between the grounds of appeal in that appeal and the issues arising therefrom and those of the appeal of the 1st – 4th appellants. In fact, as stated earlier in this judgment, the 5th and 6th appellants adopted the very issues formulated by learned senior counsel for the 1st – 4th appellants in that appeal.

The above being the case, it is my considered view that a disposal of the issues in the appeal of the 1st -4th appellants automatically disposes of the issues calling for determination in the appeal of the 5th and 6th appellants.

Therefore to save the time of the court, I propose to deal with the appeal of the 1st – 4th appellants, the issues involved therein haven been reproduced earlier in this judgment, haven disposed of the preliminary irritations arising from the two so-called appeals.

In arguing issue 1, learned senior counsel for the appellants referred the court to paragraphs 26, 42 and 43 of the Amended statement of claim and the evidence of the 1st respondent at page 34 of the record relevant to the paragraphs of the pleadings earlier referred to and submitted that the lower courts’ findings on rotation of the chieftaincy between the two lineages of Elemo Ruling House is based on speculation as the same is neither supported by the pleadings nor evidence on record; that the parties and the court are bound by the pleadings of the parties and that evidence not in line with facts pleaded ground to no issue, relying on Olufosoye v. Fakorede (1993) 1 NWLR Pt. 272 747 at 759 – 760: Ologunleko v. Ikuomola (1993) 2 NWLR (pt. 273) 16 at 24-25: Osagie v. Adonri (1994 6 NWLR (Pt. 3491 131 at 154: Adetoun Oladeji Nig. Ltd v. NB Plc (2007) 5 NWLR (Pt. 1020) 415 at 441. 444.

It is further submitted that not only did the 1st and 2nd respondents failed to plead rotation between the lineages of Elemo Ruling House, the pleading of the 1st and 2nd respondents, particularly paragraph 26 of the Amended Statement of claim clearly pleads facts in negation of rotation since it states that after Olarinoye of the 1st respondent lineage reigned as Oloyan of Oyan, Aresinkeye of the 1st appellants’ lineage produced two Oloyans in succession and that when Onnuola, the second Oloyan from Aresinkeye lineage was to ascend the throne, Adeboya from the Olarinoye lineage contested against him; that the above would not have been the case if the tradition/custom of rotation was in vogue between the two lineages, and that the findings by the lower courts on the issue was clearly perverse and subject to be set aside and urged the court to so hold, relying on Aina v. UBA Plc (1997) 4 NWLR (pt.498) 181 at 189; Ukata v. Ndinaze (1997) 4 NWLR Pt.499.) 251 at 276.

On his part, learned counsel for the 1st and 2nd respondents raised a preliminary objection against Grounds 1, 3 particular (v); Ground 4 particular (ii) and Ground 5 particular (iii) of the Amended grounds of Appeal from which issue 1, supra, was distilled.

The reasons for the objection, according to learned counsel for the 1st and 2nd respondents, are that the said Grounds of Appeal raise fresh issues which were not raised before the lower court and consequently cannot be raised in this court without leave of either the lower court or of this court and that since no such leave was sought and granted, the grounds are incompetent and ought to be struck out, relying on Dweve vs Iyomaan (1993) B S.C 76 at 83 – 84: Ikeanyi vs ACB Ltd (1997) 2 NWLR (Pt.489) 509 at 523.

In the reply brief filed on 11th March, 2008, learned senior counsel for the appellants submitted that the objection is misconceived; that the passage quoted in Ground 1 comes from the judgment of the lower court and that an unbiased reading of Grounds 1 and 2 clearly shows that the particulars are intrinsic to the grounds; that they were findings made by the lower court to justify its decision that there were two branches in the Elemo Ruling House; that particulars (i) and (ii) subjoined to the ground go to highlight the lack of credible evidence to support the findings by the lower court, learned senior counsel further submitted; that the complaint in Ground 3 is that there was no factual basis for the holding by the lower courts that Exhibit G2 was scanty and in-exhaustive as vindicated by particular (v) thereof, etc; that even if the particulars of the grounds raise fresh issues which the appellants do not concede, the worst the court can do is to strike them out and if that happens the grounds would still be valid as there are other particulars to support them; that the arguments canvassed on issue 1 can equally be considered as arising from the omnibus ground and urged the court to overrule the objection.

I have gone through the grounds of appeal contained in the amended notice of appeal filed on the 17th day of January, 2005 and it is very clear that the grounds of objection against the particular grounds of appeal and their particulars are clearly misconceived. The reason for learned counsel for the 1st and 2nd respondents submitting that the alleged offending grounds or their particulars raise fresh issues not raised in the lower court is simply that the current complaints raised by the appellants never arose from the grounds of appeal before the lower court, that is why learned counsel submitted that “Reading through the grounds of appeal and brief of argument of the appellants in the lower court there is no where particulars (i) and (ii) of the Ground 1; particulars of (v) of Grounds 3; (ii) of Ground 4 and (iii) of Ground 5 could have be (sic) seen as being raise (sic) for the determination of the lower court.”

What the contention of learned counsel misses is the fact that the instant appeal by the appellants is against specific concurrent findings by the lower courts and the learned senior counsel for the appellants quoted the specific findings/holdings in the judgment of the lower court which he considers to be the source of his complaints. The grounds of appeal alongside their particulars including the particulars complained of arose clearly from the decision of the lower court and consequently, not fresh issues for which the leave of this court is required.

Secondly, apart from the specific particulars of the grounds objected to, there are other particulars to support the grounds of appeal thereby rendering the success of the objection ineffectual as it cannot adversely affect the validity of the grounds of appeal if the alleged offending particulars are struck out.

In conclusion, I find no merit whatsoever in the preliminary objection which is consequently overruled.

In reacting to appellants’ issue 1, learned counsel for the 1st and 2nd respondents submitted that paragraphs 26, 42 and 43 of the Amended Statement of Claim relied upon by the appellants in submitting that the issue of rotation was never pleaded does not support the contention, that in addition to the three paragraphs of the Amended Statement of Claim, paragraphs 17, 18, 20, 21, 22, 30, 31, 32, 33, 34, 35, 42,47 and 56 of the said Amended Statement of Claim also contain facts of the rotation of the chieftaincy; that apart from the above pleadings there was evidence by PW1 and Exhibit C2 particularly paragraph 5 of Exhibit C2 to support the pleadings of the 1st and 2nd respondents on the matter; and that the findings by the lower courts on the issue is therefore not perverse as contended, relying on the case of Chinwendu v. Mbamali (1980) 3 – 4 S.C 31: Ibodo v. Enarofia; Ojo v. Azama (2001) FWLR (pt.38) 1329 at 1347. Learned counsel urged the court not to interfere with the concurrent findings of fact by the lower court as the same is supported by the pleadings and evidence and consequently not perverse.

It should be noted from the onset that issue has nothing to do with the finding by the lower courts that there are two lineages in Elemo Ruling House as pleaded and testified to by the 1st and 2nd respondents as against the five lineages contended by the appellants. The issue and the argument of senior counsel for the appellants earlier summarized in this judgment limits itself to the question as to whether the issue of rotation of the chieftaincy between the two lineages as found by the lower courts was pleaded and evidence adduced in support thereof to justify the findings by the trial court and its confirmation by the lower court. The question is whether the issue or fact of rotation between the two lineages was pleaded by the 1st and 2nd respondents.

It is settled law that parties and the court are bound by the pleadings filed in a matter. For facts needed to establish a right to a relief to be relevant, it has to be pleaded by the party seeking to rely on same to establish his claim or right to relief. It is after the relevant fact is pleaded that evidence would be admissible to establish the existence of that fact, that is why it is also settled law that evidence on facts not pleaded goes to no issue as parties normally join issues on the facts pleaded and only need evidence – either oral or documentary – to establish the facts so pleaded Where, however, a court relies on evidence on facts not pleaded, an appellate court has the duty to set aside any finding/holding resulting from that reliance.

To support their contention that the fact of rotation of the chieftaincy was not pleaded by the 1st and 2nd respondents; learned senior counsel for the appellants cited and relied on paragraphs 26, 42 and 43 of the Amended Statement of Claim while the respondents relied on the same paragraphs in addition to paragraphs 17, 18,20 – 22,30 – 35, 42, 47 and 56 of the said Amended Statement of Claim to contend the contrary. Which of the contentions is correct To answer the question one needs to take a look at the relevant paragraphs. First of all, let us look at paragraphs 26, 42 and 43.

Paragraph 26 pleads as follows:

“26, When it was again the turn of Elemo Ruling House to present an Oloyan, one of the sons of Ige Adubi Mejowuoye (Aresinkeye) who was called Onnuola was chosen and installed as Oloyan. One Adeboya from Olarinoye lineage contested with him. Thus the 3rd Oloyan to be produced from Elemo Ruling House also came from Aresinkeye lineage.

42.The plaintiff avers that since Faroumbi Etemo’s family consisted of two stripes from his two wives as stated in seven (7) above’ it is customary for the children of each wife to constitute a lineage each.

Since Olarinoye produced the first Oloyan from Elemo Ruling House, and the second lineage (Aresinkeye) had produced two Oloyans, it is fair just and in line with custom for Elemo Olarinoye to produce the next Oloyan so that the chances utilized by booth lineages will be two each and therefore equal.

43. The 1st plaintiff states that the first defendant’s family knows that Oba Ige Adubi and Oba Onnuola hailed from Elemo Isale’s (i.e Elemo Aresinkeye) lineage”.

“17. Farounbi Elemo never became an Oloyan as he had many seniors but he had two sons namely Otarinoye and Adeniyi Oyegbanle alias Eegunjobi Elemo.

18. Olarinoye was born by Segilola, Faroumbi’s senior wife while Oyegbenle Adeniyi was born by Olorisade, Faroumbi’s junior wife.
19. White Olarinoye was reigning as Oloyan, the compound became too congested. This necessitated the movement of a segment of Elemo to another location called Idi Orisa Aga. The segment that moved was composed of the children of Faroumbi Elemo through Olorisade. They were led by Oyegbenle Adeniyi alias Eeguniobi Elemo.
20. The children of Elemo through his first wife segilola, continued to live at the old homestead which was now specifically identified with Olarinoye the then reigning Oloyan. The new homestead was referred to as Elemo Isale’s compound, while the old homestead is locationally called Elemo Oke or Elemo Olarinoye. It is a common thing in Oyan for the parts of a compound divided by location to be differentiated by “Oke” or “Isale”.
21. Since then the Elemo dynasty has remained one integral entity with two distinct lineages. Each has within it smaller family units called “Kaa” presided over by principal family members. These several “Kaas” do not in themselves constitute lineages.
22. Each of the two lineages of Elemo Ruling House have been choosing their heads independently and having lineage meetings, The minute’s hook of meetings of Elemo Olarinoye lineage is hereby pleaded and shall be relied upon at the trial. The 1st defendant is hereby given notice to produce the minute’s book of Elemo Aresinkeye lineage.
23. At a meeting of the two lineages summoned by the 2nd plaintiff and other Kingmakers on 16th September, 1996, the two lineages were distinctly represented by one representative each, At the meeting one Alhaji Oyewole Olabakinde who represented Aresinkeye lineage tied to twist history by alleging that there (are) five (5) lineages of Elemo which according to him were Olarinoye, Ige Adubi, Onnuola, Olueye and Majowuoye. He thus split Aresinkeye into four (4) – producing two of them by splitting the name of Oba Ige Adubi Majowuoye into two. The minutes of the meeting shall be relied upon.
24. At another meeting of the Kingmakers with the two lineages held on 23rd September, 1996, that two lineages were also represented by a representative each. One Shittu Awoniyi who represented Aresinkeye tried to even add another lineage – Ojoko – to the list given by Alhaji Oyewole in the meeting of 16th September, 1996.
25. At yet another similar meeting of 7th October, 1996 the two lineages were also represented by a representative each namely Mr. D. O Efunwole and Shittu Awoniyi for Olarinoye and Aresinkeye respectively, although Shittu Oyewole took over from Shittu Awoniyi when the latter could no longer answer the questions put to him by the Kingmakers.
26. A notice/invitation for a meeting of the ruling house with the Kingmakers was sent to Elemo Aresinkeye and Elemo Olarinoye compounds. Also in preparation for another joint meeting of 17th October, 1996, the representative of the two lineages sent an application to the Divisional Police Officer for security men. At the meeting of the ruling house held on 6th November, 1996 the two lineages sat on two distinct sides and the attendance was so recorded. The minutes of meeting is hereby pleaded.
27. All the recent events documents and proceedings related in paragraphs 28 – 32 show that there are only two lineages (and not five (sic) of Elemo Ruling Housing, namely Elemo Olarinoye of Elemo Oke’s compound and Elemo Aresinkeye of Elemo Isale compound Oyan. The 1st defendant and family are stopped from denying this fact
28. Further to paragraph 46, if the device by Aresinkeye is allowed to stand, even when it is turn of Elemo Ruling House again in future Aresinkeye will still push forward one of its newly fabricated lineages and the rights of Olarinoye will be in risk or remoteness under the Chief’s Law.
29. When nominations were to be made, the Olarinoye lineage made it clear that it was its turn to produce the next Oloyan, since the Aresinkeye lineage had produced two (2) out of the three (3) so far produced by Elemo Ruling House. The 1st plaintiff was then nominated. The Aresinkeye lineage opposed this and nominated the 1st defendant as its own candidate. The meeting ended in a stalemate as the ruling house could not nominate a single candidate”.

I have reproduced the paragraphs of the pleadings relied upon by learned counsel in support of their respective contentions so as to see, at a glance, whether the fact of rotation of the chieftaincy throne/stool between the two lineages in question was pleaded so as to ground the case of the 1st and 2nd respondents. I had earlier found as a fact that issue 1 under consideration has nothing to do with the issue as to whether there are two or five lineages in Elemo Ruling House, as can be seen from the issue as formulated and the argument of learned senior counsel thereon.

It is therefore very clear that all the paragraphs of the Amended Statement of Claim reproduced supra dealing with the number of lineages in Elemo Ruling House are not relevant in the determination of issue 1 and are consequently discountenanced by me. I have had to reproduce them despite their irrelevancy so as to demonstrate clearly that they do not relate to the fact of rotation of the throne/stool between the two lineages.

Secondly, the fact that appellants have not attacked the concurrent findings by the lower courts that there are two lineages in Elemo Ruling House instead of five means that appellants accept or are deemed to have accepted that findings as correct and therefore binding on them and every other relevant person.

The question now is whether the issue of rotation of the throne/stool between the two lineages was pleaded having regards to the pleadings in paragraphs 26, 42,43 and 56 supra. I have examined closely the above paragraphs and it is very clear that the fact of rotation of the throne/stool between the two lineages of Olarinoye and Aresinkeye both of Elemo Ruling House is not pleaded. What the paragraphs show is a desire for equal opportunity to occupy the throne alternately not that by the customs and traditions of Elemo Ruling House the throne of Oloyan of Oyan is occupied by rotation between the two lineages. It follows therefore that the issue of rotation was not part of the case presented by the 1st and 2nd respondents to their pleadings. In fact the fact that two Oloyans of Oyan from Elemo Ruling House came from one of the lineages (Aresinkeye) in succession clearly negates the principle of rotation between the two lineages because if rotation had been in vogue, the throne would have been occupied alternately between the two lineages. Secondly, in paragraph 26 supra it is pleaded that when Onnuola from Aresinkeye lineage was chosen and installed as Oloyan one Adeboya from Olarinoye lineage contested the stool with him which fact clearly negates the principle of rotation and supports the case of the appellants that whenever it was the turn of Elemo Ruling House to produce an Oloyan of Oyan, candidates from the two lineages contested freely for the stool.

Now, it is settled law that evidence on facts not pleaded ground to no issue. It follows therefore that even if there was evidence on record on the issue of rotation between the two lineages, which is not conceded anyway, such evidence would be contrary to the pleadings and consequently of no legal effect.I therefore do not intend to waste time by going through the record to find out whether there is evidence in support of such a finding. I therefore resolve issue 1 in favour of the appellants.

On issue 2, learned senior counsel for the appellants referred the court to paragraphs 46 and 47 of the Amended Statement of Defence and counter-claim where estoppel by conduct is pleaded and the evidence from the witnesses thereon and stated that it is indisputable that there was an Elemo family meeting on 22nd November, 1996 where the representatives of Olarinoye and Aresinkeye lineages were present though the 1st appellant and 1st respondent did not attend; that it was at that meeting that the 1st appellant and 1st respondent were duly nominated as candidates for Oloyan stool; that no one protested the nominations; that at the meeting of the Kingmakers on 26th November, 1996, three out of the four Kingmakers voted in favour of the 1st appellant while only one, the 2nd respondent, voted in favour of the 1st respondent; that the trial court agreed with the appellants on the matter and allowed their counter-claim No.1 as well as reliefs 3 and 4; that the lower court was in error in setting aside the finding on the issue by the trial court.

In support of the above submission, learned senior counsel cited and relied on Abalogu vs S.P.D.C Ltd (2003) 13 NWLR (Pt. 837) 308 at 335: Nig. Bank for Commerce and Industry v. IND Gas (Nigeria) (2001) ALL FWLR (Pt.250) 1: Ogbu vs Ani (1994 & NWLR (Pt.355) 128 at 140: Egbaran vs Akpotor (1997) 7 NWLR (Pt.514) 559 at 571 in urging the court to resolve the issue in favour of the appellants.

On his part, learned counsel for the 1st and 2nd respondents submitted that the meeting of 22nd November, 1996 ended in a stalemate as no candidate of the Ruling House was nominated as there was no agreement on a single candidate as required; that that being the case, the meeting of the Kingmakers on 26th November, 1996 in which the 1st appellant had three votes out of four was clearly of no moment; that paragraph (v) of Exhibit “G2” – the registered declaration provides for only one candidate to be nominated by the Ruling House and that since none of the two was the nominated candidate at the meeting, the question of waiver does not arise; that the lower court was right in coming to the conclusion it did and urged the court to resolve the issue against the appellants.

The foundation of the issue under-consideration is to be found in the pleadings of the parties, particularly that of the appellants who raised the defence of estoppel/waiver in their paragraphs 46 and 47 of Amended Statement of Defence and counter claim, where they pleaded thus:-

“46. The defendants shall content at the trial that the 1st plaintiff having taken part in the nomination exercise at which he lost to the 1st defendant who had the overwhelming majority is estopped from asserting the separateness of the Olarinoye lineage from the Elemo Ruling House.

47. The defendants shall also content that the 2nd plaintiff who joined the 5th, 6th and 7th defendants in fixing the meeting of the Kingmakers for the sole purpose of considering the nomination of candidates by Elemo Ruling House and after joining the 5th, 6th and 7th defendant in signing the letter of invitation sent to the secretary of the 3rd defendant and by his presence at the meeting is estopped from contesting the decision of the majority of the Kingmakers.”

The reaction of the plaintiffs to the above paragraphs of the Amended Statement of Defence and counter- claim is contained in paragraphs 11 and 15 of their reply to the statement of defence and defence to counter-claim.

The paragraphs plead as follows:-

“11. The 2nd plaintiff states that he was not even at the meeting of 22nd November, 1996, neither was the 1st defendant present. The issue of estoppels did not arise at all in the circumstance. The 1st plaintiff denies that the 1st defendant had any majority as if is not the turn of his lineage (that has produced two out of three Oloyan from Elemo Ruling House) to field another candidate.

15. Further to paragraph 11 above, the 2nd plaintiff avers that the issue of estoppels or majority did not arise as the 5th, 6th and 7th defendants have stepped out of turn in their traditional duties in acting contrary to native law and custom by attending the family meeting on 22nd November, 1997.

Also, the 5th – 7th defendants together with Mr. Fadara acted on the minutes of an inconclusive meeting and without a nomination letter from the ruling house clearly indicating “a candidate” chosen by the ruling house as required by the public notice. But they later saw his point and sent a purported nomination letter to his house after they have (sic) already done the purported selection using what they called their “knowledge” in paragraph 38 of the defence”.

Evidence was adduced by both parties in support of their contending positions in their pleadings and the trial court, after evaluating the said evidence, held as follows at page 124 of the record:-

” But the plaintiff, for reasons stated earlier on in the judgment submitted to nomination by joint meeting of the family. They cannot resile from this. It is binding, therefore the 1st, 5th, 6th and 7th defendants counter-claim No. 1 succeeds and same is granted by me, Reliefs 3 and 4 flowing from 1 also succeed (sic)”.

The reaction of the lower court to the above finding/holding by the trial court is at page 254 of the record; where the court said, inter alia:

” … There is therefore no evidence in Exhibit “C” to warrant the learned trial judge’s finding of the Olarinoye family’s abandonment or waiver of their claim to the vacant stool…

I hold that the trial court’s findings about the Olarinoye family’s abandonment or waiver of their right to produce a candidate for the vacant stool of Olyoyan of Oyan is perverse same not having been supported by the evidence in Exhibit “C” and it is accordingly set aside. In its place I substitute a finding that at the meeting of the Elemo Ruling House on the 22nd November, 1996 the Olarinoye family maintained and insisted on their right to produce the candidate for the vacant stool…”

It is the contention of learned senior counsel for the appellants that the above findings/holdings arose from a misconception of the case put forward by the appellants relating to the issue of estoppel/waiver, that the estoppel pleaded in paragraphs 46 and 47 of the Amended Statement of Defence and counter-claim was against the 1st respondent and not his lineage, neither did the learned trial judge treat the matter on the basis of lineage but on the individual right of the 1st respondent; that the learned trial judge did not rely solely on Exhibit “C” in coming to the conclusion he did as held by the lower court but on the totality of the evidence before the court; and that the issue of inconclusive nature of the meeting evidenced in Exhibit “C” was uncalled for particularly as PW3, who was the secretary of the meeting never testified to the fact that the meeting was inconclusive or a stalemate. I agree with the above submissions of learned senior counsel for the appellants as the same is clear from the record and the pleadings earlier reproduced. The case of the appellants is simply based on estoppel by conduct against the 1st and 2nd respondents as individuals. It has nothing to do with their lineage at all.

It is not in dispute that two candidates were nominated for the stool of Oloyan of Oyan in the meeting of Elemo Ruling House held on 22nd November, 1996 which candidates were the 1st appellant and 1st respondent; that the names of the two candidates were forwarded to the Kingmakers who, in their meeting of 26th November, 1996 voted three against one in favour of the candidacy of the 1st appellant as against the 1st respondent. Both candidates were voted for in the meeting of the Kingmakers. The case of the appellants is that the 1st respondent as well as the 2nd respondent haven participated directly or indirectly at the nomination exercise cannot resile from same since if it had favoured them, they would not have complained. The 1st respondent never protested his nomination alongside the 1st appellant for the contest for the stool in question. From the record, the nomination of two candidates is also not novel as the 1st and 2nd respondents pleaded in paragraph 26 of the Amended statement of claim that:-

“When it was again the turn of Elemo Ruling House to present an Oloyan, one of the sons of Ige Adubi Mejowuoye (Aresinkeye) who was called Onnuola was chosen and installed as Oloyan. One Adeboya from Olarinoye lineage contested with him. Thus the 3rd Oloyan to be produced from Elemo Ruling House also came from Aresinkeye lineage”.

The above pleading is supported by the testimony of PW1, 1st appellant at page 37 of the record, as follows:-

” Aresinkeye was made Oba twice. I was not born then but history told us that Adeboya contested against Onnuola and lost. I don’t want my own side to lose again…”

So, it is clear that the present instance is not the first time that a candidate is nominated from each of the two lineages to contest for the stool of Oloyan of Oyan. It is clear also that it is from the two candidates that the Kingmakers were to choose one for appointment by the Governor or appointing authority.

Secondly, there is nothing on record to suggest that the estoppel or waiver pleaded and testified to by the witnesses was against the lineage of the 1st respondent as held by the lower court neither did the trial court so find. There is, therefore, no basis for the lower court to interfere with that finding which is based on the pleadings and evidence. To have misconceived the case of the appellants on estoppel/waiver as one against the 1st respondent’s lineage is erroneous as the truth is that it was pleaded and found by the trial court against the 1st and 2nd respondents as individuals.

In the circumstance, I resolve issue 2 in favour of the appellants.

On issue 3, learned senior counsel submitted that the lower court was in error when it affirmed the findings of the trial court to the effect that Exhibit “G2”, the Chieftaincy Declaration, was scanty and in-exhaustive and thereby resorted to other evidence to fill in the perceived lacuna. It is the further submission of the learned senior counsel that the 1st and 2nd respondents did not prove any lacuna in the chieftaincy Declaration; that all the PWs agree that there is only one Elemo Ruling House; that there is no evidence that when Olarinoye ascended the throne he did so on an agreement on rotation neither is it the case that when Ige Adubi of the 1st appellant lineage came on the throne it was by an agreement on rotation between the two lineages; that in fact the fact that two Obas or Oloyans reigned in succession from Aresinkeye lineage is a negation of the case of rotation; that Exhibit “G2” is the customary law guiding the succession to the Oloyan of Oyan chieftaincy and cannot be lightly side tracked on the ground of lacuna or inconclusiveness. Learned senior counsel cited and relied on the case of Oladele VS Aromolaran II (1996) 6 NWLR (Pt.453) 180 at 203, 207 – 208; Ogundare v. Ogunlowo (1997) 6 NWLR (Pt.589) 36 at 372 – 373; Olanrewaju vs. Governor of Oyo State (1992) 9 NWLR (Pt.265) 335 at 362 – 363; Masimisebi v. Ehuwa (2007) 2 NWLR (Pt.1018) 385 at 428 – 429: Fasade v. Babalola (2001) 11 NWLR (pt.830) 26 at 43. Finally learned senior counsel urged the court to resolve the issue in favour of the appellants and allow the appeal.

On his part, learned counsel for the 1st and 2nd respondents submitted that both parties presented conflicting cases before the court as evidenced in their pleadings; that the parties were therefore duty bound to call evidence in support of their averments since Exhibit “G2” the registered declaration of Oloyan of Oyan chieftaincy does not contain sufficient material evidence in proof of the facts pleaded making it in-exhaustive of the customs and traditions of the people; that it is on the basis of the above that recourse had to be made to evidence of tradition to enable the parties prove their case, relying on Edewor v. Uwegba (1987) 1 NWLR (pt.50) 313 at 345; Lipede v. Sonekan (1995) 1 NWLR (pt.374) 668 at 689 and urged the court to resolve the issue against the appellants and dismiss the appeal.

Exhibit “G2”, as has been state, is the Registered Declaration of Oloyan of Oyan chieftaincy and it is settled law that where a declaration in respect of a recognized chieftaincy is validly made and registered, the matter or custom or native law and custom therein stated shall be deemed to be the customary law regulating the selection of a person to be the holder of the recognized chieftaincy to the exclusion of any other customary usage or rule or tradition.

The registered declaration is therefore a declaration of the tradition, customary law and usages pertaining to the selection and appointment to the particular chieftaincy stool/throne, it relates – see Oladele vs Aromolaran 11(1996) 6 NWLR (Pt.453) 180.

Where, therefore, there is a registered chieftaincy declaration, such as Exhibit “G2”, the duty of the court generally is to apply the provisions of the chieftaincy declaration to the facts of the case as established by pleadings and evidence as the court has no power to assume the functions of the chieftaincy committee as regards the making or amendment of customary law governing the selection and appointment of traditional chiefs – see Ikine vs Edjerode (2007) 18 NWLR (Pt.745) 446 at 478 – 479: Adigun vs A-G Oyo State (1987) 1 NWLR (pt 53) 678.

It should, however, be noted that the court can set aside a chieftaincy declaration under certain circumstances such as where a registered declaration is proved to be contrary to the customs and traditions of the people. In the case of Mafimisebi v. Ehuwa (2007) 2 NWLR (pt.1018) 385 at 431, I had these to say:

“I hold the view that the claims as couched – being declaratory in nature are within the jurisdiction or competence of the court to grant if there are facts to support same. The court is not being called upon to make a chieftaincy declaration for the people, neither is it to amend the existing declaration. I hold the considered view that just as the court has the vires to declare or set aside a registered declaration found to be unconstitutional or contrary to the provisions of any Act or Law including the Chieftaincy Law under which it was made, the court equally has the competence to declare same null and void when from the evidence, it is clear that the said declaration does not truly represent the customary law it professes to restate”.

Though the above remains the law, for the court to intervene’ relevant facts must be pleaded and evidence adduced thereon to the satisfaction of the court because the law is that customary law being a matter of fact must be proved by calling evidence unless frequent proof of same has made it to attain the legal status of notoriety so as to be judicially noticed – see Olowu vs Olowu (1985) 3 NWLR (Pt.13) 372.

What does the registered declaration, Exhibit “G2” say It declares as follows:-

“DECLARATION MADE BY THE ODO-OTIN LOCAL GOVERNMENT CHIEFTANCY COMMITTEE UNDER SECTION 4(2) OF THE CHIEF LAW CAP 19 OF THE CUSTOMARY LAW REGULATING THE SELECTION TO THE OLOYAN OF OYAN CHIEFTANCY APPENDIX “D”

1. There shall be four ruling houses and the identity of the ruling houses are:-

i, Elemo Ruling House

ii. Laojo Ruling House

iii. Olomo-Oba Ruling House

iv. Dawodu Ruling House

2. The order of rotation in which the respective ruling house are entitled to provide candidates to fill successive vacancies in the chieftaincies shall be:-

i. Elemo

ii. Laolo

iii. Olomo-Oba

iv. Dawodu

3. The persons who may be proposed as candidates by a ruling house entitled to fill a vacancy in the chieftaincy shall be:-

Male members of the entitled ruling house of good character and sound mind without any previous conviction any court

4. There are six Kingmakers as under:-

i. FSA

ii. Ojomu

iii. Osholo

iv. Inurin

v. Arogun

vi. Ola

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

i. The ruling house whose turn it is to provide a candidate will nominate at a family meeting to be summoned by the family head a candidate for the chieftaincy to be presented by the family head to the Kingmakers.

ii. If the Kingmakers are satisfied that the candidate is suitable from all points of view they recommend him for approval by the Governor. If they are not satisfied, they request the entitled

ruling house to present another candidate.

MADE BY THE ODO-OTIN CHIETANCY COMMITTEE THIS 25TH DAY OF MAY, 1982.

(SGD) (P.O AMUSAN) SGD (OBA S.A O OYELEYE OLURONKE II

SECRETARY, OLOKUKU OF OKUKU

ODO -OTIN CHIEFTAINCY COMMITTEE ODO -OTIN CHIEFTAINCY COMMITTEE

APPROVED BY THE GOYERNOR THIS 4TH DAY OF FEBRUARY, 1983.

(SGD) (BOLA IGE)

GOVERNOR, OYO STATE.

RFGISIERED THIS 15TH DAY OF FEBRUARY, 1983.

(SGD)(M.O. OJO)

FOR SECRETARY TO THE GOVERNMENT

There is no doubt that the principle of rotation is recognized in Exhibit “G2” as being the mode of filling the vacancy of Oloyan of Oyan whenever it exists among the recognized four Ruling Houses’ Exhibit “G2” also states the order in which the rotation is to operate.

It is true that Exhibit “G2” does not concern itself with what happens within the constituting units of a ruling house or how they chose their candidate whenever it is their turn to produce the Oloyan of Oyan. In fact it is not their business to regulate that procedure. In the peculiar case of Elemo Ruling House, there are two lineages constituting the ruling house and the registered declaration talks of the ruling houses as a unit presenting a candidate for the appointment. If the candidate is to emerge by way of rotation between the two lineage that would be the custom of Elemo Ruling House which ought to be pleaded and proved by evidence so as to enable the court act on same, In the instant case, it has already been demonstrated that the fact of rotation between the two lineages of Elemo Ruling House was no where pleaded by the 1st and 2nd respondents and that the findings on rotation by the trial court and the affirmation of same by the lower court is Perverse.

In fact the pleadings and evidence there on demonstrates that whenever it was the turn of Elemo Ruling House to present a candidate for the stool, there was a contest between nominated candidates. There is the evidence that Aresinkeye lineage produced two Oloyans in succession which would not have been the case if the principle of rotation is in operation. Secondly, it is also an undisputed fact that when Onnuola from Aresinkeye lineage was to ascend the throne, Adeboya from Olarinoye lineage contested the stool with him. These facts are very stubborn and they speak volumes. They support the case of the appellants that whenever it is the turn of Elemo Ruling House to produce an Oloyan of Oyan, it was done by open contest by nominated candidates from both lineages. This cannot be said to be inconsistent with Exhibit “G2” neither would it create a lacuna in the customary law stated therein. Exhibit “G2″ is complete as it is and without any lacuna to be filled by extrinsic evidence, granted that the fact of the lacuna and the customary law needed to fill same had been pleaded

I should not be understood as saying that the situation as it exists does not result in injustice to one of the components of the ruling house.

What I am saying, and which is a restatement of the applicable law, is that where there is the need to amend a Registered chieftaincy Declaration so as to bring it in line with the current trend in the customary law of the people, it is the duty of the executive arm of government to do so. In the instant case, there is the anguish of one of the lineages which has to produced only one Oloyan of Oyan out of the four so far produced by Elemo Ruling House; that is clearly unfair and something ought to be done about it by the appropriate authority. Olarinoye lineage ought not to be allowed to continue to suffer under the tyranny of the majority over a common property or proprietary interest with Aresinkeye lineage.

In conclusion, I however resolve issue 3 in favour of the appellants.

With regards to the appeal by the 5th and 6th appellants, I had earlier stated in this judgment that they adopted the same issues formulated by learned senior counsel for the appellants arising from the same grounds of appeal. It follows, therefore, that the resolution of the said issues in favour of the 1st – 4th appellants results in the resolution of the same issues in favour of the 5th and 6th appellants.

In conclusion. I hold the view that the appeals succeed and are allowed, the judgment of the lower court in Appeal No. CA/1/A/75/99 delivered on 8th day of January, 2000 is hereby set aside and in its place I hereby restore and affirm the judgment of the trial court in Suit No. HIK/15/97 delivered on the 30th day of June, 1998 subject to or in line with the issues resolved in this judgment.

Due to the nature of this case and in order to promote reconciliation and the spirit of brotherliness between the lineages. I do not want to award costs. I accordingly make no order as to costs.

Appeals allowed.

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SC.216/2003