Prince Tajudeen Olanrewaju V Sikiru Oyesomi & Ors (2014)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This is an appeal against the judgment of the Court of Appeal in appeal No. CA/I/56/901 delivered by the Ibadan Division of the Court on the 8th day of May, 2000 in which the Court dismissed the appeal of appellant against the judgment of the High Court of Oyo State, Holden at Ife Judicial Division in suit No. HIF/99/87 delivered on the 9th day of May, 1990 granting the claims of the then plaintiffs and the counter claim of the 3rd, 4th and 7th defendants.

This appeal arose from a Chieftaincy dispute involving the IKIRE Stool.

The facts of the case include the following: One Kujelanyo shortened to “KUJE” was the original founder of the stool. He had four children initially through four wives. The children were Disamu who was the eldest; Lambeloye; Ladekan and Onisokan; that in his old age Kuje was given a new wife who later begot another son named Aketula whose partenity is said to have been in dispute as some of the parties to the action claim that he was the son of Disamu – one of the direct sons of KUJE. The parties however, agreed that the mother of Aketula was Kuje’s wife and that Aketula was born in the life time of Kuje though the respondents contend that at the time of his birth, Kuje was too old to father a child. However, it is the four sons of Kuje that are said to constitute the ruling houses of Akire/Ikire Stool/Chieftaincy to the exclusion of Aketula and his descendants.

On the other hand, it is the case of appellant, who was the 6th defendant at the trial, that Aketula, his ancestor, was the direct son of Kuje.

In 1958, however, the Akire of Ikire Chieftaincy Declaration, exhibit “A” was made by the then Western Region government, which identified the ruling houses of Akire of Ikire Chieftaincy to be five to wit: Lambeloye; Ladekan; Disamu; Onisokan and Aketula resulting in the other four ruling houses protesting to the government against the recognition of Aketula: appellant’s ruling house. The government then set up a Commission of Inquiry known as Obasa Commission of Inquiry to inquire into the controversy. The Commission agreed with the four ruling houses that appellant’s ancestor Aketula was not a direct son of Kuje, the father of the ancestors of the four ruling houses but of Disamu and consequently recommended the four ruling houses for recognition as the ruling houses for the Akire of Ikire Chieftaincy.

The recommendation was accepted by the government which directed the Chieftaincy Committee of Iwo Local Government to amend the 1958 declaration. The directive was given in 1976 but no such amendment was made.

In 1987, the reigning Akire of Ikire joined his ancestors resulting in a tussle for the throne by the contesting ruling houses including Aketula, the appellant’s ruling house, which also resulted in the action giving rise to the appeal.

The plaintiffs at the trial court are the representatives of three of the four ruling houses of Akire of Ikire Chieftaincy namely Ladekan, Disamu and Onisokan while the 7th defendant is from the 4th ruling house of Lambeloye. The 3rd defendant represented the Akire of Ikire Chieftaincy Kingmakers. The 3rd, 4th and 7th defendants however counter claimed against the plaintiffs and the 6th defendant who is appellant in this Court.

The claims of the plaintiffs is as follows:

“(1) A declaration that the inclusion of Aketula House as a Ruling House in the Akire of Ikire Chieftaincy Declaration is erroneous in law and in breach of Ikire Customary Law and Tradition and therefore null and void and of no effect:

(2) A declaration that the Recommendation of Obasa Public Enquiry into Akire of Ikire Chieftaincy Title as regards:-

(a) The number and identity of ruling houses;

(b) The order of rotation;

(c) The number and identity of Kingmakers represents the true traditional, correct and customary positions of Akire of Ikire Ruling Houses.”

On the other hand, the 3rd, 4th and 7th defendants counter claimed, inter alia, as follows:-

“(a) That the 1958 Akire Chieftaincy Ruling House Declaration was not made in accordance to section 4(4) of the Chiefs Law of Oyo State and in breach of the rule of natural justice and therefore defective and void as it was not made according to Ikire Native Law and custom and had been so found by the first, second and fifth defendants, and therefore could not be used for the selection, appointment and installation of a new Akire of Ikire the Stool of which is now vacant, as the inclusion of Aketula family which had never been a distinct ruling house in the 1958 Akire Chieftaincy ruling house declaration and also the exclusion of two important Kingmakers and one Ejemu from the 1958 Declaration and failure of the Chieftaincy Committee to give the ruling houses the opportunity of being heard before the declaration was preferred and approved.

(b) The order of rotation among the Akire of Ikire Chieftaincy Ruling Houses as recommended by the Obasa Commission of Enquiry and accepted by the Oyo State Executive Council was wrongful; unreasonable, inequitable and against the rule of Natural Justice as the Commission did not resolve the order of rotation on the substantial evidence before it, but based its conclusion on irrelevant and unreasonable facts which did not stand the test of time and therefore the recommendation and acceptance of it was illegal and not made according to Ikire Native Law and custom when the order of rotation among the Akire of Ikire Chieftaincy Ruling Houses should be as follows.

(1) Lambeloye

(2) Ladekan

(3) Disamu

(4) Onisokan.

(c) Injunction restraining the plaintiffs, the first, the second and fifth defendants from making use of the 1958 Akire of Ikire Chieftaincy House Declaration and appointing/installing anybody from either Ladekan or Aketula families, to fill the vacant stool of Akire of Ikire.”

It is common ground that there had been fifteen (15) Akires of Ikire since inception of the chieftaincy and that none of them has come from Aketula House: that the yardstick for qualification and/or recognition as a ruling house in respect of the Akire of Ikire Chieftaincy to enable it produce a candidate for appointment/installation as Akire of Ikire is that its lineal ancestor was a direct son of Kuje; that prior to the 1958 declaration, there was no recognized order of rotation for the stool of Akire of Ikire as the contest for the vacant stool, whenever it occurred was a matter of survival of the fittest; that the 1958 Chieftaincy Declaration resulted in protests by the plaintiffs/respondents herein and the 3rd, 4th and 7th defendants/counter claimants/respondents resulting in the Obasa Commission of Enquiry which looked into their complaints; that the recommendations of the said Commission of Enquiry though accepted by the government which in turn instructed the appropriate Chieftaincy Committee to effect the necessary amendments to the 1958 Chieftaincy Declaration was never put into effect thereby leaving the 1958 Chieftaincy Declaration as the existing registered declaration in respect of the Akire of Ikire Chieftaincy Stool.

At the conclusion of trial, the trial Judge found as follows:-

(a) that Aketula’s mother was Kuje’s wife;

(b) that there is nothing to suggest that Aketula was not born during the life time of Kuje;

(c) that the presumption that follows from the established facts is that Aketula was Kuje’s son;

(d) that Aketula’s house had produced two Asalus – the head of Ikire Princes, and.

(e) that the evidence tendering to bastardise Aketula as being a son of Disamu was neither cogent nor strong enough to rebut the presumption of legitimacy.

The trial court then proceeded to examine the competing traditional history of the respondents and invoked the rule in Kojo v. Bonsie (1957) 1 WLR 1223 at 1226 by resorting to events in recent history with regards to the fact that out of fifteen (15) Akires, none came from Aketula ruling house and consequently concluded that Aketula was a son of Disamu, Kuje’s son and not a direct son of Kuje and that to have included Aketula Ruling House as one of the five ruling houses for the Akire of Ikire Chieftaincy in the 1958 declaration was a violation of section 4(4) of the Chiefs Law.

Finally, the court granted claims 1 and 2 of the plaintiffs while claims 2(b), 3 and 4 were dismissed.

On the counter claim of the 3rd, 4th and 7th defendants/respondents, claim 1(a) was granted subject to the deletion of the words

“in breach of the rule of natural justice” and “void” in the third to fourth lines of the claim and the words “failure of the Chieftaincy committee to give the ruling houses the opportunity of being heard before the declaration was prepared and approved”, while counter claim 1(b) was granted subject to the excision of the words “and against the rule of natural justice.”

Appellant was dissatisfied with that judgment and consequently appealed to the Court of Appeal, Ibadan Division against same which court, in a judgment now on appeal before this court, held, inter alia, that the trial court was in error in applying the rule in Kojo v. Bonsie to the competing traditional evidence in the case particularly as the finding of that court on the traditional evidence that Aketula was a direct son of Kuje is more probable than that Aketula was a son of Disamu, Kuje’s son as contended by the respondents; that the trial court haven found that it was probable Aketula was a direct son of Kuje settled the dispute as to the paternity of Aketula as a direct son of Kuje; that evidence on the pattern of distribution of the previous fifteen (15) Akires prior to the 1958 Declaration shows that there was no established order of rotation; that under the provisions of section 4(4) of the Chief Law, the mere fact of proof of a family that it is entitled to be declared a ruling house without more would not suffice; that to qualify for such a declaration a family must satisfy the Chieftaincy Committee that it has generally been recognized as such by the community associated with the Chieftaincy and that there was no evidence that Aketula house was recognized as a ruling house by the Ikire Community in 1958 when the said declaration was made and dismissed the appeal and affirmed the decision of the trial court.

The above judgment, as stated earlier in this judgment gave rise to the instant appeal, the issues for the determination of which have been settled by learned counsel for appellant, EMMANUEL ABIODUN ESQ in the amended appellant brief filed on 17/2/11 as follows:-

“1. Whether there can be any declaration of the Customary Law relating to the selection and appointment of Akire of Ikire outside of the Akire of Ikire Chieftaincy Declaration 1958 (Exhibit ‘A’) in the circumstances of the case now on appeal as affirmed by the Court of Appeal

2. Whether or not the court below can affirm the judgment of the trial court granting declaration which were tantamount to an amendment of the Akire of Ikire Chieftaincy Declaration 1958
3. Whether the provisions of section 4(4) of the Chiefs Law can be resorted to lead evidence to establish that the Akire of Ikire Chieftaincy Declaration 1958 contains a declaration contrary to the customary law relating to Akire of Ikire Chieftaincy in the circumstances of this case
4. Whether without applying the Akire of Ikire Chieftaincy Declaration 1958, it can be said that on the findings of the Court of Appeal, the pleadings before the trial court and the totality of the evidence, the plaintiffs/respondents and the 3rd, 4th and 7th defendants/respondents have proved by cogent evidence that Aketula House is not a Ruling House for the production of a candidate for appointment as the Akire of Ikire
5. Whether on the pleadings in this case there is any issue joined between the parties to this case as to how and/or when a recognized Ruling House for the production of a candidate for the appointment as Akire of Ikire loss its recognition as such by the Ikire Community”

On the other hand, learned counsel for 1st – 6th respondents, J.A. ADEBOYE ESQ submitted three issues for the determination of the appeal in the Further Amended Respondents Brief of argument filed on 26th October, 2010.

The issues are as follows:-

“a. Whether or not the provisions of section 4.4 of the Oyo State Law Cap. 21 were properly applied to resolve the issues in dispute in this case on appeal.

b. Whether or not the trial court’s judgment confirmed by the lower court was based on Obasa Commission of enquiry recommendation and acceptance by the Governor and the Local Government Council in Exhibit B, C and D.

c. Having regard to section 4.4 of Oyo State Chief Law 1978 Cap. 21, the reliefs claimed and the evidence adduced on record did the inclusion of Aketula House not vitiate the Akire of Ikire Chieftaincy Declaration and rendered it null and void.”

On behalf of the 8th and 11th respondents, CHIEF MICHAEL A.B. ALLIYU submitted a single issue for determination in the Amended 8th and 11th Respondents Brief of Argument filed on 1/4/10.

The issue is:

“Whether a supposedly ruling house to wit Aketula, which had neither produced any Akire before nor recognized in the remote past as a ruling house, can be so recognized in the 1958 Akire of Ikire Chieftaincy Declaration without infringing section 4(4) of the Chiefs Law of Oyo State.”

Three issues were formulated by CHIEF A.O. FADUGBA of counsel for the 9th, 10th and 12th respondents in the further amended respondents brief of argument filed on 7/6/10 as follows:-

“Whether Aketula family, the appellant’s family was properly included as a ruling House according to native law and custom of Ikire in the Akire Chieftaincy Declaration 1958 Exhibit ‘A’ having regard to section 4(1), 4(2) particularly section 4.4 of Oyo State Chief Law Cap 2.1

Whether Aketula family, the appellant’s family was ever accepted and recognized as Akire Ruling House for the production of candidate for appointment as an Akire from the inception of Akire Royal Dynasty over 400 years.

Whether the lower court confirmed the trial court’s findings and judgment on the bases (sic) of Obasa Commission of enquiry recommendation.”

It should, however be noted that learned counsel for 1st – 6th respondents raised preliminary objections against the appeal which objections have been argued in the respondent brief of argument. On the other hand, counsel for 9th, 10th and 12th respondents indicated at page 10 of his brief the intention to rely on preliminary objection “attached to the motion papers filed on 22nd June, 2005 pending before the Supreme Court” but failed to state the nature of the objection, the grounds on which it (they) is (are) based nor did he proffer any argument in support of the said objection in the respondents brief filed in accordance with the rules and practice of this court.

The above being the case, it is my considered view that there is no competent objection by the 9th, 10th and 12th respondents before this court worthy of any consideration. The purported objection is therefore deemed abandoned or non-existent.

On the objection of 1st – 6th respondents, it is the submission of learned counsel that grounds 1, 1(a) and 2 of the amended grounds of appeal are not competent as the alleged misdirection complained of are the findings of fact and that any error relating to such findings are not misdirection, relying on Kalu v. Mbake (1988) 3 NWLR (pt. 80) 86; Nwadike v. Ibekwe & ors (1987) 11 – 12 SCNJ 72 at 100; that the alleged misdirection in law is actually of mixed law and fact as revealed by the particulars supplied.

It is his further submission that the grounds do not show the way the lower court misdirected itself nor the effect of the said misdirection on that court’s decision, relying on Major L.Z. Umoru (RTD) vs. Alhaji Abubakar Zibiri (2003) 6 SCNJ 290.

It is also the submission of learned counsel that issues 4 and 5 based on the amended grounds 1, 1(a), and 2 are not related to the grounds as the two issues substantially deal with burden of proof and failure to join the question of recognition as an issue which do not relate to the complaints in the said grounds. Counsel then submitted that the said issues are incompetent and consequently liable to be struck out.

Learned counsel further submitted that ground 4, also of the amended grounds of appeal, is incompetent for being vague as neither the ground nor the particulars thereof contain or indicate the alleged error of law committed by the lower court and that issues 4 & 5 are not related to ground 4.

It is also the contention of counsel that issue Nos 1 and 2 are not related to grounds 3, 5 and 6 and consequently incompetent; that issue 3 is also not related to ground 7 and consequently incompetent, learned counsel opined and finally urged the court to strike out the appeal for being incompetent.

Learned counsel for appellant reacted to the objection by filing what he describes as “Amended Appellant’s Answer to Preliminary Objection by the 1st – 6th respondents” which also contains his reply to the respondent brief on 17/9/13 in which he submitted that grounds 1, 1(a) and 2 of the amended grounds of appeal are competent and that the particulars thereof go to show how and why the lower court came to a wrong decision; that issues 4 and 5 cover grounds 1, 1(a) and 2 which deal with the state of the pleadings and evidence without relying on the 1958 Declaration; that the grounds are based on onus of proof, that ground 4 is also competent as same is not vague and that issues 4 and 5 are covered by grounds 1, 2 and 4 of the amended grounds of appeal; that issues 1 and 2 relate to grounds 3, 5 and 6 as they deal with issues outside section 4(4) of the Oyo State Chiefs Law and Obasa Commission of Enquiry; that issue 5 clearly relates to ground 7 and urged the court to overrule the objection.

The amended grounds of appeal are seven in total and are contained in ten pages. I will however reproduce grounds 1, 1(a) and 2 for ease of reference and consideration. These are as follows:-

“The Court of Appeal in its majority judgment misdirected itself in law when it held thus:

“There is no proof before the trial court that Aketula house was so recognized as a ruling house by the Ikire Community in 1958 when the Akire of Ikire Chieftaincy Declaration was made. Nor was there any proof that it was even so recognized in the remote past”

And thereby came to a wrong decision by dismissing the appellant’s appeal against the judgment of the trial court.

PARTICULARS OF ERROR

(a) It is common ground and indeed the trial court found that the criterion for the establishment of the ruling house for the Akire of Ikire Chieftaincy was that each of the ruling houses was named after each of the direct sons of Kuje the founder of Akire of Ikire Chieftaincy title.

(b) The trial court found having tested the competing traditional history for the appellant and the others by the rule laid down in Kojo v. Bonsie (1957) 1 WLR 1223 at 1226 held that the case of the other parties that Aketula was not a direct son of Kuje was more probable than the case of the appellant that Aketula was a direct son.

(c) The Court below held that on the state of pleadings and the evidence before the court, the trial court had no difficulty in preferring the traditional history put forth by the defendant/appellant to that of the plaintiff/respondents and the 3rd and 7th defendants/respondents. In the competing versions of the traditional history therefore there was no conflict in the strict sense of the word to warrant the trial judge’s recourse to the rule in Kojo v. Bonsie. It was held that the trial Judge was wrong to invoke that principle. In essence, the Court of Appeal held that the trial court found that the traditional history for the appellant established that Aketula was a direct son of Kuje.

(d) The unassailable fact that from the finding of the court below referred to in (c) above is that Aketula is a direct son of Kuje the founder of Akire of Ikire Chieftaincy title.

(e) On the premise of the fact stated in (a) above, it is an indisputable fact that the appellant has established by evidence that Aketula is a ruling house for the production of a candidate for the Akire of Ikire Chieftaincy title.

1a. The Court of Appeal in its majority judgment misdirected itself in law by non-direction to the case of the plaintiffs/respondents in the trial court when it dismissed the 6th defendant/appellant’s appeal because it held:

“There is no proof before the trial court that Aketula house was so recognized as a ruling house by the Ikire Community in 1958 when the Akire of Ikire Chieftaincy Declaration was made. Nor was there any proof that it was even so recognized in the remote past”

And thereby came to a wrong decision.

PARTICULARS OF MISDIRECTION IN LAW BY NON-DIRECTION

(a) The main plank of the respondents’ case in the trial court was that Aketula was not a direct son of Kuje the founder of Ikire and of Akire of Ikire dynasty but a son of one of his four sons a contention which the trial court accepted but which finding on the point was upturned by the lower court.

(b) The basis or foundation of the respondent’s contention that Aketula house was not a ruling house for the presentation of a candidate for appointment as Akire of Ikire Chieftaincy title was that Aketula was not a direct son of Kuje the founder of Akire of Ikire Chieftaincy dynasty and once that basis or foundation collapses any structure super-imposed on it must necessarily collapse too.

2. The Court of Appeal misdirected itself in law when it held:

“It is my view that on the question of propriety or otherwise of the inclusion of the Aketula House as one of the ruling houses in Akire of Ikire Chieftaincy Declaration 1958, the learned trial Judge was perfectly in order when he considered the established fact of the House not having produced any of the past 15 Akires in the light of section 4(4) of the Chiefs Law Cap, 21 of the Laws of Oyo State 1978.”

PARTICULARS

(a) The complaint of the appellant was not whether the trial court was right or wrong to consider the non-production of any of the past 15 Akires by Aketula House but that the production of a reigning Akire is a different thing from producing a candidate for contest – for the vacant stool of Akire in the spirit of section 2 of the Chiefs Law.

(b) What the trial court found was that it was only a prima facie evidence.

(c) There is abundant evidence before the trial Court of Aketula’s participation in previous contests for the filling of the vacant stool of Akire of Ikire.”

It is the opinion of the learned counsel for 1st – 6th respondents objectors that the above grounds of appeal are not misdirections in law but findings of fact and if such findings are erroneous they cannot be described as misdirections and that the said findings are at best of mixed law and fact.

I have carefully gone through the grounds of appeal complained of and the submissions of both counsel and am satisfied that the grounds are proper in law. To me the question whether a misdirection is of law or fact or mix law and fact is only relevant when the contention of an objector to such a ground(s) is that appellant did not obtain the leave of the court before filing or arguing the grounds in the brief. In the instant case, the 1st – 6th respondents are not complaining that the grounds being of fact and or mix law and fact as they contend, leave of court was needed and that same was not sought or obtained.

Secondly it is not the contention of counsel that the grounds of appeal complained of do not arise from the judgment of lower court on appeal or that they do not constitute the ratio decidendi of the said judgment.

In short, I consider the objection a complete waste of the precious time of the court as same has no merit whatsoever and is consequently overruled.

Learned counsel for appellant argued issues 1 and 2 together and submitted that since there is exhibit ‘A’, a registered declaration of the Customary Law regulating the Akire of Ikire Chieftaincy, the evidence needed to establish that fact becomes straight forward as same is contained in the said registered declaration, exhibit ‘A’. For the above submission, Counsel cited and relied on Adigun v. A-G Oyo State (1987) 1 NWLR (pt. 53) 678 at 698; that where a declaration in respect of a recognized Chieftaincy is registered, as in the instant case, the matters therein stated are deemed to be the customary law regulating the selection of a person to be the holder of that Chieftaincy to the exclusion of other customary usage or rule, relying on Edewor v. Umegba (1987) 1 NWLR (pt. 50) 313 at 327; that exhibit ‘A’ is exhaustive of the customary law pertaining to the number of the Ruling Houses of the Akire of Ikire Chieftaincy title which should not be jettisoned as urged by the respondents.

It is the submission of counsel that the recommendations of the Obasa Public Enquiry into Akire of Ikire Chieftaincy title 1976 have no evidential value in this case under any law whatsoever as they are matters upon which the Chieftaincy Committee of the Council and the Governor concerned are to take action in accordance with the provision of section 10 of the Chiefs Law which they failed to do; that the trial court in granting the declaration as to the recommendations of the Obasa Commission of Enquiry wrongly assumed the functions of the Chieftaincy Committee and the Governor under the relevant laws and that the lower court wrongly affirmed the said decision.

Counsel then urged the court to resolve issues 1 and 2 in favour of appellant.

On issue 3, it is the submission of counsel for appellant that the provisions of section 4(4) of the Chiefs Law cannot be used to admit evidence to show that the Customary Law in a registered declaration is contrary to the customary law envisaged by the provisions of section 4(4) of the said law, relying on Imonikhe v. A-G, Bendel State (1992) 6 NWLR (pt. 248) 396 at 410 – 411; that a registered declaration is not an ordinary subsidiary legislation as held by the lower court as what it states as being the relevant customary law is unassailable by virtue of the provisions of section 9 of the said Chiefs Law, even if the customary law or usage provided therein is faulty; that where the declaration contains what section 4(4) of the Chiefs Law forbids, the solution lies in amendment of the registered registration and urged the court to resolve the issue in favour of appellant.

It is the submission of learned counsel in relation to issues 4 and 5 that where there is no registered declaration making it necessary for evidence to be adduced of the customary law relating to the chieftaincy, it can only be ascertained by reference to the pleadings of the parties and evidence thereon; that it is a common ground in the pleadings that recognition or establishment of a ruling house for the Akire of Ikire Chieftaincy is that the lineal ancestor of the descendants of the ruling house must be a direct son of Kuje, and that the lower court found that Aketula’s House was founded by a direct son of Kuje; that the lower court also found that there was no ordered rotation of the chieftaincy among the ruling houses which can explain why Aketula House failed to produce any of the 15 Akires of Ikire and that the courts cannot exercise the power conferred on the Chieftaincy Committee under section 4(4) of the Chiefs Law and urged the court to resolve the issues in favour of appellant and allow the appeal.

Learned counsel for 1st – 6th respondents responded to the above issues by arguing issues 2 & 4 together, which for purposes of emphasis are as follows:-

2. Whether or not the provisions of section 4.4 of the Oyo State Law Cap. 21 were properly applied to resolve the issue in dispute in this case on appeal.
3. Having regard to section 4.4 of Oyo State Chief Law 1978 Cap.21 the reliefs claimed and the evidence adduced on record did the inclusion of Aketula House not vitiate the Akire of Ikire Chieftaincy Declaration as rendered it null and void

It is the submission of learned counsel that the finding by the lower court that Aketula was one of the direct sons of Kuje, without more does not qualify Aketula to be one of the ruling houses for the Akire of Ikire Chieftaincy title having regard to the provisions of section 4.4 of the Oyo State Chiefs Law Cap 21 of 1978. It is the further submission of counsel that the registration of exhibit ‘A’ under section 8 of the Chiefs Law does not preclude the reopening of the matter by evidence to determine the validity of the said declaration and that the provisions of section 4.4 of the Chiefs Law is not a mere directive to the Chieftaincy Committee and that the correct interpretation of the provisions of sections 4(1), 4(2), 4(3) and 4(4) of the said Law supports the above submission.

Counsel then proceeded to reproduce the above provisions of the law and submitted that section 4(4) is the bedrock of the power or jurisdiction of the Chieftaincy Committee and that it lays down two categories of families to be excluded from Chieftaincy declaration namely a family which is not generally recognized as a ruling house at the time of making the declaration by the community and a family which has been in the remote past so recognized but is not recognized at the time of making the declaration. Counsel then submitted that it is the case of the respondents that Aketula’s house has from inception of Akire of Ikire Royal Dynasty never been a ruling house and that evidence was thus needed to establish whether the Chieftaincy Committee complied with the provisions of section 4(4) of the law in the making of the 1958 declaration; that the validity of exhibit ‘A’ was questioned by the respondents as the same was said not to have been made in accordance with the native law and custom of the people as provided in the said section 4(4) of the law; that the authorities cited and relied upon by counsel for appellant deal with validly made registered declarations and consequently irrelevant in the determination of the instant case; that where a registered declaration is found to contravene the sections of the Chiefs Law, it can be challenged, relying on Agbetola v. Lagos Exco (1991) 6 SCN 51 AT 14 – 18 and urged the court to resolve the issues against appellant.

On his issue 2, learned counsel submitted that, there is nowhere in the trial court’s judgment that the court based its decision on the recommendation of the Obasa Enquiry into the Akire of Ikire chieftaincy title in 1976; that the trial court gave judgment on the reliefs claimed not on the Obasa recommendation; that even if the judgment as affirmed by the lower court was so based, counsel for appellant has not shown that the same has resulted in any miscarriage of justice, relying on Kraus Thompson Organisation Ltd v. University of Calabar (2004) 4 SCN J. 121.

As stated earlier in this judgment, learned counsel for 8th and 11th respondents submitted a single issue for the determination of the appeal and submitted that for a chieftaincy declaration to be valid, it must be registered; reflect the true custom of the people; exhaustive of the customary law of the community as far as appointment to the stool is concerned; at the time of its making every ruling house must have been given fair hearing, not necessarily oral; it must not be against the principal law to wit, in this case, the Chiefs Law and must not be retrospective in a way that it will impair any vested right acquired under the existing law or declaration and neither must it create a new duty or obligation in respect of transactions already past.

For the above submissions, learned counsel cited and relied on the following cases: Agbetoba v. LSEC (1991) 4 NWLR (pt. 188) 664 at 687; Mafimisebi v. Ehuwa (2007) 2 NWLR (pt. 1018) 385; Adegun v. A-G, Oyo State (1987) 1 All NLR 111 at 133, Edewor v. Uwegba (1981) 1 NWLR (pt. 50) 313 at 350; Ajakaiye v. Idehai (1994) 8 NWLR (pt. 364) 504 and Afolabi v. Governor, Oyo State (1985) 9 S.C 117.

It is the further submission of counsel that the lower courts found that exhibit ‘A’ satisfied all the conditions except that being a subsidiary legislation was against the provisions of the Chiefs Law, Cap 21 section 4(4) thereof by including a house, Aketula, which was found not to be recognized as a ruling house in the remote past nor produced an Akire; that the real issue in contention is whether Aketula was recognized in the remote past as a ruling house in Ikire before the 1958 declaration which the lower courts have found to the contrary; that the lower courts did not make a new declaration by their decisions but subjected exhibit ‘A’, the 1958 declaration to the search light of the provisions of section 4(4) of the Chiefs Law and urged the court to resolve the issue against the appellant.

On his part, learned counsel for the 9th, 10th and 12th respondents agreed with counsel for 1st – 6th respondents that the issues under consideration centre on the interpretation of the provisions of the Chiefs Law, particularly sections 3; 4(1); 4(2) and 4(4) thereof which counsel proceeded to reproduce. It is the further submission of learned counsel that though it is settled law that a validly made Chieftaincy Declaration of a recognized chieftaincy is deemed to be the true custom of the recognized chieftaincy in question within the meaning of section 9 of the Oyo State Chiefs Law and has the force of law, a defective or invalid registered chieftaincy declaration which is inconsistent with the enabling law is not so regarded/recognized by law; that appellant’s family name was wrongly included in exhibit ‘A’ as one of the ruling houses contrary to sections 4(2) and 4(4) of the said Chiefs Law; that

“Aketula whether considered and accepted as the direct son of Kuje, the ancestor of the 4 established and undisputed Ruling House or not, is not a criterion conferring or making Aketula family of (sic) (an) Akire Ruling House except the family is so recognized and accepted by the established Ruling Houses, the Kingmakers and the community from the inception of the Royal Dynasty for over 400 years when fifteen Akires had reigned and none came from Aketula family. The family could not emerge in 1958 to be a ruling house.”

Finally, counsel urged the court to resolve the issues against appellant.

I hold the strong view that the main issue for consideration and which constitutes the pivot of the appeal is simply:

does the holding by the lower court that Aketula is one of the five direct sons of Kuje qualify his family as one of the ruling houses of Akire of Ikire Chieftaincy so as to validate the 1958 declaration, exhibit “A” having regards to the provisions of section 4(4) of the Chiefs Law.

It is settled law that the issue as to who is qualified to ascend any traditional throne or stool is subject to the customary law and traditions of the people concerned and that customary law is a question of fact to be proved by calling evidence unless frequent proof of same has made the customary law to attain the legal status of notoriety thereby rendering same judicially noticeable.

Chieftaincy Declarations came into existence to stop the need for frequent calling of evidence in proof of the customary law and traditions of the people in relation to any particular recognized chieftaincy title/stool or throne.

The purpose of a registered Chieftaincy Declaration is to embody in a legally binding written statement of fact, the customary law of the relevant area in which the method of regulating the nomination and selection of a candidate to fill a vacancy is clearly stated so as to avoid uncertainty: Olowu v. Olowu (1985) 3 NWLR (pt. 13) 372; Agbai v. Okogbue (1991) 7 NWLR (pt. 204) 391; Mafimisebi v. Eluwa (2007) 2 NWLR (pt. 1018) 385.

It is also settled law that the duty/function/responsibility of making chieftaincy declarations lies with the executive arm of the relevant state government and is usually exercised by a Chieftaincy Committee on behalf of that government and where a declaration in respect of a recognized chieftaincy is validly made and registered, the matter therein stated is 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. The declaration is therefore in the eyes of the law, the tradition, customary law and usages pertaining to the selection and appointment to a particular chieftaincy stool which, of necessity, dispenses with the required need of proof by oral evidence of the relevant custom, tradition and usages each time the need arises to determine the matter/succession to the stool or throne or chieftaincy title.

Where such a chieftaincy declaration exists, the duty of the Court is to apply the provisions of the declaration to the facts of the case, as established by evidence, particularly 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 chief: Oladele v. Aromoloran II (1996) 6 NWLR (pt. 453) 180; Ikine v. Edjerode (2001) 18 NWLR (pt. 745) 446; Adigun v. A.-G, Oyo State (1987) 1 NWLR (pt. 53) 678.

In the instant case, there is no doubt that exhibit ‘A’ is a registered Chieftaincy Declaration in relation to the Akire of Ikire Chieftaincy Stool made in 1958 and that the said declaration has not been amended even though the Obasa Committee of Enquiry so recommended and the government of Oyo State approved same.

Though the court has no power to promulgate declaration of customary law, it has the competence to see whether a Chieftaincy Declaration is in conformity with prevailing customary law and accordingly declare it invalid if it does not. The court therefore has power to set aside a registered declaration that does not correctly declare the chieftaincy custom and tradition of the area concerned: see Fasade v. Babalola (2003) 11 NWLR (pt 830) 26: Adigun v. A-G, Oyo State supra; Ajakaiye v. Idehai (1994) 8 NWLR (pt. 364) 504; Eguamwense v. Amaghizemwen (1993) 9 NWLR (pt. 315) 1; Aku v. Aneku (1991) 8 NWLR (pt. 209) 280.

From the above exposition of the law, it is very clear that the court has the vires to declare exhibit ‘A’ invalid or set same aside if the court comes to the conclusion that it should so order.

What then are the circumstances in which the court can declare or set aside a registered chieftaincy declaration, such as exhibit ‘A’ This court has held that the circumstances in which the court will invalidate a registered chieftaincy declaration include a situation where, in the process of the making of the declaration those who ought to be heard were not so heard or where the making of that declaration is in breach of the right to fair hearing or where it offends any Constitutional provision or Act of the National Assembly or Law of a State etc, etc: Obala of Ofan-Aiyegbaju v. Adesina (1999) 2 NWLR (pt. 590) 163; Adigun v. A-G, Oyo State, supra.

In the instant case, the lower courts relied on the provisions of section 4(4) of the Chiefs Law of Oyo State, 1978 to set aside the inclusion of Aketula House as one of the ruling houses for the Akire of Ikire Chieftaincy Stool in the Akire of Ikire Chieftaincy Declaration, 1958.

The said section 4(4) of the said Law provides as follows:

“In exercise of their powers under this section a Committee shall ensure that no family is declared as a ruling house which is not generally recognized as such at the time of making the declaration by the community with which the Chief concerned is associated, and in particular shall not declare as a ruling house a family which has been in the remote past so recognized but is not recognized at the time of making the declaration.”

The reason for so holding is said to be that Aketula House was not generally recognized as a ruling house at the time of the making of the declaration by the community. The question is whether the lower courts are right in holding the above opinion, particularly as no Akire of Ikire, out of the past fifteen (15) Akires had come from Aketula house.

In contending that the lower courts are wrong in their holding, learned counsel for appellant submitted that the provisions of section 4(4) supra,

“are directives to the Chieftaincy Committee exercising their power under the Chiefs Law to prepare and make a Chieftaincy declaration. It is submitted they do not apply to courts whose business, as is decided in Adigun v. A-G, Oyo State in (1987) 1 NWLR (pt. 53) page 678 at 702 is not to make declaration of customary law relating to the selection of Chiefs under the Chiefs Law but to ascertain from the evidence and make a finding of what the customary law is and apply the law for the purpose of claims for declaration…..”

I do not agree on the above submission with the greatest respect to learned counsel.

The provision of section 4(4) of the Chiefs Law, supra is very clear and unambiguous. It imposes a duty on the Chieftaincy Committee, in the making of a chieftaincy declaration not to declare any family which is not generally recognized as a ruling house by the community at the time of making of the declaration and which has been in the remote past so recognized but is not recognized at the time of the making of the declaration.

At page 108 to 109 of the record, the learned trial Judge found as follows:-

“There is no way the Aketula house can in 1958 be recognized as ruling house entitled to provide a candidate for appointment as an Akire when as at that time after 15 Akires had been appointed from four ruling houses in the entire life of the Chieftaincy none had come from Aketula. To have included Aketula house as one of the ruling houses entitled to provide a candidate for appointment as Akire is no doubt clearly a violation of section 4(4) of the Chiefs Law.”

The above finding was affirmed by the lower court at pages 281 – 282 of the record with the court concluding that the mere fact or proof that a family is entitled to be declared a ruling house without more would not suffice; that to qualify for a declaration as a ruling house under the said section 4(4), the family must satisfy the Committee that it has generally been recognized as such by the community associated with the chieftaincy and which appellant failed to establish.

Whether the lower courts are right in the above holdings remains the question.

I agree with the lower courts that under the provisions of section 4(4) of the Chiefs Law, supra, for a family/house to be recognized or declared a ruling house it must satisfy the committee that it has generally been recognized as such by the community associated with the chieftaincy, in this case, the Ikire community. However, in the instant case, the case of the respondents as to why Aketula house was not recognized as ruling house is that the paternity of Aketula was in dispute in the sense that Aketula was said to be a son of one of the direct sons of Kuje, the founder of Ikire and the Akire of Ikire Chieftaincy; that only the direct sons of Kuje constitute the four ruling houses of Ikire and that none of the 15 Akires who ascended the throne came from Aketula house. The lower court however set aside the finding by the trial court that Aketula was not the son of Kuje by holding that he was. I am of the strong view and I agree with the submission of counsel for appellant that the lower court haven so found and having regard to the fact that the foundation for recognition of the four ruling houses is their ancestors being the direct sons of Kuje which also qualifies Aketula, Aketula is qualified to be one of the ruling houses of Akire of Ikire Chieftaincy as evidenced in exhibit “A”.

There is no appeal against the finding by the lower court that Aketula was one of the direct sons of Kuje, the founder of Akire of Ikire chieftaincy title. The above being the case, it is settled law that the respondents are deemed to have accepted the said finding as being correct and indisputable.

What then is the consequences of that finding of fact

It is the submission of learned counsel for the respondents that it is not enough for the court to find that Aketula was one of the direct sons of Kuje because to satisfy the requirements of the provisions of section 4(4) of the Chiefs Law, appellant has the duty to prove that at the time the chieftaincy declaration of 1958 was made Aketula house was recognized by the Ikire community as one of the ruling houses for that chieftaincy and that Aketula house has never, in the history of the Chieftaincy produced an Akire. To counter that contention, learned Counsel for appellant has argued that what matters is not that Aketula house did not produce any of the 15 Akires of the past but that it participated in the contests for the appointment of the Akires but lost due to the fact that there was no recognized pattern of rotation for succession to the stool and that the contest was usually so intense that it was a survival of the fittest. The lower courts agreed with the contention that there was no recognized pattern of rotation of succession among the ruling houses. I agree with them as the pattern of distribution of the past 15 Akires among the four ruling houses, prior to the 1958 declaration lends credence to that finding. To me, that finding also lends credence to the case of appellant that competition for the stool at that time was a matter of survival of the fittest.

It is settled law that only members of a ruling house for a particular chieftaincy or stool or throne can compete for the title or stool/throne whenever a vacancy exists. Where, however, succession to the stool is regulated by a recognized pattern of rotation, the contest for the title or stool is usually limited to candidates from the ruling house whose title it is to occupy the stool/throne. It follows therefore, that no one can be a candidate for appointment/selection for a Chieftaincy title, stool or throne except he is a member of a ruling house whose turn it is to occupy the stool/throne, where succession to same is governed by rotation.

In a situation where there is no recognized pattern of rotation however, the contest is free for all qualified members of the ruling house or houses of the chieftaincy concerned. In such a situation, it is the principle of survival of the fittest that operates for a successful candidate to emerge.The above being the case, I hold the strong view that the provision in section 4(4) of the Chiefs Law which enacts, inter alia,

“…… no family is declared as a ruling house which is not generally recognized as such at the time of making the declaration by the Community…..”

simply means that the family to be declared a ruling house must be recognized as one qualified to present a candidate for appointment to the title/stool/throne concerned not that the candidate so presented for the contest must win or have won the coveted title; that is why the fact that none of the past 15 Akires came from the Aketula may be irrelevant for the purpose of section 4(4) of the Chiefs Law as regards Aketula house. What is relevant is whether Aketula House had been presenting candidates to contest for the stool whenever the occasion demands.

There is evidence that they have been doing so. The name of a past contestant from Aketula house was mentioned by the last Akire who also presided over the making of exhibit ‘A’ in 1958, at page 193 of exhibit ‘B’, where the following dialogue took place:

“Adewuyi: Olugboye and Otekola contested the stool together

Akire: Yes

Adewuyi: This Otekola is from Aketula house

Akire: Yes.”

Aketula house had thus been nominating a candidate to contest the stool which had always been won by the fittest. To hold otherwise would make nonsense of the finding, at last, that Aketula was one of the five direct sons of Kuje, the founder of Akire of Ikire Chieftaincy title which is a qualification to ascend that stool/throne just like the other four sons. It would be giving Aketula something with one hand while taking it away with the other hand. It would be strange that a house that has produced two ASALUS – head of the princes of Ikire – cannot ascend the throne of which he is a prince!! A recognized prince of Ikire but without the hope or possibility of ascending the throne of his father!! Is it possible that by the customs of the Yoruba race a prince cannot ascend the throne of his father That will not be justice.

In the case of Adefulu v. Oyesile (1989) 20 NSCC (pt 111) 371 at 401, this court held thus:

“As a valid nomination by the Ruling House is a sine quo non for either valid submission for selection by the Kingmakers or its approval by the Governor, it follows that any purported selection by the Kingmakers or its approval by the Governor of a person not nominated by the Ruling House is an exercise in futility. The maxim is: ex nihili nihili fit” – per Nnaemeka Agu, JSC.

In the circumstances, I hold the view that the inclusion of Aketula house as one of the five ruling houses for the Akire of Ikire Chieftaincy in the 1958 declaration was not in violation of section 4(4) of the Chiefs Law as found by the trial court and affirmed by the lower court.

It is in evidence that the 1958 declaration, exhibit ‘A’ has not been amended in anyway by the appropriate authority and consequently remains the customary law applicable to the nomination, appointment etc of an Akire of Ikire and applicable to the facts of this case.

In the final analysis, I find merit in the appeal which is consequently allowed by me.

Costs follow event, as is usually said but to promote reconciliation among the ruling houses and people of Ikire, I order that parties bear their costs.

Appeal is allowed. The judgments of the lower courts are hereby set aside.

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SC.65/2001