Sikiru Olaide Okuleye V. Alhaji Rasheed Adeoye Adesanya & Anor. (2006)
LawGlobal-Hub Lead Judgment Report
JOHN AFOLABI FABIYI, J.C.A.
This is an appeal against the judgment delivered by Osidipe, J. while sitting at the High Court of Justice, Abeokuta, Ogun State of Nigeria on 2nd August, 2001. The learned trial judge dismissed the Plaintiff/Appellant’s claims against the Defendants/Respondents in their entirety.
The reliefs sought by two surviving Plaintiffs against the Defendants can be found in paragraph 43 of the 2nd further amended statement of claim at pages 73-74 of the transcript record of appeal. It is apt to reproduce same as follows:-
“43. WHEREOF the Plaintiffs claim jointly and severally against the Defendants:-
“(i) A declaration that the 1st defendant is not a member of the Demoku/Aboki Ruling House of the Olisa of Ijebu-Ode Chieftaincy and that he is therefore not entitled to be nominated and/or appointed as the Olisa of Ijebu-Ode.
(ii) A declaration that the Late Chief Stephen Babalola Kuku was neither the Head of the Demoku/Aboki Ruling House nor the Head of the Olisa of Ijebu-Ode Chieftaincy Family and that he was therefore not entitled to convene a meeting of the said Ruling House for the purpose of nominating a candidate for appointment to the vacant stool of Olisa of Ijebu-Ode, nor to present any candidate and in particular the 1st Defendant hereof to the Awujale of Ijebu land for his consent and that any purported presentation of the 1st defendant as the Olisa of Ijebu-Ode by the said late Chief Stephen Babalola Kuku is a nullity.
(iii) A declaration that the traditional Kingmakers of the Olisa of Ijebu-Ode Chieftaincy family under the Registered Declaration have not appointed the 1st Defendant to the vacant stool of Olisa of Ijebu-Ode pursuant to the Registered Declaration for the Olisa of Ijebu-Ode Chieftaincy and as required by the Chiefs Law Cap. 20 Laws of Ogun State of Nigeria.
(iv) A declaration that membership of the appropriate Ruling House and an appointment by the traditional Kingmakers of Olisa of Ijebu-Ode Chieftaincy are conditions precedent to an approval of the candidature of an Olisa by the Ogun State Executive Council, and that in the absence of such membership and appointment – the purported approval conveyed by the Office of the Executive Governor of Ogun State in its letter reference No. 5/26/T/2 dated 29th July, 1993 is a nullity.
(v) A declaration that the 2nd Plaintiff having been properly nominated by the Demoku/Aboki Ruling House and having been properly appointed by the Kingmakers is entitled to be considered for approval by the Ogun State Government after the consent of the Awujale of Ijebu land would have been obtained thereto.
(vi) An order quashing the purported installation of the 1st Defendant as the Olisa of Ijebu-Ode.
(vii) An order of perpetual injunction restraining the 1st Defendant from parading himself or from exercising any power and/or authority and from enjoying any benefit as the Olisa of Ijebu-Ode.”
At the trial court, the 1st Defendant filed a Notice of preliminary objection dated 7-11-94 challenging the Plaintiffs’ right to sue in a representative capacity as well as their locus standi. After taking argument from counsel, the court dismissed the preliminary objection on 26-1-95. The 1st Defendant appealed to this Court on the outcome of his preliminary objection. On 24-11-98, this court dismissed his appeal. Parties exchanged their pleadings. At the trial, the Plaintiffs called three witnesses to prop their claims. The 1st and 2nd Defendants called one witness each. Counsel for the parties thereafter addressed the court. The learned trial judge applied the law to the evidence garnered by him to the best of his ability in his reserved judgment delivered on 2-8-2001. The trial judge dismissed the plaintiffs’ claims in their entirety. The plaintiffs felt unhappy with the stance posed by the learned trial judge and have appealed to this court vide their Notice of Appeal dated 8-10-01 and filed on the same date.
It is apt to state, albeit, briefly the relevant facts leading to this appeal.
The Olisa of Ijebu-Ode Chieftaincy is a recognized one. Part 2 of the Chiefs Law, Cap, 20 Laws of Ogun State of Nigeria, 1978 is applicable to it. An approved Registered Declaration applicable to Olisa Chieftaincy is Exhibit 1. There are seven (7) Ruling Houses in Exhibit 1. On 5-8-91, the last Olisa, Henry Fowokan from Wunumo Matuluku Ruling House passed on. It became the turn of Demoku/Aboki Ruling House to present a candidate to fill the vacancy.Vide the provisions of S.15(1)(a) of the Chiefs Law, the Secretary of Ijebu-Ode Local Government issued Exhibit 9 calling on Demoku/Aboki Ruling House to present a candidate to fill the vacancy in the Olisa Chieftaincy. By Exhibit 10, the Head of Demoku/Aboki Ruling House was mandated to convene a meeting of the Ruling House to nominate a candidate for appointment as the Olisa of Ijebu-Ode. On 22-5-93, Chief Stephen Babalola Kuku, as head of the Ruling House, convened the meeting at which the Secretary of Ijebu-Ode Local Government was present as an observer as dictated by S. 15(d) of the Chiefs Law. At the meeting, the 1st Defendant was nominated to fill the vacancy in the Olisa Chieftaincy. Minutes of the meeting and list of those in attendance are Exhibits 11 and 11A respectively,
Thereafter, the kingmakers of the Olisa of Ijebu-Ode Chieftaincy met on 24-5-93. At the meeting, the 1st Defendant was appointed as Olisa of Ijebu-Ode. The minutes of that meeting as recorded by the secretary is Exhibit 12. The Awujale of Ijebu land subsequently consented to the appointment vide his letter which is Exhibit 13. The Executive Council of Ogun State approved the appointment of the 1st Defendant as the Olisa of Ijebu-Ode with effect from 28-7-93. At the time of approval, no one made representation to the Executive Council that the appointment should be set aside for any reason.
The Plaintiffs were not satisfied and consequently initiated this action.
Their stance is that the 1st Defendant is not a member of the Demoku/Aboki Ruling House of the Olisa Chieftaincy and is therefore not eligible to be nominated as a candidate or be considered for appointment as the Olisa of Ijebu-Ode. They assert that it is the 2nd Plaintiff who is qualified and should be so appointed. The above were the salient facts considered by the learned trial judge in his reserved judgment of 2-8-01.
I wish to note it here that on 29-9-03, this Court granted leave to the 1st Respondent without objection by the Appellant to raise issue of the incompetence of the action and lack of jurisdiction since the Plaintiff failed to exhaust a statutory remedy before approaching the Court.
On behalf of the Appellant, six issues were couched for determination of the appeal. They read as follows:-
“Issue No.1
Whether the lower court was right to have re-opened the issue of locus standi when both the High Court and the Court of Appeal have decided the issue following a preliminary objection by the 1st Defendant.
Issue No.2
Whether, assuming (without conceding) that the lower court was correct in re-opening the issue of locus standi, the learned trial judge decided the issue on correct principles.
Issue No.3
Whether the learned trial judge correctly evaluated the totality of the evidence of traditional history of the evolution of the Demoku/Aboki Ruling House of the Olisa Chieftaincy Family before arriving at the conclusion that the 1st Defendant is a member of the Demoku-Aboki Ruling House and therefore entitled to be nominated as a candidate for appointment as Olisa of Ijebu-Ode.
Issue No.4
Whether the learned trial judge was correct having regard to the evidence before the lower court to have concluded that Chief S. B. Kuku was the Head of the entire Olisa Ruling Houses.
Issue No.5
Whether on the proper interpretation of Exhibit 1 it is correct as the learned trial judge concluded that only the Ruling House whose turn it is to present a candidate as Olisa should have a say in the nomination, appointment and presentation of an Olisa to the exclusion of other Ruling Houses of the Olisa Chieftaincy Family.
Issue No.6
Whether the nomination and appointment of the 1st Defendant as Olisa at the meetings evidenced by Exhibits 11-11A and 12-12A were validly done having regard to the status of those who attended and participated thereat and the venue of the meeting and in the light of the provisions of the Registered Declaration exhibit 1 and Ogun State Chiefs Law Cap. 20 Laws of Ogun State 1978.”
On behalf of the 1st Respondent, seven (7) issues distilled for determination are as follows:-
“(1) Whether the failure by the Appellant to exhaust the statutory remedy provided by section 20 of the Ogun State Chiefs Law by making a representation to the Ogun State Executive Council renders the proceedings incompetent and deprives the court of jurisdiction.
(2) Whether a finding that a plaintiff has a locus standi amounts to proof of his case? In other words whether in law notwithstanding a finding of locus standi the Plaintiff must at the trial lead evidence in support his case as pleaded.
(3) Whether in deciding if the Plaintiffs/Appellant’s case has been proved at the trial, the trial judge must look at the entirety of the pleadings and the evidence given and if so, whether a court can return a verdict in this case in favour of the Plaintiffs/Appellants whose evidence at the trial contradicted their pleadings.
(4) Whether the learned trial judge overruled the Court of Appeal on the issue of locus standi and deprived the plaintiffs of the benefit of a finding of locus standi in their favour. In fact the Court of Appeal on the facts proved by evidence (sic) Ikpu v. Ikpu (1991) 5 NWLR (Part 193) 571; Wiri v. Wuche (1980) 1-2 SC 1.
(5) Whether the Plaintiffs have satisfactorily established the traditional history of the Demoku/Aboki Ruling House.
(6) Whether the Appellants have proved satisfactorily that the 1st Defendant/Respondent has not been rightly installed as the Olisa.
(7) Whether the trial judge was right in regarding Chief Stephen Kuku as the Head of the Ruling House.”
On behalf of the 2nd Respondent, five (5) issues couched for a due determination of this appeal read as follows:
“Issue 1
Whether the learned trial judge overruled the Court of Appeal on the issue of locus standi thus depriving the plaintiffs of the benefit of the finding of locus standi made in their favour by the Court of Appeal.
Issue 2
Whether, from the totality of evidence led at the trial, the learned trial judge was right in holding that the 1st Defendant is a member of the Demoku/Aboki Ruling House and thus qualified to be appointed as the Olisa of Ijebu-Ode.
Issue 3
Whether the learned trial judge was right in holding that Chief Stephen Babalola Kuku was the head of the Demoku/Aboki Ruling House and thus entitled to convene and to preside over the Ruling House meeting for the purpose of nominating the 1st Defendant as Olisa of Ijebu-Ode.
Issue 4
Whether the learned trial judge was right in holding that the Ruling House whose turn it is to present a candidate as Olisa has the sole right to nominate, appoint and present the Olisa to the exclusion of the other 6 Ruling Houses of the Olisa Chieftaincy.
Issue 5
Whether the nomination, appointment and approval of appointment of the 1st Defendant as the Olisa of Ijebu-Ode vide Exhibits 11-11A and 12-12A are valid having regard to the provisions of the Chiefs Law, Cap. 20, Laws of Ogun State, 1978 and the applicable Registered Declaration (Exhibit 1).”
It stands to reason that the 1st issue formulated on behalf of the 1st Respondent should be treated at this point. The senior counsel for the 1st Respondent opined that the failure of the appellant to exhaust the statutory remedy provided by section 20(2) of the Ogun State Chiefs Law to make a representation to the Ogun State Executive Council renders the proceedings incompetent and deprives the Court of jurisdiction. He cited the case of Aribisala v. Ogunyemi (2005) 6 M.J.S.C. 188; Adesola v. Abidoye (1999) 14 NWLR (Pt. 637) 28 at p. 59; Eguanwense v. Amaglizen (1993) 9 NWLR (Pt. 315) 1 at P. 25.
Senior counsel felt that pre-action notice should not be confused with failure to exhaust a statutory remedy of making a representation. He maintained that in pre-action notice, the affected party is the opponent and can therefore waive it; hence the court, atimes, treat it as an irregularity. He asserted that on the other hand where there is failure to exhaust a statutory remedy (by making a representation) the action is both incompetent and the court lacks jurisdiction.
In reply, the senior counsel for the appellant maintained that the question whether a condition precedent to any proceeding was fulfilled or not is a matter of fact which must be pleaded and proved by the party alleging it. He cited Katsina Local Authority v. Makudama (1971) NSCC 119 at 124; International Messengers Nig. Ltd. v. Pegafor Industries Ltd. (2005) 15 NWLR (Pt. 947) 1 at 18, (2005) 5 SC 38 at 45; Nnonye v. Anyichie (2005) 2 NWLR (Pt. 910) 623 at 658-659.
Senior Counsel maintained that contrary to the argument on behalf of the 1st Respondent, the law regards the failure to comply with such a requirement as a procedural irregularity. He cited Mobil Producing (Nigeria) Unltd v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Owoseni v. Faloye (2005) 14 NWLR (Pt. 946) 719.
Senior counsel asserted that it does not lie in the mouth of the 1st Respondent to complain that no representation has been made to the State Executive Council since he is not the beneficiary of the representation. He felt that the proper party to comply if he is so minded is the 2nd Respondent who has not complained. He again referred to Mobil Producing (Nigeria) Unltd v. LASEPA supra at pp. 34-35 and p. 47.
Senior Counsel further submitted that the issue being one of procedural irregularity can be waived. He felt that even if the 1st Respondent was the right party to object, he is deemed to have waived his right by his failure to raise the issue of procedural irregularity at the trial.
He referred to Katsina Local Authority v. Makudama (supra) at 124; Nnonye v. Anyichie (supra) at 647; 660.
The Learned senior counsel carefully distinguished the position in Aribisala v. Ogunyemi (supra) from what obtained in this matter in hand. He observed that the issue of jurisdiction was raised and decided by the trial court and the Court of Appeal before the matter got to the Supreme Court.
But in this case, the issue was not raised and decided by the trial court. Even though it is evidence-based jurisdictional issue, no evidence was placed before the trial court on the question whether any representation was made to the Ogun State Executive Council.
I note it here that the learned counsel for the 2nd Respondent did not advance any argument on this issue. She remained completely mute. In my opinion, such a stance is right.
It is clear to me that the fuss that was seriously generated on this issue was not deserving it. I shall give my reasons anon. Failure of the appellant to exhaust statutory remedy provided by s. 20(2) of the Ogun State Chiefs Law to make a representation to the Ogun State Executive Council is a matter which must be pleaded and proved by the 1st Respondent who alleged it. See Yassin v. Barclays Bank DCO (1968) NMLR 380; Nnonye v. Anyichie (supra) at 658. The 1st Respondent can hardly be seen to raise a finger over his own inaction as he did not raise same through his pleadings and evidence at the trial court. The jurisdictional incompetence which is one dependent on ascertainment of facts should have been pleaded and proved at the trial court by the 1st Respondent who alleged it. But he did not to his own chagrin.
The Supreme Court put the issue beyond dispute in the case of Owoseni v. Faloye (supra) at page 758. On a similar point in the chieftaincy matter like the one in hand, the Supreme Court, per Oguntade, JSC pronounced without any equivocation as follows:-
“I agree that the question of absence of jurisdiction in a court to adjudicate on a matter can be raised at any stage of the proceedings and indeed for the first time on appeal.
But before a defendant can raise the matter before evidence is led, the material, giving rise to the complaint of absence of jurisdiction in the court before the suit is brought must be apparent on the face of the statement of claim. Alternatively the defendant may plead the issue himself. A defendant is not entitled to rely upon a defence, which is based on facts not stated in the statement of claim unless he alleges such facts specifically in his pleadings by way of special defence.
See NIPC Ltd. v. Bank of West Africa Ltd. (1962) 1 All NLR 556; (1962) 2 SCNLR 342 and Sketch v. Ajagbemokeferi (1989) 1 NWLR (Pt. 100) 678. In this case the Plaintiffs/Appellants did not plead that they did comply with section 13 of Ondo State Chiefs Law. The defendant did not plead such non-compliance. In that setting the court below should have refused to consider the issue as it was not raised before the trial court and could not be taken as a jurisdictional matter without evidence on the issue. In this case there was no such evidence.”
The above opinion by the apex court clearly settled this issue. It has clinched the argument advanced on behalf of the 1st Respondent. The decision in Aribisala v. Ogunyemi seriously relied upon by the Senior Counsel for the 1st Respondent is not in point. It is not of moment since therein, the issue of jurisdiction was raised and decided by the trial court and the Court of Appeal before the matter got to the Supreme Court. In this matter, the issue was not raised and tried by the trial court. Being an evidence based jurisdictional issue, it should have been raised and tried at the trial court.
Apart from the above, it occurs to me that it does not lie in the realm of the 1st Respondent to complain that representation was not made to the Ogun State Executive Council. This is because he is not the beneficiary of such representation. The proper party to complain, if so minded, is the 2nd Respondent. But he did not complain. He kept mute. The 1st Respondent should not fight the cause of the 2nd Respondent. See Mobil Producing (Nig) Unltd. v. LASEPA (supra) at pp. 34-35; 47.
Lastly on the point, I agree with the senior counsel for the Appellant that the issue being one of procedural irregularity, can be waived. Even if the 1st Respondent was the right party to object, he is deemed to have waived his right by his failure to raise the issue at the trial. See Katsina Local Authority v. Makudama (supra) at 124; Nnonye v. Anyichie (supra) at 647; 660.
Without any equivocation, this issue is clearly resolved against the 1st Respondent. The appeal must be determined on its merit. And I proceed accordingly in that direction.
The next issue is whether the lower court was right to have re-opened the issue of locus standi when both the High Court and the Court of Appeal have decided the issue following a preliminary objection by the 1st Defendant/Respondent. ..
Locus standi has been defined as the right of a party to appear and be heard on the question before any court or tribunal: See Senator Abraham Adesanya v. President of Nigeria (1981) 2 NCLR 358 at p. 380. In Owodunni v. Registered Trustees of CCC (2000) 10 NWLR (Pt. 675) 315 at p. 338, Ogundare, JSC pronounced graphically that ‘the term locus standi denotes the legal capacity to institute proceedings in a court of law.
Standing to sue is not dependent on the success or merit of a case; it is a condition precedent to a determination on the merits’. It literally means that the Plaintiff has shown sufficient interest in the matter and is entitled to be heard. The presence of locus standi does not mean the success or failure of the action. The Plaintiff still has to establish his case by a preponderance of evidence. See Ajagungbade III v. Laniyi (1999) 3 NWLR (Pt. 633) 97 at 112.
The Appellant complained that the issue of locus standi which was put to rest by the Court of Appeal was wrongly re-opened by the trial judge. It is clear to me that the learned trial judge erroneously re-opened the point relating to locus standi and embarked upon undeserved thesis on same at the prompting of the 1st Respondent’s counsel, in particular. A judge should always make up his own mind and be firm. He should not dance unnecessarily to the tune wrongly doled out to him by counsel.
In this appeal, the senior counsel for the 1st Respondent abandoned the learned trial judge mid-stream. He submitted that the finding that the Plaintiff lacked locus standi is a statement without a legal consequence in that the Plaintiffs’ claims were not struck out which is a legal consequence of so holding. He asserted that the Plaintiffs were heard on the merits and the statement, at the highest, was a slip. Learned counsel for the 2nd Respondent described the undeserved effort of the learned trial judge on this point as a mere academic exercise and a voyage of discovery without any legal consequence since the Plaintiffs’ case was eventually determined on the merits. She referred to Salami v. NNN Ltd (1999) 13 NWLR (Pt. 634) 315 at p. 330.
If the trial judge had considered and struck out the Plaintiffs’ claim solely on locus standi, he would have been dead wrong. Since the Court of Appeal found that the Appellant, as Plaintiff at the lower court, has locus standi, it ceased to be within the realm of the lower court to ostensibly find that the plaintiff has no locus standi to sue under any guise. The goof was put to rest, however, since the trial judge went ahead to determine the case on the merit. He did not strike out the case based on his palpable erroneous finding in respect of locus standi. I agree with both counsel for the Respondents that the pronouncement made by the learned trial judge in respect of locus standi is a mere ‘academic exercise’, ‘a voyage of discovery without any legal consequence’, and ‘a slip’. The Appellant has not shown how he has been prejudiced by the pronouncement. It is not every slip or mistake of the head and not of the mind of a judge in a judgment that would lead to a reversal of same. To lead to a reversal, the error must be substantial. See Federal Housing Authority v. Abosede (1998) 2 NWLR (Pt. 537) 177 at 187; Eze v. Obiefuna (1995) 6 NWLR (Pt. 404) 639 at 651 both cited by the 1st Respondent’s Senior Counsel. After all, they serve as saving grace to the melee created by design. The crux of the issue is that the Court of Appeal said that the Appellant has locus standi. It is clear that despite the fact that the trial court pronounced the contrary, it went ahead to try the case on the merit. The trial court stumbled on a correct position; it seems. With due diffidence to the senior counsel to the Appellant, there is, in real essence, no big deal in this issue. The Appellant’s stance on the point is not a firm one. This is clear to me. I shall now move to the real serious and salient issues as couched on behalf of the Appellant and treat them in seriatim.
Issue NO.3 couched on behalf of the appellant is one of substance. It is whether the 1st Defendant is a member of Demoku-Aboki Ruling House who is entitled to be nominated as a candidate for appointment as Olisa of Ijebu-Ode.
It is apt to point it out here that the Olisa of Ijebu-Ode is a recognized Chieftaincy. Part 2 of the Chiefs Law, Cap. 20 Laws of Ogun State, 1978 is applicable to it. Exhibit 1 is a Registered Declaration applicable to the Olisa Chieftaincy. By section 9 of the Chiefs Law, Cap 20, Exhibit 1 is presumed to be the customary law regulating the selection of a person to be the holder of that Chieftaincy to the exclusion of any other customary usage or rules.
The purpose or purport of a registered declaration is to embody in a legally binding written statement, the customary law of a particular area, setting out clearly the method regulating the nomination and selection of a candidate to fill a vacancy in the chieftaincy of that area. This is to avoid uncertainty in the customary law of the area. Such obviates the necessity of proof by oral evidence of such tradition, custom and usages on each occasion that the issue arises for determination by the courts. See Oladele v. Aromolarau II (1996) 6 NWLR (Pt. 453) 180; Ayoade v. MILAD, Ogun State (1993) 8 NWLR (Pt. 309) 111; Fasade v. Babalola (2003) 11 NWLR (Pt.830) 26 at 45.
It is not a moot point that by Exhibit 1, Olisa Chieftaincy comprises of seven Ruling Houses and it is the turn of the Demoku/Aboki Ruling House to present a candidate for the Olisa Chieftaincy. Arid vide Exhibit 1, the persons who may be proposed as candidates by a Ruling House entitled to fill the vacancy in the Chieftaincy shall be male members of the ruling house. See Fasade v. Babalola (supra).
The contention of the Appellants is that they are the members of the Demoku/Aboki Ruling House entitled to present a candidate for the Olisa stool. They maintain that the 1st Defendant is not a member of the said Ruling House but rather of Rade family and not qualified to be nominated and appointed as the Olisa of Ijebu-Ode.
It is extant in paragraphs 5, 6, 9 and 10 of the further amended statement of claim that the plaintiffs maintained that they are the only relations of Chief Rade of Isado in Ijebu-Ode with regard to Demoku/Aboki Olisa Chieftaincy. Rade was a powerful and wealthy man who had four wives. Demoku/Aboki Ruling house, according to the Plaintiffs, arose from the marriage of Adelu, the son of Rade to Odunayo the daughter of Olisa Amuneyin. Demoku 1 was a product of the marriage of Rade’s son – Adelu to Odunayo.
At the trial, the Plaintiffs could not substantiate their above stance. Under the search-light of cross-examination, a potent tool for perforating falsehood, the position taken by the Plaintiffs got weakened as their witnesses fell flat. P.W.1, Sikiru Olaide Okuleye, an aspirant to Olisa stool at page 87 lines 19-24 and page 88 lines 1-5 testified in answers to cross examination as follows:
“I do not know the names of Rade’s wives and never knew where they came from and when they married Rade. Neither my mother nor any of my great grandmother downward had any room at Isado. However my ancestor being a son of Rade must have a room in Isado. I also do not know where Olowonirekende’s room was in Isado. Also I do not know anything about Rade family house at Isado. I do not know the apartment of Adesanya in Isado. None of the Otulanas and Olowonirekende ever met me at Isado. I do not know the name of Adelu’s mother and never knew her origin or when she married Rade. Ademoku and Aboki are not the same.”
As well, P.W.3 at page 97 lines 11-16 of the transcript record of appeal testified in response to cross-examination as follows:
“I am related to Rade family through Adelu. I do not know where the Rade family is situated. The
only Rade family I know is based at Isado. I have never been to Isado Rade family house though I am Rade family. Rade is male and I do not know from where he came but he had four wives but never knew their names. I do not know Adelu’s mother.”
P.W.3’s further answers to cross-examination at page 98 lines 15-22 of the record appear more damaging to plaintiffs’ stance. The testimony goes as follows:
“I have never been to Isado Rade’s family house.
Nobody in Isado knows me as a member of Rade family. 1 have never attended the Olisa family meeting at Ilisa. I am not aware of any record where my grandfather, father or myself have been described as being members of Rade family.
While it is true that Kuku’s mother had a room in our family house at Isado I do not know why my own section has none in the family house.”
From the above evidence given under cross-examination, it is right to conclude that the Appellants as Plaintiffs at the trial court depict themselves as strangers to Rade Family. The Plaintiffs claim relationship to Demoku through Adelu the son of Rade. The name of Adelu’s mother remains in the air as it is unknown. The story of Plaintiffs’ relationship to Rade family through Adelu is a figment of their own fantasy and imagination. It is difficult to comprehend same by any mortal being.
The 1st Defendant’s genealogy is pleaded in paragraphs 5-11 of the statement of defence at pages 57-58 of the transcript record of appeal. In line with the pleadings of 1st Defendant, D.W.1 testified that from his research into the Olisa Chieftaincy, Rade was a female; a fair complexioned mother called ‘Iya Pupa’. Her full name was Moradeun. Her father was prince Adero, a son of the 10th Awujale and her mother was Adefokuji, an Egba Princess. Moradeun had two daughters and two sons. Adefola, a son of Rade was the grandfather of late Sanni Adesanya who was the grandfather of the 1st Defendant.
D.W.1 testified that Rade was a powerful and influential person who was able to secure the Olisa Chieftaincy title for her cousin Amuneyin who was succeeded by Demoku 1 who became Olisa in 1839. He said Bello Odueyungbo Kuku the father of the Head of the family Stephen Kuku who died at the age of 93 years was a grandchild of Rade through Aderibi. Chief Balogun Kuku was said to have been approached for Olisa Chieftaincy in 1885 but he declined because he had just embraced Islam and gave the title to Aboki who was his half brother.
To my mind, the evidence of D.W.1 appears plausible as it is not coloured. The learned trial judge had the duty to evaluate evidence gathered by him. This duty, he carried out creditably in my considered opinion. He correctly ascribed due probative value to evidence garnered by him. As I am unable to fault him, I shall not interfere with his findings. See Ebba v. Ogodo (1984) I SCNLR 372; Balogun v. Agboola (1974) 1 All NLR (Pt. 2) 66; Nwosu v. Board of Customs & Excise (1988) 5 NWLR (Pt. 93) 225; Nneji v. Chukwu (1996) 10 NWLR (Pt. 478) 265; Ogbechie v. Onochie (1988) 1 NWLR (Pt. 70) 370.
P.W.1 agreed that Demoku and Aboki are not the same person. The learned trial judge was right when he found that Ademoku/Aboki Ruling House consists of two branches and the 1st Defendant is from Ademokun line. He did not agree with the fabricated story given by the Plaintiffs. And I am unable to fault him. It is difficult to find otherwise from the whole gamut of the evidence adduced by the parties at the trial. The senior counsel for the Appellant tried to advance fine address. I need to remind the appellant that addresses are designed to assist the court. No amount of brilliance in a fine speech can make up for the lack of evidence to prove and establish or else disprove and demolish points in issue. See Niger Construction Ltd. v. Okugbeni (1987) 4 NWLR (Pt. 67) 787 at 792; Obodo v. Olumo & Anr. (1987) 3 NWLR 111 at 113.
The substance of my above discussion is that Issue 3 is hereby resolved against the Appellant.
Issue No. 4 is whether the learned trial Judge was correct, having regard to the evidence before him, to have concluded that Chief S. B. Kuku was the Head of the entire Olisa Ruling Houses.
It was observed by the senior counsel to the Appellant that it was P.W.2 who testified that he was the head of the entire Olisa Chieftaincy family. He submitted that the evidence of P.W.2 should be admitted since it was not contradicted. It was observed that the case of the 1st Defendant was that Chief S. B. Kuku was the head of Ademokun/Aboki Ruling House.
Senior Counsel urged us to reverse the conclusion of the learned trial judge when he said that Chief S. B. Kuku was the head of Olisa Ruling Houses -as the Court should not make a case for the parties. In support of his stand, he cited NEPA v. Aba (2000) 22 WRN 171 at 180; Irom v. Okimba (1998) 3NWLR (Pt. 540) 19 or (1998) 2 SCNJ 1.
The Senior Counsel to the 1st Respondent conceded the point that the learned trial judge made a typographical error or a slip in referring to Chief Stephen Kuku instead of P.W.2 as claiming to be the Head of the Olisa Chieftaincy. He observed that the fact that Stephen Kuku was the head of the Olisa Chieftaincy Ruling Houses was not pleaded by any of the parties and no evidence was led on same. He asserted that reference to Stephen Kuku instead of P.W.2 was obviously and unequivocally a mistake. He submitted that it is not every mistake or a slip that would affect a judgment as to result in its reversal. He cited Eze v. Obiefuna (1995) 6 NWLR (Pt. 404) 639. He felt that in this case, the mistake or slip did not affect the reasoning for the judge’s decision.
The learned trial judge found that ‘Olisa Chieftaincy families or Ruling Houses’ did not feature in the provisions relating to nomination and appointment of a candidate to the stool in Exhibit 1 and that appointment thereafter was the exclusive right of the Ruling House and the Family Head. It is clear that the learned trial judge goofed when he found that Chief Stephen Kuku was the head of Olisa Chieftaincy family. The evidence on record is to the effect that Stephen Kuku, at the material time, was the head of Demoku/Aboki Ruling House and no more. It is not for a court to make a case for the parties. See Irom v. Okimba (supra). However, I am unable to surmise with adequate precision how the slip affected the judgment in a radical way as to result in its reversal. Let me say it clearly that the slip did not affect the reasoning for the learned trial judge’s decision. The miniature slip or mistake should not undo the judgment.
Issue NO.5 is ‘whether on the proper interpretation of Exhibit 1, it is correct as the learned trial judge concluded that only the Ruling House whose turn it is to present a candidate as Olisa should have a say in the nomination, appointment and presentation of an Olisa to the exclusion of other Ruling houses of the Olisa Chieftaincy family’.
The senior counsel to the Appellant submitted that it is not stated in Exhibit 1 that the appointment of Olisa shall be the sole prerogative of the Ruling House whose turn it is to provide a candidate to fill the vacancy. He felt that in interpreting a document, due regard must be given to the entire document so as to find out the correct meaning of words therein. He cited Artra Industries Nigeria Limited v. The Nigerian Bank for Commerce and Industry (1998) 3 SCNJ 97 at 115; Oyeyemi v. Commissioner for Local Government, Kwara State (1992) 2 NWLR (pt. 226) 661 at 681.
He felt that family should be the aggregate of the seven Ruling Houses of the Olisa Chieftaincy family. He also felt that Exhibit 1 should not be construed to produce absurd result. He cited Udoh v. Orthopaedic Hospital Management Board (1993) 7 NWLR (Pt. 304) 139.
On behalf of the 1st Respondent, senior counsel observed that there is nowhere in the Declaration – Exhibit 1 in which reference is made to the ‘Olisa Chieftaincy families’ in the process of nominating or appointing a candidate. He referred to the golden rule of interpretation that ordinary words must be given their ordinary meaning. He cited Ekundayo v. University of Ibadan (2000) 12 NWLR (Pt. 681) 220 at 235; Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139. He observed that from time immemorial the appointment has been the exclusive exercise by the Ruling House.
There is no doubt about it that the provisions of Exhibit 1 binds the nomination and appointment of an aspirant to the stool and must be construed accordingly. The whole provisions of Exhibit 1 must be read together. There is nowhere in Exhibit 1 where Olisa Chieftaincy families is mentioned. It will not augur well to import the stated tag therein. This must be so to avoid confusion and rigmarole which the Declaration – Exhibit 1 is designed to avoid or obviate. The words used therein are ‘ruling house’ and ‘family’. It is safer in my considered opinion to employ the golden rule of interpretation that ordinary words be given their ordinary meaning. The cases of Ekundayo v. University of Ibadan (supra) and Labiyi v. Anretiola (supra) cited by the senior counsel to the 1st Respondent are of moment here.
At this point, I need to reproduce paragraph (v) of the Declaration Exhibit 1 hereunder:
“(v) The method of nomination by each ruling house is as follows:
The ruling house whose turn it is to provide a candidate shall nominate at a family meeting to be summoned by the family head a candidate for the chieftaincy to be presented by the family head to the Awujale.”
It is clear from the above that the assignment of nominating a candidate is the preserve of the Ruling House and family head. Paragraph (iv) says the kingmakers shall be the head of the family and the first 24 members of the family; not families. To make assurance doubly sure, by paragraph. (v) reproduced above, a candidate to the Chieftaincy shall be presented by the family head to the Awujale. The acceptance of the kingmakers of a nominated candidate is a fait accompli. See Odeneye v. Efunuga (1990) 7 NWLR (Pt. 164) 636. In my opinion, any subtle introduction of ‘Olisa Chieftaincy families or family’ as contended by the appellant may make the Declarations in Exhibit 1 run riot. The Declaration is designed to avoid acrimony, bickering, waste of time and ganging up. The head of the family in paragraph (iv) should only be the head of the relevant Ruling House carrying out the exercise in paragraph (v) of nominating. It is the head of the same Ruling House who would present the candidate to the Awujale. It portends a rather dangerous enterprise to import into Exhibit 1 – the Declaration what it does not contain. I refrain from doing so. I resolve issue NO.5 against the Appellant.
Issue No. 6 is whether the nomination and appointment of the 1st Defendant as Olisa at the meetings evidenced by Exhibits 11-11A were validly done, having regard to the status of those who attended and participated thereat and the venue of the meeting, and in the light of the provisions of the Registered Declaration Exhibit 1 and Ogun State Chiefs Law, Cap. 20 Laws of Ogun State 1978.
The senior counsel for the Appellant contended that the proceedings in the meetings evidenced by Exhibits 11-11A and 12-12A are invalid as the Secretary to the Local Government attended and conducted the meeting. He said the Secretary had no directive from the Government to attend the meeting as no record showed same. Senior counsel opined that those who attended the meetings were not properly accredited and that the meeting was held at Rade Family House and not at Ita Ntebo. He cited Oduntan v. Akibo (2000) 13NWLR (Pt. 685) 10.
Learned senior counsel opined that the secretary of the Local Government directed the affairs of the meeting in Exhibits 12-12A and left no discretion to the kingmakers in the appointment of the 1st Defendant contrary to the provision of Exhibit 1. It was strenuously urged that the meetings are a nullity.
Let me say it here that points canvassed in this issue dove-tail into earlier issues thrashed in this appeal. In a general manner, skirmishes were raised on behalf of the Appellant in a bid to undo the stand of the 1st Respondent.
According to P.W.3, Stephen Kuku was the Family Head. He summoned a meeting on 22nd May, 1993 vide Exhibit 9 issued on 17-5-93 by the Secretary to the Ijebu-Ode Local Government requesting that the Family meeting be convened. Exhibit 10, a copy of the Local Government Notice was addressed to Stephen Kuku. He convened the meeting and presided as extant in Exhibit 11. The 1st Respondent emerged as the only nominated candidate. As in Exhibit 12, the kingmakers appointed the 1st Respondent as Olisa of Ijebu-Ode and vide Exhibit 13, the Awujale gave his consent.
I am unable to agree with the suggestion that the mere presence of the Secretary to the Local Government at Family meetings without the express approval of the Commissioner for Local Government should invalidate the appointment. He had the statutory mandate to be present at the meetings. Section 15(1)(d) Chiefs Law, Cap 20, Laws of Ogun State 1978 which mandates the attendance of the Secretary provides:
“It shall be lawful for the secretary to attend as an observer any meeting of the ruling house mentioned in sub-paragraphs (b) and (c) of this subsection upon directives issued in that behalf by the Commissioner for Local Government and Chieftaincy Affairs,”
The Secretary is only an observer. I agree that a presumption of regularity and normal course of business can be drawn in respect of the attendance by the Secretary. Since the meetings were in order, the presence of the Secretary without express directives should not invalidate them. I uphold the learned trial judge’s presumption of regularity in respect of the Ruling House meetings. After all, the State Executive Council of which the said Commissioner is a member subsequently ratified the process upon the presumption that the same was conducted in substantial compliance with the provisions of Exhibit 1 and the Chiefs Law Cap 20 Laws of Ogun State, 1978 and without any atom of protest by anyone, the appellant inclusive. I see nothing untoward in the secretary attending the meeting and taking minutes thereat. Appellant’s miniature complaints should not make nonsense of a serious process relating to the filling of Olisa Chieftaincy stool.
The issue is resolved against the Appellant. In sum, all the salient issues have been resolved against the Appellant.
I come to the conclusion that the appeal, basically, lacks merit. And it is hereby dismissed, I affirm the part of the trial judge’s final order whereby he dismissed the Appellant’s claims on the merit.
I award N5,000 costs to each Respondent.
Other Citations: (2006)LCN/1945(CA)
