Simeon Oladoye & Ors. V. The Administrator, Osun State & Ors. (1996)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C.

By a writ of summons issued on 8th September, 1986, the plaintiffs for themselves and on behalf of the Oladogba and Lala ruling houses of Ijimoba sued the defendants claiming:

“1. Declaration that Oladogba and Lala Ruling Houses are the only ruling houses entitled to the Baale of Ijimoba chieftaincy title.

2. Declaration that the directive of the Governor of Oyo State contained in letter reference No.CB. 141/32/50 of 28th May 1980, purporting to authorise an amendment of the Baale of Ijimoba Chieftaincy declaration of 1957 by the inclusion of Atoyebi as a third ruling house is ultra vires, unconstitutional, null and void and of no effect whatsoever.
3. Declaration that the purported amendment of the Baale of Ijimoba Chieftaincy declaration of 1957 by the Ejigbo Local Government Chieftaincy Committee sequel to the said Governor’s directive is invalid, against the rules of natural justice, null and void and of no effect whatsoever.
4. Declaration that the Bale of Ijimoba Chieftaincy Declaration of 1957 is the only valid customary law regulating appointment to the Baale of Ijimoba chieftaincy.
5. Injunction restraining the defendants either by themselves or their agents, servants and privies from acting in pursuance of the purported amendment to the Bale of Ijimoba Chieftaincy declaration made by the Ejigbo Local Government Chieftaincy Committee.”

Pleadings were filed and exchanged. The case for the plaintiffs is that, according to the custom of Ijimoba, there are only two ruling, houses, that is, Oladogba and Lala from which the Baale of Ijimoba is appointed. This customary law, they claim, is reflected in the chieftaincy declaration made in 1957 in respect of the chieftaincy. Prior to 1976, the Baale of Ijimoba chieftaincy was a recognized title coming under Part II of the Chiefs Law of Oyo State. The title was in 1976 reduced in status to a minor chieftaincy with the Elejigbo of Ejigbo as the prescribed authority in respect thereof.

The defence, on the other hand, claims that there are three ruling houses, idest, Oladogba, Lala and Atoyebi and that to that extent, therefore, the chieftaincy declaration of 1957 is faulty.

Following the complaint of members of Atoyebi family of their exclusion from the 1957 declaration, the 3rd defendant, the Elejigbo, conducted an inquiry which found that there are three ruling houses. All the three families were informed of the findings of the inquiry and that the findings and recommendations would be forwarded to the State government. The government accepted the findings of the inquiry and ordered that steps be taken to amend the declaration to include Atoyebi ruling house after the vacancy occasioned by the death of Baale Akinloye in June 1978 might have been filled by a candidate from the Lala ruling house. Pursuant to the directive of the State Government, Chief Ashiru Jaiyeola from Lala ruling house was appointed and installed the Baale of Ijimoba in January 1981. The Chieftaincy declaration was subsequently amended to include the Atoyebi family and the plaintiffs being dissatisfied with the amendment, instituted the action leading to this appeal. At the trial of the action, evidence was led on both sides as to the number of ruling houses eligible to the Baale of Ijimoba Chieftaincy.

At the end of the trial and after addresses by learned counsel for the parties, the learned trial Judge, in a reserved judgment, found that there were three ruling houses and in consequence dismissed the 1st and 4th claims of the plaintiffs but granted the orders sought in the 2nd and 3rd claims. On the 5th claim he found as follows:

“I have on the facts before me held that there are three ruling houses in Baale Ijimoba chieftaincy like the 3rd defendant incidentally concluded in Exhibits L to L6 – the report on his findings following the dispute that arose in 1978 after Baale Akinloye’s death. The said findings were the decision of the 3rd defendant as prescribed authority by virtue of Section 22(3) of the Chiefs Law. Having given the opposing parties the opportunities to be heard, it does not appear to me that the decision can be faulted. The decision, incidentally, like in this judgment, but not the amended declaration to which the Ejigbo Local Government Chieftaincy Committee was called in to make with the 3rd defendant out of an abundance of caution perhaps, is the binding customary law for the selection of a candidate to fill a vacancy in the Baale Ijimoba chieftaincy. As no declaration under the Chiefs Law can exist, I grant the injunction asked for in the fifth head of claim without prejudice to the orders I have made in this case and also the force and effect of the decision of the prescribed authority as stated in his report, Exhibits L to L6.”

The plaintiffs were unhappy with the judgment of the trial High Court and appealed to the Court of Appeal. Ogwuegbu J.C.A. (as he then was) in the lead judgment of that Court (with which Kutigi, J.C.A. (as he then was) and Sulu-Gambari J.C.A. agreed) affirmed the finding of the learned trial Judge that there are three ruling houses namely Oladogba, Lala and Atoyebi, that are entitled to the Baale of Ijimoba Chieftaincy. The Court of Appeal dismissed the appeal of the plaintiffs. It is against that judgment that the plaintiffs, with leave of the court below, have further appealed to this court upon seven grounds of appeal as contained in their amended notice of appeal filed on 14/11/94.

Pursuant to the rules of this court, written briefs of argument were filed and exchanged. In the plaintiffs amended appellants brief, the following questions are set down as calling for determination:

“1. Whether having regard to section 22(3) of the Chiefs Law Cap. 21 Laws of Oyo State of Nigeria, 1978, applicable in Osun State, it is not ultra vires a Prescribed Authority to determine a dispute involving conflicting claims by families aspiring to present candidates to the Chieftaincy as opposed to determining a dispute whether a person has been appointed in accordance with Customary Law applying to the Chieftaincy in dispute

2. Whether the Court of Appeal was right in declining to re-evaluate the evidence of the parties on the ground that the learned trial Judge had made a finding on the evidence when there was proof that the evaluation made by the learned trial Judge on conflicting traditional histories, and inferences to be drawn from the evidence led was wrong and when in any event the evidence was not one bothering on demeanour of witness
3. Whether the Court of Appeal was right in affirming the decision of the trial court on the issue of number of Ruling Houses in Ijimoba and/or question of common ancestry to or between the plaintiffs and the 4th respondent
4. Whether the Court of Appeal was right in affirming the decision of the learned trial judge in view of the inconsistency occasioned by the learned trial Judge’s grant of some of the reliefs sought and the refusal of others and
5. Whether the Court of Appeal was right in affirming the decision of the High Court reached without or in excess of jurisdiction by granting to the respondent a relief not claimed by them.”

The 1st-2nd respondents in their own brief of argument reframed the questions for determination as follows:

“1. Whether the Prescribed Authority in this case acted ultra vires in view of s. 22(3) of the Chiefs Law of Oyo State, applicable in Osun State

2. Whether the Court of Appeal erred in this case by declining to re-evaluate the evidence of the parties before the trial court
3. Whether the Court of Appeal was right in affirming the decision of the trial court on the issues of (a) common ancestry of the appellants and the 4th respondent and (b) the number of ruling houses traditionally entitled to the Baale of Ijimoba Chieftaincy having regard to the evidence led in this case
4. Whether the Court of Appeal was right in affirming the decision of the High Court even though the court granted some of the reliefs sought and refused others
5. Whether the High Court (as affirmed by the Court of Appeal) granted the 4th respondent’s relief not claimed by them and therefore acted in excess of/without jurisdiction in respect of those gratuitous reliefs, if any”

The 3rd and 4th respondents in their own brief adopted the five questions as formulated in the plaintiffs brief.

Question (1):

The main submission of the plaintiffs is that the 3rd defendant acted ultra vires his powers as prescribed authority when he conducted an inquiry to determine the number of ruling houses eligible to present candidates in the event of a vacancy arising in the Bale of Ijimoba chieftaincy. It is contended by the appellants that the power of the 3rd defendant, as prescribed authority, under Section 22(3) of the Chiefs Law of Oyo State is limited only to a determination of a dispute on whether a person has been appointed in accordance with customary law. The learned trial Judge in dealing with the power of a prescribed authority under Section 22(3) of the Law has this to say:

“As regards a minor chieftaincy, the Kingmakers are to appoint a candidate to a vacancy before a prescribed authority appointed by the Executive Council approves such appointment or settles a dispute as to whether a person so appointed to fill the vacant stool has been properly appointed.”

I think the above passage correctly states the law. For, section 22(3) states:

“Where there is a dispute whether a person has been appointed in accordance with customary law to a minor chieftaincy, a prescribed authority may determine the dispute.”

The 3rd defendant however, has not claimed that he was acting under section 22(3) when he conducted an inquiry into the identity of families eligible to present candidates to fill a vacancy in the Baale of Ijimoba chieftaincy. Following the demise of Baale Akinloye in 1978 and the attempted exclusion of the Atoyebi family from presenting a candidate, that family petitioned the 3rd defendant as the paramount ruler of the area and the prescribed authority for the chieftaincy, complaining about the exclusion of their family from the 1957 declaration. If the chieftaincy had not been relegated to the status of a minor chief the petition would have been directed to the Governor of the State. In the light of the protest made to the 3rd defendant, I think he was right to conduct an inquiry into finding out the number of families entitled to the chieftaincy. I will, therefore, not say that he acted ultra vires by conducting that inquiry. In any event, it is not the case of the plaintiff that because the 3rd defendant conducted the inquiry, the finding was null and void. The reasons for seeking their claims (2) and (3) are found in paragraphs 25-32 of their statement of claim which read:

“25. Plaintiff aver that in January, 1986, the heads of their respective ruling houses received copies of a letter reference No. CB.141/32/7/122 dated 20th January, 1986, emanating from the Office of the 1st defendant under cover of a letter reference No. 181/30A dated 24th January, 1986 from the Secretary of the Ejigbo Local Government.

26. Plaintiffs say that the Secretary of Ejigbo Local Government endorsed copies of documents purporting to be an amended declaration in respect of the Baale of Ijimoba chieftaincy to their respective heads of ruling houses under cover of his letter referred to herein. The 4th defendant’s family (Atoyebi) was included therein as a third ruling house.
27. Plaintiffs aver that they had no knowledge of any representations made by the Atoyebi family to the Ejigbo Local Government Chieftaincy Committee warranting the amendment of the Baale of Ijimoba Chieftaincy declaration of 1957 by the inclusion of Atoyebi as a ruling house.
28. Plaintiffs say that the documents purporting to be amended declaration in respect of the Baale of Ijimoba chieftaincy were made by the Ejigbo Local Government Chieftaincy Committee of which the 3rd defendant is the chairman.
29. The plaintiffs were not given any opportunity by the Ejigbo Local Government Chieftaincy Committee to correct or contradict any representation made by members of the Atoyebi family which led to the purported amendment by the Committee, contrary to the rules of natural justice.
30. The plaintiffs say that their ruling houses did not receive any correspondence on any investigation into the Baale of Ijimoba chieftaincy declaration nor did members of their ruling houses submit any comments to or attend any committee to investigate the proposed amendment to the declaration.
31. Plaintiffs aver that the Ejigbo Local Government Chieftaincy Committee carried out the amendment exercise in reliance upon a directive from the Office of the 1st defendant contained in a letter reference No. CB.141/32/50 dated 28th May, 1980, purporting to authorise an amendment of the Baale of Ijimoba Chieftaincy Declaration of 1957 by the inclusion of Atoyebi family as a third ruling house.
32. Plaintiffs say that the purported amendment is contrary to the age long tradition, native law, custom and usages of the Ijimoba community.”

The evidence adduced at the trial did not support the above averments. The appellants not only knew of the inquiry conducted by the 3rd defendant but made representations as well. The learned trial Judge would have dismissed claims (2) and (3) but for the reason given by him that a chieftaincy declaration was no longer necessary as the Baale of Ijimoba chieftaincy had been relegated to the status of a minor chief under Part III of the Law. There was therefore no need, according to him, to amend the 1957 declaration pertaining to the title. He said:

“…….a declaration is not to be amended for its own sake as said in Adigun v. A.G. of Oyo State (1987) 1 NWLR (Pt. 53) 678 at 806 but the Baale Ijimoba chieftaincy having been derecognised by the Recognised Chieftaincies (Revocation and Miscellenous Provisions) Order W.S.L.N. No.6 of 1976 as confirmed by OY.S.L.N. 18 of 1978, there can be no more existing declaration envisaged under the Chiefs Law of the State but statements of customary law which may guide the prescribed authority in the settlement of dispute in respect of the Baale Ijimoba Chieftaincy. The prescribed authority can however be in court however for not following the applicable customary law that should help him in settling such dispute …….”

The learned Judge added:

“There being no declaration to amend, the directive of the State government to the 3rd defendant to amend a declaration in respect of the Baale Ijimoba Chieftaincy is uncalled for, unnecessary, and therefore null and void as you cannot put something on nothing and expect it to stay – See Macfoy v. U.A.C. Ltd. (1962) A.C. 152 at 160 per Denning L J., (as he then was).”

He concluded:

“……. in view of what I have said above it follows that I have to grant the orders in the second and third heads of claim of the plaintiffs as there was no declaration to amend since, 1978, a directive for the amendment of one cannot be given and no amendment can be afortiori made.”

There is no appeal against this conclusion. The grant of claims (2) and (3), for the reason given, does not, in my respectful view, affect the main question between the parties which is: how many ruling houses are entitled to the Baale of Ijimoba chieftaincy The statement of law contained in the 1957 declaration, subject to the answer given to this main question, remains the customary law governing the appointment to the Baale of Ijimoba title.

I therefore, answer Question (1) in the affirmative.

Questions (2) -(5):

These questions relate to the finding of the learned trial Judge, and affirmed by the court below, that there are three ruling families eligible to nominate, in rotation, candidates to fill any vacancy in the Baale of Ijimoba chieftaincy. The attitude of this court to concurrent findings of fact of the courts below has been stated in numerous cases. It is trite that this court will not interfere with such findings where they are supported by sufficient evidence and cannot be said to be perverse. I have examined the evidence on record in this case and have considered the arguments proffered by the plaintiffs. I can find no good reason for disturbing the finding that there are three ruling houses namely Oladogba, Lala and Atoyebi. That finding is supported by abundant evidence adduced at the trial and it is in no way perverse. Consequently I too affirm the finding. I resolve Questions (2) – (5) against the plaintiffs.

In the net result, I find no merit whatsoever in this appeal which is hereby dismissed. I affirm the judgment of the court below and award costs of this appeal assessed at N1,000.00 in favour of each set of respondents.

WALI, J.S.C.: I have been privileged to read before now, the lead judgment of my learned brother Ogundare, J.S.C., and I agree with his reasoning and conclusion save where he opined thus:

“The statement of law contained in the 1957 declaration, subject to the answer given to the main question, remains the customary law governing the appointment to the Baale of Ijimoba title.”

The main issue as stated in the lead judgment is: “how many ruling houses are entitled to the Baale of Ijimoba Chieftaincy”

The learned trial Judge has in my view stated the purpose for which the repealed declaration, in so far as it affects the Baale of Ijimoba Chieftaincy (when it became a derecognised chieftaincy) can be put to use which he stated:-

‘The Baale Ijimoba chieftaincy have been derecognised by the Recognised Chieftaincies (Revocation and Miscellaneous Provisions) Order W.S.L.N. No.6 of 1976 as confirmed by OY.S.L.N. 18 of 1978, there can be no more existing declaration envisaged under the Chiefs Law of the State but statements of customary law which may guide the prescribed authority in the settlement of dispute in respect of the Baale Ijimoba Chieftaincy.”

“There being no declaration to amend, the directive of the State Government to the 3rd defendant to amend a declaration in respect of the Baale Ijimoba Chieftaincy is uncalled for, unnecessary, and therefore null and void as you cannot put something on nothing and expect it to stay- See Macfoy v. U.A.C. Ltd. (1962) A.C. 152 at 160 per Denning LJ., (as he then was). I therefore do not find the case of Uwegba v. A.G. Bendel State (1986) 1 NWLR (Pt. 16) 303 helpful as in that case a declaration which should normally be treated as a legally binding customary law was being interpreted.

That is the effect that our Section 4(1) above of the Chiefs Law i.e. of Oyo State envisages. One may sound a warning here that the provisions under Part II of the Chiefs Law being relied upon by Mr. Adedeji are not applicable to Baale Ijimoba (a part III) chieftaincy but in view of what I have said above it follows that I have to grant the orders in the second and third heads of claim of the plaintiffs as there was no declaration to amend since, 1978, a directive for the amendment of one cannot be given and no amendment can be a fortiori made.”

The repealed declaration is no longer the only customary law for the appointment of the Baale Ijimoba, but it may only serve as a guide to the ascertainment of the proper customary law which has now become an issue of fact to be proved when ever there is dispute as to what the proper customary law is when a new Baale of Ijimoba is to be appointed, until such customary law gains notoriety through superior court decisions when it will be judicially noticed. See s. 14 (1) and (2) of the Evidence Act (Cap 112), Laws of the Federation of Nigeria 1990. See Larinde v. Afiko (1940) 6 WACA 108, and Amissah v. Krabah (1931) WACA 30.

In the recent case of Lipede v. Sonekan (1995) 1 NWLR (Pt. 374) 668 a similar issue as regards the effect of declaration of customary law on the appointment of a derecognised chieftaincy arose. In that case this court clearly stated that where an enabling law is repealed or revoked any delegated legislation, instrument or order made pursuant thereof becomes of no legal binding effect, except for the right that has accrued prior to the repeal or revocation. See Odofin v. Ayoola (1984) 11 SC 72 and Mogaji v. Cadbury (Nig.) Ltd (1985) 2 NWLR (Pt. 7) 393, where Onu J.S.C. delivering the lead judgment in Lipede v. Sonekan (supra) opined thus on this issue:-

“The gist of the appellant’s argument on this issue, which asks whether Exhibit “18” (the registered declaration) has been revoked by W.S.L.N. No.6 of 1976 so as to render it inapplicable to Ashipa Egba Chieftaincy, is that Exhibit”18″ remains in full force in its applicability to the minor chieftaincy of Ashipa Egba (governed by Part 3 of the Chiefs Law) notwithstanding the fact that it was expressly and statutorily made to apply to recognised Chieftaincy (governed by Part 2 of the Chiefs Law) (ibid). I fully endorse the respondents argument on this point that to so hold would amount to a clear refusal to recognise the change introduced by the amendment effected by W.S.L.N No.6 of 1976 (ibid). The amendment introduced in my view, was to wipe away the use of registered declarations in respect of the Ashipa Egba Chieftaincy among other minor Chieftaincies which hitherto enjoyed privileges as recognised chieftaincies. This, I hold, accords with the intendment of the law maker. I endorse all that I have said under Issue (b) above. In addition, I am of the view that a declaration such as Exhibit 18 derived its root, existence and validity from section 4 in Part 2 of the Chiefs Law (ibid). It is a piece of delegated legislation made pursuant to the powers conferred by that section. Once, as shown in this case, the application of section 4 itself had been revoked by W.S.L.N. No.6 of 1976, Exhibit 18 has no legal root upon which it can continue to stand.”

Uwais, J.S.C. (as he then was) stated the position of the law as follows in his concurring judgment:-

“Now section 4 of the Chiefs Law, Cap. 20 by virtue of which Exhibit 18 was made, has not been repealed but the Chieftaincy of Ashipa Egba ceases, by the operation of the 1976 revocation Order (W.S.L.N.) No.6 of 1976, to be a recognised chieftaincy. Consequently, Part 2 of the Chiefs Law ceases to apply to the chieftaincy. It follows, by analogy to section 4 subsection (2) (c) of the Interpretation Act, Cap. 192, that Exhibit 18 (which is a statutory instrument) ceases to have effect. Furthermore, by the repeal of the Recognised Chieftaincies Order, 1959 (W.R.L.N. No. 22 of 1959) by the 1976 Order (W.R.L.N. No.6 of 1976), so far as it applies to the Chieftaincy of Ashipa Egba, Exhibit 18, though not expressly or specifically revoked is deemed to be “spent” and “obsolete”.

Exh. A having been rendered obsolete or revoked by the Recognised Chieftaincies (Revocation and Miscellaneous Provisions) Order W.S.L.N. No.6 of 1976 and subsequently confirmed by OY. S.L.N. 18 of 1978 could no longer apply as an existing law, nor could it be amended since it has ceased to exist when the purported amendment was carried out.

I shall also dismiss the appeal for the reasons ably stated in the lead judgment and abide by the consequential orders contained therein, including the one as to costs.

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SC.39/1990