William Akanni & Ors v. Josephy Yakubu & Ors (1973)
LawGlobal-Hub Lead Judgment Report
T. O. ELIAS, C.J.N.
This is an appeal from the judgment of Adesiyun, J., in suit No. KWS/2/1971 in which the plaintiffs in their capacity as senior Ijagbo traditional heads responsible for the traditional appointment of the Bara of Ijagbo otherwise known as the village head of Ijagbo for themselves, jointly and severally and as the lawful customary representatives of Ijagbo, claimed against the defendants as follows:
“1. As against the 1st, 2nd and 3rd defendants that the approval and selection of the Bara was not made according to Ijagbo native law and custom because of irregularities and omissions in the appointment and that it is also ultra vires on the part of the 1st, 2nd and 3rd defendants to install the 4th defendant as the Bara.
- A declaration that the appointment of Alhaji Raji Fawomola Olanrewaju as Bara was irregular, fraudulent and against the popular agelong traditional process of Ijagbo people in appointing Bara.
- A declaration that the 1st, 2nd and 3rd defendants or their agents deliberately acted fraudulently by putting themselves forward as the rightful people to appoint the Bara of Ijagbo and by falsely informing the then Sole Administrator of Oyun Division, Mr. J.A. Omotosho that the 4th defendant has been properly appointed, according to the customs and traditions of the Ijagbo people and thereby misled the authorities in Oyun Division.
- An injunction restraining the 4th defendant from performing any of the functions of Bara of Ijagbo or from holding himself out as the Bara of Ijagbo.
- A declaration that since the 4th defendant has not been properly appointed according to the established custom and age-long tradition of the Ijagbo people his appointment or purported appointment should be declared null and void and of no effect whatever.”
Pleadings were duly filed and delivered. Plaintiffs called six witnesses and gave evidence, while the defendants called three witnesses and also gave evidence.
The admitted facts are as follows. Several years ago, a number of persons from the town of Offa gradually migrated to the site of the neighbouring village of Ijagbo until, at the commencement of the present suit, there were 35 compounds in the village. Each compound consisted of between 50 and 70 persons, thus making a total of about 2,500 persons.
The village would appear to be administered by six compound heads, acting as a council or would normally act as chairman. Although the members of the compound normally elected the headship of each compound, nevertheless in the case of the compound head that would be made chairman there must also be formal adoption and approval by the remaining five compound heads. It would seem that the position of the chairman of committee is not that of the ordinary traditional chieftaincy, although the expressions “kingmakers”, “chief” and sometimes “king” were freely used by both sides to the case, in their pleadings as well as in evidence.
It is also generally agreed that the head of the Bara compound, who was the father of the 4th defendant, was the last chairman of the committee of six and often went by the title of Onijagbo, but it is not agreed that the title was either traditional or borne by chairmen previous to the last holder of the post. The Onijagbo or Bara would, if properly appointed in accordance with the customary rules and procedure, normally carry a position of honour or dignity among the community of Ijagbo and was generally accepted and respected as such.
On the death of the father of the 4th defendant, the Sole Administrator for the Oyun Division of Offa, D.W.3, testified that he invited the ruling house of Bara to submit to him the name of the next Onijagbo, that a letter (exhibit C) was written to him nominating Alhaji Raji . F. Olanrewaju as the Bara and Onijagbo of Ijagbo, that, shortly before he proceeded to appoint the 4th defendant by letter, he received a petition (exhibit D) strongly protesting against the nomination of the 4th defendant for the post of Onijagbo, and that he soon thereafter also received petitions from other groups in Ijagbo village protesting against the appointment. D. W. 3 also testified that when he consulted the Ministry of Local Government of Kwara State about the proposed appointment of D.W.4, he was informed that the post of Onijagbo of Ijagbo was not a recognized chieftaincy and that the appointment should be made by the Oyun Local Government Authority, which means by the Sole Administrator himself. He nevertheless proceeded to appoint D.W.A by letter No. S. 33/9 dated 20th April, (exhibit A).
Soon after the installation as the Onijagbo of ljagbo, D.W.3 said that he received letters of protest from the Ijagbo Descendants’ Union, one of which is exhibit B, and also a letter from Onijagbo ruling family setting out the proper procedure for the appointment (exhibit C); and that even before the installation, he had received letters of protest from the chiefs in Offa and also from the Oloffa, the letter of protest from the chiefs in Offa being marked exhibit D. He took no action on exhibit D before he made the appointment, although he was told that three out of the five posts of the persons mentioned in exhibit C were vacant and that, although the two surviving persons were members of the ‘ruling’ junta or committee, they did not sign exhibit C. D.W.3 said that he did not rely on exhibit C alone but also consulted some citizens of the village, none of whom was, however, called as a witness at the trial.
When accused of having created a non-existent post of Onijagbo, he testified that from his personal knowledge as well as in his official capacity, he knew that there is a chief called the Onijagbo of Ijagbo but did not know when the title of Onijagbo of Ijagbo first came into being; he offered to find out from the records if the court would give him time to do so. This request was granted but, on the day to which the case was adjourned for the purpose, he produced three documents which were rejected as inadmissible because they were irrelevant to the question which the court wanted answered.
Learned counsel for the defendants submitted that since the plaintiffs and their witnesses said that there had never been an Onijagbo, it is clear that the defendants had not committed any breach of the custom of which the plaintiffs could complain and that, as there are 35 family heads in the village, the plaintiffs could not fight for a right belonging exclusively to only one of the six family heads. He further submitted that the position of the president of Ijagbo village committee comes within the definition of “chief” under section 3 of the Interpretation Law Cap. 52 of the Laws of the Northern States and that under section 11 of the Chiefs (Appointment and Deposition) Law, Cap. 20, of the Laws of the Northern States, the jurisdiction of the High Court is ousted. His final submission is that, in accordance with section 78 (6) of the Constitution of the Northern States, the court has no jurisdiction to entertain a chieftaincy dispute.
Learned counsel for the plaintiffs, on the other hand, submitted that the fact that the six heads of compounds administer the village and even control it does not make them chiefs, neither does it make the Onijagbo of Ijagbo a chief. When the six heads of compound meet, they collectively control the whole community, but the chairman of the committee has no control over the whole community of the village. It has become traditional for the committee to act jointly, not individually. Learned counsel finally submitted that the 4th defendant did not claim that he was made the chairman of the six heads of compound or that he is even one of them. All that the evidence has established is that the Sole Administrator, as the Local Government Authority for Oyun Division, appointed him a tax collector, which is not the same thing as appointing someone a chief. He contended that the case is not a chieftaincy matter and that the court therefore, has jurisdiction over it. The learned trial judge upheld the plaintiffs’ claims.
From this decision the defendants have appealed to this court on a total of eleven grounds which Mr. Babalola, their learned counsel, proceeded to argue, beginning with those grounds which allege that the 4th defendant was a chief and that the court has no jurisdiction to entertain the suit. He referred us to section 3 of the Interpretation Laws, Cap. 52, of the Laws of Northern States and claims that the 4th defendant as the village head of Ijagbo comes within the definition of a chief since, according to him, a village head is a king (Oba).
In this connection he referred to Enwezor v. Onyekwe (1964) 1 All N.L.R. 14, at pp. 18ff in Ijagbo, including the appellant, are the people who administer the village and that the first five of them are chiefs, the appellant as chairman of the committee being regarded as a head chief. We are unable to accept these propositions of law because there is no evidence before us to show that the president of the committee of the six compounds heads is a chief in the accepted connotation of the term in law, nor that he could even be regarded as a” head chief’ in view of the definition of this expression in section 3 of the Interpretation Law, Cap. 52 which defines a head chief as one who is not subordinate to another chief or native authority. We are of the view that the chairman or president of the committee of the six heads of compounds at Ijagbo cannot be a chief because he is no more than a titular head of a gerontocracy appointed by the remaining five from time to time and to whom he is accountable for his actions.
He would appear only to be a primus inter pares who has no authority of any kind over the village community of Ijagbo apart from the nebulous power and influence granted him if properly appointed by his remaining five colleagues. All the six members of the gerontocracy have a collective responsibility towards their community. The society is clearly republican in its political complexion and has yet to evolve into a chiefship or indeed a kingdom. It is like what Ibadan was before the appointment of the first Olubadan-congeries of compounds with family heads who meet together to administer the affairs of their community. The social contract theory, if one may apply it to the Ijagbo society, would make it appear to be at an inchoate stage, in that the other five members of the committee or indeed the entire community have not yet agreed to surrender their sovereignty to an almighty ruler in return for protection and succour; or, if one subscribes to that view of the social contract theory which recognizes two stages in the process, the community would seem to have achieved only a pactum unionis, not yet a pactum subjections. They may one day evolve to a position in which a formal supplication might be made to the Kwara State Government for the recognition of their chairman as a chief in the traditional sense, but that stage does not appear to have been reached when this action was brought.
With regard to the claim that the 4th defendant is a head chief, we note that Ijagbo is a client village of Offa and that the 4th defendant’s father was in the habit of going there to answer the summons of the Oloffa of Offa from time to time even when claiming to be the Onijagbo of Ijagbo. Since Ijagbo village is under the authority of the Oloffa of Offa, the Bara or Onijagbo of Ijagbo cannot be a head chief within the meaning of section 3 of the Interpretation Law, Cap. 52.
Mr. Babalola made a final submission before us that, in any case, there is no cause of action disclosed by the statement of claim before the trial court, since a mere dispute about honour or dignity does not ground a justifiable dispute. He referred us to Amusa Momoh v. Jimoh Olotu S.C. 410/67 in which the Supreme Court held that a mere dispute about claims to dignity is not justifiable; and also Olukare v. Owa-Ale of Ikare 13 W.A.C.A. 72 in which a similar finding was made by the West African Court of Appeal. This last submission of learned counsel for the appellants, has some merit in it, and was indeed raised at the trial. Reference was made to the case of Adanji v. Hunvoo 17 N.L.R. 74, but it would appear that the learned trial judge confused it with the counsel’s other submission in that court about ouster of jurisdiction under section 78 (6) of the Constitution of the Northern States.
We think, however, that, as learned counsel for the respondents very carefully pointed out a cause of action may properly arise in virtue of a dispute relating to a claim to the chairmanship of a committee or the exact relationship of the 4th defendant to the gerontocracy, a subject of some importance in the light of the claims of the other members of the committee to the right to continue to supervise the doings of the 4th defendant after his purported appointment as Onijagbo of Ijagbo by D.W. 3 and his stubborn refusal to accept that interpretation of his office.
On the grounds filed and argued before us, learned counsel for the appellant has not advanced any argument to upset the judgment of the learned trial judge. In view of the decisions in the three cases referred to above, we suo motu invited arguments as to whether there was any reasonable cause of action disclosed by the statement of claim on the basis that the Bara or Onijagbo is only a mere title of honour or dignity. There does not appear to be any evidence that the parties had in the lower court examined the question whether, apart from the issue of honour or dignity, there are any other vested or proprietary rights attaching to the position which, in the light of the authorities earlier on referred to, ought to be taken into consideration in determining whether or not the dispute is justifiable. We think we cannot decide this question on the basis of the records before us. In the circumstances, therefore, we express no opinion on this aspect of the matter.
We are of the view that, in granting the relief sought, the learned trial judge seems to have done so in too wide terms. On the facts as established in the lower court, we think we ought to vary the judgment of the learned trial judge so as to make it accord with the facts as found.
In the result we have come to the conclusion that the post of Bara or Onijagbo of Ijagbo is not that of a chief in the traditional sense in which the term is normally used under customary law, that the 4th defendant has not been properly appointed to that office-whatever dignity or other prerogative goes with it and that, unless properly appointed according to tradition, he must be restrained by injunction from holding himself out as such.
To the extent of the variation, which we have made and which will now be the order of this court, we dismiss this appeal. We consider that this is an appeal in which each side should bear its own costs, and this shall be the order of this court.
Other Citation: (1973) LCN/1654(SC)
