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In The Supreme Court of Nigeria

On Friday, the 6th day of April 1990

SC 45/1989

 

Before Their Lordships

 

 

Andrews Otutu Obaseki

......

Justice, Supreme Court

Kayode Eso

......

Justice, Supreme Court

Salihu Modibbo Alfa Belgore

......

Justice, Supreme Court

Philip Nnaemeka-Agu

......

Justice, Supreme Court

Abubakar Bashir Wali

......

Justice, Supreme Court

  

Between

 

M.A. Eleso 

......

Appellant

 And

The Government of Ogun State

The Attorney-General and Commissioner for Justice

of Ogun State

Oba Oyebade Lipede I

The Alake of Egbaland 

Chief Toye Coker

The Apena of Egba

Chief F.A. Oyalowo

.......

Respondents

 

Judgement of the Court

Delivered by

Eso. J.S.C.

 

The relevant facts of this case which is on appeal to this court are not in contest. The plaintiff, Chief F.A. Oyalowo and the 4th defendant, E.A. Eleso, both belong to the Oke Idiroko section of Ijaiye. There are three sections, to wit, Abese, Adebakin and Oke Idiroko and by Ex. C, which is a resolution that the appointment to the Balogun chieftaincy should be in rotation, indicate the plaintiff’s and the 4th defendant's section as the one to produce a candidate at the material time.

 

The Alake [3rd defendant] was the Prescribed Authority pursuant to section 22(1) of the Chiefs Law, Laws of Ogun State of Nigeria 1978, Cap.20.

 

The plaintiff in his pleadings and evidence had in court claimed that he had been nominated by the people of Oke-Idiroko and that he was presented to the community at large and was installed by the lyalode who placed the Akoko leaves on his head and that he was later presented to the Alake who accepted and approved his appointment. He was not invited to any inquiry or settlement of dispute by the 1st to 3rd defendants that the 3rd defendant has no right to appoint any Balogun for Ijaiye. The 4th defendant on the other hand, gave his own account to the effect that he was in fact nominated in absentia by the people of Oke Idiroko and the presentation to the community was also done in absentia. When he later saw the chiefs, his nomination was confirmed and he gave his consent to serve.

 

The account of the meetings of the Chiefs, who met to consider the nominations of both candidates, was given by the 4th defendant. And that was that the Chiefs were four in number. They were equally divided in their votes for the two candidates. The Prescribed Authority, the Alake of Egbaland however refused to react to the voting, that is, failed to use a casting vote, which he believed to be bad. The Alake referred the matter to the Government and the Government resolved the matter in favour of the 4th defendant.

 

The trial court accepted the evidence of the plaintiff only in regard to his nomination. He disbelieved his evidence that he was presented to the Alake and approved by him. He held that, on the evidence, the plaintiff could not rightly claim to be the Balogun of Ijaiye and Are Egba.

 

How about the other candidate - the 4th defendant? The trial court held that the four chiefs were not Kingmakers as they were presumed to have been, the Alake had no casting vote. The 1st defendant, the Government wrongly assumed the power of the Prescribed Authority. The effect is that the appointment of the 4th defendant was also not valid.

 

He concluded –

 

I have taken pains to examine the sections of the Chiefs Law dealing with this case and (sic) I am with the relevant sections which are sections 18 and 20, 21 and 22 with other sub-sections of the chiefs law which are relating to this case have not been complied with. There is no doubt that the chieftaincies involved in this action are minor chieftaincies and they do not require any recognised and approved Registered Declaration showing that kingmakers are essential in the appointment.

 

After a very careful consideration of the evidence before the court and the submission of counsel on points of law, I have come to conclusion that the plaintiff has failed to prove his case satisfactorily but there is no doubt that the plaintiff has an interest to protect and his case has not failed in toto. I have also found that the method of appointment of the 4th defendant was not proper and it will be difficult to enter judgment in favour of the 4th defendant. The 4th defendant is certainly not having a claim before the court and it is only the duty of the court to point out that such appointment should not be allowed to stand in interest of justice without making any reference to the irregularities involved in the making of the appointment.

 

In conclusion, I have found that both the plaintiff and the 4th defendant are not entitled to judgment it becomes necessary to consider the proper order to be made in the circumstances. I would therefore request counsel to address me briefly on the proper order to make in the circumstance.

 

And the learned Judge called for argument on the order to make. He concluded –

 

After a very careful consideration of the circumstances of this case I have decided to enter a non-suit against the plaintiffs claims on its entirety.

 

The plaintiff appealed to the Court of Appeal. The 4th defendant also cross-appealed.

 

Briefs were filed in that court and arguments were presented. In a well considered judgment by; the court Ogwuegbu. J.C.A.. Akanbi and Omololu-Thomas, JJ.C.A., concurring, the learned Justice of the Court of Appeal agreed with the following findings of the learned trial Judge –

 

1.    That it was a mistake by the 1st, 2nd and 3rd defendants to have regarded the four chiefs they invited for the purpose of the selection and appointment as kingmakers and also the Alake as Chairman of the Kingmakers with a casting vote. That it was with this false premise that the 1st defendant proceeded to carry out the duty of the Alake as the prescribed authority and consequently approved the appointment of the 4th defendant.

 

2.    That as 1st defendant assumed the powers of the 3rd defendant (the Alake of Egbaland) the effect of the exercise is that the appointment and approval of the 4th defendant cannot be regarded as valid.

 

3.    That both plaintiff and the 4th defendant are not entitled to judgment.

 

The court however went on non-suit –

 

Having found that the procedure adopted by the 1st defendant and/or 3rd defendant was improper and irregular and held the appointment and approval of the 4th defendant invalid, the road was left wide open for the trial Judge to consider the claims sought by the plaintiff in the light of his findings. It is my humble view that a non-suit should not have been the proper order in the circumstances. He was in error in non-suiting the plaintiff.

 

The learned Justice of the Court of Appeal went on

 

Claims one and two of the plaintiff as endorsed on the writ of summons speak for themselves. They are based on the regularity, legality and/or propriety of the appointment of the 4th defendant by the 1st defendant and/or the 3rd defendant. The learned trial Judge having found that it was irregular and invalid, should have granted the first two prayers.

 

The stool of Balogun of ljaiye is a minor chieftaincy, which is governed by S. 18 of Cap. 19 Laws of Western Nigeria, 1959 or 5.22 Cap. 20 Laws of Ogun State, 1978. It is not a recognised chieftaincy under part 2 of either law. Both the governor and the 3rd defendant were under misapprehension of their powers under S.22(3) and S18 respectively of the Chiefs law Cap. 19 Laws of W.N 1959.

 

He concluded –

 

It is therefore my firm conclusion that the learned trial Judge should have granted declarations one and two in the plaintiff's claim endorsed in the writ of summons.

 

The court allowed the appeal. The two claimed which the Court of Appeal said should have been granted ,and allowed to be granted are:

 

(1)    A declaration that the purported appointment of the 4th defendant by the 1st defendant and/or 3rd defendant as the Balogun of ljaiye is irregular, illegal, unconstitutional not being in accordance with the custom and tradition of ljaiye and therefore null and void.

 

(2)    A declaration that the purported appointment of the 4th defendant by the 1st defendant and/or the 3rd defendant as the Are of Egba is irregular, illegal, unconstitutional not being in accordance with the custom and tradition of Egbaland and therefore null and void.

 

The 4th defendant has now appealed to this court. His grounds of appeal are subsumed in the issues for determination, as stated in the Brief of his learned counsel. The issues are –

 

(1)    Has the plaintiff sufficient interest in the office of Balogun of Ijaiye which is not a hereditary title and to which no specified family is entitled, before an approval by the Prescribed Authority, to make him a competent disputant?

 

(2)    Is the Governor of the State as Chief Executive not empowered and authorised under the Chiefs Law for the peace order and good government of the State to resolve a stalemate in favour of one of two or several contestants as in this case and in so doing to approve his appointment as a minor chief.

 

(3)    Does the Court of Appeal accord to an appellant the entrenched right of fair hearing if it considers only one ground of appeal out of five valid grounds of appeal filed and argued both in the Brief of Argument and orally in court?

 

(4)    Was the appointment of the plaintiff as Balogun of Ijaiye in issue before the High Court?"

 

1    Locus Standi

 

        In his Brief learned counsel for the appellant Mr. E.A. Molajo, S .A.N., submitted the plaintiff did not show sufficient interest to give him the necessary locus standi and therefore he was not a competent disputant and his action was not within the judicial powers vested in the courts by Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1979.

 

The argument in regard to this is that the point was raised in the High Court by paragraph 36 of the 4th defendant's Statement of Defence. During trial the plaintiff was cross-examined on it when he said that the Balogun of ljaiye has from time been appointed by the chiefs and people of Ijaiye. It is not a hereditary title and it is to be in rotation between the three quarters or wards of Ijaiye.

 

Learned counsel argued further that the Judge found

 

(1)    that the plaintiff was selected or nominated and no more.

 

(2)    that the 4th defendant appellant was

 

(1)    selected or nominated

 

(2)    presented to the entire community

 

(3)    presented to the chiefs and

 

(4)    the 4th defendant presented himself to the chiefs.

 

He concluded –

 

It is therefore respectfully submitted that the plaintiff has failed to show that he has locus standi in this case. He has not pretended to take the action as representative of the people of Oke Idiroko Section of Ijaiye or as representative of all the people of Ijaiye. He knew he would have got a massive opposition if he took such a step.

 

Learned counsel relied upon the dictum of Fatayi-Williams, C.J.N., and Bello. J.S.C. (as he then was) in the famous case of Senator Abraham Adesanya (1981)1 All N.L.R. 1 at pages 26 and 33 respectively. See also (1981) 2 N.C.L.R. 358.

 

In his own brief for the 4th respondent, C.J., Chukura of counsel contended that the plaintiff had locus standi and argued that the term interest should not be given a narrow construction but should be regarded as including any connection, association or inter-relation between the respondent and the Balogun of Ijaiye chieftaincy. He relied on Col. Halilu Akilu v. Chief Gani Fawehinmi (No.2) (1989)2 N.W.L.R. (Pt.102) pages 122 to 193.

 

The 1st and 2nd respondents, though represented by counsel Mrs. Kuforiji, filed no brief. The 3rd and 5th respondent showed no interest at the hearing of this appeal.

 

2.      On the 2nd issue, as to whether or not the Governor of the State has power to resolve a stalemate in favour of one of two or several contestants in pursuance of his power for peace and good government, Mr. Molajo, S.A.N., presented his most powerful argument. He said (in his brief) and referred to the findings of fact made by the trial court that the plaintiff was selected by those entitled to do so. And so, was the 4th defendant. But the difference in the two was that the 4th defendant, after the selection, was presented to the entire community and the chiefs. It was the chiefs, as the Representatives, that the Prescribed Authority communicated with, when he called for steps to fill the vacancy.

 

Counsel then argued that the Governor did not exercise the power conferred upon him by section 18 and 22(3) of the Chiefs Law. It was the Alake who refused to exercise the powers of the Prescribed Authority and he so informed the Governor. It was right, learned counsel said further, for the Governor as the Chief Executive, to exercise the powers.

 

Mr. Chukura, in his own Brief, said that the correct issue in this sub-heading is not whether the Governor could approve the appointment of 4th defendant but whether he the Governor could appoint and approve. Counsel said that it was never agreed to by both parties, nor was it accepted by the trial Judge, that the appellant and the respondent were properly selected and nominated. He said the functions of the Prescribed Authority were statutory. The Authority is not a customary one. The appellant was therefore validly appointed.

 

3.    Fair Hearing:

 

The appellant complained of fair hearing. The 4th defendant/appellant filed a cross appeal in the Court of Appeal. The Court of Appeal however acknowledged only one ground of appeal - the appeal against weight of evidence as being the only one in the cross-appeal. The complaint of the appellant in this court in that regard is that there was no full reference to the Brief of Argument filed before the court which contained six issues as formulated against three as acknowledged.

 

Mr. Chukura submitted in his Brief that the appellant had a fair hearing of his cross-appeal in the Court of Appeal.

 

4.    Appointment of the appellant:

 

Was it an issue before the court? The appellant's Brief referred to the plaintiffs' claim-

 

(a)    that he is by custom and tradition of Ijaiye the rightly appointed Balogun; and

 

(b)    there is no more vacancy of the title once the plaintiff had been appointed and presented to and accepted by the 3rd defendant.

 

In regard thereto, the Brief further referred to Kutigi, J.C.A's pronouncement that the claim before the trial court was not whether the plaintiff is the Balogun of Ijaiye which he failed to prove satisfactorily; and that it was a non-issue in the case since it was not part of the claim endorsed in the writ of summons.

 

Mr. Chukura however replied by saying that as there was no challenge by any of the defendants to the appointment of the respondent as Balogun of Ijaiye and there was no counterclaim in challenge of his appointment, the plaintiff's appointment was not an issue before the court.

 

I think Mr. Chukura must have meant that the claim to the title could only have been challenged by the filing of a counter-claim, as the entirety of the case of the 4th defendant/appellant has been, throughout up to this court, a challenge of plaintiff title.

 

How about oral submissions?

 

Mr. Molajo, S A. N., adopted his Brief and added more. He submitted, orally, that the Alake, having refused to discharge his duty, or having abdicated his authority, by refusing to resolve the stalemate, the Governor as the Executive could, acting under section 5 of the 1979 Constitution, revoke the powers of the Prescribed Authority and assume those powers. Mr. Molajo, S.A.N., complained that though he made a similar submission in the Court of Appeal, that court did not consider the Constitution.

 

Mr. Chukura maintained that the Governor could not exercise powers conferred by 5.23 of the Chiefs Law. The Governor, in any event, did not follow the procedure.

 

Now, what one should not do is to lose sight of the issues raised by this appeal, for in the maze of the submissions by learned counsel, it would appear to me that the correct perspective is being overshadowed.

 

The Balogun of Ijaiye Chieftaincy is a minor chieftaincy and it is covered by Part 3 of the Law. The Chiefs Law is in 5 parts to wit –

 

1.    Introductory;

 

2.     Recognised Chiefs;

 

3.    Minor Chiefs;

 

4.    General; and

 

5.    Transitional Provisions

 

Section 3 which deals with Recognised Chiefs enacts –

 

3.    The Commissioner may by order -

 

(a)    apply the provisions of Part 2 to a chieftaincy;

 

(b)    designate a local government council as the competent council in respect of that chieftaincy.

 

It means therefore a chieftaincy comes within the area of administration of Part 2 only when the Commissioner has made an order applying the Part to the chieftaincy. This particular chieftaincy has not that priviledge. It is a minor chieftaincy and the part of the law applicable is in Part 3 of the Law. There is a lot of difference between a Part 2 chieftaincy and a Part 3 chieftilney. In a chieftaincy to which Part 2 applies, the Commissioner designatesa Local Government Council as the competent council in respect of that chieftaincy whereas in a minor chieftaincy, the Executive Council [not the Commissioner] appoints, or may appoint, in respect of the area of any Local Government or group of Local Governments, an authority which is known as the Prescribed Authority, [in this case not as the competent councilj. The composition of the Prescribed Authority may be one or more persons than one.

 

The procedure to fill a minor chieftaincy is as follows –

 

1.    Those who are entitled by customary law to appoint, and in accordance with customary law, will appoint a person to a vacancy. S.22(2).

 

2.    The Prescribed Authority, established under S.22(1), will then proceed to approve the appointment.

 

3.    Where a dispute arises as to whether a person has been appointed ~ in accordance with customary law to such chieftaincy, it is the Prescribed Authority who may determine the dispute.

 

4.    If any person is aggrieved by the decision of the prescribed authority in exercise of the powers above, that person may make representation to the Commissioner for Chieftaincy Affairs within 21 days.

 

5.    Before the Commissioner comes to a decision on the representation, he may set up an enquiry in accordance with section 21 of the Law. It is this provision that brings in the provision of a section outside Part 3.

 

6.    When the Commissioner, in pursuance of his powers, sets aside an appointment, then he shall [mandatory now, though other exercise has been discretionary] require those responsible under customary law to appoint, to make the appointment of another person in accordance with customary law.

 

It is clear therefore that this is different from the provisions of, and what obtains in a recognised chieftaincy which provides for registered declarations, within which is specified the ruling houses, kingmakers, etc; committees of competent councils; local government inspectors; qualifications and disqualifications of candidates; and an elaborate procedure to fill vacancies (s.15) in a ruling house chieftaincy and also in other recognised chieftaincies other than ruling house chieftaincy (s.16).

 

Now, what happened in this case. What are the facts as accepted by the trial Judge? The learned trial Judge found as follows –

 

In the instant case, it is clear that the people entitled to appoint 6 the Balogun of Ijaiye appointed two people

 

He went on -As regards the plaintiff –

 

In the instant case, this court must make a finding as to who of the two contestants has been properly nominated and appointed as the Balogun of Ijaiye and Are Egba. I bear in mind the evidence of the plaintiff and his witnesses about the selection, appointment, installation and approval and I must say that I believe and accept the evidence of the plaintiff only in respect of his selection having regard to other evidence before the court but I hold that the plaintiff failed to prove that he was installed and subsequently presented to the Alake of Egbaland for approval and that the Alake accepted him and approved his appointment. I have no choice in accepting his nomination because even the 2nd witness for the 4th defendant confirmed that the plaintiff was 

nominated by the people of Oke-Idiroko but Ifound it difficult to accept the evidence of the plaintiff himself that he was installed by 

the lyalode and I also disbelieved his evidence that he was presented to the Alake of Egbaland and the Alake accpeted him and approved his appointment. I wish to say here that the plaintiff did not call the lyalode to give evidence on the issue of this important ceremony and there is not the slightest evidence from any independent source in support of this installation not even the photo graph taken at the time of the ceremony.

 

So, in so far as the appointment is concerned, the learned Judge held that the plaintiff was properly nominated and appointed.

 

In regard to the 4th defendant, the learned Judge held –

 

The case of the 4th defendant is simpler, in that apart from his selection by Oke-Idiroko people and his presentation to the entire community and the chiefs, and also his subsequent visits to the chiefs, the other steps taken to effect the approval of his selection as Balogun of Ijaiye and Are Egha were based on a wrong premises.

 

This would appear to mean that in so far as appointment is concerned,

 

(a)    he was properly selected;

 

(b)    he was presented to the entire community and the chiefs;

 

(c)    he paid subsequent visits to the chiefs.

 

It was the steps taken to effect the approval of his selection that were based on a wrong premises. But in the same vein the Judge held –

 

I have also found that the method of appointment of the 4th defendant was not proper and it will be difficult to enter judgment in favour of the 4th defendant. The 4th defendant is certainly not having a claim before the court and it is only the duty of the court to point out that such appointment should not be allowed to stand in interest of justice without making any reference to the irregularities involved in the making of the appointment.

 

What then is the proper method of appointment?

 

The Alake, who is the Prescribed Authority and whose evidence the trial court accepted said on this –

 

I remember that the late Chief V.A. Ilori was the Balogun of ljaiye and Are Egba. I know that Chief lIon died in June 1979. Sometime after the death of Chief Ilori I sent to the Kingmakers of ljaiye who ore the representative of Ijaiye people to set into motion an arrangement to fill the vacant post of the Balogun of Ijaiye. I wrote some letters in respect of the Chieftaincy of the Balogun of Ijaiye."

 

The Kingmakers, or in other words, those four who voted on the two candidates, and were evenlv divided, were according to his evidence. those entitled by customary law to appoint to this vacancy.

 

The Alake went on –

 

In answer to the invitation the Ijaiye Chiefs came and the A matter of the Chieftaincy of Balogun Ijaiye and Are Egba was discussed and I also explained to them the urgency of the decision. I wrote letters to the Senior Chiefs and when they came, we held a meeting where I explained the position to them that whoever (sic) become the Balogun of Ijaiye would automatically become the Are of Egba. After the decision we reached a conclusion. From the reply which I got some of the Chiefs were not alive and there were only four kingmakers alive. I was aware that the Chiefs were not alive but l could still appoint the Balo gun with the number of the chiefs.

 

The Alake's evidence was on appointment and according to him the Kingmakers were the appointors.

 

On Stalemate, he said –

 

As the prescribed authority, I had a vote at that meeting

 

Now, this could only be in regard to approval.

 

The position was made clearer under cross-examination. For the Alake said-

 

The Balogun of ljaiye and Are Egba is one of the Chieftaincies which must be approved by the Alake of Eghaland because it is a minor chieftaincy. I am the Chairman to the Kingmakers of the Balogun of Ijaiye and Are Egba. The customary law from time immemorial is that the Alake has been the Chairman of the kingmakers of the Balogun of Ijaiye and Are Egba.  ...............

 

At the time of appointment of the Balogun of Ijaiye only four of the chiefs were alive. I held two meetings with the kingmakers to select the Balogun of Ijaiye and both the plaintiff and the 4th defendant had two votes each.  ..............

I have a right to approve any of the two persons despite the tie in the voting but I did not do so as the father of both of them

 

I am of the view that both the learned trial Judge and the Court of Appeal went wrong on the issue of the customary law when it comes to appointment. I think the fact is that both the plaintiff and the 4th defendant were properly nominated and both were appointed under customary law subject to the Prescribed Authority, approving the appointment of one of them. The fact that the appointors have been described as Kingmakers does not delimit from the potency of the result. lnadvertently, the point would even appear to have been settled, as it is not raised in the issues for determination of either the appellant (4th defendant) or the main respondent the plaintiff.

 

That being the case. the important issue is, has the Governor powers, acting under the Chiefs Law. for the peace. order and good government of the State, to resolve a stalemate iii favour of one of two or several Contestants?

 

His reliance has been placed on the Chiefs Law by the appellant, one should therefore examine the relevant provisions.

 

I have said that this is a minor chieftaincy, and so only the provisions of Part 3 apply, except those provisions outside the Part that have been referred to and applied by the Part.

 

What happens when a Prescribed Authority fails in his statutory duty?

 

Section 22(5) of the Chiefs Law which came into force by Law 1976 No.

 

I make provision for the situation. it provides –

 

Any person aggrieved by the decision of the prescribed authority in exercise of the powers conferred on the prescribed authority by subsection (2) (which empowers the prescribed authority to approve)………may within twenty-one days from the date of the decision of the prescribed authority, make representations to the Commissioner to whom responsibility for chieftaincy affairs is assigned that the decision be set aside and the Commissioner may after considering the representations confirm or set aside the decision.

 

The Government made this Law and it is bound by it, and so the stage which the whole matter has reached, after the prescribed authority decided not to exercise his statutory powers, because as he said, he was father of both and not prepared to take side with either, was for the person aggrieved, that is the plaintiff or the 4th defendant, or both the plaintiff and the 4th defendant, to make a representation to the Commissioner of Chieftaincy Affairs, who [sub-section (6)] may cause such inquiries to be held as appear to him necessary or desirable. The section stipulates that the enquiry maybe held in accordance with section 21, but I believe it is section 20 that is meant by the draftsman.

 

Now no representations have been made by either party to the Commissioner of Chieftaincy Affairs. in exercise of his powers as a matter of order peace and good government, the Governor must have recourse to law. The Governor is certainly not there to seize the power of other functionaries, nor is he there to rule in dictatorship in disregard of the established laws of the land. That would not bring order, nor peace nor good government.

 

With respect, I find it difficult to accept the submissions of Mr. Molajo, S.A.N., as attractive as the theories propounded by the submissions may be. For the Government to step in and approve the appointment of one of the candidates without any backing of law, when the provisions of the law are there, clear straightforward, and binding, is to introduce arrogance into governance.

 

The sum total of all these is that neither the appointment of the plaintiff, nor that of the 4th defendant, has been approved. The grounds of appeal in this fail.

 

The next question is whether the appointment of the plaintiff as Balogun of Ijaiye was in issue in the High Court. The question, I believe arose, emanating from the wording of the endorsement on the writ filed by the plaintiff, which is directed against the appointment of the 4th defendant. A perusal of the plaintiff's Statement of Claim, in particular, paragraphs 17, 22,23 and 24, shows clearly that the appointment of the plaintiff as the Balogun was in issue. These paragraphs were denied by the 4th defendant (see paragraphs 17,23 and 24 of the 4th defendant's Statement of Defence). This issue and the grounds of appeal in regard thereto also fail.

 

There is no merit in the issue dealing with locus standi. The plaintiff has a locus standi in this matter, if anyone has.

 

That should have been the end of the matter for on the argument of the Court of Appeal which is not faulted, the two declarations which the Court of Appeal granted ought to have been granted by the trial court. That may well be so, and in dismissing this appeal, I would like it noted clearly, that though there is no cross action by the 4th defendant on the facts placed be- B fore the court, hotly contested by the parties, and fully examined by the two courts below, neither the plaintiff's appointment nor the 4th defendant's appointment, as the Balogun of Ijaiye, is proper.

 

However, the appeal is dismissed. The 4th respondent is the only one entitled to costs which are hereby assessed at N500.00.

 

 

Judgment delivered by

Obaseki, Ag. C.J.N

 

I have had the advantage of reading in advance the draft of the judgment just delivered by my learned brother, Kayode Eso, J S.C., and I am of the same opinion that the appeal fails and must be dismissed.

 

The appeal is in respect of a chieftaincy matter. The chieftaincy is the Balogun of Ijaiye and Are of Egba. It is a minor chieftaincy.

 

In the High Court of Ogun State, the plaintiffs instituted an action against the 1st, 2nd, 3rd, 4th and 5th defendants claiming:

 

(1)    A declaration that the purported appointment of the 4th defendant by the 1st defendant and/or 3rd defendant as the Balogun of Ijaiye is irregular, illegal and unconstitutional, not being in accordance with the custom and tradition of Ijaiye and therefore null and void.

 

(2)    A declaration that the purported appointment of the 4th defendant by the 1st defendant and or the 3rd defendant as the Are of Egba is irregular, illegal, unconstitutional not being in accordance with the custom and tradition of Egbaland and therefore null and void.

 

(3)    An order setting aside the purported appointment of the 4th defendant as Balogun of Ijaiye and Are of Egbaland.

 

(4)    An injunction restraining the 1st, 3rd and 5th defendants from installing or giving instructions to instal the 4th defendant either as Balogun of Ijaiye and/or as Are of Egba.

 

(5)    An injunction restraining the 4th defendant from parading himself as the Balogun of ljaiye and/or Are of Egha.

 

The 3rd defendant (the Alake of Eghaland) was the Prescribed Authority pursuant to section 22(1) of the Chiefs Law, Laws of Ogun State of Nigeria 1978, Cap.20.

 

After considering the evidence led by the parties, the learned trial Judge held that neither the plaintiff nor the 4th defendant was appointed the Balogun of Ijaiye as required by the custom and tradition of the Ijaiye people and as required by the Chiefs Law. He thereafter entered an order of non-suit against the plaintiff in respect of all the claims.

 

Both the plaintiff and the 4th defendant were dissatisfied with the order of non-suit and so each of them went on appeal to the Court of Appeal against the decision. In other words, the plaintiff appealed to the Court of Appeal and the 4th defendant cross-appealed. The plaintiff's appeal succeeded in respect of the declarations sought in the first and second arms of the claim and the Court substituted an order granting these two declarations instead of the order of non-suit.

 

Aggrieved by these two declarations, he has now appealed to this Court to have the decision of the Court of Appeal reversed. Four issues were formulated as questions for determination in this appeal by the appellant. They are:

 

(1)    Has the plaintiff sufficient interest in the office of Balogun of Ijaiye which is not a hereditary title and to which no specified family is entitled before an approval by the Prescribed Authority to make him a competent disputant.

 

(2)    Is the Governor of the State as Chief Executive not empowered and authorised under the Chiefs Law for the peace, order and good government of the State to resolve a stalemate in favour of one of two or several contestants as in this case and in so doing to approve his appointment as a minor chief?

 

(3)    Does the Court of Appeal accord to the appellant the entrenched right of fair hearing if it considers only one ground of appeal out of five valid grounds of appeal filed and argued both in the Brief of Argument and orally in court?

 

(4)    Was the appointment of the plaintiff as Balogun of Ijaiye in issue before the High Court?

 

These issues have been exhaustively dealt with by my learned brother, Eso, J.S.C. I agree with his reasonings on all the issues and I will only add the following comments to further expand the breadth and depth of the consideration given to the issue of locus standi.

 

LOCUS STANDI

It is the contention of the learned counsel for the appellant both in his brief and in oral submissions before the court that the plaintiff did not show sufficient interest to give him the necessary locus standi. He therefore did not have the competence to invoke the judicial powers of the courts vested by section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1979. In support of his argument, learned counsel referred to and cited the dicta of Fatayi-Williams, C.J.N. and Bello, J.S.C. (as he then was) in the famous case of Senator Abraham Adesanya v. President of the Federal Republic of Nigeria and Anor. (1981)1 All N.L. R. 1 at pages 26 and 33 respectively. See also (1981) N.C.L.R. 258.

 

C.J. Chukura, Esq., learned counsel for the plaintiff/respondent, con-H tended that the plaintiff had locus standi as the term interest cannot be interpreted to exclude association or inter-relationship between the plaintiff/respondent and the Balogun of Ijaiye Chieftaincy. He cited Col. Hahlu Akilu v. Chief Gani Fawehinmi (1989) (No.2)2 NWLR. (Pt. 102) pp.122-193

 

The first defendant/respondent though represented by counsel Mrs. Kuforiji, filed no brief and did not in oral submission contest the appeal. The 3rd and 5th defendants/respondents equally showed no interest at the hearing and did not contest the appeal. On the second issue, Mr. E.A. Molajo, S.A.N. contended stoutly in a powerful submission that after the plaintiff and the 4th defendant were selected by those entitled to do so, and the Alake refused to exercise his powers as the Prescribed Authority and informed the Governor of his wish not to exercise the said powers it was right for the Governor as the Chief Executive to exercise the powers.

 

Mr. Chukura in the plaintiffs/respondents brief quite correctly pointed B out that this second issue as framed does not go into the heart of the matter. It is not whether the Governor could approve the appointment of the 4th defendant but whether the Governor could appoint and approve. Jt was never common ground among the parties that the 4th defendant/appellant and the plaintiff/respondent were properly selected and nominated.

 

On the issue of fair hearing, the appellant complained that the Court of Appeal did not make full reference to his brief of argument as of the six issues formulated only three were acknowledged. Mr. Chukura for the plaintiff/respondent submitted in his brief that the appellant had a fair hearing of his cross-appeal in the Court of Appeal.

 

On the question whether the appointment of the appellant was an issue before the Court of Appeal, reference was made to the pronouncement of Kutigi, J.C.A. that the claim before the trial court was not whether the plaintiff is the Balogun of Ijaiye which he failed to prove satisfactorily and that it was a non issue in the case since it was not part of the claim endorsed on the writ of summon.

 

Mr. Chukura contended that plaintiff's appointment was not an issue before the court. It is true there was no counterclaim by the 4th defendant/appellant to the title but the entirety of the case of 4th defendant/appellant from the High Court to this Court is a challenge to the plaintiff's(respondent's title there can be no substance in such contention.

 

The area of conflict was considerably narrowed down by the oral submissions of counsel. Mr. E.A. Molajo, S.A.N., for the 4th defendant/appellant submitted that the Alake, 3rd defendant having refused to discharge his duty or having abdicated his authority by refusing to act to resolve the stalemate, the Governor as Chief Executive could, acting under section 5 of the 1979 Constitution, revoke the powers of the Prescribed Authority and assume those powers. Mr. Chukura on the other hand, submitted that the Governor could not exercise powers conferred by section 23 of the Chiefs Law and that in any event, the Governor did not follow the procedure.

 

My learned brother, Eso, J.S.C. has examined the issues in this appeal in great detail. The area of greatest concern to me is whether the Governor as Chief Executive can assume the powers of the Prescribed Authority for the simple reason that the Prescribed Authority failed or refused to unknot or resolve a tie by selecting one of the two selected candidates for the chieftaincy title of the Balogun of Ijaiye. The answer to such predicament which arose in this case when the Alake could not decide which of the two candidates to approve can be found in section 22 of the Chiefs Law, Cap.20 Laws of Ogun State. The section reads:

 

(1)    The Executive Council may appoint in respect of the area (which expression shall in this Part and Part 4 be deemed to include a reference to part of an area) of any Local Government or Group of Local Governments; an authority (in this Part referred to as the Prescribed Authority) consisting of one person or of more persons than one who may be chairman and other members of a committee established by section 5, to exercise the powers conferred by this section in respect of the office of a minor chief whose chieftaincy title is associated with a native community in that area.

 

(2)    Where a person is appointed, whether before or after the commencement of this Law to fill a vacancy in the office of a minor chief by those entitled by customary law so to appoint and in accordance with customary Law, the prescribed authority may approve the appointment;

 

(3)    Where there is a dispute whether a person has been appointed in accordance with customary law to a minor chieftaincy, the prescribed authority may determine the dispute;

 

(4)    The decision of the prescribed authority –

 

(a)    to approve or not to approve an appointment to a minor chieftaincy or

 

(b)    determining a dispute in accordance with sub-section (3) of this section shall be final and shall not be questioned in any court.

 

(5)    Any person aggrieved by the decision of a Prescribed Authority in exercise of the powers conferred on the prescribed authority by sub-sections (2) (3) and (4) of this section may, within 21 days from the date of the decision of the Prescribed Authority make representations to the Commissioner to whom responsibility for chieftaincy affairs is assigned that the decision be set aside and the Commissioner may, after considering the representations, confirm or set aside the decision;

 

(6)    Before exercising the powers conferred by subsection (5) of this section, the Commissioner may cause such inquiries to be held in accordance with section 21 as appears to him necessary or desirable.

 

(7)    Where the Commissioner in his determination under sub-section (5) of this section sets aside an appointment to a chieftaincy, he shall require the persons responsible under customary Law for the appointment of the person to fill the vacancy in that chieftaincy to appoint another person in accordance with the customary law within such time as he may specify."

 

The procedure to fill a minor chieftaincy therefore begins with the appointment by those who are entitled under and by customary law to appoint. The sole duty of the Prescribed Authority in regard to this appointment in accordance with customary law is to give approval. The Prescribed Authority will be unable to perform this duty if there is a dispute whether the person has been appointed according to customary law. Until this dispute is resolved satisfactorily, he cannot approve the appointment. This decision on the dispute is also not final.

 

In the instant appeal, it does appear to me that there was no appointment to the vacancy in accordance with customary law. There is no provision for two persons to be appointed to fill one vacancy and it would appear those entitled to appoint never did appoint for the approval of the Alake, the Prescribed Authority. The Alake's statutory powers as the Prescribed Authority does not include a power to select one of the two candidates and appoint him. His powers are statutory and must be confined within the statutory pro- B visions. The revocation of his appointment as Prescribed Authority did not therefore confer additional powers on the Governor as the Prescribed Authority has no power under customary law to fill the vacancy. The Alake as Alake may have some powers under customary law along with others to select and appoint but as prescribed authority, his powers are confined to giving approval.

 

I therefore agree with my learned brother, Kayode Eso, J.S.C. that neither the plaintiff/respondent nor the 4th defendant/appellant was appointed the Balogun of Ijaiye and Are of Egba for approval.

 

On the issue of locus standi, the plaintiff/respondent cannot be described as having no locus standi to initiate these proceedings. He was not only an elegible candidate but was also a candidate for the minor chieftaincy of Balogun of Ijaiye. He was nominated validly for appointment and contested with the 4th defendant/appellant for the chieftaincy. He cannot therefore be described as one having no interest in the subject-matter of the action. He has, in my view, sufficient interest to give him locus standi.

 

The appeal fails and I hereby dismiss it with N500.00 costs to the plain-tiff/respondent.

 

 

Judgment delivered by

Belgore, J.S.C.

 

I had a preview of the judgment of my learned brother, Eso, J.S.C. and I agree that this appeal lacks merit. I also dismiss it with the same consequential orders as made in the lead judgment.

 

 

Judgment delivered by

Nnaemeka-Agu, J.S.C.

 

My learned brother, Eso, J.S.C. has so ably and lucidly stated and analysed the facts and the law involved in this case which is a chieftaincy tussle for the stool of the Balogun of Ijaiye and Are Egba between the plaintiff (hereinafter called the 5th respondent) and the 4th defendant (hereinafter called the appellant) that I consider it unnecessary to go into them again. I only wish to add my own comments on two issues which have arisen in this appeal.

 

At the trial the Governor of Ogun State (hereinafter called the 1st respondent, was the 1st defendant), the Attorney-General of the State (hereinafter called the 2nd respondent) the 2nd defendant, Oba Oyabade Lipede, the Alake of Egbaland (hereinafter called the 3rd respondent) the 3rd defendant, Chief Toye Coker (hereinafter called the 4th respondent) H was the 5th defendant.

 

The learned trial Judge found, and these have not been reversed by the Court of Appeal, that the appellant and the 5th respondent (hereinafter to be referred to as both parties to the contest) were duly selected for the chieftaincy; that it was a minor chieftaincy for which there was no chieftaincy declaration; that the people entitled to appoint a chief appointed two people-the appellant and the 5th respondent; that the 5th respondent was duly selected but failed to prove that he was properly presented to the 3rd respondent, the Alake of Egbaland as the Prescribed Authority; that the appellant was properly selected but not duly appointed. His appointment was full of irregularities in that when there was a tie of votes by the kingmakers the Alake failed to resolve it, as he was entitled to do. The approval of his appointment by the Governor was based on wrong premises, he held.

 

There can be no doubt that the selection and approval of the appointment of the appellant by the Governor of Ogun State after the Alake, the 3rd respondent, had been sent on overseas leave, was contrary to the provisions of section 22 of the Chiefs Law of Ogun State: under the law the Governor, as the Chief Executive of the State, has not that type of role to play. It is clearly the function of the 3rd respondent as the Prescribed Aathority and, if there should arise a problem, the Commissioner, who may set up an inquiry. I am not impressed by the argument of Chief Molajo that as the ultimate authority in the State over the maintenance of law and order, the Governor had implied residuary power which he could exercise under section 5(2) (a) and (b) of the Constitution. Reading the provisions of section 22 of the Chiefs law of (Ogun State cap. 20 of 1978) carefully, my irresistible impression is that the legislature in its infinite wisdom thought it necessary in the interest of good government to give a direct responsibility to the prescribed authority over the type of situation that has arisen in this case. The power to act in the matter cannot therefore be considered part of the residuary executive power of the Governor of the State. The Prescribed Authority is a traditional office holder. This is not a power given to the Governor by law which he has found it convenient to delegate to the Authority. So, by no stretch could it be said to be part of the power given to the Governor under section 5(2) (a) and (b) of the Constitution of 1979. It is nothing short of a clear usurpation by the Governor of the power and function expressly given to the Commissioner and the Prescribed Authority by the Law. Such a situation is not permissible. The full implication of our system in which we have opted for a rule of law is that every functionary of government including its Chief Executive must, in the execution of his functions, at all times act under and in accordance with law. He cannot rightly take over the function which the law allocates to another. If a Governor in the execution of the functions of his high office, comes face to face with a situation which is not covered by the law as it is, or in which a particular function is intended to be performed by another functionary, his solution does not lie in his riding rough shod over the problem in the name of expediency. Rather he should seek an amendment of the law - by the competent legislative authority. In the instant case, quite apart from the fact that no crisis situation arose by the simple fact that the Prescribed Authority refused or neglected to use the power which he himself admitted that he had to resolve the conflict in case of a tie in the voting, section 22 of the Chiefs Law of Ogun State contemplates an inquiry by the Commissioner and there is no warrant for any intrusion by the Governor. I therefore agree that the role played by the Governor which led to the approval of the appellant as the Balogun of Ijaiye and Are Egha is invalid and unlawful.

 

On the issue of locus standi, the gist of the appellant's submission is that A the 5th respondent had no locus standi to sue. This is because the stool of Balogun of Ijaiye and Are Egba is not a hereditary stool to which the 5th respondent's family, or any family for that matter, is entitled.

 

Now right to sue in a chieftaincy contest may arise in two different ways. A man may by his statement of claim and evidence show that the right that is being asserted is that of his family by reason of, say, their hereditary interest. In that case, it is the family, usually through their representatives, who can bring the action on the premises that it is the civil right of the family that has been pleaded. On the other hand, a man may be asserting his own right to the chieftaincy stool. What is required in that case is that his statement of claim - and evidence if evidence has been called - should show the nature of his interest and his entitlement to the stool: see Am usa Momoh & Anor. v. Jimo Olotu (1970) 1 All N.L.R. 117, at p.123. In that case, what he is asserting is his own civil right to the stool and not that of his family. See Senator Abraham Adesanya v. President of the Federal Republic of Nigeria & Anor. (1981)1 All N.L.R. 1, (1981)2 N.C.L.R. 258; Thomas v. Olufosoye (1986) 1 N.W.L.R. (Pt.18) 669 S.C. Section6 (6) (b) of the l979Constitutionhasex-pressly given him a locus standi in such a case. In the instant suit, the 5th respondent's case is that he had the right to be selected, installed, presented and approved as Balogun Ijaiye and Are Egba. This is part of his civil right. He was not asserting the civil rights of his family or any other group, but his own. It does not matter that it was not his hereditary entitlement. His case is that the stool has been allocated to his own section of the town which section selected him as a candidate. He clearly had the locus standi to bring an action in order to assert his civil right.

 

For these reasons and the fuller reasons contained in the judgment of my learned brother, Eso, J.S.C., which I adopt as my own, I would also dismiss the appeal. It is hereby dismissed with the same order, as made in the lead judgment.

 

 

Judgment delivered by

Wali, J.S.C.

 

I have had the opportunity of reading in advance a copy of the judgment of my learned brother, Eso, J.S.C., and! entirely agree with it. For those same reasons which I adopt in toto, I too will dismiss the appeal and it is hereby dismissed. I also adopt the consequential orders in the lead judgment including that relating to costs.

 

 

Counsel

 

 

Chief E.A. Molajo, S.A.N. 

With B.A. Okegbenro

Damian Udeh

 

........

For the Appellant

 Mrs. Y.A. Kuforiji

 Senior State Counsel,  Ogun State Ministry of Justice

  ........

For the 1st and 2nd Respondents

3rd and 4th Respondents unrepresented
C.J. Chukura  ....... For the 5th Respondent